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A Treatise on the Evidence of Succession to Real and Personal 
I Property and" Peerages* By John Hubback, Esq., of the Inner 
Temple, Barrister at Law. 

A Treatise on the Laws relating to Factors and Brokers. By John 
A. RusselU B.A., of Gray's Inn, Barrister at Law. 



MAR 18 1908 220^^B'"''^^^S^'^ 

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In the Ecclesiastical Courts the declarations of a deceased clergy 
man as to the time when he had solemnized a certain marriage were 
received,(a) but as such declarations of the fact of marriage have 
lioee been held madmissibleCfr) and there is no 'reason for r «oaA -i 
my distinction in favour of the time, this authority cannot ^ J 

be relied upon. 

The conduct of parties and all other evidence available in proof of 
the fact of marriage may also be useful in establishing the time. For 
the period of the first occurrence of facts indicative of a subsisting 
marriage -wiH supply an inference of the time when the married state 
commenced. W ith this view evidence was gone into in the Berkeley 
Pteraee case as to the time when the Countess was first called Lady 
Berketey by the servants, and when her linen was first marked with 
the initiak M. R and a coronet^c) 

From the parents' treatment of a child as legitimate there arises a 
presumption (of course open to rebuttal,) not only that the parents 
were married but also that their marriage was anterior to the child's 
birth. Where the legitimacy of a daughter was impeached on the 
ground of her birth before her parents' marriage, and she proved their 
treatment and acknowledgment of her as legitimate, and that her 
father bequeathed the residue of his property to her by the description 
of his daughter, it was held by the E)cclesiastical Court, that it lay 
with the other party to shew her illegitimacy by provmg the time of 
her birth, and of her parentsVmarriaKe subsequent to it.(a) 

Of marriage, as of the species of mcts. already discussed, the requi- 
site proof is affected by the occasion and subject of claim. In eject- 
ment it has been seen that reputation will suffice even though better 
evidence be attainable. But in equity, though marriage is proveable 

(«) RoUds T.Wobelev.SCtfytem. Lee, 491. Ibid 35. 

{h) Berkele/ Etfldofu, anto. p. 246. (e) Min. Ef. 1799, pw 99. Min. I^jr. 1811| 

{i) Udj liiyo ▼. BrowB, d Cm, Ism. Lee, 391. 

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194 moBBAM^B J ty umw of aoooasnov. 

by the same evrdanca as at law, a greater strictness of proof may im 
some cases be required by the diflerent nature of the property, and the 
greater difficulty of retracing an erroneous step. And this observa- 
tion has still greater force in claims of peerage. If the evidence in 
equity be conflicting, a jurj^ are the proper judges of the fact of mar- 
riage ;(e) but their verdict, on this' as on other questions, is merely to 
inform the Court. Upon a question of legitimacy, the son produced 
r ♦261 1 ^i^°®®^* ^^^ swore to a *marriage. in fact between his 
^ \ parents, and he obtained a verdict. On a second trial he 

declined to produce those witnesses, and rested solely upon a reputa* 
tioo of the marriage. Ahhough the verdict was again in his favour, 
this was deemed insufficient to satisfy the conscience of a Court of 

In the Accountant-General office marriage might be proved by affi- 
davit only ; but Lord Eldon did not approve this laxity of practice.(f) 
And in the Master's office, and in application by petition or otherwise 
to the Court, the* proper proof is by an examinied extract from the 
Kffisler and an affidavit of identity. 

The conveyancer is not easily satisfied with any evidence of mar- 
ringe short of an examined copy of the register and' evidence of .iden- 
tity ; and, undoubtedly, if this proof is wanting, its absence ought to be 
satisfactorily accounted for, and its place well supplied. For a par- 
chaser is entitled to require higher evidence of marriage than that 
which would be barely sufficient to obtain a verdict. There are many 
cases in which the jury will collect the fact of legitimacy /from cir- 
cumstances which mignt be attended with so much reasonable doubt 
that a Court of Equity would not compel a purchaser to take the title 
merely because there was such a verdict. The Court will weigh 
whether the doubt is so reasonable and fair that the property is left in 
his hands not marketable.(A) 

But an objection grounded on the want of the register may be over- 
come. Where a defect in the proof of a party's legitimacy was 
objected to a title, and it appeared that the parents were living together 
as man and wife before Lord Hardwicke's Act, and that the mother 
was buried in 1781, and described in the register as the father's widow, 
but no register of the marriage could be found, and illegitimacy was 
sought to be inferred from some inaccuracy in a deed and particularity 
of tbe son's description in a will. Lord Eldon thought the inference 
from the circumstances could not be stated to a jury as fairly qoes- 
tionable, and therefore held the objection invalid.(t) 

[ *2d3 ] '^BcnoN IL — Of Evidbboi RKSPBcrnco thk VALTDmr of Mabsxaos. 

BssnoBs the presumption of the fact of marriage from circumstances^ 
there is a presumption from the fact, however proved, that the mode 
or form of it was such as to render the marriage valid. Omnia pre* 

(e) See Re?el t. Fox, 9 Vet. fen. f70. (/) fihwboroe ▼. Ntper, 2 Ridgw. P. C. Sd4. 
Or) CUtfUM ▼. Oraibam, 10 Yes. 98a (A) Per Ld. Eidoo, 8 Vm. 428. 

(i) LqM Bnijbcoks T. Inskipb 8 Vis. 417. 

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TAtix»Tr or MASftiAot. 198 

smmUer riU et Bolemniter acta : parties inarr3riiig must be presamed 
to have done so Id a manner contbrmahle to law ; and the presump- 
tiOD is founded in reason, for when they have determined upon a fact 
of marriage, it is the interest of both or one that the contract should 
be binding.(j) 

This presumption was relieil on by Sir John Nicholl in the case of 
Steadman v. Powell.(*) The parties, who were Protestants, were 
l)oifa in the service o£ the Puke of Rutland, whilst he was Lord Lieu- 
teoaot of Ireland. In 1786, the woman becoming pregnant, as it was 
rumoured, by the defendant, it was intimated to him that his marriage 
with her was necessary to the tenure of their places. A fact of mar- 
riage was then asserted to have taken place, and an instrument pur- 
B>rtiDg to be a certificate of the marriage was shewn to the Duke and 
ocbess of Rutland, who being thereby satisfied that the parties were 
really married, suflfered them to continue in their situations. They 
subsequently treated each other, and were considered by their friends 
Bian and wife, and the issue were baptized as lawful children. The 
woman, however had, before her death, declared that she had been 
married to the defendant in a way she conceived to be illegal, mean- 
iif by a Catholic priest, and there was some other evidence to this 

Sir John Nicholl relied upon the facility with which r ^253 1 
marriages ♦could be contracted in Ireland, upon the im- ^ J 

prsbabuity that a Popish priest would haVe married these parties in 
the face of a sentence of capital felony,(/) upon the presumption in 
favour of the validity of a marriage the fact of which was once proved, 
and considering the marriage sutiicientiy established, refused probate 
of the woman's will, and granted administration to her husband. 

And even if it be shewn that a particular marriage was void, yet if 
tbe parties continued to cohabit as man and wife, a subsequent legal 
marriage may be presumed.(m) 

But though a fact of marriage be clearly established it may be met 
«m1 rendered unavailable either by evidence of a sentence of nullity 
pcooounceNd by a Spiritual Court of competent jurisdiction, or by proof 
of a cause of nullity of marriage cognizable in the Temporal Courts. ^ 
bb important to observe that few causes of nullity are matters so* 
iatelUgible or notorious as the fact of marriage in general is, and that 
dierefore reputation is for the most part in favour even of voi^ mar- 

fhe causes of nullity afterwards enumerated, which shew the mar- 
riage to have been •absolutely void, are cognizable in the Temporal 
Courts: but a voidable marriage cannot be there impeached except 
hj the sentence of the Spiritual Court divorcing the parties a vinculo. 
It, however, there be such a sentence unrepealed, the issue, whether 
bom before or after it, are illegitimate.(w) The sentence of the Spirit- 
ual Court pronouncing the marriage null by reason of an impediment 
which rendered it void and not merely voidable is also evidence in the 


lAdd.66,(9E.EoaR.) {k) 1 Add. 58, (9 B. Eoe. R.) 

ISG«o,l«c3,8.K(Iriah.) DbtMl7 & 18Goo.3«o.9,ii. 1. 
(«) Witktuoii ?. Payne, 4 T. R. 468. (m) i Rx^, Ab. 359. 

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Temporal Courts, although the cause of nullity was one which they 
might have entertained independently of such sentence.(o) 

The sentence of the Spiritual Court, either in affirmance or in avoid- 
ance of a marriage, is merely declaratory. Because in order to war- 
rant a divorce a vinculo^ the cause of nullity must have existed at the 
r *264 1 ^^^ ^^ ^® marriage ; theffpiritual Courts being ♦without 
I- J power to annul a marriage for adultery or any other cause 

arising subsequently to the contract. This was- solemnly decided in 
Foljambe's case in the 44th of Elizabeth, where after a divorce for 
adultery on the wife's part the husband married again during her life, 
and his second marriage was declared to be voia.(p) Sentences of 
divorce a mensA et thoro which are only pronounced for adiiltery or 
cruelty have not therefore any effect upon the validity of the marriage, 
nor except so far as they afford a presumption of non-access,(5) upon 
the legitimacy of the issue.(r) 

Where in civil causes the Temporal Courts find the question of mar- 
riage directly determined by the Ecclesiastical Courts they receive 
the sentence though not as a plea yet as a proof of the fact : it being 
an authority accredited in a judicial proceeding by a Court of com- 
. potent jurisdiction. (5) 

Hence a sentence of nullity and a sentence in affirmance of a mar- 
ria^ have been received as conclusive evidence on a question of ^ 
legitimacy arising incident|illy upon a claim to a real estate. (<) A* 
sentence in a cause of jactitation has also been received upon a title 
in ejectment as evidence against a marriage,(t/) and in like manner 
in personal actions immediately founded on a supposed marriage.(t>) 

It was said by De Grey, C. J., that in all these cases the parties 

r *265 ' 1 *^^ ^^^ ^"^'^' ^ ^^ '^^^^ ^^^ parties against whom the evi- 
»• * dence was received were parties to the sentence, and had 

acquiesced under it, or claimed underthose who were parties and had ac- 
quiesced.(t^) But it has been thought that this observation had reference 
to cases where the proceeding in the Ecclesiastical Court had not been 
a proceeding in renif and where the question of marriage had been 
only incidentally determined : and that where the object of the suit 
. has been directly to deprive a person of the legal character of husband 
or wife, by virtue of the exclusive jurisdiction of the Ecclesiastical 
Court, the sentence of nullity of marriage or of divorce, in like man- 
ner as probates and letters of administration, have the effect of estab- 

(0) Cro. Eliz. 857. G\H Cod. 446. (p) 9 Inst 88. 3 Salk. 138. (q) Pod, c. 5. 

(r) 6/ Uic tnck^nt E!iijrl<«2) Iaw it would uppear thai dlforce^a vinculo were allowed ftr 
adultery ; and by Uie H^formatio Legum it was proposed that divorces a mtn^d et thoro 
should be abolisiied, and that divorces a. mncu/o should be allowed for adultery, desertion, 
cruelty, d:c, that the innocent p^y should bo allowed to marry again, and thot the oflTend- 
1ng> party should be punii^hed by bsAishmont or imprisonineut. Gibs. Cod. 446. 536. 
fiivhop £fi]met*s Hi:*t. Reformation, p. 315. The first instance of a divorce by Act of Parliii- 
ment was that of Lord De Roos in 1669. Only five of such acts passed before the accession 
of the House of Hanover, from which period thev have rapidly increased. Between 1715 
and 1775 there were sixty: from that date to 1600 seveniy-four ; and from ISOtlio 183D 
about ninety. See BramwcIPs Table of Private Acti, and Dr. PhiUimore's Speech in (he 
House of Commons in 1830, on the Law of Divorce. 

(a) Per De Grev, C. J. 20 How. St. Tr. 540. 

it) Bunting v. Lcpingwell, 4 Rop. 29 a. Moor, 169, S. C. Kennels case, 7 Rep. 41 h, 
Cro. Jac. 186. (u) Jones v. Bow, Garth. 235. . 

(«) Hatfield ▼. Hatfield, 2 Strange, 691. 1 Salk. 290. {w) 20 How. St. Tr. 540. 

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Sfhoig CQDcIomvely the state and legal character of the parties for and 
against all the world. (x) And ihis opinion is confirmed by some of 
the cases cited, in which persons who were neither parties nor claimed 
under parties to the suit in the Spiritual Court, were held to be bound 
by the sentence directly pronouncing upon the marriage.(y) 

The conclusiveness to the Temporal Courts of sentences of the 
Spiritual Courts in matrimonial causes, where the question determined 
is directly one of marriage, is exemplified by the case of Morris v. 
Webber.(2() There it appeared that two persons had been married 
some years without issue. A suit was instituted in the Spiritual 
Court, and sentence of divorce pronounced vropter vilium perpetuum 
d imp^entiam generationis in the husbana. Both parties married 
again, and each by the second marriage had several children. A 
question arose respecting the legitimacy of the husband's issue by the 
second marriage, and it was contended that the existence of such 
issue proved that the sentence was founded on apparent falsehood. 
But the common Law Court held that though this was true, vet Xhe 
sentence was binding and conclusive upon them until reversecl in the 
Ecclesiastical Court, and that therefore the issue of th6 second mar- 
riage were legitimate. 

nf, however, marriage is not the point determined by r ^qm -i 
the sentence, but is merely matter of inference from it, *• J 

ifae sentence is not only not conclusive, but is not even admissible 
evidence upon the question arising in the Temporal Courts.(a) * Thus 
in Billiard v, Phaley,(i) upon a question of legitimacy, the Court 
r^cted the sentence in the Spiritual Court pronounced in the lifetime 
of the parties that they were guilty of fornication, offered as evidence 
to s1k>w that there was no marriage. Lord Cowper, however, said, 
'^ what could be better evidence V' and thought it hard that it had been 

A sentence in a suit for jactitation of marriage not being a proceed- 
ing in rem is not cohclusive upon the question of marriage arising in 
another proceeding. This was decided after much consideration on 
the trial in the House of Lords of the Duchess of Kingston for 
bigamy.(c) In that case a sentence of the Ecclesiastical Coffrt in a 
suit for jactitation of marriage, pronouncing the prisoner free from 
matrimonial engagements, was held by the judge to be no estoppel to 
the proof of her marriage with the party to the suit, in support of the 

One reason of the decision was that a suit for jactitation is ranked 
as a cause of defamation, unless where the defendant pleads a mar- 
riage: the sentence has then a negative and qualified effect, namely, 
that the party has failed in his proof, and «that the libellant is free 
from ail matrimonial contract as far **as yet appears," leaving it 
open to new proofs of the same marriage in the same causte, or to 

(r) 1 Phil. Evid. 545. 8th ed. 

(«) Bunting V. Lepingwell, 4 Rep. 29. Hanrey^s case, 1 1 SC Tr. 235. And see Hildyard 
▼. Grantham, citad 2 Vpt. sen. 346, reported 8 Mod. ISO.^iub nom. Hilliard ? . Pbaley, 

(c) Moore, 255. And see 5 Rep. 98 b. 2 Leon. 169. 173. Djen 179, a. 

(a) Blackham'a case, 1 Salk. 290. 

<i) 8 Mud. 180. And see 2 Wila. 124. Per Lord Hardwioke, Brownaword ? . Edwards, 

Tea.seA. 34& Rep. tMB. Hardw. 311. {c) 20 How. St Tr. 53a 

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any other proofs of that or of any other marriage in another cause. 
It IS no plea to a new suit in the Ecclesiastical Court And there- 
fore the judges held that this sentence (even admitting it to be 
evidence on a criminal prosecution) could not be conclusive, but that 
the sentence and the judgment of the Lords might well stand together, 
and both propositions be true. The sentence would only prove that 
it did not then appear that the parties were married ; but because the 
Court had not then sufficient proof of the marriage specified, it 
r *2(J7 1 *^^"'^ ^^^ ^ inferred that there was no other marriage 
■• ■» between them at any other time or place.(d) 

Upon the general question of jurisdiction, Lord C. J. De Grey, in 
delivering the opinion of the judges, said:(e) Upon the subject of 
marriage the Spiritual Court has the sole and exclusive cognizance 
of questioning and deciding directly the legality of marriage, and of 
enforcing specifically the rights and obligations respecting persons 
depending upon it ; but the Temporal Courts have the sole cognizance 
of examining and deciding upon all temporal rights of property ; and 
so far as such rights are conceri\ed, they have the inherent power of 
deciding incidentally either upon the fact or the legality of marriage: 
where they lie in the way to the decision of the propef objects of 
their jurisdiction, they do not want or require the aia of the Spiritual 
Courts; nor has the law provided any legal means of sending to 
them for their opinion, except where in the case of marriage an issue 
is joined upon the record in certain real writs upon the legality of a 
Inarriage, or its immediate consequence, general bastardy : in these 
cases upon the issue so formed, the mode of trying the question is 
by reference to the ordinary, and his certificate, when returned, 
receiveji and entered upon the record in the Temporal Courts, is a 
perpetual and conclusive evidence against all the world upon that 
point. But even in these cases if the ordinary should return no cer- 
tificate, or an insufficient one,* or if the issue is accompanied with 
any special circumstances, as if a second issue triable by a jury be 
formed upon the same record ; or if the effect of the same issue is 
put inpinother form ; a jury is to decide, and not the ordinary to 
•certify the truth. 

The early writers treat it as clear that even in real actions, where 
the lawfulness of marriage came in question, a sentence of the Eccle- 
siastical Court might be pleaded so as to render unnecessary the trial 
r ♦268 1 ^^ certificate.(/) But in a modern case, where *in 
^ J dower the tenant pleaded ne unques accouplb, and the 

demandant replied, stating a sentence of the Court of Arches in 
favour of her marriage, the Court of Common Pleas held the replica- 
tion bad, and that the demandant must join issue to have the marriage 
sent for trial by the bishop.f^) It has been remarked that the sentence 
being in a cause which had been removed by appeal from the Bishop's 
Court to that of the Archbishop, the trial by certificate was giving to 
the inferior jurisdiction an opportunity of contradicting the sentence 

(d) A coiMcqaence of thiadccisioD bai been torcndtr suiti for jacitation moat infreqaenl 
which had before been of familiar occurrence. Dr. Phillimore recollecta but oneauitol'thia 
dc*criplion in hia time. 1 Caa. tern. Lee, 16 n# (e) 20 How. St. Tr. 538. 

(/) Braeton, 306a. .307 b.- FlcU, lib. 5, c. 28. Britton,-251 b. 

ig) Robins ▼. Cnilchia/, 3 Wils. !!& 137. 

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▼AUO|TT or fUMMUS^ 1 W 

rf the soperbr <nm, #ven m a cas^ actually decided by the latter on 
•n appeal from the former.(A) But it appears that the sentence was 
not like a certificate a proceeding in rem, being pronounced in a suit 
for divorce where the marriage was determined upon plea, and that 
therefore the decisions would not be upon the same point. 

In the case of a marriage merely voidable by reason of the exist- 
ence of some one of the canonical impediments afterwards enumer- 
ated, the sentence of divorce a vinculo must have been pronounced 
daring the lifetime of both parties.(7) The reason of this limitation as 
to time, is that the sentence of the Spiritual Court, being pro salute 
ariauB, is needless after the death of a party. And therefore, where 
a man had married his first, wife's sister, and after her death the 
Spiritual Court was proceeding to annul the marriage and bastardize 
the issue, the Court of King's Bench granted a prohibition quoad hocy 
but permitted the ecclesiastical authorities to proceed to punish th^ 
husband for hicesL(j) But a sentence of divorce a vinculo may be 
repealed after the death of the parties.(A) 

And the limitation applies only to voidable marriages : if there was 
BO marriage, or if there was a marriage which was void by reason of 
tciiy disability or defect, and not merely voidable in consequence of 
acaaonical impediment, the Spiritual Courts may *pro- r itnaa !• 
ceed,even after the death of the parlies; their sentence ^ •' 

not then ofiending against the rule that the issue shall not be bastard- 
ized afver the parents' death ; for Lord Holt observed the issue were 
bastards without any proceedings of the Spiritual Courts, if the parents 
were never naarriea.(/) 

It is a rule both of the civil and canon laws and acknowledged in 
the Ecclesiastical Courts, that a sentence contra matrimonium non 
transit in rem judicatam. It is not a jZna/ judgment upon the matter, 
but may at any time be revised and reversed.(m) So long, however, 
as it remains unrepealed, the Temporal Courts are bound by it. In 
Kennes* case, the common law judges conceded that the sentence was 
reversible by the issue, against whom it was given in evidence, but 
still they held it conclusive to the Temporal Courts.(n) 

The sentence of the Spiritual Court maybe impeached in the Tem- 
poral Courts by evidence that it was obtained through fraud or coUu- 
«ion.(o) It would appear, however, that this can only be done by per- 
sons who were not parties to the suit in the Spiritual Court, and who 
cannot, therefore, as parties themselves may, procure a repeal of the 
jodgment in that Court.(p) 

(t) 1 HmTgnvti*B Law Tracts, 454 n. 

(i) I RoU. Ab. 360. Salk. Pit. Garth. 271. Comb. 200. 4 Mod. 182. 12 Mod. 432. 
B&oCtT. Garr, 2 Pbill. 16, (1 E. Eco. R.) (j) Salk. 584. 

(i) 9 Boro, £. L. 446. See Com. Dig. Baron & Feme (c. 6.) 
{I) HemiDtog V. Price, 12 Mod. 432. And see Pride v. Earl of Bath, 3 Ley. 410. 
(Bi) Onghton, tit 306. Sanchez, lib. 7,disp. 100. Boazer ▼. Rtckctts, 1 Hagg. C. R. 

(o) 7 Rep. 41. And see 1, And. 185. 2 Leon, 169. The marriage of the Earl of Here- 
fard and Lady Catherine Grey, aAer having been pronounced against in the reign of Eliza- 
M, was long afterwards impliedly acknowledged in a private act of parliament, which 
fccites a descendant of the marriage to be heir male of the lx>dy of the first Duke of Som* 
o>et 1 Hallam, Const. Hist. pp. 172. 398. 

(t) Duchess of Kingston's case, 20 How. St. Tr. 538. Per Lord Hardwicke, 2 Ves. sen. 
^ (p) Prudbam ? . Phillips, Amb. 763. 

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BVBSiCK^s jff r mmm or ivooissiav. 

Whilst treating of the etkct of sentences and judgments upon the 
subject of marriage, it is proper to refer to the state of the authorities 
upon the question of the admissibility in civil cases of records of c(m- 
viction for bigamy. It seems to have been formerly held that a con- 
viction for bigamy mi^ht be admitted in a civil case, where the valid- 
ity of the second marriage was in question. In one case, where a partv 
had been libelled for jactitation of mcurriage, the Court of King's BeDcn 
r *270 1 S^^^^^^ ^ prohibition, ^because the Spiritual Court would 
^ -I not allow a plea that the plaintiif had been convicted of 

bigamy in marrying the defendant.(7) And Mr. Justice Buller states, 
that in the case of a father convicted on an indictment for having two 
wives, a conviction would be conclusive evidence in an action of eject- 
ment, where the validity of the second marriage is in que8tion.(f ) 
But the general doctrine seems now to be settled that a conviction 
•in a criminal proceeding is not admissible in a civil action, by reason 
of the want of mutuality in the parties :($) and it follows that a con- 
viction for bigamy cannot be received to show the invalidity of the 
second marriage in a question of legitimacy. It appears also, that a 
man so convicted in respect of his marriage with the intestate, may 
propound his interest as the lawful husband of the deceased in k suit 
touching the administration of her effects in the Ecclesiastical Court: . 
and, notwithstanding his conviction pleaded and proved, may suc- 
ceed in such suit upon proof of his not having been guilty of the 
crime. (0 

Sentences in other criminal proceeding involving the question of 
marriage, are also inadmissible in civil cases. The difierence in the 
nature of the proceedings was one of the grounds upon which the 
Court of King's Bench rejected a sentence of excommunication, 
which had b^n jpronounced against the parents for fornication, 
and which was aiterwards offered in evidence upon a question of 
legitimacy, to prove that they were not married. It was held inadmis- 
sible, ** because first it was a criminal matter, and could not be given 
in evidence in a civil cause : next, because it was res inter alios actOf 
and could not affect the issue."(tt) 

Causes of nulUty of marriage are either disabilities in the parties to 
the contract, or defects in the mode of constituting it. Disabilities are 
either canonical merely, or civil. 

r •271 1 ^^^^y canonical disabilities ^hich render the mar- 
I- J riage *voidable only, were originally, first, pre-contract ; 

secondly, consanguinity or affinity in a prohibited degree ; and thirdly, 
impotency : of these the first is virtually abolished ; the second is as 
regards marriages solemnized since the 31st of Atigust, 18d5f made a 
civil disability, rendering the marriage void; and the last only remains 
as a merely canonical disability. 

By statutes 26 Geo. 2, c. 33, s. 13, and 4 Geo. 4, c. 76, s. 27, no 
suit can be had in the Ecclesiastical Court to compel celebration of 
marriage by reason of any contract, whether per verba de presently or 

(o) Boyle ▼. Boyle, 3 Mod. 164. Comb. 73, a a 
(r) Ball. N. P. 245. (•) 1 Phill. Ey. 590, 8th Ed. 

(0 Wilkinson ▼. Gordon, 3 Add. 153,(2 £. Ecc. R.) 
(tt) Hilljrard t. Qrontham, oiled by Lord Hardwicke,3 Vet. een. 246. Rep. tein. Uardvr. 

Digitized by VjOOQ IC 

▼AUflUTT or notmuox. 901 

Mr verba de fmivto ; and the disability arising from pre-contract has 
oeeo considered to be impliedly taken away by this enactment.(o) 

Marriages between persons within the prohibited degrees, solemn- 
i»d after the 31st. of August, 1835, are void, and not merely voida- 
aUe: aod this impediment is now therefore a civil disability, and will 
be afterwards considered as such. Marriages between persons within 
the prohibited degrees of affinity, solemnized before the Slst of August^ 
1835, cannot now be annulled for that cause.(u7) 

A bodily defect, rendering consummation of the marriage impossi- 
Ue, is a sufficient around for anuUing the contract. Suits of this kind 
are Dot entertained^ except where the imperfection is palpable, unless 
the parties have been in continued cohabitation for three years ; and 
where the proof of the defect is doubtful, a further cohabitation is 
eDJoiQed.(x) A party who contracts marriage, knowing hiniself to be 
impolent, wjU not be permitted to set it aside on this ground.(y) 

Civil or legal disaoihties, if proved in the Temporal Courts, show 
themarriajge to have be absolutely void ab initio. They are : 

*Fir8t, a prior marriage of either of the parties, sub- r ^272 1 
m&ag at the time of the marriage in question, (t) Certain *- ^ 

itatotes exempt from the punishment of bigamy persons who marry 
Bgaia after their husbands or wives shall have been seven years absent 
from them under certain circumstances, but no validity is imparted to 
the second marriage.(<i) 

Secondly, want of age in one of the contracting parties coupled with 
diiafrreement from the marriage by either of them upon the party so 
dinUed comiciff to the legal age of consent, that is, fourteen m males 
aod twelve in females.(6) If the parties continue after these ages to 
cohabit as husband and wife this amounts to an agreement to the mar- 
rage, even though they disagree by parol or in writing: unless the 
(bagreement be made before the ordinary.(c) The consent of the 
parents or guardians was under Lord Hardwicke's Act necessary to 
the validity of marria^s by infants under twenty-one, as will appear 
in treating of the rei|uired preliminaries or incidents to marriage. 

Thirdly, want of reason. The marriages of idiots a nativitatef 
thoagfa formerly hekl valid and the issue legitimate, are now clearly 
vsid;^ as are also the marriages of lunatics not being in tt lucid 
ioterval.(e) And if a person has been found lunatic under a commi»> 
aooor corcimitted to the care of trustees by Act of parliament, his 
marriage, before he is declared of sound mind by the Lord Chancel- 

(v) 1 Hanrrave Co. Litt 79 b. n. (4) But aee 1 BL Com. 435. 440. 

(») SUt 5Sl e Wm. 4, c. 54. 

(x) Ooffhton, tit 217. Aylifl*e*s Parer[^n, tit. Divorce. BrlggB ▼. Morgan, 2 B^[g. C 
E. 334, (4 E. £oc R.) Greenatreet ▼. Cumyns, 9 PliilUm. 10, (i £. Eoc. R.) Brown ▼. 
IbvD, 1 Hafg. E. R. 523, (3 E. Ecc. R.) 

(y) Nortoo ▼. Scton, 3 Phillim. 147, (I E. Ecc R.) 

(x}lRQlLAbr.340.357. Cro. EL 85a 1 Salk. 121. 1 Str. 79. 

!a}l Jac.l,c2. 35 Geo. 3, c 67. 

ik) Co. LitU 79 a., n. ( 1 and 2). 8 winb. on Eapovsala, 34 Ljndw. Pror. 272. 

(e) Com. Dig. Baron Sc Feme, a B. 57. 

{d} 1 RoU. Ab. 357. Co. fait 80 a. n. (1). Browning ▼. Reave, 2 Phill 69. 91, (1 E. 

(0 Moriaon*f caae, coram Delegat 1745, cited 1 Bl. Com. 439. Parker ▼. Parker, 1757. 
OooAeOej ? . E? ana, Prerog. 1 763, cited 1 Hagg. C. R. 417, (4 E. Ecc R.) See 2 PbilL 19 

Digitized by VjOOQ IC 

9tB bqbbacs'b B v mM Kag op srrco&ssio v. 

lor (Mr the migority of such trustees, is also Toid;(/) although con- 
tracted in a lucid interval :(ff) and even wherfe there has been no com- 
mission, if it is first found that the person was generally insane, the 
Court will require it to be shewn by strong evidence that the marriage 
r *273 1 ^^^ clearly had in a lucid inlerval.(A) ♦A luntitic parly 
*• -^ to a marriage may sustain a suit for nullity after his 

recovery from lunacy ;{i) but in this case the degree of proof must * 
be stronger than ordinary.( J) The committee of a lunatic may also 
institute sucfct a suit.(ft) The finding of the jury under a commission 
is merely part of the evidence of insanity, the Ecclesiastical Court 
requiring to be satisfied by its own evidence that grotinds of nullity 

In the case of the Earl of Portsmouth,(i») a marriage efiected 

by clandestinity and fraudulent circumvention with a person of weak 

' and unsound mind, though not actually proved to be deranged, 

was held to be null, as wanting the consent of a free and ratipnal 


The validity of a marriage alleged to be void by reason of the 
mental incapacity of a party may be disputed in the Spiritual Court 
after the death of such patty.(w) The sentence of nullity in the case 
of these void marriages is merely declaratory, and the Temporal 
Courts may treat them as null although there be no such sentence.(o) 

Another civil disability is created by stat. 5 and 6 W. 4, c. 64, 
which, after reciting that marriages between persons within the pro- 
hibited degrees were voidable only bj^ the sentence of the Ecclesiasti- 
cal Court pronounced during the lifetime of both the parties, and that 
it was fittmg that all marriages which might thereafter be celebrated 
between persons within the prohibited degrees of consanguinity or 
affinity should be ipto facto void arid not merely voidable, enacts, that 
such marriages, celebrated after the 3l8t of August, 1835, shall be 
absolutely null and void to all intents and purposes whatsoever. 

A marriage subseqilently to the 31st ol August, 1835, may there- 
fore be shewn to be void by proof that the parties were related to 
r *274 1 *^^^^ other within the prohibited degrees of consan- 
\ J guinity or afllinity. It is more easy to state what are the 

prohibited degrees, as they have been received and acted upon in 
decided cases, than to refer to any clear definition of them having 
authority in the Temporal Courts. Looking only to the statutes upon 
the 8ubiect(p) it is difficult to determine which and how much' of them 
are in force : but the authorities appear to proceed upon the simposi- 
tion that so much of the statute 32 Hen. 8, c. 38, as permits of^mar- 

(/) Stat 15 Geo. 52, c 30. Extended to Ireland by 51 Geo. 3, c 37. 

ig) 1 Hagg. C. R. 417, (4 E. Ecc. R.) (h) Ibid. 

(i) Turner ▼. Meyers, 1 Bngg. 414, (3 E. Ecc. R.) • (J) Ibid. 418. 

. (A) 2 PHIL 160, (1 E. Ecc. R.) 2 Hagg. C. R. 171 , (4 E. Ecc. R.) 

{I) 2 PhiU. 90, (1 E. Ecc R.) 

(m) 1 Hagg. E. R. 355, (3 E. Ecc R.) 3 Add. 63, (2 E. Ecc R.) 

(a) Browning v. Reave, 2 PhiU. 69, (1 E. Ecc. R.) 

(0) See ez parte Taring, 1 Vcs. & B. 140. 1 Browned a Civil Law, 88 n. 

(p) 25 Hen. 8, c 22. 28 Hen. 8, c 7. 32Hen.8,c3a 2&3Ed.6,c23. 1 dt 2 
Ph. A M. c 8, 8. 9, and 1 Eliz. e. 1, as. 11, 12. The table of degrees hang np in cbarches 
was settled by the 99th of the canons of 1603, which do not pr^prio vigwe bind the laity. 
Middleton t. Crofb, 2 AUi. 650. 

Digitized by VjOOQ IC 



rages without the L.evitical degrees is now hw.(q) The language of 
this part of the statute is that every marriage •* solemnized between 
persons not prohibited bt/ God's law shall be indissoluble, and no pro- 
hibition shall operate (God's law except) to impeach any marriage 
without the Leviticnl degrees.** The decrees prohibited by the Levi- 
1 , tical law(r) are all within the fourth degree of collateral consan- 
euinity, according to the computation of the civil law, that is, counting 
from the one party to the other through the common ancestor. An 
oncle and his niece are related in the third degree, and their marriage 
is accordingly invalid.(«) First cousins are related in the fourth 
degree and may therefore intermarry. A man and his grand-niece 
or his grand-aunt, or a woman and her grand-nephew or grand-uncle 
are related in the same degree and a marriage between them is con- 
sequently valid.(f) Persons related, however distantly, by the direct 
ascending and descending Jine are prohibited from intermarriage both 
by the civil and canon laws ;(tt) and this prohibition is adopted by the 
law of England, (t?) 

TTie consanffuinity which is regarded for this purpose is natural 
and not merely legal consanguinity. And therefore a r ^075 1 
bastard •and another person related within the prohibited ^ •' 

decrees, or persons so related through bastards, cannot intermarry.(to) 

Marriages of persons between whom there is an affinity, or rela- 
tionship by marriage, within the above degrees, are also prohibited. 
Thus a surviving party to a marriage cannot marry a person related 
by blood within the fourth degree to the deceased party ; and it fol- 
lows that a man cannot marry his wife's sister or neice or aunt.(ar) 
Upon these marriages it may be observed that the slat. 1 Mar. st. 2, 
c 1, although passed only for the purpose of declaring valid the mar- 
riage of Henry the 8th with his first Queen, Catherine, the widow of 
his brother Arthur, recites that that marriage was not prohibited by 
the law of God, and had its beginning of God, and was a most true, 
just, and lawful marriage, and then enacts that it should be declared, 
deemed and adjudged to be and stand with God*s law and his most boly 
word, and to be accepted, reputed and taken of good effect aiQl val- 
idity to all intents aud purposes. This language has been thought to. 
be more general than was required to validate a particular marriage, 
and coupled with that part of the 32 Hen. 8, c. 88, which refers to 
God's law, leaves room for doubt whether it was not intended to ope- 

(f) Vaofli. 309. 3 KeK 166. 9 BurD*8 Eoc. Law, 405. 9 Com. Dig. Baron tnd Fame' 
(B. 4). 

(r) In Allejoe's Lei^al Demea of Marriage aeveral aathoritiea are collected (among 
Aem a letter to tbe author by Sir William Jones) to shew that the 18th diapter of Leviti. 
nm has no reference whatever to marriage ; and thia opinion ia aupported by thoae peita of 
the Jewish law which admit, and even enjoin, the marriage of a man with his brother's 
widow. (a) Burgc98 v. Borgeaa, 1 Hngg. C. R. 384, (4 & Eoc. R.) 

rO Harriwm ▼. Barwell, Vaogb. 918. S4I. 250. Eq. Ca. Ab. 159. Gibe. Cod. 498. 

(tt) Dig. lib. 23, tit 2, 1. 53. Hb. 38. tit. 10, 1. 4, a. 7. Gibe. Ck>d. 497. 

(v) Vaugh.943. 2Ventr. 18. Gibe. Cod. 419. 

(v) Haines v. Jeffel, Com. 2. 1 Lord Rajm. 68. 5 Mod. 168. Comb. 356. See alae 
11 Em(, 4. 1 Hagg. C. R. 353. 393, (4 £. Ecc R.) Horner v. Liddiard, Dr. Croke*a 
Sep. f 

(x) Oill V. Good, Vaugh. 305. 3 Lev. 364. Eq. Ca. Ab. 156. 3 Keb. 156. Boiler r. 
GutriU^Gilb. 156. Com. 318. 2 Com. Dig. Baron and Feme (B. 4.) Wortley v. Walkio. 
am, ched Bam*a Ece. Law, tit. Marriage. Snowling ▼. Nnrsey, Ibid. Gibe. C^kI. 419, 413. 
Baim T. Hicka, 9 Salk. 54& 

Digitized by VjOOQ IC 

iM mnMjnC$ etidskcs of sucoEssioir. 

rate as a k^ative declaration of the general validity of a maa'i 
marriage <wiifa bis brother's widow.(j/) It is remarkable that it should 
not have attracted the notice of the Court in deciding the cases of Hill 
V. Good, and Butler v. Gastnll. Those cases must however be con* 
aidered as having definitely settled that there is the same prohibition 
in regard to- degrees of affinity as to degrees of consanguinity, on the 
r *276 1 pnnciple that husband and wife being one flesh ^ihe kin- 
'- •' dred of the husband are the kindred of the wife, and 

vice versd.(z) 

But affinity is terminated in the husband himself from the wife's 
kindred^ and in the wife herself from the husband's kindrcd.(^) There 
is thus no affinity between the kindred of the wife and the kindred of 
the husband. A man may therefore lawfully marry his brother's 
wife's sister ; and a son by a ^rst marriage may marry his father's 
'second wife's sister, or such wife's daughter by a former marriage.(6) 
And though a man cannot marry his broCher's widow, she being by 
affinity his sister, he may marry the widow of his wife's brother. 

It' follows from what has been said, that the issue of marriages, sol* 
emnized between persons within the prohibited degrees before the 31st 
of August, 1835, are legitimate, unless the marriage is declared null 
during the lifetime of both the parents ;(c) and that by the statute 5 & 
6 Wm. 4, c. 54, marriages between persons within the prohibited 
degrees of affinity, which were solemnized before the 31st of August, 
1835, cannot now be annulled for that cause.(e) But such marriages, 
as well as those within the prohibited degrees of consanguinity, sol- 
emnized since that day, are absolutely void, and the issue consequently 

Of the causes of nullity of marriage which consist in the defective 
constitution of the contract, one, which has been already partly con* 
sidered, is want of consent. The will or consent of the parties is of 
the essence of marriage. Consensus non concubitits^ focit matrimo* 
nium,{f) Their want of a consenting mind is the reason why tlie 
marriages of infants under the age of consent, and of idiots and luna* 
tics^^e ipso facto void : But as this want creates in them a general 
incapacity to contract any marriage, it has been already considered 
in tne character of a disability. A particular marriage which the 
party was able to contract, but to which consent was wanting, is also 
r *277 1 ^^'^* Thus a marriage by duress or *underthe influence 
^ -I of force or fear is invalid.(^) A marriage is also void if 

(y) AHeyne^t Le^al Deflfrees of Marriage. In Ricbard Parson*! case, 2 Jac 1, mentiooed 
b^ Lord Coke, Ca Lilt 235, the marriage of a man wilb the datightcr of hii first wift*! 
sntor Was determined not to be within the Levitical degrees, and a prohibition was granted ; 
but a ooDSttltation being awarded on debate two years aAer, the case is said to have boon 
expunged from tlie First Insikate by order of the King in Coancil. It was restored in the 
ninth edition. Butler*s note on the passage. (s) Gibs. Cod. 412. 

(A) Wood*8 CiT. Uw, 1 19. (ft) 2 Inst GS4. <«) 4 Vin. Ab. 35. 

(e) Unless the sait was institned before the passing of the act Upon what amounts to a 
pending of the suit, and apon the interest sufficient in the pronnoter, see Ray ▼. Sherwood 
tod Ray, 1 Curteis, 173, 193, (6 £. Ecc R.) S. C. aOerwards before the Privy Council. 

(/) Co. Litt 33 a. 

(g) According to the better opinion such a marriage is void, and not merely Toidnble by 
sentence, f ulwood*s case Cra Car. 488. Keble ▼. Vernon, Kcilway, 52 b. Com. Dig. tit 
Baron 6l Feme, (B. 6.) Vin. Ab. Ut Marriage. Harford ▼. Morris, 2 Hagg. C. R. 4:^3. 436, 
(4£.£ec.R.) Fortamouth t. PortMnosth,! Hagg. £.£.355,(3 £.£oc. R.) 

Digitized by 



one of the parties was under tlie influence of fraud or error respecting 
the person of the other : but tlie marriage is not affected by the error 
of one party respecting the fortune or personal qualities of the other :(A) 
Wff is it vitiated by an error respecting the name, further than to the 
extent afterwards mentioned, by reason of the statutory provitiions 
reroeciing the required preliminaries to marria^. 

Cases of nullity of marriage, which consist in defects in the form 
of constituting the contract, were first introduced * by Lord Hard- 
wicke^s Act, 26 Geo. 2, c. 33, A. D. 1754. Others have been added 
by subsequent statutes that in general have no retrospective effect, but 
leave the validity of anterior marriages to be tried by the law then in 
fiwce, which therefore, with reference to questions of legal consan- 
guinity, cannot be dismissed from consideration. 

One prominent distinction may be first noticed between marriages 
solemnized under Lord Ha/dwicke's Act, 26 Geo. 2, c. 38, and those 
which have taken place since the repeal of that act by the 4 Geo. 4, 
c. 76, that is, between those celebrated after the 25lh of March, 1754, 
and before the Isf of November, 1823, and those celebrated since the 
later period. It is that the former may be shewn to be invalid by 
reason of their having been celebrated in an unauthorized manner, 
notwithstanding the honh jidt$ of the parties, and their ignorance of 
any want of compliance with the formalities prescribed by the act: 
whereas in order to impeach the validity of the latter, it must be 
established that the parlies knowingly and wilfulty intermarried in an 
unauthorized manner. It seems clear, from the language of the acts, 
ind has indeed been decided,(i) that both the parties must have a 
knowledge of the irregularity, otherwise the marriage is not within ^ 
the clause of nullity, and will therefore be good, if notwithstanding ' 
•its want of conformity to the statutable mode of solemni- r ^273 1 
zation, it amounts to a marriage by the general law apart ^ -I 

from the marriage acts.(j) 

Fatal defects in the form of the constitution of the contract maybe 
considered as they regard, I. The preliminaries to marriage; II. The 
place in which, and. III. The persons before whom it was celebrated. 

1. Of theirequired preliminaries to marriage. The publication of 
banns, or a icense from the bishop dispensing with such publication, 
was, before Lord Hardwicke's Act, a preliminary required by the 
canon law to every marriage. A non-observance of such alternative 
preliminaries, did not, however, avoid the marriage, but merely sub* 
jected the parties and the officiating minister to ecclesiastical cen* 
SQre,(Jtr) and to fines under certain statutes.(/) 

The act jusrt mentioned made the observance of one of these pre- 

(A) Wakefield ▼. McKej, 1 Pliillim. 134, (1 E. Ecc. R.) Brower De JareCoDnub.c 18, 
■w 6. (t) Rex ▼. WroxU)n,4 B. & Ad. 641, (24 E. C. L. R.) 

ij) Bj the canoD law the Usur of a marriage ?oid from any eau$e are legilimate, ifeithef 
eTtbe parenu ha?c entered into it hon& fid; Brower, lib. 2, c. 5, n. 52. In 1811, a case 
cane before the Court of Scasion in Scotland reapectinfl: the validity of a marriage where^ 
Um wmnao during' Uie lilb of her hutband, contracted a aecond marriage with a pertoo' 
ttDoraDt of the first The judges were equally divided on the question, whether the mle 
mied part of the law oCScotland. Jt is certainly no part of the law oi England. See 3 
fioper, Hosb. Sl Wife, 465, and Poynter on Marriage and Divorce, 260, (Law Library.) 
. (ir) See per Lord Eldon, 6 Ves. 426. Gibe. Cbd. 425. 2 Atk. 669. 

(I) 8fc7WiD.3,c6. 7dt8Wm.d,e.S5. 10ADn.e.l9. 

Digitized by VjOOQ IC 

aOS mnBACfL*B EVibuH W M or supcffmow. 

Ikninaries essential to the validity of marriages, and its provisions stffl 

5overn(m) those celebrated after the 25th of March, 1754, and before 
le Ist of September, 1822. 

And first, where the solemnization was by banns: the eighth section 
enacted that marriages solemnized " without publication of banns," or 
license, should be null and void. A prior clause directed that notice 
should be given to the minister of the true Christian and surnames of 
the parties : and it has therefore been considered that the publication 
must have been in the true names :(n) that a publication of mise names 
r ^079 -I was no publication, ♦and that marriages consequent 
■- J thereupon were void without reference to the object for 

which the false names were assumed ; even though the assumption 
took place from mere levity, and though there was no intention to 
mislead, and no person interested was deceived^o) 

A partial variation from the real name, which disguised its identity 
as much as a cbfmge to an entirely' false one, was equally fatal to the 
marriage, notwithstanding the absence of any fraudulent design.(jp) 
Upon the degree of variation which would of itself avoid the mar- 
riage, it has been held that the omission(y) or interpolation(r) of a 
Christian name, or the addition of tt final 8(s) had not this effect ; but 
that the alteration of the surname from Meddowcroft to Widdowcroft, 
and from Longley to Long, was fatal to the marriage. Where the 
variation was not so great as to be a necessary cause of deception, or 
where ** the disguising effect of the variation does not app>ear on the 
very face of the name,"(0 the validity of the marriage depends greatly, 
or perhaps wholly, on the question whether the misnomer originated 
in a fraudulent intent. If it was accidental, or proceed^id from a cause 
shewing bond fides of the parties, the marriage will be supported : but 
if a fraudulent design appears (and primd facie the variation will be 
held fraudulent, and must be explamed by evidence to be casual or 
bonafide,){u) the marriage will be invalid. The Courts proceed upon 
the principle that what a party intended to be sufficient to disguise 
the name, should be so considered as against him :(t;) although it has 
been remarked that this is rather beyond a strict interpretation oY the 
statute, which would determine the validity of the marriage by the 
r *2fi0 1 ^"^^^^^ ^^ *^® question, whether that which has taken place 
L '^^^ J #is publication of banns, alid without reference to the inten- 
tion with which it was done.(M;) 

If the evidence of the cause of the misnomer is insufficient to dis- 

(m) See I Add. 94 n. 

(n) Rex T. Bill'tngshurst, 3 M. & S. 950. Pougett ▼. Tomkint, Ibid. 362. S Btgg. C R. 
142, (4 E. Ecc. R.) I PliilK 499, <1 £. Etc. R.) 

(0) FrankUDd ▼. NicboboD, 3 M. & S. 359. MaUier ▼. Ney, Ibid. 265. Rex ▼. Tibsbel^ 
1 &^ Ad. 190, (20 £. C. L. R.) ScealioS H«gg. C. R. 254, (4 £. Ecc. R.) 

(«) 2 Haffg. C. R. 254, (4 E, Ecc R.) 

(9) Pottffcu ▼. Torokins, 3 M. & S. 269. 3 Htgg. C. R. 143, (4 E. Ecc R.) 1 Phdl. 
499, (1 E. Ecc R.) See Rex v. Tibehclf, ubi sup. 

(r) Sullivan v. Sullivan, 3 Hagg. C. R. 33d, (4 E. Ecc R.) 3 PbilU 45, (1 E. Ecc R.) 
He^r T. Hefler, 3 M. & S. 365. 3 Hagg.a R. 355 n., (4 E. Ecc. R.) Qreeii y. Daltoo, 
1 Addania, 289, (2 E. Ecc ft.) Rex v. Tibahelf, obi aup. 

(«) Dobbyn ▼. CorjKck, 2 Phil. 102. (I £. Ecc. R.) 

(C) 2 Hagg. C. R. 2.'>8, (4 E. Ecc. R,) 

(a) Sullivan v. Sullivan, 2 Hagg. C R. i58, (4 E. Eco. R.) 

(V) 3 Hagg. C. R. 255, (4 £. Ecc R.) (to) See Jacob, 3 Roper*a Husb. & Wife, 491|ii. 

Digitized by VjOOQ IC 

VAUDiTT OF xAkuos. 997 

prove fraud, bat leaves the existence of it doubtful, it is allowable to 
enter into evidence of other facts shewing the fraudulent intention with 
which the variation of name was made.(ar) But the non-residence of 
the parties in the parish where the banns were published cannot be 
proved even for this purpose,(y) the reception of that evidence being 
prohibited by the express provisions of both the old and existing mar- 
riageacls,(2) With thisexception,theCourt will advert to all thecircum- 
5tooces ; and, therefore, even the singularity of the surname will have 
weight, as tending to shew that the omission of a Christian name was 
M resorted to for the purpose of concealment ;(a) such omission, if 
with a fraudulent design, being fatal tp the marriage.(&) 

Oo the question, what are the true Christian and surnames of the 
parties 1 Lord Stowell has observed, that where there is a name of 
baptism^ and a native surname, those are the true names, unless they 
have been overridden by the use of other names assumed and generally 
aeeredited.(c) A name acquired by reputation alone, has, in several 
cases, been held to be the true name within the statute.((f) Illegitimate 
children having no proper surname, except such as they acquire in 
this manner ,(e) the name which should be used in their banns is that 
bf which they are usually known.(/) 

'Where, in the solemnization, the woman, by the man's r ^oqi i 
consent, ♦personated another woman, in whose name the ^ J 

baons had been published, the marriage was held void, on account of 
tfa^ undue publication.(^) 

The statute did not require any description of the statvs or additions 
of the parties, and therefore where a woman was called a widow in 
the banns, when in fact she was not, the marriage was held to be not 
thereby avoided.(A) 

So, according to Lord Stowell, a false description of residence is a 
mere impedimenium impeditivum, imposing on the clergyman, if the 
fact be known to him, the duty of not proceeding with the marriage, 
bat ootj'ovalidating the ceremony if once performed; whereas the 
pubhcaiion of false names is an impedimentum dirimms, invalidating 
tbe marriage in toio.{i) And a marriage by banns is valid, though 
aeither or only one of the parties resided in the parish.(j'). 

The banns were directed to be published upon three Sundays pre- 
eediog the marriage.(A) In one case the husband was allowed to 
piove that the banns were published only twice : but his credit was 

(X) Pongett T. Tomkins, 3 M. & S. 264. 3 Ha^rfi:* C. R. 146, (4 E. Ecc R.) 

(») Priestley r. Lamb, 6 Ves. 432. 2 lUgg, C. R. 147, (4 E. Ecc. K..) Tree ▼. Qain, 3 
ILSlS. 26a 9 Pliill. 14, (I E. Ecc. R.) See Ibid. 104. 

(s) 26Geo.2, c.33,8. 10. 4Gea 4,c. 76, 8.26. 6 & 7 Wm. 4, o. 85, s. 25. 

|c> Scrflivan ▼. Sollifan, 2 Hegg. C. R. 258, (4 B. Eeo. R.) 

ib] Tree ▼. Qain, HefTer ?. Heffer, obi sup. Stonhope r. Baldv^in, 1 Add. 94, (2 E. Eoc. R.) 

(c) 2 B^gg, C. R. 254, (4 E. Ecc R) 

(^ Rex V. BilliD^arst, 3 M. & a 250. Majhew ▼. Maybew, Ibid. 266. 2 Pbill. 11,(1 
^ See. R.) 3 M. & S. 260. Wilson ?. firockley, 1 Pbill 132, (1 E. Ecc R.) 

(e^ 2 Ha^g. C. R. 253, (4 E. Ecc R.) 

(/) SolKvui V. SoUivan, 2 Hagg.238, (4 E. Ecc R.) Wilaon v. Brockley, abi sap. 3 
KB. 45, (I £. Ecc R.) Wakefield ▼. Wakefield, 1 Higg. C. R. 304, (4 E. Ecc R.) I 
Pkfl. 13411^ (1 E. EccR.) 

IfF) Farqaharson t. Farquharson, 3 Add. 282, (2 E. Ecc R.) 

ik) Mayhew r. Maybew, 3 M. & a 266, and see Wright v. EHwood, 2 Hagg. E. R. 598, 
(4 e. Ecc R.) 1 Curtets, 69 & a (t) ^2 Hagg. C. R. 853, (4 E. Ecc R.) 

U>t6Vfla.359. 18 Vei.289,tM«lio6 Vea.423. (ir) deGeo.9«««83,i.l. 

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left to the jury, on account of (he nature of his evidence, and he wai 
not bclieved.(/) 

It was provided by stat. 3 Geo. 4, c. 75, s. 19, that marriages should 
not be avoided by reason of publication of banns in false names, but 
this part of the act was repealed in the followinff year ; and by the 
Stat. 4 Geo. 4, c. 76, ss. 7 and 22, if the parlies knowingly and wil- 
fully intermarry without due publication of banns, the marriage is void. 
It has accordingly been held, that where with a view to concealment, 
one of the Christian names of the husband was omitted in the publica- 
tion of banns, and both parties were cognizant of the omission, il was 
a void marriage, (m) 

r ♦282 1 *^" ^ recent case, the husband was a minor of seven- 
L J teen, and the wife about thirty-five, and the sister of a 

person to whom the husband had been confided as a pupil : the hus- 
oand's baptismal name was Edward Croxall Tongue, but he had been 
generally called Croxall only : the banns were published in the name 
of Edward, with the knowledge of both parties, and the marriage was 
kept secret above twelve months. The marriage was held void by 
the Consistory Court, and on appeal bv the Court of Arches ; and tte 
judgment was afiirmed by the Judicial Committee of the Privy Coun- 

Where in the banns the woman was described as a spinister, but 
was in fact at that time a married woman of that name, and became 
unmarried by her first husband's death before solemnization, the mar- 
riage was held not to be void, either by reason of the former mar- 
riage, or by reason of undue publication, the second husband believing 
her to have been then a spinister, and both parties therefore not hav- 
ing been cognizant of the informality, (o) 

By the twenty-sixth section of the statute last cited, no objection 
can be made to the marria^ on account of either of the parties' 
non-residence in the parish where the publication took place. 

Where before the New Marriage Act a marriage might be solem- 
nized after publication of banns, such marriage may now be solemni- 
zed in Hke manner, on production of the registrar's certificate, which 
is to be obtained after notice given to the superintendent registrar of 
the intended marriage, as in the act provided. The want of this 
notice or certificate is fatal to marriages under the act ; but in those 
which are celebrated according to the rites of the church of England, 
publication of banns or the notice and certificate may be resorted to 
at the discretion of the partie8.(p) 

r *283 1 *'^'^^ clause of nuUity applies where persons knowingly 
I- •» and* wilfully intermarrjr vr'iinoui due notice to' the supern 

intendent registrar, or without certificate of notice duly issued. The 
form of notice is set forth in a schedule to the act, and comprises a 
full description of the parties. As the reading of these notices «t meet- 
ings of the board of guardians, or the suspension of them in the regis- 

(I) SUndoD ▼. SUnden, Peake N. P. C. 39. 

(m) Wiltshire v. Wiltshire, 3 Hagr. E. R. 333, (5 B. Coe. R) 1 Cartels, 38, (6 E. Eoe. R.) 
(n) Tongue ▼. Allen, 1 Curtcis, 38, (6 E. Ecc R^ 

(0) WrigbtT. £lwood,2H«fg.£.R.598,(4 E.£ecR.) 1 Ciirt6i% 49, (6 E. ficc R.) 
Archet Court, 8Ui Not. 1637, 9. C. 
(p) 6I&7 WA4tf,85,s.J,«xphuiiedaBdam9ded bjfCit 1 Viot G.SS»«. I,l6b 

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trails office,(9) seems intended to serve the same purpose as poblics- 
tion of banns, it is probable that the foregoing decisions on misde- 
icriptions in banns- will' be held applicable to misdescriptions in notices. 
It is not necessary in support of a marriage to give any -proof of the 
actual dwelliog of either of the parties previously to the marriage 
with'm the ilistrict for the requisite time, nor can any evidence be given 
to prove the contrary in any suit touching the validity of such mar- 

It must be here observed, that although neither banns nor license 
were before the act necessary to the validity of Jewish or Quaker 
marriages, the want of notice or certificate is now fatal to them.(j) 

The alternative for banns by Lord Hardwicke's Act is a ** license 
from a person having authority to grant the same," and the want of 
soch a license was a cause of nullity, without reference to the know- 
ledge of the parties. In one case the question arose but was not 
decided, whether the want of authority in the person granting the 
license would avoid the marriage.(/) 

Under the stat 4 Geo. 4, c. 76, the marriage is not void unless the 
parties knowingly and wilfully intermarry without. a license from an 
authorized person* It had been held under the former act; that a mis- 
description in the license, where the identity of the parties was 
clear,(tt) or the use of an assumed name, by which ♦the r ^g ^ 
party was commonly knowri,(i;) or a slight alteration of *• J 

the name in the license,(u}) would not vitiate it and avoid the t^ar- 
riage. But the license might be vitiated by a fraudulent misdescrip- 
tion or alteration,(x) and even under the existing act the marriage 
would be void if both parties were privy to the fraud, the license issued 
not being a license for the marriage celebrated. 

By the star. 4 Geo. 4, c. 5, marriages solemnized by virtue of 
licenses granted after the passing of the 3 Geo. 4, c. 75 (22nd July, 
1§22,) and before the passmg of that act (7th of March, 1823,) by per- 
sons authorized by law bt^fore the former time are declared valid. 

Various provisions are contained in the stat 4 Geo. 4, c 70, re- 
specting the mode of obtaining and granting licenses; and these still 
^vem all marriages by license according to the rites of the Church 
of England. 

By the New Marriage Act, 6 & 7 ,Wm. 4, c. 85, the supcrinleiflent 
legistrar is empowered to grant licenses ; for marriages in registered 
baildings within his superintendence or in his office, but not in churches 
or chapels of the establishment. Marriages without license, in case 
a license is necessary und^r the act, are null and void. 

There was no provision in Lord Hardwicke's Act to destroy the 
eSect of the banns or license, if the marriage was not celebrated within 
alimited time; and unless the license contained a condition of defea- 
sance, a marriage celebrated between the parties at any distance of 
time afterwards would be valid. 

(f) I Vict e«22, •. 94. (r) 6A;7 Wm. 4, c. 85, i. 35. 

(«) See n. 1, 43. (0 Balfoor v. Carpenter, i PhUL 9o4, (1 £. Eeo. R.) 

(«) Ewinf V. Wbeatloj, 3 Ha^j^. C. R. 175, (4 E. Eco. R.) 

(9) Cope V.Bart, I PhilL 334,(1 fi. Eoo. R.) Rex ▼. Barton apon Trent, 3 M. & a 537. 

(«) Ewioir T. Wfaeatlejr, ubi aup. («) 3 flagg. C. R. 183, (4 E. Ecc. R.) 

Aful, 184$.— 2 

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But under tbe act of 4 Geo. 4, c. 76, licenses from surrogates are 
in force for three' months only, and if, after complete publication of 
banns, the marriage is not solemnized Within thfe same time, republica- 
r *285 1 *^^" '^ nece8sary.(y) So, if marriages under the *recent 
»• J statute are not celebrated within three months afier the 

entry of notice, all proceedings thereon are void, and fresh notice must 
be given.(2) 

Marriages of minors by license under Lord Hardwicke's Act were 
Uable 10 be impeached by proof of nonrcompliance with another pre- 
liminary ; tbe consent of parents or guardians. By section 11, mar- 
riages solemnized by license, where either of the parties, not being a 
widower or widow, should be under twenty-one years, without the 
consent of the minor's father, if living, or, if dead, of the guardian 
lawfully appointed ; or if no such guardian, of the mother, if living 
and unmarried ; or if no such mother, of a guardian appointed by the 
Court of Chancery, should be absolutely null and void. 

The marriage of a bastard has been held to be within this clause ; 
but the consent of the mother or putative father was not deemed suffi- 

The "guardian lawfully appointed'' has been held to refer to a 
guardian appointed by. the father under the stat. 12 Car. 2, c. 24;(6) 
and therefore the marriage of a minor with the consent of a guardian 
appointed by will not attested by two witnesses was held invalid.(c) 
And it is only a guardian of this kind, or one appointed by the Court 
of Chancery who can, under the existing acts, consent, to the mar- 
riage of a minor : and the latter guardian cannot do so whilst the 
mother js living and unmarried. 

Under this act, strict proof of want of consent and of minority was 
required to invalidate a marriage,(d) but the parents' or guardians' 
total ignorance of the marriage sufficiently established the former 
r ^286 1 ^^"^ ^^ nullity.(c) Their acquiescence in the marriage 
L J ♦after the solemnization might 'however form a ground 

for inferring their previous consent to it.(/) 

The second section of* the stat. 3 Geo. 4, c. 75, enacts, that mar- 
riages which had been solemnized by license, without the consent 
reqdfred by the 26 Geo. 2, c. 33, and were therefore void under that 
8tat|fe, should be deemed valid in cases where the parties should have 
contmued to live together as husbpnd and wife, until the death of one 
of them, or until the passing of the act, or should only have discontinued 
their cohabitation during the pendency of proceedings touching the 
validity of such marriage. 

Upon the construction of this section (which was not repealed by 

(y) 4 Geo, 4, c. 76, ja. 9, 19. («) 6 & 7 Wm. 4. c 85, a. 15. 

(a) Priestley v. Bughoi, 11 East, 1. Rex y. Hodnett, 1 T. R. 96. See alio Horner V. 
Liddiard, Dr. Croke*s Repprt. 
{b) See Horner v. Horner, 1 Hanf. C. R. 365, (4 £. Eco. R.) 

(c) Reddall v. Liddiard, 3 Phill. S56, (1 E: Ecc. R.) 

(d) Agg V. DaTiea»3 Phill. 341, (1 E. Ecc. R.) Ibid. 41. 1 Phill. 923, f 1 E. Ecc U.) 

(e) Balfour v. Carpenter, I Pbill. 221, (1 E. Ecc. R.) 3 Phill. 44. 

(/} Hodgkinson ▼. Wilkie, 1 H&gg. a R. 269, (4 E. Ecc R.) And ace furUier on tbia 
oanae of nullity, Smith y. Huaion. 1 Phill 306, (I B. Ecc R.) Selbj r. Selby, 1 PhilL 998, 
(IE. Ecc. R.) HayeiT.Wattfl,3PbiU.48,(l E;.£cca) 

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the 4 Geo. 4, c. 76,)(g) it has been held that a separation by agree- 
meent, on which a deed was executed, providing a separate mainte- 
nance for the wife, did not prevent the continuance of the parties to 
live together as husband and wife within the meaning of the act The 
reparation was apparently without any reference to doubts entertained 
by both or either of the parties as to the vah'dity of the marriage, and . 
in the instrument of separate maintenance the woman was styled and 
treated as the wife of the party.(A) 

But where, after a separation without any such deed, the man had 
bsisted. on various occasions, that the woman was not his lawful wife, 
and had given that as a reason for refusing to live with her, it was 
beld, notwithstanding some slight evidence of small sums being allowed 
to the woman, that these parties did not live together within me mean- 
ing of the act. (?) 

The third section provides, that nothing in the act con- r ^^gy • i 
taioed •should render valid any marriage which had been ^ J 

previously declared invalid by any court of competent jurisdiction, nor 
any marriage where either of the parties should at any time after- 
wards during the life of the other, have lawfully intermarried with any 
other person. This section has been construed to be retrospective 
only, and not prospective ; and therefore, where the first marriage 
was rendered valid by the parties continuing to live together till the 
passing of the act, it was held not to be rendered invalid by the mar- 
riage of onfe of the parties during the life of the other, with a third * 
person. ( J*) 

By the fourth and fifth sections, the act was not to render valid any 
marriage, the invalidity of which had bet^n previously established upon 
the trial of any issue touching its validity or touching the legitimacy 
of any person alleged to be the descendant of the parties to such mar- 
riage, or any marriage, the validity of which, or the legitimacy of any 
descendant from the parties to which had been brought into question 
in causes or suits at law or in equity, in which judgments, decrees, or 
orders had been made, in consequence of proof of the invalidity of 
soch marriage, or the illegitimacy of such descendant. And by the 
sixth section, where any property, real or personal, had been posses- 
sed, or any title of honour enjoyed on the ground of the invalidity of 
any such marriage, the right and interest in such property or title of 
honour should not be affected by the act. Nor was it (by the seventh 
action) to call in question any act done under the autnority of any 
court, or in the administration of any personal estate, or the execution 
of any will, or the performance of any trust. 

Where an infant was married by license, without consent of parents, 
between the repeal of the 26 Geo. 2, c. 33, by the 3 Geo. 4, c. 75, and 
the time when the latter act came inlo operation, the marriage was 

By the 4 Greo. 4, c. 76, s. 14, before the grant of a license, one of 

{g) Rooe T. filakemore, I Ry. Sl'Mqo. 382, (91 E. C. L. R.) 

(4) King ▼. Saoiom, 3 Addams, 277, (2 E. Bcc. R.) acffirmed on appetl to tht Court of 
Arches. 8ee alao Bridgwiitfir v. Crutcfalcj, I Addams, 473, (2 E. Ecc R.) 
(i) Poole ▼. Poole, 2 Cr. &, J. 66. 2 Tyrw. 76, S. C. 
ii) Rflx ▼. St John Delpike, 2 B. &. Ad. 226, (22 E. C. L. R.) 
(•) Waatly*ii cue, 1 Ry. 6l Moo. 163, (21 £. C. L.R.> 

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the parties shall swear to bis or her belief that there is no lawful im* 
r ^8S 1 P^^^^i^^ ^^ ^^ ^^^^ residence, and also where either 
^ ^ ♦of the parties, not being a widow or widower, is under 

the age of twenty-one, that th^ consent of i\)e persons whose consent 
is required by that act has been obtained ; but if there be no such per- 
sons, the license nnay be granted without such consent. 

B^ section 16, the father, or if the father be dead, the guardianH 
lawfully appointed ; or if none, then the mother, if unmarried ; or if 
none such, then the guardians appointed by the Court of Chancery, if 
any, shall have authority to give consent to the marriage, and such 
consent is thereby required unless there shaU be no person authorized 
to give such consent. By section 17, in case of the father being non 
compos mentis, or of the guardian or mother being so, or beyond the 
seas, or unreasonably refusing to consent, the Court of Chancery majr 
authorize the marriage. 

The act does not enforce the requisition of consent by a clause of 
nullity : and, therefore, where a marriage was solemnized by license, 
the husband being a minor whose father was living and did not consent 
to the marriage, it was held to be nevertheless valid.(/) 

But the twenty-third section enacts, that where any valid marriage 
of a minor by license shall be procured by the wilfullv, false oath of 
either party ; or if any valid marriage of a minor by Lanns shall be 
procured by a party thereto, knowing the want of consent of the 
.parent or guardian of such minor, and knowing that banns had not 
veen duly published ; such parent or guardian may sue for a forfeiture 
of all interest in any property accruing to the offending party by force 
of such marriage : and provision is made for the settlement of such 
property, for the purpose of preventing such party from deriving any 
pecuniary benefit from such marriage. 

No consent has ever been required to marriages by banns ; but the 
clergyman is punishable by ecclesiastical censures for solemnizing the 
marriages of minors, where he has notice of the dissent of the parents 
r 4289 1 ^^ guardians: and if such dissent is openly 'declared ia 
^ ^ the church or chapel where the banns are publv'hed at the 

time of publication, such publicaiion of banns is absolutely void.(n) 

By the new Marriage Act, the like consent is required to any 
marriage solemnized by licensfe as would have been required by law 
to marriages solemniz6(l by license immediately before the passing of 
the act : and every person whose consent to a marriage by license is 
required by law, is authorised to forbid the issue of the superintend- 
ent registrar's certificate, whether the marriage is intended to be by 
license or without license ; and in case the issue shall have been so 
forbidden, the notice and all proceedings thereupon are void.(7i) 

One of the parties inlendmg a marriage by license under the. act 
must swear or affirm that the consent, where necessary, has been 
obtained ,(o) xmd though a false declaration does not avoid the mar- 
riage, it exposes the party both to the penalties of perjury and to the 
forfeiture of properly accruing from the marriage, as in the 4 Geo. 4, 
o. 7G.(p) 

(/) Rex V. Birminjrham, 8 B.& C. 35, (15 E. C. L. R.) 

(m) as Geo. 2, c. 33, 1.3. 4 Gta 4 , c 76, «. b. (n) 6&7 Wm. 4, c. 85, 4W. a, 10. 

(9) Sect la. ( p) Sects. 3tf. 43. 

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It IS not necessary in support of marriages under the act, to give 
any proof of consent, and no evidence can be given to prove the con- 
trary in any suit touching the validity of such marriage8.(9) 

11. Before Lord Hardwicke's Act, the celebration of marriage in 
any other place than a church or chapel of the establishment, exposed 
the parties and minister to censure and punishment, but did not avoid 
the marriage. But by the eighth section of that act, all marriages in 
any other place than a church or public chapel where banns had been 
usually published unless bv special license were null and void. 

The Court of King's fiench lield that this section referred only to 
chapels in which banns had been usually published at the r ^gon 1 
passing *of the act, and therefore ruled that a marriage »• J 

was void which had been celebrated in a chapel erected since that 

In consequence of this decision the statute 21 Geo« 8, c. 53, was 
passed, which rendered valid marriages which had been celebrated in 
aDv parish church erected and consecrated since the 26 Geo. 2,c. 33« 
This statute was merely retrospective, and the statutes 44 Geo. 8, c. 
77, and 48 Geo. 3, c. 127, confirmed marriages which had been 
solemnized before the respective times when the acts parsed in churches 
and chapels erected and consecrated since the 26 Geo. 2, c. 33, and 
to which the preceding' statutes did not extend. 

By the 4 Geo. 4, c. 76, the first cause of nullity is knowingly and 
wilfully intermarrying, (unless by special license) in any other place 
than a church or such public chapel wherein banns may be lawfully 
published. (5) 

The bishop of the diocese, with the consent of the patron and in- 
combent, nnay authorise the publication of banns and the solemniza- • 
tion of marriages in public chapels, and such consent and written 
authority is to be registered* in the registry of the diocese. Notices 
are to be placed in such chapels expressing that banns may be pub- 
lished and marriages solemnized therein, and with respect to registers 
such chapels are placed on the same footing as churches.(0 

Parishes not having any church or chapel, and extra-parochial 
places not having chapels in which banns may be published, are to be 
deemed to belong to any adjoining parish or chapelry.(tt) When a 
church or chapel is disused ior public service, from being under repair 
or from being taken down to be rebuilt, the banns may be published 
in a church or chapel of any adjoining parish or chapelry, or in any 
place within the parish or chapelry licensed by the bishop for the per- 
formance of divine service; where no such place shall be licensed, 
the marriage may be solemnized in »sucn adjoining r ^^gi i 
church or chapel : and marringes theretofore solemnized *• J 

in other places on account of the church or chapel being under repair, 
or taken down to be rebuilt, shall ndt on that account have their 
validity questioned.(t>) 

The last clause of this section being merely retrospective, and it 
being doubtful whether it extended to marriages by license, it was 
enacted by 5 Geo. 4, c. 32, that marriages theretofore or thereafter 

(^ Sect 25. (r) Rex v. Northiield, DougL 659. 

(«) Sect. 32. (i) Seoi8.3, 4, 5. (11) Sect 19. (o) Ssct 13, 

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914 bifbiaok'b BVu t tti tt m 0r iooomsion. 

iolemmzed in places so Keensed during the V^air or rebuilding of 
any church or chapel, or if no such place shall be so licensed, then in 
a church or chapel of any adjoining parish or chapelry, whether by 
banns or license, shall not therefore nave their validity questioned. 

The statute 6 Geo. 4, c ^2, renders- valid all marriages which had 
at that time been solemnized in any church or public chapel erected 
and consecrated since the statute, 26 Geo. 2, c. 33, and makes it law- 
ful to solemnize and renders valid marriages in aU such churches and 
chapels in which it had been customary and usual before the passing 
of the act (5tb July, 1625) to solemnize marriages. 

The statute 11 Geo. 4, c. 18, provides for the validity of marriages, 
the banns whereof have been published in any place used for the per* 
formance of divine service within any parish or chapell*y daring the 
repairs or rebuilding of the church or chapel thereof, and solemnized 
in such place, or in the church or chapel of the same or an adjoining 
parish or chapelry. 

The 2nd section enacts that a consecrated chapel licensed by the 
bishop for the purposes of marriages during the repair or rebuilding 
of the church, shall for such purposes be deemed the church. Sec* 
tion 3, declares the validity of marriages solemnized in churches erect- 
ed under the statutes 58 Geo. 3, c. 45, and 59 Geo. 3, c. 134. By the 
' 4th and 5th sections the validity is not to be questioned of marriages 
which had been solemnized, or the banns of which had been published 
r #292 1 ^" cbapels duly *consecrated, but not legally authorized 
I- J for that purpose, and notwithstanding the uncertainty res* 

pecting the consecration of such chapels. 

.The recent marriage act provides places in which marriages may 
be solemnized without conformity to the rites of the Church of Eng- 
land. These are places of worship registered under the following 
provisions and offices of superintendent registrars. 

Any proprietor or trustee of a separate building certified according 
to law as a place of religious worship, or of any building licensed * 
and used exclusively as a Roman Catholic chapel for one yeBr,{w) 
shall deliver to the superintendent registrar a certificate signed by 
twenty householders, that such building has been used by them 
during one jrear at least as their usual place of reli^ous worship 
The building is then registered both at the general register office and 
at the superintendent registrar's office, and notice thereof is advertised 
in a local paper, and in the London Gazette.(a;) Upon disuse of the 
building as a place of worship, the registry is io be cancelled, and upon 
removal of the congregation to a new place- of worship, the latter 
tnay be substituted by the registrar general for the disused buildings 
the cancel and substitution being also advertised as before.(^) 

Marriages may be solemnized insuch registered buildings between 
parties described in the. notice* and certificate given under the act, 
according to* such form and ceremony as they may see fit to adopU 
making liowever the declaration and using the form of words provi- 
ded by the act(z) 

(ID) 1 Viet c 22, s. 35. (x) 6 &; 7 Wm. 4, €. 85,s. ia 

(y)1n)id.«.19. ^ ' ^e ■ 

(«) 6&7 WiD.4,c.85,t.20. The dfcImtiOD maj be in Welsh, 1 Viet c 9% •• 33» 

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P er aops objecting to marry under the act in any such refristered , 
building may, after notice and certificate, cfontract and soiemnize 
marriage at the office of the superintendent registrar) making the 
declaration and using the form of words aforesaid.(a) 

The act also facilitates the licensing of chapels of the r ,093 1 
'establishment for the solemnization of marriages. The ^ -' 

bishop of the diocese, with th^consentofthe patron and incumbent of, 
the parish church, or without such consent after two months' notice 
by the registrar to the patron and incumbent, may authorize by license 
the solemnization of marriages in chapels for persons residing within 
a district the limits whereof shall be specified in the license: and 
thenceforth and until the license be revoked, marriages so solemnized 
shall be valid.(6) And by the stat. 1 Vict. c. 22, ss. 38 and 34, it is 
provided that banns may be published in chnpels li^snsed by the 
tHsbop, and that noarriages may be solemnized in liceneed chapels 
though only one of the parties resides in the district: but in such case 
the banns are to be published in the cbtirch or chapel of the district 
where each of the parties resides. 

Li^ of all chapels wherein marriages may be solemnized accords 
ing to tbe rites of the Church of England, and of all registered build- 
ings and the registrar's district of each, and the names and places of 
abode of the registrars and deputy registrars of each district, and of 
superintendent registrars are to be annually made out and printed, 
and a copy sent by the registrar-general to every registrar and super- 

Besides these statutes, in some local acts for erecting churches and 
diiipels provisions have been made in regard to fees for and other 
matters relating to christenings, marriages and burials: and these 
have been sometimes considered as giving an implied power to cele- 
brate marriages and recognizing the validity of those which might be 
celebrated in such churches or chapels.((jf) 

The statutes both of the 26th Geori^ie the 2nd, c. 33, and of the 4th 
of Georse the 4th, c. 76, direct that the marriage shall be solemnized 
in the church where the banns have been published, but do not ex- 
pressly annul a marriage solemnized in another church. The ques- 
tion of the validity of such a marriage arose under the old act, but 
was not decided, the marriage in the particular case being held valid 
on account of the church where the publication should r i^oQi 1 
have taken place being under repair and shut up at the ^ •' 

time.(e) . , • 

But marriages knowingly and wilfully celebrated under the recent 

Marriage Act in any place other than the church, chapel, registered 

building or office or other place specified in the notice and certificate, 

are void.- There is, however, a savmg of the validity of marriages 

' legally solemnized according to the 4th Geo. 4, c. 76.(/) * 

In the case of marriages in chapels it does not appear to have been 
heW necessary, except in actions for criminal conversation (to which 
may perhaps be added trials for bigamy,) to shew that the chapel 
was one in which banns might be published and marriages solem- 

(•) 6 A^ 7 Wm. 4, c 65, ■. 31. (6) Sec 26, et seq. 

(c) Sec 34. (<0 See 1 Eveqb stat 155, n. 

^} StaHwiwd f.Tredger, 3 Piull 367,(1'E. Ecc R.) (/) 6& 7 Wm. 4, c 85, a. 42. 

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216 BUBBAGK*6 wmjottoBL ov 9uoeEs$um. 

nized.(^) But it is of course competent to the (rther party to show 
that the chanel was nM one of this kind. 

By the oldt as well as by the existing Marriage Acts(A) the power 
of the Archbishop of Canterbury is preserved to grant special licenses 
to marry at any convenient time and place. And the marriages cf 
the Royal Family and of Jews and Quakers have always been and ^ 
are still exempt from any of the foregoing restrictions as to the place 
of 8olemnization.{r) 

The question appears to be open to discussion whether marriagA 
in the chapels of Foreign Ambassadors in England are not exempt 
from the operation of the several Marriage Acts. In the case of Per- 
treis V. Tondear( j) which took place after the first Marriage Act, the 
marriage was solemnized in the chapel of the Bavarian ambassador 
without bann% or license. The husband was of the suite of the Span- 
ish Ambassador, but the woman, who was a foreigner and had been 
resident for Cour months only in England, did not appear to belong 
r ^g. n to the household of any ^Ambassador. It was contended 
*- J that an Ambassador's house and chapel W)as to be consi- 

dered as part of the country to which he belonged and that th€^Mar<* 
riage Act was therefore inapplicable. On the other side, besides th^ 
general -words of the act, a case(/r) was relied on where, it was said, 
a marriage solemized in the house of the Venetian Ambassador was 
declared null. Lord Stowell said it had perhaps never been formally 
decided that the supposed privilege in Ambassadors' chapels existed ; 
if it did he thought it difficult -toDring this case within it, neither ojf 
the parties belonging to the country of the Ambassador,(/) and the 
woman, who did not appear to have been living in a bouse entitled to 
the privilege, having been long enough in England to acquire a matri- 
monial domicile. 

Lord Stowell's opinion seefns from a subsequent case(m) to have 
been in favour of the existence of the privilege : and perhaps on prin- 
ciples of international law it may be thought that the alleged exemp- 
tion rests on the same footing as the exemption from the lex loci of 
marriages in the chapels of British Ambassadors abroad, which, ac- 
cording to Lord £llenborough,(n) is established in England because it 
is allowed in the country of the marriages.(o) It is to be observed 
that under the present acts the marriage is void only in cases where 
the parties knomvgly and wilfully intermarry in an unauthorized place 
and manner; and therefore if parties married in an ambassador's 
chapel acted bond jide^ there would be resison to contend that the 
clause of nullity did not apply,* and the case would then be remitted to 
the marriage law independently of the acts, by which law the mar- 
riage would be valid. 

III. 'Diose parts of Lord Hardwicke's Act which either -impliedly 
(by proving that the rules prescribed by the rubric in the solemniza- 
tion of matrimony shall be duly observed) or expressly refer to the 

{g) See Taunton ▼. Wyborn, 3 Camp. 297. 

(A)^6Goo.2, c.33,«.6. 4 Geo. 4, c. 76, 8. 20. (t) 6 & 7 Wm. 4, c. 85, a«. 2. 45. 

(i) I Hajrg. C. R. 136, (4 E. Ecc. R.) * (*) Hienel v. Fierville, 1783. 

(f) See Lacy ▼. Dickinson, 1 Hag^r* ^' R* 386 n. (4 E. Ecc. R.) 1 Esp. N. P. C 353. 
(m) RudinfiT v. Smith, 2 Haeff- C. R. 386, (4 jB. Ecc R.) 

Mt, 0. 4, a. 3. 

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(m) Ruding v. Smith, 2 Bz^g. C. R. 386, (4 jB. Ecc R.) 

(n) 10 Eut, 266. • (e) See poit, o. 4, a. 3. 

v^oiiHTr or MABitiiaB. . 817 

pr6fteace of a raioister at marriages are directory only, and a niarriag^ 
without such prescDce is nut therefore void under that act. 

♦Bui by the 4th of Geo. 4, c* 76, if the parlies know- r ^^qq i 
iigly and wilfully consent to or acquiesce in the solemnt- *- ^ 

zatiofl of their marriage by any person not being in holy orders, the 
marriage is void 

Under the New Marriage Act the presence of some registrar of the 
district is required where the nutrriageis in a registered building ; and 
tbe presence of such registrar and also of the superintendent registrar 
is required when the marriage is in the superintendent registrar's 
office.(p) And if persons knowingly and wilfully intermarry in the 
absence of a registrar or superintendent registrar where their presence 
is necessary under the act, the nutrriage is void.(9) 

The presence of two witnesses is reauired by Lord Hardwicke's 
Act as well as by the existing acts, but tne requisition is not enforced 
by any clause of nullity. 

Such being the statute law on clerical and other intervention and 
presence at aiarriage, it becomes important to inquire whether by the 
general law prevailing b^ore and viewed apart from the Marriase 
Acts the presence of a priest was essential to the constitution of the 
contract. Upon this question depends the validity of marriages with- 
out clerical ministration which took place before 1754, or (as Lord 
Hardwicke'a Act was not introductive of any new rule on the subject) 
since, that period and before 1823, if the solemnities made essential by 
the act were observed : and of those solemnized by a layman believed 
by either of the parties to be a clergyman, subsequently to 1823, and 
Bot under the New Marriage Act ; and also of marriages in Ireland 
tad most of the British colonies and settlements, and, under some cir*^ 
cumslances, of British subjects in foreign countries, to which clerical 
iotervention was wanting. The question also respects the validity of 
marriages excepted from the Marriage Acts, namely, those of the 
Royal family, of Quakers, and of Jews ; and it derives interest and 
importance from the recent statute admitting of the solemnization of 
marriages before a civil officer. 

*A respectable opinion ha^ been advanced and elabo- ■• ^2gj i 
rately and ably maintained, that according to the law ^ -I 

administered in England before Lord Hardwicke*s Act, the effects of 
marriage were denied to a matrimonial contract not solemnized in the 
presence of a person in holy orders and that (in particular and con- 
fining the conclusion arrived* at to the subject of. this work) it did not 
confer upon the issue the rights of legitimacy.(r) The authorities 
relied upon in support of this opinion with several others will be exa- 
mined in the following pages, and it will be submitted that they lead 
to the contrary conclusion that such unsolemnized contract in terms 
of present matrimonial consent was a valid marriage for the purpose 
of rendering the issue legitimate. A long. obsolete* exception may 
however be admitted in the outset as having existed in cases where 
general bastardy was objected to a party to a real action, and where 
by reason of the want of lahfulness of his parents' marriage he was 

(r) 6 & 7 Wm. 4, e. 85, 88. 20, 31. (q) Ibid. a. 42. 

(r) Mr. Jaoob*s Addenda Co Ro|Mr*i Husb. &, Wife, vol. 2, p. 445. 

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S16 BUB81CS*fl V¥|l«mGB.<« OTTOB88IOH. 

certified to be a bitstard by the Spiritual Court. This exceptioii had, w 
it will be seen, become unimportant even before the abolitioa.of real 
actions, but a notice of it will serve to prove the rule. 

The canon law is the acknowledged basis of the matrimonial law 
of England, as it is of that of all Europe : and at the reformation* 
though the doctrine of a sacrament in marriage was disclaimed in thi« 
country, the rules of the canon law with reference to the matrimoniai 
contract were retained.(^) Since that period the question is bow far 
they have been receded from by the laws of any particular country,(0 
and the principle applied by Lord Stowell to the Scotch matrimonial 
law may be considered equally applicable to the English : ^^ where it 
is not proved that it has resiled from the canon law the fair presumption 
is that it continues the same. Show the variation and the court must 
follow it, butaf none is shewn, then must the court lean upon the doc«> 
trine of the ancient general law."(tt) 

It is therefore necessary to inquire first what the canon law was 
f *298 1 ^^^ ^^^ constitution of the matrimonial contract, and 
•• J secondly ♦in what particulars that law has been departed 

from by the law of England. 

The doctrine of the canon law wasj in Lord Stowell's words, that 
'* a contract per verba de prcesenti or a promise per i)erba de fuiuro 
cum copuld constituted a valid marriage without the intervention of a 
priest, till the time of the Council of Trent, the decrees of which couo^ 
oil were never received as of authority in thiscoimtry."(i^) 

Some misapprehension has arisen from the use of the word span- 
salia^ as applied to contracts de presenti^ upon which Lord Stowell 
remarks: " The consent of two parties expressed in words of present 
mutual acceptance, constituted an actual legal, marriage, technically 
known by the name of sponscdia per verba de prcesenti, improperly 
enough, bpcause sponsalia in the original and classical meaning of the 
word ar^ preliminary ceremonials of marriage: and ther^ore Brower 
justly observes, ^'u« pontificium, nimis laxo significaiu imd etymologic 
invitd, ipsas nuptias sponsalia appellaviL(w) The expression, however, 
was constantly used in succeeding times to signify clandestine marriages, 
that is, marriages unattended by the prescribed ecclesiastical solemni- 
ties ; in opposition, first, to regular marriages ; secondly, to mere 
engagements for a future marriage, which- were termed sponsaKaper 
verba defuturo.^^ 

The different legal views taken of these three : regular marriages, 
irregular marriages, and mere promises or engagements, are thus clearly 
and felicitously stated : <* In the regular marriage, every thing was 
presumed to l>e complete and consummated, both in substance and in 
ceremony. In the irregular marriage, every thing was presumed to 
be complete and consummated in substance, but not in ceremony ;(si) 

(•) D&lrymple t. Dalrymple, DodtoD*8 Report, p. 16. 3 Ha^;. C. R. 54, S. C, (4 E. 
Ecc. R.) (0 Per Lord Eldon, 1 Dow. 181. 

(u) Dalrymple y. Dalrymple, p. 32.' 

(e) Dalrymple t. Dalrymple, Dodaon'e Report, p. 33. 

(to) Bractofl, fol. 4J7, says that the form of objecting baatardy in a real action waa : qoift 
natus faisti ante $pon$Mlia vel matrimonium contraetom inter patrem. toum et matrea 
. tnaro. 

ix) According to Selden, by the Jewish law, per sponsalia fait 9€ri oxor, per naptisf 
jp^ecU, Uz.Eb.Ub.S,cl,13. 

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ind the ceremony was enjoined to be tmdergone as matter of order, 
h the pronnise, or *sponsalia de futuroj nothing was pre- ^ ^g^g ^ 
sumed to be complete or consummated either in substance ^ J 

or in ceremony. Mutual consent would release the parties from their 
engagement, and one party without the consent of the other, might 
contract a valid marriage regularly or irregularly with another per- 
son ; but if the parties who had exchanged the promise had carnal 
iatereourse with each other, the efieet of that carnal intercourse was 
to interpose a presumption of present consent at the time of the inter- 
course, to convert the engagement into an irregular marriage, and to 
fffoduce all the consequences attributable to that species of matrimonial 

Lord Slowell is charged(t) vfiA giving in this judgment the title of 
marriage to what was technically known under the name of sponsalia^ 
and wiUi referring more to that which constituted the vincUhim, than 
to that which was essential to make the marriage in all respects .com- 
plete. In attributing to the Council of Trent the rule requiring the 
intervention of a priest, it is alleged that his lordship " could only be 
understood to refer to the decree having made that intervention. neces- 
sary to form the vinculum'^ the opinion that it was necessary to form 
a perfect marriage having prevailed long before ;" that " previous to 
the date of that council the rule was understood to exist-in England, 
and that its existence can only be ascribed to doctrines of the chur(rh 
orij^nating at an earlier period." 

The most obvious authoritiet^ in the canon law shew that there is 
BO warrant for this impeachment or for thi& construction of Lord 
Slowell^s judgment. Those which are referred to in that celebrated 
decision, need not be here re-examined. Swinburne only echoes their 
constant burden, solus consensus facit matrimonium, when he says, it 
is a present and perfect consent the which alone maketh matrimony, 
without either public solemnization or carnal copulation ; for neither 
is the one nor the other the essence of matrimony, but consent only.(a) 

The non-essentiahty of clerical intervention by the canon*law ap- 
pears ♦both from the necessity of the change of law by r «qaq -i 
the Cooncil of Trent and from the language of the decree ^ J 

effiK:ting thai change. " Though there is no question," it commences, 
** that clandestine marriages made with the free consent of the con- 
tracting parties are true and valid marriages so long as the church 
does not make them null, yet the holy church has alway^for very just 
reasons detested and forbidden them. ' But the holy council perceiving 
that these prohibitions 4re not now of any use by reason of the diso- 
bedience of mankind doth ordain," &c.(6) 

Selden, with ready learning, discloses the most probable origin of 
the practice of clerical ministration in matrimony. The contract (his 
language may be rendered) was constituted by the contractors alone, 

iy) DalrjTinple ▼. Dairy m pic, Dr. Dodson's Report, p. 14. 

(z) 3 Roper*8 H. &. W. 47*2. (a) Espoatals, 8. 4,' and tee Wood's Inttltatefl, p. 57. 

(h) Dapin Eccl. Hist 4, c. 2(il Frdes catholica est, matrimonia clandestina ante conci- 
fiam Tridentinum fuisso Talida. Et ratio est, quia quoties concnrrunt etsentialia, contrac- 
tiw validns est, liodt dcsiderantar solemnitates eztrinsecs et accidentales ; in cnatrimonio 
mtem clandestino ooncnrrk tota matrimonii essentia, deficiente wolt exti-insecft publicitatis 
Ktlemnitate. Sonchcs dt Matr. Disp. 1« 

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S20 hitbbaok's svidekce of svctjessum. 

without the ministralioti or intervention of bishop or priest : afterwards 
he was wont to be present, saqrarum gratid, along with other persons 
whose presence was required, lest the matrimony should be clandes- 
tine. So we every where read that sales, adoptions, manumissions, 
gifts, &c., were formerly made at the altar in the presence of the 
priest, and solemn benedictions were used in not a few civil and legal 
transactions ; whence, however, it by no means follows that this min- 
istration was requisite to the substance of the act.(c) 

After an examination of the opinions of the fathers and of the 
decrees of councils (which so far from warranting shew the incorrect- 
ness of the noiion that before the Council of Trent an opinion had 
been adopted in the church, that the sacerdotal benediction was essen- 
tial t6 render the contract complete,)(d) Selden concludes that the 
solemnities, although in prevalent use in the Christian Church, were 
not held so necessary that without them matrimony constituted by 
free consent was esteemed of no force, or null, or not plainly valid,{e) 
r *301 1 *®y ^^^ canon law, the sofemntzflf /em of marriage was 
^ -'prohibited during considerable portions, amounting toge- 

ther to about one-third of the year.(/) This prohibition was positive, 
and not merely directory, like that which prescribed the publication 
of banns. Lyndwood, in his gloss upon the word " solemnizationem,'* 
in Archbishop Mepham's Constitution of 1328, says, that solemniza- 
tion ought not to be had {non debet fieri) without publication of banns ; 
and cannot be had {non pdtest fieri) within the prohibited times.(^) 
But the prohibition respected the celebration only, and not the consti- 
tution ot matrimony. Thus Durand says, that although the solemnity 
of nuptials was interdicted during these periods, yet matrimony was 
at any time lawfully contracted per verba de presenti.{h) The Manual 
according to the use of Sarum expresses the sam6 doctrine in terms 
which distinguish the matrimony thus contracted from espousals, and 
also exclude the notion that although private it must have taken place 
in the presence of a priest.(i) 

The sacerdotal benediction is spoken of by the canonists as one of 
those solemnities attending a regular marriage, the omission of which 
subjected the parties to censure, but did not invalidate the act. Two 
of the commentators on the Decretals treat it as being reauired in the 
same manner as banns, not of necessity, but for the sake of deco- 
rum.(j) And the language of the Decretals themselves is inconsistent 

(c) Dx. Eb. Ub. 9. c. 28. ' (rf) 2 Roper, 470, 

(c j Ux. Eb. lib. 2, c. 28. . He eleewbere observes that even since tbe Coancil of Trent, 
eminent iheologians and lawyers have held ihat it was sufHcicnt if the parocfiua be present 
St the marringc, though he be not yet sacerdoi $eu presbyter, Ux. Eb. lib. 2. 

(/) These prohibited times were fiwn the Brst Sunday of Advent to the octaves of the 
Epiphany, irom Septuagesima Sunday to the 6rst Sunday aficr Easter, tfnd from the first 
Rogaaon Day to the seventh day after Pentecost. Selden, (Ux. Eb. lib. 2, c 30,) says that 
in his time no one could celebrate nuptials witliin those periods without tbe bishop*s dis- 
pensation, (g) Provinciales, p. 274. 

(A)- Liodt aotem solemnitts nuptiarum premissis temporibus interdicts sit, quocunque 
Camen tempore matrimoniuni legiUmd per verba de prosenti contraclum est Purand, fift- 
tionale Divinorum Officiorum, lib. 1, c 9, n. 8. 

(») Sciendum est quod lic^t omni tempore possont contrahi sponsalia, f< etiam Matr%' 
moniuin quod Jit privatim, solo consensu., tamcn traditio uxorum et nuptialis eolemnitas cer- 
lis temporibus fieri prohibentur. Selden, Ux. Eb. lib. 2, c. 30, citing Manuale secundum 
usum Samm, foi. 33. * 

U) Joho AudtuM and Hostteosifc Tbe latter lajt, be n edic t to et bonna sunt lolemni- 

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Y4UniTT W KABIUAai* t$l 

witb any other doctrine Thus it is iaid if persons marry contrary 
to the special interdict *of the church (and from such a |> ^n_ -. 
marriage it seeths clear that the clerical ministration ^ J 

would be withheld) the penance is arbitrary, but the marriage holds.(iSr) 
b would further appear that at one time in the church the celebration 
by the priest was denied to those entering into a second marriage, yet 
there seems to have been no doubt of its legal validitv.(/) 

Our provincial constitutions shew that tbe same law prevailed in 
England. Contracts of matrimony wanting in any of the ecclesias- 
tical solemnities were in the language of Lord Stowell frowned upon 
fay the church, which at the same time by the verv care taken to dis- 
oountenance and punish them^ admitted their legal force.(m) In some 
constitutions publication of banns and due solemnization in facie eccle* 
tuB are strictly prescribed ;(n) and in others the clergy are diirected to 
Qsjoin the people to abstain under pain of excommunication from 
eoQtracting matrimony otherwise than publicly before witnesses (not 
because that was necessary to their validity, but) in order that proof 
of them might be afterwards forthcoming.(o) So Lyndwood, after 
nying that if marriage was clandestine and irregular, the parties 
were punishable, adds that the marriage was nevertheless good.(f>) 
And tnerefore cohabitation after a contract de prcBsenii but before 
jR)lemnization was punishable, pot as fornication, but as a contempt 
of the laws of the church.(f ) 

It thus appears that the principle of the sufficiency of r ^^^^ -t 
♦onsolemnized contracts to constitute matrimony was left ^ J 

QDtouched by the ecclesiastical rules prescribing banns, benedictions, 
tnd solemnization in fade ecclesice. The non-observance of these 
sobjteted, tbe parties concerned to ecclesiastical censure, but did not 
afect the validity of the contract. The marriage was clandestine, 
irregular, and uncanonical, but nevertheless valid. There was an 
offence committed against public order, but the contract was binding, 
aad the parties were very husband and wife with respect of the sub- 
stance and indissoluble knot of matrimony :(r) and accordingly subse* 
quent carnal intercourse by either with a third person, even after mar* 
hage solemnized with that person, was punishable as adultery.(5) 
Such was the view taken by the canon law itself with all its attach- 
ment to ecclesiastical /or ms.(t) 

tstaf, quflB requiruntar honestatb non nccetsitatif, oaosA.. Stunoia tit de Cknd, in. 8. quot 
uiodis. And see Sanchez de Matr. lib. 3, difp. 1, et seq. 

{k) Decretal. lib. 4, til. 16. 

(0 BaroM GoliecUnea, torn. 5, p. 378. Selden Ux. £b. lib. 3, c. 996. Cardinal Bellar* 
Bin, lib. % de Coocil, c. 8, says, that the canon law did not prohibit second matrimony, but 
odIj the solemnities of matrimony to which belonged the name of nuptials. 

(«) Zauche'i Coostn. of 1347. Lvndw. Prov. ConsU (n) Lyndw. 271. 2 Atk. 669. 
* (o) One of Waher in 1322 is as follows: Prohibeant etiam presbytcri frequenter matri* 
■nnium contrahere volentibus sab posna excommunfcationis ne dunt sibi (idem mQtu6 de * 
BKOrimonio contrahendo nisi in loco eelcbrj, coram publicis et pluribus perMnis ad hoc con* 
vocaiia. Another of Archbishop Bourchier in 1455 runs thus : Injupvalis insupcr otri* 
■sqqe xTXtii viris uc mulieribus, no mutu6 fidem dent de matrimonio contrahendo, aut 
wmtrimonium quoquo modo contrahant nisi in presentift. duorum aut trium testium idoneo- 
Run, per quos matrimpnium hujnsmodi si quando, inimico humine procurante, id per ali* 
qoem contrahentium denegari contingat, Inculentur probari poasiL Gibaon's Cod. p.^1. 

(f ) Prov. on Stratfbrd*8 Constn. of 1343. (9) Moore, 170. 6 Mod. 155. 3 Lct. 376. 

(r^ Swinbome, a. I, {$) Ibid. 

(0 Per LoiH Stowell, 1 Hagg. C. R. 239, (4 E. £cc. R.) 

Digitized by 


m bvbdaok's wnnmxoE or suGcSBSioir. 

At the common law it must be admitted that several of the conse* 
quences of matrimony were at one time denied to any other than 
regular or lawful marriages. Those contracted otherwise than in 
facie ecclesi(B are pronounced invalid by Bracton.(t) So Fitzherbert 
says (hat a woman married in a chamber shall not have dower br 
the common law.(u) Two cases also are recorded which establish 
that at one period the issue of private marriages were for some pur- 
poses illegitimate. The first, which is known as Foxcroft's case, 
occurred in 10 Edw. 1. The report is thus literally rendered : One 
11. being sick and in his bed, was. married to A., a woman, by the. 
bishop of London privately, in no church or chapel, nor with ceiebra- 
tion of any mass, the said A. being then pregnant by the said R., and 
then within twelve weeks after the marriage the said A. was delivered 
of a son : and adjudged a bastard,, and thus the land escheated to the 
lord by the death oTlL without an heir«(t^)- In the second case, 
which was in 34 Edw. 1, John had lived in concubinage with Kathe^ 
rine, and had two children bv her, and afterwards fell sick, and was 
in danger of death, when the vicar of Plumstede advised him pro 
salute aninuB su<b to marry Katherine ; whereupon, in his own house 
r * ♦aod T ^^^ before the vicar, he espoused her, placed the ring 
L J upon *her finger, and pronounced the accustomed words 

in contracting matrimony, but being unable to go to church there was 
no ^celebration of mass. Thenceforth during his whole life he held 
the said Katherine for his wife. Upon his death a son, William, born 
after the marriage, claimed his father's lands against his father's 
brother. But it was found by assize that John had never espoused 
Katherine in facie ecdesice, per quod sequiiur that William could 
claim nothing of right in the tenements, but was in mercy for false 

It is to be observed that neither of these cases is any authority for 
the essentiality or efficacy of clerical ministration, which was ren^^ 
dered in both instances ; and the cause of the invalidity of the mar- 
riages was the more general one of the want of solemnization in facie 

This state of the law may be referred to two causes. First, that 
desire, originating in the dearth of written evidence, to insure pub- 
licity in transactions affecting the titles to.lands^which is every wtiere 
visible is the ancient modes of assurance and trial Secolidly, the 
position of the Temporal Courts with relation to the Spiritual in the 
matters of marriage and legitimacy. The disputes which led to the 
repudiation by the statute of Merton of the canonical doctrine of 
legitimation by subsequent marriage indicate, and no doubt w;ere also 
productive of jealousy and distrust between the two jurisdictions. 
The canonists recognizing the validity both of regular and of irregu- 
'lar marriages, the former being in their nature public and easily 
proved, the latter clandestine and depending upon what might be con- 
sidered to amount to verba de prcesend, it is reasonable to believe that 
the Temporal Courts feared lest the ecclesiastics might indirectly and 

<M) iF*ol. 92 302 b. 

(») F. N. B. 150 n. ciUng H. 16 H. 3. (») 1 Roll. Ab. 359. • 

<*) Cwof Ihl Hcith, ciud by Nicolas, Adalt. Bm. 667, from Harlcian MS. 2117, fcL 
S3S. . 

Digitized by VjOOQ IC 

VA&mrr or ium&tAa& 929 

bf coostructively ^vaiing concubinage ink) marriage, cflect that 
which they had been prevented from doing openly by giving mar^ 
riage a retrospective operation ; and therefore so worded their writs 
to the bishop as to give liim juKsdiction to inquire and certify not 
whether there was a marriage, or whether the parly was a bastard; 
but whether there ♦was lawful or regular marriage, and j. ^^q^ -• 
whether the party was born in or after lawful matrimo- ■■ ^ Their object was thus gained: the only -marriages which 
ocHnd be regarded were those whose publicity made the time of their 
occurrence of easy proof; for the bishop could not ceriify that to be 
Uwful matrimony which was a violation of ecclesiastical rule, and 
sobiected the parties to excommunication and other punishment. 

But this strictness afterwards woi^e away and had been departed 
from as early as the time of Britton.(t) This writer puts the ca<e of 
a man and woman having three sons, one born whilst they lived in 
concubinage, another after private espousals, and the third after 
solemo espousals at the church door. To the question which of the 
cbildren should succeed (o the father's inheritance he answers the 
second ; assigning as a reason that the son could aver that he was 
bom within espousals, it being. immaterial whether the espousals were 
•oleinn or private. He adds, hpwever, that' the mother's right of 
dower depended wholly on the third marriage ;(a) and thus recog- 
oizes the principle, which it will be seen has subsisted down to modem 
times, and the want of attention to *which has unnecos- r ^oqq i 
wrily embarrassed the whole question*— that h marriage •• •■ 

valid to confer legitimacy upon the oiTsprinff, might yet be invalid to 
impart rights to^ the parties themselves, such as that' of dower to the 
wife. The preference of the second son to the iirsl shews that nothing 
tomed upon the retrospective effect of the regular marriage, or that 
partial allo>Aiance of the doctrine of relation which was made by the 
rule ofbastcfrd eigne and mulier puisne. 

No mention is made in either of these cases of the presence of a 
priest: the parties are said to have been *' privily espoused ;" there 

(y) See 2 PryniM't Reoordi, 411. 

{z) Who is supposed to have lived temp. Ed. 2, Mr. Jaeob cites from 4 Vin. Ab. S8| pi* 
^a cate in 10 E^. 4, in which the isiue of an unaolemnized marriage is said to have 
kteD adjodged Iliegitimatc. But upon (ionsuUingthe references in Viner it clearly appears 
ibt 10 Gd. 4, b a misprint for 10 Ed, 1, and that the case cited is FuKcrof\*8 case.' 

(i) The following is a close tranvIatioB : ** If a man lieeps a woman in concubinsfe snd 
bs a child of her, and then espouses her privily elsewhere ilian at tlie charoh door, and 
then in soch private espousals has a child of her, and then eolcmnly espouses her at the 
efcnreh door «nd there endows her, and then has another child of her, which child is tu be 
ftceived to the succeseioD of the father's inheritance ? In such a case answer is to be made 
thit the middle son ought to be received to the socoession of the inheriUnce- of his 
MwTt [en ticl cas, fait a respondre q 1* mulveyn fitz doit ee rescou a la sacccBsiim del 
heritage ■ piere, Slc..,] and be counted for mulier, notwithstanding thnt the espousals were 
prifate, insAinach as in right of hit birth he can yetUver that he was born within espousals, 
vihcther the espousals wer^ made solemnly or privily.'* Af\er observing that the mother 
woold bavo dower by reason of the solemn espousals, he continues, ** It thus appears and 
ii true that the mother would have had no dower although her son was receivable to the 
li wswitn of his fiither's Inheritance, and that tliere never would have acprued a right to 
demand dower if the titio to it had not been given to her at thojdoor of the church, whether 
that was done in time of interdict or at another time.** Britton, c. 107. In the 44 Ed. 3, 
(^ law had been settled in oonjbrmity with the doctrine of Britton; fos in a case of has- 
tafdy io that year, the marriage appeared to have taken place when the father was oo hit 
4etiUed.7eta8TiUidUy wwjioi^iiestiooed. Y^ B. 44 Ed. 3, pi 21. U. 45. Ed. 3^ pL 45. 

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might or might not have been clerical ministration : if there wa» not* 
caait qucsstio ; if there was, an inference from its not being frientioned 
was unimportant. 

The change thus apparent in the law was, it is apprehended, from 
the general requisition of a regular or canonical marriage to the 
allowance, except in cases where the lawfulness could be put in issue, 
of the sufficiency of that which although defective in matter of eccle- 
siastical form was .a valid marriage by the law administered in the 
Spiritual Courts. The contrary line of argument proceeds on the 
supposition that, dismissing as unimportant all the other prescribed 
formalities of a regular marriage, the common lawyers retained and 
cherished clerical intervention as the only thing needful to valid matri* 

Of. the several parts of the complete ecclesiastical ceremomy, this 
is, d priorit the least likely to have been the object of such preference. 
Publicity was not secured by it, or at least not in a degree worth 
consideration, or to be compared to that which arose from banns or 
an observance of the prescribed place of solemnization : and any ad- 
vantage of this kind was outweighed by the circumstance that the 
sacerdotal ministration might be granted or withheld at the pleasure 
of the church ; and waS in fact denied during periods of considerable 
length and frequency. The doctrine of its essentiality is for the latter 
reason opposed by the strongest arguments- ab inconvenient^ These 
do not merely rest on the grievance if, during considerable portions, 
amounting to one-third of every year, the power was denied to the 
r *307 1 P^^P'^ ^^ contracting such matrimony as would make the 
L J offspring legitimate. ^Besides these annual times of pro- 

hibition there were occasionally much longer ones co-extensive in 
duration with the interdicts to which the kingdom or parts of it were 
from time to time subjected, and during the subsistence of which the 
ecclesiastical solemnities of marriage were altogether withheld frpm 
the people. The interdict in the reiffn of John lasted six years and 
three months, and it is stated that during all this space there were 
neither divine services, sacraments nor Cnristian buriaL(6) It surely 
is not to be supposed that marriages were suspended daring this 
period, or that all which are assignable to it are void and the issue 
illegitimate. Recollecting the justifiable jealousy which the Temporal 
Courts entertained of Ecclesiastical authority, we cannot believe that 
they ever admitted a doctrine of which it was a necessary conse- 
quence that the pope possessed and exercised the power (and that of 
tne gift of the common law, the church holding the sufficiency of 
unsoiemnized contracts) of closing and opening at his pleasure the 
fountain of legitimate succession throughout this kingdom. 

The authorities do not leave this entirely to inference. Britton 
alludes to espousals and endowments at the church door during the 
time of interdict, in a manner which shows that notwithstanding the 
absence of the other solemnities, a wife so married and endowed was 
entitled to dower.(c) An observance of the accustomed place of 

(() 9 Pr^nne^t Reoordi, 255. 333. Inilanoet of the ri^d denial dorin^ intcrdtetn of ail 
eluioal offioea to the laity may be leea in otber parta of the aaoie volume. See Index, 
tit Interdict. (c) Cap. 107, cited ante, p. 305 n. 


r$UKn or luiEiLiAa^ f9t 

solemnisation, was, hcfwtrer, for this purpose emential ; and herein H 
will be remarked ti^t ibe cofBinon lawyers look care to require.tbaC 
eoDformity only to the regular order of marriage, which both secured 
publicity, and cotrid be observed at all periods, whether the church 
graDted or denied its offices. It appears from the ancient rituals, that 
it was at the chureh door, a place of public passage or free resort» 
that the civil part of. the ceremony, both espousals and endowments^ 
took place ; and that the parties (already designated husband and 
wife) then entered the church, where the religious ceremony was 
superadded. The words of the Romish ritual, as cited by Selden,(i2) 

dotiua^ *introeal cum- harito ecclesinmf et prostatic eis, ^c. ^ J 

So in the Manual according to the use of Sarum, it is said that the 
parties standing bef<Nre the door of the church, the dower of the wife 
was to be bestowed, and the ring was to be given, which was com* 
iBonly called despems€Uio ; and that they were then to enter the church 
sad receive benediction.(e) The allusions of other writers show that 
\)fi essential part of the ceremony took place at the church door.(/) 
But it ict particularly to be observed (for the fact is a key to several 
aothorities which have been misapplied) that in certain cases, either 
where the lawfulness of marriage was at issue, or where the Ecclesi^ 
sstical Coorts, in questions within their original jurisdiction, considered 
themselves bound to discountenance offences against the laws of the 
cfaorch, a canonieal or lawful marriage alone would suffice* In dower 
or appeal, the form of joining issue on the marriage raised the ques« 
lion whether the party had been lawfully married, and the t^rit wail 
ihos worded to tne bishop, wl\p theji could only certify in favour of 
that which by the canon law was legitimum matrtmonium. Some 
felaxation, however, took place as to this species of matriaH)ny, it 
becoming no longer necessary that the solemnization should be at a 
church«(^) This is attributable to the practice and increasing facility 
of obtaining licenses to solemniae marriages in private houses, or 
Itbsolution for the parties, whereby such contracts .were purged of 
their irregularity, and raised to canonical marriages* These licenses 
tnd absolutions became very common,(A) and probably of course ; 
tod an observance of the place of solemnization at length ceased to 
be considered essential, even to lawful *matriraony. There ^ ^g^g -. 
b, however, some warrant for the opinion that in later ^ -■ 

times it was held, at least in the Spiritual Court, essential to lawful 
marriages that there should have been banns oi: license, in conformity 
to the JSngUsh rituaK(i) 

(J) Uz. Eb. lib. % c. 37. {€) Ibid. 

(/) Littleton. «. 39, speaks of a man coming to the church door to btf married, where, 
after affiance and troth plighted between them, be endoweth the woman, &.c. And 
Lord CkJise upon the passage, witliout professing to contradict Littleton, says that dower ad 
^itan was ever after marriage solemnized ; thus treating as complete marriage that which 
passed at the door. Co. Litt. 34 a. So Chancer says of the wife of Bath ; ** Housbonde* 
at the chirche dorf had she had five T' and see other notices of the practice. Hearn*s Antiq. 
Okstoobory, App. p. 310. Selden says, tunc igitur ad ostium ecclcsias, nee interii^s, spon- 
salia inirl solita. But even in his time both espousals and endowments at the church door 
had fallen into desuetude. Ux. £b. lib. 2, c. 27. 

Cp) Perkins, 306, {h) Gibson^i Cod. 425. 

(i) Scrimshire ▼. Scrimshire, post, p. 310. 
April, 1845.— 8 

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The insufficiency of iiii«>lemnized cootracts to. confer »pon the 
wire the right to dower explains the case put by Perkins of a man 
.contracting mairimony with J. S., and dying before marriage sdero* 
nized, when she shall not have dower, for she never was his wife ; 
that is, quoad dower. The case which Lord Hale states( j) is of the 
same kind ; and when he says, " neither the contract nor tl^ sentence 
was a marriage," he must be understood to speak of such a marriage 
as would be valid to confer the dower sought to be recovered.(Ar) 

Irregular marriages were also insufficient when a party applied to 
the Spiritual Court for any "benefit to which he was entitled by the 
ecclesiastieal law in virtue of the marriage.(m) Thus it was appoint* 
ed that a party seeking restitution of his wife was not to be jieard de 
jurey when the matrimony was contracted clandestinelyy without pub- 
lication of banns, and consequently without the approbation of the 

In Haydon v. Gould,(o) the husband had procured letters of admin* 
istration of the wife's effects : her next of kin thou sued for a repeal, 
suggesting that the parties were never married* It appeared that they 
were Sabbatarians, and had been married by one of their ministers in 
a Sabbatarian congregation, using the form in the Connmon Prayer, 
except the rinff, and that they cohabited for seven years until the 
wife's death. But it bein^ shewn that the minister was a mere lay* 
r *3 1 1 ^^^* ^^^ '^^ *" orders, the ♦liters of administration were 
«- J therefore repealed. The sentence was affirmed by the 

{delegates, upon the ground that as the man demanded a right to him* 
self as husband by the ecclesiastical law, he ought to prove himself a 
husband by that law ; and that though perhaps the wife, who was the 
weaker sex, or tfi^ issue, who were in no faulty might entitle themselves 
by such marriage to a temporal right, yet tlie husband himself, who 
was in fault, should never entitle himself by the mere reputation of 
marriage without right. 

The reasons.of this decision shew that it is not, as has been thought,(p) 
any authority for the position that a marriage by a person not in orders 
was absolutely void, but merely prove that it was not such a mar* 
riage as would entitle the husband to an eccJesiasticai right> such as 
administration to his wife's eS%cXs*(q) And it is by no means clear 
that the mere clerical ministration would have cured it3 infirmity. In 
Scrimshire v. Scrimshire,(r) Sir Edward Simpson said that an abso- 
lute contract, or ipsum matrimoniumy does not convey a legal right 
to restitution of conjugal rights, though an *£nglish priest had inter- 
vened, if it were otlwsrwise than according to the English ritual.(<) 
He even questions whether it would be considered a lawful marriage 

(Ar) Co Litt. 33, a d. 10. 

(/) It appears from Swinbonie, Espousals, s. 1, that in F/ance also dower was denied to 
the wife unless the marriage had been celebrated. 

(m) The same doctrine is laid down by Heineccius : ** Jure canonico tamen connubinm 
non gaodet effectibus ecclesiasticis, pHusquam accesserit ttfokoym, Hinc distinelio inter 
matrimonium leji^timum et ratum.*^ Elem. Jur. lib. 1, tit 10, de Nuptiis, s. 148. And h/ 
the Roman law, some of the consequences of the wllennesnuptut were, denied to marriages 
eonstitated by consent alone. 1 Browne** Civil Law, 51 et seq. « 

(fi) Lyndw. Otho, De Uzoratis. See also Oughton, tit. 193. 

(0) 1 Salk. 119. 3 Bum. Ecc. L. 472. (p) 2 PhilL 21, (1 E. Ecc R.) 

(9) See also Green t. Green, 1 Hagfir. C. R. App. 9 n. (4 E. Ecc R.) 

(r) 2 Hagg. C R. 395, (4 E. Ecc. R.) (0 B«* "oe Hervey v. Hervey, 2 W. BL 187. 

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for other purposes. «* I dpprebend^ traless perscww in England are 
'married according to the rites of the Church of England, they are not 
mtitled to the privileges attending legal carriages, as thirds, dower, 

In the case of Rex v. Luffington,(t)) the question was, whether a 
narnage solemnized by a person erroneously supposed to be in orders 
would give the wife a settlement in the husband's parish. The Court * 
considered the question to be one of great imporlance, but avoided 
the decision of it, on the ground that the case was imperfectly stated: 
some similarity between the light of. settlement and tne title to dower 
miffht possibly prevent them from at once holding the mere contract 
to be a marriage. 

•The foregoing advantages of lawful matrimony, and r ^g,. n 
the censures and penalties which attended irregular mar- ^ J 

riages, account for the opinion of C. J. Vaughan, against that of the rest 
of the Court, that in an action for breach of promise of marriage, the 
plaintiflT ought to have averred in the declaration quodobiulitae in the 
presence of a parson.(«j) The other party would be entitled to object 
to contract matrimony in any other manner than that which waf 
lawful, and would confer all the civil benefits of the condition. • 

Tbe denial df some of the consequences of lawful marriage to unsold 
emnized contracts, also accounts for the practice of instituting suits 
bv parties contracted to compel solemnization, till the power of the 
Rccfesiastical Coprts to entertain them was taken away.(a;) 

The term marriage e/^ facto, as distinguished from lawful marriage, 
is applied both to marriages dissoluble for previous impediments, and 
to those deficient in the solemnities by whioh a legal marriage was 
constituted. Marriages subject to either objection offended against 
the ecclesiastical law, although the consequences of each kind of 
ofience were diflferent. Lord Coke(y) and Lord Holt(2) speak of mar- 
riages which might be dissolved for pre-contract, consanguinity, &c. 
as being marriages de facto. On the other hand, marriage in pos- 
session is said to be sufficient in personal actions and things, but mar- 
riage in right to be necessary in dower.(a) Here it is plain that the 
two species are contrasted with reference to the solemnities of consti- 
tution ; because in dower a marriage which had been voidable for 
impediment was sufficient, 4he death of the husband precluding any 
sobaequent question of it on that ground. 

Lord Hale, speaking of contracts de pressentif and of marriages 
infra annos nubileSf queries ^* whether husband shall have trespass de 
tali uxors abduci& V\b) an action in which the lawfulness of the mar- 
riage is not pleadable.(c) It is said that marriage de r ^^.^ i 
*facto, or in reputation, as amongst the Quakers, has been ■- * 

allowed by the Temporal Courts to be sufficient to give title to a per- 
sonal estate, b.ecause the lawfulness of the marriage is not in issue, for . 
that the issue is, whether a marriage was contracted or not, or whe- 

in) 2 BAgg. C. R. 402. (4 E. Ecc R.) (») Barr. a a 233. 

(») Holder T. DickiDBon, I Froem. 95. Carter, 233. 3 Keble, 148, S. G. 
(jr) Ougfalon, tit 209, et ieq. The same practice fbrraerly proTailed in Scotland, 2 Haggf. 
e R. 82, (4 £. Eoc. R.) (y) Co. Litt32a., 33 b. 

i*) 12 Mod. 432. See 1 Show. 50. (a) Leigh t. Hantner, 1 Leoo. 53. 

(h) Coi litt 33 a., note 10^ (c) See Andrews, 227. 1 Ler. 41. Veotr. 77. 

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IteS bvbbaok's mntmnoB op s^rcKasssiov. 

ther the parties lived in a married state, the legality of it n^t coming 
in que8tion.(d) Thus in debt on bond by husband arid wife, the defend- 
ant pleaded ne ungues accoupl^ in legal matrimony, and a demurrer 
was allowed, both because it altered the trial from the country to the 
bishop, and because it admitted the marriage but defriied the legaKiy 
of it, or that it was secundum leges ecclesice ; whereas a marriage de 
' facto was sufficient, and whether legal or not legal no ways mate*- 
rial.(e) According to Lord Coke a marriage de facto would support 
an indictment for bigamy ;(/) and it was held that marriages of Qua- 
kers and Anabaptists, or e?en according to any form of religion, were 
sufficient in actions for criminal conversation.(g^) And as both of 
these cases require strict proof of the marriage, it thence appears that 
neither clerical intervention nor any other solemnity, although not 
proved, was matter of presumption. 

These authorities establish the general position that in the Tempo- 
ral Courts marriage de facto was vtflid and sufficient in all cases except 
in actions admitting of a plea which raised the question of its lawful- 
ness ; and further, that this was not, as has been thought,(A) owing to 
any laxity of the rules of evidence leaving room for the presumption 
of a tegai marriage, but is to be ascribed to the inherent vigour of a 
de facto 'marriage, as comprehending present mutual consent, the 
ipsum matrimonium of the canon law. That the oommoii law must 
have given effect to this doctrine, is further evident from the consid- 
eration that the Temporal Courts received the sentences of the Spirit- 
nal Tribunals as conclusive authorities on marriage and other ques- 
tions within their jurisdiction.(i) On occasions, therefore, when those 
r ^gjg 1 Courts pronounced •upon the fact. of marriage, without 
I- -■ entertaining the question of its lawfulness their sentences 

bound 4he temporal jurisdictions.( j) wh6, whilst professing to bow to 
the judgment, could scarcely avoid deferring to the principles upon 
which it was founded. 

It is true that a contract per verba de prcesenti did not render a 
subsequent lawful marriage ipso facto void,. but voidable only,(A) and 
in this respect it differed from a marriage lawfully solemnized. (/) But 
this rule appears to have proceeded merely on the propriety of not 
holding a plain ceremony of marriage null until the cause of nullitv 
was made evident. Thus, it was said, thart the marriage became void, 
not only by sentence, but by the contracted parties afterwards inter- 
marrying.(m) And the better opinion was, that on a sentence dissolv- 
ing a marriage for precontract, the parties contracted were husband 
and wife by the sentence without further solemnity.(n) They were 
punishable for adultery if they cohabited even with the persons whom 
they married,(o) and they could not be punished for fornication if they 

((f) Wood*9 Institatea, p. 59. See also 3 Roll 585. 1 LeT. 41. Cro. Jac 102. 
(e) AUen ▼. Grey, 1 Show. 50. U SalL 437, Comb. 131. S. C. 4 Vin. Ab, 198. 
(/) 3 Inst 88. 

(F) 1 Ha^sr.C. E. App. 9, (4 K Ecc R.) Ball. N. P.Sa I Douglas, 166. 
(A) Jacob, 3 Roper, H. 6l W. 466. (t) Ante, p. 263, ct seq. 

(J) Banting t. Lepingwel, 4 Rep. 29. (() 6 Rep. 666. Co. Litt. 33 a. 

(7) Hemming y. Price, 12 Mod. 432. (m) See Bunting y. Lepingwel, 4 Rep. 29. 

(n) 1 Sid. 13. Dyer, 105 b. n. Twlsden, who differed, guardedly said the marriage molt 
be aolemnized before they could be compUtely baroo and Mme. 
(0) Swinb. 1. 4. 6 Mod. 155. 

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eebabted with each other.(p) It is impossible to imagine better testi 
of the existence of marriage between themselves and of the nuliity of 
the marriage of either with a third person. And it would have been 
aogolarly anomalous to have held illegitimate the ^ssue of an inter- 
course which was neither adultery nor fornication between parties 
who would commit adultery if they had intercourse with third per- 
flons. A subsequent lawful marriage could not make such issue more 
legitimate, the doctrine of relation in marriage not being admitted by 
the common law: and Swinburne(9) is express that by the canon law 
issue bom before celebration between those who have contracted 
espoi;»ab ^re lawful, and may inherit lands : and he says nothing of 
the necessity of subsequent celebration. 

The more direct authorities for the sufficiency, in the Temporal 
*CourtSy of marriages without clerical intervention, remain r ^014 1 
to be cited. By the canon law matrimony, as well as I- J 

e^>oiisals, might be celebrated between parties not only by proxy, but 
t^ letters or instruments, and marriages contracted in this manner, 
iwhich from its nature excluded clerical ministration, were valid.(r) 
Now a constitution of Otho has been cited(5) which speaks of mar« 
ria^es clandestinely contracted being afterwards proved by witnesses 
er by instruments. And Lyndwooa,(/) in his gloss upon this Constitu- 
tion, supposes that the object of such marriages was to effect the 
l^tiomcy of the offspring when bastardy should be objected to them 
by way of complaint or exception at the common lawt for the purpose 
ef depriving them of their paternal inheritance. Lord Coke(u) also 
kfc mentioning the juramentum calumnies says, that the ecclesiastical 
jodse had power to examine laymen upon the oath in causis matrimo^ 
wi^ibus, because contracts of matrimony were often made in private^ 
and legitimation of children depended thereupon. 

In 1661, a Quaker marriaffe was held valid in an action of .eject- 
iiient.(t;) In another case before Lord C. J. Hale, he directed the jury 
to find a special verdict upon a* Quaker's marriage, and according to 
Bishop Burnet(u?) '* declared he was not willing on his own opinion to 
okake their children b^tards." The same biographer says, that Lord 
Hale ** considered marriage and succession as a j*ight of nature, from 
which none ought to be barred, what mistake soever they might bo 
Qoder in the points of revealed religion," and that *< all marriages made 
according to the several persuasions of men ought to have their effects 
in law." The conduct of Lord Hale in this case is censured by Lord 
Keeper Guilford in terms scarcely more creditable to his learning than 
to his charity. " This was gross," he says, " in .favour of the worst 
of sectaries: for if the circumstances. of a Quaker's marriage wore 
stated in evidence, there could be no colour for a ^special p ^g_ •. 
▼erdict : for how was a marriage by a layman wiihout ^ J 

the liturgy good within the acts that establish the Uturgy V\x) What- 
ever effect these acts had upon the lawfulness of marriage, it is almost 

(p) S Sftft. 437. (q) Sec. 13. 

(r) Matrimoniom per cpistolam celcbratam valid am fuit. Barosa Collectanea Doctoram 
injas PoDlificium, torn. 5, p. 377. Sanchez de Matrimonio, lib. I, disp. 12. SwiDburoe 
'Eifoot. 8. 13. Palrymple v. Dalrymple, 2 Hagg. C. R. 59. («) Ante, p. 257. 

CO Const Prov. 39. (u) 2 Inst 657. See also Cro. EI. 79. 

(V) 1 Ha;;. C. R. App. 9 n. (4 E. Ecc. R,) (to) BarneCs Life of Hale. 

(x) Nortii*8 Life of Lord GoUford, toU 1, p. 126. 

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230 hubback's bvibbrce of sttocsssiomw 

superfluous to observe that for the doctrine here advanced that they 
impliedly avoided all marriages not in conformity with the liturgical 
order, the Lord Keeper's dictum is the singular authority. 

The case of Weld v. Chamberlayne,(y) which is cited to shew the 
necessity of clerical inter vention,(2) has, it is probable, a directly con- 
trary bearing, if a minister who has not had episcopal *ordination is ^ 
mere layman. There the marriage was solemnized before a man who, 
the report states, " had taken orders according to the church of Eng- 
land in former times, and ejected in 1663." A ring was not used m 
the ceremony, but Pemberton, C. J., inclined to think it a ^ood mar- 
riage^ there being words of contract de prcasenti repeated after this 

Lord Holt in the following cases asserts the doctrine contended for 
in the most explicit terms. In Collins v. Jessot,(a) 3 Anne, he said, 
and the whole court agreed, that «* if a contract be per verba de prm- 
senti it amounts to an actual marriage, which the very parties them- 
selves cannot dissolve by release or other mutual agreement, for it is 
as much a marriage in the sight of God as if it had been in facie 
ecclesicB. There was this difference, that if they cohabited before 
marriage in facie ecdesics, they were for that punishable by ecclesias- 
tical censures ; but if after such contract either of them lay with 
another, they would punish such an offender as an adulterer." In 
Wigmore's case(6) the same judge said " a contract ptr verba de prcB- 
senti is a marriage: so is a contract defuturo, if the contract be exe- 
cuted and he take her, 'tis a marriage, and they cannot punish for 
fornication." It is plain from these last words that the punishment 
spoken of in the former case was merely for a breach of order. Ac- 
cording to another report of Wigmore's case(c) Lord Holt said " In 
r ♦316 1 ^^ *case of a Dissenter married to a womap by a minister 
*- J of the congregation who was not in orders, it is said that 

this marriage was not a nullity, because by the law of nature the con- 
tract is binding and sufficient : for though the positive law of man 
ordains that marriages shall be made by a priest, that law only makes 
this marriage irregular, and not expressly void.. But marriages ought 
to be solemnized according to the rites of the church of England, to 
intitle the privileges attending legal marriage, as dower, thirds, &c," 

In Haydon v. Gould(d) it was admitted that the issue of a marriage 
by a layman might entitle then:iselves by such marriage to a temporal 
right : and a learned writer on the matrimonial law of Ireland^ fn 
citing this case, holds that the marriages of Dissenters by their minis- 
ters would support ejectment where legitimacy came in question.(e) 

In the case of Lord Fitzmaurice(/) a written contract per verba de 
prcBsenti was sustained in the Court of Delegates as a valid marriage ; 
and was admitted to be so in another case, to the extent of rendering 
a subsequent marriage unnecessary. (^) 

Lord Mansfield said, that '* before Lord Hardwicke's Act if, a man 

(y) 9 Show. 300. («) 3 Roper, H. Jd W. 448. 

(a) 3 Salk. 437. 6 Mod. ] 55. Ca. tern. Holt, 458, 8. a 

(d) 3 Salk. 437. (c) Ca. tem. Holt, 459. 

(d) Ante, p. 309. (t) Browne*! Civil Law, vol 1, p. 75. 

(/) 1732, cited 3 Hagg. C. R. 68, (4 £. Ecc. R.) 

{£) Robinf T. Wolselej, 3 Caa. tem. Leo, 433. 47L 

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vALxpixr or maibtii^;!, SSI 

mi woman made a contract per verba de prasenti, and kept it a secret, 
tod afterwards there wat a public marriage solemnized by either of 
tbeaif nevertheless the private contract took place of the subsequent 
marriage, because the canon law compelled a strict observance of 
these contracts, and decreed them to be solemnized in the face of the 
chorcb. Therefore clandestine marriages were so far to be sure 
practicable, but they were contrary to law."(A) It will be observed 
that Lord Mansfield here calls contracts />er verba deprcesenti " clan- 
destine marriages." 

There is some authority for the position that the vqH- j. ^^.^ i 
dity of •marriages at Gretna Green and places out of the ^ J 

kingdom to which English subjects have resorted for the purpose of 
evading the marriage laws of their own country, depends upon the 
Englisn law before the marriage act It is contended that such mar- 
riages are to be determined according to the law of the country to 
which the parties bebng ; and as the marriage acts did not extend to 
Scotland or places beyond the seas, by the law of England unaffected 
hf them a marriage in the form used at Gretna Green is a good mar- 
riage. This, according to Sir George Hay, was the ground of the 
decision in Crompton v. Bearcroft,(t) in which there appears to have 
been no evidence that the marriage was valid in Scolland.( j) 

Lord Kenyon's opinion was that before the Marriage Act an agree- 
meDt between ihe parties per verba de prcesenti wps ipsum matri' 
wminm ;{k) and C. J. Gibbs said, by the canon law which governed 
marriages in this country before the Marriage Act, a contract of mar- 
riage entered into per verba de prcesenti is considered to be an actual 

The point decided in Dalr^mple v. Dalrymple(77t) was that a con- 
tract per verba de prcesenti or a contract per verba de futuro cum 
C(fne/^ is a valid* marriage in Scotland. Lord Stowell grounds his 
decision principally upon the dootrines of the canon law, and holding; 
it to have been the common source of the law of matrimony in both 
kingdoms, be supports his judgment by reference to several English 
cases which have been cited ; making it evident that he considered 
that before Lord Hardwicke's , Act the English and Scotch laws 
agreed in the principal point before him. 

Lastlj*, Lord Tenterden took the same view of the law. On the 
trial of an issue from Chancery on the lecilimacy of a person born 
kefore Lord Hardwicke's Act, he thus charged the jury :{n) " It is 
material to know in what way a marriage might lawfully r ^« jq -j 
•be celebrated at that time. A marriage most undoubt- I- J 

ediy at that time might lawfully be celebrated in a way in which 
afterwards the proof of it would be extremely difficult. It might be 
celebrated at any time and in any place, by a clergyman : nay, as I 
oaderstand the law, it might be even celebrated without a clergyman » 

(k) 1 T. R. 99. (t) Poit. sec. a 

U) 3 Hagflr. C. R. 430, (4 E. Eoe. R.) Sir W. Wynno however states (ibid. 443) that 
the groQod ofdecbion was that the marriage was good by the Scotch law. Bat see 5 fiac. 
Ak (ed. 1832} 304, and post, sec. 3. {k) Read v. Passer, 1 Peahens N. P. C 23S. 

(0 Laotour v. Teasdale, 2 Marsh. 250, (4 E. C. L. R.) 7 Taunt 830, S. C, (2 £. C. L. R.) 

(n) 2 Uagg. C. R. 59, (4 E. Ecc. R.) See also MacAdam t. Wallier, 1 0ow. 14a 

(a) Beer t. Ward, 3ttd larae, p. 283. 

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ibr a declaration by the parties in terms of contract that they were 
man and wife, accompanied with a cohabitsKion as man and wife— a 
contract verbally made before witnesses, a declaration of that in the 
presence of witnesses, would at that time of our history have made a 
good and lawful marriage in England, as it does now in Scotland." 

Against this array of authorities there is little to set besides the 
opinion of Mr. Jacob, before cited, part of whose conclusion is, that 
according to the law administered in England before the first Mar- 
riage Act, a matrimonial contract de prcesenti did not confer on the 
issue the rights of legitimacy ; that at the common law it aad no 
effect, though in cases where the parties cohabited and were reputed 
to be man and wife, this might be sufficient evidence for the purposes 
of some actions in which strict proof was not required.(o) The latter 
opinion has been controverted in a preceding page ;(p) and the prin- 
cipal authorities relied on in support of the general conclusion have 
been shewn to have reference only to the effecis of matrimony -as be- 
tween the parties themselves, and to be inapplicable to the status of 
the offspring. It must, however, be admitted, that some passages are 
to be found in the works of text writers which, unless it be tJiought 
that they refer only to the ancient law, omitting mention of the devia- 
tion from it, tend to shew that cases continued to exist in which the 
issue of parties irregularly .espoused were illegitimate. Swinburne 
says that until the celebration of marriage the temporal lawyers " do 
not repute the affianced couple for one person, nor deem of their issue 
as lawful, nor doth he sain any propriety in her goods, nor she any 
dower in his lands, by force of the contract of matrimony only with- 
out solemnization."(5) The same law is stated by Ayliffe and Mat- 
thew Bacon.(7*) The explanation of this language appears to be that 
T ♦aiO 1 ^^ ^^^^ actions where general bastardy was the *point in 
'• J issue as well as in. dower the practice was to adhere to 

the ancient rule requiring lawful matrimony. This was the only 
occasion upon which the ecclesiastical lawyers adjudicated upon bas- 
tardy,(s) and hence the general terms in which Swinburne expresses 
himself. Ayliffe and Bacon are without any other authority foi: their 
positions so far as they respect legitimacy.(<) Lord Stowell more 

Siardedly says, " the common law certainly had scruples in applying 
e civil rights of doWer and community of goods and legitfmacy in 
the cases of these looser species of rnarriage."(tt) And so far from 
the authorities supporting the broad conclusion that the same species of 
marriage was required to confer the rights of legitimacy as to confer 
the rights of dower,(v) it has been seen that as early as the time of 
Britton private espousals made the son inheritable but did not make 


(0) 3 Roper, H. & W. 474, (Law Library.) 

( p) Ante, p. 312. (q) Espousals, s. 1. 

(r) Avliffe'a Parergon, 245. Bac. Ab. tit Marriage C. 

fs) Tbey had no jurisdictioD on the subject except in obedience to the king's writ, 4 Vin. . 

(I) . Ajliffe is a direct authority that consent alone was sufficient to constitute matrimony. 
Besides the passages cited ho puts the case of a marriage by darets and says that the efibct 
of this impediment might be merged and done away by a spontaneous cohabitation ibr so 
long a time as that the cause of such fear may bo presumed to cease amd be destroyed 
thereby, and a spontaneous consent substituted In its room. 

(«) 2 Uagg. g. R. 68, (4 £. £co. K.) (o) 2 Roper, H. &. W.450, (Law Libraiy.) 

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▼ JidBIlT OF JIAEBlA^a. 880 

die wife dowable ;(uf) and that where the question bf legitimacy arose 
iQ personal actions or in other cases in which the trial of it was by 
the country an irregular or de facto marriage was sufficient. 

It is remarked that it would have been singularly anomalous if there 
had been one law x>f legitimacy in real actions and another in eject- 
iRent(x} Granting that a difl^rence might arise between the status 
of a party in the trial of general bastardy and his condition on other 
occasions, it will be shewn in another place that the conclusiveness to 
aH the world of the sentence in general bastardy effectually prevented 
any conflict respecting the status of the same individual. Further, 
the difierences between the law of legitimacy as adminfstered in the 
Spiritual and in the Temporal KUourts are repeatedly enumerated :{y) 
isEsae of parties who afterwards intermarried were legitimate by the 
canon law, and illegitimate by the common law, whilst the converse 
was very generally the status of the issue of a married woman living 
in adultery ; but it is not mentioned that any discrepancy prevailed 
♦in consequence of some marriages being valid by the one r ^^^q ' i 
law and invalid by the other : yet nothing is more certain ^ J 

than that by the canon law the contract per verba de prcesenti was a 
valid marriage, and the issue of parties so contracted legitimate. 

The trial of general bastardy by certificate had become obsolete 
even before the abolition of real actions,(2) in which alone it prevail- 
ed ; and this mode of trial was never in very frequent requisition, 
taking place only on a general allegation of bastardy, and that only 
as long as the party was living, and not only living but a party to the 
suit, and not only a party to the suit but adult(a) 

It is to be 'observed that in the trial of lawful matrimony, upon an 
issue as to general bastardy, the party would be certified a bastard, in 
whatever respect his parents' marriage was unlawful, whether from 
the Want of solemnity or from the existence of impediments. The 
role that the issue were legitimate unless a marriage of the latter kind 
was dissolved during the lifetime of both parties was not recognised 
in the Spiritual Courts ; and therefore in an early case, Thorpe, C. J. 
Teased to send to trial an issue on the bastardy of a party who was 
bom of a voidable marriage, but whose parents were dead ;(b) and 
the reason appears from another case in the same year in which it 
was admitted that such a party would be a bastard by the law of the 
holy church.(c) It would thus bp quite as reasonable to contend from 
the passages speaking of heirship as demanding birth in lawful matri- 
mony, for the illegitimacy at common law of the children of voidable 
marriages without a sentence of nullity, as for the illegitimacy of chil- 
dren ofmarriages defective in solemnity. 

There remain to be noticed certain statutes upon the subject of 
marriage which are cited in Mr. Jacob's argument for the necessity 
of clerical ministration. 

The statute 25 Hen. 8, c. 21, after giving the Archtishop of Can- 
terbupy the power to grant such licenses and dispensations as it had 

(*) Ante. p. 305. (x) 2 Roper. H. & W. 480. 

(y) 7 Kep. 43. 4 Vin. Ab. 219. («) 3 dt 4 Wm. 4, c. 27, a. 36. 

(a) Per Eyre, C. J., 2 H. Bl 156. . (6) Ass. 39 E. 3, pi. 10, p. 234. 

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r *321 1 ^^^^ ^^^ practice to obtain from Rome, enacts that all 
"• J *children procreated after solemnization of any marriages 

by virtue of such licenses or dispensations should be reputed and laken 
to be legitimate in all courts, as well spiritual as temporal, and in all 
other places, and inherit the inheritance of their parents and ances- 
tors according to law. The insertion of this clause was required, if 
there were any occasions on which the ecclesiastical certificate would 
have the effect of bastardizing the issue. 

, The statute passed on the restoration of Charles II., intituled " An 
Act for the Confirmation of Marriages,"(d) enacts that marriages 
which, during the usurpation, had been solemnized before justices of 
the peace, according to the parliamentary ordinances, should be of the 
same force and effect as if they had been, solemnized according to the 
rites and ceremonies established or used in the church or kingdom of 
England. And it was provided that issues on the point of bastardy 
or lawfulness of marriage depending on these marriages, should be 
tried by a jury. The stat 6 & 7 Wm. 3, c. 6, granted to the crown 
certain duties upon marriages. By section 63, Quakers, Papists, 
Jews, and other persons who should cohabit and live together as man 
and wife, should pay the duties thereby granted, as if they had been 
married according to the law of England. And notice was to be 
eiven to the collectors within five days of every pretended marriage 
by such ()ersons according to the method and forms used amongst 
them. Section -64 provides that nothing therein contained should be 
construed to make good or effectual in law any such marriage or pre- 
tended marriage, but that they should he of the same force and virtwe^ 
and no otiier, as they would have been if the act had never been 

The words in italics* in both the above acts tend to shew the opinion 
of the legislature that marriages possessing some validity, or validity 
for some purposes, might be contracted without a compliance with 
the canonical regulations. A contrary argument, from the guarded 
expressions used in the last act with reference to such marriages, 
would prove too much : for it would establish that the marriages of 
f *322 1 ^^P^^^ according to their forms, i. e. in the *presence of 
"• J a priest whose orders are recognized by the Church of 

England, were also absolutely invalid.(e) 

It is said that the general opinion jvhich prevailed in England of the 
necessity of solemnization by a priest appears from the mannerin which 
clandestine marriages were formerly conducted. There would have 
been no reason, the argument runs, for procuring, as in the Marriages 
at the Fleet, May Fair, &c., the ministration of a clergyman, if the 
purpose could have been equally well effected by a private contract, 
which would have been attended with less inconvenience, delay and 
exi)ense, and would at the same time have evaded the legal penal- 

But it has been seen that marriages solemnized in the presence of 
a clergyman, although in an irregular and uncanonical manner, con- 
ferred a right of dower and other privileges denied to mere contracts, 

(d) 12 Car. 2, c 33, coDfirmcd by 13 Car. 2, c 11. 

(0 See ooDtra, Fidding^s case, 14 How. St Tr. 1331. (/) 2 Roper, 460. 

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thoogh the parties concerned in them were liable to punishtnent.(fi^) 
Sobstaotial reasons therefore existed for preferring this mode of cefe- 
bration. Besides^ there does not seem to have been then any decision 
against the admissibility in evidence oif the registers of these mar- 
riages : and even if this motive did not exist, yet having regard to the 
niceties of the law of marriage, and particularly to the distinctions 
between expressions which amounted to verba de pr€Bsenti, and those 
which were only verba de fiUuro, there was a degree of security in 
the performance of the prescribed ceremony of marriage by and in 
the presence of a person to whom it was familiar. At the present day 
in Scotland persons are not content with a declaration of marriage in 
the presence of witnesses : and English subjects, who resort thither 
for the purpose, do not join hands in the presence of their attendants 
and declare themselves married as soon as they have touched Scottish 
ground, but will rather purchase some protection against informality 
or defect of evidence by the " inconvenience, delay, and expense" of 
a formal contract in an accustomed manner and place. The presence 
of a priest would always be desired as adding a religious r ^„n» ^ 
sanction to the contract, even if it had not *iraparted to it I- J 

any further legal validity : and persons about to contract an irregular 
marriage would give it as much force, and comply with as many of 
the usual forms as possible. The matrimonial intent of the parties 
was also evidenced by the clerical ministration, and the contract was 
therefore less open to the objections of surprise and mistake, and less 
susceptible of an explanation inconsistent with matrimony, than mere 
declarations. Civilians speak of the presence %f a priest among other 
solemnities commonly attendant upon a regular marriage, as evidence 
to shew the matrimonial intent of the parties, if the effect of their 
words or actions was doubtful. Thus, the delivery of the ring, if made 
either in the presence of a priest, or at the church door, was sufficient 
to establish matrimony.(A) 

Clerical intervention was in some instances dispensed with, and it 
is not easy to sec why marriages to which it was wanting were enter- 
ed into, unless to confer the important rights of legitimacy upon the 
children. /The obligation to contract a future marriage would have 
been equally well created by a contract defuturo. The marriages in 
the parish of Dale Abbey are said to have been, till a few years before 
the Marriage Act, solemnized by the clerk of the parish, there being 
no minister.(i) And the marriages at the Fleet were sometimes per- 
formed by persons who were not clergymen.( j) The Marriage Act 
recites that many persons did solemnize matrimony in prisons and 
other places without banns or license, and provides that persons so 
ofifending should be guilty of felony.(A:) 

The statutes 57 Geo* 3, c. 51, and 58 Geo. 3, c. 84, are relied upon 
as confirming the view of the necessity of clerical intervention. The 
former statute speaks of solemnization by a priest being required for* 
the perfect validity of the marriage contract, the expression affording 

(g) 2 Atk. 157. 650. * Ca. temp. Hardw. 57. 

(A) Pretenti sacerdote vel ad fores eoclesie. Meoochiuf de Presamp. ]i1>. 8. pr. 3. 
(i) Born on Parish Registers, 127. It does not appear that the clerk was in orders. 
0')BaflifloFleetRegUter8,5a62. (It) 36 Geo. 2, o. 33, s. 8. 

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grounds for contending that some validity, or validity for some pur* 
r «324 1 P^^^^ belonged to marriages without such ^solemnisation. 
■■ J The other statute is in terms strictly declaratory, and it 

declares marfiages by Scotch ministers in India to be valid. 

It is further argued that the imposition of penalties upon .clergy- 
men celebrating marriages without banns or license, by the stats. 6 & 
7 Wm. 3, c. 6, s. 52, 6 & 7 Wm. 3, c. 35, and 10 Ann. c 19, s. 176, 
would have been nugatory, if marriages could have been constituted 
without the intervention oi clergymen. The best answer to this is a 
reference to the same state of the law in Seotland.(/) The Scotch 
act, 1 Pari. Car. 2, Sess. 1, c. 34, an. 1661, imposed penalties upon 
parties to clandestine marriages by Jesuits, priests, deposed or suspend- 
ed ministers, or other unauthorized persons, and rendered the celebra- 
tors of such marriages liable to banishment for life ; and this law con* 
tinned in force until repealed by the 4 & 5 Wm. 4, c. 28 : yet it is 
undoubtedly the law of that country that not only such marriages, if 
contracted, but marriages without any celebration and constituted 
merely by verba de presenti are good and valid.(i7i) 

If clerical intervention was essential, it is difficult to understand 
how the knowledge or belief of the parties, that the person celebrat- 
ing the marriage was or was not in orders could affect its validity: 
the simjple question' would be, whether a priest was present. Yet L#ord 
Stowell speaks of a marriage being supported if held by the ministra- 
tion of a person ostensibly in holy orders :{n) obviously treating the 
matrimonial intent of the parties as the chief object of inquiry* If 
bond fides, or belief of clerical presence by one or both of the parties 
be suggested as a ground for holding the marriage valid, the cogniz- 
ance of both, that the person was not in orders, would at least have 
been clearly'fatal to the marriage ; yet it was thought mecessary to 
enact that this should be a cause of nullity by the 4 Geo. 4, c. 76. 

With reference to the evidence of ordination in cases where it may 
be necessary to prove that the officiating party was a clergyman. Lord 
p #225 1 Holt in one case admitted evidence of reputation as to 
•• J *the party being in orders, saying that the same proof 

would be allowed to prove orders as to prove marriage.(o) In a recent 
case, in order to prove that W., a person officiating at a marriage in 
Ireland in 1826 was a clergyman, a document was produced purport- 
ing to be his letter of orders signed and sealed in 1799 by the Arch- 
bishop of Tuam, which was proved to have been among his papers at 
the time of his death in 1829 : it was held to be admissible without 
further evidence, having come from the proper custody and being 
more than thirty years old ; and not having relation to the corporate 
character of the archbishop, the seal was to be considered the seal of 
the natural person, and did not require authentication, (p) 

♦ It would follow from the doctrine of the necessity of clerical inter- 
vention that the marriages of Protestant dissenters solemnized accord- 
ing to their own .forms were at all times void and the issue ilicgi- 

(I) 3 Roper, 458. (m) See also 1 Pari. WiU. Sefis. 7, c' 6, ann. 169^ 

(n) See I Hogg. C. R. 280. 268, (4 E. £cc R.) 

(0) Harscoi^s caae, Comb. 902. And see 1 PbilL Evid. 257 n. 8tb ed. 

(f) Bax t. Bttbwick,2 B. dt Ad. 630, (22 £. C. L. R.) 

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dmate. In Hutchinson v. 6rookebanks(9) it appears to have been 
thought that the Toleration Act exempted from ecclesiastical censures 
the marriages of Dissenters who took the oaths and made the declara- 
tion thereby directed, but in no case was it considered to imparl to 
them any additional efficacy. According to Lord Hardwicke it gave 
no new right but only an exemption from the penal laws.(r) An 
opinion has indeed been hinted at(5) that Dissenting ministers being 
l^alized, it could not be said that rites and ceremonies performed by 
them were not such as thfe law could recognize in any court of jus^ 
tice. But the doubtful benefit of this opinion cannot be extended to 
the marriages of Quakers who have no ministers, and whose matri- 
monial ceremonies do not amount to more than declarations of the 

•It has been thought that the exception in Lord Hard- r ^^26 1 
wicke's Act mJiy be looked upoq as a legislative recogni- ^ J 

tion of the validity of Quaker marriages and as indirectly legalizing 
them : bot this seems to be an unwarrantable construction of the 
clause that the act should not extend to them. There is less reason 
for such an opinion if, as contracts de prcesenii, they were before the 
act valid, thouffh not lawful marriages. And this appears to have 
been their condition from cases which have been cited establishing 
. their validity, and from others in which the privileges of lawful matri- 
mony were denied to them. In Green v. Green(<) a Quaker marriage 
was held insufficient to support a suit for the restitution of conjugal 
rights. And in another suit to compel solemnization and consumma- 
tion, the marriage was regarded as a contract entitling the party to 
call for those rights.(u) 

Lord Hardwicke's Act took away from matrimonial contracts the 
power which the parties had of compelling solemnization in facie 
ecclegUB, but this cannot be considered as having destroyed their effisct 
as marriages ift the cases excepted bv the act. Accordingly Quaker 
marriages since that statute, and before the late Marriage Act, have 
been treated as valid : but in none of the cases was their lawfulness 
the point at issue.(:r) 

Thd Stat. 6 and 7 Wm. 4, c. 85, s. 2, enacts that the Society of 
Friends, commonly called Quakers, may continue to contract and 
solemnize marriage according to the usages of the said society, and 
every such nparriage is thereby declared and confirmed good in law, 
provided that the parties to such marriage be both of the said society, 
provided also that notice to the registrar shall have been given, and 
the registrar's certificate shall have issued in manner therein provided. 
A subsequent section makes the want of such notice or certificate a . 
cause of nullity to all marriages.(y) 

** The matrimonial law of England for the Jews," said Lord Sto- 
well, " is their own matrimonial law ; and an English p ^007 i 
court ♦Christian examining the validity of an English Jew "- J 

marriage examines it by that law, and that law only."(z) 

iq) 3 Ler. 376. (r) 3 Swanst. 490 0. 

(#) See the JTadfrmeot of Sir J. Nicholl in Kemp t. Wickei, 1810, p. 39. 

(I) 1 Btgg, C. R. App. 9 iw <4 C. Ecc R.) 

(«) Dodgwm ▼. Huwell, Deleg. 173a Ibid. 

{X) BoU. N. P. da. 1 Hagff. C. R. App. 9 n., (4 E. Eoe. R.) See 1 Donghi, 168. 

(y)8ee.49. (s) 3 Hagg . a R. 886, (4 £. Eo«. B.) 

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ft38 BtTBBAOK'e wnj>mfcu of stjcoession* 

This exemption of Jewish marriages from the general law was 
recognized in several cases before the first Marriage Act,(a) and no 
doubt originated in the peculiar and alienated condition which during 
their former residence in this country was in part the disability and in 
part the privilege of that people. They were then to a certain extent 
subjected to a judicature distinct from that of the rest of the nation, 
being governed by their own laws (called in the royal writs and 
grants lex et consuetudo Judaismi nostri) administered by justices of 
the Jews appointed for the purpose*(6) They were also privileged by- 
royal grants in the exercise of their religion,(c) and haa a bishop or 
priest appointed by the crown, or elected by themselves, subject to the 
royal approbation.(d) 

On the return of the Jews to Englabd in the time of Charles !!.♦ 
theii* ancient exemption from the general law appears to haVe been 
tacitly allowed in the article of marriage ; and their marriages are 
expressly excepted out of all the marriage acts except the last. The 
exception in the 26 Geo. 2, c. 83, had been construed to he{e) and that 
in 4 Geo. 4, c. 76, s. 31, is expressly confined to cases wnere both 
parties are Jews. And even in them it is not clear that the parties by 
conforming to the usual mode of solemnization, would not waive the 
benefit of the exemption, and make the general law applicable to the 

r *328 1 *^^^ '^^® Marriage Act provides that persons profess- 
«" Jing the Jewish religton . may continue to contract and 

solemnize marriage according to the usages of the said persons, and 
every such marriage is thereby declared and confirmed good in law, 
provided.thal the parties be both persons professing the Jewish reli- 
gion ; provided also that notice to the reffistrar(g) shall have been 
S'ven, and the registrar's certificate shaU have issued in manner 
erein provided.(A) By a subsequent section(t) a wilful non-compli- 
ance with these formaltities of notice and certifiicate will avoid the 

A non compliance with such of the usages of Jews as they deem 
essential to the validity of the contract was before, and it is appre- 
hended, is even since the late act fatal to a Jewish marria^ ; for 

(a) Andreas ▼. Andreap, 1 Bngg, C. R. App. 9 n., (4 E. Ecc. R.) Franki ▼. Martio, 5 
Bro. P. C. 151.155. La Costa v. Villa Real, 1 Hagg. C. R. 242 n., (4 E. Ecc R.) 

(6) Pryime*8 Short Demurrer to the Jews* long discontinued barred remitter into Eng- 
land, p. 97. 

(c) Rex providit quod nniversi Judeei in ainagogia suia celebrent tubmissft, voce aecundara 
ritum eomm, ita quod Chriatiani non audiant 37 Hen. 3. Madox Hist Exch. 169. 1 

(d) Selden giyes a charter of Ring John granting and oonfirmingto Jacob the Jew of Lon« 
doo, presbyteratnm omnium Jndteorum totiue An&rlio, 3 Sdd. Opera. 1583. See 1 Rjtxu 
95. 362. Madox, Hist Exch. p. 177. And gcneraUy on the condition of the Jews, Prynne. 
ubi sap. Tovey's Anglia Judaica, 2 Ha^^g. C. R. 217 n. (4 E. Ecc. R.) a learned note in 
S Swanst 505, and filant*8 History of their establishment in England, 1830. The subject 
has been much discussed on the occasions of bills in parliament for their naturalization or 
relief. One of these passed into a law 26 Geo. 2, c 26, but was repealed in the following 
year by stat 27 Geo. 2, c I. 

(e) Jones ▼. Robinson, 2 PhilL 285, (1 E. Eoc R.) The marriage of a CSiristian with i^ 
Jew was anciently a capital felony. Fleta, 54. 3 Inst 89. 

(/) See 2 f11]. 285, (1 £. Ecc. R.) 

(i) This appears to be a mistake ftr the iuperintendini regiftrar« See n. 4. 7. 12« 

(A) 6&7W.4,c85,a.SL (t)Seot42. 

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web mtrriages ^jre not merely exempt from the general matrimonial 
hw, but are also subject to the Jewish law. A present contracti 
Cfen though followed by consummation, will not constitute a mar- 
riage, if any of the forms 6r incidents be wantina which by the Jewish 
law are accounted neoesskry to the formation ofthe matrimonial con* 
tract Thus the Court was bound to declare a marriage invalid by 
{easott of the incompetency of the witnesses arising from their pre- 
vious non-confornuty to some of the Jewish observances.( J) 

The Jewish law, like that of a foreign country, is proved by the 
testimony of its professors. (^) From the evidence' in the cases which 
have been cited it appears that a formal celebration of a Jewish mar- 
riagc is made by a written contract drawn up by the priest, and signed 
by the bridegroom and two witnesses, *and entered in the f ^009 1 
books of the synagogue, the entry thereof being signed in ^ ^ 

fike manner.(/) The original contract is delivered to the bride, and 
this ought to be produced in proof of the marriage.(m) The dale of a 
Jewish marriage is said to be engraven on the wedding ring.(n) 

Sbctioh IIL — Or trb law and paoor ni England of Makbiaobs abroad. 

Iif a recent judgment of the Consistory Court pf London, it was 
ebserved, that the number of marriages of persons connected by dom- 
icile or ownership of property with this country, which have bfeen 
contracted abroad, especially since the peace, nas made such mar- 
riages frequent and important subjects of evidence in the English 
Courts : and the Court was influenced by this consideration in admit- 
ting an examined copy of an authorized register in Barbadoes as evi- 
dence of a marriage there without calling lor the witnesses who were 
present(o) And without reference to foreign communication, the 
onioterrupted intercourse and mutuality of ownership of property, 
arising from contiguity and community of government, betweei^ the 
inhabitants of England and those of the other parts of the United . 
Kingdom where different laws of marriage prevail, at all times supply 
occasions for inquiring into the principles and practice of the English 
Courts, in determining questions upon the law and evidence of mar- 
riages contracted out of their jurisdiction. Although there can be no 
doubt of the competency of rarliament to provide what shall be the . 
English law respecting the marriages of English persons in foreign 

(J) Goldtmid v. Bromer, 1 Hagg. C. R. 324, (4 E. Ecc. R.) See Airtb^r on Jewish mar* 
riages, since the first Marriage Act, Lindo v. Belisario, 1 Hagg. C. R. 216, (4 E. Ecc. R.) 
D'AjgoQar t. D*AguiIar, ibid. 134, n., (4 E. Ecc. R.) Vigevena v. Alvarez, ibid. App. 7 n. 
(4 £ Ecc. R.) Horn v. Noel, 1 Camp. 61. Ganer v. Lady Lanesborougb, Feake, N. P. C 
17. A nmilar respect would seem to be shown in other countriee to the opinions and prao* 
tice of a people distinct from the prevailing inhabitancy. Lord Stowell presumed that tlie 
vafidity of a Greek marriage in Turkey was lefl to depend on their own canons, without 
any reference to Mahometan ceremonies. 2 Hagg. C. R. 386, (4 E. Ecc. R.) 

{k) Lindo t. Beliiario. Goldtmid v. Bronier, ubi sup. But see Ganer t. Lady Lanes- 
boroagfa, obi sup. 

it) 1 Hagg. C. R. 247, (4 E. Ecc R.) 5 Bro. P. C 155. Sclden's Ux. Eb. 

(fls) Horn ?. Noel, 1 Camp. 61. (n) Grimildi't Originet Genetbgica, 

{•) Coode T. Coode, 23rd March, 1838. . 

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840 hubbaok's wnnsnoE ot suooessioit. 

countries,( p) such marriages are excepted from all the Marriage Act* 
The last section of Lord Hardwicke's Act provided that nothing 
p #2QQ 1 therein contained *should extend to Scotland, nor to any 
I- -I marriagos solemnized beyond the seas: and the existing 

Marriage Acts, 4 Geo. 4, c* 76; and 6 & 7 Wm; 4, c. 85, are expressly 
confined to England. 

A principle of almost universal application in these questions is, 
that the law by which the validity of a marriage is to be determined 
is that of the country in which it is celebrated. Upon this rule civi- 
Kans and canonists are agreed,(f ) and it has always been recognized 
and followed by the English Courts, both Spiritual and Temporal.(r) 
And it will apf)ear to be founded both in convenience and justice* 
« From tht infinite mischief and confusion that must necessarily arise 
to the subjects of all nations with respect to legitimacy, successions^ 
and other rights, if the respective laws of different countries were only 
to be observed as to marriages contracted by the subjects of those 
countries abroad, it has become ^'u.v gentium, that is, all nations have 
consented, or must be presumed to consent, for the comaK>h benefit 
and advantage, that such marriages should be good or not according 
to the laws of the country where they are made. It is of equal con- 
sequence to all, that one rule in these cases should be observed by all 
countries, that is, the law where the contract was made. By observ- 
ing this law no inconvenience can arise ; but infinite mischief will 
ensue if it is not.'*(5) It is just also that the validity of a contract 
should be ascertained by reference to the law by which the parties at 
the time of entering into it were governed. 

The application of the rule was thus described by Lord Stowell, in 
a case before him respecting the validity of a Scotch marriage : **Thia 
cause being entertained in an English Court, must be adjudicated^ 
according to the principles of English law applicable to such a case. 
r ♦331 1 ^"^ ^^^y principle applicable to such a case by •the 
^ J law of England is, that the validity of the lady's marriage 

rights must be tried by reference to the law of the country, where, if 
they exist at all, they had their origin. Having furnished this princi- 
ple, the law of England withdraws altogether, and leaves the legal 
question to the exclusive judgment of the law of Scotland."(0 

It was at one time doubted, whether the rule protected marriages 
in places to which parties domiciled in another state resorted, in order 
to evade restraints or formalities to which their marriage in their own 
country was subject by the law of that country. Lord Mansfield 

ip) The Code Civil provides that marriages of Frenchmen abroad shall not be contracted 
in coDtraventkm of the provisions therein contained. Art 170. 174, and see Lacon v. Hie- 
gins, 3 Starli. N. P. C. 178, (14 E. C. L. R.) 2 Dowl. & Ry. 38, (16 E. C. L. R.) 

{q) Sufficit in oontrahendo adhiberi solemnia loci illius in quo contractus oelebratur, 
etfli noD inveniantor observata solemnia qusB, in loco domicilii contrahentiom ant rei 8ita»» 
actui gerendo prsoacripta sant J. Voet, in Dig. lib. 23. De rita Nuptiarum, tit. 3, n. 4, 
and 85. Paul Voet de Statut, s. 9, c. 2. Huber. de Confl. lib. 1, tit 3, n. 8. 

(r) Sanchez de Matrimonio, jib. 3, de Claud. Consens. disp. 18, s. 10. Ryan v. Rtsii, 
2 Phillim. 332, (1 £• Ecc R.) Herbert v. Herbert, 2 Phillim. 430, (1 E. Ecc. R.) liderton 
T. UdertoD, 2 H. Bl. 145. Kelyng, 79. 1 Atk. 50. Ambl. 303. 3 Star^. N. P. C. 178, (14 
£. C. L. R.) 2 Hagg. C. R. 59. 263. 395. 437, (4 E. Ecc. R.) Montague v. Montague, 2 Add. 
375, (2 E. 1^ R.) («)• Scrimshire v. Scrimshire, 2 Hagg. C. R. 417, (4 E. Ecc. R.) 

(<) Dalryftple v. Dalrjmplo, Dr. Dodson's Report, p. 6. 1 Hagg. C. R. 59, S. C. (4 E. 

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questioned the validity of marritges in Scotland by persons going 
hence for that purposc^u) But such marriages, whether in that or 
in other coontrie8,(7) have since been held to be valid in the Engh'sh 
Couris-(w) It is not always clear whether the decisions proceed upon 
their validity by the lex loci contractus^ or their validity by the law of 
England unaflfected by the first Marriage Act :(x) the requisites by 
which law were, as has been seen, so simple as to be comprehended 
ki the marriage laws of perhaps every country. According to a 
notice by Sir fieorge Hay of the leading case of Cromplon v. Bear- 
croft, there was no evidence that the marriage was valid in Scot- 
iand.(y) It has been said, that a marriage contracted by English 
persons who had resorted thither for the sole purpose of evading the 
prohibitions of the Englidi Marriage Act are valid, because they are 
not prohibited by the English Marriage Act There is an express 
provision that nothing in that act shall extend to marria- p' «qoo i 
ges ♦in Scotlatx], or to any marriages beyond sea. The ^ J 

act therefore left English subjects at perfect liberty to resort to any 
country for the purpose of contracting and celebrating their marriage. 
So far from the act containing a general and absolute prohibition, and 
a declaration of the nullity of all marriages contracted otherwise than 
ifl conformity to its provisions, it confines such prohibition and decla- 
ration to marriages- contracted in England. The decisions, therefore, 
establishing the validity of such marriages, are founded upon the right 
of the parties consistently with the JVlarriage Act, to resort to the 
foreign country for the purpose of contracting their marriage, and 
upon the act itself containing no provision which renders void a mar- 
riage so contracted. (z) 

To this rule in one of its consequences, namely, that a foreign mar- 
riage, vfdid according to the law of the country where it was cele- 
brated, is good every where el8e,(a)- the only exceptions would seem 

(u) Robertson ▼. Bland, 2 Barr. 1079. 1 W. BL 334, and see Harg. Co. Litt 79 b. n. 1. 
Bnber. de Confl. leg. lib. 1, tit 3, a. 10. 2 Addama, 33. 

(«) Goernaey aeema lo hare preceded Gretna Green, at a place of refoge from the elog- 
giag prelimiuaries to marriage required by Lord Hardwicke*a Act In 1760, it it related 
that there were Teasels at Southampton always ready for five guineas to transport contra- 
band goods into the land of matrimony. Gent. Mag. 1760, p. 30, and see 6 Ves. 74. 

(i») CromptoD r. Bearcrof\, on appeal to the Ddegates. Boll. N. P. 113. 2 Hagg. C. 
R. 444, (4 E. £cc. R.) S. C. Grierson v. Grierson, 2 Hogg C. R. 99, (4 £. EccL R.) Dick. 
ens, 588, S. C. Bedford v. Varney, before Lord Northington, 1763. Brook v. Oliver, Rolls, 
17G9. 2 Hagg. C. R. 376« (4 £. Ecc. R.) Ex parte Hall, 1 Rose, 30. Harford v. Morris, 
% Oagg. C. R. 423, (4 E. Ecc. R.) See ibid. 414. 428. Butler v. Freeman, Ambl. 3U4. 

(X) 2 Hagg. C. R. 430, (4 E. Ecc. R.) See however, ibid. 443. 10 East, 282. 

(y) 2 Hagg. C. R. 390, (4 E. Ecc. R.) But see contra, per Sir W. Wynne, ibid. 443. 

(«) 1 Barge Com. 192. 2 Haggr. C. R. 423.(4 E. Ecc. R.) The laws of other countries have 
not been so indulgent to marriages celebrated under these circumstanoes. They are pronoun* 
fed invalid by Huber. do Confl. Leg. lib. 1, tit 3, s. 9. P. Voet de Sutut c. 2, s. 9, and 
Pothier, Traild du Marriage, part 4, c. 1, n. 363. See Store's Conflict of Laws, o. 5. 1 
Barre Coram. 193, where Sanchez is quoted as an authority in favour of the law as settled 
by the English cases : IHspIicet mihi haac limitatio, et credo, licdt adirent, eo^fine, ut pps- 
siiit libera absque parocho et testibus contrahere esse ratum matrimonium. Nam qui jnro 
•OD utitur oon potest dici fraudem committere, ut et ratione effectus impediatur. ** Nnllua 
videtur dolo faoere, qui jure suo utitur.** (Dig. 50. 17. 55.) Est enim f^aus liotta cnm 
oootrabentes otantur jure suo ; ergo cOm adeuntes locum tibi Don Tiget Trident anine 
ooDtrahendi absque parocho et testU)U8, utuntur jure suo, habent enim jus sic ibi oontraken^ 
^ erit firaos licita, nee el ratione effectus ac valor matrimonii impedietnr. Sanob. d» 
Matr. Kb. 3,disp. IS, n. 29. («) 2 Hagg. C. R. 390, (4 £. Eoa R.) 

April, 1845. — 4 

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34S bitbbace's wfumncz ov mtocessioh. 

to be marriages contrary to the laws of Christiamty,(6) and marriages 
prohibited by law founded upon public policy; of which latter class 
the marriages of the royal family without the imposed re8trictions<c) 
are in England the only example. Under the former class polyga* 
mous and incestuous marriages are generally included ; but as the 
latter were until very recently valid in England, if not dissolved by 
sentence in the liretime of both parties, it would be difficult to deny 
to them at least equal validity, if celebrated in a country where they 
r ♦333 1 *^® ^^^^ lawful. *The application also and extent of the 
I J doctrine are by no means easily ascertained. The writers 

on the conflict of laws would confine it to such marriages only as by 
the general consent of Christendom are deemed incestuous, as mar^ 
riages between relations by blood in the ascending and descending 
line, and between brother and sister by blood.((/) Such marriages, it 
is considered, although valid where celebrated, would be held invalid 
ifi all Christian countries : but a marriage between a man and his 
wife's sister, if good by the lex loci contractus^ would be valid else* 
where.(e) It has been admitted, that there is great difficulty in deter- 
mining where the prohibition of marriages between persons related in 
the collateral line in any degree beyond that of brother and sister, 
can be sustained, on the ground of their repugnancy to^the law of 
nalure.(/) As between Catholic and Protestant countries, the doc* 
trine is incumbered with some further difficulties, respecting the eW^et 
of papal dispensations for particular n)arriages. And it is open lothe 
objection, that a change in the law of one Christian country, by de- 
claring ceftain nuirria^es lawful, which all others deemed incestuous, 
would alter the general law by destroying the unanimity of Christian 
countries upon the subject. 

The case of marriages abroad of members of the royal family, has 
been mentioned as an cixcepiion to the rule which determines the vali- 
dilv of marriages by the lex locicontractiis. The first Marriage Act 
did not extend to marriages of the royal familv, nor to marriages 
solemnized beyond the seas. The preamble of tlie Roval Marriage 
Act recites that it was " to supply the defect of the laws then in being ;" 
and directs the king's consent to be set out in the license and register 
()f the marriage. These expressions, it has been supposed, shew that 
a marriage in this country alone was contemplated ; and the opinion 
r *384 1 ^^^ ^^^^ entertained«(gf) " *That tne Royal Marriage Act 
L J does not extend to- any marriages by any descendants of 

G^or^e the Second, contracted and solemnized bond, fde out of Great 
Brilam, and beyond the limits of British jurisdiction.** The grounds of 
this opinion are not stated in it, but some have been- assigned which 

{h) See ] Dl. Comm. 436. Grotius de Jure Belli, lib. % c. 5, a. 9. Haber de ConfL lib. 1, 
tit. 3, o. 8. 8torj*8 Conflict of Laws, c. 5. 1 fiiirgc*8 Comm. 188. 

(c) BjlQGead, ell. 

(J) See Vaiighan*a Rep. 206. Blackmore v. Thorpe, 1 Hagg . C. R. 399,(4 £. Ece, R.) 
Lord Brougham hai some expressions fayourable to this, opinion, 2 CI. & Fin. 531. 

(«) Storr's Conflict of LawF, c. 5. 

(/) I Barge*a Comm. 188. The difficulty of pronouncing for the inTalidity of such 
m&rriaffee is acknowledged by Grotius de Jnre Belli et Pucis, lib. 2, c 5, s. 13. 

Ig) Dr. Luthington and Mr. J. Richards are understood to have given this opinion upoQ 
llie queetion of the legitimacy of (he children of tlje marriage at Ron.e of the Duke of So*. 
tei and Lady Aiigueta Murray. 

Digitized by VjOOQIC 

OV VAftEUOVS ABX0A2). 248 

A> not -appear tenable. The expression, ** the laws then in being** 
mist be confined to the Marriage Act/which being limited to this 
lingdom» the remedial act must be limited to the same extent. Not 
odj, however, does this expression comprehend the previous law, so 
fer as it was unaltered by that act, but this construction is impera- 
tively demanded by the circumstance that this was the only law appli- 
cable to royal marriages: and an act to remedy a defect in the law 
must refer to the law on the subject of the act. Another reason 
assigned for confining the operation of the act to domestic marriages 
is, that the license and register are forms not necessarily attendant on 
marriages elsewhere ; and it is contended, that were any other con- 
struction to be put upon the act, marriages of the royal family abroad 
would be altogether prevented, which cannot be supposed to have 
been the desire of the legislature. But the clause directing the con- 
sent to be set out in the license or register is merely directory, and as 
neither license nor registration was necessary to the validity of these 
marriages, it can only be taken to mean that the consent shall be so 
set otit, provided the marriage be- solemnized by license and regis- 

A further exception to the rule of the universal validity of marriages 
which are valid where they were celebrated, arises from the doctrine 
<)f the Engltsh Courts, so far as it has \^en established, of the indisso- 
hbiHty oi English marriages by sentences of divorce a mncuh in 
foreign countries. Their marriage subsisting in the eye of the English 
^w, the divorced parties, during their joint lives, remain under an 
absolute incapacity to ^contract another, and such second r ^^o^ -i 
marriage, though celebrated in the country of the divorce, «• •* 

and vahd there, is invalid in England. 

' It is not easy, in the present state of the authorities, to determine 
whether this incapacity is indelible, or exists only so long as the party 
has an English domicile. In the first reported case Upon the subject, 
which occurred so lately as 1812, the law was laid down in terms 
fevourable to the former opinion, but more general than the decision 
of the case required. A man named Lolly, domiciled and married in 
England, had gone to Scotland for the purpose of procuring, and had 
there procured, a divorce a vinculo on the ground of adultery. After- 
wards, during the lifetime of his first wife, he married another woman 
in England. In respect of this second marriage, he was tried and 
convicted of bigamy. His case having been reserved for the consi- 
deration of the twelve judges, they were unanimously of opinion that 
the conviction was right, laying down, it is said, at the same time the 
general rule that a marriage contracted in England could not be dis- 
solved in a different country by any authority whatever.(i) 

Before this case, although some doubt 4iad at one time existed upon 
the 8ubject,( j) the Superior Courts in Scotland had affirmed the power 

(I) The efiect of the set upon the law of Ireland, which had then an independent le^ 
hinre, and the law of Hanover, is an entirely distinet question. See Sir J. Dillon's Trea^ 
tiseon the Royal Marriage Act, 1811. Letter explanatory of a bill in Chancery, 61ed on 
behalf of Sir Augustus ITEste, 1831. Juridical Czercitation on the case of the children of 
the Duke of Sussex, 1832. Papers elucidating the claimsof Sir Augustus D*£ste, J839. 

(i) Rex V. Lolly, 1 Russ. & Ry. C. C. 236, (1 Br. Cr. Cas.) 2 CI. & Fin. 567 n. S. C. 
I4»lly was tentenced to transportation, and actually snfFered part of the punishment 

( j) Sw Ferga«in*s Cases on Afarriage and Diforce. 

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S44 bubback's bvidsnce of mcoEssson. 

of the Consistorial Courts there, to grant a divorce a tdncula in the 
case of English parlies married in England, and having no bona fide 
domicile in ScotIi^nd.(/r) After and notv^^ithstanding Lolly's case, the 
Scotch courts continued to exercise the same power.(/) But upon the 
case of Tovey v. Lindsay(m) coming before the House of Lords by 
appeal from the Court of Session, Lords Eldon and Redesdale express 
sed their opinions that the Scotch court had not power to dissolve the • 
marriage in question, which had taken place at Gibraltar, where the 
English law prevails, between a Scotchman by birth, but having an 
r *^SP 1 ^"gl^^l^ domicile, and an English woman. It does not 
1- -I *appear whether the ground of iheir opinions was that the 

marriage was contracted under the law of England, or that the par- 
ties had an English domicile at the time of the divorce. In the imme- 
diately subsequent cases before the Consistory Court in Scotland, some 
deference was shewn to this authority ;(w) but the Court of Session 
have since reaffirmed their jurisdiction, and have held, in the case of 
parties married in England, that if there be sufficient domicile to found 
the jurisdiction of the Scotch courts, that is a residence of forty days, 
the law of Scotland ought to prevail, and that a divorce may be grant- 
ed without prpof of an actual bond fide Scotch domicile.(o) 

In McCarthy v. De Caix,(p) a Dane by birth and domicile had 
been married in England to an English woman. After their marriage 
he returned with her to Denmark, and during their continued resi- 
dence there, the marriage was dissolved by the sentence of a court in 
Denmark of competent jurisdiction- The question of the validity o^ 
this divorce came before Lord Brougham in 1831, and he held, on th^ 
authority of Lolly's case, that the marriage was not dissolved by the 
sentence of the Danish court. 

In a case in the same year before the Consistory Court of London, 
a suit was instituted by the wife of the first marriage, for the purpose 
of having a second marriage of her husband declared null. The first 
marriage took place in England, and the parties were bond fide domi- 
ciled here. The husband went to Scotland for a temporary purpose, 
and obtained there a sentence of divorce from his first wife. He then 
married a second wife in Scotland. The court decided that the mar- 
riage was null,on the ground that as the parties were at the times of the 
first marriage and of the divorce domiciled English subjects, they were 
by the English law prohibited by a personal incapacity frona entering 
r #337 1 *'"^^ ^ contract of marriage. The judge, however, 

L J expressed an opinion that the doctrine of Lolly's case had 

not been extended to the case where the parties to a marriage in Eng- 
land became actually bond fide domiciled in a foreign country, and 
were divorced by the sentence of a competent tribunal there, such a 
domicile being distinguishable from a temporary and fugitive resi- 

(k) Uttorton V. TcwbH. Ibid. 23. 55. 

(/) PoUook t. Manners, ldl3. Homfray ▼. Newte, 1814. Ferguson, 273, 374. 

(m) 1 Dow. 117. 

(fi) Ferguson, 68. 168. 209. 226. In one case, Gordon ▼. Pye, Ferguson, 276, three of 
the judges held that proof of the residence of forty days, though sufficient to give the court 
jnrisdiction, did not warrant the application of the Scotch law, but that, for that purpose, a 
real Scotch domicile was necessary. 

(0) Oldaker ▼. Goldney, Fac ColL 20tirFeb. 1834. 

( ji) 12 Rnsi. & MyL 614. 3 Hagg. £. R. 642 o., (5 £. Eoe. R.) Sa aDFiji.568o.S.C. 

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ience for the purpose of obtaining the divorce ; and he expressed his 
anxiety that his decision should not be construed to go one step beyond 
that case, nor in any manner to touch the case of a divorce a vinculo 
pronounced in Scotland between parties who, though niarried when 
domiciled in England, were at the time of such divorce bona fide do- . 
miciled in Scotland, still less between parties who were only on a 
casual visit in England at the time of their marriage, but were, both 
then and at the time of their divorce, bonA fide domiciled in Scot- » 

In the recent case of Warrender v. Warrender,(r) the House of 
Lords as a Scotch court of appeal have definitively established the 
competency of the courts in. Scotland to entertain a suit to dissolve a 
marriage contracted in England. The facts of this case did not how- 
ever call for a decision of the question whether a bond fide Scotch, 
domicile be necessary. The husband was a native of Scotland, and 
retained his domicile in that country. He was married in England 
to an English lady. The suit was instituted by him for a divorce on 
the ground of adultery committed by her in France, where she con- 
tinned to reside. At the time of their separation the husband had, by 
letter, undertaken to allow her to reside where she pleased. This 
letter was offered in evidence by the wife for the purpose of rebutting 
t)i€ presumption of law that the domicile of the husband was her domi- 
cile; but the Court of Session held that it had not this effect, and that 
they had jurisdiction to dissolve the marriage. In moving the House 
of Lords to affirm this judgment, Lord Brougham said, "In order to 
dispose of the present question, it is not at all necessary on the one 
tide to support, or on the other to impeach the authority of Lolly's 
case, or of any other which may have been determined j- ^„«q -. 
in ♦England upon that authority. This ought to be stead- ^ J 

ily borne in mind. The resolution in Lolly's case was, that an Eng- 
Itth marriage could not be dissolved by any proceeding in the courts 
of any other country for English purposes; in other words, that the 
courts of this country will not recognize the validity of a Scotch di- 
vorce, but will hold the divorced wife dowable of an English estate, 
the divorced husband tenant thereof by the courtesy, and either party 
guilty of felony by contracting a second marriage in England. Upon 
the force and effect of such a divorce in Scotland, and for Scotch 
purposes, the judges gave, and indeed could give, no opinion ; and as 
there would be nothing legally impossible in a marriage being good 
io one country which was prohibited by the law of another, so if the 
conflict of the Scotch and English law be complete and irreconcilable 
ttere is nothing legally impossible in a divorce being valid in the one 
country which the courts of tKe.other may hold to be a nullity. Lolly's 
case, therefore, cannot be held to decide the present, perhaps not even 
to affect it in principle. In another point of view, it is inapplicable, 
for though the decision was not put upon any special circumstance, 
yet in fairly considering its application we cannot lay out of view that 
the parlies were not only married but really domiciled in England, 

(q) Conway v. Beazley, 3 Hafrjf. E. R. 630. 653, (5 E. Ecc. R.) 

(r) 2 CI. Sl Fin. 4S8. 9 Bliph. N. S. 89. 2 Shaw &. Mac. 209. S. C. Warrender v. Boa. 
caves, Fue.Col 3dth Jooe, 1834 


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840 hubback'b evidbnoe of sugoBSSxoff. 

and had resorted to Scotland for the manifest purpose of obtaining a 
temporary and fictitious domicile there in order to give the Scotch 
courts jurisdiction over them, and enable them to dissolve their mar- 
riage ; whereas here the domicile of the parties is Scotch, and the 
proceeding is bond fide taken by the husband in the courts of his own 
country to which he is amenable and ought to have free access, and 
no fraud upon the law of any other country is practised by the suit. 
It must be added, that in Lolly^s case the English marriage had been 
contracted by English parties, without any view to the execution of 
the contract at any time in Scotland : whereas the marriage now in 
question \«;as had by a Scotch man and woman whom the contract 
made Scotch, and who therefore may be held to have contemplated 
its execution and effects in Scotland." But although Lord Brougham 
thus considered Lolly's case inapplicable, he took occasion to express 
at considerable lengin the difficulty which he felt in acceding to the doc- 
trine of that case, and pointed out several consequences of it productive 
r ♦339 1 ^^ confusion and *inconvenience. After referring to the 
»- J Scotch authorities, he said, that they establish clearly the 

proposition in its largest sense, that the Scotch courts have jurisdic- 
tion to divorce, when a formal domicile has been acquired by a tem- 
porary residence, without regard to the native country of the parties* 
the place of their ordinary residence, or the country where the mar- 
riage may have been had. ^ 

Lord Lyndhurst avoided the expression of any distinction between 
a formal, and a bona fide domicile. In that case he considered the 
question of domicile to he 'clear, and the place where the adultery 
was committed being, in his judgment, immaterial, and the course of 
decision in Scotland being uniform, he thought it impossible that any 
serious doubt can be entertained with respect to this judgment. Thfey 
were to decide according to the law of Scotland. Upon the decision 
in Lolly's case, he pronounced no opinion. If it were correct, and 
any inconvenience should result from the conflict of the law of the 
two countries, the legislature must apply the remedy. Those w;ere 
considerations which ought not to lead the House to reverse thejudg- 
ment in this case, if they were satisfied of its correctness. For these 
reasons he advised their lordships to affirm the judgment. 

This judgment, it is to be observed, establishes nothing with respect 
to the validity, bij the English law, of a Scotch divorce a vincufoy of 
parties married in England : and if that law was correctly laid dowa 
in Lolly's case, that the indissolubility of the marriage by the fex loci 
contractiiSf rendered it indissoluble every where; or if the Scotch 
judges were right in holding that it is unnecessary that the parties 
should be bona fide domiciled in Scotland, but that a residence for a 
sufficient time to give the court jurisdiction is all that is requisite to 
enable it to grant a divorce; then the laws of the two countries are 
in irreconcilable conflict. If, relying upon the validity of the sen- 
tence, one of the divorced parties contracts a second marriage, there 
will be two wives or husbands of this party living at the same time, 
one of Tvhom is deemed the lawful consort by the law of England, and 
the Qther by the law of the country of the divorce ; and there may be 
r ^OAQ 1 ^ family of children by the second marriage, which are 
L J ♦legitimate in the country of the divorce, and illegitimate 


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or MAmEuem amoaj)* UT 

io England : whilst the children of the first nmrriage, born after the 
divorce, will be legitimate in the latter country, but illegitimate in the 

The doctrine adverted to in Conway v. Beazel6y, that the law by 
which these questions should be determined is that of the actual domi* 
cile, to the exclusion both of the lex loci contracliLS, and of the law of 
the country in which the parties have acquired merely such a domi- 
cile as founds the jurisdiction, is supported in a recent work by several 
arguments deserving of attention.(/) 

The foregoing observations have no reference to cases in which the 
first marriage took place in a country, between parlies domiciled in a 
country, by the law of which it was dissoluble. When parties domi- 
ciled Iff Denmark, were married there, and afterwards divorced a 
vincuJo matrimonii^ according to the Danish law ; and tl>e husband 
married a second wife, such second wife was allowed by the Prero- 
gative Court to administer to the husband.(w) 

Th^ principle which refers questions respecting the validity of mar- 
riages to the lex loci coniraclUst in its converse application — that a 
marriage void according to the lex loci, is also void by the English 
law, is generally, but not universally, recognized. (u) 

In Scrimslure v. Scrimshire,(«)) a marr%ge in France, between two 
English subjects, minors, had been declared null by a sentence of the 
Parliament of Paris, from the circumstance of the solemnization hav- 
ing taken place in a private house, by an unauthorized priest, and 
without the consent of parents. On a question respecting its .validity, 
in the Consistory Court of London, Sir Edward Simpson considered 
that it must be tried by the law of France, and admitting the sentence 
not as a bar,(a;) but as evidence of the French law, held the marriage 
to be void. And in subsequent cases, marrisE^es in foreign countries 
between ♦Briiish subjects, have been held invalid here, by r ^g - • , 
reason of their nullity according to the lex loci contrac- •■ J 

it has been endeavoured to distinguish between cases where the 
panies, though British subjects, were domiciled in the country, and 
those in which they were only temporarily resident there, and had no 
animus mor an di : and a further distinction has been taken between 
marriages (at least of the latter description of persons) .which have 
been soleninized according to the foreign ceremonial, and those in 
which the parties have conformed, as far as possible, to the law of the 
original country. 

For the first distinction, the principal authority is the cage of Har- 
ford V. Morris,(2) in which a marriage was held good, though void 
according to the law of the country where it was celebrated. It was 
said to be clear, that a transient residence by coming one morning 

(f) 1 Barge*! Comm. fiSO. And see Story*« Cnnflict of Laws, c. 7* 

(s) Ryan o. R jaxi, 3 Phillim. 332, (I £. Ecc R.) 

lO See 2 Hagg. C. R. 391. (4 E. Ecc, R.) (w) 2 Hagg. C. R. 395, (4 E. Ecc R.) 

(x) But see Roach ▼. Gordon, 1 Ves. Sen. 159. 

(y) Middletoo ▼. Janverin, 2 Hagg. C. K. 437, (4 E. Ece. R.) Lacon v. Higgina, 3 Stark. 
N. P. C. 178, (14 E. C. L. R.) Dow. & Ry. N. P. C. 38, S. C. (16 E. C. L. R.) 

(z) 2 Hagg. C. R. 423, (4 Ecc. R.) The sentence in this case was reversed on other 

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^41 hubsacxk's wfuaoKB or mnxaueion* 

and going away the next, did not give jurisdiction to the lex loci^ and 
cause it to. take cogbizance for this purpose of a marriage then and 
there celebrated.(a) Sir Georce Hay thought that a marriage at 
Calais, by parties who went thither from this country, and came away 
the next day, would be valid, if good by the English law.(A) This 
distinction was also recognized by Lord Stowell in Ruding v. Smith, 
, and influenced his decision of that casa(c) But it is rather opposed 
by the case of Middleton v. Janverin, and by the opinion of Lord 
Hardwick^, which will presently be stated. 

On the second distinction it has been said that when the parties 
have recourse to the form of solemnization established in the country 
in which they are, their mutual intention must be presumed that it 
should be a marriage 6r not according to the law of that coi(htry.(rf) 
But the converse doctrine which is here implied, that a disregard of 
the lex loci, and a. conformity or a qy pr^s conformity to the law of 
r *S42 1 ^^^ original country would *exempt the marriage from the 
^ J application of the lex loci contracids is far from being esta- 

blished. In Butler v. Freeman,(e) the parlies, who were both Eng- 
lish, eloped from this country to Antwerp, where they were marrj^ 
according to the rites of the Church of England, yet tord Hardwicke 
said that the marriage woAi not be valid here unless it was so by the 
laws of the country where it was had. And in Lacon v. Higgins,(/) 
a marriage between British subjects at Versailles, solemnized by a 
clergyman of the Church of England, according to the rites of that 
church, .was held to be invalid by reason of its nullity by the French 

An opinion has been intimated*that if the lex loci contractia impos-. 
ed any highly unreasonable restraints upon marriage, it might perhaps 
be held in England that the marriage of British subjects in a manner 
conformable to the general law of England was valid.(f) Lord Sto- 
well supposed the case of a foreign law fixing the marriageable age 
at an advanced period of life, as forty, and said that it would be a 
question whether the marriage of two British subjects, not absolutely 
domiciled abroad, should be invalidated on that ground.(A) 

The case before him (Ruding v. Smith), the learned judge thought 
as nearly entitled to the privileges of strict necessity as could be ; the 
husband had attained the age of twenty^one years, but being under 
thirty, the consent of his father was required by the Dutch laws : the 
wife was a minor without any legal guardian ; and the decision was 
therefore founded partly on the insuperable difficulty of obtaining any 
marriage according to the Dutch law.(i) The stat. 57 Geo. 3, c. 
2\{j) recognizes the principle of the validity from the necessity of the 
case of marriages invalid under other circumstances. 

On the same high authority of Lord . Siowell, the necessity of the 
case arising from the impossibility or extreme difficulty of compli- 

(a) Ibid. 431. (5) tbid. 435. (c) Ibid. 389. 

{d) % Hag?. C. R. 411. 393, (4 Ecc. R.) See also 2 Pbimm. 385, (1 E. Ecc R.) 

(e) 3 Ambler, 303. 

(/ ) 2 Stark. N. P. C. 178. (14 E. C. L. R.) 

(g) 2 Jacob's Roper*s Husband and Wife, 499. 

(A) Ruding T. Smith, 2 Hajrg. C. R. 371, (4 E. Ecc. R.) 

(t) 8 Uagg. C. R. 423, (4 £. Ecc. R.) (j) Cited ante. 

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ov MAtBuiwi untOA^ 249 

9nce with HbB forms prescribed by the lex loci might exempt p • ^^ . „ , 
•a marriage frotn its operation. And this impossibility or L J 

difficulty might consist in the circumstance of the lex loci demanding 
an abandonment of religious opinions. It being the practice of man- 
kind to consecrate theii marriages by religious ceremonies, the differ- 
ences of religion in all countries which admit residents professing 
TeligioDS essentially different, unavoidably introduce exceptions in that 
matter to the universality of the rule which makes mere domicile the 
constituent of an unlimited subjection to the ordinary law of the coun- 
try.(it) If from legal or religious difficulties the ceremony could not 
take place according to the law of the country, the law of England 
did not say that its subjects should not marry abroad.(/) 

Conformably to this principle the House of Lords held valid a mar- 
riage between Protestants celebrated at Rome by a- Protestant clergy- 
man. Lord Eldon at first intimated a doubt respecting the^ validity 
of the marriage, and said that where persons were married abroad it 
was necessary to shew that they were married according to the lex 
loci^ or that they could not avail themselves of the lex lociy (A* that there 
was no lex loci. Afterwards a Roman Catholic clergyman proved at 
the bar of the House that at Rome two Protestants could not be mar- 
ried according to the lex loci, because no Catholic clergyman would 
celebrate marriage between two Protestants ; and the marriage was 
held to be valid.(m) 

Certain cases remain to be examined in which the marriages of 
English subjects celebrated upon a*foreign soil, and not falling within 
any of the foregoing exceptions, are considered in the English Courts 
as governed not by the lex loci, but by the law of England apart from, 
the general marriage acts. The cases alluded to are those of the mar- 
riages of British siU)jects m British factories abroad, in the chapels or 
houses of British Ambassadors, and in foreign countries in the military 
occupation of British troops. 

•Lord Stowell said of marriages in the British factories r ^g . - -. 
at Lisborn, Leghorn, Oporto, Cadiz, Smyrna, Aleppo, 1^ J 

(some of those mtablishments existing by authority under treaties, and 
others under indulgence and toleration,). that they are regulated by the 
law of the original countrv, to which they are still considered to belong. 
Ad Englishman in the Mogul Empire was not bound to consult the 
Koran for the celebration of his marriage. There was a jus gentium 
upon this matter, a comity which treated with tenderness, or at least 
with toleration, the opinions and usages of a distinct people in this 
transaction of marriage.(7i) 

The Stat 4 Geo. 4, c. 67, recites that the British factory at St. 
Petersburg was by a manifesto of the Emperor of Russia declared to 
be abolished from the 20th of June, 1807, and enacts that all mar- 
riages (both or one of the parties thereto being subjects or subject of 
of this realm) that have since the 20th of June, 1807, been solemnized, 
or that should thereafter be solemnized at St. Petersburgh by the 
chaplain to the Russia Company, or by a minister of the Church of 

Ot) 2 n^gg. a R. 384, (4 E. Eec. R.) {I) 2 Hagg. C. R. SlU, (4 E. Eco. R.) 

{m) CniiM Dign. 276, and see farther on the neocssitr of ProtestaDts abjurinflr Uieir 

rtligfion in order to enable them to marry according to the law of tlie Papal States, Swift t. 

flvd, i BAgg. 139. 153, cited posL {n) 9 Hagg. C. R. 385, 366, (4 E. Ecc. R.) 

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HUBBAOX'8 muamoB or nrooBssioii. 

England, officiating instead of such chaplain in the chapel of the said 
Russia Company, or in any other place before witnesses, should beaa 
good and valid in law, and so deemed in the British dominions, as if 
the^same had been solemhized before the abolition of the said factory. 

The Stat. 3 & 4 W. 4, c. 45, after reciting that the British factory 
at Hamburg was dissolved in 1808, declares and enacts that all mar- 
riages of parties subjects, or parties one of them being a subject of 
this realm, which bad been solemnized at Hamburg sii^ce the abo- 
lition of the British factory there, by the chaplain appointed by the 
Bishop of London, or by any ministers of the Church of England 
officiating instead of sucn chaplain in the episcopal chapel of the said 
city, or in any other place before, witnesses, according to the rites of 
the Church of England, shall be good and valid in law to all intents 
and purposes, as of the same had been solemnized in the British 
Factory at Hamburg before the abolition thereof.(o) 
f ♦345 1 *With respect to marriages in ambassadors' chapels 
|> ^ abroad, Lord Stowell said, he was not aware of any 

judicial negotiation upon the point, but the reputation which the val- 
. idity of such marriages had acquired, made such a recognition by no 
means improbable if the question were brought to judgment. And 
alluding generally to th^se kind of marriages, he said, *^ if the practice 
had been sanctioned by long acquiescence and acceptance— of the 
one country which had silently permitted such marriages, and of the 
other which had silently accepted them ; the courts of this country 
would not incline to shake their validity upon large and general theo- 
ries, encountered as they were by numerous exceptions in the practice 
of nations.(p) An opinion wa^ in one case expressed by Lord Ellen- 
borough that the validity of marriages in ambassadors' chapels de- 
pended upon the lex loci contraMs. He said that these nnamages, if 
made by the allowance of the foreign state, would be good marriages 
in those countries ; but that if not a good marriage in the place where 
it was celebrated, it could not be a g<^ marriage any where.(oJ Lord 
Eldon, however, is* said to have given his opinion in the House of 
Lords, that there was no doubt about the validity of su^ marriages ;(r) 
and the question is now set at rest by the statute which will presentlx 
be cited. 

Places in the military occupation of British troops, have been con- 
sidered to be, for the purposes of British marriages^ subject to the 
English law. It was partly upon this principle that the n»arriage in 
St Domingo of a British soldier of the army there, with an English 
woman, the widow of another, was held valid j(«) Lord Ellenboroogh 
intimating an opinion that the king's troops would carry with them 
the law of England, civil and ecclesiastical.(0 And the same reason ' 
influenced the decision that a niarriage between two British subjects 
at the Cape of Good Hope, when that place was occupied by English 
troops under a capitulation, was vajid, notwithstanding its nullity by 
the Dutch laws, which governed the place.(u) Lord Stowell, also, 

(o) Interrogatories to prove a marriage at Hamburg which had lieeti celebrated before 
the abolition of the fiictory are inaerted in the Appendix, 
(p) 3 Hagg. C. Hi 371. 386, (4 E. Ecc. R.) (9) 10 East, 286, 

(r) Jacob*! Roper'a Husband and Wife, toI. 2. 497. 
(«) Rex ▼. Brampton, 10 East, 283. (0 Ibid. 287. 

(tt) Rttding T. Smith, 2 Hagg. C C. 387, (4 E. Eco. R.) 

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in expressing ♦an opinion of the validity of a marriage/r ^^aa -i 
celebrated by the chaplain to the forces, between an officer ^ -* 

of the army of occupation in France, and an Englishwoman, said that, 
the marriase, though void according to the French law, would be 
supported here, on the ground that under the circumstances, the 
parties were not French subjects under the dominion of the French 

The Stat. 4 Geo. 4, c. 91, recites, that it was expedient to relieve 
the minds of, all his Majesty's subjects from any doubt concerning the 
validity of marriages solemnized by a minister of the Church of Eng- 
land, in the chapel or house of any British ambassador or minister 
residing abroad within the country to the court of which he is accred- 
ited ; or in the chapel belonging to any British factory abroad, or in 
the bouse of any British subject residing at such factory ; as well as 
firom any possibility of doubt concerning the validity of marriages, 
solemnized within the British lines by any chaplain or officer, or other 

Ejrson officiating under the orders of the commanding officer of a 
ritish army serving abroad ; and it then declares and enacts, that 
all such marriages as aforesaid shall be deemed and held to be valid 
in law, as if the 'same had been solemnized within his Majesty's 
dominions, with a due observance of all forms required by law. 

It will be observed, that the protection of this act is extended only 
to such marriages in factories and ambassadors' chapels, as are per- 
formed by clergymen of the Church of England, although no form of 
solemnization is made necessary. The validity of marriages other- 
wise performed is not touched by the act, and will depend upon the 
previous law. Marriages within the British lines may be valid by • 
the act, although performed without either ritual or clergyman. 

Before this statute it was considered, that marriages m ambassa- 
dors' chapels, did not acquire any validity from the place of celebra- 
tion, unless the parties were subjects of the ambassador's country ;{w) 
but it is not expressly required by the statute, that *eiiher r ^^aj -i 
of the parties should be a British subject; although this ^ ^ 

construction is countenanced by the preamble, and perhaps demanded 
by reasons derived from international law. In cases within the stat- 
utes before cited relating to marriages at St. Petersburg and Ham- 
burg, one at least of the parties must be a subject of this country. 

In the Waldegrave Peerage case, the claimant's parents were mar- 
ried at Paris, on the 3rd October, 1815, whilst that city was possessed 
by the army of occupation. The parlies were both English, and Lord 
Waldegrave was a lieutenant-colonel, and in command of a regiment. 
The marriage was solemnized at his quarters, and within the British 
lines, by a clergyman of the Church of England, who had a royal 
commission as chaplain to the forces, but without orders from the 
commander of the division to officiate at this marriage. 

It was contended, first, that the principle upon which marriages 
within the British lines^are valid, is the necessity of the case arising 
from the interruption of the business of the ordinary functionaries and 
tribunals of the country; and that here there was no such interruption 

(9) Bam ▼. Farrar, 2 Hag^.C. R 369, (4 E. Ccc. R.) 

(10) Pertreb t. Tondcar, 1 Hagg. C. R. 136, (4 £. £cc R.) and iee Ltcy t. Diokintoo, 
flikL 386, o. 1 Eip. N. P. C. 353. 

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or necessity, the French king's authority having been thenestablished^ 
and the civil tribunals and municipal institutions then performing their 
ordinary functions ; and secondly, that to bring the marriage within 
the terms of the act. 4 Geo. 4, c. 91, it was necessary that it should 
have been celebrated by the orders of the officer, superior in command. 
The Lord Chancellor, however, thought that the cirpumstances of the 
marriage brought it within the protection of the statute; and that 
there was no foundation for the argument that that was to be so con- 
strued as to render it necessary that the marriage should be by the 
orders of the commanding officer. Lord Brougham concurred*, and 
the claim was allowed. (x) 

Lastly, it must be observed, that it will not always be easy to ascer- 
tain whether the particular case falls within any of the exceptions 
r 4jg^Q 1 which havis been enumerated, so as to render the mar- 
"• J riage ♦valid, notwithstanding its want of conformity to the 

lex hci; and in the clearest cases, it is only as regards the English 
courts, that the validity of such marriages can be depended upon. la 
the country where they took place, and elsewhece aoroad, a different 
view of them may be taken. And, therefore, in the words of Lord 
Stowell, " it is certainly to be advised, that the safest course is always 
to be married according to the law of the country, for then no question 
can be stirred.*'(y) 

The vajidity of marriages abroad beinc thus, with the exceptions 
which have been noticed, tried in the English Courts by reference to 
the lex hci contractus, it may be useful next to inquire into the pro- 
visions of those foreign laws a knowledge of which is material in 
• questions before our own courts. The cases will first be examined in 
which the lex hci is founded upon the English law, as it prevailed 
before Lord Hardwicke's act. 

The particulars in which the matrimonial law of Ireland differs 
from that of England, are to be wholly sought for fn legislative enact- 
ments. The substratum of the law of marriage is the same in both 
countries ;(z) but this was visible longer and more of it still remains in 
Ireland than in England. 

Lord Hardwicke's act did not extend to Ireland, and with an ex- 
ception introduced by the Irish act of 12 Gteo. 1, c 3, to the effect that 
a marriage after consummation should not be set aside on the ground 
of a pre-contract not followed by consummation, the old law respect- 
ing matrimonial contracts subsisted until the power of enforcing them 
was taken away by stat. 68 G. 3, c. 81. 

By the Irish apt 9 G. 2, c. 11, marriages and matrimonial cpntracts 
by minors, without the paternal or other consent therein mentioned, 
may be annulled, if the parties, or their parents are possessed of pro- 
perty to a specified amount and the suit for nullity be commenced 
within a year after marriage, (a) 

r ♦349 1 *^" ^^^ marriages of Protestant Dissenters in Ireland, 
^ J there are two Irish statutes, the first of which 1 1 Geo. 8, 

c« 10, s. 3, after reciting that several dissenting Protestants, scrupling 
to be married according to the form of ceremony prescribed by the 

is) Ma Dom. Proo. l5Ui July, 1837. (y) 8 Uagg. C. R. 391 , (4 E. Eco. H.) 

. (s) 1 AddtuM, 65, (3 E. Ecc. R.) 
ifl) See Rezv. Jtoobe, Ry. & Moo. 140, (21 JL t. L.R.) 

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established church, did therefore freauently enter into noatrinrionial 
coQtracts, in their own congregations oefore their ministers or teach- 
ers, and thereupon lived together as husband and wife, enacts for the 
ease of such persons, that they should not be prosecuted in any eccle- 
siastieal court by reason of their entering into such contracts, or living 
together ; provided they and the minister or teacher took the oaths, 
aad subscribed the declaration according to the stat 6 Geo. 1, c. 5. 

The next statute on the subject is the 21 & 22 Geo. 3, c. 25 (Iri'sh,) 
which recites that the removing any doubts that might have been 
entertained concerning the validity of matrimonial contracts or mar- 
riages entered into by Protestant dissenters, and solemnized by Pro- 
testant dissenting ministers or teachers, would tend to the peace and 
tranquillity of many Protestant dissenters and their families. It then 
iedares and enacts, that all matrimonial contracts or marriages tAere- 
iafare entered into between Protestants Dissenters, and solemnized by 
Protestant dissenting ministers or teachers, should be good and valid, 
and that all parties to such marriages, and all persons claiming under 
them, should in virtue of such marriages be entitled to all rights and 
benefits therefrom, in like manner as if such marriages had been sol- 
emnized by a clergyman of the Church of Ireland. 

The marriages of Protestant Dissentera in Ireland at the present 
day stand therefore upon a similar footing as regards their validity, 
to those of Quakers in this country before the late Marriage Act By 
one statute they are exemptecK from ecclesiastical censQre, but any 
recognition of their validity is carefully avoided. The stat. 21 & 22 
Geo. 3, c. 25,(6) is retrospective only. It has indeed been thought 
that before this statute the marriages of Dissenters if solemnized 
according to their own rites, and if both parties were of the same per- 
suasion, were good to all civil effects : for instance, to support an 
ejectment where legitimacy came in question, or an action for crimi- 
Bal conversation : but that if the parties came to entitle themselves to 
any rights in the Ecclesiastical *Courts they liiust prdve r ^oka -i 
a marriage according to the ecclesiastical law.(c) No I- J 

authority is stated for the limitation of the proposition to the mar- 
riages of Dissenters according to their own rites. If the Irish Tolera- 
tion Act (which does not in this respect differ from the English) had 
any effect upon those marriages, it surely would have been to render 
them no longer amenable to ecclesiaslial reprehension ; but if this had 
been so, the stat 11 Geo. 2, c. 10, s. 3 would have been unnecessary. 
It has been seen that such an operation has been denied to the English 
Tderation Act in the case of Hutchinson v. Brookebanke,((2) and it 
is impossible to contend that either act would be construed to make 
valid marriages which it did not legalise. The only remaining found- 
ation for that measure of validity ascribed to such marriages is the 
contract per verba de prcesenti, 0h\ch is not dependent upon the reli-^ 

ipous dissent of the parties, although it may be comprehended in the 
orms which they use. 

After several Irish statutes passed to prevent clandestine marriages 
of persons of fortune and intermarriages between Protestants and 

(i) Sopnu {e) Dr. Brown's CitiI Law, Tol I , n. 75, n. 

(^3LeT.376. See aln 3 Swaoft 490. 3 Mer. 405. 

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&54 ROBBAOK'b SVIDlllOS OF «VCeE88IOll« 

CathoIics(«) the Irish stat. 19 Gea..2, c. Id enacted that every mar- 
riage that should be celebrated after the Istof May» 1746, between a 
Papist, and any person who had been or had professed him or herself 
to be a Protestqnt at anytime within twelve months before such mar* 
riage, or between two Protestants, if celebrated by a Popish priest, 
should be absolutely null and void without any process, judgment, 
or sentence of law whatsoever. A subsequent stat 32 Geo. 3, c«v21, 
admitted of marriages between Protestants and Catholics, but pro- 
vided that neither Protestant Dissenting ministers, nor Popish priests 
should celebrate marriage between Protestants of the established 
churqh and Roman Catholics. 

By Q^previous statute(/) celebration by a Catholic priest of mar- 
riage between Protestant, or between a Protestant and a Papist was 
made a capital felony, and other penalties were imposed by different 
r *351 1 statutes. (£") But the penal part of all these statutes is now 
*• J ^repealed by stat 3 & 4 Wm. 4, c. 102, yhich however 

provides that the act was not to give validity to any marriage cere- 
mony not valid under the existing law. Marriages therefore by Catho- 
lic priests are still invalid, if either of the parties be Protestant, 
although the priests are no longer punishable for celebrating them. 
The validity of such marriages between Papists depends upon the 
canon law, and seems to be tacitly acknowledged by the above acts.(A) 

Under the act of 19 Geo. 2, strict proof of rrotestantism is required 
to invalidate a marriage,(i) and if it ^^s contracted whilst the penal 
laws were in force against Catholic clergymen celebrating marriages 
lo which a Protestant was a party, there is a strong presumption that 
the priest before solemnization satisfied himself of the Catholicism of 
the parties.(^') 

In a case m an English Ecclesiastical Court, where it became neces- 
sary to take evidence of the Irish law of marriage between Catholics, 
it was deposeid by one jrentleman at the Irish bar : " That there is no 
restriction of time or place as to Catholic maniages in Ireland, a pri- 
vate house is as good as a church, and the afternoon or evening as 
any cajnonical hour. The marriage however must be by a Roman 
Catholic priest, or a person in orders (for a Protestant minister will 
do as well,) and according to the form of the Roman Catholic ritual." 
But by the evidence of another barrister : ** It may be celebrated by 
. a Roman Catholic priest, or a priest of any other denomination. But 
it roust be by the Roman Catholic form, or at least some form that 
unites the parties in the state of matrimony.*'(*) 

It is not very easy to see what greater validity could be imparted 
to a marriage between Catholics by its celebration in the presence of 
a Protestant dissenting minister, or how for this purpose he could be 
p ^gg2 1 1^8^^'y distinguished from a layman. It such *is the law 
i ^ -^ it may possibly proceed^) the ground that some religious 

ceremony being by the creed of the parties essential to constitute the 

(«) 9 Wm. 3, c. 3. 3 Anne, e. 6, s. 5. 9 Geo. 3, c 11 (Irieh.) 
(f) 12 Geo.}, c. 3. B. I (Irith.) (g) 33 Goo. 3, c 21 (Irish.) 


(t) Braee ▼. Burke, 3 Add&ms, 471, (3 E. Ece. R.) See alM> Dowlinr y. ConiUble, Iriih 
Term Rep. 859. (j) Per Sir John NichoU, 8 Addtms, 476, (2 £ Ecc R.) 


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marriage contract, the presence of a minister of religion by iheir 
directioD is peculiarly good evidence of their matrimonial intention, 
aod of their oeing in earnest in their expression of consent. 

It was held at Nisi Prius, in England, that evidence of a marriHge 
in Ireland by a dissentixig clergyman was sufficient without prod* of 
the law of Ireland.(/) The validity has also been established of a 
marriage in Ireland celebrated by a clergyman of the establishment 
ia a room of a private hou8e,(m) and of the marriage of a minor with- 
out the consent of parents or guardian.(n) 

Bat where thd marriage was under a license from the Archbishop 
of Dublin authorising the clergyman to perform it at the usual canon* ^ 
icd hour and plaee,-it was considered that the marriam having been 
io a private house waa void by reason of non-compliance with the 
license in reapect of place.(o) 

The marriages of British subjects in most of the British colonies or 
settlements are also govern^ by the English law, before the stat. 26 
Geo. 2, c 38, except so far as it is varied by the law of the particular 

Upon this prmciple a marriage between two British Psotestant sub- 
jects celebrated at Madras in a private room, by a Portuguese Roman 
CathoUc priest, according to the Catholic form in the Portuguese 
language, was held to be valid, although without the license of the 
governor which it was the practice to ODtain.(p) 

Scotcbmen in India have b^n held to have English r * ^^^g -i 
domicile,(9) •and their marriages in thatisountry by Pres- ^ * 

bjterian ministers, whose orders are not acknowledged by the English 
law, were upon the imperfect footing of contracts de pr^Bsenti before 
Lord Hardwicke's act. But by the stat. 68 Geo. 3, c. 84, after recit- 
iag that doubts had arisen concerning the validity of marriages which 
bM been had and solemnized within the British territories in India by 
ordained ministers of the church of Scotland, and it was expedient 
that such doubts should be quieted, and that the law respecting such 
marriage should be declared for the future, it was declared and enact* 
ed, that all such marriages should be of the same force as if solemni* 
zed by clergymen of the church of England. It was, however, pro* 
vided with respect to future marriages thus celebrated, that both or 
one of the parties should be members or a nicmber of thp church of 
Scotland, and should, before the marriage, make a declaration in writ- 
iiw to that eSecu 

In Tovey v. Lindsay,(r) the marriage took place at Gibraltar, 
between a Scotchman and an Englishwoman. The wife asserted 
that it was solemnized according to the rites of the English church, 
but the husband alleged that' it was after .the manner of the church of 
Scotland, and by a perapn not in orders according to the English law. 
The form appears to have been thought immaterial, and its validity 

(2) Lancaster Aiaizes, 1814, Per Marshall Serjeant, EvaDi Stat. 160 n. 

(■•) Smith ▼. Maxwell, Ry. & Mo. 80, (31 E. a L. R.) 1 Carr. & P. 271. S. C. (11 E. 
C L. R.) (n) Rei v. Jacobs, Ry. & Mou 140, (21 E. C. L. .) 

(•) Loocaater Aaaiies, 1823. In bi^my, per Baylcy and Hofroyd, Ja. 

(p) UotoBf T.Tea«iale, 2.Marah. 243, (4 E. C. L. R.) 7 Taunt, 830, (2 E. C. L. R.) 

(q) Monroe t. Dooglaa, 5 Madd^ 379. Bruce v. Brnce, 6 Bro. P. C. Ed. TomU 566. 2 
Boa. 4 Pol. 299 n. (r) 1 Dow. 133,;39, 

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856 RUBBACK*8 BVIDENOE OV 8tT00fi88I0H. 

was not questioned, but it was admitted that the law applicable to it 
was the law of England.(5) 

The law bf marriage in several of the British colonies has been 
altered by acts passed by the colonial legislatures. The following is 
a siHnmary of these Enactments: — In Jamaica, an act of. 33 Car. 2, c. 
18, passed to prevent marriage without the previous authority of 
banns or a license granted by the governor. In Barbadoes, two 
acts with similar provisions were passed in 1734 and 1739. . In An- 
tigua, an act of 24 Car. 2, c, 21, validates marriages before a justice 
of the peace in the absence of an orthodox beneficed minister. In 
Dominica, an act, No. 35, s. 7, 29th September, 1802, declares valid 
r ^gr4 -1 marriages before a justice of the *peace when no Profes- 
*• *! J tant clergyman could be found. In Grenada, an act, No. 
101,8. 31, 11th December, 1807, provides that marriages must be 
solemnized by the rector, of one of t}ie cures in the island, after due 
publication of banns in the church of the parish wherein the female 
resides, or bv virtue of a license from the governor or commander-in 
chief, and that marriages without such banns or license should be 
void. In Upper Canada, an act of 33 Gea 8, c 5, confirms marriages 
previously contracted before any magistrate, or commanding officer 
of a post, or adjutant or surgeon of a regiment, acting as chaplain, or 
any other person in any public office or employment ; and provides, 
that until there should be five persons or ministers of the church of 
England within the district, and if neither of the parties lived within 
eighteen miles of any parson^ their marriage might be sol^panized by 
a justice of the peace in manner prescribed. A subsequent act of 38 
Geo. 3. c. 4, empowers the minister and clergymen of any congrega- 
•tion of persons professing to be members of the church of Scotland, or , 
Lutherans, or Calvinists, who shall be authorized in manner therein 
directed, to celebrate matrimony between parties, of whom one shall 
have been a member of such congregation at least six months before 
^ the marriage. In Nova Scotia, an act of 33 Greo. 3, c. 5, confirms 
marriages theretofore solemnized before magistrates and other lay 
persons, in the presence of one or more credible witness or witnesses 
where the parties have cohabited ; and a subsequent act 35 G^eo. 3, c. 
2, authorises the governor to appoint a proper person within any 
township or district wherein no regular clergyman resides, to solem- 
nize marriages between parties, both of whom shall have resided one 
month at least within such province or district, and declares valid 
such marriages. In New Brunswick, an act 8 Geo. 4, c. 9, prescribes 
the mode of publication of banns and the celebration of marriage by 
a justice of the peace commissioned by the governor, cler- 
gyman of the church of England resides and officiates in the parish, 
n Prince Edward's Island, an act 6 Geo. 4,^. 6, s. 1, declares valid 
marriages previously solemnized by any clergyman or minister of the 
gospel, or by any justice of the peace or otlSr lay person, either by 
virtue of a license from any governor, lieutenant-governor, or com- 
mander-in-chief, or by publication of banns, or otherwise, where the 
r *355 1 solemnization Was in the presence of one *or more credi- 
^ -> ble witness or witnesses, and where the parties have coba- 

(•) See JephMQ ?. Riioii, 8 Knappi 150. 

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bited together ; and provides, that all clergymen and ministers of the 
gospel, of whatever sect or denomination, officiating as such in any 
colligation, and all others whom the governor, lieutenant governor, 
or commander-in-chief of the island may thereto authorize, shall there- 
after have power and authority to solemnize marriages, either by 
license as aforesaid or- banns, and it subjects to a penSty, ministers 
who celebrate marriages without such license or banns, or marriages 
between parties, of whom one or both shall be under twenty-one years 
of age, having parents or guardians living, without the consent of 
such parents or guardians, and provides, that such marriages without 
such consent, shall be null and void. 

Upon the subject of marriages in Newfoundland, the British stat. 
57 Geo. 3, c. 51, after reciting that a doubt had existed whether the 
law of England, requiring rengious ceremonies in the celebration of 
marriage to be performed by persons in holy orders, for the perfect 
validity of the marriage contract enacts, that all marriap^es in that 
colony should be celeorated by persons in holy orders, and all other 
marriages are declared void. But it was provided, that nothing 
therein contained should extend to any marriages that might be had 
under circumstances of peculiar and extreme ditiiculty in procuring a 
person in holy orders to perform the celebration, and in which the law 
might on thai account otherwise determine on the validity of such 
marriages. There is an exception of marriages before 1818, and the 
marriages of Quakers and Jews. This act was repealed by stat 5 
Geo. 4, c. 68, which empowers teachers or preachers of religion, 
licensed by the governors or a secretary of state, to celebrate mar- 
riages in places within the colony where, by reason of the difficulty 
of internal communication, it might be inconvenient to attend at a* 
church or chapel of the establishment. The latter act was to remain 
in force for five years only, but has since been continued by stats. 10 
Geo. 4, c. 17, and 2 & 8 Wm. 4, c. 78. 

The matrimonial law of Lower Canada and of St. Lucia, is, except 
so far as it has been altered bv statutes, that which prevailed in France 
before the Revolution. T&e forms of the Council of r ^g.^ ^ 
♦Trent were not received in that country, but it was "■ 1 

required, that after publication of banns, marriage should be celebra- 
ted by the curd in the presence of four witnesses, and according to 
the form prescribed by the church.(0 By several statutes of the 
legislature of Lower Canada,(u) marriages by Protestant ministers 
and justices of the peace in certain districts are made valid. 

The matrimonial law of British Guiana^ of the Cape of Good Hope, 
and of Ceylon, is the Roman Dutch law which prevailed there at the 
periocTof their annexation to the British empire.(r) The observance 
of certain preliminaries is essential to the validity of marriage. These 
are a declaration before the magistrates or commissaries of the desire 
of the parties to intermarry, and a request of the publication of banns, 
the payment of duty on marriages, and the due publication of banns* 

(0 Ordniance of Blois, Art. 40, Declaration of 1639. Pothier Traits do Miriafe, Part 
4, c. I, n. 349, 
(«) 36 G0O.3, e.4. 44 Geo. 3, o. 11. 4 Oao. 4, c 19. 5 Geo. 4, c35. 
(V) 1 Barge, x\v. 
Apeil, 1845.— 6 

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The celebration is by a magistrate, and it is not necessary that it 
should be in a church.(u;) 

The recent abolition of negro slavery in the British colonies was 
followed by an order in council(:r) respecting the celebration of mar- 
riages in the crown colonies. The order recites, that " since the abo- 
lition of slavery throughout the British colonies, plantations and pos- 
sessions abroad, the marriage laws of the said colonies, plantations 
and possessions have been found inappropriate to the altered condition 
thereof, and inadequate to the increased desire for lawful matrinoony 
therein, and that it is expedient and necessary to amend the said 
marriage laws, and to adapt the same to the ahered state and condi- 
tion of society in the said colonies, plantations, and possessions." It 
is therefore ordered, that it shall be lawful for any minisjter of the. 
Christian religion, ordained or otherwise set apart to the ministry 
of the Christian religion, according to the usage of the pcu^suasion to 
which he may belong, to publish within the colonies of British Guiana, 
Trinidad, St. Lucia, the Cape of Good Hope and Mauritius, or any 
r ♦•?'i7 1 of them, banns of marriage between persons desirous •of 
L J being joined together in matrimony, and after such banns 

shall have been duly published in the manner therein prescribed, to 
solemnize matrimony between the said parties according to such form 
and ceremony as shall be in use or be adopted by the persuasion to 
which the minister solemnizing such marriage shall belong. The 
order then proceeds to authorize the solemnization of the marriages of 
persons under age, without the consent of the parents or guardians or 
other person (if any) whose consent is required by law, unless such 
parents or guardians or other persons, or one of them, shall forbid 
the marriage, and give notice thereof to such minister before he has 
solemnized the same. And in places where there may not be any 
such minister of religion or not a sufficient number of such ministers 
to afford convenient facilities for marriage, the order provides for the 
appointment by the governor of the colony of a marriage-officer, to 
solemnize marriages within such part or parts of the colony in which 
such appointment shall be made, as the governor shall from time to 
time direct The order also provides for the public solemnization of 
the marriages before witnesses, and for the registration of the mar- 
riages. The order then legalizes retrospectively all marriages con- 
tracted and solemnized previous to the abolition of slavery in the said 
colonies, plantations and possessions, between slaves and between par- 
ties, one of whom was a slave, and also in some cases between free 
persons of colour; and since the abolition of slavery, between appren- 
tices and other persons of free condition by ministers of ihe Qiristian 
religion other than clergymen of the church of England, ancTindem- 
nifies all persons who may have solemnized any such marriages, or 
reputed marriages, or who have in any manner assisted thereat ; and 
provides for the preservation of Ahe evidence and registers of such 
marriages: and also legalizes retrospectively marriages de facto 
between jpersons, one or both of whom were in the condition of slavery 
but which marriages de facto had never been sanctioned by any public 
ceremony or registered upon such persons, within one year after the 

(If) 1 Bnrgt, 174. («) Loate Gtsotte, Stplmte leik, 1338. 

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OF lU&aUGE8 ABROAD. 250 

coming into operation of the order daly solemnizing the marriage 
ceremony before any clergyman of the established church, or in any 
other manner authorized by the order, and making a declaration, 
attested by the witnesses present, and signed by the minister or mar- 
riage-officer before whom the ceremony was performed, p ^^-^ ^ 
of the fact of the marriage, and the names and ages of the ^ * * J 

children born of the marriage. 

In the Isle of Man, an act to prevent clandestine marriages was 
passed on the 27th of May, 1757, by which marriages solemnized in 
any other place than a church, unless by special license, or solemnized 
without publication of banns or license of marriage, from a person 
having authority to grant the same, are declared null and void.(y) 

In Scotland, the law of marriase remains in almost exact confor- 
mity to the canon law as it formerly prevailed in this country ,( a:) and 
accordingly distin^ishes between regular and irregular marriages. 
The public solemnization whigh is necessary to. the former is a matter 
of order, but is by no means essential to the validity of the jnarriage, 
which is always sufficiently constituted by mutual consent alone.(a) 
There is some variation from the canon law in the requisite forms of 
a regular 'marriage. It is nep essary that proclamation of banns should 
be made in the church, three times immediately before divine service, 
but the rule of the canon law, which required the banns to be published 
on three Sundays or holidays, has been relaxed by an act of the 
General Assembly, which authorizes the parish minister to make the 
two last proclamations on the second Sunday, or in extraordinary 
cases to make them all on the sartie day. A certificate of the due 
proclamation of banns is granted by the clerk of the Kirk-session, 
upon which the marriage is celebrated by the parish minister before 
two witnesses, and usually at the house* where the woman resides. 
There is no further ceremony than the question of mutual acceptance 
pot by the minister and answered by the parties, and a declaration by 
the minister that the parties are married. Certain statutes provide, 
that the ceremony shall be performed by a minister of the kirk of 
Scotland or of the episcopal communion, duly qualified by taking the 
oaths of allegiance and abjuration.(i) But the penalties imposed by 
these statutes upon Jesuits, priests, and ministers of other communions 
have been repealed.(c) 

^Marriage in Scotland may be irregularly contracted r ^059 i 
per verba de prasenti, or per verba de juiuro, followed by '• J 

copula. A mutual declaration in terms de prcesenti, importing imme- 
diate consent of the parties to hold each other thenceforth as husband 
and wife, whether such declaration be in writing,(d) or oral and prov- 
able by witnesses,(6) constitutes marriage. Consent being the essence 
of the contract, the expression of it must of course be with a matri- 
monial intent; and therefore words uttered in jest, or with a different 
object from that of actual marriage, are of no force. 

(y) 1 D«rge, 171. («) Ante, p. 29a 

(a) Stair^s InsL b. 1, 1 4, •• 6. Ersk. Inst b. 1, t 6, s. 5. 

(6) 1661, c 34 1672, e. 9. 1690, c. 37. 1698, c 6. , • 

(c) SUU 4 & 5 Wm. 4^ c 28. 

{d) Tajlor ▼. KeHo, Mor. 12. 687. Fergoton't Cons. Cm. 34. Dolrympk ▼. Daliymple, 
2 Hagr. 6. U. 54, fi B. Eee. IL) 
(•7w«Ui«rv«M'Adan,flB^iMiGoiii.Gw.l89. lDow.148. 

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260 hitbback's evidencb of stjcoession. 

Thus, where a man, in order to get lodgings in respectable houses 
and to save a woman from rude treatment, acknowledged her for his 
wife, the circumstances' were held by the House of Lords insufficient 
to warrant the conclusion of marriage.(/) And in cases of irregular 
marriage, the consent must be shown to have been full and deliberate, 
and not influenced by force or fraud.(g^) But if that passes between 
the parties which amounts to a marriage, it cannot be affected by 
their subsequent conduct.(A) 

Marriage is also constituted by a contract per verba defuturocum 
copuId»(i) But before copuM, such contract, which corresponds to 
the sponsalia of the canon law, and is a mere promise of marriage, 
may at any time be resiled from by either of the parties, although 
such party so acting without any adequate cause, may be liable to the 
other in damages,(J) The promise is by the copulk converted into 
actual marriage by reason of a conclusive presumption of consent to 
a present marriage being exchanged at the time of the cnpuUu An 
exception has been taken in the case of illicit intercourse subsisting 
between the parlies previously to the promise \{k) but in a recent case, 
the marriage was established notwithstanding such intercourse.^/) 
r ♦360 1 *^^ ^^^ formerly considered that the promise could 
' J only be proved by the writing or o&th of the party, but it 

has lately been held that it may be established by circumstances. 
Thus, where no express promise of marriage was contained in the 
parties' letters to. each other, but the inference was obvious, from the 
whole language of such correspondence, that the parties contennplated 
an honourable connexion, and concubitus ensued, a marriage was held 
tahave been constituted.(m) 

The open cohabitation of the parties as husband and wife, or the 
fact of their being in the language of the Scotch law, <' habit and 
repute'' as sach, is somewhat loosely said to constitute, whilst it is 
merely evidence of, marriage. For it is competent to prove, that 
notwithstanding such cohabitation and reputation the parties did not 
intend marriage, but assumed the semblance of the married state to 
save appearances or to answer some other purpose.(n) Again, if the 
parties cohabited and were reputed as married persons from the firsts 
the conclusion of marriage will be warranted, but if their connexion 
was illicit in its commencement, it will be presumed to continue to be 
of the same character, and it will be necessary to adduce other evi- 
dence than that of the parties' cohabitation to establish their mar- 

(/) Cunoingham ▼. Coanindrbam, 9 Dow. 483. 

(f) M*Neil ▼. M*Gre«>r, 1 Dow. N. S.20a 

(A) Ibid. And tee other caMt npon marria^ ^r verba ds prduenti, Mor. p. 13, 680, et 
0M. FergnaoD*!! CoBsialorial Cates and Appendix to Dr. Dodaon*a Report of the case of. 
Dairymple ▼. Dalnrniple. 

(i) Stair*! Inst b. 1, t. 4, a. 6. Cunniofrham t. Canningham, Fergnaon^s Cons. Caa. 313. 
183, n. 

(1) Stair*a Inat b. 1, 1 4, a. 6 n. Hog ▼. Gow, 37th May, 1813. Marray*a Rep. Cbm of 
fioae, 19th July, 1816. {k) Suir^a Inat b, 1, t 4, a. 6 n. 

(Z) SiiA 19th November, 1^39. 3 Sc. Jar. 3a 8a D. E 89. 

( m) Uonyman ▼. Campbell, 3 Dow. & CL 365. 5 Shaw & WHa. 93, a C. Smith v. 
GrierMm, 37th Jane, 1755. Mor. p. 13, 391. 

(a) 8tiiir*a Inat b. 1, t a. a. 6 n. Cannuiffham ▼. Canninffham, 3 Dow. 483. 

(a) Ibid. Somerville?. Htloro, 7th July, 1636. Mor. p. 13, 635. Inglia v. RobortaM, 3d 

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or VAESIAOKB ABftOlD. 261 

Tlie e&ct of the condition of being habit and repute as husband 
and wife, has been magnified by the statute of 1503, c. 77, which pro- 
vides, that a woman who has been reputed the wife of a man till his 
death, shall be entitled to and enjoy the terce^ (or dower) till it be 
proved that she was not his lawful wife. This statute appears to have 
originated the doctrine in all cases of this kind, that tne burden of 
proof is upon the party who denies the marriage. But the evidence 
of circumstances may be sufficient to rebut the presumption. Thus, 
although the parties frequently lived together, and acknowledged each 
other as husband and ♦wife, yet from the profligate cha- |- ^^g. -. 
racter of the woman and other circumstances it was in- ^ J 

.ferred that the man was not serious, and the marriage was not 
sustained. ( p) It is held in these cases, that the evidence of the friends 
of the parties in the same rank of life ought chiefly to be regarded.(^) 

The legal incapacities to contract marriage differ but Tittle from 
those of me English law.(r) The disabilities arising from a prior 
marriage, want of ape, want of reason, and consanguinity or affinity, 
are the same as in England. And by stat. 1600, c. 20, a divorce for 
adultery incapacitates the guilty party from marryine the person with 
whom the adultery is stated in the sentence to have peen committed. 

The decree of the Council of Trent requiring the presence at mar- 
riages of a priest and of two witnesses being of force in many parts 
of Europe, it may be useful to state, that in a case respecting the 
validity of a marriage in Sicily,(5) it was proved by the testimony of 
jurists on the construction of that decree, that it is not necessary to 
the validity of a clandestine (in opposition to a regular) marriage, that 
the priest or minister of the parish should pronounce any words, 
prayers, or benediction, his presence alone being sufficient; that it is 
not necessary that the witnesses should pronounce any words indica- 
tive of their being witnesses to such marriage, and that it is not neces- 
sary to obtain their consent to intervene as such on occasion of the 

In Swift V. Swift,(0 which was a suit by the husband for the resti- 
tution of conjugal rights, the libel pleaded, that the marriage took 
place in a private house at Rome according to the rites and ceremo- 
nies prescribed by the decree of the Council of Trent, which is received 
and obeyed as law in that city. It further appeared, that in order to 
obtain a valid marriage there, if the parties were previously Protes- 
tant, it was necessary that they should solemnly renounce the Protes- 
tant religion, and confess themselves Roman Catholics. The wife 
pleaded that such ^renunciation must be bond, fide, but r ^ggg ^ 
that.inthe present instance it was colourable and formal, *■ J 

was therefore of no avail, ^nd could not confer any validity on the 
pretended m^-rriage. But the Court held that the husband was not 
bound to answer whether the renunciation and circumstances accom- 
panying it, were bond fide on his part or on the part of the lady. 

In France, by the Code Civil, marriages are celebrated before a 
civil functionary, the parties superadding any religious ceremonies at 

March, 1786. Mor. p. 12, 683. Mor. p. 12, 637, ct scq. M»Nei! ▼. M*Grc|:or, 1 Dow. &, 
CI. 208. • ip) Adair. 1 Sc. Jar. 164. 7 S. D. 597. 

(9) Thomas, July 8, 1829. 7 S. D. 872. (r) Ante. p. 272. 

(f) Herbert ▼. Herb^ 2 Hagg. C. R. 276, (4 E. Ecc R.) (t) 4 H«gg. 139. 153. 

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their discretion. Several formalities must previously be»compIied with, 
the principal being the notification of the con^nt of parents or grand* 
parents, the want of which is an absolute bar to the marriage of men 
under twenty-five years, and women under twenty-one, but only deltys 
the marriage of persons above those respective ages. To the mar- 
riage of infants under twenty-one, who have neither parents nor grand- 
parents, the consent of a family council, composed of six of the nearest 
relations, is necessary. Males under eighteen, and females under fif- 
teen, cannot contract marriage, but the king may, for weighty reasons, 
dispense with this restriction, as well as with some of those upon mar- 
riages within our prohibited degrees of kindred and aflinity, as between 
uncle and niece, aunt and nephew, or a man and his sister-in-law.(tt) < 
Penalties are imposed upon those who celebrate or contract marriage 
without the formalities prescribed bv law : such marriages, however, 
are not absolutely void, but the right to question them and to have 
them annulled belongs to different persons according to the circom- 
stances.(t}) A marriage contracted bon&fide^ even though afterwards 
annulled, confers all its civil advantages on the wife and children, and 
the fraud of one party does not aflect the other, nor the children of 
the marriage. (t&) 

Among the particulars in the act of marriage required to be regis- 
tered are, the time and place of celebration, the names, descriptions, 
and ages (so far as they affect the marriage law) of the married per- 
r ;^ogo -1 sons, the names of their fathers and mothers, and *of the 
I- J four witnesses required, and a declaration of their rela- 

tionship to the parties. < 

In proving a foreign marriage it is an important consideration, 
whether the law of the country must first be proved, and then a mar- 
riage according to it, or whether evidence of the fact of marriage, as 
that the parties agreed to enter then into the relation of husband and 
wife, is not sufficient proof of a valid marriage, until encountered by 
evidence, that by the lex loci coniractuSf the marriage in question is 
for defect of solemnity, or other reasons, invalid. 

In the case of The King v. Brompton,(x) the parties had been mar- 
ried at St. Domingo, in a chapel, by a person habited like a priest, 
and the objection that there was no evidence that this was a good 
marriage by the law of St. Domingo, did not prevail ; Lord JEIIlen- 
borough considering, that from the circumstaoces every presumption 
was to be made in favour of its validity. Upon a trial for bigamy, 
evidence of a marriage in Ireland by a dissenting clergyman was held 
sufficient, without giving any proof of the law of Ireland upon the 
subject.(y) But this case is opposed by one on the home circuit, in 
which to prove the first marriage in Scotland, evidence of its legality 
by the Scotch law was required.(z) And in bigamy, it is to be ob- 
served, strict evidence of a valid marriage is necessary. 

If it should be a question, whether, for the purpose of establishing 
legitimacy, the lex loci contractus must be proved, in order to shew 

(u) See a Law of*)] 6 Avril, 1832. (v) See 5 Bac Ab. 313 n. £d. 1 832. 

(to) Code Civil, livre 1, tit. 2, c. 3 ; tit 3, c 4 ; tit 5, c. ] and 4. . 
(X) iO East, 282. 

(y) Lancaster Summor Assizes, 1814, heCore Marshall, Sent 1 Evanses Statatcs, (ed. 
1629,) p. 160 n. («) Ibid. 10 £ast, 285. 

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the conformity of the marriage thereto^ it may be argued, that as mar- 
riage was origiDally a natural and civil contract, to the constitution 
of which, as of all contracts, mutual consent was (and by the laws of 
sonae countries still is) the only requisite,(a) nothing more need be 
shewn, than that the parties exchanged their consent to become thence- 
forth husband and wife ; and that the essentiality by the lex loci of 
attendant solemnities is not to be presumed. In this and other coun- 
tries they are made necessary ♦by positive laws, of which, p ^^^ -| 
especially since they respect a contract, a diflerent nation ^ ^ 

cannot be required to ta!ke notice until proved, and the general pre- 
sumption of which may, as in the case of Scotch marriages, prove to 
be erroiieous.(i) These considerations are altogether teside the aid 
which a foreign marriage, no less than an English one, may derive 
from cohabitation as husband and wife, reputation, and other circum- 
stances from which the fact of a valid marriage may be inferred.(c) 

Where it may be necessary to adduce evidence of the law of a 
foreign country, for the purpose of shewing either the validity or the 
invalidity of a marriage, the law, if unwritten, may be proved by the 
evidence of practising advocates or other persons professionally con- 
versant with it.(rf) The evidence of an unprofessional person as to 
the Scotch law of marriage was rejected. (e) It has been stated, that 
the sentence of a French court was received as evidence of the mar- 
riage law of that country. But if the law is written, it ought to be 
E roved by a copy properly authenticated.(/) In one case, Abbott, 
'. J., by consent of the parties, received a copy of the Cinq Codes 
from the. library of the rrench Vice-Consul here as evidence of the 
French law of marriage.(^) 

On the modes of proving a foreign marriage it seems to be settled, 
that a sentence of a court of competent jurisdiction in the country 
where the marriage was celebrated, directly establishing the mar- 
riage, is conclusive of its validity in our court8.(A) But this rule can- 
not be held to extend to the cases of polygamy and incest before 
excepted from the principle of the universal validity of marriages 
which are valid when they are solemnized. And on the other hand, 
inasmuch as some marriages invalid according to the lex loci, might 
be supported here, a sentence of nullity of marriage in the country 
where it was celebrated is not conclusive in ♦our courts, ^ ^^^^ -. 
although it appears to be admissible and entitled to weight I- -I 

in evidence.(i) 

Where a divorce was effected abroad by an unwritten judgment 

(a) See Lord Stowell*t Judg-ment, DalrympTe ▼. Dolrymple, Dr. Dodaon*8 Report, p. 10. 

(k) See 1 Evans*8 Sututes, ed. 1^9, p. J60 n. 

Ce) See 10 East, 287, et •c<). 4 Ha^r. 139. 153. 

(d) Middleton v. Janverin, 2 Hagrgr. (J. R. 437, (4 E. Ecc R.) Dalrymple ▼. DtlrjmpU, 
ibid. 81. Ibid. 271. 2 Addams, 473, (3 E. Ecc. R.) 

{€) 1 Evan«'8 Statutes. 160 n. But tee 3 Stark. N. P. C. 178, (14 E. C. L. R.) 

(/) See Picton'a cane, 30 How. St. Tr. 491 . 3 Eap. N. P. C. 58. 4 Camp. 155. 
. (g) Lacon ▼. niggms, 3 SUrli. N. P. C. 173, (14 E. C. L. R.) Dow. & Ry. N. P. C 
38.aC.,(16 E.C. L.R.) 

{h) Roach V. Garvan, 1 Vee. sen. 159. Per Lord Hardwicke in Boacher v. Lawson, Ci 
temp. Hardw. 89, 2 Swanst. 349. See Pr. Ch. 207. 3 Phill. 63, (I E. Ecc. R.) 

(0 Sinclair ▼. Sinclair, 1 Hagg, C. R. 297, (4 £. Eoo. R.) Scrimshire v. Scrimshire, 9 
B^g. C. R. 395, (4 £. Ecc R.) But see Coltiofrton'a case, 2 Swanst 342 d. 

Digitized by VjOOQ IC 

264 hubbaok's bvidbnob of sucobssioh. 

according to the forms of the law applicable to the case, it may be 
proved here by parol, and the parlies themselves, not being otherwise 
incapacitated, are competent witnesses to establish the fact(^') 

In the claim of Lord Dunsany, in 1823, to vote at the election W a 
representative peer of Ireland, it appeared that the marriage of the 
claimant's parents had been solemnized in a private room in Dublin, 
that there was no entry of it in the parish register, and that the only 
surviving witness was unable to travel from age and infirmity. The 
House of Lords made an order, authorizing two of the Irish judges to 
attend upon and take the examination of the witness on oath,(Ar) which 
was accordingly done, and the judges' report was delivered in at the 
bar of the House upon oath by a person who received it from one of 
them. The marriage was thus proved, and the claim wa3 establish- 

In order to give in evidence an examined copy or certified extract 
from a foreign register, it would appear to be necessary to prove, that 
the register is, according to the law of the country, a document of an* 
authentic and public nature. In the absence of such proof. Dr. Lush- 
in^on rejected an examined copy of the register of marriages of an 
episcopal chapel at £dinburgh.(m) Lord Kenyon also reiected an 
examined copy of the register of marriages in the Swedish ambas- 
sador's chapel at Paris.(n) 

In a recent suit for divorce by reason of adultery, the marriage was 
alleged to have taken place in 1823 at Barbadoes, in a private house, 
before the rector of« the parish. A copy of the entry in the registry 
r *366 1 ^^ n^^rriages was exhibited, signed by the 'rector, and his 
1- J signature was attested by a notary. It appeared, that by 

the local laws of Barbadoes, passed by the House of Assembly in 
1661, registers of births, marriages, and deaths were directed to be 
• kept, and this, it was contended, rendered the register a record of au- 
thority. Dr. Lushington said the only question was, whether the mar- 
riage had been satisfactorily proved, and it was a question of very 
great importance at this time, when so many marriages were solem- 
nized abroad in foreign countries ; and in our colonies, where life was 
so precarious, it would be too much to insist upon the evidence of per- 
sons present to establish the fact of a marriage. The evidence in this 
case, which was a printed paper, signed by the rector of the parish in 
Barbadoes, could not be received without proof of collation ; with such 

Eroof, however, and with the act of the legislature of Barbadoes before 
im, establishing a registry in the island, he should hold that the entry, 
was a satisfactory proof of the fact of marriage. He, therefore, res- 
cinded the conclusion of the cause, in order to admit a collated and 
examined copy of the register.(o) 

In the claim of C. A. Ellis to the Barony of Howard de Walden, 
the marriage of Lord Hervey at Quebec in 1779, was proved by a 
person who was present at the marriage : it appeared, from his evi- 

(j) Graner ▼. Lady LanesbohMiflrh, Peake, N. P. C. 1 8. 

(() The case of Viscount Northland, in 1819, was cited as a precedent for this proceeding. 

U) Palmer^s Practice of tlio House of Lords, p. 339. 

(m) Con^y v. Beazley, 3 Hnsg> K. R. 651, (5 E. Eoc. R.) 

(n) Leader v. Barry, 1 Esp. N, P. C. 353. 

(•) Coode V. Coode,CoDtittor7 Court of London, 83d March, 183a 

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OV MABftlAGlS AjraOAD* 965 

dence, that a register of marriages was kept at that cltyi but no fiirther 
proof was required.(p) 

In the Gardner Peerage case, to prove the marriage of the seconil 
Lord Gardner with Miss Adderly at Fort St Georffe, Madras, in the 
the year 1796, the duplicate of the register, sisned by the clergyman, 
was produced from tne India House by a ckrk in the Secretary's 
oflke ; but it was not admitted, until proof was given that it had been 
transmitted to the India House in the usual manner,(9) and that the 
cteigyman by whom it was signed had actually officiated at Madras 
at the date of the marriage^r) 

A marriage in France may be proved in Chancery by a certified 
extract, examined with the register, and verified by affi- r ^^^j -i 
davits ^worn before the British Consul-General. If the ^ -■ 

extract and affidavit are in a foreign language, a translation must be 
made by a notary, or other competent person, and also verified by 
affidavit before the ConsuI-GeneraL(«) There must be a further affi- 
davit of the fact, that the person before whom the other affidavits were 
sworn was at the time British Consul-General in France, and that the 
signatures of his name are of his handwriting. 

In an old case on a question of legitimacy, a marriage at Utrecht 
was proved by a certificate, under the seal of tba town and of the 
minister there, that the parties were married and cohabited together 
as man and wifa(0 But Willes, C. J., questioned the admissibility of 
the evidence, saying, that although the certificate of the minister as to 
the fact of marriage, at a place where there vyas no bishop, might per- 
haps be equal, aiid might be resembled to the certificate of the bishop 
here, he was clearly of opinion that the certificate of their cohabiting 
together ought not to have been admitted.(u) 

With the exception of that partial allowance of the doctrine of legi- 
timation by subsequent marriage, which is known by the name of 
bastard eigne and muKer puisne9{v) it is by the law of England neces- 
sary to the constitution of le^al consanguinity, that every one of the 
filiations composing it shouia have been preceded by marriage.(tiA 

But although rejected by the law of England, this doctrine, which 
is common to both the civil and the canon law, prevails in many of 
the British colonies, inScotland, and in most countries of Europe and 
America.(aE^) The consequent conflict of other laws •with p ^g«g -t 
that of England respecting the stattiM of ante-nuptial issue, ^ ^ 

ip) lUiB. Efid. 1806, p. 34. 

iq) See on tlie Transmimion and State of these KegiBieTBtpost, part 3. 

(r) Le MarchaDt*8 Report of the Gardner Peerage, p. 6. Printed ed. p. 97. 

(f) See the forma in Smith*a Chancery Practice, vol. i. p. 527. 

(f) Alsop ▼. Bowtrall, Cro. Jac. 543. {u) Willet, 549. 

(ir) See on this rule Co. Litt 343 b. 3 B). Coyi. 346. In the case of Pride v. Earl of 
BSith, 1 Salk. 180, it was held that the rule, that a man ahull not be bastardized afler hit 
death, applies only to the case of bastard eigne et mulier fuUne, 

(w) Stat of Merton, 30 H. 3, c 9. Co. Litt. 345 a. Bracton, 6^ 416. 3 Inst 96. 

Ix) According to Mr. Burgees learned work, legitimation per 8ub$equen8 matrimonia is 
admitted, with different modificationB by the laws of Scotland, France, Spain, Portugal, 
Germany, and most other countries in Europe. It prevails in the Isle of Man, Guernsey 
and Jersey, Lower Canada, St. Lucia, Trinidad, Demerara, Berbice, the Cape of Good Hope, 
^Ceyloo, and the Mauritius. It is not admitted by the law England, or of her other posses, 
■ions in the West Indies and JMortli America, or by tba law of Ireland. It prevails in the 

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9M BUBBACs'a avionNS or mcoiBSxov. 

occasionally gives rise to questiofM, by what law the legitimacy of 
childrea, and (which it will appear is not quite synonymous) their 
inheritable capacity, are to be oetermined. 

The three following cases in this country(y) appear to have defini- 
tively settled, that the status of legitimacy or ^legitimacy is to be deter- 
mined by the law of the domicile of origin : — 

In Sheddon v. Patfick^z) the issue born in New York of unmarried 
parents, who afterwards intermarried there, such marriage not ren« 
dering them legitimate in America were held not to be legitimate in 
Scotland. In the Strathmore case,(a) the son of Lord Strathmore, 
born in England of parents domiciled here, was held not to be legiti- 
mated by the subsequent marriage of his parents solemnized in Eng- 
land, and therefore not entitled to succeed as heir to his father's peer- 
age and estates. It is to be observed, that in both these cases the 
marriage, as well as the birth, had taken place in a country which did 
not recognize the doctrine of legitimation : but in the latter case. Lords 
Eldon and Redesdale principally founded their judgments upon the 
law of the domicile of origin. 

In Munro v. Ro8s,(fr) a Scotchman domiciled in England, had a 
child born in Ei^land by an unmarried woman whom he afterwards 
accompanied to Scotland, and during a short residence there married. 
In a question of heirship to land in Scotland, the Court of Session held 
the issue legitimate and inheritable. But their decision was reversed 
r *d69 1 ^^ ^^ House of Lords, on the ground that *the status of 
'' « -' bastardy, and the incapacity to become legitimate, had 

been impressed on the respondent by the law of England, which was 
his domicile of origin, ana that the celebration of the marriage in 
Scotland did not remove that disability. 

So far the decisions proceeded upon the principle, that legitimacy 
or illegitimacy is a personal status, impressed upon the party by the 
law of the country of his birth accompan}ring him into every other, 
and to be there determined by reference to the former law. 

In tlie next case, the principle is apparently departed from, but the 
decision is made to rest upon different grounds. The lessor of the 
plaintiff, John Birtwhistle, was born in Scotland. His father was a 
native of England, but was domiciled in Scotland at the time of his 
son's birth, and continued so domiciled up to the time of his own 
death. The mother was a native of Scotland, and also domiciled 
there. The parents, some years after their son's birth, intermarried 
in- Scotland. The father died seised in fee of certain lands in York- 
shire, for which the son brought ejectment as the heir. There was no 
doubt that he was a legitimate child according to the law of Scotland,' 
and capable of inheriting lands there, and the sole question was, res- 

•tatet of Vermont, Maryland, Virprinia, Georgia, Alabama, Missiasippi, Louisiana, Ken* 
tackj, Indiana, and Ohio, bat not in the other states of America. 1 Bargees Commentaries, 
101. And see Butler's note to Co. Litt 245 a. 

(y) The foreign authorities upon this point are eotlected by Mr. Burge, 1 Coimn. c. 3, s. 3. 

i») Diet Deo. For. App. n. 6, 1 July, 1803, cited.5 B. & C. 444, Clf £. C. L. R.) 2 CI. 

^ (c) 4 Wilson ^ Shaw, Ap., No. 5. See Earl of Strathmore ?. Countess of StraUimore, 

{b) Faa Coll. IStb May, 1897. 5 Shaw Sl Dunlop, 605. 4 Wilton &, Shaw, 289, and 
ApfK 3,'4. 

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V or VAE&U0S8 1BS0A1>. 367 

pecting hh inheritable capacity by the law of BnffTand, where (he 
lands were situate ; and the Court of King's Bench held that he was 
not entitled to recover the lands a« heir of his father. 

This judgment of the Court of King's Bench proceeded on the 
groondsy that Questions on real rights must follow the law of the coun- 
try where the land lies ;(c) that bv the law of England, it is not suffix 
cienty that he who claims in the character of heir should be legitimate, 
bat legitimacy sub mode is necessary — the heir must be a child bom 
afier marriage. The principal authorities relied on for this pomtion 
were, the Statute of Merton, and the definition of heirship by Glanville, 
and the other ancient text-writers, and by Lord Coke, *« Hceres est qui 
tzJMstis nuptiis procreatusJ'* 

f he case has since been brought by writ of error before r ^g-^ -• 
the ^Hoose of Lords. The opinion of the judges having ^ 'J 

been required was delivered by Lord Chief Baron Alexander :(rf) 
There were two questions to which their attention must be directed 
separately and in succession to each o\her. The first in order regard- 
ed the status or condition of the claimant; the second was, what rules 
of inheritance the law of the country where the property is situated 
and the tribunal sits had imposed upon the land the subject of claim. 

As to the first, their opinion was, that the status or condition of the 
claimant must be tried by reference to the law of the country where 
it originated. This inquiry was satisfied : it was ascertained that the 
daimant was the eldest legitimate son of his deceased parent, for the ^ 
purpose of taking land, and for every other purpose by the law of 

With respect to the second question they held, that by the law of 
England a man is not the heir to English latid, merely because he is 
the eldest legitimate son of his father. ♦* We must look further, and 
ascertain whether he was born within the state of lawful matrimony : 
because, by the law of England, that circumstance is essential to 
heirship. The claimant being unable to prove himself in this condi- 
tion, could not therefore, succeed as heir to land in England." The 
consistency of this opinion with the case of Sheddon v. Patrick and 
the Strathmore case, was thus endeavoured to be shewn : — " The 
Scottish law admitted no heirship without legitimacy ; but the cha- 
racter of illegitimacy attached to the persons of the English and 
American claimants by their own law, accompanied them every 
where, and would prevent their Wing received as heirs every where, 
within the limits of the Christian world." 

Lord Brougham dissented from this opinion of the judges, and 
some of bis views Lord Lyndhurst thought were very striking : they 
required, he said, very full and patient consideration, and no pains 
should be spared to arrive at the proper result. Lord Denman also 
said, that the importance of the case was such, and the r ^q,^. ^ 
•doubts which existed were so considerable, that they »• J 

ought to be further investigated before the case was decided. The 
case was, therefore, ordered to be further argued in the House of 
Lords before the judges.(e) 

(e) See2 Ves. &; a 137. «0 9 CI. & Fio. 5^3. 

(«) BirtwiusOe t. Vardill, 9 Bligh. 86. 3 CL & Fid. 585, & C. 

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868 bubbaok's svibsnob or ffwcsssioi^ 

In stating the reasons of his dissent Lord Brougham said:— 
'* Legitimate son means lawful son, and the rule of infleritance is, that 
the eldest lawful son shall succeed to the father, but lawful or not 
depends upon the law which is to govern ; and no other definition 
can be given of what is lawful than this, that he is lawful son wbbm 
the law declares to be such. What law 1 There are two, it is said^ 
in this case ; — the law of the place of the party's birth and of his 
parent's marriage, and the law of the place where the land lies. 
Then which of these two laws shall prevail t The whole inclination 
of every one's mind must be towards 'that law which prevails where 
each person is born, and where his parents were married, supposing 
the countries to be one and the same ; and if they differ I should 
then say, certainly the law of the birth-place. Nor can anything be 
more inconvenient or more inconsistent with principle than the inevi- 
tabte consequence of taking the lex loci rei sitce for the rule ; because, 
this makes a man legitimate or illegitimate according to the place 
where his property lies, or rights come in question ; legitimate whea 
he sues for distribution of personal estate, — a bastard when he sues 
for succession to real ; nay, legitimate, in one country where part of 
his lands may lie, and a bastard in some other where he has the resi- 
due. So, in like manner, all who claim through him must have their 
rights determined by the same vasue and uncertain canon— a circum* 
stance which I no where find adverted to below. All the learned 
judges proceed upon the case being one of an inheritance claiaied by 
the party himself: but what if he were de^ years ago, and another 
claimed an estate in England, to which he (the alleged bastard) never 
had b^n, and never would have been, entitled ? An estate, for exam- 
ple, descending from a collateral, who took it by purchase after the 
death of the alleged bastard. Then the pedigree of the claimant 
must be made out through legitimate persons, and the question of 
r ^^,^2 1 legitimacy is raised as to one who is not himself claim- 
•* -* ing any *land — who never did or could claim any land, 

and it is not raised in respect of any right in him to inherit — any right 
to be called the heir to any land. 

^* It is thought enough to say, the heir is he who is born in lawful 
wedlock exjustis nupiiis. Then what is lawful wedlock 7" His lord- 
ship then proceeds to shew that, by the law of Scotland, the cere- 
mony of marriage after the birth of children raises a legal presump- 
tion, that there was a consent (bv which alone matrimony is perfected) 
before the birth, and at the cohabitation, and that the ceremony is only 
evidence of the previous consent and contract. And he observes, 
that in that case, the law of the country where both the marriaffe and 
the birth took place declares, that the party was bom in lawful wed- 
lock — that he was ex justis nuptiis procreatis. The consequences of 
the doctrine were, <* not only that the same party is legitimate in one 
country and bastard in another, but that in one and the same country 
he is to be regarded as bastard when he comes into one court to claim 
an estate in land, and legitimate when he resorts to another to obtain 
personal succession : nay, that in the same Court of Equity, where the 
real estate happens to be impressed with a trust, must view him as 
both bastard and legitimate in respect of a succession to the sanne 
interest. Another consequence is, that a descendant of this sancie 

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bastard may claim through him as if he were legitimate, while the 
alleged form of the statute of Westminster/and of Lord Coke's com- 
mentary thereupon, excludes him* from taking it himself. In the same 
country, in the same courts, he is both bastard and legitimate ; bastard 
for the purpose of his own succession, legitimate when the succession 
of others is concemed."(/) 

It will be observed, that Lord Brougham assumes that the maxim 
^kares est qui ex justis nupliis procreaiit*^ has only a personal appli- 
cation, and that it required this legitimacy sub modo only in the heir 
himself, whilst a general legitimacy would suffice in any ancestor 
through whom he deduced his descent. And this assumption seems 
to be warranted by the silence of Lord Coke and the other writers 
who notice the maxim, and *who no where extend it fur- r ^^^^ ^ 
ther than to the person of the heir. But it is an impor- ^ J 

taot circumstance that by the old law no such confusion attended its 
application as that which mi^ht in the way which has been described 
follow it in this case. And there are other considerations, which shew 
that it may have had more weight given to it in the decision ju^ 
quoted than it originally carried. 

The use of the term justis in the maxim hcsres est qui ex justis nufh 
tUs nrocreatuSf of itself proves that it could not apply to cases in which 
the lawfulness of the marriage was immaterial : and the authorities 
concur in shewing that a lawful marriage was required for the pur- 
poses of legitimacy only when general bastardy was pleaded. In 
pleading either kind of bastardy, issue could not be taken upon the 
lawfulness of the marriage. And in special bastardy it could not 
come in question, because special bastardy was triable per vais, and 
a jury could not decide whether a marriage was lawful, that is, 
whether it was a regular marriage according to the canon law. 
Accordingly we find that the averments in the pleadings, and the form 
of the issue present a latitude as to the nature of the marriage, which 
was obviously designed ; they were, that the party was bom extra 
omnia sponsalia^ to which it was replied that he was born infra span* 
saUa :{g) and hence the reasoning of Britton, that the son of parties 
privily espoused was inheritable, because he could aver that he was 
bom within espousals, although such espousals were not solemn.(A) 
In general bastardy triable by the bishop, the issue was not in the 
form, the objection to which led to the Statute of Merton, whether 
the party was born before or after lawful matrimony, but whether 
he was bastard or not.(t) But it appears that the matter to be tried 
by the ordinary was, whether the party was born in lawful matri- 

Now, the certificate of the Ordinary, that the party was r ^^^^ -. 
a *bastard, was peremptory to him forever.(ft) Its con- ^ ^ 

clusiveness was such as to have given rise to some abuses which it 
was found necessary to correct by statute.(/) And as it .was not 

(/) Birtwbbtle t. Vardill, 9 Bligh. 79. 2 a d& Fin. 585. 595. 

(^) 1 Rairt. Eat 387. (A) Ante. (t) Ibid. 279. 989. 

{j) Ne umqne^ aeeoufiU in lawful matrimooy if no plea bat ia dower or appeal, and not 
to baatardiza anj man: bnt be ahaU plead baatardV ezpreaaly, gnuraUff or $peeiaU$f. 
Bnokd Baatardy, pi. 9. Repertorium Canoaicom, c 95, pL 6. 

ijk) Gmh. Dig. Baatard ^D. 9.) (I) 9 Hen. 6, 0.11. 


reasonable that a party shoidd have bis iUUtu so fiiedl in a proceed* 
ing which did not give 4iini the opportunity of being heard, it was 
the rule, that where bastardy was alleged in a dead person, a stranger 
to the action or an infant, it was to be alleged specially and tried by 
the country, and not by the bishop.(m) '* General bastardy could 
only" in the words of Eyre, C. J., " be objected in real actions, and 
iheo only when the alleged bastard was alive and of age, and a party 

to the suit."(») 

The want of lawfulness, therefore, in his parents' marriage would 
operate merely as a personal defect,(o) which, unless objected under 
this combination of circumstances, could not be remitted to the cog«- 
oizance of the Ordinary, and could not, therefore, prejudice \M 
inheritable capacity either of himself or his issue, because, if ques* 
tioned on any other occasion, the. only jurisdiction was excluded 
which treated and could try such defect as conclusive of bastardy. 
If, therefore, it was not made the subject of adjudication and sentence 
in a proceeding to which the alleged bastard was an adult party, ii 
was cured forever. 

It has been observed, that the plea of general bastardy, and the 
trial by certificate, was confined to real actions. Accordingly it was 
said, bastardy is no plea in trespass, but shall conclude to the frank 
tenement : for if this shall be a plea, then writ shall be awarded to 
the bishop for the trial of it, which was never seen in tre8pas8.(p) It 
followed, that in ejectment, which, though called a mixed action, is 
more properly personal, and merely a species of trespafis,({) the law- 
fulne*ss ot marriage was immaterial, and the issue of irregular or <U 
facto marriages were legitimate, (r) 

r ^^^ 1 *There are, therefore, solid grounds for the opinion 
^ -I that the rule requiring that the heir should be exjudit 

nuptiis procreo/tif, applied only to real actions, where alone there 
could be a conclusive sentence of bastardy, and where no discrep- 
ancy took place between the rights of the party himself and those who 
claio^ed through him, because they would be equally bound with their 
ancestor by such a sentence. 

But in the present case, which is one of ejectment, if it be admitted 
that the ^neral staiuM of legitimacy is to be determined by the law of 
the domicile of origin, then to go further and require that the heir 
should be legitimate sub modoy would be to apply the maxim which 
has been cit^, without the rule respecting the conclusiveness of the 
certificate of the Ordinary, which alone made it reasonable and con* 
sistent. i 

The certificate of the Ordinary in the trial of general bastardy, cor- 
responded to a proceeding in the civil law, which was in the nature 
of a judgment upon the status of the party, and determined nuch status 
conclusively against all the world. In Scotland a similar proceeding 
takes place under the naiQe of a declarator of legitimacy.(s) It was 

(m) IMd. and Tit Certificate (A. 2.) 2 H. BL 156. 
(fi) Ilderton ▼. Ilderton,3 H. BI. 156. 

(•) De Grey, C. J., speaka of the trial by oertifioate beioffconfined to the legality of a 
mwriaffe or itaiiiifN«tfialaeofite9iiaiicaa,seiieral bastardy. 20 How. St Tr. 638. 
(p) Brooko Bnatardy, pL 14. {a) Stephen on Pleadinr. App. n. (9). 

(r) 8eeoiiiBcitedaiite,p.3il,elaeq. (a) Ersk. loit 6. 1. tit 5.5. 29. 

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or lUftftUtflS A8IK>A]>. S71 

■tmsary^ however, by the civil law, that all persons primarily and 
Mibstantially interested in the jariJaiction, whom the ciWI law des- 
cribes 9Lsjusti coniradieiores^ should be parlies to the suit, and if they 
were made parties, but did not appear, the judgment was conclusive 
igaiost them alone ; and the question of tiatua must be the principal, 
and not an incidental or collateral object of the suit or judgment.(£) 
The opinion has been intimated that the effect of judgments or sen- 
tences pronounced in suits of this description, which nad been only 
instituted or prosecuted, would be recognized by the judicial tribunal 
of a foreign cotmtry in every case in which they had been conclusive 
is that country where they had been pronounced.(t£) But if the les- 
sor of the plaintiff, in the case of Doe dem. Birtwhistle v. Yardill, had 
obtained, as he undoubtedly might have done, a declarator of his 
legitimacy in Scotland, his position would not have been r n^a i 
improved, •since his legitimacy was not disputed, but the »■ J 

additional quality of post-nuptial birth was considered essential to his 

Upon the case being re-argued before the House of Lords, in the 
presence of the jud^s, questions were framed for their opinion, which 
was afterwards dehvered by Lord Chief Justice Tindal. He said : — 
<* That since the last argument they had had the misfortune to lose Mr. 
Baron Vaughan, but that as that learned judge had, within a few days 
after the arguntent, expressed his concurrence with the opinion now 
about to be stated to their lordships, the authority of his name might 
be added to the rest, that the person bom under the circumstances 
stated in the case could not succeed to real estate in England. This 
Ofmiion rested on the rule or maxim of the law of England, that the 
son, in order to succeed as heir, must be bom after the actual mar- 
riage of his father and mother ; this was a rule regulating the descent 
of real property which could not be disturbed oy the laws of the 
country where the party was born, and which may be allowed to 
govern his personal status by the comity of nations." His lordship 
Sere cited Mirror of Justices, p. 70; 61anville,b. 7, c. 14, and quoted 
the form of the ancient writs directed to the bishops, to inquire into 
cases of alleged bastardy, and mentioned the decree of Tope Alex- 
ander, and the necessity thereby created for the passing of the statute 
dTMerton. Soon after the passing of that statute the question of bas- 
tardy came to be decided in the ifinc's Court instead of the Ecclesi- 
astical Courts. But at the time of tne passing of that statute Nor- 
maxidy, Aq<Htatne,and Anjou belonged to the crown of England. Many 
of the English nobles were of foreign lineage, if not of foreign birth, 
and bad possessions in those provinces as well as in this country. The 
eivil law, which allowed legitimation bv subsequent matrimony, pre- 
vailed in those provinces, and it was of course a matter which much 
eooeemed those nobles to determinate by what rule the descent of 
ibmt lands in England should be governed ; yet at the time of the 
pamng of the statute of Merton, no words were introduced into it to 
except from its ffeneral provisions cases like the present, but the law 
was aHowed to be laid down broadly in the form in which it was now 
found to exist. . The practice of the Courts from that time ^ ^^^ ^ 
had ^been in accordance with this broad statement of the I- -I 

(f) fiui* Conm.dl. (») ItUL 93. 

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law, and Lord Coke (2 Inst 93) states that William the Conqueror, 
though legitimated in Normand^ by the subsequent marriage of his 
father and mother, was not legitimate by the law of Sngland ; that 
was in effect saying, that, though being born in Normandy and lesi- 
timated there he could inherit lands in that province, he could not do 
so in this kingdom. This was in fact, therefore, the 'very case which 
had been put by the House before the judges for their consideration. 
The judges were further of opinion, that such being the law of the 
country it could not be contended, with reference to the inUbritance 
of lands, that the personal status of legitimacy being conferred by the 
law of the country of the birth, that status must not only be recognized 
by every other country, but must be allowed in all other countries ail 
the consequences that would follow it in the country in which that 
status was conferred. Under all these circumstances the judges were 
of opinion that the party in this case, though legitimated to all purposes 
whatever in Scotland, had not become entitled by the law of England, 
which must govern the descent of land in this country, to inherit land 
here ; therefore the judges were of opinion that B. is not entitled to the 
real property as heir of A. 

The case afterwards stood for judgment, and Lord Brougham 
declared that the doubts which he had entertained when the case was 
before the House on the former occasion had not been removed. The 
privileges granted by the common law to the bastard eigne favoured 
the doctrine, that the status of the person once established, the title to 
inheritance followed. The Lord Chancellor, however concurred with 
the judges, and moved that the judgment of the House should be given 
for the defendant in error, and the judgment was affirmed according- 

[ •378 ] *CHAPTER V. 


Thb most convenient order of treating the different parts of this 
subject seems to be to examine first, the nature of the evidence of con- 
sanguinity in general ; and secondly, the modes of proving those spe- 
cial qualities of consanguinity which, according to the rules governing 
the succession or prescribed by the settlor or testator, give the pos- 
sessor a priority over the other kindred of the proposiitu. 


Filiation being demonstrably the sole constituent of all real con- 
sanffuinity, as well lineal as collateral, the evidence of a relationship 
by blood, in any degree, must have for its single object the occurrence 
of the several filiations by which the related parties are descended the 
one from the other, or both. from the same ancestor. Evidence of 
consanguinity may, indeed, be adduced, which does not particiilarize 

(9) Dom. Proc 10th Auffoit, 1840. 

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or ooir8Air0in]nTT. S78 

or sq)arately prove some fact of fiKation ; but this species of fact is, 
nererthelessy the subject of such evidence, for a declaration ex- 
pressing, or a circumstance tending to shew that A. was the grand- 
son, nephew, or cousin of B. supposes the several conjunctive filiations 
by which tbe relationship was constituted : the existence of the un- 
mentioned steps of descent appearing by evidence which implies that 
thev are over leapt. 

"the fact itself of filiation, as must appear upon the least reflection, 
is subject to peculiar difficulties in evidence, to the extent ^ ^^^^ , 
•indeed, of having originaied the maxim, that its proof is »■ J 

impossible. FUiatio non potest probari is the constant burden of the 
civilians, and is adopted by Lord Coke and Lord Nottingham. (w) And 
the circumstance is striking, that a man's natural origin, which imparts 
rights and imposes obligations of the first importance, rests in all cases 
upon evidence of a quality inferior to that by which ordinary legal 
questions are determined. •^It would be impossible," said Lord 
Erskine, " to prove descents according to the strict rules by which 
contracts are established and rights o? property regulated, requiring 
tbe facts from the mouth of the witness who had the knowledge of 
them."(jr) And this not only because such facts as conception, birth, 
and personal identity for the most part elude the application of direct 
evidence, but also because the impK)rtance of the facts, and occasibns 
of proving them, so frequently survive those who were the sole deposi- 
tories of the imperfect evidence of which the facts are capable. 

The evidence of filiation being thus defective and perishable, the 
law, yielding to the necefssity of the case, introduces presumptions, 
and admits of the inferior evidence of hearsay and rejnitation, by the 
aid of which the rights which flow from natural origin are established 
or defended, and it has been in this, as in other civilized communities, 
the endeavour of the legislature to provide some general and certain 
means of taking and recording the best attainable evidence of the fact 
whilst it is of recent occurrence, and before any temptation to mis- 
represent it has apparently arisen. In England this important duty 
was, until recently, imperfectly performed by the parochial registra- 
tion of baptisfns. The nature ot the evidence which they afibrd, and 
tbe improvement effected bv the act which provides for the registra- 
tion of births will be considered in the third part. But it is material 
to observe here, that the absence of a baptismal or natal register has 
merely the effect of compelling resort to be made to other r g«g^ -. 
•evidence.(y) And even in criminal cases the want of a *■ J 

register is not a fatal defect, but may be supplied by the acknowledge- 
ment of parents and the declarations of relatives.(z) 

(w) Co. litt 19& CaM of the Purbeok Viscotmtj. 

(X) 13 Vet. 143. BaitoliM, in Cod. 8, 9, 1, excepte the faneifu] case of a child beui|r born 
ef pareote imprisoned alooe together for the requisite period. But evidence, in its natnre 
dremnstantial, is not, by the certain conviction which it may produce, elevated into direct 

(]r> Bj tbe ^vil law, tbe want of the proft$M nataliwnt or of the tabuUB nupMu had 
BQt oKire important cooeequences. Si tidnu vel aliU seientibuSj uxorem liberorum pro- 
creandorum cau$d domi haouisti^ et ex eo matrimonio Jilia nucepta e$t ; quamvis nepuenup^ 
tiaU9 Uihutm, neque ad natam filiam pertinente$ facta $unt non ideo minu$ vtritoB matru 
mmdi mmi 9u$eipla JUuBt suam habet pote$tatem. Cod. 5, 4, 9, 

U) Boigese ▼. Burgees, 1 Hagf . C. R. 384, (4 £. Eoo. R.) 

Apkzl, 1645.— 6 

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In considering the evidence of this fact, a difference must be ob- 
served in the outset between paternal and maternal parentage. Pro- 
creatio non cadit in cerium sensum Aomtnis,(a) and the policy of the . 
law in ouestions of legitimate succession excluding the testimony of 
• the molner upon the subject, direct evidence of paternal parentage is 
unattainable, or, to the extent to which it i^ attainable, inadmissible. 
But maternal origin or birth is perceptible, and may be proved by wit- 
nessess. This difference is recognized in maxims expressing that 
maternal parentage might be ascertained by evidence, but paternal 
must be determined by presumption. In the words of John Voet, 
mater naturoHter certa est, pater ex nresumptione censetur,{b) follow- 
ing the Digest, which says of the former parent, semper certa est, 
etiam si vulgd conceperit: pater verb is est quern nuptice demonstrant:{c) 
and by the same law, upon the principle, which however is repudiated 
by Fortescue,((i) that evidence is preferable to legal presumption, the 
rule was oar(u5 sequitur ventrem: the children even of married per- 
sons took their civil condition froiti^the mother and not from the 
father : those of a bond-man and a free-woman were free : of a free- 
man and a bond-woman slaves. On the ground also that the mother 
was sufficiently certain, bastards were admitted to succeed to the 
whole of their unmarried mother's inheritance, unless she was of noble 
rank.(e) The English law, though not to this extent, yet recognizes 
in several instances the more certain relation of a bastard to his 
mother than to his father.(/) 

r *381 1 *'^^ remove the natural uncertainty as to the person 
t J of the father was most probably a primary end, and is 

usually placed among the most valuable uses of marriage.(^) With- 
out the presumption that the wife's children are the husband's, which 
the laws of all civilized countries attach, with varving strictness, to 
the existence of the matrinK)nial contract, there could hd no assurance 
of paternal relationship, nor consequently of agnate consanguinity. 
Accordingly, when deprived of the aid of this presumption the paternity 
of offspring was considered in the civil law as legally incapable of 
proof. When Claudius, who was born of a woman not the wife of 
the testator, was instituted heir, provided he could prove'himself tobe 
the testator's son, it was decided that the performance of the condition 
being impossible, the testament was nugatory.(A) By the English law 
also, on the same principle, a bequest to the' children of A. by a par- 
ticular man, not her husband, is void, if they have not previously 
acquired the reputation of being his children.(7) But this objection, 
which is one ol uncertainty of description,( J) does not prevail where 
the issue are described without reference to any father, as where the 
bequest is to the child of which A. is enceinte, in which case, afthough 
no reputation can have been acquired, the bequest will be sustained.(A) 

(a) Bariotus in Cod. 8, 2, 1, n. 1 & 2. Baldus Cons. 74, c. 1, 1. ). . 
(6) Ad. Pand. Lib. 1. tit. 6. n. 7. (c) Lih. 2, Ut. 4, 1. 5. (rf) De Laudibiw,c. 49. 

(0 Code, 6, 57, 5. Init 3, 3, 7 & 3, 4. 3. Not. 89, 8. In Holland BasUurda still inherit 
to their mother. Van der Linden, Inst, by Henry, p. 165. 
(/) 1 Boe. Ab. BasUrdj <B.) 2 Pow. Dev. 364. Dalum, c 91. Crompton, 21. 
ig) BoIingbroke*8 Philosophical Work^ Easays, XVIL (A) Dig. 35, 1, 83. 

(t) Earlo 7. Wilson, 17 Ves. 532. Wilkinson v. Adams, 1 V. &. B. &i. 12 Pr. 470. 
(J) See Harg. o. (1.) Co. Litt. 33. {k) Gordon v. Gordon, 1 Mer. 141. 

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w comAvmmntr. ' S7S 

Before examining the cogency of the presumption of paternity from 
marriage, it will be convenient to mention the modes of proving fiUa* 
lion, in cases where the presumption does not come in question. 

Direct evidence of maternal parentase, as the testimony of the 
mother herself and of persons present at &e birth, is jsometimes attain* « 
aWe, and is, of course, proof of the best quality. Cases in which such 
evidence is required, are in general questions, either of alleged partis 
tupparitio^ or of disputed identity. In Day v. Day, which was one of 
the former kind, on the trial of the first ejectment, before Lord Lough- 
borougb,(/) the mother of the 'defendant was examined, r. ^qqo i 
and swore that she was delivered of a boy, and that it was ^ J 

the same child as was then in possession of her husband's estate. 

It will however be observed that in every case of part^ supposition 
the child has in his favour the acknowledgment of the supposed parents, 
because that acknowledgment is of the essence of the tact : and their 
evidence is not more conclusive where it is repudiative of filiation 
than where it is affirmative of it.(m) 

It is an ii^xible rule that neither husband nor wife is competent to 
^ve evidence upon the fact of intercourse. Lord Mansfield said that 
It was a rule founded in decency, morality and policy, that persons 
shall not be allowed to say after marriage that they have had no con- 
nection, and that therefore the ofispring is spurious ; more especially 
the mother who is the oflfending party : and he stated that the point 
was solemnly determined at the Delegates.(n) In several other cases 
it has been held that married persons cannot be heatd upon this 
fact.(o) The grounds upon which this testimony is exoluded seem to 
be that, shouldf the evidence be affirmative of the husband's paternity, 
it would be irrevalent, as proving that which the law presumes ; and 
should it disprove the fact of sexual intercourse, it would be liable to 
objection, both on the ground of interest and of contrariety to public 
policy.{j5) A ^separate objection has been taken where r ^ggg , 
the subject matter of the declaration is not the fact of inter- *• J 

course, but the absence of opportunity for it, in which case it is said 
that the want of access, implying the continued separation of the par- 
ties, must be notorious to the whole neighbourhood where they resided, 

(/) At Haotiagdon, 1764. Report of the oaae, 3rd ed. 18S6. 

(m) See Per Lord Nottingham, pMt, p. 390. The presumption from treatment, according 
to the cifiliaos, holda eliamH mater etmaritus earn juramenlo ntgarent e$$e Jilium^ Maac 
OmcI. 790 ; Menoch. lib. 6, pr. 53. And a French case ia menttooed in the Dietionnaire 
dt$ mrrUM, Voce^ euppoeition, where a child was maintained in poaaeaaion of her BtatuB, 
Bpoo pre8Qmpti?6 evidence only againat the dyinj? declaration of the apparent father, and 
the living testimony of the mother, both diaaffiliaung her. ^ 

(») Goodright t. Moaa, Cowp. 594. 

(0) Rex T. Reading, Ca. tem. Hardw. 79. Rex t. Rook, 1 Wila. 340. Rex t. Bedell, Lee^s 
Rep. tem. Hardw. 379 ; 2 Strange, 941, 1076. Rex v. Kea, 11 East, 132 ; 8 Mod. 180, BuU. 
N. P. 1 13. This rule of evidence haa, like/nost othera, been aet at nought in the partia- 
meatary investigation of truth. Upon the examination of witnesses in support of a bill for 
the illef^ttmation of the children of Lady Ann Rooe, the House of Lords admitted Lord 
Boos hiauelf to state upon oath, that ** smoe the 4th of March, 1659, and sereral months 
ba6re, be had no carnal knowledge of his wife, the Lady Anne Rooe.** The House then 
* being satisfied concerning the truth of the matter of fact contained in the said bill, ordered 
it to be engrossed,** and it shorUr afterwarda waa read a third time, passed the Commouf, 
and received the royail^assent Lords* Journals XIL 68, 71, 95, 110. 
. (p) Rex V. Reading, Cas. tem. H4rdw. 79. Stwleton v. Stapletoo, Ibid. 277. Stevens v. 
BIms, Cowp. 593. Rex v. Luffe, 8 £aat, 202. There was the lamt mW io the eivil law. 
1^.1,22,3.29. Code, 2,^4, 26. lb. 8, 47, 6, 9 and 10. 

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376 "^ hubback's itidbiiob or sooctssioti. 

and therefore capable of better proof.(f>) And it has recently been 
held that the testimony of the parties is inadmissible, not only as to the 
principal fact, but also respecting any collateral fact, such as the place 
of their respective residence at a particular time, from which non- 
-access is the proposed inference.(9) The rule is the same though the 
husband be dead when it is proposed to examine the wife.(r) 

But if non-access is set up on the other side, the wife has been 
thought competent to prove acces8.(5) The rule has, however, since 
been laid down in terms which would exclude this evidence.(0 

The wife's testimony has been thought admissible to prove that **the 
adulterer alone had that sort of intercourse with her, by which a child 
might be produced within the ordinary period."(tt) But it would 
appear that in order to make this evidence available the fact of non- 
access must be established by other witnesses, for the sole testimony 
of the wife will not be admitted to bastardize her i88ue.(t7) 

It would appear that the admissibility after the parties' deaths of 
their declarations upon this subject, is regulated by the admissibility 
r ♦384 1 ^^ ^^^^^ testimony when alive. Mr. Justice Alderson 
L J *indeed, recently rejected the declarations of a deceased 

wife, tending to shew that her son was not begotten by her husband, 
but by another man : but it does not appear what was the fact declared 
to, and the admissibility of her declaration as to the mere fact of 
aduherous intercourse would seem to be undoubted.(to) 

It is necessary to notice the question of the admissibility and force 
of personal resemblance and native or congenital characteristics, as 
evidence of descent or consanguinity. Lord Mansfield, in the Doi^* 
las cause, said that he had always considered likeness, as an argument 
of a child's being the son of a parent : in other cases, if there should 
be a likeness of features, there might be a discriminancy of voice, a 
difference in the gesture, the smile, and various other things ; where- 
as, a family Kkeness ran generally through all these; for in every 
thing there was a resemUance, as in features, size, attitude and action. 
Accordindy, he albwed in his judgment for the appellant consider* 
able weight to the proved resemblance of him and nis brother to Sir 
John Stewart and Lady Jane Douglas, and to their dissimilitude to 
the other persons whose children they were alleged to be.(a:) 

In ejectment, where the question was one of parii^ ntppositiof Mr. 
Justice Heath, following this authority, admitted evidence that the 
defendant bore, a strong resemblance to his supposed father, and in 
summing up, after observing that this evidence had been made light 
of, said, he admitted that resemblance was frequently fanciful, and 

(p) Rex T. Readinsr, BqU. N. P. 1 13. 

iq) Rez T.Soorton, 5 Ad. Sl £1. 180, (31 E. C. L. R.) 

(r) RexY. Kea, 11 East, 133. (•) Pendrell ▼. Pendrall, Str. 925. Ball N. P. 967. 

(I) Per LitUedale, J., 5 Ad. Sl EH. 188, (31 tL C. L. R.) 

(tf ) See per Lord Ellenboroogb. Rex ▼. Laffe, 8 Eart, 909. Per Lord Hardwick^ Rex 
▼. Reading, Rep. tern. Hardw. 140. Rex'Y. Rooke, qU aap. And aee Per Patteaon, J^ ^ 
Ad. &, Ell. 164, (31 E. C. L. R) 

(«) Rex T. Readioflr, Rep. tem. Hardw. 82. Rez t. Bedell, 2 Str. 941. 1076. Rex t. 
Lufi^ 8 Eait, 203. There waa the same role in the oifil law. The sole confession of the 
mother, that the adulterer waa the father, would not prejudice the child. Dig. 29, S, 29. 
Palsotoa de NoUuet Spur. o. 24,n. 2. 

(ID) SeeRext.Sonrtoii. Per PattoMm, J., 5 Aid. a& ED. 184, (31 E. C. L. R.) 


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dwrefore the jtny should be well convinced that it did exist, but if 
they were so convinced it was impossible to have stronger evidence.(y) 

Both these cases, it will be observed, were questions of pd?*^^ sup^ 
pontio, and they do not therefore establish the admissibihty of such 
evidence in cases of adulterine bastardy. According to some physi- 
ologists the influence of the mother's ima^na^on upon the child's 
personal characteristics is such as to make its resemblance to a para- 
mour consist with its legitimacy ; and if this opinion be p ^^^ ^ 
correct, ^similitude or dissimilitude of form and features I- J 

is peculiarly uncertain and dangerous evidence of paternal descent, as 
between a husband and an adulterer. In a Scotch case, evidence of 
the child's resemblance to the adulterer was accordingly rejected 
though offered only in corroboration of other circumstances.(z) Yet, 
in the recent case of Morris v. Davis, evidence of the child's likeness 
to a portrait of the adulterer, given by him to the mother, appears to 
have been gone into, but probably no weight was given to it, and it is 
not noticed in the judgments.(a) 

a^The result of the authorities in our law appears thus favourable to 
tb& admissibility of this evidence in questions of parties supposition and 
this limitation is warranted by the different opinions of the civi- 
lians.(i) The less scrupulous canonists, allowing little weight to the 
preemption of paternity from marriage, considered all evidence 
admissible, which in uny degree tended to throw light upon their 
single inquiry ; by whom did the mother conceive ? an^ they accord- 
ingly received and acted upon evidence of the child's resemblance tot 
the husband or adulterer.(c) 

A consideration of the force of this evidence properly belongs to 
another profession, some distinguished members of which have ob- 
served, tnat peculiarities of form, feature and complexion, are fre- 
i^ntly hereditary for many generations, even where there has been 
no restriction as to marriage ; they adduce among others the instances 
of the thick lip of the imperial house of Austria, which prevailed for 
three centuries,((/) and of the stature of the inhabitants of Potsdam, 
where the gigantic guards of Frederick William I. were quartered for 
fifty years. But these peculiarities.are still *more obvious r t^oaa i 
in races who marry within their own body, as the Jews *- J 

and Gipsies.(e) And the clearly marked difference of form and colour 
between the gran^ varieties of the human species is such as to make 

(y) Day r. Day, Huntingdon Ass. 1797. Printed Report, 3rd ed. p. 327. 

(z) Ersk. Inst. 154, citing Roatledge, 20 Jan. 1810. Fac. Ck)U. 

(a) Nieolas** Adulterine Bastardy, 917. * 

(6) Voet ad Pand. Lip. 1, tit 6, n. 9, and Mascardus treating of adulterine bastardy pro* 
Bounces it inadmissible, whilst Tiraquellus and Zacchias, in discussing the evidence of filia* 
tioii, generally hold it admisaible when aocompanied by other proofs. Zioch. Qu. Med. 
Leg. lib. 1, tit. 2. qu. 4. and Cons. 60. And see 1 Paris Sl Fonbl. 220 ; Beck. 354 Buu 
ler*s Life of Grotius, p. 166. 

(e) See Prefiice to Le Marchant*s Gardner Peerage, p. 28. 

(d) Lawrence's Physiological Lectures, 447, et seq. Haller*s IHenL Physiol. While's 
Gra<ktioos of Man. James Percy, a claimant to the earldom of Northumberland, adduced 
in proof of bis descent that he was born with the same mark on his body ** as other Percy's 
bad been." 12 How. St. Tr. 1199* See further on this claim. Lord's Journals XIL 553. 
578. XIV. 24. 3a 224. 240. 

(e) Tacitus gives this reason for the oniformity of ibaturea which he observed among the 
lociexit Germans. De Mor. 4* 

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278 hubbaok's svidenos or sttcobssiok. 

resemblance in these particulars, evidence of the strongest kind, where 
the question is between parents of distinct races. In New York, a 
case of filiation was some years ago decided upon medical testimony 
as to the weight in evidence due to difference of colour.(/) 

Cases of i^artds suppositio have been of singular infrequency in 
England, if it is considered that it is probably the only country in 
Europe in which the act is not criminal. It will therefore suffice to 
mention that it may take place in three ways. First, where a deli- 
very is simulated, and a child produced as the fruit of it.{g) Secondlv, 
where the delivery is real but the child dies and a living child is sub- 
8tituted.(A) Thirdly, where one living child is substituted for another, 
. the motive to which may be a difference in sex, formation or apparent 
health, or some other cause of preference. 

The relevancy and weight of the various kinds of evidence in these 

?uestions received the most elaborate examination in the memorable 
)ou§Ias cause, decided by the House of Lords in 1769: and the pro- 
ceedmgs form a body of learning which, the subject being of little 
practical interest, may rather be referred to than abridged.(i) 
r ^2Qj -| *The case of the Viscounty of Purbeck involved the 
^ -' questions both of the paternal atid maternal parentage of 

a child, and the facts, as far they have been transmitted, deserve men- 
tion, as introductory to the opinion of Lord Nottingham on the evi- 
dence of filiation.( J*) In 1618, Sir John Villiers, eldest brother of the 
celebrated George, Duke of Buckingham, married Lord Coke's daugh- 
. ter Frances, and in the following year was created Baron Stoke and 
Viscount Purbeck, with a limitation to the heirs male of his body. 
Not long after the marriage, an ostensible separation tcK)k place, 
during which, as it was alleged, Lady Purbeck had a son, who was 
baptized by the name of Robert Wright. Her own account of the mat- 
ter, as given in a petition presented in 1641 to the House of Lords,(ft) 
was that she brought her husband a large estate, beside 10,000/., that 
not long after their marriage her husband's mother and others ** upon 

(/) Beck. 354. Mental qualities are, perhaps, not snfliiciently oon^nital to supply avail- 
able evidence of descent Yet the reader may recall to mind the fine invective of Junius, 
against the Duke of Grafton. ** You have better proofs of jour descent, my lord, than tbe 
register of a marriage, or any troublesome inheritance or reputation. There are some 
hereditary strokes of character by which a family may he as clearly distinguished as by 
the blackest features of the human face. At the distance of a ceniury we see their different 
characters (those of Charles I. and 11.,) happily blended in your Grace." 

ig) Of this class was Chetwynd*s case in Chancery and K, B. 1754, cited 1 Douglas 
Cause, 73, and those of fiourdelone, Rusca, and Vandermark, Ibid., and of the Duchess of 
Rohan. Moreri*s Diet Voce Tancrede. 

. (h) In the cases of Haroward and St Tidal, 1 Douglas Cause, 57. 65, and Day t. Day, 
Printed Report, ed. 3. 

* (i) The evidence and arguments are ouUected in several quarto volumes in the Inner 
Temple Library. The species of Lords Camden and Maasfiekl are in 2 Collectanea Juri- 
dica, 386. There were many controversial works on the case ; and the final judgment 
drew forth Andrew Stuart*s jusUy celebrated letters to Lord Mansfield. 

(j) The case is best known as having raised the quesUon of the effect of a fine levied of 
his dignities by a peer to the king, and as regards this point only is reported in Collier*s 
Precedents, 293, and Shower*s Pari Cas. 1 ; and see 3rd Report on the Dignity of Peer, p. 
43. Cruise on Dignities, and 3 Cruise Dig. tit 26. On the questbn of fihation the fullest 
account is given in Nicolas on Adulterine Bastardy, p. 90 ; and in the Appendix, p. 420, to 
the report of the Gardner case, by Mr. Le Marchant, to whom the profession ii indebted 
for the publication of Lord Nottingham's speech. • 

(A;) Harl. MS. 4746. Lords* Journals, iv, 168, et seq. • 

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or oojnAMammTY. 279 

iome pretence of weakness and distemper of her lord and husband, 
caused them to live apart, during which lime they disposed of his 
estate, the most of which came from her father ; and that being left 
destitute and otherwise ill-used, the Duke of Buckingham on the in- 
terference of King James, agreed to allow her one thousand marks 
per annum and her jewels, provided she would not ** cohabit again 
with her husband," and that her annuity and possession of the jewels 
should cease on such cohabitation. To these terms, " though verv 
unreasonable," her necessities obliged her to accede. And although 
sometimes she and her husband had the happiness afterwards to meet 
together, yet was the same concealed as much as might be to avoid 
the danger and prejudice she would have sustained by the discovery 
thereof." She then states, that when with child and near her delivery 
an act of great personal violence was committed upon her by the 
Countess of Bucks, Sir Edward *Villiers and others, p ^ggg -i 
" which enforced her to withdraw herself to a private ^ ^ 

place, unknown to her adversaries, until her delivery, and to take 
upon her a feignqd name both for herself and the son born of her 
body, and to pretend herself to have been the wife of John Wright, 
and the son born of her body to be entered in the register of the parish 
where he was christened bv the name of Robert Wright ; thereby to 
conceal both herself and child from their rage and fury, which she 
had just cause from her former barbarous usage to fear and Suspect." 
Her delivery being discovered, a charge of adultery with Sir Robert 
Howard was made against her in the High Commission Court, where 
" by an unwarrantable and most illegal sentence she was condemned 
and fined 500Z., and unlawfully committed to prison, for inducing 
which sentence the prosecutors endeavoured, by negative proofs, to 
make appear that your petitioner and her husband did never meet 
together for above a year before her delivery, (thereby contrary to 
law, to blemish and asperse her issue, and contrary to the truth, as 
appeared by many affirmative proofs) and although your petitioner 
desired therein to be tried by her own husband, who best knew the 
truth thereof, yet would not that be granted her." To this statement 
of Lady Purbeck's wrongs must be opposed the testimony of contem- 
porary writers tending to show that the imputation of adultery with 
Sir Robert Howard was not, at least after the birth of the chiki, 
wholly unfounded.(/) 

The House of XiOrds took several proceedings upon the petition, 
the prayer of which was directed towards the security of her property, 
.and the punishment of her adversaries, but the result does not appear. 
Lady Furbeck died in 1645, and her husband in 1657. Robert 
Wright, the child, was afterwards, according to Dugdale,(m) called 
** Villiers alias Wright," and having married Elizabeth, the daughter 
and heiress of Sir JohrfDanvers, one of the regicides, obtained a patent 
from Oliver Cromwell, authorising him to abandon the name of Villiers, 
to assume that of Danvers, upon his allegation of hatred to the former 
in consequence of the injuries which the Villiers family had done to 

(I) See Nieolae Adalt Bast. 91, dtxn^g Strafibrd Papen, voL 1, pp. 390.426. 434. 
(m) Baronage, toL 2, p. 432. 

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960 BUBBA0K*8 WmOMOM OF 890CS88I0If. 

r *880 1 ^^ Commonwealth. In the Convention Parliament» 
L J *Robert Danvers was a member of the House of Com- 

mons, but in June, 1660, a charge being preferred against him in the 
House of Lords of having spoken certain treasonable words, that 
House, considering him to be a peer, as son and heir of Viscount Pur- 
beck, ordered that he should be brought before them. He refused to 
come — was voted in contempt, and brought to the bar as a delin- 
quent, when the information against him being read, he said that ** he 
valued the honour of this House very much, but he hath no right 
himself to this honour of a peer, because he can 6nd no patent for any 
such honours in the Petty Bag office, nor any writ." — " That he had 
petitioned the king to give him leave to levy a fine to clear hitn of any 
title to that honour ; and his Majesty hath made an order to the At- 
torney-General to that purpose: and the reasons (he said) to induce 
him to this were: — 1. This honour was but a shadow without a sub- 
stance. 2. His small estate was unfit to maintain any such honour* 
3. That noble family he comes of never owned him, neither hath he 
any estate from them." In petitions which he afterwards presented 
on the subject of this charse he styled himself ^< Robert Danvei^ alias 
Villiers, whom your lordsnips are pleased to honour with the title of 
Viscount Purbeck."(n) 

Robert Danvers died about 1675, having levied the proposed fine of 
the abcnre dignities. His son and heir, Robert, a minor, then pre- 
sented a petition to the Crown, claiming the dimities, and alleging 
the inefficiency of the fine to bar or extinguish tbem.(o) The claim 
was opposed on the grounds, 1st, that the fine had this effect, and 
secondly, that the petitioner's father was not the son of John First 
Viscount Purbeck. In 1678 the first ground was pronounced unten- 
able by the unanimous resolution of the House. 

With respect to the question of filiation it appears from Lord Not- 
tingham's MS. that the Attorney-General, on the 5lh of June, 1678, 
stated th^t the Duke of Buckingham, one of the opponents of the claim, 
desired to offer some further evidence as to the matter of fact : and 
r •390 1 ^^®^®^ ^^^ ^^^ petitioner's father had ♦exhibited a bill 
■- -'in Chancery against the grandfather ; and the grandfather, 

by his answer upon oath, denied him to be his son ; and tne fact was 
relied on, that he was christened by tbe name of Robert Wright 
The Attorney-General, Sir W. Jones, then concluded for the king, 
and said : — '' As to the illegitimation of the petitionlr's father he could 
not say much : for, without question, the wife's son is the husband's, 
if the husband were infra quatuor maria : and that the only use to be 
made of the evidence in this case is to consider how far it goes 
towards disproving him the wife's son."( o) 

Lord Nottingham, then Lord Chancellor Finch, delivered the fol- 
lowing opinion : " The question whether therfe be a legitimate suc- 
cession to this honour, is a question of fact, wherein the doubt is not, 
whether the petitioner be legal heir to his father, but whether the father 
were so to the grandfather : and therein it is admitted that the father 

(n) Lords* Journals XL passim. 

(o) The prooeediuijrs which followed are contained in the Lords* Joarnals, XII. and XIIL 
( p) There is a fiill report ef the argument in Collios^s Prooeedinsfs. 296. See also Shower 

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or coMAHcnmifTT. 281 

is legdly the son of the grapdrather, if he can prove himself the son 
cf the grandmother ; and this fact is now called in question, and the 
srandchild after fifty or sixty years elapsed, is put to prove, not that 
Eis father was lawfully begotten (every one sees the aanger of that) 
but which is all one in consequence, that his father was begotten of his 
grandmother. This ought not to be endured, fdr 1. Filiatio non protest 
probari nee debet : 2. It tends to defeat purchases made of the father 
as heir, &c. 3. He hath been found heir to the land, and son of the 
grandmother by a special verdict in 1635, in Wegg v. yilliers,(9) 
when matters were more capable of proof, old witnesses being since 
dead : 4« This should have been questioned if ever in the father's life, 
for he that is certainly a bastard, as being bom before wedlock, yet 
if be die with the reputation of true heir, he cannot be bastardized 
afterwards, but his issue shall carry away the land from the legitimate 
heir, Litt 5, Descents. 5. Strange questions are sometimes raised for 
crowns where armies dispute, but where a coronet only is at stake it 
is not to be suffered. The ^reat objections are that he was baptised 
by another name, and that the grandfather denied him to be his wife's 
son, but though it may be a good cause to suspect adultery where too 
DHich secrecy *is used at baptism, it is no case to make r ^^g. •• 
iUegitimation. Again, the grandfather's denial upon oath ^ -I 

is ^>thing, for if the grandmother had herself denied him to be her 
son, yet it had not been material, for still it is capable of disproof. It 
is disproved here by the verdict, by the nurse and midwife then pro- 
duced, by the old Lady Hatton owning the child, who could not be in 
the secret, and by constant reputation. In the parliancient of Paris, in 
the case of Madame de Cognac,(r) it was adjudged that the mother''s 
disavowing her child should not prejudice the child who was able to 
disprove l^r. Nay, if the father himself had disclaimed his own legi- 
timation, this ought not to prejudice the ffrandchild."(f ) 

The House decided against putting the question of the claimant's 
right to the dignities, but petitioned the kinff for leave to bring in a 
bm to disable him to claim them. The king, probably with the 
advice of the Lord Chancellor, returned the answer : ** that he will take 
it into consideration." No further proceedings were taken. In 
1708 the petitioner's son and heir, and after his death without issue 
male, his nephew, were claimants, but no decision was ever come 

The law has provided a preventive remedy against supposititious 
births in the writ de ventre inspiciendo. This writ issues out of Chan- 
cery and may be obtained on petition.(tt) It is granted for the secu- 
rity of the heir ; that is of him who is actually so by the death of his 
ancestor and not merely hceres apparens.{v) Originally it was issu- 
able only on the heir's petition, but in later cases the benefit of it has 
been extended to hcereaAfacti, as devisees in tail in fee or for l^,(u7) 

iq) ft Rollers Rep. 769. 2 Sid. 54. 

(r) Thti caM U stated by Mr. Le Marchant in bis report of the Gardner claim, Ap. 496. 
(«) Ibid. p. 422. (0 Nicolas Adult Bast. 112, 113. 

(a) £z parte Bellett, 1 Coz, 299, and see Mos. 393. 
(e) Co. Litt 8, b. ; 6 Ves. 260; 15 Ves. ISO. 

(V) Ex parte Aisooagh, 2 P. WoM. 591 ; Moe.391,aC. Ear pwte BeBett, 1 Coz. 297. 
£z pute Wallop, 4 Bro. C. C. 90 ; 2 Dick. 767, & C. 

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and it has been granted on the application of the attorney general 
for the protection of a charity,(a7) and has also been extended to cases 
of personal estate.(y) 

\ •3Q2 1 *This writ in its ordinary application applies to cases 
^ J where a woman soon after the death of her husband al- 

leges herself to be with child by liim. By the original frame of it the 
sheriff was commanded that in the presence of twelve knights and as 
many women, he should cause examination to be made whether the 
woman was with child or not : and if with child about what time it 
would be boro, and that he certify the same to the justices of assize or 
at Westminster, under his seal and under the seals of two of the men 
present.(z) But as on the one hand its operation has been extended 
to cases to which it did not anciently apply, so on the other, it is not 
now necessary that it should be executed in its original strictne86.(a) 
In one case it was ordered to issue against a married woman (whose 
husband had been nearly ten years abroad,) on the application of a 
devisee in a will, in which there was a limitation, that if she had a 
male child within forty weeks after the testator's decease, it should 
take before the devisee : but it was provided that the writ shoukl 
remain in the office fourteen days, and if within that time she choose 
to submit to an examination by two midwives to be appointed by the 
petitioner, to inspect and examine by such examination as they should 
think nefcessary, whether she were pregnant, then the writ not to go 
till further orders, otherwise to issue.(6) But an heir apparent cannot 
have this writ during the life of his ancestor.(c) 

The writ issues although the widow is married to a second husband, 
but the mode of executing it is in that case difierent((/) And the 
Couft thought itself at liberty on a recent occasion to soften the rigour 
of the common law, in the manner of execution by special directions 
according to the circumstances of the case.(c) 
r ^093 I The subject of filiation must now be considered, with 
L J reference *to the existing presumption of paternity, arising 

from birth in wedlock, and the rules which regulate the admission of 
evidence, and the nature of the evidence required to rebut such pre- 

The cogency of the presumption of paternal parentage from mar- 
riage, having upon several recent occasions been elaborately investi- 
gated, it appears to be sufficient to set forth what appears to be the 
present state of a part of the law, of which the histoiy is an eminent . 
example of the judicial power of legislation. Those who would 
minutely examine its changes, will find the cases chronologically 
arranged in Sir Harris Nicolas's Treatise on Adulterine Bastardy. 
This work will be found to give a better account of the history than 

(x)AUomey General ▼. Laroohe, cited 3 P. Wins. 591; 

(S4^06. 391 ; 2 P. Wms. 591 ; Co. Utt. 8, b. n. (3). 

(«) The proceeding's are fully stated in Ladj Willoughbj^s case, Cro. Eliz. 56.6, and 
Keaber's case, Cra Jac. 685 ; I Biirn*8 £cc. Law, 124; Co. Litt. 8 b.; Com. Dig. Bastard. 

(a) 2 P. Wms. 593. 

(6) In re firown ex parte Wallop, 4 Bro. Ch. C. 90 ; 2 Dick. 767, S. C. 

(c) 6 Ves. 260. (d) Cro. Jac 685. 

(e) In re Ann Fox, by Sir L. Shadwell, T. C. 1836, MS. See the form of the writ, Re|f. 
firev. 227» a. And further upon it, 3 Uarir. Jurisc Ezerc. 413. Barriogton 00 Stat p. 9. 

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of the present state of this part of the law. The rule of quaiour maria 
has not, it is probable, many more supporters at the present day. 
Even Lord Eldon said that the law had been scrupulous about legiti- 
macy, to the extent of disturbing the rules of reason. It is not easy 
to imagine a stronger condemnation of any doctrine which at any 
time formed part of the English law. The result seems to be, that the 
early writers, as Bracton and Fleta, recognize no such doctrine as 
that known by the name of quaiuor maria, and that the law, therefore, 
as now settled in its repudiation of this doctrine, is in conformity with 
the most ancient authorities. The rule had its origin in the refine* 
ments of pleading. The presumption from birth in wedlock was held 
conclusive, unless met by averment of what was called special matter. 
This matter was confined, except in cases of divorce, to these two 
(acts ; the impotence of the husband, and his absence beyond the four 
seas during the time of conception, and according to some authori- 
ties, of gestation. The policy of the law, it has been observed, ap- 
pears to have been, that no fact should be tendered in issue from which 
the illegitimacy was not the immediate and inevitable inference : or 
to use we language of a judge of those days, that all matter was irre- 
levant, which was only argumentative to prove the bastardy, for the 
party ought to conclude and so bastard.{f) 

Yet even this policy seems insufficient to establish the reasonable- 
ness of the rule. For it would be difficult to contend that p ^^g . -i 
*no fact short of the husband's absence beyond seas, could ^ •' 

lead inevitably and immediately to the inference of non-access at the 
period of conception. 

The doctrine of quatuor mariay is asserted without qualification by 
Lord Coke,(^) and it remained unouestioned until the time of' Lord 
Hale, who has the merit of laying down the sensible rule, that if the 
husband, whether within the realm or not, had in fact no access to 
the wife, the child would be a bastard.(A) The old doctrine was dis- 
regarded in subsequent cases, and finally exploded by that of Pendrell 
v. Pendrell, before Lord Raymond.(i) 

The principal question in the numerous cases which have occurred, 
since that of Pendrell v. Pendrell, has been what evidence shall be 
deemed sufficient to establish the fact of non-access. In the cases of 
Lomax v. Holmden ;{j) Smyth v. Chamberlayne ;(A) Boughton v. 
Boughton ;(/) Lloyd's case ;(m) Head v. Head ;(n) and Bury v. Phil- 
pot ;(o) the evidence was deemed insufficient to rebut the presumption 
of legitimacy : and in Pendrell v. Pendrell, and Corbyn's case ;(p) 
Rex V. Bedale ;(q) Rex v. Lubbenham ;(r) Goodnight v. Saul ;(s) Rex 
V. huBe;{i) Rex v. Maidstone ;(u) the Banbury Peerage case;(i>) 
Clarke v* Maynard ;(u>) the Gardner Peerage case ;(x) and Morris v. 

(/) Le Marchan^ Pref. to Gardner Peerage. 

is) Co. Lit. 244, a. (A) Dickens v. Collins, cited 1 Salk. 123. 

(7) 2 Strange, 925. {j) 2 Strange, 940. {k) Gardner case, App. 

il) Ibid and see 3 Taunt 342. (m) Gardner case, 468. 

(n) 1 Sim. & St. 150 ; 1 Turn. & Russ. 139. (o) 2 My. & K. 349. 

ip) Before Lord Talbot, cited by Lord £IIenboroQgh in the Banbury case. 

iq) 2 Str. 1076 ; Andr. 9. (r) 4 T. R. 251. (•) 4 T. R. 356. 

it) 8 East, S02. (u) 12 East, 550. 

(«) Le Marcbant*8 Gardner OB«e, App. Kicolas Adult. Bast 291. 

(V) 6 Madd. &. Geld. 364. {x) Le Marchant^s Report, Nicolas, 909. 

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884 hubbaok's bvidsnoe of srioosssioif . 

Davis ;(y) the presumption was efleclually encountered by the evid- 
ence adduced. 

That a physical impossibility of the husband being the father, was 
not, even before the Banbury case, the sole means of rebutting the pre- 
r ^gg- -t sumption of legitimacy further appears from a remarkable 
»• -I case mentioned by Lord Erskine,(2) as having happened 

during his practice at the ban A child claimed as heir of A,, becot- 
ten on the oody of B., his wife, and produced as such.on its birth; out 
proof was given that B. had been married to C. before her marriage 
with A., and that C. was living after the marriage, and the evidence 
of the former marriage destroyed the claim of the child as the legitir 
mate child of A. A claim was then made for the child to other pro- 
perty, as the child of C, who was living, and in the neighbourhood of 
A., during the time of her pregnancy, and until the birth of the child ; 
but the jury presumed from the fact of the second marriage, and the 
production of the child at its birth, as the child of A^ that it was not 
the child of C.(a) 

It is now unnecessary to look for the law upon this question beyond 
the answers of the judges in the Banbury Peerage case. Lord Lynd- 
hurst reclBntly said that he had looked attentively through all the 
subsequent cases, and that not one of them had broken in upon or 
impeached in the slightest degree the principles of law there laid 

The following are the questions put by the House of Lords to the 
judj^es in that case, and the answers returned thereto.(c) 

On the 30th of April, 1811, the judges were asked : L " Whether 
r *396 1 *^^^ presumption of legitimacy, arising from the birth of 
^ -^ a child during wedlock, the husband and wife not being 

proved to be impotent, anahaving opportunities of access to each other 
during the period in which a child could be begotten and born in the 
course of nature, can be rebutted by any circumstances inducing a 
contrary presumption?" 

The Lord Chief Justice of the Court of Common Pleas (Sir James 
Mansfield) having conferred with his brethren, stated, that they were 
unanimously of opinion, " That the presumption of legitimacy arising 

(y) 3 Carr. & Payne, 218. 427, (14 E. C. L. R.) ; Nicolas, 216 ; Dom. Proc 1837-; 5 CL 

(z) la the Banbary case and cited by Lord Redesdale in his speech in jodgment in the 
same ease, Le Marcbant^s Gardner Peera^ case, App. 

(a) From a recent decision, however, it would scero that the mere facts above stated, 
would not now be held sufficient to repel the legal presumption. Ann Fletcher was marrie4 
in 1812 to Thomas Fletcher ; in 1818, she was married to Henry Parsons, and cohabited 
with him from that time till 1832, darings which period she had two children, who were 
christened by the names of Henry and Elizabeth Parsons, and never went by the name ef 
Fletcher or any other name but that of Parsons. Fletcher was living at the time of the 
triaL Upon an appeal from an order of sessions,- founded upon the presumed illegitimacy 
of the two children, the Court of Q. B. held that as Fletcher was still living and there wae 
no evidence of non-access by him to the wife, the legal presomption of the legilimaoy of the 
children could not be rejected^ Reg. v. Inhab. of Mansfield, 1 Gale &: Davison, 7. A case 
of the same nature was on May 20, 1842, brought before the House oT Lords by a petition 
reepecting the Townsend Peerage, fhnn which it appeared that the person who claimed to 
be the eldest sod and heir apparent of Lord Townsend, was born more than a year afier hie 
mother the Marchioness of Townsend had separated from the Marquis, and had cohabited 
with Mr. Margetts whom she had married. 

(b) Morris v. Davit, 5 CL dD Fm. 262. 

CO Banbury Earldom, Min. E?. 181X ; 1 8iiii. d& 8t 163^ 158. 

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or oOHSAKommTT. 285 

firom tbe birth of a -child during wedlock, the husband and wife not 
being proved to be impotent, and having opportunities of access to 
each other, during the period ih which a child could be begotten and 
bom in the coarse of nature, may be rebutted by circumstances indue- 
iflca contrary presumption ;" and gave his reasons. 

The judges were then asked : II. " Whether the fact of the birth of 
a child from a woman united to a man by lawful wedlock, be always, 
wr be not always, by the law of Englana, pritnd facie evidence that 
such a child is legitimate ; and whether in every case in which there 
\MyrimSL facie evidence of any right existing in any person, the onun 
ftrobandi be always, or be not always, upon the person or party calling 
such right in question. Whether such pritnd facie evidence of legiti- 
macy may always, or may not always, be lawfully rebutted by satis- 
factory evidence that such access did not take place between the 
bosband and wife, as by the laws of nature is necessary in order for 
the man to be, in fact, the father of the child ; whether the physical 
£ict of hnpotency, or of non-access, or of non-generating access (as 
tbe case may be) may always be lawfully proved, and can only be 
lawfully proved, by means of such le^al evidence as is strictly admis- 
sible in every other case in which it is necessary, by the law of Eng- 
land, that a physical fact be proved V* 

The Lord Chief Justice of the Common Pleas delivered the unani- 
mous opinion of the judges upon this question as follows : " That the 
feet of the birth of a child from a woman united to a man by lawful 
wedlocky is generally, by the law of England, primd facie evidence 
that such child is legitimate. That in every *case in r ^g„ ^ 
which there is primA facie evidence of any right existing ^ »• J 
in any person, the onus probandi is always uf)on the person or party 
calling such rieht in question. That such vrimd facie evidence oi legi- 
timacy may always be lawfully rebutted oy satisfactory evidence that 
sach access did not take place between the husband and the wife, as, by 
the laws of nature, is necessary in order for the man to be, in fact, the 
father of the child. That the physical fact of impotency, or of non- 
access, or of non-generating access, as the case may be, may always 
be lawfully proved by means of such legal evidence as is strictly ad- 
missible in every other case in which it is necessary, by the law of 
Bndandy that a physical fact be proved." 

The judges were further asked : III: " Whether evidence may be 
received ai^ acted upon to bastardize a child bom in wedlock, after 
pix>of given of such access of the husband and wife, by which, accord- 
ing to the laws bf nature, he might be the father of such child, the 
bosband not being impotent, except such proof as goes to negative the 
feet of generating access V* 

I Vi ** WJ^ther such proof must not be regulated by the same prin- 
ciples as are applicable to the legal establishment of any other fact?" 

In answer to the said questions, the Lord Chief Justice of the Com- 
mon Pleas delivered the unanimous opinion of tbe judges on the same 
as follows : ** That, after proof given of such access of the husband 
and wife, by which, according to the lavt^s of nature, he might be the 
father of a child (by which we understandproof of sexual intercourse 
between tbem) no evidence can be received except it te^dto falsify 
tbe proof that such intercourse bad taken place. That wteh proof 

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986 RTTBB4CX*8 8VIDEII0B 07 81KXB88I01I. 

must be regulated by the same principles as are applicable to the esta- 
blishment of any other fact." 

On the 30ih of May, 1811, the two following questions were put to 
the judges : V. " Whether in every case where a child is bom in law- 
ful wedlock, sexual intercourse is not by law presumed to have taken 
place, after the marriage between the husband and wife (the husband 
r <jggg ^ uot bciug pTovod to be separated from her by ♦sentence of 
L J divorce) until the contrary is proved by evidence suffi- 

cient to establish the fact of such non-access, as negatives such pre- 
sumption of sexual intercourse within the period, when, according to 
the laws of nature, he mi^ht be the father of such child ?" 

VI. " Whether the legitimacy of a child born in lawful wedlock 
(the husband not being proved to be separated from his wife by sen- 
tence of divorce), can be legally resisted by the proof of any other 
facts or circumstances than such as are sufficient to establish the fact 
of non-access, during the period within which the husband, by the law . 
of nature, might be the father of the child ; and whether any other 
question but such non-access can legally be left to a jury upon any 
trial, in Courts of law, to repel the presumption of the legitimacy of a 
child so circumstanced V* 

The Lord Chief Justice of the Court of Common Pleas delivered 
the unanimous opinion of the Judees upon the lastt|qestion as follows : 
** That in every case where a child is bom in lawful wedlock, (the bus- 
band not being separated from his wife by a sentence of divorce) sexual 
intercourse is presumed to have taken place between the husband and 
wife, until that presumption is^encountered by such evidence as proves, 
to the satisfaction of those who are to decide the question, that such 
sexual intercourse did not take place at any lime when, by such inter- 
course, the husband could, according to the laws of nature, be the 
father of such child. That the presumption of the legitimacy of a 
child bora in lawful wedlock, the husband not bein^ separated from 
his wife by a sentence of divorce, can only be legally resisted by evi- 
dence of such facts or circumstances as are sufficient to prove, to the 
satisfaction of those who are to decide the question, that no sexual 
intercourse did take between the husband and wife, at any time, 
when, by such intercourse, the husband could, by the laws of nature, 
be the father of such child. Where the lecitimacv of a child, in such 
a case, is disputed, on the ground that the husband was not the father 
of such child, the question to be left to the jury is, whether the hus- 
band was the father of such child? and the e violence to prove that he 
was not the father must be of such facts and circumstances as are 
sufficient to prove, to the satisfaction of a jury, that no se3(ual inter- 
r *399 1 c<^^^"'se took place between the husband and wife at *any 
1- -I time, when, by such intercourse, the husbaqjl could, by 

the laws of nature, be the father of such child. The non-existence of 
sexual intercourse is generally expressed by the words ' non-access of 
the husband to the wife;' and we understand those expressions, as 
applied to the present Question as meaning the same thing, because in 
one sense of tne word ^ access*' the husband may be said to have 
access to his wife as being in the same place or the same house ; 
and yet, under such circumstances, as instead of proving, tend to 
disprove, that any sq^ual intercourse took place between them." 

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The Banbury Peerage case, is generally regarded as having unset- 
tled the previous law, and introduced new rules for the government 
of these questions. There appears to be less justice in this observation 
as applied to the law laid down in that case, whether set forth in the 
opinions of the Judges, or in the speeches of the law Lords, than as 
applied to the decision upon the facts of the case. And whatever may 
be thought of the sufficiency or insufficiency of the premises from 
which the House of Lords drew their concfusion in tnat case, it is 
conceived that the rules of evidence by which those premises were 
admitted into the argument, were quite consistent with previous deci- 
sions upon the subject, from the case of Pendrell v. Pendrell down- 
wards. Accordingly, in the decisions which have taken place upon 
this question since the Banbury case, the Judges have uniformly treated 
it as an authority declaratory of the old law, and not introductive of • 
any new rules. " The ancient policy of the law," said Sir John 
Lc^ch, '* remains unaltered. A ctiild, born of a married woman, is 
to be presumed to be the child of the husband, unless there is evi- 
dence which excludes all doubt that the husband could not be the 
father. But in modem times, the rules of evidence has varied. For- 
merly, it was considered all doubt could nojt be excluded unless the 
husband were extra quaiuor maria. But, as it obvious that all doubt 
may be excluded from other circumstances, although the husband be 
within the four seas, the modem practice permits the introduction of 
every species of legal evidence tending to the same conclusion. But, 
itiU the evidence must be ^f a character to exclude all doubt ; and 
when the Jud^s in the Banbury case, spoke of satisfactory evidence 
upon this *subject, thev must be understood to have meant r ^ .^^ -. 
wch evidence as would be satisfactory, having regard to '■ -* 

the special nature of the subject It is to be deduced as a corollary, 
from the opinions of the learned Judges in that case, that whenever a 
husband and wife are proved to have been together, at a time, when 
in the order of nature, the husband might have been the father of an 
after-born child, if sexual intercourse did then take place between 
them, such sexual intercourse was primd facie to be presumed, and 
that it was incumbent upon those who disputed the legitimacy of the 
after-bora child, to disprove the fact of sexual intercourse having 
taken place, by evidence of circumstances which afford irresistible 
presumption that it could not. have taken place, and not by mere evi- 
dence of circumstances which might afford a balance of probabilities 
against the fact that sexual intercourse did take place. In the present 
case, the husband and wife are proved to have been together, at a 
liroe when, if sexual intercourse did take place between them, the hus- 
band might, in the order of nature, have been the father of the plain- 
tiff, and the circumstances^^ given in evidence on the part of the defen- 
dant, not only do not afford irresistible presumption that sexual 
iotereoorse did not actually take place^ but leave the balance of pro- 
babilitiea in favour of the fact that sexual intercourse did take place 
between them. It is true, that the rule laid down by the learned 
Judge who tried the issue, from the case of The Kin^ v. Luffe, cannot 
be reconciled with the opinions of all the Judges in the Banbury case, 
and is not therefore to be considered aa the rule now applicable to the 
subject ; yel^ .as it is my opinion tluit, if upon any direction from that 

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868 hubbaok's wmmmm of svocbssion. 

learned Judge the jury had found a different verdict, it ^ould have 
been my duty to have ordered a new trial, it cannot serve either the 
purposes of justice, or the interest of the parties to submit this case a 
second time to a jury in order to give to the defendant the chance of 
their coming to a verdict, which, if they did find it, 1 could not 

In the same case, on appeal before Lord Chancellor Eldon, bis 
Lordship said, ** The case ot the Banbury Peerage was decided in the 
r •401 1 H^*^"^® ^^ Lords after very great consideration, and upon 
L J *lhat occasion, some questions were put to the Judges. 

Now, it is well known, that the questions proposed to the Judges by 
the House of Lords, though made to approximate so nearly to the 
questibns to be determined as to enable the House to form a judgment 
on the case actually before it, cannot be the very questions which the 
House is called upon to decide. The answers given by the Judges, 
therefore, although entitled to the greatest respect, as being their 
opinions communicated to the highest tribunal in the kingdom, are toot 
to be considered as judicial decisions ; but in that case of the Banbury 
Peerage, I take them to have laid down, so as to give it all the weight 
which will necessarily travel along with their opinion, although not a 
iudicial decision, that wHere access, according to the laws of naturct 
by which they mean, as I understand them, sexual intercourse, has 
taken place between the husband and wife, the child must be taken to 
be the child of the married person, the husband, unless on the contrary 
it be proved that it cannot be the chiki of that person. Havfaig staled 
that rule, they go on^to apply themselves to the rule of law, where 
there is personal access as contradistinguished from sexual intercourse, 
and on that subject, I understand them to have said, that where there 
is personal access under such circumstances that there might be 
sexual intercourse, the law raises the presumption that there has been 
actually sexual intercourse, and that that presumption must stand till 
it is repelled satisfactorily by evidence that there was not such sexual 
intercourse. What is satisfactory evidence that there was not such 
sexual intercourse, is a question which may be put in two points of 
view : First, is it meant that it must be proved, from circumstances 
which took place at the time that that personal access which might or 
might not give an opportunity of sexual intercourse, was had, or by 
the evidence of persons present, that sexual intercourse did not take 
place ? or secondly, that you are to go into all the evidence as to the 
conduct of the parties prior to the interview in which personal access 
was had, and their conduct after that interview, in onier to satisfy 
yourself, by the evidence of circumstances both previous and subse* 
quent to the interview, what did or did not pass when that interview 
was had. Wh^iever it is necessary to decide that question great care 
must be taken, regard being had to this, that the evidence is to be 
r •402 1 *^^^®i^®^ under a law which respects and protects l^ti« 
^ ^ macy, and does not admit any alteration of the status et 

e&nditio of any person, except upon the most clear and satisfiEtctory 
evidence It does not appear to me to be necessary now to ascertain 
what is the actual rule of law upon the subject ; upon my recollection 


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of the Banbury Parage ease, it was the opinion of the Judges, that 
where personal access is established, sexual intercourse is to be pre- 
saroedy and that that presumption must stand, till done away with by 
clear and satisfactory evidence, whether that evidence apply directly 
to the jperiod at which personal access was proved, or whether it may 
be called satisfactory, if it apply not to that period, but to antecedent 
and subsequent periods, in one way or other the rule must be estab- 

Upon the trial of the second Issue in the case of Morris v. Da vies, 
Vaughan B., without expressly referring to the Banbury case, 8tate4 
the law upon this subject to the jury, in language so closely resem- 
bling the answers of the Judges in that case, that it is impossible not 
to conclude that he had them in his mind at the time, whilst there is a 
total absence of any intimation that ha considered the law as he then 
stated it, to have been established by any recent decision at variance 
with older authorities. He told the jury, that *' they must be satisfied 
that no $exuai intercourse took place between the husband and wife, 
for if there was any such intercourse at a time, when by the course 
of nature, the husband might be the father of the child, the law fixes 
the child to be the child of the husband ;" and further, " that if there 
was any opportunity for sexual intercourse, the law presumes it to 
have taken place as between the husband and the wife/'(/) 

So on the trial of the third issue in the same case, Gaselee, J., said 
** the question to be determined was, whether the parties were in such 
a situation that sexual intercourse might have taken place between 
them ; for if so, the law would presurpe that it did take place ;" and 
his Lordship fully adopted the opinion of Mr. Baron Vaughan, as 
staled to the jury on the former occ6^ion.(^) 

•In another case, Mr. Baron Alderson said, that where j- ^ .^g ^ 
a jury believes that a husband and wife have actually had ^ J 

sexual intercourse within the requisite limits of time, the law will not 
allow a balance of the evidence aa^o who is most likely to have been 
the father.(A) ^ 

In none of these cases is there any intimation, that the leaned 
Judges before whom they were tried, considered that the Banbury case 
had introduced any relaxation of the old strict rule which required the 
exclusion of all doubt that the husband could not be the father. And 
there in the positive authority of Lord Lyndhurst to the same effect. 

When the case of Morris v. Davies was before Lord Lyndhurst, as 
Lord Chancelbr, in 1829, he said, " There is no doubt or difficulty, 
as it appears to me, with respect to the law applicable to this question. 
It was stated distinctly and clearly by the Judges in the case of the 
Banbory Peerage ; and I consider the opinion expressed upon that 
occasion, not as laying down any new doctrine, but a$ arising out of 
and founded upon the previous decisions.'\i) And when the case 
was before the House of IJords in 1887, bis Lordship said, *' He had 
stated on a former occasion, and he still entertained that opinion, that 
the learned Judg^ laid down no new principle of law in the Banbury 

(^ ik«4 r. Head, 1 Tom. &-R. 139. (/) 3 Car. & Pay. 217, (14 E. C. L. R.) 

(M) 3 Car. & Pay. 427, (14 E. C. L. R.) (A) Cope y. Cope, 1 Moo. & Rob. 275. 

(t) 5 CL & Fin. 214. 
Mabob, 1645—7 

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Peerage ca8e.(^) None of the cases on this subject, ^hich have 
occurred subseauently to the Banbury Peerage, impugn the doctrine 
established by that case. . 

In . Morris v. Davies, the law underwent very full consideration : 
three issues were tried ; the case was then argued at length before 
Lord Lyndhurst, C* and again before the House of Lords whose deci- 
sion confirmed the authority of the Banbury case. The facts of the 
case of Morris v. Davies, may be sufficiently collected from the 
judgments of Loyd Lyndhurst and Lord Cottenhara, whose observa- 
tions form a valuable commentary upon the Banbury case, and the 
law thereby established. 

r #404 1 *Upon the 1st application for a new trial, in 1827, Lord 
•- J Lyndhurst said, ** A great deal was said with respect to 

the law applicable to question^ of this kind. It appears to me, after 
all that has taken place upon the subject, that no doubt can be enter- 
tained with respect to the rule of law as applicable to cases of this 
naturev It is perfectly clear that when a husband and wife are not 
separated from each other by a sentence of divorce a mensd et thorOf 
the law will presume access, that is, in other words, sexual intercourse, 
unless the contrary is proved, and it is also laid down, and very pro- 
perly so, that in order to repel this presumption of law, the evidence 
must be clear and satisfactory ; clear and satisfactory to the nflinds of 
those who are to decide upon the question ; lisht presumptions \^ill not 
be sufficient The expressions of the Vice Chancellor, m the case of 
I^ad V. Head, are that the evidence must be clear and satisfactory. 
It is stated by the Judges in the case of the Banbury Peerage, that 
the facts and circumstances by which the presumption of law is to be 
repelled, must be such as to be satisfactory to the minds of the Jury 
who have to try the question. Therefore, evidence arising from cir- 
cumstances may be sufficient to repel the presumption, provided the 
inference to be drawn from that evidence be clear and satisfactory. 
Another question arises, and was ^ggested in Head v. Head, namely, 
whether the inference, arising frow the conduct of the parties, may be 
sufficient to rebut the presumption of law ; undoubtedly, the evidence 
arising from the conduct ot the parties may be most material and 
important ; but whether such evidence alone would be sufficient to 
rebut the presumption, is unnecessary in this case to determine. In 
the case ot the Banbury Peerage, the conduct of the parties and the 
evidence thence arising, formed a principal ground of the Judgment 
of the House of Lords." After applying the principles which he had 
thus stated to the facts of the case then before him, his Lordship con- 
- tinued : " It has been stated in argument, that this case resembled 
Head v. Head : it bears no resemblance to it whatever : it is true that 
the husband and wife were separated, and that there were occasionat 
visits of the husband to the wife ; these are the only circumstances in 
in which that case has any resemblance to the present. There was 
not the slightest evidence to shew, in the case of Head v. Head, that 
r *405 1 ^^ ^^^^ ^^* living in adulterv when the *cbild was pro- 
^ J created ; the birth of the child was not concealed, on the 

contrary, as soon as the child was born it was baptised in the name 

O) 5CL4&rm.263. 

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OF consxtiBmmrr. 291 

of the htHA)aDd ; it went by the name of the husband during the life- 
time of the husband. After the death of the husband, Randall, M^ho 
was the supposed or reputed father, married the widow, and then for^ 
the first time the child wa& called by the name of Randall, and the 
only circumstance to repel the presumption, that the child was the 
child of the husband, was this change of names. Here, when the 
birth of the child took place it was concealed, and in the registry of 
baptism, the child is described as base born ; he is baptised not- in the 
name of the husband, but in that of Evan Williams, and afterwards, 
at school he goes by the name of Austin. That case, therefore, bears 
no resemblance whatever to the present" 

Again, when giving judgment in the case, after the second and third 
trials, his Lordship, after recapitulating the facts, and stating that 
there was no doubt or difficulty, with respect to the law applicable to 
the question, and that he considered the opinion expressed by the 
Judges in the case of the Banbury Peerage, not as laying down any 
Dew doctrine, but as arising out of and founded upon the previous deci- 
sions, said : " On that occasion the Lord Chief Justice of the Common 
Pleas stated the unanimous opinion of the Judges in these precise 
terms. That in every case where a child is born in lawful wedlock, 
the husband not being separated from his wife by a sentence of 
Vlivorce, sexual intercourse is presumed to have taken place between 
the husband and wife, until that presumption is encountered by such 
evidence as proves to the satisfaction of those who are to decide the 
question, that such sexual intercourse did not take place at any time, 
when by such intercourse the husband could, according to the laws of 
nature, be the father of such child. The question, therefore, is a 
question of fact, whether sexual intercourse took place in the spring 
of 1792, (for that is the period to which reference must be had,) 
between Mr. and Mrs. Morris. In the absence of all evidence, either 
on the one side or on the other, the law would presume that such sexual 
.intercourse did take place. It was argued, at the bar, that the doc- 
trine contained in the opinion which I have stated, has r %aqq i 
been *afiected by a case decided in this Court, the case of I- •■ 

Head v. Head. In truth, however, Head v. Head does not in the 
slightest decree affect the opinion delivered by the Judges in the case 
of the Banbury Peerage. It recognises and adopts that opinion, and 
all that is said by the present Master of the Rolls, is, that the Court 
which is to be satisfied that sexual intercourse did not take place, 
must be so satisfied, not upon a mere balance of probabilities, but 
upon evidence which must be such as to exclude all doubt, that is, bf 
course, all reasonable doubt in the minds of the court or jury, to whom 
the question is submitted. Therefore, in deciding this case, I look 
upon it that the point to which I am to direct my attention, as a ques- 
tion of fact, is this : whether the circumstances are such as to satisfy 
me, that no sexual intercourse did take place between these parties, at 
the period to which reference is had.'* After commenting upon some 
parts of the evidence, his Lordship proceeded. *' Having notibed 
these two circumstaocee, I come back to the question of law. I have 
stated the opinion delivered by the Judges in the Banbury Peerage 
case, I will now refer to what was said on that occasion, by Lord 
Rfi^esdale. That most learned, able, and acute lawyer, expresses 

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himself thus, * I admit the law presumed the child of the wife of A., 
born when A. might have had sexual intercourse with her, or in due 
time after, to be the legitimate child of A., but this was merely con- 
sidered as a ground of presumption, and might be met by opposing 
circumstances. The fact, indeed, that any child is the child of any man, 
is not capable of direct proof, and can only be the result of presumption: 
understanding by presumption, ^ probable circumstance drawn from 
facts, either certam or proved by credible testimony, by which may 
be determined the truth of a fact alleged, but of which there can be 
no direct proof.' He also says : * It is, therefore, of high importance 
to consider in a question of legitimacy, whether the fact of such 
acknowledgment as would demonstrate the legitimacy did take place, 
or whether by circumstances, such acknowledgment was rendered 
impossible, as by the child being a posthumous child. If, on the con- 
trary, it appears that the supposed lather was ignorant of the bh-th of 
8ucn a child, and that the fact of its birth was concealed from him, 
such concealment is strong presumptive proof that there had existed 
r *407 1 "^ sexual intercourse, which could have made him the 
L J father of *such child.' Such was the opinion of the noble 

and learned person to whom I have referred. Lord Ellenborough's 
opinion, though delivered in more general terms, coincides with that 

fiven by Lord Redesdale : these were followed by the opinion of Lord 
lldon to the same effect. Lord Erskine considered it necessary to 
Erove the actual impossibility of sexual intercourse having taken place, 
ut no lawyer will now contend that that. opinion can be sustained. 
The case comes back, therefore, to the question of fact, (about the law 
there is no doubt,) are the circumstances of this case such as ought to 
satisfy the person who has to decide upon it, that sexual intercourse 
did not take place between Mr. and Mrs. Morris, in the spring of 
1792." After referring to some of the principal facts in evidence, his 
Lordship then proceeded, " The concealment coupled with the other 
circumstances of the case, and the utter ignorance in which Mr. Mor- 
ris was kept to his death, a period of seventeen years, with respect to 
the transaction, satisfies me as a conclusion of fact, that no sexual 
intercourse did take place between Mr. and Mrs. Morris, at such a 
period as could have rendered the child the offspring of Mr. Morris. In 
giving this judgment I afiect no rule of law, I state the rule as I find 
it. It is founded on sound sense, and as I am hound to do, I acquiesce 
in it. I have come like a jury to a conclusion of fact. The circum- 
stances of the case are such as to lead me to that conclusion, not, as 
I think, upon a bare balance of probabilities, but as the result of the 
thorough conviction of my mind, founded upon a careful and patient 
attention to all the evidence in the case. I am bound, therefore, hav- 
ing this impression, to state my opinion that the plaintiff is not entitled 
to the property in dispute as the son of Mr. Morris." 

tlis Lordship's judgment having been appealed from, the aippeal 
was heard before the House of Lords, in 1837, upon which occasion 
Lord Chancellor Cottenham, said, " The argument of the appellant is 
put thus: If sexual intercourse be proved, no evidence will be per- 
mitted tO'prove the child illegitimate, and proving the husband and 
wife to have been in situations in which sexual intercourse might 
have taken place, is proof of sexual intercouse. And as no distinct 

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proof of sexual intercouse is required or capable of being given^ 
therefore no evidence can be *received to prove the child r ^ .^g -i 
illegitimate. This argument appears to me to rest entirely ^ J 

upon confounding two things which are perfectly distinct, viz, : the 
proof or conclusion of some intercourse havifig taken place, with the' 
evidence by which such conclusion is to be established. If sexual 
intercourse be proved, that is, if the jury or the judge trying the ques- 
tion of fact be satisfied that sexual intercourse took place between 
the husband and wife at the time of the child being conceived, the 
law will not permit an inquiry whether the husband or. some oTher 
man was more likely to be the father of the child ; and some facts 
are so strong as to afford irresistible evidence of sexual intercourse 
having taken place, such as the husband and wife sleeping together, 
there being no natural impediment to sexual intercourse ; but in the 
absence of such irresistible evidence, the fact of sexual intercourse 
must be tried like every other fact to which no direct evidence is 
applicable. Proof that the husband and wife were living in the same 
town, and so had opportunities of meeting and, therefore, of sexual 
intercourse, would, in the absence of any proof raising a presumption 
to the contrary, be sufficient to establish the legitimacy of a child 
bom of the wife. Proof that they had been in the same room or in 
the same house together would be much stronger evidence of the fact, 
the strength of which, however, would vary with the circumstances ; 
and as neither would be direct proof of sexual intercourse, but of facts 
from which, taken by themselves, sexual intercourse would be inferred, 
such inference must, as in all other cases, be capable of being repelled 
by the proof of facts tending to raise a contrary inference. The argu- 
ment for the appellant assumes, as a rule of law, that no evidence is 
admissible to disprove sexual intercourse having taken place where 
the opportunity is proved to have existed, the husband and wife being 
proved to have been within the same house. This is very like attempt- 
ing to establish a doctrine of intra quatuor muros instead of the ex- 
ploded doctrine of quatuor maria. But it is admitted that the parties 
may be followed within these four walls, and the fact of sexual inter- 
course not only disproved by direct testimony, but by circumstantial 
evidence raising a strong presumption against the tact. If so, the 
principle does not stand on any positive rule of law, but upon evidence 
of the fact as to which the ordinary rules of evidence must be applied. 
Such *would appear to be the obvious and common sense r <»^qq -• 
state of the question, as tjje law is now understood, and ^ J 

such appears to be the result of all the authorities since the Banbury 
Peerage case ; for although some judges since that time have used 
expressions not quite reconcilable with the true principles of that case, 
and the opinions of the judges given upon it, I do not find that any 
judge has ever expressed any opinion that the law had not been cor- 
rectly laid down in that case, or manifested any intention of acting 
on any principle inconsistent with the doctrine there propounded 
Approving, as I do, oT that doctrine, and feeling strongly the great 
evil that would arise from questioning rules so solemnly propounded 
and which have now for many years been considered as the estab- 
lished and acknowledged law upon the subject, I shall confine my 

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294 hubback's svideroe or soccessior. 

inquiries to the principles laid down in that case, and acted upon in 
aiiibsequent cases.*' 

His Lordship then recapitulated the facts of the Banbury case, and 
having commented upon them, and the conclusion which the house 
drew from, them proceeded to make some observations upon the 
answers of the judges given in that case. " In terms the judges stated 
that by access they mean sexual intercourse, and not sucn intercourse 
as is understood by being in the same place or in the same house. 
Now* my Lords; all these answers assume that if sexual intercourse 
be proved at the* proper time, the legitimacy of the child cannot be 
questioned, and that the fact of sexual intercourse may be tried like 
any other fact. They do not assume that opportunities of sexual 
intercourse are conclusive evidence that it did take place. My Lords, 
I consider the Banbury Peerage case, as establishing a principle not 
only from the opinions of the judges, but from the points actually 
decided distinctly negativing the presumption argued for at the bar, 
namely, that where the evidence proves that the husband and wife had 
opportunities of access from being shown to have been in the same 
house or place, no evidence from the conduct of the parties, that is, no 
circumstaniial evidence can be received to repel the presumption of 
sexual intercourse, and therefore the legitimacy of the child." His 
Lordship then proceeded to comment upon the cases which had 
r #410 1 occurred since the Banbury case; he cited *Head v. 
•^ **" J Head,(//) The Gardner Peerage case,(i) Bury v.PhiIpott,(j) 
and Clarke v. Maynard ;(ft) and he stated, that he did not find 
any instance in which any judge had intended to lay down a rule 
different from that which is to be extracted from the Banbury Peerage 

Lord Lyndhurst having premised that the arguments at the bar did 
not lead him in any degree to alter the opinion he had formed upon 
the subject when under his consideration in the Court of Chancery, 
and having referred to the fourth answer -of the jitdges in the Banbury 
ca§e, and the opinions of Lords Redesdale, Ellenborough, and Eldon, 
in support of the proposition contained in that answer, proceeded to 
observe that it had been suggested at the bar, but not stated with much 
confidence, that the opinion of the learned judges in the Banbury 
Peerage case, had been overruled by subsequent decisions, or at least, 
was at variance with the subsequent decisions ; he had looked through 
the different cases which had been adverted to, and he found, looking 
at them minutely and attentively that not one of them in the slightest 
degree breaks in upon the principle so laid down ; he agreed in that 
which was stated by Lord Coltenham, that particular expressions may 
be picked out from the opinions delivered by the judges on different 
occasions, which expressions taken without reference to the facts of 
the case to which they were intended to apply, may be made the 
foundation of plausible argument for the purpose of impeaching the 
authority of the decision in the Banbury case; .but, he said, they do 
not go at all further than that which he had suggested, and it was 
remarkable, that in no* one of the various cases to which reference 

(h) Sapra, p. 394. 999. 1 Sim. & St 150; Turn, k Rum. l3a 

(t) Supra, p. 394. {j) 2 Myl dp K. 349. (ft) & Mtd. 364. 

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OP OOMSAWOmillTT. 21>5 

bad hecn made, — he referred to the suhseqaent decisions, — bad the. 
principle laid down by the learned judges in the Banbury case ever 
been called in question. That principle appeared to him to be this ; 
that the evidence of circumstances and of the conduct of the parlies 
may be made so strong as to rebut and repel the presumption of sex- 
ual intercourse having taken p1afte» which was an inference of law 
•arising from the relation of husband and wife. That r ,.,. , 
presumption, however, was «ot to be repelled upon light ^ J 

grounds. The evidence to repel it must be stong, distinct, satisfac- 
tory, and conclusive. The question was, whether the facts of the 
present case were sufficient to repel that presumption. He would 
observe, that all the facts which were allowed in the Banbury case to 
repel the presumption of law existed in this case, and with more dis- 
tinctness and precision than in that case. In the Banbury case, the 
adultery of Lady Banbury was questioned ; in this case the adultery 
of Mrs. Morris was clearly proved : indeed, it was fully admitted by 
counsel at the bar, and could not in point of fact be denied. The 
great point was the concealnnent of the birth of the child. In the Ban- 
bury case, that was not distinctly proved as a matter of fact, but was 
collected only by argument and inference ; in this case it was dis- 
tinctly proved and admitted by counsel at the bar in the course of the 
argument. There was a third point as to the acknowledgment of the 
child by the adulterer ; that was also contested in the Banbury case. 
Here it was proved by such*an overwhelming abundance of evidence 
as rendered it impossible to doubt it. These three material and essen* • 
tial points on which the Banbury case turned, all existed in the present 
case, and were established by the clearest and most irresistible evi- 
dence. In the Banbury case, Lord Banbury took no notice of the 
existence of the child. The same point existed here to the same or 
even a greater' extent. After adverting to the facts in evidence of 
this, his Lordship proceeded to observe that the child was baptised, 
naoaed, brought up, and educated as the child of Austin, who made 
his will in the child's favour, passing over both his father and mother, 
who were poor persons, to whom, of course, his property would be of 
great importance. In the Banbury case there was no registry of bap- 
tism ; in this case, there was a baptisnial register, in which the child 
was described as a bastard. In the Banbury case, the parties lived 
together ; there was no variance or hostility between them, but they 
were on kind and loving terms with each other. Here the parties 
lived separate for above twenty years. The conclusion which he had 
come to was this : Looking at all the evidence and giving it the best 
attention, it operated on his mind to produce the entire absolute con- 
viction that the child, the ^appellant, was not the child of p %a\o l 
Mr. Morris, but the child oi the paramour and adulterer *- -■ 


The house decided, that the legal presumption of legitimacy was 
in this cas^ sufficiently rebutted by the evidence, and affirmed the 
decree of Lord Lyndhurst, thereby completely establishing the rules 
of law, as declared in the answers of the ^dges in the Banbury 

(0 5a&rio.i63. 

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The tfjoly reported case which has occurred since the final decision 
in Morris v. Davie^, is that of Reg. v. Inhabitants of Mansfield^m) 
the facts of which have been stated in a former page,(n) and which is 
quite in accordance with the above decision.' 

The presumption of access has no place when the parents have 
been divorced a mensd et thoro. In such a case the Court held that 
it was necessary to prove access, because they would intend a due 
obedience to the sentence, unless the contrary be shown.(o) But if 
the parties separate by a mere voluntary agreement, access is to be 
presumed until the presumption is rebutted in the ordinary way.(p) 

Since the presumption of legitimacy, from birth in wedlock, pro- 
ceeds upon the supposition that the existence of the contract would 
lead to conjugal intercourse, and therefore, supposes the conception to 
have taken place whilst the parties were married, the case of a child 
born so recently after marriage as to 4Dake it impossible that its pro- 
creation could have been postnuptial, is not referrible to this principle. 
Yet it has always been held, that the presumption of legitimacy applies 
when the child was bom at any time, even a single day,' after mar- 
riage.(9) Lord EUenborough treated this case as standing upon its 
r ^.,g -I own peculiar •ground. " The marriage of the parties," 
•- J he said, " was the criterion adopted by the law in cases 

of ante-nuptial generation, for ascertaining tne actual parentage of the 
child. For this purpose, it will not examine when the gestation began, 
looking only to the recognition of it by the husband in the subsequent 
act of marriage." And Le Blanc, J., said, that in the case of a man's 
marriage with a pregnant woman recently before the birth of the 
child, the very act of marriage in such a situation, is an acknowledg- 
ment by him that he is the father of the child with which the woman 
is pregnant, (r) 

The presumption of legitimacy, arising from marriage, is not con- 
fined to the issue born during the continuance of that relation : but is 
extended, with equal force, to children born within such time after the 
death of the husband, as that by the usual course of gestation, tliey 
might have been begotten by him. This being a matter of uncer- 
tainty, there is no time fixed by the law at which the presumption 
shall cease. Lord Coke, indeed, lays it down that nine months or 
forty weeks is the latest time that the law allows for gestation :{s) 
but this position is too general, and is contrary to the authorities.(0 
Forty weeks being, however, the usual period for a woman going with 
child,(u) in proportion as that period from the death of the husband 

' (m) 1 Gale Sl Davidaon, 7. (n) Sapra, p. 395. 

(o) Pariah of St. George t. St. Margaret, 1 Salk. 123 ; 1 Bl. Com. 457. * (p) Ibid. 

iq) 1 Roll. Ab. 358; Smith Tract de Rep. Angl. lib. 3, e. 6; Swinb. Pt. 4, 5. 15; Fmch. 
L.127; Cd.Liti.244,a. 

(r) Rex V. Lufie, 8 East, 209. 212. Blackatone, it will be remembered, eommendi tbii 

Krt of the law as giving allowance to the frailties of human n&ture. For if a child be 
gotten while the parents are single, and they will endeaTour to make an early reparation 
fer the offenoe by marrying within ft few months aflar, our law ia ao indidgent as not to 
bastardiie the child, if it £» born though not begotten in lawful WBdk>ck ; for this is an 
incident that can happen but once, since all future children will be begotten as well as bora 
within the rules of honour andftivi) society. 1 BL Com. 455. (•) Co. Litt 123, b. 
(<) See Harg. Notes to Co. Litt. J23, b. n. 1,2. 

(tt) See the authorities cited in Harg. Co. Lit 123, b. n. 2, and the answers of Dr. Hunter, 
fioin which it setms that though the usual period of gestation is nine calOTda'r moatbii 

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of cxuiSAKoxnmTT. 897 

is exceeded, the pmomption of legitimacy will be weakened, and a 
contrary presumption will arise. 

Questions have occasionally arisen, when a widow having married 
soon after the death of her hud)and, has had a child Within r ^. , . ^ 
♦such time that it might, according to the laws of nature, ^ J 

be the child of either husband. In such cases it has been said that 
the child may choose its father,(o) but this doctrine has been ques- 
tioned,(u7) and in an early. case, where the widow married immedi- 
ately after the death of the husband, and forty weeks and eleven days 
after such death, bad issue born, it was held to be the child of the 
second husband(a;) The better opinion seems to be, that the pre- 
tumpiion of paternity, must be guided by the circumstances of the 
case, but it is conceived that evidence would be admissible, as in other 
cases of disputed legitimacy.(y) 

There are but few authorities on the rebuttal of the presumption, 
by proof of impotency, and the evidence of the fact is of a kind 
which may justify an indisposition to examine it until the actual occur* 
rence of the cases. . The presumption of the husband's paternity from 
marriage, may be effectually repelled by evidence of such bodily 
defect or malformation as will satisfy those who are to decide the 

Zuestion, that it was physically impossible that he could have been the 
ither of a child.(z) 

♦SECTION II. [ ♦415 ] 

It is now necessary to inquire how those special qualities of con* 
sanguinity are to be proved which entitle the possessor to succeed, in 
preference to any others of the kindred of the propositus. 

then is very commonlj a differcDce of one, two, or three weeks. Ancl see particularly The 
Gardner Peerage case, by La Marobant (v) 1 Co. Lit. 8, a. 

(19) Bra Ab. Bastardy, pi. 18. (x) Lord Hale*s MS. Harg. Co. Lit. 123, b. n. 1. 

(y) To prevent the inconvenience arising from this uncertainty of paternal parentage, the 
CiTil law ordained that no widow should marry tn/ra annum luetHs ; a rule which obtained 
so early as the reign of Augustus if not of Romulus: and the same constituticm was pro<» 
bably handed down to our early ancestors from the Romans, during their stay in this 
island ; for we find it established under the Saxon and Danish governments. 1 B\. Com. 

(s) Done and Egerton v. Hinton and Starkey, 1 Rbll. Ab. 358, in which Lord Chancel, 
lor Ellcamere and Montague, C. J., held against Hobart, C. J., that if the husband be cas* 
trated the issue of the wife are illegitimate. So where the husband was of tender years, 
(1 Roll. Ab. 359,) which a case in the year-books (M. 1 Hen. 6) would establish to mean 
under the age of foorteen. There appears, however, to be no legal presumption of impo- 
tency from old age. For although Swinburne, Espousals, p. 50, says, that the possibility 
of issue must not be applied to a case where the husband is eighty, be is corrected by his 
annotator, who observes, that against this genera] doctrine all Englishmen of eighty for- 
maUr protest And Lord Eldon cites the observation approvingly in the Banbury case, 
aod held that there was no presumption against the legitimacy of the claimant's ancestor 
from the Earl of Banbury being eighty years old. And Sir S. Romilly cited several 
instances of men above that age becoming parents. And see the various authorities upon 
geDeral impoteocy cited in Nortin- v. Seaton, 3 Phillim. 147. On impotentia versits hanc^ 
Webber v. Bnry, 5 Rep. 99 ; 1 And. 185, cited ante. Staflbrd v. Mongy, Dyer, 179. Case 
of the Countess of Essex, in State Trials. Information suiScient to satisfy the most 
enrioos opon this subject will be found in Zacchias Questiones Medico-legales, lib. 3, tit. 1, 
wbo there treats at large, 1: De eau$is impotentUB, 2. De impotentid ex defectu mtaH9» 
3. D« tmpoteniid ex d^eetu naturali. 4. De impoUntU ex morbie, 5. De frigidU ei 
mtti^fietatis. 6. De impatentiA reepectiva dicta* 7. De 9teTiUU>iefamnarium et de imper- 

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9B8 hitbback's sviznnoB of b^tccession. 

Where tKe title asserted is simply that of heir or next of kin, these 
required qualities are indicated by the law governing the succession ; 
and where the title is that of an object of a gift or limitation, they 
are to be sought for in the instrument expressing the grantor's or tes-^ 
tator's intentions. In either case, it will be found that any special 
qualities of consanguinity essential to a claimant's title, are comprised 
within three species of faqts : — degree of relationship, sex, and order 
of birth. In personal succession ab intestbto, and in limitation to a 
certain class of relatives simply, the first alone is regarded. All three 
are ingredients in the constitution of the title of heirs at common law, 
or in borough English, and of persons claiming under limitations, such 
as that usual in settlements to the first and other sons successirvely. 
Heirs in gavelkind, or in tail female, and objects of limitations such 
as to sons or daughters in common, take irrespectively of the order 
of birth, but not of sex or degree of kindred. Other variations occur 
according to the expressed intentions of grantors or testators, or the 
customs of manors. The former may also impose further limitations 
in the class who are to take, as by gifts to relatives of a particular 
name, but these are not properlv special qualities of consanguinity, but 
qualities which must exist in addition to consanguinity. The facts of 
marriage and filiation are only instrumental in establishing a general 
consanguinity. The evidence of the claimant's relationship in the 
alleged degree, is only the evidence of the several filiations which form 
links in the chain of consanguinity. Whether it is universally neces* 
r %A\a 1 sary *to allege and prove some specific degree oi kindred 
•- J to the propositus, and in what cases evidence of an unde- 

fined consanguinity will prevail, are questions of considerable inter- 
est and importance. They called for examination in the following 
case:(y) T. J. Selby, by his will,(r) dated in 1768, devised the bulk 
of his real and personal estate to his right and lawful heir at law ; 
for the better finding out of whom, he directed advertisements to be 
published in some of the public papers immediately after his decease ; 
but should no heir at law be found, then the estates were devised to 
other persons. For one of these estates, Thome, the lessor of the 
plaintiff*, brought ejectment ; and on the trial before De Grey, C. J., 
gave some slight evidence of a reputed relationship between himself 
and thQ testator, and of acknowleagments that the Thornes were his 
heirs at law, but made no deduction of pedigree, nor was able to state 
how the relationship arose, or who was tbe common ancestor, or 
whether any ancestor of Thorne was brother or sister of any ancestor 
of Selby. 

The jury having found for the plaintiff*, a new trial was moved for, 
both on the imperlection of the evidence, and upon the alleged princi* 
pie, that in order to recover as heir, it was necessary to state some 
pedigree, and to show how the heirship arose ; otherwise, it was con- 
tended, if a mere apprehension of the deceased that A. was his rela- 
tion, or was his heir, be suflScient, it might carry the estate contrary 
to the rules of descent to 'the half blood, to the maternal instead of to 
the paternal line, &c., and would introduce much confusion and per- 
,ury. On shewing cause for the lessor of the plaintiff*, a case was 

iq) Roe dem. Thome v. Lord, S W. DL 1099. 

(r) See the will itkngtb, Hone v. Medonfte, 1 Bro.CC. 261. 

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cited, Newton v. The Corporation of Leicester and the Attorney-Gen- 
eral, about eight years before, when there was no deduction of pedi- 
gree, but the lessor of the plaintiff obtained a verdict, because it was 
proved that the deceased used to call him cousin. And another be- 
tween Newton v. Newton at Derby, where no common ancestor was 
sbewn, but it was proved that the deceased and the claiment were 
descended from two brothers, which Parker, C. B., held sufficient. 
The Court took time to consider, but was not able to r ^ .,^ -• 
nme •in opinion concerning the necessity that a person «• * J 
claiming to be heir, shall state in evidence a pedi^eee, either proving 
the deceased and the claimant to be descended from some common 
ancestor, or at least from two brothers or sisters, (which was allowed 
to be an immediate descent) or whether vague evidence of heirship 
without such deduction is proper to be left to a jury ; and the whole 
Court being clear that the evidence now given was too loose and 
iosufScient to prove even general kindred to the testator, the rule was 
made absolute for a new trial. 

The reporter, Sir W. Blackstone, says, that the judges who thought 
the deduction of descent was necessary, held (in their private confer- 
ence) that the same which ought to be pleaded in real actions, must 
be given in evidence in ejectment, in order to make out a title' by des- 
cent, and they relied on the authorities cited bebw.(«) 

These establish that in real actions, whether a party sued as heir, 
or sought to charge another in ^at character, it was necessary to set 
forth the manner of the heirship. (/) If one claimed as cousin and 
heir, he was to shew " coment cousin "(u) And still in the ecclesias- 
tical courts, in disputed proximity of kindred, it is necessary (except 
in one case, which will presently be mentioned,) to set forth in the 
allegation alHhe steps of descent from the common ancestor by which 
the consanguinity is said to exist.(t)) 

There are many reasons why the practice should apply to evidence 
in ejectment. The plaintiff must recover by the strength of his own 
and not by the weakness of the defendant's title ;{w) the general con- 
sanguinity shewn may be by the opposite line to that ♦in r ^ -, g -i 
which the heirship is to be sought ; and if the steps of des- L ^ J 
cent appeared, the defendant might prove this, or that there was a 
nearer neir, or an obstruction to the inheritable blood, as bastardy, 
alienage, or attainder in some ancestor counted. (2;) It is nQt a suffi- 
cient answer to say that the defendant may himself prove a person to 
be the plaintiff's ancestor, and show such obstruction in him ; because 
this merely bars one avenue of consanguinity, and non constat that the 
general consanguinity shewn was not by another. 

In equity, if any derivative title to sue is alleged, it is necessary to 

(«) Bra MorUnceetor, 13, 2. West*! Symboleogfr. 65; Co. Entr. 596, 597 ; Thelwall, 
307, n^U. Colviil ▼. Hoddleaton, Dyer, 79 a ; Fitz. Wasto, 51 ; Dyer, 89 b ; Dyer, 376 ; 
Plowmen, 425; Dyer, 319 a; S. C. Entr. 196 a. See also Heard v. Baskerville, llobb. 232. 
JeDk*8 case, Cro. Car. 151. Edwards ▼. Rogers, 1 Joo. 456. Duke of Newcastle v. Wright, 
1 Lev. 190. Kellow ▼. Rowden, 1 Show. 244 ; Garth. 126. Denham ▼. StefeDton, SalE. 
355 ; 6 Mod. Ul. ReynoldKm v. Blake, 1 Lord Raym. 202. 

(t) See also Stepfien PL c 2, t. 4, r. 5. 

(K) CoItiII ▼. HoddlflBtoD, Dyer, 79 a ; 2 Saond. 45 a ; Moor, 885. 

(«) Rotheribrd ▼. Maole, 4 H^g,238. {w) 4 Borr. 2487. 

is) Bbo per Warbortoo, J. Hob. 233. 

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800 hubbaok's evidence of svocbssion. 

state the maoDer of the derivation ; and accordingly, if the title assert- 
ed is that of heir, the manner of the heirship ought to be properly set 
forth. (j/) The- rule was not applied with much strictness by Lord 
Thurlow, when, in effect, he held that a plaintiff claiming as heir, and 
deducing her descent from a younger son, had impliedly alleged the 
failure of issue of an elder son.(z) But in a recent case, the Vice 
Chancellor held, that in pleading a title by descent the rule of court is 
to follow the rule of pleading at law. ♦' The defendant," he said, " was 
entitled to be apprized of all the links which constitute the chain of 
descent ; and a bill, alleging that A. B., cousin of the plaintiffs, died 
without issue and intestate, leaving the plaintiffs his co-heirs at law^ 
was held to be demurable for want of sufficient particularity in the 
statement of the title by descent.(a) 

Where a bill was filed by the next of. kin of a testator against the 
executor, charging him as a trustee for them of the residue, and the 
defendant, by his answer, denied that they were next of kin, and put 
them to the proof of their relationship, Lord Thurlow, upon the report 
of the Master, finding the plaintiffs next of kin, charged the defendant 
with the costs of establishing their title.(6) It does not appear from 
the report of this case, whether the bill stated the manner in which 
tt^e plaintiffs traced their relationship ; but it seems that the courts of 
r *419 1 ^q^i^y f^l'^w the *rule of the ecclesiastical courts in re- 
I- -1 quiring the precise degree of consanguinity to be establish- 

ed in claims as next of kin.(c) » • 

As against the crown, however, a general relationship will suflice, 
at least in a party claiming as next of kin. In that case it has been 
held in the Ecclesiastical Court that the particular'steps of kindred 
need not be alleged, since the most distant degree is sufficient to de- 
feat the crown's title.(rf) 

Perhaps it may not follow that an undefined consanguinity will bar 
an escheat of lands, though there mjiy be some reason to contend for 
this proposition in the cases of descents since the Inheritance Act. In 
those cases which occurred before/ kinsmen of the person last seised 
might be in existence, and yet incapable of inheriting by reason of 
their consanguinity beinff through the half blood, or on the side oppo- 
site to that from which the lands descended. But in descents since 
the statute, the former impediment being removed, and a rule of evi- 
dence being applied by which the person last entitled is presumed to 
be the purchaser, and constituted the propositus^ .all his kindred, ma- 
ternal as well as paternal, must succeed before the crown. It seems 
impossible to imagine a case in which the existence of a party who 
is related by blood to him will not bar the escheat. But if the crown 
is in possession, the question may be the same, as in ejectment. 

It will be collected from what has been said in a former chapter, 
that in claims to titles of dignity, the most accurate statement is re- 
quired of the degree of kindred alleged to exist between the claimant 
and the propositus.{e) And indeed, it seems to have been thought at 

(y) Lord Digby v. Meecb, Banb. 195; and see ibid. 115. 139. 

(«) Delorae v. HoUiimfsworth, 1 Ooz, 431 ; ante, p. 200. 

(a) Baker v. Harwood, 7 Sim. 373. (6) Lowson ▼. Cbpelaod, 2 Brown, C. C. 155. 

(€) Gregg V. Taylor, 5 Rusa. 19. 

{i) Stole ▼.TbeKiiig'BProotor, 3 Ct. temp. Lae» 384. (e) Sup. Pt 1, Gh. 5. 

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or ooRSANouiinTt* 301 

one time, that where a claim was made to a co-heirship in a dignity, 
the claimant was bound to deduce the pedigrees of all the co-heirs as 
well as his oWn. This however, is now settled not to be requisite* 
and it is sufficient that notice of the claim be given to those claiming 
to be co-heirs.(/) But it must ♦be shewn that the notice r ^.^o l 
has been received, and it is not sufficient to state that it '^ J 

was sent in a letter by the general post.(g^) 

There is a peculiar species of claim founded on consanguinity in 
which it appears to be unnecessary to prove any specific degree of 
consanguinity. The claim referred to is that of founder's kinsmen, as 
they are termed, asserting as such, a right to priority of admission to 
fellowships, and other privileges in some of our collegiate establish- 
ments. (A) The founders who reserved such benefits to their kindred, 
did not direct any preference to be shewn to proximity of blood, and 
evidence of general consanguinity will therefore be sufficient to shew 
a title in the claimant; and proof of descent from an ancestor who 
has formerly enjoyed the privilege of founder's kin, is allowed as 
satisfactory evidence that the descendant is of the privileged blood, 
although he may not be able to prove the descent of such ancestor. 

A question has been raised in respect to these claims, whether col- 
lateral consanguinity can, for the purpose of conferring* such privi- 
leges, be considered as existing m perpetuum. A claim to be admit- 
ted to a fellowship at All Souls' College as founder's kin having given 
rise to much discussion, Sir William Blackstone, in a learned tract on 
the subject, contended at some length for the negative of this ques- 
tion.(i) His principal argument is this, that the founder certainly 
intended to confer a peculiar benefit upon his consanguinei, by giving 
them a preference in admissions to tellowships ; that as he, being a 
priest, could have no lineal descendants, by the term consanguinei he 
must have meant collateral kinsmen ; that he has given no preference 
to proximity of blood, and therefore unless the meaning of the word 
consanguinei be limited, all his collateral kinsmen, however distant, 
or in other words all the world, would be entitled to claim the benefit, 
and that the universality of the claim would render the benefit nuga- 
tory. •The learned writer contends therefore, that the r ^^^i i 
word consanguinei must have been used in a limited sense, ^ J 

and probably that sense in which it was explained by the canonists 
and civilians, who for the purposes of succession, &c., confined the 
application of collaterals within the tenth degree ; and that con- 
sanguinitas to the founder within that degree must have long since 
ceased to exist. He supports this opinion hy many learned quotations 
from the old writers, shewing the meaning of the word consanguinitas 
as used by them ; and presses strongly the inconvenience which, he 
argues, would follow from a different interpretation. It was, however, 
decided by competent authorities, both on that occasion, and on a 

(/) Vauz Barony, 5 CI. & Fin. 535. Camoyt fiaraoj, 6 CI & Fb. 794. 

(g) Camoys Peera||re, ubi lup. 

(A) The principal instances of these priTUeges are to be iband in Winchester CoMbge and 
New CoUfige, in Oxford, founded by William of Wykeham, and in All Sonb* College in the 
Eamc University, founded by Archbishop Chichele. In St John's Colle^ Oxford, six out 
of fiAy fellowships are reserved for the descendants of the two sisters of Sir Thomas White, 
thefoamfer. (t) JK. Essay im Colkteral Consangoini^, Law IVvcts., 

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more recent one, that the consanguinity to the founder and its conse- 
quent privileges, are not to be considered extmct.(J) 

In tne year 1829, an appeal was brought, on the above ground, 
against the admission of two boys as scholars into Winchester Col- 
lege, and two others as fellows into New College, as founder's kin. 
The appeal was nnade to the Bishop of Winchester, the Visiter of 
Winchester and New Colleges, who heard the cause in person, having 
for his assessors, Mr. Justice Patteson, and Dr. Lushington then the 
Chancellor of the Consistory Court of London. The question was 
argued by Sir H. Jenner, King's Advocate and Mr. Erie, for the appel- 
lant, and by Dr. Phillimore and Mr. Lefevre, for the respondent The 
arguments foi: the appellant were principally the same as those advan- 
ced by Sir W. Blackstone, in his treatise on Collateral Consanguinity ; 
and, after a very full discussion, the bishop, with the advice of his 
assessors^ dismissed the appeal.(A) 

It may be contended, in justification of those who support the non- 
extinction of the consanguinity, that assuming the position of Sir W. 
r «422 1 Blackstone to be correct, that the founder used the terms 
I- -I *c(msanguinei and consanguinitas in the limited sense, it 

will follow that the number of persons for whom the privilege was 
intended, was also limitedr—limited in fact, to the number of collateral 
kinsmen then in existence within the required degree ; but much more 
limited for all practical purposes by the necessity of proving thes pro- 
per consanguinity. The number who could bring themselves \«rithin 
this last limit was probably very small. What ground is there for 
contending that each of these might not have been intended by the 
founder to form a stipes, whose lineal branches should inherit the 
same privileges 7 Sir W. Blackstone seems to admit, that if the ques- 
tion had been as to lineal descendants of the founder instead of colla- 
teral kinsmen, the arguments against the extinction of consanguinity 
would have bad considerable weight : and it is submitted, that in the 
view which is now suggested the two cases approximate very closely, 
the principal difference being in the number ot favoured stipes. 

With respect to the general doctrine of placing a limit at which 
consanguinity should be considered to cease, it must be borne in mind 
that oiur law of descent is unacquainted with any limit to kindred. 
Having laid down rules whereby the heir is marked out, it casts the 
inheritance upon him, in however remote a degree whether of lineal 
or collateral consanguinity, he is of kin to the ancestor.(/) In this 
particular the common iaw of England certainly differs from all those 
ancient laws which are thought to have contributed to its formation. 
Boundaries were established in the Saxon, Norman, feudal, and per- 
haps the civil laws beyond which collateral kindred was not comput- 
er*) By an injaDotion of Archbishop Cornwallis made in 1777, and conSrmed by Arcb- 
bUbop Moore m 1792, the number of fellowships in All Sonls* CoUeffe appropriated to Uie 
lbonder*s kin smen is restricted to ten. It shoald be obeerTed, that by the statates of the 
college, the Archbishop of Canterbury is consUtuted co-fimnder and visiter, and as such 
ma^ nave power to alter the statutes. See this injunction given at length at p. 35 of Dr. 
Phillimore's Report of the Winchester and New CoUege ease, cited infra. 

(k) See Dr. PhiIlimore*s Report of an appeal against the election- to the vacant scholar- 
ahips at Winchester and New College in 1829, published in 1839. 

(i) It has been suggested that it might be advntageout to diMUow a title by dmaeeat io 
intinafycMct beyond a certain d^ree of lemoleneia. Fint Real Prep. Ri^ w. 

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OF oOHflAMiniiiTr. 808 

ed These laws however, thoo^h agreeinff in the general institution, 
differ as to the point wiiere the hmit should be fixed. Thus we find tiiat 
the fifth degree(iii) was the limit in some codes, whilst others admitted 
the seventh.(n) And the civil law, if it imposed any absolute limit, 
fixed it at the tenth degree.(o) It is however by no means clear that 
there was any limit* in the civil law ; for the *words that r ^ .„« , 
the heirs shall succeed ** etsi decimo gradu sintf* upon I J 

which the notion of a limit is founded, do not necessarily imply that 
none beyond the tenth degree shall succeed.(p) Admitting that the 
institution of a certain terminus to kindred runs through all these an- 
cient laws, a cause of it is easily discernible in the want of genealo- 
gical evidence. For beneficial purposes it was reasonable to hold 
relationship expunged when it could no longer be satisfactorily ascer- 
tained f and the remoteness of the point at which this might take place 
would depend upon the evidence within reach, its abundance, and 
efficacy. The difficulty of proving descents was, according to 
Sir Martin Wrisht, the cause of the relaxation of the old practice 
which required the claimant of a feud to deduce his title by descent 
from the first feudatory.(9) Sir Wm. Blackstone agrees in this opin- 
ion, and points to the true cause of the want of evidence when he 
speaks ol '' the rude and unlettered ages" in which the -difficulty was 
experienced.(r) The law however, whilst adopting the maxim seisina 
facit itipilemf still retained the presumption that ihd person last seised 
was of the blood of the first ancestor, apd upon that presumption ex- 
cluded the half blood from the succession ; and an exception to the 
last mentioned rule in successions to the crown, and crown lands, 
shews bow the law of descent was influenced by the difficulty of trac- 
ing it ; for in successions of the latter kind the half blood was no im- 
pediment, because, as Sir W. Blackstone writes, *' the royal pedigree 
bein^ always a matter of sufficient notoriety, there is no occasion to 
call m the aid of the presumptive rule of evidence to render probable 
the descent from the royal stock.''(«) 

At the early period at which the laws of descent were established, 
the personal knowledge and memory of witnesses was almost the 
only means of preserving evidence of pedigree ; and many passages 
might be cited which show the reference which was always had to 
this state of things. Thus by a decree of the council of Worms in 
808, marriages amongst relations were ♦forbidden " us^ue r ^ .„ - -. 
dem generatio recordatur, cognoscUur, cut memorid retine* L J 

tur:\t) Afterwards, by a canon of 1065, the prohibition was limited 
to the seventh degree because, amongst other reasons, beyond that, 
** non pQtesi memoriier ab aliquo generatio reccrdarV\u) In procc^- 
logs upon the writ de nativo habendOf brought by the lord to recover 

im) Wilkint, L. C. Anglo Six, 366. This degree wis alio limited among ■ome of the 
German nations. Lindenbarg Cod. 'L. L. Ant 460. And see Hale*s Hist Com. Law bj 
RoBnington, p. 909. 

(n) Grand Contoomier of Normandy, ch. 95, de eseheanoe. (o) Inst lii. 5, 5, 

( p) Blackstone has collected many glosses upon these words, which however do not seem 
to establish the point ibr which he contends. See Essay on Coll. Consanguini^, p. 31. 

(f) Wri|^*s Ten. 184, 185, 186. (r) OVeaUse on Deseents, 1 BI. Law Tracts, 914 

(s) Ibid. 393. 

(I) Deer e t o m ^ pars 3, etos. 55, qu. 3 At 3 e. 18; «nd fee this title, paMim. 


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|k)8se96ion of one whom he blaimed as hit villein, he was obliged to 
prove the villenage by the evidence of the kinsmen of the villein.(r) 
Again we find that when a person claimed to do homage as heir, if 
he was not known to be heir by the lord himself, nor by the vicinage, 
the lord might hold the land himself till it was made clear to him.(u)) 
So in the assize of mort-ancestry, the proof of heirship seems to have 
rested solely in the personal knowledge of the jury.(a:) 

If then we are right in considering the defective nature of genealo- 

(rical evidence as one principal caose which led to the adoption of a 
imit in consanguinity, it seems to follow that there is nothing incon- 
sistent in withdrawing that limit when more effectual means of pro- 
curing such evidence are generally attainable. And as it is clear that 
our law at the present day knows no limit in kindred, beyond which 
succession to real or personal property shall not take place, so by 
analogy it will follow that no degree of remoteness can deprive the 
blood of any quality or privilege for other purposes. 

It has been stated that sex forms one of the special qualities of con- 
sanguinity by which priority in succession is determined. Where a 
claim is made through a female as heir at common law, evidence will 
be required to shew that she was the only child, as a son, whether 
older or younger, would take precedence, and a daughter, whether 
older or younger, would be entitled to an equal share. This prefer- 
ence of sex^ however, only applies to real properly ; in the distribution 
of personal property the law recognizes no distinction between male 
and female. So also where there is a limitation to a class of relatives 
simply, the sex of the individuals included in that class is immaterial. 
r *425 1 *^"^ ^^^^ ^^ those cases in which the sex of a party has 
L J to be considered, it can seldom be the subject of separate 

evidence, for it is obvious that proof of the existence of an individual 
will most commonly contain within itself proof of the sex of that indi- 
vidifttL Yet though the name will in general be a strong indication 
of the sex, it cannot always be relied on: as instances are not unfre- 
quent of caprice, accident, or some other cause having led to the 
bestowal upon children of names not usually applied to their sex.(y) 

Appellations also frequently occur which custom has not dedicated 
to either sex : and in consequence of the now common use of surnames 
as Christian names, the cases are i^ore fr^uent in which this most 
usual indication of sex fails. 

The third and only remaining species of fact from which must be 
derived any special quality of consanguinity essential to a claimant's 
title, is order of birth. Where a claim is made through a son as heir 
at common law to his father, the evidence required is not only that be 
is the legitimate son, but the oldest or only son of his parent. 

(o) GlaDville, lib. 5, c 4. (lo) Glanville, lib. 9, c. 6. 

(X) Bract 273. See also ibid. 216 a, 281, 373. 

(y) Thus ■ aoD of the first Earl Powlett was called Anne Powlett, bom 1711, died 1785, 
Qtteen Anne having been his godroother. Other examples of names nsually appropriated 
to females having been borne bj nudes, hafe occurred in the families of the Earl of Scar- 
boroQjrh, Lord Stran^ord, Lord Randiffe, and the Marquis of Downshire. Some names 
also are borne indiscriminately by both sexes, as Efelyn, Sabine, Christian, &c In the 
register of Han well, in Middlesex, b the following entry. ** Thomas, danghter of Thomas 
Messengeis and EUizabeth his wife, was born and baptized Oct 24, 1731, by the midwife at 
the font, called a boy, and named by the godfiither Thvmas, bU pravtd a jrirL*'— Burn^s 
History of Par. Re^. f^ 81, nott. 

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The evkfeooe by which general co&sanguioitjry M weB as the ip^ 

cia] qualities of it constituting priority, may be establishedt is of tiie 
same nature, and to be derived from the same sources, as proofs of 
the several matters of pedigree discussed in the foregoing chapters. 
Thus in the absence of direct testimony of witnesses, recourse is had 
in the first instance to parochial registers as the most legitimate mode 
of proving the facts recorded in menu The successive filiations in 
which consanguinity consists, and the sex of each individual, may be 
satisfactorily proved •by means of parochial registers of r ^^^g l 
baptism : but such registers, except in certain cases to be *- J 

mentioned hereafter, are not of themselves evidence of the time, nor 
consequently of the order of birth. But in conjunction with other 
facts, they may afford strong presumptions. Thus if the period 
between the marriage of the parents, and the baptism of the child, do 
not much exceed the ordinaiy period of gestation, there is a strong 
presumption that such child was the first issue of the marriage. This 
as not conclusive however, as there may have been twins, or a child 
bom, though not procreated, in wedlock. In an old case, the Court 
of Chancery, upon view of the body, and upon open examination of 
several witnesses, and upon view of the church book, adjudged the 
defendant to be under the age of twenty-one years.(2) And in a more 
jrecent case, a register of baptism, accompanied by proof that tht 
party was born a^ut the time, was admitted as evidence of infancy.(a) 

Inquisitions post mortem afford good evidence of the time of birth, 
as well as of tne other matters of pedigree found in them. Upon the 
trial of an issue as to the age of a person at the time of her suffering 
a common recovery, an inquisition post mortem, in which she was 
found heir to her father, and of a certain age at that period, was 
received in evidence of her age at that time.(i) So in the Vaux 
peerage case, two inquisitions post mortem were admitted as evidence 
of the relative ages of two ladies through whom the petitioners 

The declarations of relations, whether oral or written, may be 
received to prove consanguinity generally, or in any particular degree. 
Thus in the case of Thome v. Lord((2) already citecl, no question was 
raised as to the admissibilitv in evidence of the reputation andacknow* 
ledgment of relationship, although it was not considered sufficient to 
warrant a verdict for the plaintiff. 

But expressions which undeniably admit some degree «- ^.^j i 
of ♦relationship, may yet be considered insufficient to »• J 

prove the particular degree insisted on. The word ^* cousin'* is one 
of this nature. 

In a case where it was partly relied on to prove the plaintiff's 
claim as second cousin,(e) Sir J. Leach, M. R., after rejecting the 
evidence of one witness on the ground of interest, said, " There remains 
BO testimony by which the precise degree of consanguinity between 
the claimant and the testator can be ascertained, unless it be assumed 

(x) Toth. 135, cites 28 Eliz. Wood ▼. WmmBJU 

(a) Leader t. fiurry, 1 E«p.N. P. C 353. (6) Deroy ▼. Leiffh, Hob. 334 

(e) 5 CL & Tin. 540, infri, p. 430. (d) 2 W. Bl. 1099, mp. p. 415. 

(0 GthS ▼• 'Taylor, 5 Roirt. 19. 

Afaa»1845,— 8 

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M^ ■ifbback'c btidenob of 8tt<)Cn8IOIf« 

that where the will of the testator's jfather speaks ofbis cousins Richard 
Osgoode and William Osgoode^ it must be intended that he means to 
describe them as first cousins. I can find nothing in the context of 
the will to aflford that inference, and the term cousin, in common and 
popular language^ is of too extensive a signification to be so limited 
without any explanatory context."(/) 

In the construction of a will, the Lord Chancellor Cottenham held 
that the words ** all my first cousins or cousins german,'* meant first 
cousins in the first degree only.(g) 

It has been doubted whether the time of birth is a matter of pedi- 
gree within the rule admitting of hearsay evidence ; but the case of 
Sidney v, Cockburn(A) may be considered as having settled the ques- 
tion in the affirmative. In that case, the question arose upon the title 
of the plaintifif claiming as heir at law of a lady of the name of Chris- 
tian Kidney who died in 1826; and in order to make out his title in 
that character, it became necessary for the plaintifi^to shew that John 
Kidney the plaintiff's grandfather, and David Kidney the grandfather 
of Christian Kidney, who were admitted to have been the sons of one 
Jonathan Kidney of Market Harborough, were born of the same 
mother. By an order of Sir L. Shadwell, V. C, affirmed by Lord 
Brougham, C, on appeal, the parties were directed to proceed to H 
trial in the Court of Common rleas, upon the following issue : Whe- 
r •^S 1 ^^^^ •John Kidney, and David Kidney, children of Jona- 
L ^ J than Kidney, were brothers of the whole blood ? Upon 
the trial it was established, that Jonathan had been twice married, 
that his first wife died in March, 1693, and his second wife in Novem- 
ber, 1703, and for the purpose of shewing that his sons David and 
John must have both been children of the first marriage, there were 
tendered in evidence, first, as to David, (whose burial appeared from 
the parish register to have taken place on the 23rd ot December, 
1750,) certain inscriptions, one on an old tombstone in the cemetery, 
the other on a monumental tablet in the church of Market Harbo* 
rough, wherein David was stated to have died on the 16th of Decern^ 
ber, 1750, at the age of sixty-four years. There were then tendered, 
as to John, (who, according to the entry in the parish register, wag 
buried on the 9th of February, 1760,) various declarations, made by a 
deceased grandson, many years aji^o, and sent by post to his brother, 
the plaintiff, stating that John, their grandfather, was seventy years of 
age when he died. The issue was tried before Chief Justice Tindal, 
who refuseji to receive the inscriptions, declarations, and letter, on the 
'ground, that although admissible for the purpose of shewing the rela- 
tionship, they were not admissible as evidence to prove the ages of 
the several parties referred to therein ; these being facts which the 
learned judge was of opinion could not be proved by hearsav. The 
jury found for the defendant, and his lordship, as appeared from bb 
note, was satisfied with the verdict, provided he was right in reject- 
ing the evidence above stated ; but the note added, that if such evi- 
dmce of the age at which the two children of Jonathan died, ought to 
have been admitted,,and was believed by the jury, there would then 1^ 

(/) ItsieiiMt^tiii Pwwiihire the word * rniwrin** m itill oied aa in ogr oM^rwrltcw 
It sifnifjr Dcphor. Set Ford ¥. FMiof , I Vm. Td. 
(r)SftiidKMiif.Btile/,4M/.Jta56. (A) 2ft.«^M. 467. 

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or ooNBAVoiniRTT. toy 

DO doubt that John Kidney and David Kidney were brothers of the 
whole blood. A new trial was moved for, on the ground that thid 
evidence bad been improperly rejected, and the Lord Chancellor 
Brougham, after taking time to consider, and consulting with Mn 
Parke, and Mr. Justice Littledale, expressed a strong opinion in favoof 
of the admissibility of the evidence. A case was prepared for tbA 
EJog's Bench, but the cause being afterwards compromised, no iur* 
fher proceedings were had. 

In ao old case at nisi prius, where there were conflict- p ^ -^o i 
ing statements, ♦as to the order of birth of two children, L J 

the declarations of a member of the family as to circumstantial facts 
on which her knowledge was founded, appear to have been received.(i) 

General reputation" in the family, as well as express declaration^ 
may be used to prove the relationship in Question. In the Dunsany 
case, that the claimant was the eldest son or the late Lord, was proved 
by the depositions of a lady who was a relation of the family ; and 
the Dowager Lady Dunsany, who was his step-mother, promt that 
he was always treated and spoken of by his father as his eldest sod 
and heir to the title, and was so considered by all the members of the 
family ;(j*) and upon this evidence the claim was allowed* 

The conduct of the alleged parent or relation towards the claimant* 
has boff been considered of importance in questions of this nature. In 
the 18 £d. 1, a verdict, finding the daughter of a son hehr to her grand^ 
fkther, was impeached by a sister of the son. But the verdict wad 
held right in Parliament, *^ quia publicum et noiorium fuit quod idem 
W (the son) tempore sua prcediclam Dionysiam ui filiam et h€eredem 
mam tenuity et hoc idem dum vixit in pluribus locis sciri et proclamaH 

But recoffnition by the alleged father is not always conclusive of 
the fact, and may be rebutted by other evidence, as shewing that the 
recognition was procured by fraud. (/) 

In the case of Annesley v. Earl of Anglesea, the conduct and decia- 
rations of the Earl of Andesea were relied on by the plaintiff's coun^ 
tel« and appear to have bad considerable weight with the Court, as 
lAewing a consciousness on the part of the Earl that the plaintiff was 
his nepnew.(m) 

The order in which the names of brothers and sisters occur in the 
Will of a relation, has been considered strong presumptive r ^^^ j 
•evidence of the order of their respective births. In the ^ * 

Vaux Peerage case, in order to shew that Mary Vaux, the ancestreSrs 
of one of the claimants, was the elder of two daughters, the win of 
their grandmother, Lady Marv Vaux, was put in, and this extract 
re^: — **I bequeath to Mary Vaux, the daughter of my son George 
Yaux, 800£, and to Wm. Vaux, her brother, 200/., and to Henry Vaux, 
Joyce Vaux, and Catherine Vaux, 100/. a-piece.*' In confirmation of 
ibe inference drawn from the will, two inquisitions post mortem were 
produced* which shewed that Catherine was only twelve years old 
whea Mary was married. It was contended, on the part of another 

(i) IS Vin. Abr. Et. T. Ik 91. 

(j) MMtf'«Plirl.8otteitor'» AMWtMit,68. ^i^) 1 R«t Pari. 36^. 

(I) Ex ptrte Wallop, 4 fi. C. C. 90, cile4 iA XcuUlt ▼. Abkit, 4 Vm. Ma 
(«) Bma «t. Tr. V«L 17> 11S9, 1415w 

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908 HxnraACK^s wttooxoe of svogbssion* 

claimant, that the fact of a larger legacy being given fo Mary than to 
the other children, would sufficiently account for her name being first 
mentioned, especially as she was the namesake, and probably^the god- 
child of the testatrix ; and it was stated that she was mentioned last 
of the three sisters in a pedigree printed by Sir W. Dugdale, obtained 
by him from Edward Lord Vaux. The Attorney-General expressed 
a doubt as to the priority of birth of Mary and Catherine, but the I^rd 
Chancellor (Cottenham) said he considered the matter satisfactorily 
explained, and that Mary was properlv placed hi the pedigree before 
Catherine ; and so the Committee of f^nvileges gave their opinion.(n) 

• So in the Camoys Peerage case, the order in which two daughters 
were mentioned in the will of their father, was assumed, and not denied, 
to be satisfactory evidence of their respective seniorities. (o) 

• The acts of parties themselves will afford presumptions of their age, 
where a particular age is necessary to the validity of such acts, espe- 
cially where the assent of other parties is necessary, whose duty or 
interest it is to be satisfied of the regularity of the proceeding. Thus, 
the date of a peer taking his seat in the House of Lords, would be 
strong presumptive evidence to fix the oeriod of his birth. So from 
the marriage of a person by license, witnout the consent of parents or 
guardians, subsequent to Lord Hardwicke's Act, the inference would 
r ♦431 1 *'*^^ ^^^^ ^^^^ person was *of full age at the time of the 
*- ^ marriage ; and the inference would be strengthened if the 
act of the party was in anyway against his own interest, as the bringing 
actions as a person of full age, which was an admission that would 
preclude him from pleading his infancy to any action brought against 
nioMeU^ whereas a proof of full age by jurors was not conclusive, 
because the jurors might swear falsely prece vel precio cofruptu 

• Presumptions of this nature will have greater weight when they arise 
in the ease of remote pedigrees ; as, l)efore the abolition of military 
tenures, the condition of minors made the attainment of majority an 
era of much importance. The law, therefore, made anxious provision 
for the means of proving the age of the party. 

If a defendant plead^ minority, the question was to be tried by the 
oaths of eight free and lawful men.(p) If an heir brought a writ of 
right or assize of mort ancestry, and it was pleaded agamst him that 
be was a minor, he might reply that he had proved himself of full age 
ver inquiiitionem U per patriam. If he had such an appearance that 
It might be vehemently presumed that he was of full age, **tasifuerU 
barbalust staturd magnuSf vel hujusmodi^^ and the justices should so 
determine, be should be taken to be of age against all persons, and the 
judgment was not to be called in question. If the justices hesitated 
lo pronounce an opinion, recourse was had to the ** probationempatria 
et parentum ;*' this was by the verdict of twelve men, or more, if 
neoeasarvy some of whom were to be of his family, and some 

Another occasion, should be noticed for which the law provided the 
method of proving age^ This was where the heir of a tenant in capi^ 
being in ward to the king, sued out his writ de celate probandA, that 

(m) 5 a a& Fla. 540, S94, 610. (o) S CLSl Tin, TH. 

(fi) GknTiU*, lib. 13, c 15, 16. (£} Bnct. 425. 

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\j proTing hif majority he might be freed from wardahip^r) The 
writ was diiecled to the sheriff of the county *where the r ^.^ n 
beir was born ; and Staunforde asserts that it was " re- ^ J 

r'red by the law, that every one that should pass in the inquest 
»uld be of the a^e of forty-three years,(f ) meaning thereby that they 
and every one of them should be of full age at the oirth of the child^ 
becaose that such have better knowledge and remenaberaoce tha9 
others of lesser age have."(0 Besides this, their memory was to 
receive the following remarkable assistance: the heir was to be called 
upon to ** inform the inquest by certain signs and tokens of the time of 
his birth, as to say that that year there was a great tempest, or a great 
plague, or such iike,(tt) which sicns so given in evidence would be 
Kturned by the sheriff, as well as the principal matter/'(v) 

Dugdale extracts a deposition from the probatio €Btatis of John do 
HaUapd, Earl of Huntingdon, in' the 6tb of Hen. 7th; for the purpose 
of shewing the ancient method of solemnizing baptism. The witness 
states the age of the Earl from his recollection of this ceremony, and 
ccmformably to what is reouired in Staunforde, minutely describes the 
presents given by the godfathers to the child and its nurse, the pro* 
cession to the church with torches, and other imposing circumstan* 
ces, which bad made an impression on his mecnory.(t£7) But althoiagli 
before the institution of parish registers no higher mode of proof is 
mentioned in legal writers, there is no doubt mat recourse must all 
ak>ng have been had to such sources of written evidence as were 
existent and available. Thus, an entry appears in a monastic register 
in the year 1268, which shews that there were records sometimes 
xeaorted to even at that early period for the purpose of proving age^^aa) 

As afibrdin^ some test of the truth of pedifi;rees where r ^ .m \ 
the ^consanguinity is remote, attention should always he^ ^ 

^aid to the numtier of generations in any given period. A genera* 
lion is considered the interval between the birth of a father wd th# 
birth of a son, and is of course of uncertain length, depending on aoci* 
dental circumstances, and also on the uKxIe of reckoning whether by 
eldest, middle, or youngest sons. Thirty-three years have usually 
been allowed as the mean length of a generation, or three generations 
Ibr. every hundred years.j^) The variations from this average in 
pedigrees of any length will seldom be found considerable.(z) 

(r) Regwt. Brey. 396 ; Fitz. N. B. 25S G. ; 1 Roll. Rep. S05. A record of the trial of 
w^ hf ios|»MtiaQ of the ooart ie priotad io Bootli oa RmI AetloM, pw 147. 

1$} la KadiMD** Fits. N. K 219, it it *' Ibny.two yeart at the lewit, *o that he was ff 
U ag« at the time that ho that aiieth the writ waa borne.** And the tame afre it required 
k flbeppard*a Ab. tit. Tryal, and Hobart, 325. {t) Staunforde Praer. Regr. 79. 

f«> TtM reader will remember the ch-cumauntial memorj of Joliet*t mirae. ** It it now 
iftam jMsrt aisoe tha earthquake, aadabe waa weanad of all daja in tba jear opon thai day*** 

aStauolbrde, obi tup. 
Antiquftiet of Warwickthire. Thete writfi, and the returnt made to them, are atill 
p u sw uHiJ among the inquitiliont po9t tnoritm at the Tower and Rolh Chapel, and itaeemr 
mtwapwiUble Uiat hf their refbrenoato ttriliivg octwummf ihejaiiflit ba a w aa nt of 
aaOfiof ditpoted datet of erenta, and otherwite enriching our hittory. (x) Pott, part 3. 

(y) i]ale*a Chronolo^, Yd. 1, p. 80. Nico)aa*e Chrnnolofy of Hittory, p. 181. 

fir) Gibbon deteott tne fabehood of the received genealogy of Mahomet by itt reckoning 
Am JUHntd4o tbapipphet, a period of two tboyaand ftte hondfed yeara, thirty inMead tf 
ttfaoty^fiTe generatioot. Dediae and Fall, c, 50. Sir Itaac Newton aod Sir Wm. Janaa 
batia taated and aettled ancient chronology by meant of tlia generationt counted. Ncwton*a 
Chraoalogy ; Sir W. Joqea*t Workt, vol. 1, S81, 321. And Bithop Gray hat removed toma 
di0aii)|ias cJTthia nature k the Scripture gonealogiea. Key t o the Old Tetumcnt, p. 177. 

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tlf HUBBAOK?^ A f iBM w a OF mmcwmoM. 

The evidfflice of consangsmity bj metnB of soeeeisive filMoM 
beiog, as before obaerred, generally of an inferior character^ there n 
less room for those variations in the strictness of proof reqmved t# 
establish it, which take place with respect to other matters of ped^ 
gree, according to the occasion and subject of the claim, ami tivt 
greater or less difficulty of retracing an erroneous step. It does wU 
appear that in anr case the impossibility of giving direct evidence 
must be shown before declarations will be received. Parochial regis* 
ters of baptism would undoubtedly be in all cases considered the high* 
est and most conclusive species of evidence: but there seems no' 
authority for saying that the absence of these must be accounted for. 
In order to let in evidence of a less authoritative kind. The eoatrary 
seems to be the conclusion, from the language of Sir Wm. Soott^ ill 
the case of Burgess v. Burgess, (a) 

There is a distinction between the practice of the Courts of Law 
and Equity, and that of the House of Lords, in reeard to the proof of 
filiation by means of parish registers : the former being satisfied with 
properly certified extracts, whilst the latter, since the Chandos Peer- 
r ^434 1 °$^ <^^^^f requires, with ^ome exceptions, <^the prodnotioft 
I- J of the originals.(6) It is conceived also, that the rule of 

the House of Lords stated in a former page(c) with respect to mar- 
riage, viz. that it is necessary to prove that search had been made for 
registers before letting in reputation, will be held to apply to filiatim» 

The evidence of filiaticm which the conveyancer first caUs for, and 
topon which he principally relies, is that which is derived from P*i^ 
ehial registers: but as, owing to the very limited operation or thai 
class of records, numerous cases occur in which that source of proof 
fails, it is obvious that recourse nuist often be had to other qoarters. ^ 
' It would be vain to attempt to marshal the diffiirent sotirces of evi* 
denoe of reputation according to any imaginary scale <^ value, or to 
lay down a role for ascertaininff wmit amount of proof will be suffi- 
cient to establish any fkct of fihation. Each separate piece of evi* 
dence must be judged of according to the pecoliar circamstaaees 
attending it, and will gain or lose weight in proportion as it is coa- 
firmed or contradicted bv others. It will be sufficient tharefore, io 
addition to the remarks already made, to refer the reader to what baa 
been stated in former pages with respect to the amouat of evidenoe 
that a purchaser is entitled to re(}uire.(i) 

The modes of proving the requisite qualities of consanguinity having 
been pointed out, it is necessary to notice briefly the evid«ice of two 
Impediments which may obstruct the inheritable Uood, even where 
those qualities have been shown to exist. These impediments are 
alienage and attainder. There are not many airthoritiea respecting 
the evidence by which the existence of these obstructions may be 
established : but with respect to alienage, it has been decided that 
hearsay evidenoe is not admissible to prove the place of birth of any 

r «485 1 ^^ ^^^ ^^^^ ^^ ^^^ ^^g ^' Inhabitants of Erith,(e) in 
L J order to *prove the place ot birth of a pauper, the decla« 

{a) 1 Umg. Com. Rep. 384, (4 E. Ece. R.) 

(6) Bee Airther obtemtioo* on this tubieot in the third part of tbii work. 

(«) Bap. p. 243. (<Q Bapw p. 163. 179.930. 961. (#) 8 BmM| UB. 

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of'faiji h^kUf who was tbtn demd> as to the place of his biffth* 
were put in ; but after takiog time to consider^ tiord Enenborougii 
delivered the opinion of the Court of Kind's Bench, that the evidenc^ 
was inadmisaifale : be said the point of the case turned on a single 
lact, involving no question but that of locality, and therefore not fall« 
log witbiD the principle of, or governed by the rules applicable to 
Msea of pedigree, and was to be proved therefore as other facts 
asmrally are proved according to the ordinary course of the common 
law, that is» by evidence to which the objection of hearsay does not 

It has also been decided that a parochial register of baptism is not 
fvideoce that the person bapti^ was born in the parish ;(/} but it 
was observed in that case, that if the child were proved to have been 
very young at the time of baptism, it would afibrd a strong presump- 
tioa of the birth having taken place in the parish, and of course the 
presuBQption in such a case would be mucq stronger that the child 
was born within the kingdom. 

Various acts of Parliament have been passed, for the purpose of 
f^yplyiog government with information of what aUens are from time 
to time resident in this country. The first act of this nature was the 
M Geo. 3, c. 86, which was renewed by subsequent acts, until the 7 
Geo. 4, c. 54, which is now in operation. Under the provisions of 
that act, a register is kept at the Alien Office at Westminster, of the 
residence^ name, rank, occupation, and description of all aliens resi- 
dents in this country. Private acts of naturalization sometimes remove 
the impediment of alienage, not only in the party naturalized, but in his 

Attainder being the legal cojisequence of a judgment in outlawry 
ID a case of felony, or the sentence of the Court upK)n conviction of a 
capital offence, can only be proved by regular evidence of the judg* 
msBt or sentence whicn created it This *'must be by r ^^^ n 
production of the record itself, or an authentic copy of it '- <! 

In the case of The King v. Inhabitants of Castell Uareinion, Laurence, 
h said, the books are uniform in requiring the production of the 
leeord to prove a witness convicted of an ofience.(A) And other 
authorities mention the production of the record itself as essential. (i) 
It may be questioned, however, whether these authorities can be con- 
sidered as intended to exclude the rule of law which admits copies of 
leccM'ds properly authenticated by the seal of the Court, or otherwise, 
to be received in evidenca( j) 

The effect of the case above stated,(ft) is to establish that attainder 
eanaot be proved against a person so as to deprive a third party of the 
benefit of bis testimony, except by proof of the record of his convic- 
tioD and sentence: and from the language of Lord Elienborough in 
that case, it would seem that in no case, and for no purpose, even as 
against the convict hiinself, could the attainder be proved by his ad- 
mission, or otherwise than by proof of the record. 

(/) Rez v. North Pethertoo, 5 a & C. 508, (UE.C. L.R.) 

(g) Ad «ct of tills kind (2 W. & M. c. 17) wai put in evidence on the claim of WUliam 
Ferdinand Carey to the barony of Hnnsdon, anno 1707. MS. 6694. (A) 6 East, 79. 
(i) Vin. Ab. £v. A b, 62, pi. 6 ; Hawk. P. C. book 2, c 46, a. 100 ; Salk. 461. 
0X3se PI4I Sl Am. £t. 2, 612, 616. fioL N. P. 226 a. (h) 6 &•!» 78. 

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$19 mmBAm^s stuibiiob or lodonnoii. 

The rigour of the Common Law with respect to the dnabling eflkctg 
of alienage and attainder, has been much softened by statutes. By 1 1 
& 12 Wm. 3, c. 6, and 25 Geo. 8, c. 89, descent may be traced 
through alien ancestors, provided the person claiming through them 
is in existence, and capable of taking as heir at the death of the person 
last seised. These statutes, by putting an end to the obstruction of 
descent arising from alienage, have much narrowed the field of 
inquiry respecting this species of disability and the evidences of it 
Such mquiry, however, is still called for in the investigation of titles 
to land, because, though descents may be traced through an alien, yet 
if the title was actually vested in him, as by devise or purchase in bis 
own name, such vestinc would work a forfeiture, and the title would 
be defectiva(/) It has been observed, that this defect of title does not 
r *437 i^PP®*^** necessarily on the face of the abstract; and that 
l J the ^attention of the conveyancer is only drawn to tho 

point when the name or address is evidently foreign ; whilst it i« 
obvious that the defect may exist without any such indication of its 

The statutes 54 Geo. 3. c. 145, 8 & 4 Wm. 4, c. 106, and 4 & 6 
Wm. 4, c. 23, have effected a similar relaxation in the law of a!>- 
tainder. Under the first of these statutes, no attainder, except for 
treaton or murder^ extends to disinherit any person, or prejudice any 
other right than that of the offender for his life only. And under the 
second, descent may be traced through any person attainted, unless 
the land shall have escheated before January 1, 1884. The last act 
relieves against the effect of the attainder of trustees and mortgagees* 

[ M38 ] •CHAPTER VI. 


The identity of the persons to whom evidence relates, with the 
persons respecting whom the facts, the subject-matter of that evidence, 
are alleged to have occurred, has for convenience sake been assumed 
in the preceding heads of proof. Although not properly a distinct 
species of fkct, but rather an essential part of each fact which has 
been discussed, this identity has been reserved for separate considef^ 
ation, because the form in which most evidence of succession pre- 
sents itself, makes it incumbent on the practitioner to show by inde- 
pendent means the identity of the persons in his different proofs. For 
It rarely happens that the evidence of the principal fact will also esta- 
blish the identity. This may be done where a witness deposing to a 
transaction from his own knowledge can also, by his knowledge of the 
parties, connect them with those respecting whom such transactiM is 
alleff^. Sometimes also in hearsay deciaraticms, the extrinsically 
established relationship of the declarant to the family in question, 
coupled with the tenor of the declarations, may make them suflicient 
evidence of identity as well as of the facts declared to. But ordinary 

if) Fith ▼. Kkin,3 lte.431. . (p) Jann. Coufej. hj Swta^ 1,14»r 

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wrfttaai evidence establtehes no more than that certain faett took place 
ID relation to certain persons bearing the names or other characterts* 
ties therein mentionea.(a) 

Thos the entry of names and titles in a register, either for marriages 
or births, is not evidence of the marrla^ or birth of any person* 
onless bis identity with the person named in the entry is proved.(*) 
So a register of marriage proves only, in Lord •Mans- r ^^^g 1 
field's words, a marriage, in fact, between two parties, *• J 

describing themselves by such and such names and [daces of abode.(c) 
Again, where a party's title to sue is derived from some record or 
instrument, his bearing the same name merely with the person therein 
mentioned, will not of itself, establish that he is the same person. 
And therefore, in ejectment bv devisees of copyholds, it was neld to 
be necessary, afler proving the admisssion of persons of the same 
names as the lessors of the plaintiff to adduce further evidence of their 

The description of a record or document may, indeed, be so copious 
or so peculiar as to make agreement in it alone sufficient primA facie 
evidence of identity ;(e) but this rarely happens, and further and ex* 
Irinsic proof is in ceneral required.(/) 

Witnesses actually present at the principal transaction, may yet be 
tnable to identify the parties ;(g) thus in the case of a marriage, it 
might happen that neither the minister, clerk, nor any of the subscrib- 
ing witnesses were acquainted with the married couple.(A) That a 
very limited acquaintance, however, may suffice for this purpose 
appears from the following case, which, though one of criminal con- 
versation, may be detailed here, because, as regards identity, it was in 
the judgment assimilated to a claim of heirship. 

A witness swore that in the year 1769,(i) he was present when the 
plaintiff was married in a church at Kinsale in Ireland, to a lady of 
the name of Rixon. That he had seen them frequently together 
before manriaffe. That in 1T77 or 1778, he saw the lady again at 
Cork, where she then resided. That from the time of the marriage, 
she had always gone by the name of Mrs. Hemmings. That he had 
not aeen her since the time of her *residing at Cork, but r ^^q -i 
be had no reason to doubt that she was the same person ^ ^ 

who lately passed as the plaintiff's wife. 

It was contended that this was not sufficient evidence of the wife's 
identity to be left to a jury. But Lord Mansfield observed, "the 
identity of the person frequently does not appear to the minister who 
performs the ceremony, or the attesting witnesses. Therefore the 
ufentity so as to connect the marriage in fact with the person in ques- 
tion in the action, may be proved by other persons or circumstances. 
Here the question is, whether there was any evidence of identity to be 

(c) dee Brown ▼. Petre, 9 Swamt 335 ; BalL N. P. 247. 
ik) Dnfoot T. Ttlbot, 3 Bro. P.C. 564 

(c) 1 Deof . 174. (4 Dee d. Htnioa v. Smith, 1 Otoif^ 1d5. 

U) See Hemiell t. Lyon, 1 E & Aid. 183. 

(/) Iforber ▼. Holmei, 3 Esp. N. P. C. 189 ; Hodgkineon ▼. Willis, 3 Camp. 401 ; Bar- 
nmi r. Nerat, 1 Ctrr. dt Payne, 578, (11 E. Eea R.) 
(r) MkkRetoQ t. Sanlbrd, 4 Camp. 34; Rex t. Watkinaon, 3 Strange, 1193. 
(!) Per Lord Mansfield, 1 Dong. 174. 
(t; BettniBgev. Smith, 4 Dong. 33,(96 E.C.L.R.) ' 

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tU soniQk'ft mmmmm or 

left to the jaryf As to the weifffat of evidence, it depends on thi% 
'whether it is or is not answered. Loose evidence becomes cogemt 
'when it is not answered. It is possible that the vrife may be dead^ 
and the plaintiff married to another person ; but evidence need not be 
certain to every intent Lord Coke defines certainty three ways i{j) 
certainty to a common intent, a certain intent in general, and a cer- 
tain intent in every particular. A certainty to every intent is not 
required here. I think the evidence, though weak, was sufficient to 
be left to the jury." Buller, J., said, " Upon the point of identity 
there is no difference between this action and others. Suppo&e a per- 
son had claimed as the heir of this woman, it would be evidence to 
be received that she is the same. I am not disposed to think the jury 
have drawn a wrong judgment'* 

But where declarations lare tendered as of a party to the suit, it is a 
question for the Judge and not for the jury whether there is sufficient ' 
evidence of the identity of the declarant(]i:) On the kind of evideocae 
of identity which may be adduced, the following case affords some 
information : — Blackstone, J., had held at Nisi Prius, that in proving 
a marriage, under Lord Hardwicke's Act, the proper evidence of the 
identity was the testimony of the subscribing witnesses ; and that 
until they were shewn to b!e dead he could not admit other evidence ; 
but his opinion was overruled in Banco, and it was said that the par- 
ties might be identified in a thousand ways, e. ff. by the bell rin^en* 
r ♦441 1 ^^^ should prove that *immediately aiter the marriage 
t J they were paid by the parties — ^by proof of their hand* 

writing — by persons wno were present at the wedding dinner, or by 
a servant who should prove that the 'wife went by her maid^ name 
till the day of the marriage, and that she then went out, and on hor 
return and ever since was called as a married woman, by her bus- 
band's name.(/) 

Such evidence may, however, be sufficient or insufficient accoidin^ 
to the purpose for which it is required. Very good proof of identity 
must be oDtained before the Ecclesiastical Court will pronounce a 
marriage void by reason of a former one subsi8ting.(i7i) There ia a 
decree of confrontation under which the party is produced to witnesses 
who have known hini sustaining both characters, or some of whom 
have known him in each.(n) And in criminal cases generally strict 
evidence of identity is requisite.(o) 

On the other hand, in civil cases the leaning of the Courts is ki 
favour of relieving parties from the ontts of proving identity, as it is a 
fact which in general is more easy to disprove than estabUskd)) 

In conveyancing, identity is established by the affidavit or statutory 
declaration, and in interlocutory applications to the Courts, by the 
affidavit of some one who has personal knowledge of the individual* 
Where the party to be identified is one named in a register, an exam* 
ined copy of the register should either head or be annexed to the afil- 

07 Co. Lit 308 a. 

Ob) Corfield v. FmanM, 1 Cr. Sl Mee. 730. (/) Birt ▼. Barlovr, 1 Doag. 171. 

(m) Searle v. Prioe, 3 Hafff.C. R. 167, (4 £. Eoo. R.) 

(It) 2 Hagg. C. R. 190, (4 £. Ecc. R.) 

(0) Rex y. Benson, 3 Camp. 508, and per Lord Ellenboroagh, 1 B. d& Aid. 186. 

(ji) Per Lord Ttoterden, OBiuieU v. Lyon, 1 B. & Aid. 187. 

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AuriU uA tf thft atme p«noo who raa«i0«d the copv with ikb tep9- 
iMTt can also prow the Ntdntity, bis single affidavit will suffice for both 
pnrpoaes. Where this cannot be done the witnesses to the identity 
nay make either separate affidavits, or a joint affidavit. 

Where the principal fact is proved by affidavit alone, another may 
be roquirod to shew the identity. Thus where the death r ^^^2 n 
of ^ tenant for life was proved in this manner. Lord ^ J 

Thnrlow required another affidavit that that person was the party in 
the caiise«(9) 

Id transfers of stock at the bank the seller must be identified by a 
witness who is usually the broker employed. Where the transfer is 
into the Court of Chancery, the broker is aUowed a fee to identify, 
but no per centage commission. 

On entering imo evidence in equity the first interrogatory is always 
firained to identify the parties to the suit, by means of the personal 
Inowledge of the witness, and thereby to lay a foundation for the 
qoettioDS which follow. In some of these it is also frequently neces- 
sary for the same purpose to interrogate as to the witness's know- 
ledge of tbe testator, intestate, or other material person appearing in 
ifae cause. 

Where the identity of devisees, legatees, or objects of a trust or lim- 
itation, or of heirs or next of kin is doubtful or not admitted, the first 
goMoral interrogatory is seldom relied upon, but it is deemed advisable 
to have special interrogatories to establish the fact. In drawing these 
it IB to be remembered that though a partv's own identity cannot well 
be carried further back than the baptismal or natal register, yet where 
hk title depends upon his relationship to another person, it will be 
further necessary to identify that person as being the prapotiius refer- 
red to by the testator, or headistg the pedigree, as the case may be, and 
the intermediate persons, if any, by which the party is connected with 

And the rule is af^licable in conveyancing ; for where a partv's 
title to convey consists in his possession of a character of which his 
filialioD or descent is an essential component, there is the same reason 
for requiring evidence of the identity of his parent or ancestors as of 
Us own in caaes vifhwe his title is merelv personal 

Where, however, legatees war^ described in the will by their names 
and residences, and they were also stated to be ^grand- r ^^^^ -1 
chiUren of the testator's sister. Lord Loughborough held ^ J 

their identiiy sufl&ciently proved by witnesses deposing to agreement 
m the former particulars, considering that the will sufficiently con- 
nected themt it being not a question of pedigree, but only of identity.(r) 
^ Hitherto it has been supposed that the identity is capable of proof 
by direct living testimony, and where this is attainable, the only diffi- 
enlty is with tae witnesses or deponents in considering whether they 
ean swear that the party known to them under certain circumstances, 
b the same with one appearing upon the occasion in question. If 
identity cannot be so proved, and especially where the failure of this 
evidence arises from the facts being beyond living memory, there is 
perhaps no part of his duty which to a greater degree tasks the abil- 

(f ) 10 Ym. 289. (r) Campbell v. Freiieb, 3 Ves. 393. 

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it7 of the practitioner, whether in equity, conveyancing or ejectment, 
than that of identifying neatly, and without loading his case or abttraet» 
the persons to whom his principal evidence relates. It will assist him 
to decide what kind of evidence of identity should be adduced, and 
how much ought to satisfy, if attention be fixed on the reason why it 
\s necessary. This is simply because two or more persons may have 
common characteristics, that is, may be perfectly similar in particu- 
lars by which they are distinguished or described. If it were true 
that every individual had any peculiar mark or designation, natural 
or imposed, which once impressed was adherent and indeUhle, the 
possession of that peculiarity by the person in the case and the per- 
son in the evidence (no ncongruitv of time or circumstances being 
shewn) would conclusively prove them to be the same : or could it be 
established that a certain number of persons only had any one char-* 
acteristic in common, it mi^ht be determined what were the proba- 
bilities that a person of whom this characteristic was proved was 
identical with one appearing so distinguished upon a different ocba* 

The force of a peculiar characteristic may be seen in the designa^ 
tion of peers. In proving a transaction to which the Earl of Mana^ 
r %A4A 1 ^^^^ ^^ ^ nomine mentioned to have been a party, the 
I J *question of identity is narrowed to one of time ;(«) the 

law taking notice that there is but one person at one time having the 
same dignity.(<) 

This view of the subject is important, as shewing that a concord* 
ance in name alone is always some evidence of identity, and that it is 
not correct to say with the books, that besides proof of the facts in 
relation to the persons named, their identity must be shewn, imply- 
ing that the agreement of name goes for nothing, whereas it is always 
a considerable step towards that conclusion, and is .in truth a( more 
value than any of those facts taken separately by which identity it 
usually said to be established, such as correspondence of residence^ 
vocation, or ownership of property ; and this will appear from the 
greater difficulty of surmounting a discrepancy in name than one 'm 
any of the other particulars. 

But inasmuch as every name or other characteristic nftay be, ae 
most are, common to several persons, agreement in one such parti- 
cular is in general too weak a ground upon which to build the desired 
conclusion.(tf) The best foundation upon which that can be rested is 
pointed out by Lord Bacon, identitas veri colligitur ex mulUiudine 
signorum.{v) The concurrence of several characteristics has a force 
in producing the conviction of identity which may be represented bg^ 
the increase in geometrical ratio of the forces of the san>e character- 
istics taken singly. 

Lord Bacon's maxim, whilst it discloses the sole principle ffovern- 
ing the proof of identity, does not in its application excluae ail room 
for doubt. For there is no physical impossibility in the existence of 
tlvo or more persons perfectly similar in every known or provable 

(•) Tbat is of Uie tisie of the transaction, and tke dmes of the sacccssion of the differ- 
ent earls to the dtgaity. I 

(<) Co. Lit 3 a. ; Har^rave*s note (c). Shepp. Tonch. 234 ; 2 Jae. Sc Walk. 546. 

(«) Dm d. HansQii f.taitii; Drayeott v. Tltlbett; Brown v. Petre, cited ante, p. 438, 
4S^., (iO R«le* u>d MazidM. 

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rsoor or nenriTt. S17 

characteristic. Accordindy, mathematical certainty on this subject 
Ae courts do nof require, because they can never attain it. But that 
high degree of probability which, as the mind acts upon it at pncci 
without taking the small counter probability *into account, j- ^^ , . - -. 
is said to amount to moral or practical certainty, is attain- ^ i 

able by the concurrence of fewer common marks than might at first 
be supposed. 

From the difficulty of obtaining sufficient data the degree of proba- 
bility which is arrived at cannot always be accurately measured, and 
but for this obstacle a little calculation would in every case shew the 
pecise approximation of the effect of the evidence to mathematical 

In the Douglas cause it became a material Question whether a per- 
son who, as it was alleged, had bought or stolen two children from 
their parents, in Paris, about the time of the appellant's birth there, 
was the appellant's reputed father, Sir John Stewart ; the conclusion 
from the affirmative being that one of them was the wpellanL Ela- 
borate calculations were made in the cause to shew the probabilities 
in favour of the identity ; and although the truth of many of the data 
and of the enlevement itself was impeached, and much of the e^dence 
was ultimately discredited, the reasoning, of which the soundness seems 
to have been admitted, equally shews ue force of several coincident 
marks or circumstances, (u^) 

In practice, wherever sufficient data can be supplied, the degree of 
conviction which the evidence ought to insure, may be precisely de- 
fined. In cases where such data are not forthcoming, they may fre- 
quently be assumed with tolerable accuracy. Thus, a few registersi 
rate-books, or directories, indifferently selected, may form the basis of 
a calcQlation of the numerical proportion which persons of a parti- 
cular name bear to the rest of the population. The relative frequency 
of particular occupations may be stmposed in a similar manner, and 
allowance being made for the prevalence of certain names and occu- 
pations in particular districts, the population of the place of residence, 
together with any data supplied by ase, ownership of property, d&c, 
wul disclose the united force of several coincident circumstances. In 
conveyancing, this •may sometimes overcome a pur- j- ^. -g ^ 
chaser's objections, by shewing him, that what he may L J 

consider deficient evidence of identity, does by the proximity of its 
apM'oaches to mathematical, amount to moral certainty. 

The nature and value of the characteristics most useful in evidence 
of identity will now be examined. It is first observable, that the force 
of either agreements or discrepancies in any of them, to prove or dis- 
prove the identity of the possessor with a person so distinguished upon 
another occasion, essentially depends upon the question, whether the 
characteristic is one which has the capacity of being assumed, dis- 
Biissed, or altered ; in the language of logicians — whether it is a sepa- 
rable or an inseparable accident from the individual. The name, 
occupation, residence, religion, hand writing, and some physieal marks, 

(ip) The oondtMion contended for, wm th«t the ebanew ii«r» nuiij ariffidmr to one 
■guMt the t^levtmeM haviDg been inrmBiitttd bj an/gUitr tkuiSif J. Gkewut. fiyci ot^ 
*iBJp in DoqgiM euMh foL 4, ^ 103. 

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are of the former kind ; they may be different at diBerent times. Thd 
time and place of birth, parentage and consequent consanguinity to 
others, set, and some other peculiarities of bodily conformation, are 
of the latter kind, bein? always adherent and unchangeable. A con- 
cordance in any or an of the first mentioned particulars, does not 
naake identity certain, nor does a difibrehoe in them necessarily dis^ 
prove it ; but it follows from the nature of the latter, that though agrees 
ment in them is not decisive in favour of identity, (since they may be 
common to more than one person,) a discrepancy in any one of them 
is unavoidably fatal to it ; and with respect to separate cnaracteristics, 
the cumulation of points of difference m them, is as powerful to prove 
diversity or plurality as the concurrence of several common marks t<^ 
establish identity. 

A fallacious mode of reasoning may thus be detected, which is 
flometimes resorted to by the party "whose object is to overcome the 
effect of several discrepancies in the traces of what is alleged to be (be 
same person appearing on different occasions. By dwelling on each 
incongruity separately, and of^sing to it all the established points of 
ajjreement, it may easily be made to appear more probable that there 
should be such a difference at different times in the description or cir- 
cumstances of the same person, than that two persons should have 
existed between whom there was such similarity. Each discrepancy 
r *447 1 ^^^S successively ^attacked in this manner, and with the 
L J same result, a decision establishing the identity is demand- 

ed, on the ground that the probabilities are clearly in hs favour ; 
whilst the fact may well be, that, thouch this is true in each step of the 
argument, the effbct of the whole is, tnat the probabilities in favour of 
identity are greatly outweighed by those against it 

To illustrate this by a case which has been cited ;{x) Elizabeth 
Jennens, the ancestress of the plaintiflf, was shewn to have been in 
adult \\kf a Roman Catholic The family with whom it was endea* 
Toured to connect her were Protestant. Suppose it to be more pro- 
bable that she should have changed her religion than that ^ere should 
have been two or more persons of one name, district, and period, and 
correq;>onding in some other particulars, and let the relative probabi- 
lities be as 2 to I ; whereby if the truth be denoted by unit^, thb 
f greater probability may be represented bjr the fraction }. But it was 
urtber proved that the plaintiff's ancestress could not (for the wiH 
would, no doubt, accompany the ability) write her name, but made 
her mark. Let it again be conceded to be more probable by 5 to 4, 
(eqoal to f of the trmh,) that the daughter of an opulent family should 
have been so much neglected in youth, or incapacitated by disease, or 
other causes, as to have been unable to write, than that there should 
have been more than one Elizabeth Jennens, with the proved charac- 
tsristics in comsfioo. The eiiaaoes in each step of the argument are 
thus in favour of the identity ; but the result from both is to be ascer- 
taiaed by multiplying the fractions into each other,} x {, which will 
flfve if as indicattng tlie d^ee of likelihood that there was but ooo 
Elizabeth Jennens ; that is, the probabilities are as 10 in favour of that 
GonclusioOf to 17* 

(s) Hood v. My BuiJMHH itiHi p, ttS> 

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PBOor or zmnxiTT* 


Of coaney a very few more incongruities would nnake the prepon- 
derance of probability against the identity overwhelming ; and in this 
case, several others being proved, the Vice Chancellor thought it so 
clear that the plaintiff's ancestress was not the iron-master's daughter, 
that he refused an issue to try (what depended •on such j. ^.^ n 
identity,) the plaintiff's proximity of kinored to the intes- ^ •> 

tale ID the cause* 

Questions on the identity of living persons rarely arising in relation 
to soccession,(y) physical characteristics may be shortly disposed of. 
When the case is one of personation, the impostor will, of course, 
assume the name, description, and such other characteristics of his 
principal as are capable of assumption ;{z) and these may include some 
physical marks, such as the colour of the hair, and other peculiarities 
of form. The change of these must, however, have been produced 
by agents, the use of which is, in general, capable of detection, by 
floedical fcience*(a) 

Oo the features, the most obvious and peculiar of physical charac- 
teristics, Lord Mansfield has observed, tnat the distinction between 
individuals in the human species is more discernible than in other 
animals. A man may survey ten thousand people before he sees two 
faces perfectly alike, and in an armv of a hundred thousand men, every 
one may be known from another.(o) Cases of persons undistinguish- 
aUe from each other by this test, have, nevertheless, occasionally 
occurred. Several are recorded by Pliny ,(c) and in the Causes CiU* 
hret ;{d) but in this country, they seem to have been less frequent, or^ 
at least, less frequently to have given rise to ligitation, and such as 
have occurred, are to be found only in the annals of criminal juris- '^ 

Those who have considered this subject, attach less importance 
•to the features, which are often found to undergo great r ^^^ ^ 
a]teration,(/) than to peculiar marks, such as ncsvi^ cica- •• J 

trices, fractures, and natural deformities.Cg) Sometimes marks, 
which have been effaced, may be brought out by proper means. A 
criminal who had escaped from prison, after being branded, had 
obliterated, and apparently destroyed the mark, by causing an erup- 
tion over the whole surface, but he was lonff afterwards identified by 
Foder^, who applied a cold plate of metal, which made the other 
parts pale, whilst the fatal letters appeared in distinct relief.(A) 

(y) See on pariuB 9uppo$Uia, ante, p. 384. 

(ir) See Attorney General y. Fadden, 1 Price, 403. 

(a) Orfila bas an article on tbia aubjcct, AnmaU$ ^BygiHet t IS, p. 406. See Betli« 

area. (6) s Cou. Joria. 402. 

(c) In bia cbapter on caaea of reaembUnoe, be noticea, aa acarcely distingoiabable, Pom- 
pej, and Viblua, a plebeian ; tbe coosnla Leotuloa, and Metollua, and tbe impostor Artemon, 
aiM Antiocboa, king of Syria. 

{i) These are almeat all eaaea of diapoted racoeaekm or p tiaaewi on nT ttetoa^ Thej «I0 
eoUeeted bj Foder^ Med. Legale, 1 1, c 9. 

(c) Caaea of Sqoirea tbe giptyt on tbe trial of Elizabetb Canning, 19 How. St Tr. $83 ; 
Frank Douglaa, 1 Faria Sl f onb. 2^ ; Ibid. 3, 143. Other caaea are mentioned, 28 How. 
8t Tr. 819. And aee on tbe mode of trybg the identity of priaoners aAer oonfictioo, 4 BL 
CoiD. 396 1 Charlea Ratcliffe'a eaae in tbe Sute Triala j Rez ▼. Rogera, 3 Barr. 1809. 

(/) See tbe caae of Caaali, wbo waa in danger of being denied bia ttatiia and P'o^rtV, 
owing to a cbange of appearance daring thirty yeara abaence. Zaccfaka Cona. 61 ; BecOt 
1; Pkria dt Fonb^ M tttp. 

(r)SetBed^all;F«U4frJteiK«M«V^ (i^ Bled. Loftle, iiU My^ 

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The previous history of a party may assist in his personal identifica- 
tion. Thus some occupations leave traces, by developing, or other- 
wise afiectin^ particular members. And the same history will supply 
a test of the identity of mind by trying the party's knowledge of facts 
of which he must be cognizant, if he oe the person alleged. On the 
other hand, this knowledge as betrayed by aeclarations may be used 
as evidence of identity against him.(t) 

But these means of identification, for the most part, perish with the 
bearers, and can be proved and used only by their contemporaries ;(j') 
and attention will be more usefully directed to those descriptive signs 
or characteristics by which persons are distinguished in writings, and 
may be identified notwithstanding their decease. 

r»460 1 *^ ^® ^^^^ prominent of these the name first demands 
J consideration, its value in evidence, either for or against 
identity, must obviously depend upon the occasions and rules pf its 
imposition, and its susceptibility of change. 

In both particulars the Christian name has always had the advan- 
tage of the surname. The law considers it as certainly and regularly 
imposed, it being said to be repugnant that there should be a Christian 
without a name of baptism, and it is legally adherent through life 
because the church allows of no rebaptising.(A;) Wherefore Lord 
Coke recommends that " special heed be taken to the name of bap- 
tism for that a man cannot have two names of baptism as he may 
have divers surnames."(0 And he elsewhere says, that ** it is holdea 
in our ancient books that a man may have divers names at divers 
times, but not divers Christian names.^ On one occasion only the 
baptismal name might legally be altered. If the bishop at confirma- 
tion called the recipient by a dififerent name from that given at the 
baptism, the name of confirmation became thenceforth the proper 
Christian name.(m) Thus Chief Justice Gawdy's baptismal name 
was Thomas, but having been confirmed by that of Francis, he bore 
the latter, and by the advice of all the judges, used it in his purchases 
and grants.(n) But on the revisal of the nturgy, at the Restoration, a 
change took place in the form of the office of confirmation, and the 

(f) Rez ▼• Prioe, 6 Eait, S39. 

(J) Sach as larrive ire My discosied by Orfila and Deferde. The ibnner etrameratet 
ele? eo rales for iiiTeetigatinsr, by their means, oases of dodbCfu ideottty of dead persons. 
There are sobm reoent remarkable instaooes in this oonatry of sqoh ideotifioatioo after the 
lapse of oeoturies. See the aocouots of the openioff of the tombs of St. Cothbert, (by my 
mend the Rot. James Raine,) of Charles I., (by Sir uenry Halford,} and of Hampden, (1^ 
Lord Nugent) 

Physi^ characteristics, although they give rise to many names, appear nerer to have 
i>rmed in this oocmtry part of the description in instramenta, as they did amongst nations of 
antiquity. An example of the practice is given by Dr. Yonng, (Aooonnt of Di80o?eries« 
,183^ p. 65,) ftom the Greek Papyros of Anastasias, where in a conveyance of land, tba 
parties are described, in addition to their names, by their ages, stature, complezion, featnrea, 
peenliar marks, &«., as in a modern passport 

{k) See 5 Bac. Ab. 593. (I) Co. Lit 3 a, and see HaigraVs note (5) 

(m) Co. Lit 3 ; Htzh. Grant, 67. 

(a) Two of the sons of Henry IL, of France, by Catherine de Medici, changed their 
aimes at confirmation. According to some authorities, the baptismal name might be retain^ 
ed with that of confirmation, 6 Moo. 115 ; 9 Lord Raym. 1015. fiy a provindal conatitntion 
of ArchbishoD Peccham, a. n. 1381, it is provided that no wanton names be given to 
chiUren, or if they be^ that they be obanged at coofinnatioiu Gibs. Cod. voL 1, p. 440, 
Cftmd0n*s Remains. 

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UAop no longer mentioniog the ChristiaD name, alteraUoos in it eeasod 
to be effectuaflv made otherwise than by Act of ParIiament(o) 

There is» indeed, in the Romish Church another occasion, namelr 
profession, npon which the Christian name is changed ;(p) but accoro- 
iDgtoLord rhurlow, the conventual name is not meant r ^..i -i 
•for the rest of the world, in regard to whom the former '• } 

name continues ; and he distinguished this change from that at ooor 
firmatioD, when by the received law of the country, the name of con- 
firmation became the real name. The practice ought however to hf$ 
borne in mind in genealogical inquiries relating to Roman Catholic 
families. In the Stafford case it was proved, in order to shew the perr 
sonal identity, notwithstanding the difference between their baptismal 
and coBveniual names, of several members of the family who had 
become professed as nuns.(9) 

For several legal purposes ^Iso a party may acquire a new Chria^ 
tian as well as surname, by arbitrary assumption and common use; 
and the histories of some persons through whom a descent is to be 
traced, n^ay disclose reasons why they should have encountered tht 
certain inconvenience and the risk of injury attending a change of 
Ibis k)nd.(r) 

In the case of persons to whom several Christian names were given* 
a partial alteration may have taken place by the dropping of some or 
one of them ; for by a rule as old as the time of Bracton,(5) the bear^ 
ers wouUy in law, oe sufficiently described by such as they retained 
or more frequently used. 

The value of the surname as a characteristic differs from that of 
the Christian name in the particular of its having always been change- 
able with greater facility, and in the hereditary quality which it 
derives from custom, and which makes jt to some extent evidence of 
paternal origin, of identity of family as well as of person. 

On the legitimate weight of surnames, both as personal and at 
£Bimily distinctions, considerable light is thrown by their history in this 
country. Whatever was the period of their introduction,(() r ^..^ % 
*it seems to be agreed that they were not established on ^ J 

a footing approaching their present, in extent or stability, until about 
the time of the Reformation. To their previouily unsettled use may 
be a8cnt)ed the indifference with which the law regarded them, and 

(i() See 9 Bam*i Eec Law, lit Dmfinnatioi). 

ip) 1 Ves. Jiinr. 416. (q) Mm. Er. p. 145. 

{rf 7 Blitf. 455, (fiO E. C. L.R.); 5 Bac Ab.tiL Misnomer; Shepp. Touch. S33. 

(f } Si quti binomiHii fueril, rive in nomine propria, rive in cognomine^ Ulud n'wnen teneti' 
imm erit, qu0 ioUtfrequentim appellari. Bract foL 18d6, and see Addis, demandaot, 7 Biof . 

(f) Cam4efi (ReinaifM, IIS,) and Sharon Turner (An^;. Sax. ▼ol. 3, p. 11,) perceive them 
to Saxon Times. Sismondi (Hist France, t. 4, p p. 544,) says they were invented, together 
with armorial bearlngfe, in (he first crosade, 1096. Sir F. Pal^rave (1 Pari. Writa, 409,) 
dates their establtshroent in England in the time of Edward 1. Mr. Lynch (View of l?eudal 
Dignitiee, p.S30,) shews that at the end of the 1 5th century, they were not settled evea 
HDong noble families in Ireland. Sir Joseph Jekyll, (3 P. Wma. 65,) and Daines Barring* 
Im, (Obeervations on Stat 37*2,) say they are of no groat antiquity; and aocordiog to tSe 
litler, they had not in the laat century, and probably hive not yet (see 2 Bythew. Convey* 
iM,) beoeme universal In Wales. See further, a paper by Mr. MarkUnd, on the antiquity 
end tatfodaction of surnames; Archslogia, vol 18, p. 105. And on their origin and use m 
«l natieas, there is a mine oriaformition m the NoQveaa Trait6 de Diplomatiqoe, 1 4, ^ 

Apkzl, 1845.— 

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339 wbback's sviKB^cx oy litJoontioK* 

f # ..." 

Tt^hic^ no doubt had reciprocal tofloeDce upon the popular prectic*. 
Tl'here is a striking'instance of this in the 8lh Edwara III. a period 
rather distinguished for the importance attributed to matters ot form* 
A defendant in formedon pleaded in abatement that the deed shewed 
a remainder to Adam le Fitz Richard, and that the writ requft-ed that 
the tenements should remain to Adam de Armeston, but the plea was 
overruled on the ground that the person was the same, (u) 

Referring to the writers cited for nwre particular information on 
'surnames, it is to be observed here that their hereditary quality, origi- 
Hating merely in the obvious convenience of designating a child by 
its father's name(^) in the absence of one conferred by personal dis- 
tinction, is entirely the creature of custom. This growing inveterata» 
the law came to regard the cognomen mojorum ex sanguine tractum^iw) 
r »45S 1 ^"^ *^ consider the father's surname as •that of the childi. 
l J unless the contrary should appear, whence the issue is 

ffuardedly spoken of as in law and in truth carrying the surname of 
the father.fx) But the rule has never been applied so as to aher the 
originally tree and arbitrary assumption of surnames, and they might 
always and may still, be taken and changed at pleasure.(j/) And bas* 
tards who have no legal father cannot have a surname except by 
acquisition in the primary mode.(2) 

If to this le^al mutability of surnames ever since their first heredi* 
tary use in this country be joined the circumstance in their origin* 
that most of them, especially such as are derived from parentage* 
residence, trade, office, personal character or appearance, and the 
like, would, in all probability, be applied as prin>ary designations to 
humbers of persons not necessarily related to each other, who thpa 
would form so many independent stocks of the name, it will be per- 
ceived how unwarrantable it is to consider community of surname aa 
hidicative of some annate consanguinity more or less remote. 

But the absence ot such consanguinity is shewn by a discrepancy in 
(he surname proving a breach in the chain of male descent unless a 
new name was somewhere assumed. Changes of surname are also 
serious obstacles to identification both of families and individuals, and 
the most common causes and occasions of such alteration are therefore 
deserving of notice. 

Perhaps the most prevalent cause after surnames had become at all 
hereditary, was the practice of younger sons dismissing their father's 
name, and assuming that of the lands he gave them, or of their own 
residence.(a) Hence, it is observed, there are sometimes found ia. 

(«) Pai»ch. 8 Ed. 3, 19 b, cilcd 1 Palgr. Pari. Writs, 409. 

(o) litis remiins evidonC in the lar^e class of sornames indieatifo oT filiation, which 
ooBimenoe with FUm^ Mae, O*, Ap, or Bin^ or tarmioate in son, ni/rn or kmg, Oaaidefi itotlcM 
the ibrmotion of eurnames in the same manner amongst the ancients, Remains, p. \G9* Itt 
0yria and Arabia, tliey are formed in an inverse way, the parents taliiiiff a name from their 
first born son, thQ^ Abu-Michael, meaning; the father of Michael. ^wetCs Researohea, 
dted Turner*8 Ang. Bax. vol 3, p. 1 1. In Cornwall, Wales, on the borders of Scotland and 
Itt Langnedoc, the peasantry took the fathcrV Chrintian name without any other addition 
than their own. Camden, 169. Bsrrio^ton ou the 34 Ed. 3, c 2^ The custom also pre. 
vaUed even in noble Irisli families, (Lynch*s Feudal Instituiions, p. 930,) and stiti eootimits 
io Wales, (tlia son osincr his Other's Christian name as a surname,) and ii laid to be m 
cause of perplexity in Walsh titles, 2 Bythew. Con v. by Jarm. 654. 

(«) Sir Moyle Finch's case, 6 Rep. 65. {x) 6 Rep. 66b - 

(y) S P. Wraa. 65. (a) Co. Lit. 3 a. '' 

(«) Bnmal uwtmimn m fifto faj CtBdM, Ranaiaa, ITf. 

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three descents as many dlfl^rent suraames in (he same faniily.(&) A 
weH-known instance of the custom appears in the descent of the Mar- 
quis of Bath from one of the Boltevilies, who having resided at one of 
the Inns of Court, was thence called John of the Inne or Thynne.(c) 
Smith, Rougedragon, in 1586, •laments the practice as r ^ .«- ^ 
liaving ** overthrowne and brought into oblivion many L ^^ S 
ancient houses in this realme."((/) Camden shews the extent of it by 
an example in which no. less than nine changes of surname took place 
in only three venerations of male descendants from a common ances* 
tor named Belward.(c) 

In Ireland, the younger branches sometimes took surnames from the 
titles of honour borne by the heads of their families. Thus the brothera 
of the Earl of Desmond are, in letters-patent of Hen. 7, called "Thomas 
of Desmond," ** John of Desmond," &c., and Mr. I^ynch observes, 
that this disuse of family names leaves the inquiry open to many doubts 
and misconceptions.(y) 

At one time a regular occasion of change of surname was ordina- 
tion. It was then the " fashion to take away the father's surname 
Jwere it never so much worshipped or ancient) and give the son for 
It the name of the town he was born in"{g) Thus, William of Wyke# 
ham's patronymic had been Longe, and William Waynflete's Barbw, 
and these were altogether displaced by their clerical names. (A) The 
practice fell into disuse soon after the Reformation ; but the kindred 
custom, sanctified by examples of such as Erasmus and Melancthon, 
survived, and is not yet extinct in Germany, of ecclesiastical and other 
Writers adopting literary appellations, either entirely new, oi; consist? 
ing in a translation of their original names.(t) 

A cause more operative in modern times is the commission of offences, 
indncinff a change of name for the purpose of concealment.( j) During 
the civil wars, instances of this were frequent The Blounts of Buck- 
inghamshire then took the name of Croke, the Carringtons of War* 
wickshire that of Smith.(ft) In more recent wars also, many cases 
are known to have occurred of the same step being taken with the 
same view by deserters from the *army or navy. And r ^ . . . -i 
in cr^ne, family estrangement, and misfortune, times of*- •■ 

peace equally supply causes and examples of the practice, and which 
dccasionally present themselves as obstacles in the establishment of 
titles to property.(Z) 

Some occasions may be observed of departure from the custom of 
tromen at marriage abandoning their own patronymic for that of their 
husband. The change is not always on the side of the tvoman, and 
ioitances of the husband's assumption of her name and arms, without 
toy public authority, are not unfrequent in former times, especially 
when she was an heiress and he a cadet (m) Down to the seventeenth 

W Ltmd's Cheihirt, 357 ; ArefaookigM, vol 18, p. 1061 
' (O Biglmad'tt OfaMrvatiooA, p. G. 
(iQ Citod from a tract in the Bodleian, hy Dalkway, Herald, Inq. 198. 
(c) Rematos, ubi eap.f Bifland, p. 5. 

</) Feodal lonatotioBa, p. 331. (g) Hotinahed, Chron. 939. 

(i) Lowth*s Life of Wykebam, p. 9 ; Chuid]«r*« life onVaynflete, p^ 10. 
(t) See Hallaro, Int. to Lit. of Eorope, 1. 358. ( j) Camden, 189. 

(ir) FuUer'e Worthiea, p. 51 ; BarrlngtoB^k Obeerv. oo 8Ut p. 379. 
(0 8e0 8tif«iT.rarkei,poit,^457. CNi)IliUlBira7»HenkLIa^l96(Guidia,Uil» 

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894 rubbaok's «vni9€9t Of ivqcnMov. 

century^ and probably Ialer» married women and widows are foyod 
sometimes to retain their maiden names with an alias. In the CbaiH 
dos case there was much discussion upon the meaning of the descrip- 
tion of a testatrix as *' Anne Jackson alias Bridges,"(^) ^^^ '" ^^*" 
dence of the explanation contended for, several instances were adduced 
from contemporary documents. Camden(o) says that in his time, ia 
France and the Netherlands, both the maiden and marital names were 
used, the maiden name being added without any alias^ and according 
to another authority, it always appears upon the tombstone.(j9) la 
Scotland, and more particularly in Wales, married women and wid- 
ows still use their maiden name upon many occasions, thus executing 
instruments by it, even though described in them by the marital 
name.(9) But in deeds prepared in Scotland they are described by 
both names, as they oudat always to be when it is known that they 
will not conform to the English practice. (r) 

The performance of a condition imposed by a testator or settlor, 
compliance with his wishes or regard to a benefactor or relative,(«) 
are also common reasons and motives of chance of surname. Mere 
caprice also sometimes operates. In the Berkeley Peerage case it 
r *466 1 sippeared that the Countess of Berkeley and her brother 
L J *had changed their name from Cole to Tudor. The time 

of this change became an important question in the case, the brother 
having subscribed the register of the first marriage by the name of 
Tudor, which it was endeavoured to show he did not use until long 
after the date of that alleged occurrence.(0 

With respect to the modes of effecting the change it is to be recol- 
lected that the royal license is no more than a permission to take the 
name, and does not give it,(u) and that, therefore, a change in that 
way is still by voluntary assumption. 

The practice, is, however, of considerable antiquity.(i?) But Sir 
Joseph Jekyll said he was satisfied the usage of passing Actsof Parlia* 
ment for imposing surnames was but modern, and that any one might 
take upon him what surname and as many surnames as he p]iea^d» 
without any Act of Parliament.(to) Most acts for this purpose con- 
tain a proviso to prevent the loss of the former name, in order that the 
party may continue to take by it.(x) 

The legal changeableness of surname does not involve the power to 
make the bearers answer a description in a will or settlement. If a, 
legacy is left to a class of relatives of a particular name, and a persoa 
answering the description in every other particular, assumes the fa- 
voured surname, even before the time of vesting, he will not be enti* 
tied ; for though he legally bears the name, the intention of the tes^ 
tator is evidently to benefit those only who should bear it by deriva- 
tion from their ancestor8.(y) 

(n) Mio. Et. ; and tee Belts's Revitw. (•) Remains, 188. (p) Bighnd. 

(9) 3 BjtlMw.Conv.654. 

(r) See on the immaterialitj (with reference to a teitalor's intention) of a chuge «f 
Dame by marriage. Pyot v. Pyot, 1 Vex. Senr. 335. 

($) See Le Marchanff Gardner Peerage, 434. (1) See Min. £▼. 1811. 

(») Per, Lord fildoo, tS Vet. lOa (e) Archeologia, toL 18, p. 110. 

(I*) 3P.Wma.67. And aet X)otv.IiilM)oai]N?.Toonf,5a^ A. 544, (7 ££.) 

(X) 15 Vea. 100. 

(y) Barlowf. Bateman, 3 P. Wma. U; i Bko. ?. C.lBi,fkC. Mfh ?. Laig^ U 

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Where the change of name was efTected by roval licence, the iden- 
tity of the bearer of both names may be shown by production of the 
Earl Marshars book from the Herald^s Office, containing the record 
of royal licenses for the change of surnames and arms. This was 
admitted in evidence in the claim to the Rokeby Barony, r ^.^^ n 
•in order to account for the change of the claimant's ^ -■ 

name from Robinson to Mon(agu.(z) 

Identity may also be traced through a change of name by persons 
who have known the party under both appellations, or by aifferent 
witnesses who can prove that they have known the same individual 
under each ;(a) or by declarations or letters of the party alluding to 
events in his history when he bore a different name.(ft) 

In well-drawn deeds, to which a person who has borne two names 
in a party, the fact is^ noticed either in his description or by recital, 
and this notice is positively necessary when he took the property by 
one name, and assumes to pass it by another. Where the identity is 
thas shown it is unusual to require rarther evidence. But if the iden- 
tity is asserted as an extrinsic fact, which will be the case when the 
vendor has changed his name since he has acquired his property, the 
purchaser is entitled to have the identity verified by an extract from 
the Earl Marshal's book, or other equivalent evidence. 

In Stiven v. Parkes, the question was whether a sequestration ob- 
tained against the defendant had determined by his death. It appeared 
that, in February, 1838, a man described as Sir W. Payne was con- 
victed of felony, at Bury St. Edmonds, and sentenced to transporta- 
tion. A formal notice having been given by the superintendent of the 
hospital at Sydney, in New South Wales, stating the death of this 
PSiyne, in 1834, such death was regularly returned to the Home Sec- 
retary in England. A letter had previously been received from the 
defendant by a member of his family, dated New South Wales, and 
containing a request that he might bo addressed as William Payne. 
The letter bore the signature of r. only, but it referred to the vessel in 
wfricb Payne had sailed, and alluded to the trial at Bury, and other 
circomstances tending to show that Payne and Parkes were the same 
person. It was contended that the defendant's death r ^^^^ -. " 
was not •established, and the fact was relied on that ^ ^^ J 
though he was possessed of property, no administration had been taken 
oot to his effects. But Lord Cottenham was satisfied by the evi- 
dence that Payne was the defendant, and that he died in 1834.(c) 

A party's identity may be traced through the acquisition or change 
of a title of honour(d) by the instrument or enrolment of the instru- 
ment conferring the new dignity. In the Stafford case, Humphrey, 
Earl of Stafford, was identified with Humphrey, Duke of Bucking. 
ham, by means of the original Charter Roll of 23 H. 6, n. 33, con- 
taining the patent of the Earl's elevation to the Dukedom.(e) 

To the causes of obscurity, consisting in total changes of names, 
most be added their partial variation, arising from unsettled ortho- 
graphy. Instances of^this abound in family records of very moderate 

(s) Urn. Et. 1880, ^ 14. («) 1 Douo. 171; 9 Bngg. C. R. 190, (4 E. Ece. R.) 

{h) 8ee Rex ▼. Prk», 6 East, 323. 

U) Ma Lord CbMioelUir*8 Coort, 11 Janaary, 1837. 

id) 8m ftAt 1 Ed. 6, e. 7, •. 3. (e) Mio. Er. p. 32. 

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antiquity. The biographer of Wajmflete states that be had notiMd 
seventeen different modes of spelliqg that namew(/) Yilliers is ob- 
served to have been spelt in sixteen ways. Four brothers called 
Rudely, executing the same instrument, in the sixteenth century, spelt 
their name each in a different manner. And the same person will 
sometimes be found through carelessness or caprice, from time to 
time, varying his practice in this important particular.(^) 

Inahe Chandos case some discussion took place on the weight of 
the difference between Bridge and Bridges in evidence of non*idea* 
tity of family ;(A) and in Hood v. Beauchamp the same question arose 
in relation to Jennens and Jennings, but both cases went off upon 
other points. The facts in them had occurred towards the end of the 
seventeenth century, but orthography fluctuating less as education 
advances, the force of a discrepancy in the spelling of surnames will 
be greater when the bearers lived in recent times and were members 
of ^ucated families. 

r #459 1 *'^" obstacle in the way of genealogical inquiries 
^ •' closely allied to the last is the difficulty of discovering 

the true reading of names in old records. Some letters, it is observed, 
are written precisely in the same manner, and in combinations of 
those formed bv parallel strokes the eye is unable to develope the ela* 
ments of whicii tne group is composed. Thus, a name wnich mav 
be either Hauvil or Hanvil has also been read as Haunil, Hannil, 
and Hamul ; Gouiz as Goniz, and it is probable that the name of the 
baronial familv of Novant ought to be read Nonant, although the 
first orthography has been adopted by Dugdale and his successors.(t) 
There are few who would not be baffled and thrown out of scent by 
differences of this kind, which, unlike ordinary variations of ortho* 
graphy, are altogether irreconcilable by refererce to pronunciation ; 
and as the ambiguity does not appear in copies either written or 
printed, nothing can better show tne danger of implicit reliance on 
even the highest second-hand authority. 

Another cause of confusion is the practice of translating surnames, 
which Lord Coke justly condemns, but from which he not so justly 
states his own profession to be free,(j) as those who have consulted 
old placita can testify. The custom would have been less perplexing 
had it been uniform, since the identity of the bearers would be as weU 
shown by names always in the language of the records as by their 
real names : but it is found that the clerks either translated them into 
Latin or French, or retained them in the vernacular at their pleasure, 
and without being guided by any fixed rule. Thus, '' Thomas de la 
Guttere" of one year appears as " Thomas atte Strete" in the next 
return. (A) This is also an example of the translation not being made 
as was to be expected merely by the substitution of a termination suit- 
able to the language used. Indeed most frequently the names are 
changed throughout, by a translation founded on some derivation or 

(/) Chandler*! Life, p. 13. 

(g) 1 Palg. Par. Writs, 409 ; BtgUmd*! ObserratiotM on Parish Regittari, Arohttologia, 
voL 18, p. 1U7. (A) S«o BdU*s Rofiew. 

(i) 1 Pale. Pari Writs, 409. 

j)Co.UU.3«. Ho iaj*,**tbelaw7«r never tr^MUtosramamei.*' 
"^ 1 PaJf. ParL Write, m 

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noov 139 uiBHru' i« S8T 

■niHiigy -mhieh stmck the fancy of the writer. The fotlowiog spec!- 
OKos cnf the disguises tmder which many fisimiliar names may be 
traced* imd from which their difference is often so great r ^^^ •» 
timt, as ♦Camden (from whom I take most of them) re- ^ ' 

marks, ** they will scantily seem to have been the same'*(Q — Astley, 
IfEsUega ; Boys, De Bosco ; Beauchamp, De Bello Campo ; Bowes, 
De ^cuftuf ; Crevecure, De Cr^ito Corde; Cecil, SimUu$; Deve- 
reisr, De Ebroids ; Hussey, De Hosato and Hosatus ; Love, Ltwus ; 
Lorell, Lupellus ; Lisle, De Insula ; Montjoy, De Mmt Jovis ; Mor- 
timer, De Mortuo Mari; Pierpont, De PetrA Ponte ; Nevill, De JVbwd 
VUIA ; Newmarch, De JSTovo Mercaiu ; Roche, De Rupe ; Savoy, 
De Sabaudia ; Strange, Extranem ; De la Zouch, De Stipite Siccih 
Some Christian names are also considerably varied by translationt 
and one name in one language occasionally serves, and may legally 
be tised,(m) for either of two in another,' as Jacobus for James or 

Sometimes a difficulty arises from the fact of the same person 
appearing to bear different Christian names at different times. Thus, 
in the Camoys Peerage case it was necessary to show that Elizabeth 
Lewknor, an ancestress of the claimant, was the same person who 
was at other times called Isabella Lewknor. Evidence was produced 
to show that, in the reigns of Edward II. and Edward III. the names 
of Elitabeth and Isabella or Isabeau were frequently applied to the 
same person in inquisitions /)ast mortem.{n) 

A very common cause of confusion, extending over both Christian 
and sBmame, is the recurrence of the same Christian name in the 
same family. It is remarked in old records, that ** the additions of 
etnior and junior^ as well as the local descriptions, are so often omit- , 
ted as to render it impossible to distinguish between the various 
branches.^ With respect to a father aii3 son who were contempo- 
raries, the role in legal proceedings probably influenced the practice 
in other writings, and is thus laid down : if a father have the same 
name and addition with his son, the writ against the son is abatable, 
unless there is the further addition of puisne, (or its equivalent ^*u;itor 
or the younger;) but if the father be ^defendant there is r ^.g. -i 
no need of the addition of eigne. If the additions were *• J 

diferent then puisne was unnecessary to the son's description.(p) 

When two appearances of a name alleged to designate the same 
person are distant from each other, further evidence may be required 
to prove that the same individual was intended : and it the interval 
exceed the duration of human life, it will of course be fatal to the 
identity. In the claim to the De Roos Barony, the committee required 
evidence that William De Roos de Hamelake summoned, i Hen. 5, 
was identical with a person so named who had been summoned 20 
lUch. 2, and the proof was supplied by intermediate summonses in 
the reign of Hen. 4.(q) 

The effect of time as a characteristic in fixing identity is noticed by 

(I) ReaidiMi, p. 191. (m) 9 Hotl. Ab. 135, 136; 3 Keb. 978. 

(«) See 6 a. & Fm. 800 ; Evidence of Mr. Hard/, printed Min. of £? . p. 351. 
(•) 1 Pal^. Pari. Writ*. 409. 

(9) Salk. 7, pL 16 ; 3 Hawk. P. C. 261, e. 23. Sweeting t. Fowler, 1 Stark. 10ei» (9 
E. C. L. fi.) (9) Blin. £v. I80i,p. 33. 

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8M% hubbioe's miiawin or 

Sk* T. PlumePy M. R» in the ca^e of the Marquis of Cholmondely r. 
Lord Clinton. The character (that of right heir of S. R«) he observes, 
may belong equally to several persons in succession : time, therefore, 
CUT some other characteristic circumstance is to be added when any 
one is to be identified. As it stands, it is a jo^eneric not a specific 
description; it wants all that is to give it particularity and identity ; 
tim differentia^ the accidens (as the dialecticians term it), name, date, 
or circumstance, to denote what right heir is meant. Without such 
addition the description will equally fit every right heir, but charac- 
terizes no one in particular. It will apply with equal propriety to 
Lord Clinton as to Lord Oxford ; for eachr at a dinerent time, was 
solely, exclusively, and correctly, the right heir of S. R.(r) 

The characteristics which next after the name deserve attention are 
those comprised in the description or addition. The common law in 
no case required any other description of a p>erson than by his Chris- 
tian name and surname, unless he were of the d^ree of a knight or 
some higher dignity, when the name of dignity was necessary as 
being a mark of distinction imposed by public authority.(«) But in 

r •462 1 ^^^ ^™® ^^ ^^"' ^* ^^ ^^ ^^'^ ^^ ^^^^ '^^'^ ^perceived 
*- ^ that the Christian and surname were not sufficient deno- 

minations, and did not sufficiently avoid the confusion that might 
happen by the mistake of persons ; and the statute of additions(/) v^as 
therefore passed, enacting in certain proceedings where execution wasr 
awarded against the defendants, that " additions should be made for 
their estate, or degree, or mystery, and of the- towns, or hamlets, or 
places and counties in which they were or be, or in which they bo 
and were conversant."(u) 

This statute must have extended, though there is evidence against 
the opinion that it introduced, the practice of adding descriptions in 
deeds and other instruments. Spelman and Barrington have showa 
that Fuller is in error when he asserts that additions were not used 
except in law process, until the end of the reign of Hen. 6 ;(v) and 
the former notices some who wrote themselves armgeros in the time 
ofEd. 3.M 

The aadition* it may be observed, is entitled to more weight in evi« 
dence, either for or against identity, in proportion to the antiquity of 
the facts* The frequency of changes in rank, occupation, and resi- 
dence, having increased with the commercial advancement of the 
country, discrepancies in such characteristics are therefore, more 
easily overcome as we approximate to modern times, when fluctua- 
tions in the fortunes of persons and families are continually found to 
00010". Those additions especially which are called names of wor- 
ship, as esquiret gentleman, and yeoman^ have been long loosely ap- 
plied \{x) and a discrepancy in them, deserves little consideration as 
evidence against the identity of persons,(2^) and, of course, much less 
when adduced to show a diflerence of family. 

In the Chandos case, a deed was put in evidence, in which Edv^ard 

(r) 3 Jac 4& W. 88. (•) 3 IiMt 6e5 ; 5 Bte. Ab. 594. 

(t) 1 H. 5, e. 5. («) 2 lost. 670. And «e Bro. Ab. Addition. 

(») EncU^ Worthies. (to) Spelman on Anoteot Deeds ; Btrringtoo on the 8utQtet« 

(jr) 3 Inst 666 ; Fortetcne, Rep. 354. See Barrinfton on 34 Ed. 3, c. 33. 

ijf) Oa its l^gal effbct, see the oases on the plea of mil <le/penoa, 16 Via. Ab^ 15. 

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Bridget VM deicribad 9m ''yeooian,'' whiirt in tb« rdgiiter of Maid- 
stone, Robert, ^ho» by the claimant's case, waa Edward's ^ _^» ^ 
•fathtf , was atyled '« esqoue." Lord Eldon obserred, ^ ^^^ J 
** If thk were all the difficulty to be surmounted by the claimant, I 
cannot say it would create much hesitation in my mind. If these 
terms of ' esquire' and ' yeoman,' which we know by long usage have 
been so arbitrarily applied according to the habits or property, or pre* 
tensions of individual, or the caprice or ignorance of those who 
assigned them, were to be taken as grounds on which to decide the 
rights of claimants, whether to estates or dignities, your Lordships 
nuBt pMx^ive upon how precarious a sround the just rights of many 
in the country must stand, if at all called in question. In this case, 
the rank in life of the small heiress with whom Edward, himself 
having no property, intermarried, has been assigned as accounting for 
the station in which he thus appears to have b^ placed."(x) 
' In reference to this case, it was stated to illustrate the weakness of 
the argument of non-identity of family from a difierence of condition 
in life, that one of the Lords Willoughby of Parham, was a common 
soldier when the title fell to him, and another a cutler.(a) 

But where the person, whose identity is the subiect of dispute, is 
shown to have held a different station in life from that of the person 
with whom he is sought to be identified, the evidence will be entitled 
to weight in disproving the identity. Thus, in the case of Ruther- 
ford V. Maule, it was attempted to identify one Robert Rutherford, of 
Trenton, in America, with a Robert Rutherford, the son of a wheel- 
wrighty at Lurgan in Ireland, one of whose sons was a wheelwright, 
and another a whitesmith : but amongst other grounds for decreeing 
against the identity. Sir J. Nichol reUed on the fact, that the intestate 
in the cause was proved to have stated, '' that she understood her 
fiither's (R. RiHherford of Trenton) family were not wheelwrights 
and smiths, but persons of some consideration."(6) 

But it may be observed, by the way, that there are cer- r ^ .^ . -. 
tain characteristics the effect of ori^n, or impressed in I- -■ 

youth, which a change of fortune will not easily efface. A person 
who appears in middle life in low circumstances, may yet be identi- 
fied as the child of an opulent family, but it is scarcely credible that 
the education which he must have received should ever leave him 
unable to write his name. In Hood v. Lady Beauchamp, it was shewn 
that Elizabeth Jennens, from whom the plaintiffs were undoubtedly 
descended was a markswoman, and this materially tended to dis- 

{rove her alleged identity with Elizabeth, the daughter of Humphrey 
ennens, a wealthy iron-master. The suggestion, unsupported by 
proof, that she might have been paralytic when she made her marg, 
whicb she did wmn of the middle age, was treated by the Vice- 
Chancellor as being a bare probability undeserving of considera- 
In weighing the sufficiency of evidence of identity, the compara- 

{%) Speecb, eited Mto, n. 93. 

(•) BelU*s Review of tboCliandof ette, p» 230, where thero are lonitjedicbqt ■ hurra 
lions on Uiie fobjecL (6) 4 Hagf . S39. 

(e) M& Viee ChaoseUor, Eurtcr Term, 183€. 

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tive frBqpeaejr of tbeumti^, and the popahLtioD of (be pltee of resi- 
dence are, of course, material circunfiBtai}oe8.(^ 

Civilians held, that unless the name was frequent, further evidence 
was unnecessary, for that plurality was to be proved and not presumed. 
Abbott, J., made a similar remark ;(e) and Lord Mansfield's observa- 
tion coincides, that loose evidence of identity becomes c<^ent when 
it is not answered.(/) But where it is not the province of any party 
to answer it, as in conveyancing, in some proceedinffs in equity, and 
in claims of peerage, in th^ ab^nce of positive evidence, a cumula- 
tion of points of agreement would seem to be necessary. I have not 
met witn tte mention of any number as sufficient hi our law, but the 
commentators on the civil law do not require, even in common names, 
the addition of more than two concurrent characteristics.Cg*) And 
from the; following cases, it will appear that in our courts, one joined to 
the name, will oftm prevail. 

A very usual mode of Viewing identity, is by proving a conformity 
r *465 1 *^^ residence, in addition to that of name ;(A) and where 
■- •'the place of residence is small, and the name not of the 

commonest, the evidence is generally deemed sufficient. At Nisi 
Prius, to prove the death of John Ingram, the register of burial of a 
person of that name, at Castleton Oxfordshire, was put in evidence, 
and his identity with the given John Ingram was established by the 
will of the latter, dated shortly before the time of the burial, in which 
he mentioned his house at Castleton. The will of a party is also of 
frequent use in identifying him by the mention of his nearest relatives, 
his property, and other particulars.(t) 

On the same ground of conformity in respect of time. Lord Ken- 
yon held a person identified sufl&ciently with one so na^ed in a bap- 
tismal register, by the evidence of witnesses that the party was born 
about the date of the bapti8m.(^' ) On (he other hand, an incongru- 
ity proved in the time of birth, death, or any other inseparable char- 
acteristic, would be fatal to the identity. Such evidence may be 
attacked by tfarowii^ discredit upon it ; but if true, there must have 
been a plurality of persons. 

In the case of the Braye Barony, it seems to have been thought 
soflfeient to identify a man, described in an ancient record, as of B. 
a: country parish, with a person of that name in* the pedigree, to shew 
aliundt that the latter held land in B.{k) 

But in Beer V4 Ward, when to prove the death and identity of a 
servant in the Cotton family, so as to let in his deposition upon a 
commissioo of lunacy, in which he was described as of Etwall in 
Derbyshire, the register of burial of a person so named, was put in 
evidence trem Etwall, Dallas, C. J., neld the evidence of identity 
insuflkieiit, bat ft was uhimately proved by a witness, who deposed 

id) Seo Reel Pfopeity Report rMpeetbgOMDmoo luunei. («)!£.& Aid. 187« 

(/) 4 Doof. 33, (26 £. C. L. R.) 

(g) Btrtulos on Pig. 35, 1, 17; Cod. 6, 22; Baldas and Paolos de Castro, ibid. ; Decius 
CbiM. 13. n. 9. 

(A) ReaidaoM alooe, eten in die hooae of Uie party, is, wiUioot ptooT of name, insiiS. 
«ent evideooe of idenUty. Corfield ▼. ParMXia, 1 Cr. 6l Mee. 730. 

(i) Amb. c« nhffam, Midland Ctreiiit,8mnmer Aediea, 1829. 

U) Loader t. Bairy, 1 Eap. 784, and see 2 Jac. & Walk. 88. 


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to the twm wbM ih» servant dM/wfaioh oo£ro«|ioiMM ivitb tlM 
r^ister» and that he had lived in the faiiuly.(0 

*In cases which have been alluded to where a party's r ^^^^ -• 
iitle to sue or convey depeiids upon bis filiation, aud evi- *- ^ 

deuce of his pareots' ideutity beoocnes requisite, it is usually coo* 
sidered sufficient, in addition to the natal or baptismal register, to 
shew that the given parents resided in the parish about the time of the 
child's birth or baptism. 

Sometimes when the parent was in a public employment, which 
required frequoit changes of residence, the necessary proof of thte 
may be derived from the records of the department. In a case with* 
in my own observation, the children of an exciseman were entitled^ 
in their filial character as residuary legatees, to a fund in court, and 
having been bom in diffsrent parts of the kingdom, their relatkm* 
ship to a person of the name, was established by the baptismal regis* 
ters of the difierent parishes, and their Other's identity b^ the books 
of the Excise Office in London, shewing that he was stationed at the 
re^>ective places at the respective times of the children's birth. 

It is not unfrequently important in genealogic^ inquiries to establish 
merely the existence of a certain person at a certain period, aud any 
circumstances of description and residence, &c. which may show a 
conformity or discrepancy with reference to the case which is set 

In the ckim to the Bsrony of Zouoh of Harvngworth, in order to 

Erove the existence of a person, a widow, and her residence at Han- 
ury in the year 1649, the book of rates and loans of the parish of 
Hanbury was produced, which contained an entry of the payment of 
her subscription to a parish loan in that year.(»i) 

Identity will be well proved when it can be shown that the person 
named in the proofs stood in the same relationship to others as the 
person so named in the case. It waa necessary in tracing a pedigree 
at Nisi Prius to prove the marriage of Catharine Milcah. A re^er 
was produced ot the marriage ora woman of that name to Michael 
Woodhul ; and the identity was proved by *means of a r ^^j -% 
tombstone to the memory of Catherine Woodhul, stating ^ ^ 

relationships of the deceased, which were those of the Catherine 
Milcah of the pedigree.(8) So in the Huntingdon case, to prove the 
failure of issue of Theophilus Hastings, the will of a person of 
that name was put in evidence, and the Attorney General reported 
that the testator was identified by a devise to his niece, who was 
aliunde shown to have stood in that relationship to the Theophilus of 
the pedigree.(o) 

Where a party of the same name is shown to have sustained also 
the same character (a. g. personal representative of A. B.) as the per- 
son in the case, the conformity in both particulars may, unopposed, 
prevail as evidence of identitv. Thi» upon a plea of pleni adminii^ 
travii by the defendant Charles Lyon, administrator of Mary Lyon, 
the plaintiff in order to show assets, produced a copy of a oiU and 
answer in Chancery, the latter purporting to be an answer by a 

(2) Printed Report, p. 49. On) Mio. £t. 163. 

{,m)AiMm.m&mdCk^\^BQ,9xrdatigik*. (a) fieU*B Haat Psse. 340. 

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Charles Ljon, administrator of Mary Lyon, and tbe agreement in 
name and character was held sufficient primA facie evidence of idea- 

The possession by A. B. of an instrument in which mention is 
made ot A. B. is held by civilians to be good evidence of the iden- 
tity.(7) And Dallas, C. J., received a certified extract from a regis- 
ter of marria^, signed by the clergyman, and proved to have been 
long preserved in the family, as evidence of the identity of a couple 
of ancestors with the parties bearing the same name in the register, it 
being fair to presume that this identity was the reason of its preser- 

The handwriting, when well proved, is one of the best means of 
identification ; and even in criminal cases identity has been held to 
be sufficiently established by this evidence alone.(s) 

It was to facilitate the proof of identity upon trials of perjury that 
r ^.gg -| *an order was made in Chancery, requiring answers to 
'■ J be signed.(0 And the identity is thus properly estab- 

lished by any person who can speak to the signature.(tt) 

It has recently been held, after considerable diflerence of practice 
and opinion, that proving the handwriting of a subscribing witness 
did not dispense with the necessity of some evidence of the identity 
of the party executing the instrument.(v) But in this case very slight 
evidence of identity will suffice.(ii?) 

There was considerable discussion in Hood v. Lady Beaucamp 
upon the admissibility of hearsay evidence of the characteristics by 
which the identity of persons in a pedigree might be established.(a;) 
The (juestion being whether A. B., an ancestor of the declarant C, 
was the same person as A. B., a blacksmith, who had resided at X., 
a declaration by C. that his ancestor was a blacksmith, and that he 
resided at X., was tendered. Sir L. Shadwell, V. C, admitted this 
evidence, and also declarations tendered for a similar purpose, as to 
the religion of one of the members of the declarant's family. His 
Honour cannot be considered by this decision to have ruled that 
hearsay evidence of identity is admissible.(y) It is observable that 
there would have been no c(uestion if the declaration had been that A. 
B. was the declarant's grandfather. Now the name is merely one 
descriptive sign, and the substitution or addition of another, as occu- 
pation, or residence, cannot alter the nature of the evidence ; nor can 
the order in which the parts of a declaration are proved affect its 
admissibility. The declaration would seem to be equally receivable, 

(p) HcDDcII ▼. Lyon, 1 B. & Aid. 189. {q) Baldof, In. C. ex Itfmt, n. 6. 

(r) Beer v. Ward, lit i«ae, p. 19S. 

(•) Rex T. Morris, 2 Burr. 1189 ; Rez ▼. Benton, 2 Caroii. 538 ; Dtrtndl w, Howard, Ry. 
^ M. N. P. C. 169, (21 & C. L. R.) And see in civil casea, Birt ▼. Barlow, 1 Doa|r. 174 ; 
Soolt ▼. Lcwia, 7 Cam & P. 349, (32 E. C. L. R.) Buliieley f. Butler, 3 a & C. 441, (9 E. 
a L. R. ;) 1 Moa A. Mai. 79, 1 76, 206, (32 £. C. L. R.) 

(f) Ret ▼. Morris, 3 Bnrr. 1189. 

(If) Rex ▼. Benson, 2 Campb. 508 ; Dartnall 7. Howard, Rj. & M. 169, (21 E. C L. R« ;) 
fiooCt V. Lewis, 7 Carr. & P. 349, (32 E. C. L. R.) 

(«) WfaHeloeke ▼. Mosmve, 1 Or. & M. 521. See cases there dtad, and 1 PhiU. Evid. 
661 n., 8lb ed. 

(m) Nelson r. WbittoL 1 B. ft Aid. 19 ; Gongh r. Cecil, cited Selw. N. P. 516, n. 

(jr) MS, V. C. Easter Tferm, 1836. 

(jr) Hie oootrary was decided in aa old case, Lord Ferrers t. SiurlBy, Fitzf* 195> 

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Of TAXim ESmtrit. 888 

whelim* m the form thftt A. EL, of X., blacksmith, was the decIarant^s 
graodfather, or thai A. B. was his grandfather, that he was a black- 
nnithy and that he resided at X.(z) It is, however, apprehended that 
if there is no genealogical matter asserted, the simple hearsay declar 
ration of the trade or residence of another, though aliunde shown to 
be a relative of the declarant, would not be received. 

•PART in. [ MBQ 3 


Ths order in which it is proposed to examine the sources of this 
evidence is that in which they are naturally resorted to in practice, 
commencing with written evidence taken under public authority, as 
parish registers and registers under the recent General Registration 
Act — passing to dissenters' registers, and other documents of a gen- 
eral or public character, but of inferior authority — ascending to the 
more ancient public records, in which genealogical evidence is con- 
tained — and lastly, treating of hearsay evidence on this subject, the 
1)niiciples and limitations which govern its admission, and the various 
brms under which it may be found. 



Until the recent General Registration Act, 6 & 7 Wm. 4, c 86, 
parish registers were the most copious, and, notwithstandioig many 
gross defects, the best source of genealogical evidence which could 
be resorted to. The system of registration established by that act 
does not wholly supersede the use of these records. M!any years 
must elapse before the superior character of the new re^sters can 
produce any sensible effect in genealogical inquiries ; and m all cases 
where a pedigree is to be traced back beyond the date of that statute, 
the importance of parish registers will be undiminished. 

•Writers are not agreed as to the exact date of the r ^ .„ ^ 
first establishment of parish registers in England.(a) The '• J 

(«) 8w XntiieHbrd t. Mmule, 4 Hag^. 239. 

(a) Fariib re^fiilert ware in ate on the continent before they were instituted in thie eemi* 
try, bat the period of their origin ie ancertain. VelluteUoii a oonmentator on Petraich* in 
tM early part of the aixteenth centary, relates tliat, in prosecating some researcfaea reapeot* 
bg the history of Laara, he foand, at Cabri^res, a tiUage in Avignon, a regictei;, dated 
1314, of the baptism of a Laura, whom be believed to be the object of his aeaMh ; and he 
says llie praetioe was followed in many other pltcee. In Spain parish registers were insli- 
toted in 1497, by Cardinal Ximenea, for the purpose of patting an end to the fVeqoeBcy ot 
diforeee, by reason of the spiritual relationship of parties throogh their godfitthers aad 
godmothers, or their sponsorship of the same child. He ordained thai in every ptfisb, a 
i^gisler shMiU bt kept, in whion iboald be written the namee of thoae mho wen btptiitdy 

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more gnera! opmon seems to be thtt it should be referred to the SO 
Henry 8j a. d. 16i& The earliest known authorative provision oil 
the subject is an injunction of Thomas Cromwell, Lord Privy Seal 
and Vioar General to the King, issued in September of that year. It 
directed a book and cofler, with two locks, to be provided m each 
parish, and ordered the parson, weekly, before the wardens^ to write 
and record in the book all the weddings, christenings, and burials 
made the week before, and subjected him for neglect, to a fine of 8x« 
4d.9 to be employed in the repairs of the church.(ft) 

There is however some reason for believing that the institution of 
parish registers was agitated (if indeed some order was not actually 
made respecting them,) two years before the issuing of this injunction 
by Cromwell. In the year 1586, during an insurrection in Yorkshire^ 
we are toW by Speed,(c) that the Romish priests, in order ** the more 
to draw forth the rude multitude, which were forward enough of thenh* 
selves, set forth in writing these slanderous untruths against the King." 
The first which he mentions is *' that no infant shall receive the blessed 
Sacrament of Baptism, bott onlesse an trybelt to be payd to the 
King." Another historian((f) also charges them with having told the 
f •471 1 P^^'®» *** ^^^^ ^^^y should be forced to pay for christen- 
^ ^ mgs, marriages, and burials (orders bavins been given for 

keeping registers thereof.") The assertion that orders had been 

S'ven may be a mere supposition of the historian ; but it is plain that 
e intention to establish registers had attained some notoriety, and 
perhaps some preliminary order had been made respecting them. 

The object of Cromwell in directing the establishment of parish 
registers is not clearly ascertained. He has been represented as hav- 
ing instituted them from motives of self interest, and their utility has 
been thought to have been a subsequent discovery. As Vicar Gen- 
eral to the King, he was entitled to have the wills of all persons 
worth above 200/. proved in his court, and it is said, that it therefore 
served his purpose to set on foot the keeping of parish regi8ters.<[0)' 
But this reasoning is inconclusive, and unsupportea by the authority 
of any contemporary writer, and without attributing to him such 
motives, or adopting the conjecture of HoUoway, that he was indebted 
to the heralds( /*) for the idea of keeping such registers, perhaps suf- 
ficient reason lOr the institution of them may be found in his own his* 
tory and the events of the times. In his youth, Cromwell had trav- 
elled for several years on the continent, and among other countries, 
had visited France and Spain* There is thiis fair around for pre* 
suming that he became acquainted with the practice of keeping parish 
regiatersy which was already established in those countries; and no 
event could be more likely to call for the introduction of such a sys- 
tern into England, than the dissolution of the monasteries, and * 

of tWr fii&efft, ■ wt fa e ts , fod&tWt, s^motben, and »> It oew M of ths btpttfin, toj^ether 
with tbi time wImr the t&nmooy was performed. — ^Jlfortolter HUtoire £t MinUtere dm 
CbrdiiMl AtflMiMf, Ion. 1, p. 36S. 

m U mppetffv that in mom eiWUiif te gl el er i, there are entriei bearinf dates prior to 
ISSa, bvt the probability ia Uiat tbey were made aAer tbat time. See Ren. on Par. Ref . 
ma, eT Br., p. 13w (c) 8peed*f ffiit Great Britain, p. 1019. 

<i) OaiWi Hist Enfhmd, vol. 9, p. 14a 

4^ Bw.Abr. tk; BfQhMs (P.>, Ml ed. 689, 9^ Oim. m 


Digitized by VjOOQ IC 

at dispefskm of the moskt t who bid been tbe sole registrars and 
SLfid gen^olo^sts of the preeedin« age8.(g) This sapposition ii 
strengtheoed by the ciredmstance tbt Crotnwdl was appointed visi- • 
ler to the mooasteriet io 16^, and became an aotiTe promoter of the 
4Deaaures which led to the dissolution of the lesser o«es in the foHow- 
log year, which was the very time, when it appears, from r __ ^ 
^oe complaints of the Yorkshire rebels, that parochial •• J 

registration was first threatened, 
wit whatever was tbe cause of their origin, the utility of oarrsh 

Spsters toon became appareot, and the keeping of them was nirtber 
breed bv one of the injunctions of Edward 6, a. d. 1547, which is 
m nearly the same terms as that of Cromweil.(A) And in the same 
year one of the articles of Cranmer, to be inquired of at visitations 
wa«, " whether they have one book or register safely kept, wherein 
they write the day of every wedding, christening, or ourying.*^(t) 

The change in ecclesiastioai matters produced by the re-eslablish- 
mem of Popery, under Mary, affected parish registers but little. The 
statutes of tbe national synod, held under Cardinal Pole, in 1555, and 
the articles touching the clergy of 1557, point out the due keeping of 
the register as one of the subjects of inquiry at visitation8.(^') The 
mty deration made was, a direction that the additional particulars 
of tbe names of the ^odfether and godmother at baptisms shoukl be 
inserted, which adoption of the ordinance of Cardinal Ximenes, on the 
aame subject, is remarkable, when viewed in connection with the 
change in religion* 

In the first year of Elizabeth, 1559, among tbe injunctions which 
were issued by the queen is one respecting the keeping of parish reg* 
istersy which is expressed in almost the precise terms of those b( 
Cromwell and Edward VI^Ae) And the due keeping of the register is, 
in the same year, one of the articles to be inquired of at visitations. (/) 
la 1504, one of the protestations appointed to be made and subscribed 
by ministers, previously to induction, was, ** I shall keep the register 
book according to tbe Queen's Msjesties injunctions."(i9i) 

The slow progress which has been made towards making parish 
fyegisters an efficient national institution will seem more r ^.^^ ^ 
siKprisii^ when it is considered that, at so early a jperiod '- J 

a^ their commencement, as the 5th of Elizabeth, the attention of 
parlianient was turned to their regulation and improvement On the 
Sih March, 1562-3, a bill was read a first time in tbe House of Com* 
n}oos,(n) intituled '^ A bill to authorize every archbishop and bishop to 
eract one office of registershipof all the church books in due order, to 
be kept in every diocese."(<') '^^ bill, after reciting the benefits 

(^ A folltftiT inalaMe of tbe connexion between montstio and ptrocbiel regbten ie 
pna in Noble^i Hkt Cott. Arm. Apm p. 90. In the perieh rogbter of Baddedey Qinlon, 
•IS eopM out frpm » neighbooruif reiigioye fotin<ktion eooie rery oboioe eircMoattoeet* 

01) 8parrow*s Cdl, p. £ Ck)dQlpb.4d. (i) Sperfow, p. 97. 

{/) Arcbeologia, vol 8, p. 67. Fox Acta, &. Mod. ad. ann. 

(I) apvro^, p. 70, (Z) Ibid. p. 17& («) Ibid. 198. Gibil 904. 

(n) Jouroala, vol. 1, p, 68. 

(t) Tbu bin waa drawn by Tboa. fiovaej, and presented to Arohbiahop Parker fbr hm 
approbation. It is not mentioned by Bamet, Coltter, or D^fiwea, nor by etrype, either in 
bisaMMk#rhislHbofPkr]ier. l«leholaahaf ittnhiaIUa0Uatk>nftI>iitM^Pav.p.«,eni 
Hindi i, p. 365, is BMStColL Library, Cunbridge. 

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896 HUBBAcat's j rr ii u m o B ov BtvooBsnov* 

which had arisen from the registration under the former injunetions, 
on the trial of titles, to persons having need to know their own ages, 
** and upon an infinite number of other occasions,'* provides for the 
establishment in each diocese of an office of registership to survey, 
preserve, and register the church books, as well those already in exis- 
tence as those which should thereafter be sent in from year to year* 

This bill, for some reason which has not transpired, was abandon* 
ed ; but in 1500, another plan was set on foot for a general register 
of all the christenings, marriages, and burials within her majesty's 
realm of England and Wales. Certain reasons for this are set forth 
by Strype,(p) addressed to Lord Treasurer Burleich, who is stated to 
have sent a patent to the archbishop of Canterbury for his judgment.(f) 
The project however was allowed to drop; and the next regulatioa 
respecting parish registers was the constitution of 1597,(r) made by 
the archbishop, bishops, and clergy of the province of Canterbury, and 
approved of by the queen, under the great seal of England, to be ob- 
served in both provinces. It was ordained that parchment books 
should be purchased at the expense of each parish, in which were to 
be written the names of those who had been baptized, married, or 
buried during the reign of the then queen, taken from the old paper 
books, as well as all future baptisms, marriages, and burials. The 
r •474 1 ^''^^^^"P^s of the old books were directed to be examined 
^ J 'with the originals, and the correctness of the entries cer- 

tified by the subscription of the clergyman and churchwardens, at the 
bottom of each page. Then follows the first provision respecting the 
transmission of duplicates to the registry of the bishop. Exact copies 
of the registers were ordered to be annually transmitted, within a 
month after Easter, by the churchwardens to the registrar of the dio* 
cesan, which were to be received by him without fee, and faithfully 
preserved in the episcopal archives. 

This constitution is confirmed in all material points by the 70th of 
the ecclesiastical canons of 1603 ; which moreover directs, that in the 
parchment book to be provided, there shall be written the day and 
year of every christening, wedding, and burial which shall have been 
in that parish, since the time that the law was first made in that be- 
half, so far as the ancient books thereof can be procured, but espe- 
cially since the beginning of the reign of the late Queen. Particular 
directions are also given respecting the custodV^ of the register in ** a 
sure cofler with three locks and keys," whereof one was to be in cus- 
tody of the minister, and the other two with the churchwardens seve- 
rally. The canon directs entries of every baptism, marriage, and 
burial which should take place during the week, to be made in the 
register, by the minister, in the presence of the churchwardens, on 
every Sabbath day; and requires the minister and churchwardensto 
sign their names at the bottom of every page. The churchwardens 
are further required annually to transmit to the registry of the bishop 
of the diocese, a copy of the entries for the past year ; and the bishop 
' is empowered to oroceed as for contempt against any party neglect- 
ing to comply witn the injunctions of the canon. 

In the year 1644, the same ordinance,(«) which substituted " the 

{p)AaDik,w6L.4,j^4&. (9) NidMb IIL Dt Rsr* ftei 

(r) Bptnovr, p.357. (f) SooMl, 7& 

Digitized by VjOOQ IC 

Off T4MJMM, SMXtTSli* Mf 

directory of pubUc worship^' for the book of comtnoo prayer, eonttuw 
direclioQs for the registration of marriages, baptisms, and burials, with 
the additional particulars of the times of birth and death respectively 
m the latter cases. This ordinance left the duty of registration where ^ 
It found it, in the hands of the clergy and parochial authorities ; but 
that which followed, in *1653,(<) established a new system, p _^- ^ 
By that ordinance, which directs marriages to be solem- *■ J 

nized before a justice of the peace, particular directions are given f(Mr 
the appointment, in each parish, of an officer, whose duty it should be 
to register all marriages, births^ and burials, which should take place 
in the parish, and under this ordinance no marriage could take place, 
until notice had been given to the register of the intention to cele- 
brate it. 

At the Restoration, although some acts(tt) were passed for declar- 
ing the validity of marriages which had been solemnized under the 
last mentioned ordinance, there was no express legislative interference 
with the keeping of parish registers, but all the ordinances of the 
Commonwealth being annulled, this duty fell agam to the parochial 

The first act of parliament which relates to parish registers is the 
30 Car. 2, c. 3,(i;) intituled " An act for burying in Woollen," but this 
only provides for a registration of burials. 

fiy the 6 & 7 W. 3, c. 6, amended by 7 & 8 Wm. 3, c 36, t}ie 
institution was made more effective, for the purpose of facilitating the 
collection of certain duties thereby imposea upon marriages, btrthSf 
and burials. By these acts all persons in holy orders were required, 
under a penalty of 100/., to register all births, marriages, and burials, 
which should take place in their respective parishes or precincts. 
These two last mentioned acts were, by the 8 & 9 Wm. 3, c. 20, con- 
tinued to the Ist of August, 1706, ancf by the 9 & 10 Wm. 3, c. 36, 
jome further particulars were required to be entered in the register, 
for the neglect of which a penalty of 20Z. was imposed. The penal- 
ties, however, for not keeping the registers properly, were remitted by 
Stat. 4 Anne, c 12, s. 10, in all cases where the duties, for securing 
which the registers were established, should have been actually paid. 
We find no further enactment respecting parish registers until the 26 
of Geo. 2, c. 33, commonly called the Marriage Act, which gives much 
more minute directions as to the system of *registration to r ^^^^ ^ 
be pursued under that act, than any former injunction, *• ^ J 

ordinance, or statute had given. It even prescribes the form in which 
entries are to be severally made in the register books. There are, 
however, two important omissions observable in this act. There is no 
penalty provided for not keeping the register duly, consequently there 
were no means of enforcing due attention to registration, and no pro- 
vision is made for sending transcripts of the registers to the registry 
of the diocesan. Some provision for correcting the efiect of this sta- 
tute having become necessary, in consequence of the decision of the 
Court of Jong's Bench, in the case of iCing v. Northfieldi(tr) the sta- 

^ fle0bAS36. (») 19 Cv. 2, ^ 33, ooofiroied by 13 Gtr. 9, c. 11. 

(9) Bepnled by 54 Geo. 3, c. 108. (w) 9 Doogl 659, mte, p. 990. 

AnxLf 184&~10 

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tDtes 21 Geo, 3, c. 53, and 48 Geo. 3, c. 127, were successively pass- 
ed, for rendering valid certain marriages solemnized in certain 
churches, and public chapels, in which banns had not usually been 

I)ublished before, or at the passing of the 26 Geo. 2, c. 83. By the 
alter of these acts, section 3, it is enacted, that registers of such mar- 
riages shall have the same validity as evidence, and be liable to the 
same objections, as registers of marriages solemnized in churches 
within the 26 Geo. 2, c. 33. The 4th section provides for depositing 
the registers of such chapels in the parish church, and for transmitting 
copies annually to the bishop's registry. By the 23 Geo. 3, c. 67, a 
stamp duty was imposed upon the entry of all marriages, burials, births, 
or christenings, with certain exceptions ; and the operation of this act 
was, by the 25 Geo. 3, c. 75, extended to the registers of all dissenters. 
By the 34 Geo. 3, c. 11, however, the duties imposed by the two last 
mentioned acts are directed to cease on the 1st of October, 1794. But 
this act was not to affect the validity of any register. There was no 

f)rovision respecting marriages in chapels erected since 1808, until the 
ate marriage act, the 4 Geo. 4, c. 76, by which bishops are empow- 
ered to license chapels for the publication of banns, and the solemniza- 
tion, and registration of marriages, upon the same footing as parish 

The 52 Geo. 3, c. 146, passed expressly for the purpose of belter 
regulating parochial registers, gives very particular directions for the 
r *477 1 "^^""^^ ^^2 ^^^^ ^" which all such registers were to ♦be 
»- J kept, and the time within which each entry was to be made 

after the performance of the ceremony registered. There is no change 
made in the person on whom the duty of making the entries was fixed, 
which still continued to be the officiatinff minister ; but a provision is 
contained for the entry of baptisms, or nurials, performed elsewhere 
than in the parish church ; and ihe preservation of the registers, and 
transmission of transcripts to the diocesan registry are carefully pro- 
vided for. There is a proviso in the act that nothing therein contain- 
ed should extend to repeal any provision in the Marriage Act, 26 Geo. 
2, c. 33, and the form of entering marriages in the registers, as set 
forth in a schedule to the act, is precisely the same as that contained 
in the Marriage Act. There are two striking inconffruilies in this act. 
The first is, that though registers of births are included in the title, the 
act itself does not contain any provision whatever upon that subject. 
The second is less innocent ; for while the only penalty awarded by 
the act is that of fourteen years' transportation for falsifying any re- 
gister, the 18th section directs that all penalties therein awarded, shall 
be divided between the informer and the poor of the parish. 

The Marriage Act, 4 Geo. 4, c. 76, repeals the 26 Geo. 2, c. 33, but 
re-enacts the regulations respecting the registration of marriages, sub- 
stituting transportation for life in place of death, as a punishment for 
forgery or destruction of the register. 

The act which now regulates registration is the 6 & 7 Wm. 4, c 
86, intituled ** An act for registering births, deaths, and marriages in 
England," explained and amended by 1 Vict c. 22. The most ma- 
terial provisions of the former, act will be here shortly noticed, and 
both acts will be given at large in the^Appendix. One of the most 
important changes introduced by this act, is the providing a system 

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of registration independent of that comnnitted to the care of the paro- 
chial clergy, and to be carried into effect by officers to be appointed 
ander the act The 7th section provides for the division of tne coun- • 
try into districts, and the appointment in each district of registrars, 
and superintendent registrars. Section 9 provides for the establish- 
ment of register offices, to be under the care of the superintendent 
registrars. Section 14 directs boxes for the keeping of the register 
•books to be provided. By section 16, the registrars are r ^^^^ , 
required to live in the district for which they are appoint- ^ •» 

ed. Section 17 directs register books to be provided. Section 18 
requires the registrar to register all births and deaths which shall hap- 
pen within his district ; notice of which events is, by section 19, direct- 
ed to be given to the registrar by the persons therein pointed out. 
Section 20 requires the parents, or occupiers of houses where births 
take place to give the particulars of such births to the registrar. Sec- 
tion 21 provides for the registration of births which may take place at 
sea. Section 22 limits the time to be allowed for registration to forty- 
two days from the birth, except in some cases ; while section 23 pro- 
hibits the registration of births in an v case (except in that of children 
born at sea,) after six months from the births. Section 24 permits the 
name given in baptism to be registered within six months after the 
registration of the birth. Sections 25, 26, 27, 28, provide for the reg- 
istration of deaths, of which information is directed to be given in the 
same way as of births. Section 30 directs marriage register books 
to be provided, which section 31 reauires to be kept in duplicate* One 
copy when filled is, by section 33, directed to be kept by the superin- 
tendent registrar, and the other by the person having the charge of , 
making the register. Section 32 directs that certified copies of the 
registers of births and deaths shall be sent quarterly, as also the register 
books themselves, when filled, to the superintendent r^istrar, who, by 
section 34, is required to send certified copies of the registers to the 
general register office. (a:) These are the most important sections of 
the new Registry Act, as affecting the mode and subject of registra- 
tion, by which it will be seen that two important changes are effected. 
Pirst, births and deaths are registered, instead of merely baptisms and 
burials; and, secondly, a system of registration is provided, which 
being independent of the ceremonials of the Church of England, is 
open Id Jews, Quakers, and Dissenters of all denominations, who for- 
merly laboured under the practical disability, of not being able to avail 
themselves of the registers heretofore in use, without submitting to 
ceremonies to which the^ conscientiously objected. 

♦It has been thought oi importance to enter into a minute r ^^wg -i 
and careful detail of all the changes which have occurred *• J 

in the general history of parish registers, not only on account of the 
light which is thereby thrown upon their present state, but also 
because the admissibility and value as evidence of the registers of 
diflerent periods, must necessarily be affected by the regulations 

{x) t7nder the ■ystem of indezio^ adopted it this office, with no indication but the but* 
IMM of the pBity« and probable period of the event aoaght Ibr, the learcb may be accom* 
pliahed in % few minutes. The method is explained in the first report ef the Rdg. Oea« 

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ecclesiastical or Parliamentary, which werefor the time being in force 
respecting them. 

This latter subject will be afterwards considered ; but the elucida- 
tion which the present state of parish registers receives from the 
chants in their history, is the more valuable because it is feared that 
no other general information upon the subject is to be obtained. By 
Mr. Rose's act,(y) the minister of every parish was directed to trans- 
mit, before the 1st of June, 1813, to the registrar of his diocese, a list 
of the register books then extant in his parish, stating the periods at 
which they respectively commenced and terminated, the periods, if 
any, for which they were deficient, and the places where they were 
deposited. This order was not, however, enforced by any penalties, 
and compliance with it was therefore exceedingly partial In the 
diocese of London only four or five parishes are said to have sent 
lists ; but wherever it has been attended to, the registrar of the dio- 
cese is in possession of information upon the state of the registers of 
each parish, which would be of the greatest service to those engaged 
in genealogical researches in different parts of the kingdom, and which 
it 18 highly desirable should be published for their use. In the absence 
of a more perfect guide, many particulars upon the state of parish 
registers from 1700 to 1800 will be found in the population abstract 
of 1801. Under the head of each parish there is generally a note of 
the state of its register (if it be defective during that period,) which 
expresses the time when the deficiencies commence and terminate, 
and in what class of registers they occur. According to this abstract, 
the registers of many hundreds of parishes are defective for different 
portions of the last century, some of them for spaces as great as fifty, 
sixty, or even upwards of eichty years.(2) 

r ♦480 1 ^^^ ^^^^ observed that parish registers were hereto- 

L -I fore generally considered as affording the best evidence 

in questions of pedigree ; but it is not every document which purports 
to be such a record, that will be available in proof of what may be 
recorded in it, and it becomes of importance to consider the principles 
upon which their admissibility and superior value in evidence depends, 
and to inquire when and under what circumstances they may lose 
that admissibility or superiority. These documents then derive their 
weight in evidence only from the fact of their having been made and 

I)reserved under the sanction of enactments, either ecclesiastical or 
egislative, according as the canons, injunctions, ordinances, or acts 
ofrarliament, which have been before briefly recounted were in force 
respecting them. Sir L. Kenyon, M. R., observed, in the case of 
Huct v. Le Mesurier,(a) " that credit is given by courts of justice to 
registers of baptism in this country, as being under the ecclesiasHcai 
jurisdiction/^ referring thereby to the authonty under which registers 
had been originally, and were even then (anno 1780) chiefly kept. 
Besides, as an entry in a parish register, is but the declaration of tne 
minister, that he performed a certain ceremony, at a certain time, 
upoo a person, wnose identity as the person described is, however^ a 


(s) E. ff. EMthake and Weethaka Notts. defecUTo from 1700 to 1780, p. 998; tad IW- 
denloD, in Laaoaihire, from 1700 (o 1780, p. 145. («) 1 On, 975. 

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or 9ABISB B»IBCT » tj , f^l 

ftet often not within the knowledge of such mioiitec it is difficult to 
assign any sufficient reason^ for conceding greater weight to such 
documents, than would be accorded to the written declaration of any 
other indinerent party, unless it be upon the ground, that the register 
is made by a person acting officially, in the execution of duties imposed 
upon him by law. Accordingly, it will be found, on examining the 
cases in which parish registers have been tendered in evidence* thtU 
where it has not been satisfactorily made out that they are strictly 
authentic records of that public character which they purported to 
possess, they have not been admitted. 

There are various points to be attended to in examining whether a 
parish register is or is not to be considered admissible in evidence, all 
of which arise from the principles above stated. In the first place, it is 
essential that the entries in the register which •are relied r ^^g, .. 
upon to prove the fact in issue, should have been made ^ -■ 

by the person whose duty it was at the tinie to make such entries. 
Thus, in the case of Doe d. Warren v. Bray,(i) in ejectment, a regis- 
ter was given in evidence, containing an entry of the baptism of the 
defendant, in the year 1776. It appeared however, upon cross exam* 
ination* that the e'ntry was in the handwriting of the Rev. Dr. Smith, 
who was not minister of the parish till the year 1777 — that during the 
years 1775 and 1776, the tnen incumbent of the parish was very 
inSrm, and that the clerk entered on slips of paper an account of the 
baptisms, &c. ; and his memoranda, which had oeen preserved, were 

Seduced, and there was no doubt that Dr. Smith had made from them 
e entries in the register book. It was objected that neither the 
register nor the memoranda made by the clerk were admissible in 
evidence. The learned judge having received them, and a verdict 
having been found for the defendant, a rule nisi for a new trial was 
obtained, on the ground that the evidence was improperly admitted. 
The court, having taken time to consider, were of opmion that there 
must be a new trial. Bayley, J., said, ** Registers should be made up 
promptly, and by the person whose duty it is to make them up. The 
register of baptism, in this case, purports to bear date the 6th Febru- 
ary, 1776, but it was not made up till June, 1777, and then it wag 
made up, not by a person who was minister of the parish at the time 
of the baptism, or by a person who appeared at that time to have any 
connection with the parish, but by one who afterwards became the 
minister of the parisn. I think, therefore, the register itself clearly 
ought not to have been received in evidence." The memoranda of 
the clerk were likewise held to be inadmissible, because it was not his 
duty to make such memoranda, they were mere private entries. Ii^ 
the course of the argument in this case, Bayley, J., admitted ** that in 
case the entry had been made in the register book during the life of 
the first incumbent, it might then be presumed that the clerk was 
aotborized by the minister to make the entry, and then it would be 
the act of the minister,*' in which case it is to be supposed that the 
entry might have been received in evidence. 

Consistently with this principle, an entry made by the r « .^^ i 
minister •who performed the ceremony, though not the *- -* 

(fr) 8 E & C. 813, (15 E. C. L. R.) 

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incumbent of the parish, is admissible. Thus, in tbe claim of Sir 
Cecil Bishopp to the Barony of Zouche of Haryngworth,(c) in 1804, 
the register of St Peter the Great, Chichester, was put in evidence to 
prove a baptism in 1792. The clergyman stated that the baptism 
was performed, and the entry made m the register, not by himself, 
who was the then incumbent, but by a clergyman, a friend of his, who 
was uncle to the infant baptised, and who, in this instance alone, offi- 
ciated for him. The baptism, he said, was entered the very day the 
service was performed, and he proved the handwriting of the clergy- 
man. The nouse admitted the evidence. 

One of the registers produced in the Chandos case had been kept by 
the parish clerk. Yet it seems to have been considered evidence, 
even though an error was shewn in the very entry for which it was 
referred to.(d) 

It appears, from the expressions of the learned judge, in Doe v. 
Bray, that not only is it requisite that the entries should be made by 
the person whose duty it is to make them, but also that they should be 
made promptly. He states, as distinct objections to the admissibility 
of the register, that it was not made up at the time at which it pur- 
ported to bear date, aud that it was not made up by the proper person. 

In the De Lisle Peerage case,(e) a register of St. Giles in the Fields 
was produced to prove a baptism in the year 1713; and though U 
appeared to be written unofiatu by the same hand, and at the same 
time, and consequently the entries in it could not have been made at 
the time of the performance of the ceremonies, it was received : but 
this was on the ground that the clergyman said it was the original ; 
it may therefore oe concluded that but for that statement it would 
have been rejected. The custom probably was originally according 
to the injunction of Cromwell, to make the entries weekly; but that 
custom seems to have been generally and properly abandoned, and 
r •483 1 ^^^ registers now ♦commonly, as tney ought to do in all 
L J cases, present a series of entries made immediately after 

the performance ot the ceremonies registered therein. Without atten* 
tion to this point, a register would be of little more authenticity in any 
case than one which is mentioned to have been made up from memory 
by the clerk after the original books had been destroyed by fire.(/) 

It is further essential to the admissibility of a register that the entry 
relied upon should be that which appears in the register book itself, 
the authentic volume of parish records. It has been seen in the case 
of Doe V. Bray, that the memoranda of the clerk were held not to be 
admissible in evidence; and the case of May v. Mav,(^) to which in 
delivering the judgment in that case the learned judge referred, goes 
farther as an authority for the position just laid down. It seems that 
the memoranda of the clerk, in the case of Doe v. Bay, were rejected 
as being made by a person not authorized ; and it may be inferred 
that if they had been made by the minister himself they would have 
been admissible, but that would only have been in the absence of a 
proper register for the period in question, and their admission would 
not be af variance with the rule established by May v. May. In that 

(e) Min. Et. 103. (<f) Chandoe Barony, Min. E? . 98, jtoti^ p. 465. 

(e) Min. Ev. 134. (/) Mr. Espinaatc's Dobittet, New Pariiameot, 1837, p. 15. 

(f) 9Strwife,1073. VjOOQ IC 


ease* oa & trial beibra Puge, PrDbyii» and he% Justicast a raster 
was produced by the plaintiflTt wbich the clerk laid was a book into 
wbica the entries were made once in three months out of the day- 
book, wherein the entries were made immediately after the christeoing, 
or next morning. This day-book itself was produced by the defen- 
dant, and there was a difference between it and the register in the 
entry in question* The defendant insisted that the entry in the day* 
book was the original entry. Page, J., was for allowing it to be read, 
but the other two judges were against it, sayipg that the other was 
the only register, and there could not be two registers in one parish ; 
and the book was accordingly rejected. In a late case, before the 
House of Lords, it appeared that in the parish of St. Margarets, West- 
minster, two register books had been kept for the same period, one in 
the house of the minister and the other in the church ; but the entry 
in question (dated 1766) being the same in both, the evidence was 
admitted ^without ob6ervation.(A) In this case, however, r ^^^ . n 
as both books were produced, and agreed with each other, ^ ^ 

no question arose as to which was the authentic register. It must be 
presumed that in the case of May v. May, both the entry in the day«> 
nook, and that in the register were made by the minister, or at most 
sanctioned by him, otherwise the objection allowed in Doe v. Bray 
would have Applied. We may here also observe that the rule estab- 
lished by these cases, does not exclude all registers that are not strictly 
original dooumeDts.(i) Such a rule would exclude nearly all the 
earlier registers ; which, as Lord Eldon observed of the register in the 
case of Wingfield v. Walker,( j) are in general mere copies. They 
were, however, copies made by authority of the constitution, which, 
as we have before seen,(A) was made in 1597, by the archbishop, 
bishops, and clergy of the province .of Canterbury, and approved by 
the Queen, under the great seal. 

A further requisite to the admissibility of a parish register is, that 
it should be found in, or produced from the proper custody.(/) 

The House of Lords, in peerage claims, not only requires the pro- 
duction of the original register, but the presence of the person who 
has the custody of the register, that he may depose to its authenticity : 
and the observance of this rule will only be dispensed with in cases 
of extreme difficulty of complying with it. Thus, in a case where the 
clergyman could not attend, the register was produced by a person 
who swore that he saw him take it out of the parish chest, and that 
be received it from him in the same state as that in which he then 
delivered it.(i7i) And where the incumbent of two united parishes 
was unable to attend from infirmity, the curate of A. was allowed to 
prove the register of A., but not .that of B.(n) 

But in the case of parish registers, as of other docu- r ^ .g. -. 
ments, ^produced from unauthorized custody, evidence ^ ^ « 

may be given to prove them authentic. 

in the population return of the year 1801, for the parish of Ragdale, 

(A) Zoache, Barony, Mio. Ev. 113^169. («) See Stafford Barony, po$t, p. 488. 

Ij) Id Ves. 445. The reader will find some very valuable obaervationt upon parish ref- 
uCen in Lord Eldon^s jodj^ment in Uii« case. (A) Ante, p. 473. 

(/) See 1 PhUL Ey. 460. 464. (m) Roos Barony, Min. Kf. 206. 

(«) Tcsoy Bsrooy, 1849, Mio. Er. 3. 

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Al Leicestershire, it i^ stated, that tbe refiiiter t>f diat parish, to the 
year 1784, was in the po^ession of Earl PerrerB.(o) Parts of the 
Register of two parishes are in (he British Museum.^ p) If these doo- 
oments were produced in a court of ju^ice, they oooki not be admitted 
in evidence, until it had been shewn by satisfactory evidence aliunde^ 
that they are tnaly the documents which they purport to be. Could it 
be prOTcd, for instance, that A. B. was the minister of the parish at 
the time when an^ entry purpofts to be made in the book, and that 
such entry is in his handwriting, it may be presumed that this wocdd 
be sufficient evidence of authority. The legal presumption of its non* 
liuthenticity, arisihg from its being found in improper hands, would 
be removed by positive evidence of its genumeness, and there could 
then be no further objection, on that around, to its reception. 

The evidence of a parish register, no we ver is not conclusive in all 

Particulars of the entry relied on, even against the party for whom it 
t produced. Errors may be shewn by extrinsic evidence to exist in 
i^ome points, while the proof of the principal fact may yet rest on the 
liegister. Thus, in a register of St. Mary Magdalene, Canterbur^i 
there were several entries of baptisms of children of John Bridges, in 
the first of which the name of tne mother was entered as •* Jane,*' and 
all the others as ** Anne ;" and evidence was admitted by the House of 
Lords to prove that the name of Anne was a mistake for Jane, for 
^hich purpose the counsel for the claimant was permitted to prove» 
first, that there was a memorandum at the beginning of the book* 
»• note, this book was kept by the parish clerk, and it is not very acca« 
rate, and so it may appear ft-om the wording and spelling ;" secondly^, 
that in a number of family deeds, this lady was called ** Jane," atxi 
not **Anne.^{q) 

t ♦486 1 ^Besides shewing particular errors, it is open to a party 
*• J to impeach the general credibility of the evidence wheA 

admitted. It may frequently happen that no objection can be main* 
tained to the reception of a parisn register, whilst at the same time 
verjr little credit may be due to it Objections to the credibility of a 
register must however chiefly arise from the appearance of the docu«> 
tnent itself, as where there appears to be erasures, or alterations, not 
satisfactorily accounted for ; and in such cases it will be for the jttry 
to decide whether the entry as originally made, or as it appears at tfale 
time of inspection, is tbe true one, or whether, from the uncertaintyt 
no credit is to be given to either. 

Some of the registers produced in support of the claim to the Bar* 
ony of Chandos presented very suspicious appearances, in the reg- 
ister of St. MichaePs, Harbledown,(r) a lar^ blot appeared upon the 
entry of the baptism of the second son of John Bridges and Maria his 
wife, in 1606, t)ut enough was left to shew it had been Edward, son of 
John. The case of the claimant turned upon this Edward. There 
appeared to be recent mutilations of registers, and interpolations were 
suspected to have been made in the arcMnshop's ouplioates; the 
records had been inspected by the claimant's agent alone. 

(0) Pop.Abstl601,p. 154. 

( p) Aymi, Cat p. 70, No. 1 677. HarL MSS. No. 9523. 

(9) Cbandos fiaroDj, Printed Er. S6. {t) Chuidot Barotty, Bfin. Er. 99. 

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A nse vrsm lately imd is the Comt of Common Pleat Wwtea 
parties of the name of CNdham^ in which the questioa which should 
possess a fortooe of 100,jOOOiL depended upon the genuiDeneis of a 
parish register. In the copy of the register sent to the bishop's regis* 
try, two persons vftre stated to have been married on a particular 
day. In the parish register there appear^ to be aa erasure in the 
exact place correspondiog with the entry of the marriage in the copy § 
Ibe dates preceding and following the erasure corresponded with the 
copy, and no entry of the marriage was to be found in that register* 
hot ttere were sereral entries of the baptisms of children of the jpar« 
lies, all subsequent to the date ot the erasure. In the register ot aa 
ac^aoent parish was found an entry of a marriage b^ween the partiesi 
of a date between the ^baptisms of the first and second p ^.^^ I 
scm. Iliidal^ C. J., left it to the jury to presume whether ^ ^ 

ike first marriage might not have been without consent, and that thero^ 
fore another marriage in another parish had been had, imd the entry 
of the first marriage erased as void. The jury, however, were of 
opinion^ that the erasure was fraudulent, and that the eldest was legi# 
timate. In this case there was nothing upon the face of the register 
which wonld have been sufficient per te to impugn its credibility. The 
erasare of a sincle entry, unaccompanied by anything to confirm such 
an opinion, wookl hardly have been enoi^h to enable the jury to pre«> 
same that the entry erased was the identical one upon which the case 
most be decided, and that the erasure of it was fraudulent The reffw 
ister did not prove the illegitimacy of the one claimant, but merely 
shewed nothing to the contrary; and that state of negative evidence 
sras on^ turned into positive evidence for the other chumant, by the 
production of the other register; and even when the jury, by means 
of the bishop's copy, were satisfied of the fraudulent nature of the era- 
sure, it was only m the case of that particular entry, that the character 
of the re^ster was afiected. The general credibility of it would be 
naimpeadied, acccordioff to Lord BIdon's observations in the case of 
Walker v. Winfield,(5) that it wdbld be too much to say that the loss 
of a leaf onght to destroy the character of a book otherwise correct. 
In the case of Ansdell v. Gompertz, tried before Gurney, &, at the 
Exeter Spring Assizes, in 1837, a reff ister of very questionable appear- 
ance formed part of the evidence. That was an issue directed by the 
Lord Cfaaneellor to try the legitimscy of a person of the name of Henry 
Gulling Isaac. The evidence which had been taken before the Mas* 
ter, in the course of the proceedings in Chancery, was read ; by which 
it appeared that the marriase of the parents had taken place in 1783; 
and ^t certified copies of entries in the parish church of Honiton 
C3yat had been produced, ihewing the baptism of Henry Gulling Isaac, 
hi 1780, and his burial in 1814. In \m register itself, however, it 
appeared that the entry of baptism, dated January 20, 1786, was on a 
Mge beaded 1788, and that to it was appended a memorandum, dated 
rebraary, 1788, in the handwriting of, and signed by the p ^.gg 1 
^minister, stating that the name had been omitted to be I- * 

registered in the proper place. In the same book was an entry of the 
baptism of J. J. b. Isaac, an elder brother of H. G. Isaac, dated 1784 : 

(•) 18 Vet. 445. 

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MS HTOBACg'y K f ihBmm or suooissiov. 


ancl in the burial register of the same part^, the age had been altered 
from thirty-seven to thirty-six, apparently with a view toset up his leriti- 
macy ; but an entry in the register of St. Mary Arches, Exeter, ofhis 
baptism there, in 1781, having been found, no attempt of that kind 
was made. The names of H. G. Isaac, and two younger sisters of 
his appeared to have been twice entered in the register, on difibreot 
pages. There was an error also in the entry of his burial, in 1814, 
which named him as Henry Isaac, aged eighteen. The defendant 
contended that the evidence of these registers was not worthy of credit, 
and that in fact, in cx)njunction with the testimony of witnesses ex- 
ammed by him, at the trial, they made out a case of fraudulent attempt 
on the part of the plaintiffs to support the legitimacy of H. 6. Isaac. 
The learned judge was of that opinion, and a verdict was accordingly 
found for the defendant. In Trinity Term, 1887, the plaintiff moved 
for a new trial, on the ground of a 'misdirection of the learned judge, 
but the Lord Chancellor refused the motion. In this case the register 
seems to have been of doubtrul authority, although the case was decid- 
ed upon the testimony of witnesses who proved that, in the year 1780, 
H. Gr. Isaac, must have been more than three years old. It should be 
observed that the register book had been rebound, in consequence of 
injuries received in a fire which happened at the church some years 
ago, and in many other respects, besides the entries above mentioned, 
appeared to have been very negligently kept. 

But although one part of the register should appear to be a copy and 
inadmissible, it does not follow that the whole book must be rejected, 
if other parts had been regularly kept Thus, to prove the death of 
the Countess of Stafford, the register of the Collegiate Church of St 
Peter, Westminster, was produced. In the beginning of the book 
were these words, " The register of the Collegiate Church of West^ 
minster, of weddings, christenings, and burials, such as could be found 
in imperfect books, and such as have been carefully taken notice of 
since the happy restoration of his Majesty, King Charles the 3nd, by 
r *489 1 **''"'? Tynchaw, ♦ChaOnter of the said church, installed 
L J February 1 1, 1660." The entry in question was made in 

1693, and was admitted.(/) 

The possibility that a parish register, even when admitted, may not 
be deserving of credit, and the fact that any doubts of its credibility 
must, in such a case, be chiefly founded upon the appearance of the 
book itself, give rise to an infirmity in this sort of evidence, which has 
been notic^ by Lord £ldon.(tt) The practice of admitting the copy 
of a register, without more than merely proving it to be a copy of the 
register, is to be justified only upon the ground that the register can- 
iiot be conveniently spared from the place where it is supposed to be 
deposited. The danger of fraud arising from it is very great, and 
numerous cases may be cited, in which copies of registers have been 
admitted, when no credit was due to the original. In the case of 
Llo^d V. Passingham,(v) it appears that copies of the St Pancras 
register had been admitted as evidence, and that, upon their evidence, 
the jury bad found a verdict, when, had the original itself been pro- 

(0 Stafford Baronj, Min. Et. 104 (») Walker ▼. Wingfleld, 18 Yes. 444. 

(»)16 Vei.M. 

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GM «*^»g« mm i TffiH i 'M4S 

4oMd, it would have appeared on the faeeof it to bave bem s^ tUB^ 

Ered with as to be ui^worlhy of credit In Fairlie v. Freeman,(ta) 
)rd Eldon said that he remembered a case in which, after a verdict 
bad been obtained upon a copy of a reffister, the defendant against 
whom the verdict was given, compared the copy with the original 
register, aod thereby deterred the plaintiff from proceeding to trial for 
another large property upon the same evidence. In the case of Ansdell 
V* Gompertz^a;) an inspection of the register itself, shewed the man- 
ner in which the entries had been altered ; but it also shewed that th<» 
register book had been throughout so carelessly kept, and the entries 
so irregularly made, that it was difficult to say whether the alteratiooi 
were or were not fraudulent. From these cases, and others not par- 
ticularly enumerated here, it may be thought desirable that the general 
rule of law should be applied to parish registers kept under the old 
system. The House of Lords, as we have seen,(y) have, since tlie 
Chandos case, come to a resolution not to admit as evidence in peer« 
age claims the copies of registers, but to require «the pro- j- ^.g^ •> 
duction of the originals. It was stated in a former I- J 

gigeJz) that it appears not quite settled whether the rule extends to 
cotch and Irish registers, and the case of the Borthwick Barony was 
cited as aa instance in which it had not been enforced with respect to 
a Scotch register. Several other instances occur in the minutes of 
evidence, on the Lovat peerage claim, in 1826. Extracts from the 
kirk session book of Inverness, certified by a writer to the signet, as 
having been compared with the record and signed by the session 
clerk,(a) in his presence, were admitted apparently without objection^ 
to prove, in one case, the death, and in another, the baptism of a son 
of Lord Lovat.(J) 

In the same case, various certified extracts from the baptismal reg« 
ister of the parish of Kiltarlity, in Inverness-shire, were put in evi- 
dence ; the pNsrson producing them was examined on oath as to their 
accuracy, but jihe original book does not seem to have been called 
for.(c) AgainI on the claim of J. J. H. Johnstone to the Earldom of 
Annandale,(i) an office copy of the contract of marriage between 
Charles Hope and Lady Harriett Johnstone, daughter of the Earl of 
Annaodale, extracted from the original record in Uie books of council 
and session in Scotland, was admitted. It would appear, from these 
cases, that the house will not always insist on the production of th# 
originals in the cases of Scotch registers. 

m a late case, the original register of a Scotch parish was pro- 
duced by the session clerk, who was examined as to the custody of 
the books ; but it does not appear that the book itself was produced io 
consequence of any intimation from the house that an extract would 
not be received. (e) It undoubtedly seems unreasonable that if copies 
of English registers are to be rejected, the house should be required to 
admit copies of registers from Scotland or Ireland, where iraud, if 

(w) Borr. 208. (x) Sapra, p. 12. (y) Sapra, p. 97. 

{X) Bnpra, p. 97, (a) Min. Et. 72, 7S. 

(bf) The Kirk Sttskm book m Sootknd ia, in net, the parochml regivter, and h intniited 
to the custody of the Masioo clerk. See evidence of Mr. Broadfbot, Rep. of Com. on Par. 
Reg. p. }S8^ aod lee poet (c) Min. Et. 78, 79. 

{i) Annaadale Earkknn, Min. E?. 17. («) Airth Earldom, Min. £?. 6S. 

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tadBlingf woul4 not be more i^adily detectecL It may be thought 
more necessary to require the productioD of original registers io peer* 
r *491 1 ^S® clainisi than in *claims to property in courts of law, 
^ J because in the former there is generally no opposing party^ 

and the register if not produced by the claimant, would not appear afl 
&ll» whereas in claims to property, if it is the interest of the j^amtiff to 
keep back the original register, it will be the interest of the defendant 
to produce it ; atid consequently between them, the original would ba 
sure to find its way into court; but in practice it is not often that 
such is the case, and even if it were so, it is no sufficient reason for 
not. requiring the production of the original in the first instance. The 
remarkof Mr. J. Buller, that the propriety of admitting proof m'dl voce of 
the contents of a register, without a copy, may well be doubted,(/) 
applies equally well to the admission of a copy, because as he says, it 
is not the best evidence the nature of the thin^ is capable of. Under 
the regulations of the 6 & 7 Wm. 4, c. 80, the evils of the practice 
above commented upon are much lessened, with respect to future regis% 
ters, inasmuch as the greater care which, under that act, will be bestow* 
ed, both in making the entries and preserving the books, will inoreaso 
the value of copies, as compared with originals. Having provided for 
the better keeping of the registers, the act proceeds to make copies of 
them under some restrictions, good evidence. The 88th section of the 
act provides that a certified copy of any entry under the seal of the 
General Registry Office shall oe received as evidence of the birth, 
death, or marriage, to which the same relates, without any furthw 
or other proof of such entry; and as UQder ss. 32 and 84» certified 
copies 01 all registers are to be forwarded four times a year through 
the superintendent registrars to the general registrar, certified copies 
of all entries more than three months old will be attainable under the 
seal of the General Registry Office.(^) The provisions of section 89 
also extend to copies of all registers of marriages kept by clergymen» 
the registering officers of Quakers, or the secretaries of Jewish syxu^ 
gogues ; by section 33 they are required to transmit four times ayear, 
r *492 1 ^^ ^^^ superintendent resistrari ^certified copies of all mar* 
*- •' riages celebrated by them since the last return, which 

certified copies will be forwarded by the superintendent registrar t9 
the General Register Office. As the registration of births and deaths 
is provided for b^ the act, instead of that of baptisms and bttrials» 
there is no provision for forwarding copies of those registers, (wbich» 
however, are still kept) to the superintendent register, and therefore 
the provision of the section 87 does not extend to them. This* how- 
ever, seems of little consequence, as it is probable that few births, and 
still fewer deaths, will occur, which will not bednly registered by the 
registrars appointed under the act. 

(/) Bon.N.P.247,t. 

(f) It feema doubtfal whether the Hooflc ofLordi io claimt of peerage will admit theae 
oopiea, A copy of an old record aeakd with the aeal of the Record Omoe, in accordance 
with the pfoviflioni of I Id 3 Viot o. 91^ sa. 13 Id 13, baa been admitted by the eommillee 
of pririlegea in a recent oaae (Fitzwalter Barony,) bot the langoage of a, 13 of that act ia 
Biuoh more eom^rcbenaive than that of 6 It 7 Wm. 4, c 86, a. 38, and eipremlj ioolndef 
** either Houae of Parliament or any committee of either fioose.** The aama obaenratioa 
wiO apply to a. U of 3 & 4 Vict c 93, the NonParochial B^^u\fft Act 

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Of fiOLlHL XNfffmtt. Mt 

Hci^ff treated of j^rish registers with reference to their admissi- 
bility and credibility, and that of attested copies of them, it remains 
to consider briefly what facts may be prored upon the evidence of 
such docmnentS9(A) since it is clear, as it is laid down in Sheppard's 
Abridgementt(i) that a ** church book is not to be ffiven in evidence, 
lo be a sufficient proof of any thing recorded within it** For this 
purpose, bearii^ m mind the principle upon which these records are 
admitted at all, the practitioner must look at the transaction of which 
the register is a public record, and must also distinguish the statement 
of that transaction fhxn the statement of any other facts which ma^ 
appear upon the register. The rule appears to be, that a register is 
evidmice of those transactions only which, as part of bis public duty, 
the officiating minister was bound to record. But as tne different 
enactments under which registers have, from time to time, been kept, 
have not always provided for the registration of the same particulars* 
it would seem to foHow that registers of different periods might be 
admitled to prove different facts. Thus, we have seen, that the ordi* 
naace which was made in the year 1644,(j*) directed the time of birth 
and death respectively to be registered in the cases of baptisms and 
burials, and in respect to the registry of births, this ordinance was 
followed by that of 165d,(iS:) which latter continued in force till the 
Restoration, in the year 1660. It might, therefore, be fairly con- 
tended, that a registerof that period, containing ♦an entry r ^^ .g« ^ 
of the time of birth of any individual, must be admitted to I- -I 

prove the time of such birth t and the same might be said of a register 
aontaining an entry of the time of death of any person, recorded to 
have been buried between 1044 and 1658. Again, in the year 1604, 
by 6 & 7 Wm. 3, c. 6,(/) amended and extended in the following year, 
Iqr 7 & 8 Wm. 3, c. 35, and continued by 8 & 9 Wm. 3, c. 20, to the 
1st of August, 1706, births are directed to be registered : and in the 
yoar 1703, the 23 Geo. 3, c. 67, which was repealed in 1794, by 34 
Gea 8, c 11, imposed a stamp duty upon every entry of, amongst 
other things, births, the registration of which was thereby recognised 
by law. From the year 1694, therefore to 1706, and from 1783 to 
1794, the ministers must be considered to have been authorized to 
iwister births as well as baptisms, and the register ought accordingly 
to M considered good evidence of the time of such births. Nor will 
it appear, iqx>n consideration, more repugnant to the general rules dT 
eviaence to admit a register in proof of the time or place of birth or 
death, than in proof of the parentage or identity of the party whose 
baptism is roistered : at least in cases where tKe baptism appears by 
the register to have taken place soon after the birth. A baptismal 
register for instance, records that on a day therein stated, the minis- 
ter baptised a child, the son of A. and B. ; suppose it to add further the 
day on which the child was born, how can it be shown that the paren- 
ta|;e of the child so baptised was more within the knowledge of the 
flUnister than the time or place of the birth? The case of a boriai 
legisler recording the time of death is even stronger, for there is 

{h) Tbii mlrfeet b«s been alreadj partiiHy treated of under eome of the precediog 
beedew 8eeMpni,pp.i84»4lf. (<) Shep. Al>. tit TritU 

(i) Aol•,^474. (|)Aat•.^47ff, (0 Aats, p. 47S. 

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360 HUBBACE^S fiVlDENOS OF 8l7CXnE88I01f. 

greater probability that the minister should of his own knowledge be 
able to state the time of the death of a person whom he has buried, 
than the truth of the description bv which such person is registered. 
But however this may he, it must be admitted that the rule of law, is 
that which has been stated in former pages,(77i) ihat prior to the act 
for registration now in operation, neither registers of baptisms nor of 
burials, were, as registers, evidence of the time or place of birth or 
death, or in fact of anything except the time and place of baptism or 

r •^Od 1 Thus, in support of an indictment for fraud, on the part 
•- J of •the defendant, by pretending to be of the age of twenty- 

one, an examined extract of a register of baptisms was put in, which 
stated the day the defendant was baptised, and the day on which he 
was bom, but Lord Tenterden, C. J., would not permit the part 
respecting the time of his birth to be read, saying, that the entry was 
not evidence of that, it was only proof of the baptism.(n) And in 
another case where the register of baptisms shewed that the defend* 
ant was baptised in 1807, but contained an entry that he was bom in 
1779, Bayley, J., was of opinion that the entry relating to the time of 
birth was not evidence of the fact. On a motion for a new trial on 
the ground that it was at least evidence to confirm the statement of 
the mother, who had been examined, the Court was of opinion that 
the entry was not evidence to prove the age of the party, it was nothing 
more than something told the clergyman at the time of the christening, 
concerning which he had not power, by law, to make an entry in the 
register ; he had neither the authority nor the means of making an 
entry, and the rule for a new trial was refused.(o) 

In a case recently before the House of Lords, an entry of a peculiar 
nature seems to have been admitted.(p) The register of East Teyn- 
ham, in Norfolk, was produced to shew the date of the birth of Mr. 
C. Townsend. The entry was as follows: — " 1675, Charles Town- 
send, the son of Horatio, Lord Townsend, and the Lady Townsend, 
was bom, April 18th, and baptised May 2nd, in the parish of St. 
Martin's in the Fields, Westminster.'* The register of St. Martin's 
in the Fields was produced, but no entry of the baptism of Charles 
Townsend was found in the year 1675. It was suggested by the 
counsel that it was to be presumed that the child had teen privately 
baptised, but not registered in the parish in which he was born ; but 
afterwards registered in the parish in which his parents resided. No 
objection appears to have been made to this entry being received ; the 
point sought to be established, as to the date of the birth, was how- 
ever proved by other evidence, and it is probable that not much weight, 
if any, was given to the register. This case, therefore, cannot be con- 
sidered as impeaching the rule above laid down, 
r *495 1 *^"^ ^^ ^^^ Lovat Peerage case,(g') there occurs a 
*- -I remarkable instance of the admission of a parish register 

to prove a fact not within the province of the minister to record. In 

(m) Supra, pp. 184, 346. (n) Rex 7. CIspbam, 4 Ctr. & Pijn. 99, (19 E. C, L. R.) 

(0) Wlhen V. Law, 3 Stark. 63,(14 E. C L. R.) 

{p) CamoTt fiaropjri^ Mid. £?• 167. (9) Lont Buodj, 1826» Min* Ef. 65. 

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ftd raster of Kilmorack, in Inven^ss-shire, is the fcJIowing' entry : 
— " At Kilmorack, February 17, 1687, Luke Houston pre^nted his 
daughter, called Glossef, to be baptised. Godfather, Mr. Aber. Fraser, 
younger of Bewport, and Alexander Fraser, eldest son to farmer 
Fraser in Beaulie." This was used to prove part of the pedigree of 
the Fraser family. The evidence seems to have been receivea with- 
oQt objection. 

It will be observed that in the case of Wihen v. Law, the register 
showed that the entry had been made at least twenty-six years after 
the fact purported to be recorded ; and the statement of birth there- 
fore wanted that confirmation which registers of infant baptism 
receive from the circumstances of the case, where it may be con- 
cluded that the appearance of the infant at the time of baptism would 
preclude the possibility of any great misstatement as to its age, escap- 
ing detection. This circumstance of baptism in infancy proved by 
evidence dehors the register has been already mentioned, as raising a 
presumption that the infant was born in the parish in which its bap- 
tism is registered.(r) But apart from this extrinsic and additional 
evidence, the fact of a person having been baptised in a particular 
parish, would be no proof, nor would it even raise a presumption that 
he was bom there.(«) Of course a statement in the register ot the place 
of birth would be even less available as evidence of the fact. In the 
ciise of Doe v. Bray,(0 Bayley, J., said of May v. May,(tt) that the 
editor of Burn's Ecclesiastical Law thought that the entry in the day- 
book would not be receivable in evidence in the character of a regis- 
ter, but that if it had been signed by the repated father and motneri 
it might have been received as a declaration of the deceased parents.] 

•Under 1 Vict. c. 22, s. 58, the Registrar General is em- r ^ .g^ ^ 
powered to direct that the place of birth or death of any ^ J 

person, whose birth or death shall be registered under the act for regis- 
tering births, deaths, and marriages,(t;) shall be added to the entry in 
such manner as he shall direct, and such addition shall be taken to be 
part of the entry. Under the authority of this act, the Registrar Gen- 
eral made an order, dated the drd of July, 1837, requiring the place 
of birth and death to be registered.(u;) 

Passing to the subject of those copies or transcripts of parish regis- 
ters, which are deposited in the registers of /the several dioceses, it 
may be useful to the practitioner to introduce a succinct statement of 
the degree of compliance or neglect, which the regulations for form- 
ing these very useful registries have from time to time received. The 
constitution of 1697, and the canon of 1603, whereby duplicates of 
parish registers were first ordered to be transmitted to the registry of 
the diocese, have been already noticed in the history of the originals. 
The transmission of these duplicates had become so generally neg- 
lected that, according to Lord Eldon, its better enforcement was the 
chief object in passing the act of 52 Geo. 3, c. 146. 

(r) Supra, p. 435. 

(f ) The King ▼. Soath Pethcrton, 5 E & C. 508, (1 1 E. C. L. R.) The Kb; v. Trow. 
Wiilffe, 7 a &. 0. 253, (14 £. C. L. R.) But lee Uie Kioff ?. Clmreh of Sl Miohaer«, Borr. 
& a 765. (0 8 B. & C. 813, (15 E. C. L. R.) ante, p. 481. 

(«) 2 Stra. 1073, aate, p. 489. (o) 6 ft 7 Vfm. 4, o. 86. 

(») 1 Rep. of Reg. Gen. p. 57. * 

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4H BtnsAioiitei 

By the Mi section of tbis act at the expiratUn of tvo moDtha aftor 
the 31st of Deeember in every year, fair copies of all the entries of 
the several baptisms, marriages, and burials of the year preceding ace 
required to be made by the officiating minister, or by the churchward- 
ens, or other person appointed by him, on parchment, in the form pre- 
scribed in the schedules annexed to the act, and the contents of such 
copies are to be verified in the form prescribed by the officiating mip- 
later, and his signature attested by the churchwardens. Sunh copies 
are to be transmitted by the churchwardens, by the post, to the rQ^(is* 
trar of the diocese, on or before the 1st of Juoe^ m every year.(«) 
The registrar is required before the 1st of July, in every vear, to 
Biake a report to the bishop, whether the copies have been duly trans* 
miUed, and in the event of any failure of transmission, he is to state 
r *497 1 ^default of the parish or chapdry specially in hie 
^ -I report to the bishop.(y) In case of neglect or refusal by 

the manister to verify the copies, the churchwardens are required to 
eertify soch default to the registrar, who is to state the same specially 
in his report(2) The copies so transmitted are to be safely kept, ana 
property arranged by the registrars, and alphabetical lists of namea 
and places, are directed to be made out,(a) which lists and also tho 
copies transmitted shall be open to pubUc search at all reasonable 
times on payment of the usual fees. 

The bishop of the diocese, together with the cu^ode$ rotulcruM of 
the several counties within the diocese, and the chancellor thereof, 
wane directed, before the let of February, 1613, to survey the placea 
arlwre the parochial registers, and the wills proved within the dioceso 
ymte kept, and to make reports to the privy council before the 1st of 
March ioIk)wing, respecting the same and the most suitable moc^js of 
remuneratmff the officers empbyed in each re^pstry for their addi* 
tional troubw and expense in carrying the provisions of the act into 

The directions m the 12th section respecting the arrangement of 
the copies, and the making out of alphabetical lists have not be^i 
oarrifBd into eflect, in consequence of there being no fund provided for 
the payment of the persons employed therein ; nor does any thing 
seem to have been done upon the 13th section respecting the buildings 
for the custody of dupUcates.(c) . 

The commissioners of public records, in 1800, extended their inqui* 
ries to the state of these transcripts, and they have published in their 
fe^ report the returns from the reffistrars of the dinerent dioceses ia 
England and Wales, which show the number of parishes in each dio^ 
cese transmitting copies on the average of the ten years preceding* 
In 1686, retarns were made from the same officers to the order of the 
f ^498 1 ^^°^ ^^ Commons, shewing the ^number of parishes not 
L J duly transmitting duplicates in each year since the pass- 

ing of Mr. Rose's act, up to and including 1829. From these two 

(jp) Sec 7. (y) Sec a (s) See. 9. (a) See. 19. 

ic) TMmisuay obeervelioQe to Pop. Abet 1831, p. xxiL The dlrectuNi n&pot^mg 
taaecnptakflfiQnot be earried into effbct^ mtil proper bmldings or reoepteclee in eeoh 4Ss- 
oeee, and « fond &r tfao pif meat of peraons employed in Moh unug^tamA ihiD bnvs )mm 

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sbnrces a taBIe ha» bben compiM whtch comfM^Rd tii» ^fhote «rthe 
infbrmation in the feport of the c6mfnt0»ioiier», in ]80(H and to maoli 
of the retarns to the House of Commons m 18M, aa reipecta tke year 
AS9,((f) thus exhibiting the state of transmission before and ator Ifae 
passing of Mr. Rose's act(e) 

It will be seen, by reference to this table, that Mn Rose's act has io 
argreat degree failed in its object of securing the regular transmission 
of dnplicates to the bishop's registry. Nor is this matter of aorpma, 
considering that the only panishment for neglect of tnmsmissioii is 
that the defanlter shall be specially reported to the bishop. The ineffi- 
cacy^, however, of the provisions of tnis statnte^is much to be reffrat* 
ted, as many instances have occurred where the preservation of uMia 
doplicates has proved of signal service in detecting the falsiicatioa of 
the originals by erasure or otherwise, as well as in pnmng their eor<* 
rcctness, or supplying the want of evidence occasioned by their loss. 

Thus, in the claim to the Barony of Chandos, a marriage was 
proved bv the duplicate of the parish register of Owre, in Kent, wbioh 
was produced from the registry of the Archbishop of Canterbury^ tin 
incumbent being first required to prove the loss of that part of tl» 
original which comprehended the period of the marriage.(/) In Ike 
same case, the house not being satisfied with the appearance of the 
register of Maidstone, for the year 1008, called for thedopHeate from 
the registry of the Archbishop of Canterbury, which was proved to 
csorrespondfg') On the other hand, in the claim of Gertrude M'Car- 
thy to the Staflbrd peerage in 1635, suspicion being excited aa to 
some entries of marriages, the duplicates of the bishop of Woroealtr 
were called for, and the entries in the originals discovered to ha^re 
been fbrged.(A) 

Bigland relates that by an appeal to the duplicate of the bishop of 
Ektrrnn, a forgery in a parish register was discovered, whioh ud 
•been committed for the purpose of preventing super- p ^.^g -. 
anntiation in one of the universities. The true name ^ J 

r^alarly entered in its proper place had been altered to another by 
an erasure of tw6 letters in the middle of the word, and inaartiag 

rn that erasure three difi^rent letters in their roomt and then placing 
real name under a date of two years later.(t) The case of tlie 
Attorney General v. Oldham, cited above,(j) may be referred to he«, 
at being another exemplification of the otility of preserving the copies 
of parish registers in the registries of the bishop ; while the oaat of 
AMdel! V. Gompertz,(&) in which no bishop's transcript of the Polls- 
ters produced was to be found, affords an instance of the nacartainty 
whkm may be caused by having no such repository to resort to. 

In the above cited case of peerage claims the duplicates themaeivM 
W6r6 put in evidence, according to the rule of the house previously 

(J) Ho vrenge of ywn was stnick apon (hMo retonit; bet Um difibfonot in tba aam- 
Im orde%ullen between ooe Teer and another is act great 

(e) Tbii taMe wiQ be (bond in the Appendix, where is also |i?en a brief sommarj of the 
Me of tranacri^ in Ireland, taken ^om the Second Eeport of the Commiseioners. 
.«(/) Printed Kfidenee, p. 44. (g) Printed Bndence, p. 4flK, 

m PEMitod Bfidenoe, 182$, p. S3. (i) Bigland, 00; 

0} MtSvp. 486; and aee Par. Beg. Rep. Min, Er. p. 90. {k) Ante, p. iSt, 

AnxLf 1845.— a 

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1, %hieh roqpiret tka origiaajs of ptritb r M a rtcri lo be pio* 
j, lo ffae exolusioa of examined copi;e8 s aod peroapa that, rule of 
Um Hooee of JLiordf might be advantageously adopted by the coorta 
of law. Thtf sutgect has be^ previously considered ia respect ta 
the registers themaelvesy but the practice of the oourts with reference 
te transcripts is not ao well settled* In the case of Beer v. Ward, ia 
ofdnr to coofirm an entry of marriage in 1742, the duplicates at York. 
w«re retorted to« and in the first issue an examined copy of the entry 
19 queatioot signed by the deputy registrar, was put in evidence with- 
out objection : oo the trial of the second issue, the duplicate itself was 
pnidooed. This case, however, can hardly be considered strong 
eooygb to warrant the conclusion that a copy of a bishop's transcript 
itould be admitted ; for it must be observ^ that it does not appear, 
firem tbe cme of Beer v. Ward, that the evidence would have beeo 
received in the firs! issue if any objection had been taken to it, and 
diatio Akct en the trial of the second issue the transcript itself wa« 

Educed. The question appears to resolve itself into this, whether tho 
lop'fl transcript is to be considered an original document, or merely 
a copy of the parish register ; if the former, then by analogy to im 
r *500 1 ^ ^^ ^ ^^^^ which allows of copies, these transcrlpta 
^ J *must be admitted ; if the latter, then as being merely 

copies of copies, the common rule of evidence would exclude theau 
We have seen, in tracing the history of parish registers, that the same 
aotlMirity which institute them, prescribed the preservation of copiea 
of .them in t^e bisb<^'s registries ; those copies were to be made and 
traonnitted anouaJly by the minister, and it seems, therefore, difficult 
to-contend that they are not equally authoritative, and equally official 
dociwients with those which the ministers retained. Lord Eldoa 
aeensa so to have considered them, for in the case of Lbyd v. Passiog* 
imm,{l) he says, *' By the canon law the clergy are required, every 
week, to form and sign these registers, and to send annually a dupli- 
cate to the ordinary: which duplicate being by the laws required to 
remain with him, would itself be evidence." On the ground, there- 
fiore, of the public nature of the document, it seems that a bisb(^'a 
duplicate should be considered primary evidence, and as such i^dmia* 
siUe withoot proof of the loss of the parish register, of which it is a 
copf ; and on the ground of tbe inconvenience of allowing it to leave 
its proper repository, an examined copy of it would be good evidence. 
Indeecl„as tne preservation of these transcripts was intended as a 
oheck, by which lo verify the registers* the oi:!ject of their institutioa 
would be defeated, if they were not preserved with the utmost precaui 
ttoo, fron any danger of falsification ; their removal, therefore, from 
tlM peeper custody, would seem more to be guarded against thahthat 
^ pariah registers themselves. In a recent case, this subject came 
more expresdy under the consideration of the Court than in any pre-^ 
xiom one, and the determiaatioo of tbe learned judm who tried tbe 
cause, may be considered as almost establishing the validity of a 
bishop's transcript, as primary evidence. 

Toe case alluded to is that of Walker v. Beauchamp,(i7i) tried 
before Alderson, B., in which an examined copy of the transcript of . 

(i)ia¥is.6l,sipN,^48i. (si}6Ctf.ftP«7as,fi64»<KAaLrB.) 

Digitized by VjOOQ IC 

c'ptrnb U M lit w r ftom Iki Wthop^ t%§iMfWM» ^iren in irvidMMr 
Ttie loa§ ofthe original regisler was not piored* The leaiDed jndg* 
•lidr that if he bad dtfiiiito proof of the ton of the original ragistMV 
he fAiouU admit the examined copfof the reiarn ^beyoni p ^^at | 
all doabt ;(n) that as the return waa an authenticated ^ ^ 

oopy of the original taken under the canon; and as that ia a pnblM 
document, an examined copj of what was found in the biriiop'a regia^ 
fry might be pat in ; but the loss of the ormnal register niould b9 
riiewn. It was objected by the counsel for the defendant, that a copjr 
of the return in the bishop's r^;istry would not be admissible ; and • 
distinction was also taken between the transcripts made under thtt 
eanonsy and those under the 52 G»eo» 8, c 146, the former of whiobt it 
was argued, would be only binding upon ecclesiastical persons ; but 
as the early registers themselres were only made by the authoritr of i 
Ibe canons, it <K>es not appear that this clistinction is tenable. The 
learned judge, in the end, though expressing considerable doubt on the 
subject, determined to receire the evidence. He said, *^ this copy ia 
the bishop's registry was made by the vicar, under the canon ; that 
therefore is a copy made by public authority, and deposited in a pub* 
fie place. I take that, therefore, to be evidence that there was aa 
original, and that that is a true copy of such original. I think further 
that that return, being a copy of the register made by pubHc auAeriiiVf 
i$ evidence^ and that it being itself a public document, the sanne t%m 
applies as to the inconvenience of its removal, and therefore an exam* 
ined copy of that return is receivable.'' It appears, however, that tha 
copies were not put in ; but from the expressions of the learned judges 
he seems to have concluded that the transcripts are to be reeeivad as 
original documents with respect to their admissibility ; and if so* it 
would appear to follow thait proof of the loss of the original register 
need not oe oiven to render a transcript admissible in evidence. Tha 
oueation, *Mr transcripts are merel}r copies, how could they be evi- 
dence to contradict the original register, as they were in the Angel 
ctae V\o) is not answered by saying, that they are jreceived» as the 
declaration of some person that he made a copy of the original, and 
that when he made it the original was different ; if this were the 

Eound for receiving transcripts, it would follow ttiat they would not 
evidence without first proving the death of the person who made 
*the copy, and that in his lifetime they would not be evi- r ^.^^ t 
dence at all. It is certainly the fHractice of the House of I- J 

Lords in Peerage claims, to require proof of the absence of an origin 
nsi register before admitting the bishop's transcript Of this, me 
Cbandos case above cited, is an example.(p) So in the Tracy case, 
in order to prove a burial in 1662 from a transcript in the diocesaa 
regkttry of Gloucester, it was first proved that the earliest extant reg<* 
isier in the parish in Question commenced in \WQ4,q) But the Hous» 
<rf' Lords, in cases of ttus nature, has its own pecuUar rules of evidence. 

(A) fii tlM Lfligli Fserago caw^ the rcffister of Wi^, in Litioaibire* behif proved to 
eMM»enet in 166S, the u«DecrlM fton ue biibop*i r^ittry wee put in to prote a beptim 
iikl6». Bfl^. £▼. 1929, p. 164. 

(e) This ctie was reibrred to more than once in Walker t. Beaochamp, bat no report of 
It hm been met with. 

(^)8seii4M. ({} Tra<7 BvoDj, Min. £f . 66. . 

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What little authority cm be coHected on this lubject from cases at 
law, seems rather in favour of that course which a consideration of 
the object for which these transcripts are preserved, and the principles 
i^on which public documents are admitted as evidence, would point 
out, namely that they are ^ood evidence of themselves, and indepen- 
dently of aiiv proof of the Toss of the originals ; for it would be incon- 
sistent to hold that transcripts shall be treated as originals, so as to 
allow copies of them to be evidence, but they shall be treated as mere 
copies, so far as to be only admitted in evidence themselves upon 
proof of the loss of the originals. 

[ *«)8 ] •CHAPTER II. 


As parish recisters were records of the performance of certain cer- 
emonies according to the rites of the Established Church, all those 
whose religious opinions debarred them from partaking in those cer- 
emonies, were necessarily excluded from the civil benefits of the reg- 
istration. Large bodies of Dissenters* members of the society of 
Quakers, Roman Catholics, and Jews were thus left to their owa 
resources for the means of preserving evidence of their respective 
descents. This led to the establishment amongst those bodies of sep- 
arate registers, in which matters of pedigree relating to persons of their 
persuasion might be recorded, in a similar manner to those preserved 
in Parish registers. 

These registers extend to several thousands of volumes, and are 
many of them of considerable antiquity. Those of the Dissenters 
consist chiefly of registers of births and baptisms : there are also some 
of deaths and burials ; but the operation of the Marriage Acts, before 
the last statute on this subject, rendered separate marriage registers 
amongst them unnecessary. 

The first in point of numbers and importance are the registers of 
**ihe Three Denominations,*' under which general appellation the 
Presbyterians, Independents, and Baptists have been long described. 
The registers of the Presbyterians and Independents are registers of 
births and baptisms, and in some instances ot deaths and burials. The 
entries of births and baptisms are made by the minister who ofliciated 
at the baptism, and are generally attested by his signature. In most 
of the reffislers in whicn the signature is omitted in the separate 
entries, there is a title or heading to the book in the handwriting <:^ 
the minister, with his name affixed to it, indicating that the ceremo- 
r •604 1 "^^^ •therein recorded were performed by him. These 
^ •■ registers seem for the most part to have been accurately 

and faithfully kept.(a) 

The registers of uie Baptists are of a dtfierent diarader, being 

(«) These, md mmny of the feDowing ptrticQiara reepectbg noD ptrochial registers, are 
— tre o t ed from the Report of * the Comminiooen to inqaire into the ttate, custodj, and 
sothenticitT of Registers or Records of Births or Baptisms, Deaths or Burials, and Mar- 
riagM in BogltndndVfalesothtrthuitlMPtfOQhUl Register ^9.et8eq. 

Digitized by VjOOQ IC 

mnEWrVRH* ftXOIBTXM. %5^ 

records, noj of baptisms, biit of "bhrths. As regards the register of 
births, the general usage appears to have been, that shortly after the 
birth of a child, the minister of the congregation to which the parents 
belonged, dedicated the child with prayer; and, thereupon, if a regis- 
ter was kept in the congregation, he entered therein the name of the 
child and the date of the birth, as then reported to him, adding in 
some instances the date of the registration. In other cases, the entry 
was signed by the parents, or one of them, or by witnesses who were 
present at the birthl Besides these registers, other books have been 
kept on a different principle, being mere certificates, not entered con- 
temporaneously with the dedication of the child, not attested by the 
ngitature of either of the parents, nor of any witnesses present at the 
birth, and not bearing anv date when the entry was made.(6) 

The registers of the V(^esleyans and Calvinislic Methodists of the 
Countess of Huntingdon's connexion, of the Moraviwas, and of the 
Swedenborgians are also registers^of t^irths and baptisms, with some 
records of deaths and burials i and the books were, in ahnost aH 
cases, kept by the officiating minister, and authenticated by his signa- 
ture either appended to the several entries, or written on the title or 
heading of the register* The registers of the Methodists differ from 
others m this respect, that most of them have been kept, and the 
entries made by a church officer appointed, and duly authorized for 
the purpose, by the recognised heads or directors of those religioulj 

The Wesleyan Methodists, independently of their *con- r ^^^ n 
regational registers, instituted in 1818 a Metropolitan*- ' 

Office in Paternoster Row, for the registration of the births and bap- 
tisms occurring amongst their different communions.(rf) The practice 
at this office was to issue to persons desirous of using the register^ 
blank forms printed in duplicate on parchment, which, when filled op, 
were signed by the parents, and by witnesses who might have been 
present at the birth, as well as by the minister. The forms contained 
the maiden name of the mother; when filled up and signed, one of the 
duplicate copies was entered in a book, and preserved at the office^ 
and the other was given to the parties.(e) 

A register of births for Dissenters of every denomination has beea 
kept with much care since the year 1766, at Dr. Williams's Library, 
in Redcross-street, Cripplegate.(/) The system pursued at this office 
appears to have been much the same as that of the Wesleyan Metro- 
politan office, and the entries contain nearly the same particulars ; 
the certificates are also attested by the parents or other near rela- 
tives, and witnesses.^) In this office were also preserved seventeen 
registers of births, baptisms, and burials of different Dissenting 
Chapels which had ceased to exist.(A) 

In kddition to the registers of burials in the burial grounds attached 
to the various Protestant Dissenting Chapels, there are numerous regis- 
ters belonging to the Bunhill-fields burial ground. This burial ground 

(h) Obi iup. p. 9. (c) Ubi rap. p. 10. 

id) tTbi sop. p. 10. 

(i) Report from Sel. Com. on Parochial Registration, 1833. Min. Ev. 112. Sec form of 
C^tfi<^te, ib. Appendix, 151. (/) Ibid. Min. Ev. 63. 79. 

(g) Ibid. Appeodii, IdO, wh*6 fbmn tfe givrin. (A) Uep. on Reg. p. IS. 

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is the property of the City of London, and for many years has Been 
used as the principal burial place for Dissenters. The registers com- 
mence on the 1st of April, 1718, from which time to 1788, they were 
negligently kept, but from that year to the present time they are 
reported to have been preserved with considerable care.(t') 

JBesides these, registers of burials have been kept at many cemete- 
ries, which have been established within these few jrears. These 
r *506 1 ^^S^^^^'^^ ^^^ ^^^^ regularly kept by registrars appointed 
*• J ^by the proprietors. In the Acts of Parliament under 

which these cemeteries have been established, there is generally con- 
tained a clause, directing a register of all burials to be kept, and cer- 
tified transcripts to be sent to the diocesan registry in the same man- 
ner as is provided for parochial registers ; and these roisters and 
transcripts, and properly certified copies of them are made legal evi- 
dence. In acts of this kind, passed since the general Registration Act» 
the fees for searches, and extracts, are made subject to the provisions 
of that act 

Besides the registers of the different dissenting bodies above enu- 
merated, there are the registers of the foreign Protestant Churches in 
England. The principal of these are the registers of the Wallooti 
and French Churches, which contain entries of the baptisms, mar- 
riages, and burials of foreigners, who had fled from relidous persecu- 
tion in their own countries. They are of considerable antiquity, 
commencing in the year 1667. There appear to have been at one 
time as many as sixty-four congregations, but at the present period 
only five or six of these churches are in actual existence. Many of 
the registers, however, of the chapels which have, from time to time, 
ceased to exist, including the French Chapel Royal, dissolved in 1880, 
have been carefully preserved. They are all written in the French 
language, and are stated to have been kept throughout with scrupulous 
accuracy and care.(j) 

There are also some registers belonging to the German Chapel 
Royal, and the German Chapel in Trinity-lane, in the City of Lon- 

Registers of baptisms and burials amongst the Roman Catholics 
have been generally- kept by the clergy of that persuasion; but the 
same cause that has been assigned for the non-existence of marriage 
registers amongst the Dissenters, operates to render them infrequent 
amongst the Roman Catholics. The entries of baptisms generally 
contain the date of the birth, and the maiden name of the mother, 
together with the names of the sponsors. It does not appear that 
p ^K^ -| much care is taken to ascertain the truth of the •state- 
■• J ments as to the birth. When it is remembered that for 

many years the exercise of the ministerial duties by Roman Catholic 
clergymen was prohibited by very severe enactments, and was 
attended with great personal risk, the imperfect state of their older 
registers will not be matter of wonder. 

The Jews and Quakers have always enjoyed the privilege of 
celebrating their marriages according to their own rites, and have 
not been required to conform to the ceremonial of the Church of 

(i) Rep. «n Bef . p. 9. {J) lep^ oo Ee^ . p. & (10 l^^ 

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fiogkiad. Tbeir rafters therefore include marriagei» ts weH tf 
birUis and deaths. 

AoaoDgst the Qoaker8(2) two registers of all marriages according 
to a prescribed form, are signed on the day of the marriace by the 
parties themselves and three witnesses, the latter adding their place 
of abode and occupation. The form contains the date of the eere- 
mony» the name, residence, and occupation of the man, the name of 
the woonan, and the names, residences, and occupations of the parents 
of each party. . If the woman has been previously married, she is 
described as the widow of her last husband. The registers are deli- 
vered at the monthly meeting next occurring, to which the woman 
belongs; and having been carefully exam in^, one of them is pr^* 
served in the book kept for that purpose belonging to the monthly 
meeting, and the other is taken to the quarterly meeting, fixed in tha 
proper book and indexed. The registers of births and burials are 
eBGCted by means of birth notes and burial notes, issued by persons 
duly appointed for that purpose. On the occasion of a birth, two 
birth notes are filled up with the date of the birth, the names and resi- 
d^ce, and description of the parents, and the name and sex of the 
child : these notes are signed by the parents, and by witnesses, if any 
were present : they are generally filled up within a month, and at the 
first monthly meeting are compared and signed by the clerk; they 
are then entered in a book kept for the purpose, and are forwarded to 
the quarterly meeting once a year, placed in a proper book, and 
indexed. The burial notes when filled up ^contain the r ^.^^ n 
name, occupation or addition, and residence of the de- ^ ^ 

ceased, with the date of his death ; and no burial can take place with-, 
out such a note having been issued : the note is signed by the grave 
master after the interment, and is afterwards registered in a similar 
manner to birth notes. The registers of the Quakers commence as 
early as the year 1655; and the Commissioners for inquiring into the 
state o( Registers, bear honourable testimony to the order and pre- 
cision with which they have been kept.(m) 

The registers of the Jews appear to be somewhat less particular 
and accurate than those of the Quakers. They are kept at the dif- 
ferent Synagogues, and are in the custody of particular officers. 
The entries at the Great Synagogue in Duke's Place, are in a tabu- 
lar form, and in the case of marriages and burials are made from notes 
taken at the time by an official person who attends for that purpose. 
The entries of marriage contain the date of the ceremony, the names 
of witnesses and the names of the parties, as well as tlie priest. It 
does not appear that the parties are described by their addition or 
residence. In the burial registry the late residence of the deceased 
is added. The entries of births contain the residence and names of 
the parents, the day of naming, the day of birth and the name of the 
child. No official person is generally in attendance at the time of 
naming, and the register is therefore not so much to be depended upon 
as thoee of marriages and burials : many births are never registered 

d) Par. Reg. Rep., e?idence of J. Peate, Esq., p. 73, and Appendix, No. 5, p. 147, and 
Rep. on Bxtg, p. 13, and Appendix, p. 155. 

(■I) Rep. on R^. p. 13. For forms of Uie notes see the Appendix to the Report P. p^ 
179, And see Ftr. Ref . Rip. AppeQdiz,No. 5,p. 147. 

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»t an. EviddDce is more easiiv atuined with reipeci to maletf tbsn 
females ; the circumcision of the former being a ceremony^ vrhich 
always performed in the presence of witnesses, and at a fixed period 
after the birth ; but in the case of female children there is no public 
oeremonial to insure the presence of witnesses.(n) 

The registers of marriages performed at the Fleet aod King's 
Bench prisons, and the Chapels in May Fair, and the Mint in South* 
r *M0 1 ^^^^* ^^^^ ^^^ mentioned in a formear page«(o) The 
L -I •greater number of them have been purchased by Gov* 

emment and deposited in the Consistory Court of London ; they bare 
formerly on some occasions been admitted as evidence,(p) but the 
modem decisions are against their admissibility.C^) 

The greater part of these non-parochial registers, according to. the 
testimony of the Commissioners for inquiring into their state, have 
been made and preserved with great accuracy and care, and, iiideecU 
are superior in the important points of precision and fidelity to many 
of those which have been kept by the ^regular clergy. Probably 
additional care was bestowed on them, in consequence of the £act 
which, until a recent Act of Parliament, was fatal to their admisai- 
bility in Courts of justice, namely their inofficial nature. They all 
wanted the stamp of authority, and, as mere private documents, have* 
according to the well-established rules of evidence, been uniformly 
rejected. In an action for the use and occupation of certain proper^ 
which had been demised to the defendant tor a term of years aeter* 
minable on three lives, an examined extract from the register of boriala 
of a Wesleyan Chapel was tendered to prove the death of one of the 
ctsiuu-que-vie ; but Park, J.| said he could not receive the registier as 
evidence of the death.(r) 

So, on a petition for payment of a legacy. Sir T. Plumer, M. R», 
thought that a copy of an entry in the Register of Births kept at Dr. 
Williams's Library, in Redcross-street, was not evidence to prove 
the age of the petitioner that tlie Court could act on.{9) In the Eccle- 
siastical Courts the same rule prevails, a copy of the raster of a 
Dissenting Chapel having been declared inadmissible as evidonoe^O 
It will be observed, that in all these cases the point actually decided 
was the inadmissibility of cf^ies of registers of this description ; but 
the objection would, in principle, have equally applied to the original, 
namely, that they were not public documents in official custody. The 
observation of Sir J. Nicholl, in the case last cited, that '* the books 
r «510 1 ^i^^l^^^ might be ^produced at the hearing of the cauae, 
I- ^ J and be made evidence to a certain extentt" cannot be 

considered as an authority for saying, that thev would be evidence 
quv^ registers. It is presumed that the learned judge contemplated 
such a use of the books, as Lord £Idon, in the case of Lloyd v. Pas- 
8ingham,(tt) suggested might be made of Fleet registers. He gave 
no opinion that 3ie Fleet Register was evidence as a register ; bdt fae 

(II) fltoe ivkbnce of Mr. Goldmnid, PaivBe;. Rep. Min. £t. 93, 5t3. (•) Ante, |i. Mi. 

(•) Lawrenee v. Deacon, Pcake, 136. See Doe v. Lloy^ 1 Esp, %i& ; Peaks, Sdi. 

iq) Doe V. Gatacre, 8 Car. k, Paj. 579, (34 E. a L. R.) 

(r) WhittQck v. Walere. 4 Car. & P. 376, (19 E. C. L. R.) 

(t) Ex parte T*yiQr, 1 Jac &. W. 483. 

(I) Newiiam V. Rahbby, 1 PfalL 315, (1 fi. Eoe. R.) C«)16yes.63. 

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WM »^ prepared to iay, that it mi^ not be received as evtdeoceof 
a fact ; aod be could suppose cases in which such evidence might be 
received* ** Upon a question of pedigree/' said his Lordship^ *' would 
not that entry ne admitted, not as a register, but a declaration under 
the hand of the party 1** And his Lordship seems to have considered 
the Fleet Register as admissible to that extent, and to have given 
weight to it accordingly. This seems to be the utmost extent to which 
registers of this nature could be admitted ; and authorities are not 
wanting for the position, that even this is too great a concession, in 
the case of books of such a character as the Fleet Rejjisters. In the 
case of Reed v. Pas8er,(t;) Lord Kenyon expressed himself strongly 
of opinion that such books were no evidence, and in a late case Mr. 
Justice Patteson, though pressed with the observations of Lord Eldon 
in Lloyd v. Passinghw), said he shoukl not receive the Fleet Register 
in evidence for any purpose whatever.(t/7) 

It is observable, that these Fleet Registers contain in themselves 
abundant srounds for impeaching their credit, without establishing a 
general rufo, that no non-parochial register, however untainted can be 
received as evidence of aeclarations of the parties. The question is 
DOW, however, of importance only with respect to documents of that 
nature, which have not been made evidence under the provisions of 
the Stat. 3 & 4 Vict. c. 02. In one case a Quaker's register was 
received. This was in the case of an action for criminal conversation 
with the wife of the plaintiff. The plaintiff and his wife were both 
Quakers, and the marriage had been performed, according to the 
cerenaonies of the sect, by a public declaration of the parties, at a 
iBondily meeting of the society, of their becoming man and wife, and 
a certiticate to that ^effect, was entered in a register r ^-.. -. 
ngned by the parties, and by several subscribinfi: wit- ^ -■ 

Dessea. The register was produced, and proved by one of the wit- 
nesses^ and a member of the society proved the forms observed to be 
those Qsoally considered as amounting to marriage amongst Quakers. 
The proof was received without objection.(z) 

The principle of this case is not clearly intelligible : unless it was 
considered that the entry in the register, and the signatures of it by 
the parties, formed part of the res geata constituting the marriage : in 
which case, the admission of one of the witnesses to prove the regis- 
ter would be in analogy to the regular practice of proving a deed by 
a subscribing witness. 

By the act 3 & 4 Vict. c. 02, a most important alteration has been 
made in the law of evidence with respect to the various non-paro- 
chial registers above enumerated. By the first section, the Registrar- 
General of births, deaths, and marriages in England is directed to 
receive and deposit in the general register office aU the registers de- 
scribed in the Act, and all others delivered within three calendar 
moQths from the passing of the Act. Section 2, after directii^ the 
Commissioners for inquiring into the state of the non-parochial regis- 
teia to inquire into the authenticity, &c., of every register sent to ttem 
within three months, directs that such of them as shall be certified 
imder the bands and seals of three or more of the commissioners shall 

(«) Padce, 303. (to) Doe t. Gataere, 8 Car. &> Paj. 579^ iU E. C. L.B.) 

(») Dmm f. Thomas, I Mo. 6l Bfa. 361. 

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be received by the Registrar-General, and deposited wiA the rest 
Section 4 directs bow the registers are to be identified and authenti- 
cated under the hands of the Commissioners. Section declares 
that all registers deposited with the Registrar-Groncral by vhrtue of 
this act (except the Fleet and Kine's Bench prisons, May Fair, and 
Mint Registers,) shall be deemed in legal custody, and shall be 
receivable in evidence in all Courts of Justice, subject to the provi- 
sions thereinafter contained. By section 8, wilful injury or forgery 
of registers is made felony. Section 9 directs all extracts from the 
registers to be sealed or stamped with the seal of the office, such 
p ^gjo 1 extracts to be evidence without production of the origi- 
■• J nals, •subject to provisions thereinafter contained. Sec- 

tion 11 enacts, that extracts so certified may be received in evidence 
after such notice given is therein prescribed of the intention to use 
such evidence, in any Court of law in England or Wales, in any mat- 
ter not a criminal case. Section 12 requires the same notice to be 
Siven if the original is to be used. Sections 13 to 17 inclusive, regu- 
Ltes the admission of the said registers, and in the Courts of Equity, 
Master's Offices, Ecclesiastical Courts, and in Criminal cases. Sec- 
tion 20 directs the Fleet and King's Bench, May Fair, and Mint 
Registers to be transferred to the custody of the Registrar-General, 
with a proviso that none of the provisions respecting the registers 
made receivable in evidence by this Act shall extend to them. The 
other sections contain regulations as to the mode of keeping the regis- 
ters, the fees to be paid, and other matters of detail for carrying out 
the intention of the Act(y) 

Under this statute, about ten thousand volumes of registers of dif- 
ferent descriptions have been authenticated, and are deposited in the 
Registration Commission Office in Roll's Yard. This number com- 
prises the registers of the various denominations of Dissenters Foreign 
rrotestants, Quakers, Scotch Churches in England, Methodists, the 
books from Dr. Williams's Library, Paternoster-row, and numerous 
Cemeteries, and those from Roman Catholic Chapels of about ono- 
third of England.(z) 

A coniplete list of all the non-parochial registers so deposited with 
the Registrar-General under the above Act has been printed ; by 
reference to which access to any particular register may be readily 
obtained. The index contains the names of the counties of England 
and Wales alphabetically arranged, and in each county the names of 
the places from which registers have been received in like order ; in 
separate columns are stated the denomination and date of foundation 
of the congregation to which the register belonged, the name of the 
minister by whom the register was deposited, the number of books 
r *513 1 ^®P^^^^®^ ^^^^ ^*^h place, *lhe nature of the entries 
I- J therein, and the period over which each book extends.(c2) 

Searches and extracts from the registers and records which have 

(3f) See the aet itself m the AppeDdiz. 

(«) See 9 Otr. Sl Paj. 793, (38 E. a L. R.) The reeidoe of theee Romftn CalhoKo 
Re^isten remain at theelnpeb to whioh thej relate, and thoee of the Jawi at Ibeif ▼ttriova 

(«) A short enumiarf of the dlffisreit seott f4ioee regittort have been nat ii| «iid cf Cho 
datee fnm whkfa tfaej have been kept will be foond in the Appendix. 

Digitized by VjOOQ IC 

been de iK jh i te J in the mslody of the regMtntr-general, porsiMint to ito 
act, wilt be granted on erery day, except Sundays, Qiristmai day, 
and Good Friday, between tbe hours of ten and four^ upon personal 
appUcation and payment of the legal feee, at the non-parochial reff» 
ter-office, m the Roll's Yard, Chancery-lane; but application ti^lel* 
ter for search or extract cannot be complied with. 



Thxre is a class of non-parochial registers which have been already 
mentioned,(o) and which, though not brought within the provisions of 
the 3 & 4 Vict, c 92, are, nevertheless, admitted as evidence under 
certain conditions. These are, tbe registers of baptisms, marriageSt 
and burials, solemuized according to the forms of the church of Eng- 
land in the territories of the East India Company in India, and at the 
island of St. Helena. Duplicates of these registers are transmitted 
to the India-house, where they are preserved m the secretary's office. 
They are sent from Bombay, Bengal, Madras, and St Helena ; those 
of the out-stations beinc forwardeid to the respective presidency to 
which they belong for the purpose of transmission to this country. 
The duplicates from Bombay commence in 1709, and come down to 
1887; from Bencal in 1713 to 1837; from Madras in 1698 to 1834, 
and from St. Helena, in 1767 to 1835 ;(i) and they continue to be 
transmitted up to the present time. They are of paper, bound in 
volumes, and each duplicate is signed by the officiating c!ergymaQ.(c) 
It has been stated that these books are admissible m evidence; it 
is however necessary that they should be proved to come from the 
proper custody, by production in the hands of some officer of the 

In tbe Molesworth Peerage case, to prove the deaths of John and 
Richard Molesworth, there was produced from the India-house, by a 
clerk in the secretary's office, two volumes of burials of persons in 
the East India Company's service at Bombay in 1753 and 1793, which 
had been duly transmitted from that ♦settlement. They r ^^, - ^ 
contained entries of the burials of John Molesworth, ^ -I 

writer, and ensign Richard Molesworth, and their deaths were ad- 
mitted to be thereby proved.(d) In the Gardner Peerage case, as we 
have seen, some additional evidence was required,(e) namely, proof 
that the duplicate register had been transmitted to the India-house in 
the usual manner, and that the clergyman by whom it was signed had 
actually officiated at Madras at the date of the raarriage.(/) 

There are also preserved at the East India House, the certificates 
of baptism of such persons as have proceeded to India in the Com- 

(«) 8opt«, ^. MM. (^) Re^QBRcff.^ 13. 

(«) GrimaUi Orig. Geo. 839. Born on Par. Reg. 197. (d) Printed Ev. pp. 21. %k 

(^)8dpis,^J6e. (/) UMarcbMi*tRep.p««<rrialsd£f»^97« 

Digitized by VjOOQ IC 

Mt hubbjlok\i vntmoB or wotsMBaoM* 

ptny*t Betvice, who are generally required on setting out to prov!3 
ibeir age by the production of those documents.(^) 

Registers hare been kept by the clergymen attached to the British 
tmbasfties and consulates, and of various EngKsh congregations in 
places not under British dominion, of the marriages^ baptisms, and 
burials performed by them. No vuSiform coarse has b^n pursued 
with resqpect to the preservation of these books. Many of them have 
been transmitted to this country, and are now deposited in the regis- 
try of the Consistory Court of London. In addition to these, the bishop 
has also a general register, which was commenced in 1816,(A) in 
which the births, marriages, and deaths of British subjects occurring 
in foreign countries may be registered. With respect to these registers 
in the Consistory Court, the commissioners have reported that they 
may be divided into three classes. 

1. The first class consists of certificates of baptisms and marriages, 
bearing the signatures of the parties and witnesses, (with few except 
r •Sie 1 ^^^"^') ^^^ authenticated by the British envoy or minister 
■• J •as having been performed in his house, and 'from time to 
time sent through the Foreign Office to the Registry. In this class 

" may be included registers from Oporto, from 1706 to 1802 ; from the 
Cape of Good Hope, Gibraltar, and Geneva. These are original books, 
in which the entries are signed by the parties and authenticated by 
the chaplains. 

2. The second class consists of transcripts from original registers, 
certified by the ministers of the different places, in the same manner 
as transcripts under the 52 Geo. 3, c. 146, for the regulation of tran- 
scripts deposited with the registrars of the different dioceses. A book 
of transcripts also from the register kept at the British embassy in 
Paris, from 16)6 to 1838, and continued to the present time, and a 
transcript of the register of St. Petersburgh, from 1706 to the present 

8* A book of registers transmitted from Cronstadt, which appears 
to have been transcribed, but not certified as such, forms the third 

With respect to these registers deposited in the Consistory Court, 
no case has been met with expressly aeciding the question whether or 
not they would be admissible as registers to prove the facts recorded 
in them. It seems difficult to draw any sound distinction in principle 
between the transcripts preserved at the India House, which, as we 
have seen, are admitted when produced bv an officer of the house, 
and these certified registers, many of which, it must be observed, are 
original documents. The original books in both classes of registers 
under consideration, have, in the majority of instances, been kept in 
conformity to the practice established with respect to parish registers 

(g) List! tre oootfSonany pnblisbed In Engrland by order of the regietrarg of the SQpreni^ 
eoarts in India, of persons to whose estates letters of administrstion hsTing been taken out 
1^ the reipstrars under acts of parHament, a aorpkif has remained in the b^ndapf t^ f4- 
ministrator. These lists, if not evidence of the death of the persons named in them, will 
nflbrd infbrmation on the subject 

(A) There are a few entries of earKer dates. 

fl) Rap. on Ref. p. 11, and eee Appendix thereto (M). In the Appendix to this Report 
more particnlars are wnn aa to these difibrent registers, the placos from wbioli they htro 
baoB sent, tho datcit 2bo. 

Digitized by 



iM EogliuKl, tItlioQgb not by virtue of thm anliioriliei whieh refokile 
diat practice ; and tbe transcripts havie in like manner been certified^ 
and transmitted, and are now deposited in the hands of pubKc foac- 
tionaries* There seems, therefore, no reason for refusing to the one 
class that credit Mrhich *is conceded to the other. Neither r _«,y 1 
of them, it will be seen, is afiected by the provisions of 8 ^ ** 

6c 4 Vict. c. 93.(» 

The above reasoning will not of course apply to the certificates sent 
home and registered in the Bishop of London's Court: whioh, how-* 
ever, as well as the original registers and transcripts, where they are 
dgned by tbe parties, or the rewtions of the parties respecting whom 
any (act is certified, may be used as evidence of declarations, subject 
to tbe established rules regulating the admission of evidence of that 

It appears, that in Scotland at this day, as formerly in Eodand, 
parish legisters are kept by virtue of ecclesiastical aiithority. In the 
directory for public worship, a book of authority in the church of 
Scotland, injonctions are contained respectinff them. In another book' 
also, which is considered of authority m explaining the practice^ and* 
sometimes the law, in ecclesiastical matters, directions are given for 
keeping a register of baptisms.(ft) The law is represented as rather' 
▼agne on the subject; and apparently the practice partakes of that want- 
of precision. From the testimony of many witnesses it appears, that the* 
state of parish registers in Scotland is even less satisfactory than it is in 
England. The Population Abstract of 1801, states that out of eight hun- 
dred and fifty parishes in Scotland which made returns to government, 
only ninety-nine had regular registers, while the rest had either no 
register at all, or only occasional entries. The report of the Deputy 
Clerk Register of Scotland to the commissioners of public records in* 
1810, speaks to the want of care which has been displayed in the for« 
mation and custody of these useful records ;(/) and the testimony of 
private writers is to the same eflfect. Some of the evidence given 
bdfore the committee on parochial registration, might indeed at first 
sight seem inconsistent with these statements, but it will be found upon- 
esannnation that the practice with respect to registering, as described 
in that evidence, is such as would ^naturally lead us to r ^-.g -i 
expect inaccuracy and deficiency in the reffisters.(i7i) ^ ^ J 

The registers both of marriages and births are kept by the session 
d^rk for tbe time being, and on his death or removal from office are 
delivered to his successor by the minister and session. The registra- 
tion is not compulsory ; if the parent of a child wishes to have it 
registered, be applies to the session clerk, who from his information 
eaters the circumstances necessary to be re^^stored. So it is with- 
respect to marriaffes. Either one of the parties, or a friend informs* 
the registrar of the particulars, the time, and i^ace of the intended^ 
marriage, and the name of the minister who is to ofliciate; this infer- 

(/) See the Appendix. 

C*) Stewmrt*! Coltoetione, dto; of the Church of Scotland, tit 4 See Pur. Rer. Mid. Bt. 

(I> Bon oa Fte; Res- 170. Siockir'i StetMod HittDrj of Soothnd eiM by him. Sbt 
aiko PreluDinary Obterrationt to PopahtioQ Abstract, 1821, p. izL 

(SI) Pto. R«f . Rep. Milk fir. ^ W. 

Digitized by VjOOQ IC 

i<M^ smBAox'k wrmmn w 

mattoii being for the pcirpoye <if proclanwtioiiy k gitM before (he 
marriage has taken plaoe, nor does it appear that in general anj fur- 
ther registration is sabseqaently made ; and as many marriages take 
place without proclamation! there are many which are never register- 
ed at all. 

It is said that a somewhat stricter practice prevails in Edinburgh, 
and that there, on a person applying respecting his marriage, for pro- 
clamation, a prepared card partly printed is given to him, the blanks 
of which are filled up at the time of the marriage ; it is then subscribed 
by the minister and some witnesses, and afterwards returned to the 
session clerk, who thereupon completes the registretion.(ii) 

It is obvious that a registry conducted on such lax principles, is not 
much to be depended upon, and there seems much justice in the remarit 
which has been made, that the system in Scotland noWf is the worst 

No distinction is made between members of the established church, 
and those of the secession church of Scotland, in respect to refftstra- 
tion : it being in fact looked upon rather as a civil than an eccTesiai- 
tical operation. 

r *519 1 *'^ appears that in Scotland there is not in general any 
^ ^ parochial register of deaths or burial8.(p) Few registers 

of this description are to be met with of a date earlier than the coav- 
mencement of the present century, although occasional entries majr 
be found in former years. 

. Thus it is stated that in the parish of Kilmoruck, Invemesshire, there 
were only two entries of deaths for upwards of a century, and down 
to 1825, no register of deaths was kept, though the baptisms and mar- 
riage9 were regularly kept and continued since 1674.(a) In the parieir 
of Urray there was no register of deaths at alL(r) The session clerk 
of Bonlull,(s) in the county of Dumbarton, proved that there was no 
register of burials in that parish kept before ten years prior to 1899, 
the date of his examination. 

It would seem from one case that the session books are not consi- 
dered of undoubted authority in the Scotch courts. A certified extract 
of baptism frem a session book was tendered to prove minority : bot 
the lords refused it on two grounds ; first, that the register was net of 
that authority that the extract ought to make faith per$e: secondly, 
on the obvious ground that the chiM RUffht have been one or more 
years old at the time of baptism.(t) There is no doubt howevefy' 
that these registers are admissible evidence, on the same foo^ng at 
English registers, and have been treated as such: in fact, as we have- 
seen, the House of Lords has relaxed in their favour, the rule estab*. 
Ifshed in peerage cases to call for the production of the original 
books,(«) an indulgence, which it will appear, has also, perhaps of. 
necessity, been extended to the registers or foreign countrieSi(e) 

(») Ibid. m. 199, ISO. (0) Bora Par. Reg. pi 171. 

( p) Par. Rag. Rep. Min. E?. p. 15^8. 

(9) Lovat BaroDj, Sfin. E9. 65. (r) Aidt 7L 

(a> Airth Baddom, Min. E?. 143. 

(I) WilaoQ ▼. Aitkm, Diotiooaiy of Dooiaiooi, toL 30, 1S700. ThaSMoa 
ibid.m01. {•)Bvpn,p.9^ 

(f) Set fioasdtt and Mmoy iWage csftii cited poiK, ^ M6| . 

Digitized by VjOOQ IC 


Pramfam bm oceuiooaUy bmB iniieiB a«U of parlitaMttt lor eiUk 
blishiog refpMtjen io particular places. 

*Thiia b^ tUU 58 Goa d» c. 849 which declares valid r ^^^ ^ 
marriages iq India by dergymea of the church of Scot* ^ -I 

land, it is provided that the officiating minister should at the time of 
solemnization certify every such marriage by a writing subjoined to 
or indorsed upon a oeclaration by one or both of the parties of mem- 
bership of the church of Scotland ; specifying in auch certificate the 
names and descriptions of the parties, and of the witnesses to the mar- 
riage. It is also provided that such certificate in duplicate should be 
signed by the parties and witnesses, and that the minister should deliver 
one duplicate to the persons married, or one of them, and should trans- 
mit the other duplicate to the chief secretary of government at the 
Residency under which the marriage should take place. 
^ So also, the 5 Grea 4, c. 68, provides for the registration of mar- 
riages in Newfoundland by ministers of churches acS chapels, and the 
delivery of certificates of those celebrated by licensed teachers, and 
their regisU-ation by the secretarv to the governor, and enacts, that 
the register, or an attested copy shall be evidence of the marriage* 
.^ Id most, if not in all, European countries, some system of registra-. 
tioo» either ecclesiastical or civil, has long prevailed. The importance 
of the subject seems to have been in general more fully appreciated 
amongst the continental nations than in this country, if we may judge 
from the greater amount of care which has been taken to guard 
ifiaiDst the loss or falsification of the registers^ and the higher de^e 
qI' particularity and precision in forming them, which is required bv 
many of those nations. Perhaps upon the whole, the system of civil 
segistration pursued in France under the code of Napoleon, will be 
£^und to secure at once the fullest information, and the most perfect 

la every parish in Spain the vicar or curate, or if there be none, 
the rector, is charged with the care of the parochial archives.(u?) It 
does not a{^)ear by what authority the parisn registers are ke{>t there, 
but there is a place in the parish church for the purpose, r ^^gj -t 
Had a clerk appointed to inscribe the names in the books, ^ -' 

each of which 1ms an alphabetical index. The entries of marriages 
contain the date, the name of the officiating minister, the name and 
pUc9 of birth of the husband and wife, and the names and place of 
qirth of the parents of each of them, together with the names of the 
9gQDm>T» and witnesses. The entries of baptism contain the name and 
mff.Q[ the child, the names and places of birth of the parents, and the 
QsnMa of the sponsors. The register of death contains the name, age, 
birth-place, and parentage of the deceased, the day of death, place of 
rapidefice, whether married or siogle, and to v^hom married, and whe- 
ther testate or intestate. 

la France the registration of births, deaths, and marriages is com- 
mitted to the civil power, and jpreat care is taken to ensure the accu- 
racy of those records. The hw on the subject is laid down in the 
code civil.(x) The entries contain more particulars than is required 
in moat other countries. Thus the registers of marriage io addition to 

Digitized by CjOOQIC 

aw HUBBACnC 8 fc VlD ICW U g OF 8UCC888K>H* 

the name, condition, day of birth, residcnce^and paronta^, of the par- 
ties, contain also the statement of the age of the parents, if living, their 
residence, and their presence at, and consent to tne marriage ; the pre- 
liminary adei are then recorded ; then follow the names, ages, des- 
criptions, and residences of the witnesses, the signatures of the parents, 
and that of the magistrate. The registers of birth mention the name 
of the child, the place, day and hour of the birth, the names, descrip- 
tions, ages, and m the case of natural children, (which are registered 
as such,) the birth places of the parents. The registers of death 
record the name, description, age, day and hour of death of the de- 
ceased, and, if a married person, a particular description of the sur- 
vivor. In the cases of births and deaths the parties on whose infor- 
mation the entry is made, including generally in the former case the 
Inidwife who attended, sign the register ; if any witness cannot write 
it is so stated ; in all the redsters a full description of the witnesses 
including their ages is added, and the entries are attested by the sijgna- 
ture of tSe magistrate before whom the declaration is made. Ifany 
mistake or erasure occurs, it is noticed in the margin or at the bottom 
r ♦522 1 ^^ ^^^ ^^'^' books themselves are *guarded from the 

!•' ■■ possibility of falsification by an entry in each, stating the 

fnirpose for which it is kept, the number of leaves in it, and other par- 
ticulars, and signed by a Juge or President du Tribunal{y) 

Under this system the utmost security is obtained both for the due 
entry of all matters required to be recorded, and for the faithful pre- 
servation of the registers themselves. A marriage is not complete 
until the parties have made the prescribed declaration in the presence 
of the magistrate, whose duty it is to register the marria^, and the 
signing the register by the parlies is one of the necessary rormalities : 
thus the due registration ofevery marriage is satisfactorily provided 
for. All necessary information respecting births and deaths, which 
from the less public nature of those events would be more likely to 
escape the knowledge of the civil authorities, is ensured by penalties 
imposed on those who neglect to give the information required within 
a certain time after the event has taken place. The time fixed for this 
purpose is twenty-four hours.(z) 

On the occupation of the Netherlands by the French, the system of 
registration established by the code civil was introduced into fielgium, 
and now prevails there. After the revolution of 1830, some efibrts 
were made to return to the old system of clerical registration, but the 
attempt gave general dissatisfaction, and was in consojaence aban- 
doned.(a) It seems that the oflicers whose duty it is to keep the 
registers, are not only subject to heavy penalties at the hands of the 
government for any neclect, but are also liable to civil actions at the 
suit of any person who may have been injured by omissions or 

' (y) This entry Is as fbUows :^Deparfineiit de la Sefiid, Title de Paria, I*'. Arroii^«e* 
BMWt MmnelpcL Re^kter doable dee oolee de l&irriage. Le present t^mHtet eootenant 
•^ vki^l* feoUlelikjmidaol Vut "« 1830** h. inecrke toe aotai de •'loafriage^ du •* pceosierr* 
arrondisaement Monicipal de Paris, k Peffet de qooi il a 6te ootd par premier et dernier, et 
peraph6 ear chaqoe feaille, oonfbrmement k Particle 12 da code oiTil, par moi mmaMgn6, 
'••A. &** President do TVikmttldel«riDsCa]ioe da IMpaitmentdek Seine. Paria, le 
18 • 8igne,*<A.A.** See Par. Ref . R^ App. 10, p. 158, where also are^ea Ibnna of 
•BtHes in the Nvlsteta* 
(lOE▼ideMofMr.flDlliiQD,IbM.^59. (i^ Mi.«fBr.<lQiM^lbli;^in. 

Digitized by VjOOQ IC 

•heratioos in the nsgisten, ahhoagfa the aotbor of the iigiiiy may te 

*The same system is followed in the state of Gene* r «ro« n 
Ta-(c) L ^^ J 

In the Rhenish provinces of Prussia also, the practice is the same 
as in France, the registration being conducted according to the pro- 
visions of the French code civil : but in the other parts of that king- 
dom, the law has committed it tothe hands of the clergy. The church 
ir^isters are kept by the pastors, whose duty it is to enter therein the 
marriages, births, baptisms, and burials performed by them, or of 
which they have received notice, immediately after the performance 
of the ceremony, or the receipt of the notification. It appears that a 
duplicate of the register is kept, which is annually collated with the 
Twister by the pastor, who certifies its accuracy: and it is then depoa»> 
ted at the tribunal of the place. In registering a marria^ it is reau»- 
red to state the names, surnames, and ages of the parties ; whether 
they have been married, and whether they are under the authority of 
parents or guardians ; if so, how and when the consent of the parents 
or ^ardians to the marriage has been signified. The name, rankf 
and residence of the fathers is also stated. The baptismal registers 
record the name of the child, the day and hour of its birth, from the 
information of the parents or mid wives, whether it is legitimate or not, 
the names, rank, and residence of the parents, and names of the wit- 
nesses to the baptism. In registers of deaths, to the name, surname, 
and condition of the deceased, is added in the case of children those 
of the father : the age in years, months, and days, the fact whether the 
deceased has left a wife and children, and the day axul hour of death, 
the disease which caused it, and other proofs by which the clergyman 
was satisfied of the identity, all find a place in the entry. The name 
of the officiating clergyman, and the oate of the ceremony is added 
in registers of every kind. Parents who neglect to baptize a new born 
child within six weeks, are liable to be proceed against as of unsound 
mind : with this exertion, and that or the measures of police in cases 
of violent death, the law gives no coercive means by which registra- 
tion of baptisms, marriages, or burials may be compelled ; but it im* 
poses on the clergyman, under penalties varying in severity, the 
obligation of registering those acts when they do take ^ «^^ -■ 
place. The registers *of the Jews in Prussia are kept, •- J 

where ther.e is a synagogue, by the rabbins, under the control and 
inspection of the local administration : where there is no synagogue 
the duty falls on the local police. It seems that these Jewish registers 
are recognised by the judicial tribunals.(J) 

In the Austrian dominions the registers are kept by the ministers 
under the authority of an imperial order of the emperor Joseph 2, dated 
February dOth, 1784. This order directs that each minister shall keep 
three registers of his parish, one for marriages, another for births, and 
a tfaml Umt deaths. It tb«n prescribes the form of the registers and 
tbt Hems to be contained therein. The year, month and day of the 

(i^ Md. App* 34, p. 187. («) Par. Rag.Rap. App* 21. p. 179. 

(^ Par. Reg. Rq». App. No. 9. A. B. C. D. p. 153, to which the nUu k wSsmi hi 
iQOM partiedar intemaflOQ cod ternif of Ums tbtfifls. 
AnuL, 1845.— 12 

Digitized by VjOOQ IC 

M^O EiTBBACK't wmmmm ov flvccsssioH. 

marriage, the number of the bridegroom's house, the surname^ Chris- 
tian name, religion and age of the parties, and also whether they have 
been previously married, the names and condition in life of the wit- 
nesses, form the items required in marriage registers. The particulars 
respecting the parties are to be entered by the person who performs 
the ceremony, who is in all cases to sign his name ; and each pace of 
-the register is further to be signed at the foot by the minister. With 
respect to births, it is required that the year, month and day of the 
birth, the number of the bouse, the Christian name, and sex of the 
child, and whether it is legitimate or not should be stated ; in additioa' 
to which also must be mentioned the names and religion of the parents, 
ftud the names and condition of the sponsors ; the witnesses of mar- 
riages, and the sponsors at baptisms are required to sign the registers, 
•or, if they cannot write, to make their marL • The registers of death 
are to state the year, month and day of the death, the number of the 
house, the name, religion, sex, and stated age of the deceased ; and in 
some cases the malady which caused the death. Bishops on every 
visitation of their dioceses are obliged to call for the production of 
the registers, and the provincial aumorities are required to ascertain 
whether they are kept in all places according to law. The mode of 
ascertaining the truth of statements respecting the parentage of child- 
ren made for the purpose of registration, has been the subject of very 
T ♦625 1 P^^^^o'^'' instructions •to the clergy, especially respect- 
^ J mff the distinction between legitimate and illegitimate off- 

8pring.(6) It does not appear whether the observance of these requi- 
sitions is enforced by any penalties ; nor has any information been 
produced as to the actual state of the registration in that country. 

In the Canton of Berne the baptismal registers appear to be kept 
with considerable particularity. They contain the names of the 
parents, and of the father's father, the place and date of their mar- 
riage, the name of the child, date of the birth, and names of the ^n- 
sors. In the cases of illegitimate children, the father's name is omitted 
and the fact of illegitimacy stated. Separate registers are kept for 
the baptisms and deaths of the citizens of the towns of Berne. No 
distinct register of births is kept The marriage registers apparently 
contain very few particulars besides the date ; merely the names of 
the parties, the husband's profession, and the name of his father are 
entered. Burial registers a^ain are more precise. The date of the 
death, as well as of the burial, and the age of the party even to months 
and weeks are recorded, as well as the name and surname, residence 
and profession of the deceased, or if an infant then of his father ; if 
illegitimate, the mother's name alone is mentioned ; in the cases of 
married women their maiden name is added to that of the hus- 

It is said that parish registers are kept with great regularity in 

The Scotch church at Rotterdam has a register containing entries 
of the baptisms, &c of many of those who fled from Scotlano durioff 
the persecution of 1685.(A) The parish registers of several cities and 

(•) Ptr. R«sr. Rt|K App. No. S3, p. 183. (/) Ibid. p. 1 81. (g) Carrot Toor. 

(A) The foUowing if one of the entriM firom Uiis re^ iiter :— "* 1 6d7« Ang. SI. Jean Coa- 

K, da. to Mr. Patrick Cooptr and Janet Haliborlon. Witneaaeai Maften Alexander 
■t/uidJolaHbrr«7.** fim on Pv. Raf . 197. 

Digitized by VjOOQ IC 

roRUON RBoisTsas. 8T1 

lowns in Honand, Germany, and Switzerland, also contain many 
entries relating to the families of British subjects who at the several 
periods of religious persecution^ have fled to foreign parts, and in par- 
ticolar to ^Rotterdam, Strasbur^, Zurich, Basil, Geneva, ^ ^.^^ ^ 
and Frankfort. At the latter place there were in 1556, ^ J 

Sir John Chub, Sir Richard Morrison, Sir Francis Knollys, Sir 
Anthony Cook, Sir Peter Carew, Sir Thomas Wroth, Dame Dorothy 
Stafford, Dame Elizabeth Bukley, and the wife of Bishop Hooper. 
^ In the Island of Guernsey, registers of births and baptisms, mar- 
riages and burials are comprehensive in the particulars and kept with 
regularity. In registers of baptisms the maiden name of the mother, 
and the names of the godfathers and godmothers, with occasionally 
the degree of relationship (if any) in which they stand to the child, 
are civen. In those of marriages, the names of the fathers of the par- 
ties frequently occur. 

It is apprehended, that wherever registers of this nature, whether 
civil or ecclesiastical, have been kept under the sanction of public 
authority, and are recognised by the tribunals of the country as 
authentic records, properly certified copies or extracts from them 
would be held admissible in our Courts in the same character. This 
seems to be the rule which the comiias gentium would dictate : and 
.though no express authority to that effect has been met with, this 
principle seems fairly deducible from the cases which have occurred'. 
Some of these have been mentioned in a former page,(z) where this 
branch of the subject has been partially treated. 

In support of the claim of Wm. Ferdinand Carey to the Barony of 
Honsden in the year 1707, an extract from a register of baptisms of 
the Netherland church at Maestricht was put in, and appears to have 
been admitted, to prove the parentage of the claimant, whose claim 
was allowed.(^') 

In another case a certificate of burial from the parish of St. Paul, 
Paris, stating the death of Piers, Lord Viscount Galmoy, was pro- 
duced and proved before the Lords' committee. In the same case 
five extracts from the registry of the town of St. Germaine r ^^^j i 
*en Laye, of baptisms and burials of several members of ■- J 

the family were received.(Af) 

So in the Slane Peerage case, to prove that Helen or Ellen Fleming 
died without issue and unmarried, an examined copy of an entry in 
the register of funerals of the parish church of Sl Sulpice in Paris, 
together with certain notarial acts respecting the register in which she 
was described as having died " fille," proved to be a true copy by the 
person who took it, was given in evidence without objection.(/} 

Iq the proceedings in the King's Bench against Sir Thomas Picton 
upon an indictment for having, when governor of the island of Trini- 
dad, caused the torture to be administered to Louisa Calderon, a free 
mulatto, a copy of an entry of baptism in that island, when under the 
Spanish dominion, was put in evidence to shew the age of the plain- 
tifll(in) A great deal of evidence was taken in the island by virtue of 
a mandamus from the court of King's Bench. The return to the man- 

(i) Sapra, p. 365. (j) HarL MS. 6694. 

h) Galou^, P. C. Report of Attoroey-general, Lynch, 381. 
0) SluM JtUirofly, Via. £?. 33. [m) How. Sute Triali, 361^ 

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damos was signed by the then governor. The return contained a 
translation of two entries of the baptism of Louisa Calderon, from the 
register ctf the island, and also the examination of the curate who had 
made the entries. The vicar-general of the island was also examined 
as to the mode in which the register ought to be kept.(n) From his 
evidence it appeared, that in that particular case there were consider- 
able irregularities in the entries, and in fact he impeached the credit 
of the register : it does not seem however, that anv objection was 
taken to the admissibility of the extract. 

[ •528 ] CHAPTER IV. 


Anothbr class of registers from which genealogical information 
may be obtained, and which from their public or omcial nature are in 
some cases admitted in evidence, consists of books kept in the various 
government offices, and other establishments, in the course of official 
duty or under the authority of Acts of Parliament(o) 

At the War Office the muster rolls and pay-lists of the several regi* 
ments are preserved, which shew the existence at the time of the per- 
sons named in them : there are besides miscellaneous documents, from 
which the fate of officers can frequently be traced so far back as 1668. 
There are less facilities for tracins: private soldiers, but information 
respecting them may be obtained with tolerable accuracy from 1798, 
and occasionally from earlier periods. 

From the year 1830, the ages and marriages of officers, and the 
baptisms of their children have been reported to the War Office ; but • 
no register is kept of their wives or widows, except of such of them 
as obtain pensions. 

A record of the marriages of soldiers and of the baptisms of their 
children has been kept in each regiment since 1816, but this only 
applies to those who have married with the knowledge and consent 
01 the commanding officer. 

By the annual Mutiny Acts it is provided, that all recruits enlisting 
r *529 1 *^^^ ^^ Queen's, or East India Company's military ser- 
«• -I vice, or the marine corps, shall be taken before a justice 

of the peace, who is to put certain questions to them, including amongst 
others, inquiries as to the name, birth-place, ase, trade or calHng of 
the recruit, and whether he is married or sin^e. The answers ar^ 
to be taken in writing on the oath of the recruit, and signed by bim ; 
the justice is also required to sign a certificate to that eflect« a dupli- 
cate of which is given to the recruit 

It is one of the duties of the Secretary of War to answer inquiries 
as to the existence, &c., of officers and soldiers. 

In the L'Isle Peerage case,(p) in order to prove the death of Michael 
Dillon, the father of the claimant, an examined copy of the pay-liil 

(II) IbkL 441. M PhiL & Am. £?. 597. 

(p) lliii.ET.p.93. 8M«IsoBosooininonE«rldQin,BCiB.ET.p.67. 

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WGNEctiM Of mnuo omam, bto. 978 

of the eoimly of Dublin militia in the Military Pay Office at Dublin* 
ia which he was stated to have been killed in the battle of Ross, 1798» 
was admitted in evidence ; the Attorney-general submitted that the 
original book should be produced, but the copy was admitted de ben$ 

The East India Company also are in possession of muster rolls and 
army lists of their armies, from which the same sort of hiformation may 
be obtained as from the documents at the War Office. East India reg- 
isters contaizung much of the information supplied by the above docu- 
ments have been published annually from 1705. Baptismal certificates 
also of persons proceeding to India in the service of the Company are 
preserved at the India House. 

In the year 1838 was published an alphabetical list of the names of 
the officers of the Indian army, with their respective dates of promo«> 
tion, retirement, resignation or death from the year 1760 to the year 
IS37, whether in India or Europe. 

It appears that no regular series of records of the fate of officers 
and men in the naval and marine services is kept at the Admiralty. 
Individuals may, however, sometimes be traced by means of different 
pay-lists, and the books of the ships in which they may r _oa -i 
nave •been serving from time to time. The more modern ^ -■ 

documents of this description are kept in the office of the Accountant- 
general of the Navy at Somerset House. Those of an older date are 
at Deptford. Many records connected with the navy from the time 
of Car. 2, have lately been deposited in the Tower. 

On an indictment for forging a will, it appeared from the evidence 
of the clerk of the Ticket Office in the Navy Office, that it was the 
custom for captains of men-of-war to transmit accounts of their crews 
to the Navy Office as frequently as possible, and that those accounts 
were entered regularly in muster-books, containing the names of all 
who were living, dead, or run away. The muster-book belonging to 
the Flamborough was produced, in which there was this entry ; "John 
Thompson, an able seaman, died 22nd August, 1739, at Turtle Bay, 
on board the Flamborough." This was admitted as evidence of the 
death and identity of the supposed testator.(9) 

The book kept at the Sick and Hurt Office, in which are copied the 
difierent returns made by officers of the navy of persons dying on 
board, has been held evidence to show the time of a seaman*s death.(r) 
But an entry in the muster of a person of the same name is not suffi- 
cient evidence that an individual was living at the time.(s) 

The baptismal certificates of the students who were admitted to the 
Royal Naval College at Portsmouth, established early in the last cen- 
tury, were until the abolition of that establishment in 183(J, transmitted 
to the Admiralty, and it is believed were preserved among the records 
of that office : but although the officers of that department will give 
what information is in their power concerning persons connected with 
the service, the means of preserving such information for the use of 
the public, seems never to have formed part of the regular objects of 
the ofBce, and there are consequently no facilities for obtaining it. It 

(9) Rex ▼. Rhodes, I Leach, C. C. Ed. 3, 29. Rex t. Fitzgerald and see ib. 24. BolN. 
P. *i49, a. (r) Wallace ▼. Cook, 5 £fp. 1 17. (f ) 3 Eip. 180. 

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is believed there are at the Admiralty no records of a genealogio&l 
r •631 1 "^^"'^ ^^ •^ •older date than the latter end of the last' 
'-J century.(<) The office for payment of widows' pensions 
will afford some information as to the deaths of the persons whose 
widows have been in the receipt of pensions ; and as proof of the mar- 
riage is required, before the grant of a pension is made, the same 
office may afford the means ofestablishing that fact also. 

Inquiries may also sometimes be usefully prosecuted at the oflke 
of Inspector of Seamens* Wills, in the Navy Pay Office, to which are 
sent certificates, petitions, and other documents rendered necessary 
bv the Acts, 55 Geo. 8, c. 60, and 11 Geo. 4, and 1 Wm. 4, c. 20, for 
obtaining probate of the wills, or administration to the effects of 
deceased seamen and marines in Her Majesty's service.(tt) 

Returns are regularly made to the Home Office from the difierent 
penal colonies, of the convicts living at the dates of the returns, and 
of their places of residence. On application at the Home Office a cer- 
tificate will be granted of the existence and residence of any convict 
at the time of any return. The certificate is in the following form: — 
" Secretary of State's Office. Home Department, Whitehall, 18th 
August, 1835. Upon reference to a return of convicts in New South 
Wales made up to the 8 1st December, 1834, it appears that Richard 
Evans, who was convicted at Montgomery, and transported to that 
colony in the ship Elizabeth, in 1820, was on board the Phoenix hulk 
at Svdney." 

Where the surviving cestui que vie in a lease had been transported 
in 1787 for fourteen years, and it appeared from the register kept at 
the Secretary of State's Office, that at the last muster in 1806, a per- 
son of the same name was living in New South Wales as a free British 
settler, and it also appeared from certificates of persons resident in 
New South Wales, dated in 1816, that he was then alive, the Court of 
r #532 1 ^^^^^^U ^^ ^®'® granted *a commission to examine wit- 
^ J nesses as to the fact and identity of the person.(») 

At the Excise Office and Custom House registers are kept, which 
shew the time of the appointment and discharge, or death, of every 
person in the service of those departments, and also the places were 
they were employed. In a case in practice, the family of an excise- 
man, who was a Dissenter, established their claim principally by 
means of the books from Broad-street, shewing that their father was 
stationed at the several places where their births had taken place. 

The registers of public hopitals will furnish the date of the admis- 
sion and discharge of patients, and of the deaths of such as died whilst 
they were inmates. Except in the case of some few, in genera) the 
most ancient, which have burial grounds attached to them, it is the 
practice to inter deceased inmates in the burial ground of the parish 
where the hospital is situate, and an entry of their burial will of course- 
be found in the parish register. Some exceptions, however, occur 
when the friends of the deceased claim the body and bury it where' 
they please. 

(I) Additiontl MSS., British Museam, No. 9394--9339 contain a naml)er ofo^^oial doco* 
mentfl relatife to the navy from 1558 to 1782, purchased from DnckeU; Noe. 9336^9339 
are lista of the roiral naty from 1546 to 1714, and from 1751 to 1783. 

(v) 8m post, oLap. 10. («) Brown ▼. Petre, 9 Swanrt. 335. 

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By tbe Act relating to county lunatic asylums in England, Geo. 
4, o. 4<H the retorns of tbe patients are required to be transmitted to 
the Clerk of the Peace. 

By the 3 & 3 Wm. 4, c. lOT^ a book of entry of patients is required 
,to be kept by the keepers of licensed houses, a register by the Clerk of 
the Metropolitan Commissioners and Visiters, and an annual report to , 
the Lord Chancellor to be made by public hospitals and charitable 
institutions. Among other particulars, these documents set forth the 
surname and Christian name, sex, and age of every patient, whether 
married or single, date of admission and discharge, or death. 

The Legacy Office in London is supplied by the several courts 
exercising testamentary jurisdiction, with copies of all wills proved 
and certain particulars of all letters of administration granted there, 
^aad is also furnished by the Commissary Courts in Scot- r ^.33 -1 
land with copies of all testamentary deeds recorded in '- ^ 

socb courts.(t0) 

It may happen that the relationship of a legatee is not mentioned in 
the will ; but m this case, if it is within the degrees specified by the, 
56 Cieo. 3, c 184, for the increasing scale of duty, it will appearfrom 
tlw legacy receipt, in which the degree of relationship is stated for the 
purpose of shewing the duty to be paid, and being signed by the lega- 
tee it will be admitted on the footing of a declaration. The shares of 
next of kin are payable in the same manner by the administrator, who . 
is required to take a similar receipt ; the duty being, as in the case 
of legacies, proportioned to the degree of relationship. The same 
observation will apply to receipts for annuities, which contain the 
further particulars of the age of the annuitant. 

The books of administrations at the same office will be more fully 
noticed in a future page.(a;) 

The notices which Bishops' registers contain of marriages, of wi- 
dows' vows, of suits respecting legitimacy, are all of the greatest 
importance in gentilitial antiquities, relating, as when found in these 
registers they generally do, to persons in the superior ranks of society. 
Torre, who spent many years upon the York registers, has many 
valuable additions to Dugdale collected in them.(y) 

The register of Archbishop Zouch, of York, was lost for many 
years ; during that time a family of great consideration were at a vast 
expense in collecting proofs of their ri^ht to a very eminent dignity, 
all of which would have been saved had an early will, entered in that 
register, been known to them. The will is that of John Earl of War- 
ren, and it completely sets at rest the long disputed origin of the 
Warrens of Pointon.(x) 

Bishops' registers will also supply evidence in the form of the affi- 
davits and bonds required for obtaining licenses to marry, p ^.» . -. 
*From these it will appear whether or not either of the ^ -I 

Earties had been previously married. According to C. J. Abbott, 
owever, there is not much weight to be attached to tbe description 
of ** bachelor" and " spinster" in the affidavit and bond. That learn- 

iw) Gwjnne on Probate and Legacy Dutiea, p. 50. (x) Poet, chap. 10. 

(y) Prooeedinga of the Record Conumaaionere, 1832-1833, p. 263. 
{t) Ibid. pp. 191. 263. 

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97tf soBiAos^ XfuiuKntoir 

ed judge said, «^ There is very Kttle to be derived from it. You will 
iod very few instances indeed where the first marriage is recited, and 
the second is said to be celebrated 'for and in as8m*ance, &c./ thoogh 
it ought to have been so."(a) The documents, however, were re- 
ceived, and it is conceived the description is at least good as prmd 
facie evidence. 

The registers or obituaries in the chapels appendant to the several 
colleges are perhaps the most ancient in the kingdom ; the old tiber 
obitaJis of Queen's College, Oxford, has entries of the reign of Edwmrd 

The records of the universities and of cofleges will ntford much 
genealogical information concemin^ndividuals who have been admiN 
ted as students in them. Thus at Trinity College, Cambridge, since 
the year 1810 the admission books contain entries of the date of admis- 
sion, the rank of the admitted, his name, father's Christian namei 
native place, county, school, master's name, age, tutor. Previotisly 
to 1810 the name and rank of the student were alone recorded. Hie 
particulars of these entries vary in diflferent colleges, but it is believed 
that in all the practice of recording some such particulars prevail8.(e) 

In the University of Oxford the admission of every student is i^^gt^ 
tered in the books of the Vice Chancellor for the time being, and of 
course greater uniformity prevails in these University records, than in 
those of the several colleges. The present practice is to enter the 
Christian and surname of the student, his age, place of birth, father'a 
name and description, and the student's place in the family, as first, 
second, or other son. 

r ^-og 1 *In addition to this register, which is called the Book 
^ J of Matriculations, there is also kept a book entituled the 

Subscription book, in which the parties who are matriculated subscribe 
their names to the Thirty-nine Articles. Both these books were pro- 
duced in the Tracy Peerage case, and admitted without objection.(d) 

In Trinity College, Dublin, from an early period, the entries on 
admission appear to have been very full. For the year 1697, is an 
entry of the admission of John Goldsmith, an uncle of the poet, con- 
taining nearly the same particulars as those above stated to be at the 
present day required at Trinity College, Cambridge.(e) 

In addition to the information above stated, the heads of colleges 
are in possession of the proofs of descent of such persons as have from 
time to time enjoyed the benefits noticed in a former page,(f ) as 
belonging to the kindred of founders and benefactors of some cofkg&s ; 
but they are not in general forward to impart those proofs. It may, 
however, be proper to observe, that proof of lineal descent firom the 
parents of some person who has enjoyed those benefits, is generally 
considered sufilcient to establish the title of a claimant to the same 
benefits. The advantages of this consanguinity having rendered the 

(•) Beer ▼. Ward, Printed Report of Trial, Sod iarae, p. 115. 
(6) Grim. Ori;. Geo. S47. 

(c) The entries ctmceming the nme individaal have not alwaya been oonsiatent Ses 
obeerratioofl reapectincf the birth-plaoe of Prior, as stated in three different entries in the 
books of St John's College, Cambrid^ Jolmson's Lives of the Poets, vol ii. dSL 

(d) Traqr Bafony, Mia. £t. €& (s) Prior*s Lift of GebfaKBitli, ml I 

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Off nwip omspH «^ ^ 

kMiiriailge ud ptoof ci it important, varioui pedigreoftiuive from tit)«$ 
la time been published, which will assist in traciD^ it. 

Tbe pedigrees of families of kin to Archbishop Chichele, the founder 
of All Souls, Oxford^ were published in quarto, in 1765,(f) with a sup« 
pkfflfient in 1775. Additional MS. collections are in the possession of 
Francis Townsend, Esq., Rouge Dragon Poursuivant. Manuscript 
fedigraes of founders* kin are in the I^mbeth Library, and extensive 
eoU^tiotns, showing tbe kindred of Wykeham, and of Sir Thoma$ 
Whifte (tbe founders of New College and St John's College,) are in the 
poiseesioo of Charles George Young, Esq., York HerakL Genealo* 
gical information is also contained in Churton's '' Founders of Brazen- 
Dose, Oxford," 1800,(A) and Warton's " Life of Sir T. Pope," 1780. 

*The records of the different Inns of Court will afford r ^^^ -i 
information relative to the persons who have from time to I- -^ 

time been admitted members of those societies from an early oeriod. 
The admissions of William, third son of Lord Tracy, to the Middle 
Temple, in 1649, and of Robert, fifih son of Lord Tracy, in 1673, and 
of Robert and Richard, the eldest and second sons of the last-named 
Robert, in 1700 and 1708, were proved by the production of the 
admission books of that society.(t) 

Among the Harleian MSS. in the British Museum are some trans- 
cripts of certain inquisitions relating to Gray's Inn, containing amongst 
other valuable matter, an alphabetical list of gentlemen stdmitted to 
that society, with the dates of their admission ^om 1521 to 1674 :(i) 
tables of the admittances into Gray's Inn, declaring the names of the 
gentlemen, the town and county whence they came, and the day, 
month and year when admitted from the year 1626 to 1677 :{k) arms 
and names of noblemen and knights admitted to the said society :(/) 
an alphabetical list of all persons called to the bar by the said society. 
This MS. is of singular importance, as it is presumed to be unique, all 
the early records of the society having been destroyed by fire. 

Amoi^ the Lansdown MSS. in the same library, is a list of the 
names ofbenchers, associates, utter barristers, &c. of Lincoln's Inn.(m) 
There is also a similar list of the members of the Inner Temple and 
of the students of tbe several Inns of Court, apparently about the end 
of the reign of Elizabeth.(n) 

The books of a public company are admissible in questions of pedi- 
sree, to shew the description by which a person was admitted into 
me company. The evidence is admissible, not on the ground of hear* 
say from members of a family, but as a part of an act r ^^^ -« 
done : *that the company received the person by a certain ^ ^ 

description at a certain time.(o) 

It may be presumed, that the books of the Colle^^e of Physicians, the 
College of Surgeons, and the Hall of Apothecaries would be admis- 

(g) Stemmste Chiehdeana, Oxford, 1765. 

{k) There it an accotint of tbe kinsmen of Bishop Smyth, and of Sir Thomas Sutlon, the 
feonderB of Brazennose, in Churton's Lives of Smyth and Satton, Oxford, 1800 ; and some 
notices of the family of Sir T. Pope, tbe founder of Trinity College, Oxford, may be seen in 
Wharton's Ufe, 1780. (t) Traoy Barony, Min. E?. pp. 70. 78. 81. 

U) Hari. MSa 1919, foL 5. (k) Ibid. fol. 85w (i) Ibid. M, 162. 

(m) Lttisd. MSS. lOS, art IS. (n) Lansd. MSa 106, art 17. 

(•> Yn Tiiidal,a J^CoOiBs V. Maale,8 Carr. dt P. 504, (34 E.C.L. R.) 

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378 HTmBAOK's wmsmmm or 

sible on the same footingas those of the Corporation of London in the 
case last cited. 

An admission book of freemen in the Corporation of Gloucester 
was put in evidence in the Berkeley case, containing the admissions 
of the sons of Earl Berkeley, in 1791, shewing that the claimant was 
not then called Lord Dursley.(p) 

The admissibility of corporation books has been que8tioned,(f ) and 
in one case they were rejected as evidence of the rights of the corpora- 
tion against strangers :(r) but it seems they are generally allo\i4d to 
be given in evidence where they have been publicly kept as jBUch.(«) 

[ *538 ] •CHAPTER V. 

Abundant sources of genealogical evidence are to be found in the 
records of the College of Arms.(i) The first Report of the Record 
Commission appointed in 1800, enumerates eight different classes of 
these documents.(u) 

1. A series of books called Visitation Books, containing the pedi- 
grees and arms of the nobility and gentry. 

2. Books containing miscellaneous pedigrees and arms of nobility 
and gentry, being entries made in the office, as well during the time 
when visitations were in use, as since that period. 

3. Books of pedigrees and arms of the peers, pursuant to the stand- 
ing orders of the House of Lords of the 11th May, 1767. 

4. Books of pedigrees and arms of baronets, under a royal warrant 
of 3rd December, 1783, *« For correcting and preventing abuses in the 
order of Baronets." These pedigrees and arms had heretofore been 
entered in the course of duty and rule of office in the books before 
alluded to, and not peculiarly appropriated to the order of baronets, 
r *589 1 *^' Books of entries of funeral certificates of the nobility 
L -I and gentry, being attested accounts of the time of death, 
place of burial, and of the marriages and issue of the several persons 
whose funerals were attended by officers of arms or their deputies. 
These books refer to the same period of time as the Visitations. 
There are also some certificates which have been entered within a 
few years. 

6. Books containing accounts of royal marriages, coronations, and 

( p) Berkeley Earldom, Min. Br. 793. {q) How. St Tr. 1 7. 810. 864. 

(r) i H. Black. 93, note (e). (a) 1 Strange, 93. 210. 

(t) The Ck>l!e^ of Arroa, or aa it ia fireqnenUj called, the Heralda* CkAhgt^ waa incorpo. 
rated by lettera-patent aa early aa the Brat year of the reign of Richard 111^ 1483, by Uie 
designation of the King*a Heralda and Paraoi? anta of Arms, with power to oae a oommon 
seal when required in the exercise of their fiiculty ; and by a aacond charter in the aeoood 
year of the reign of King Philip and Qneen Mary, waa again incorporated, when for the 
better custody of the recorda and inrolments of their fiicolty, a building afterwarda destroyed 
in the great fire of London, upon the aite of the present one, was granted to them. Grim. 
Orig. Gen. 951. 

(tt) first Report of ReoordCiHiiinitt«e,App. C.8. 

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BOOKS CRT TBI HObiuie'oeiAaae.' 870* 

7. Books called Earl Marshals* Books, from the time of Queen 

6. Books of arms of the nobility, and Knights of the Garter and 
Bath, and docquets or copies of all grants of arms to the present 

In addition to the above, the Report of the Record Commissioners, 
appointed in 1830, mentions four other classes of records of a similar 

9. A list of knights from early periods, and the only authentic 
record of the names, &c., of individuals upon whom the honour of 
knighthood has been conferred from the commencement of the reign 
of King James I., to the date of the report, (1834). 

10. A register containing the pedigrees and arms of the Knights of 
the Bath, and their respective Esquires, recorded in pursuance of the 
king's command, declared by a statute of the Order of the Bath, bear- 
ing date the 8th May, 1804. 

11. Registers containing arms and pedigrees relating to Scotch and 
Irish families, being the record of certificates and grants of armorial 
ensigns, and copies of pedigrees transmitted from the respective offices 
of the Lord Lyon King of Arms of Scotland, and Ulster king of Arms 
of Ireland. 

12. A series of books termed Partition Books, commencing in 
•the reign of Henry VIII., containing an account of fees ^ i,^.q ■• 
received on the creation of peers, baronets, and knights, I- ^ 
and upon the consecration and translation of bishops; as also for the 
attenclance of the oflicers of arms at royal coronations, funeral?, and 
other public ceremonials. 

The report then goes on to state, " The foregoing may be consider- 
ed as coming under the descriptioq of official records, as they contain 
entries made by the proper officers in the regular exercise of their 
duty ; but the library of the College of Arms, contains also nearly 
1200 other MS. volumes, consisting of copies of visitations, collections 
of pedigrees and arms, transcripts, and abstracts of charters, deeds, 
inquisitions, and other records applicable to genealogical and antiqua- 
rian researches ; comprehending the accumulated labours of Glover, 
Camden, Vincent, Phillpot, Walker, Dugdale, Le Neve, Dale, Brooke, 
and Townsend, and those of some other distinguished and able mem- 
bers of the college."(») 

If by the expression, " official records," above quoted, is meant to 
be implied that the various classes of heraldic documents enumerated, 
possess the character and qualities of official records, so as to entitle 
them of themselves to be admitted in evidence, it is conceived that 
such a proposition is not supported by legal authority. Some of them 
undoubted! v possess that character ; but others, though useful for pur- 
poses of information, if admissible as evidence are, at the best, but of 
a secondary nature. 

In the earlier cases, we find that heralds' books have been often 
rejected. One obvious ground of objection to the admissibility of such 
entries, was the circumstance of their being ex parte statements. 

(o) In Uie Catalo^us, lib. MS. AxigliflB et IliberniQ, Oxon. 1697, vol. iL p. 175, there ib a 
caUlogue of the manofloripU in the College of Armi i it ie probeblj imperfect. 

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890 hubbaok's svidehos of budcssaioii. 

Tbcffiy a esse is cited in Yin. Abr.,(u)) \rhere it was held that an 
entry in the Heralds' Office shall not be allowed good evidence to 
r *541 1 P^^^^ ^ pedigree for an heir^ because they are not matters 
L J of ^record, but allowed only as circumstantial evidence* 

And in another case in ejectment before Fortescue, at the Sarum 
Assizes^ 1719, heralds' books were not allowed as evidence to prove 
a. pedigree, for he said it was made up by the party who signed it, 
and returned it into the office, and not the duty of any public offi* 
cer.(a:) In evidence to a jury to prove J. S. to be heir to J. S., the 
court would not accept of a pedigree drawn by a herald at arms as 
evidence, nor would they suffer tl^ jury to have it with them.(y) 

It does not appear what was the exact nature or description of the 
l^eralds' books which were rejected, but it seems probable that they 
were such as some of those included in class 2, of the above cited report- 
la a case from Plowden, cited by ymer,(z) it appears that heralds' 
books were admitted to prove cosinage.(a) 

Some of them, however, are of undoubted authority, amongst which 
the visitation books claim the first place, in respect both to their offi- 
cial character, and to the copious supplies of minute genealogical 
information which they will be found to afford. 

These visitation books contain thepedigrees and coats of arms of 
the nobility and principal gentry in England, roade out by the heads 
of the respective families, or some persons on their behalf, and deli- 
vered to^ne heralds, who bv virtue of commissions from the crown, 
were authorized to require them to be made out, proved and delivered. 

By the terms of the royal commissions the heralds were authorized 
to make circuits through the different counties within their respective 
provinces, and *^ to peruse and take knowledge, survey and view of 
all manner of arms, cognizances, crests and other like devices, with 
r ^^^2 1 ^^^ notes of the descents, pedigrees, and marriages of *all 
*■ J the nobility and gentry therein ; and also to reprove, con- 

trol, and make infamous, by proclamation, all such as unlawfully and 
without just authority, usurped or took any nabie or title of honour or 

The first commission proceeding from royal authority,(6) was 
issued to Thomas Benolte, Clarenceux kin^ of arms, in the 20th of 
Henry 8th, 1528-9, by warrant under the pnvy seal, empowerir^ him 
to visit the counties of Gloucester, Worcester, Oxford, Wilts, Berks 
«od Stafford. 

(to) 12 Vin. Ab. 119. (x) Ibid. 

(y) Ploroptoo ▼. Robinson, 1 RoL Ab. 686, nl. 2. 

(z) Vin. Ab. 12. 1 19 ; S. C. I^er, 319 b. 

(•) Hie ottM of DeUiick, Gtrter Kin^t-Arma, temn. Eliz. anno 1575, for making a Talaa 
podigreo Ck Gtorge Rotherain, Eaquiro, asr&inat Uie Earl of Kent, doth manifetuy show 
that a pedigree is not always to be relied on, because it has been compiled by a bersld, and 
bears the high-eoondinr attestation of even a king-at-arms^—fiee Collins on Bar. p. 141* 143. 

(6) ViaitatiGOs have been stated to commence as earlj as the reign of Hen. 4, from tho 
Mserted existenee of a MS. in the Harklan Collection, entitled "* VisiUcio facta, per Marts. 
tthaUum de Norroy ult ann. Henricl 4ti 1412," a period of seventy years before the incor- 
poration of the Heralds* College. It is clear, however, on referring to the MS. in the Har- 
leian Collection, (firom which these words are selected) that an examination would have 
shewn the incorrectness of calling it a visitation in 1412. The MS. is a folio, consisting 
of kxwe pedigrees and misocllaneous heraldical scraps, some written as late as 1620 and 
f6^, pasted on the leaves of a printed book, the contents whereof are very fully detailed ia 
the Catalogue, (1808.) vol i. p. 592, na 1196. Grim. OHg.Gen. 252. 

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Similar cotnmissioiur were usually granted to the succeeding pro* 
Tinciai kioss of arms toon after their admission to the office, from that 
period until the 2nd year of James 2, (I6869) when the last was issued 
to Sir Henry St George, then Clarenceux : the returns tinder which 
commission do not appear to have been perfected till 170S-4» as 
entries of that date appear in the visitation oif London. 

The commissions for these surveys granted to the kings of arms, 
gave them power to appoint deputies, and in very many instances the 
Tisitations were made oy the heralds they delegated in their names. 
The nobility and gentry were summoned in each county, (under war* 
raDt8,(c) addressed to the bailiflfs of the hundred,) to give an account 
of their family, and produce their title to the arms and. crests they 

The subject of visitations attracted the attention of the commission* 
ers for executing the office of Earl Marshal in 1668. r ^^^ , 
AnKMagst *their orders is one respecting " the orderly and *- J 

regplar course" to be observed at visitations, which contains a pro- 
vision that ^ in all entries of descents in visitations, the said provincial 
kings of arms and their deputies, shall not enter or register more 
descents or collateral bramches with their hatches (unless the same be 
nMule out by deed, evidences, or other authentic proof,) then that the 
partie appearing shall either probably affirm of his owne knowledge 
to be true or manifest that he hathe received from his parents or neer 
relations, or which shall be attested by one or more persons of good 

Suality of the neighbourhood, or some other credible testimony. And 
lat in all such entries the times of the deceases of the defunct, 
together with the several a^es of the other persons then living, and 
therein named, (if it may be,) as also extracts of the proofs produced 
for making out the same descent shall be inserted."(a) 

It is obvious that where the instructions contained in these com- 
missions and orders were fully acted up to, a very copious, and acco* 
rate genealogical history of the principal families in the kingdom 
would be compiled ; and the visitations being from time to time re- 
newed, we may expect to find these pedigrees forming complete 
chains of descent for many generations. 

The authority with which the heralds were intrusted to call for evi* 
dences of the pedigrees produced to them for enrolment,(6) would, if 
duly exercised, enable them to ascertain the accuracy of such docu- 
ments. And the visitation books accordingly bear internal evidence 
of general correctness. 

Errors have, however, occasionally intruded into the Visitation 
Books. And in one case, Holt, C, J., speaking of Heralds' books, 
said, they did not deserve much credit, because they were so negli- 
gently kept(/) 

♦In the Lansdowne MS. 265, fol. 48, there are entered r ^,.. -% 
the proceedings upon a reference by the deputy of the »- J 

Earl Marshal to the College of arms, of complaints of the gentry of 

(c) Copiet are printed in Noble and DalUway. (<f) Soot Barony, Mb. fiv. 9B3. 

(e) In the Appendix will be found oopiea of the aimimoaiee iwned by the heralds to per* 
lOM to attend with their pedigrees, evidences, dte. which will shew the nature of the proqfr 
vpm Che aoliiority of which the pedigrees were enrolled. 

t f) Steyaer ?. Bar|pesaee of Dr<ntwich, Skiii.^e33. 

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S88 HUBSAOK^S IVX PKW Cg OF svcoxsooir. 

. Shropshire touching a false pedigree of Daniel Wycharley, entered 
in the visitation of that county.(^) 

In the earlier visitations Httle more is recorded than notices of the 
arms and accounts of the lineal descending line of the family; but 
they afterwards become more full, and often contain particular state- 
ments of the collateral, as well as the lineal descendants, supported by 
extracts from family evidences. The visitations are commonly headed 
by an emblazonment of the armorial bearings of the family, and occa- 
sionally further illustrated by drawings of seals ; they are also in 
most cases verified by the signature of the heads of the families, and 
not unfrequently by that of persons signing on their behalf, and some- 
times also by the additional signatures of other members. 

It seems to have been customary at visitations to take what were 
called church notes : that is, copies of monuments, escutcheons, arms 
upon the windows, &c.(A) It may be a question whether if the oriai- 
nals be defaced or destroyed, these copies taken by the heralds in the 
execution of their office would not now be evidence. 

Most of the original visitation books are in the College of Arms. 
Transcripts and copies of many of them, and some originals, are 
however in existence in other . 
r *545 1 *The return made bv J. Planta, Esq., the principal 
"- J librarian to the British Museum, to the select committee 

on public records, states that many of the pedigrees contained in the 
visitation books in that library, are the originals signed by the heads 
of the families.(i) Although these books, not being m proper custody, 
might not be admissible as direct evidence, yet upon giving proof of 
the signatures they might be used as evidence of reputation.(ft) 

It appears from the evidence of Mr. Townsend, Windsor herald,(Z) 
that so late as the time of Sir W. Dugdale, it was the common prac- 
tice only to deliver fair copies of the visitations to the College, the 
herald himself retaining tne originals. Upon a representation by 
that body of the evils which might ensue from such a practice, Sir 
W. Dugdale delivered to the College all his original visitations. (m) 

(g) See aim the Canioys Barony, Min. E? . 56. 838. 

(A) In Uie Cole MSS. Brit. Mas. vol. ii. p. 753, b a oojiy of church notea taken upon a 
visitation of Cambridrafhire in 1684. 

(t) In Gough'a Collectanea Coriosa, p. 270, there is a complete Ibt bv Anstia, Garter- 
King-ofArms, of all the Visitation Books of the several counties of England and Wales, 
with references to their places in the Heralds* College, the Harleian Library, and other de- 
positories ; and a notice of nnmerons private collections, and collectors of pedigrees, arms 
and charch notes, in different counties. A tracer of pedigree will find thU tract a osefbl 
index to the above interesting sources of information. Catalogues of the vistations yrill 
also be found in Dallawaj*s Heraldry, Moules*s Bibliotbedi Heraldica, and Nicolafi*s Cata- 
logue of Heralds' Visitations, 1824. This last contains the most accurate information. 
The Durham visitations ibt 1575 and 1614, and the Middlesex visitatioa for 1633 have been 

(j) See First Report of Select Committee on Public Records, p. 390. The original visi. 

' tatioas of 1620, and Wiltshire, Somersetshire, and Dorsetshire, 1623, are in the Briliah- 

Museum, and transcripts exist in the College of Arms. Grim. Orig. Gen. 255. Besides 

these, there are visitations preserved in the Ashmolean Collection, and the library of Queen's 

College, Oxford, and Caius College, Cambridge. 

{k) See oer Pratt, C. J., Pitton v. Walter, 1 Stnu 162. 

(f) Zouche Baronj, Min. £v. 147. 

(m) In the life of Sir Wm. Dugdale, it is mentioned that be was remarkable for the care 
with which he made his visitations, ** taking exact notice of all collaterals ;** and also ka his 
letl in de&dsg fiotttMOt and irregular tab&ts and monuaients. 

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,• BQOics or turn asauus* mi,hMa% JM 

It hts'been sltted that the vigitatioo books are of authority as evi- 
dence in the nature of official records. It does not appear that their 
adnnissibility has ever been judicially questioned. 

In the case of the Earl of Thanet v. Foster, copies having been 
refused, the books themselves were afterwards produced and allowed 
in evidence, being ancient^ to prove the pedigree of the plaintiff.(n) 

la another case it is stated the visitation book of the county of Wor- 
cester was allowed in evidence, being an originaI.(o) 

And at the Surrey assizes, in 1719, to prove a pedigree, Pratt, C. 
J. admitted a visitation in 1623, made by the heralds, en- r ^540 -1 
tered *in their books, and kept in their office to be read in *- ^ 

evidence. He also admitted the minute book of a former visitation, 
sL^ed by the heads of several families, which was found in the library 
of my Lord Oxford.(/>) 

Again, at the Norwich assizes, in ejectment, a book out of the 
Heralds* Office was produced to prove a pedigree. Objections were 
made to this evidence. The Chief Justice at first doubted, but as it 
appeared that this pedigree was taken upon an inquest made on a 
visitation, he allowed it to be good evidence, and it was accordingly 

The grounds upon which these books are admitted as good evi- 
dence may be collected from observations addressed to the counsel in 
the De Lisle Peerage case.(r) 

The counsel were informed that the House had made a distinction 
in receiving as evidence books from the Heralds' College; that when 
those books contained the substance of the information obtained in 
consequence of inquiries which were made under judicial autliority, 
when the heralds were in the habit of travelling round the country, 
and examining the witnesses, they were held to be evidence, and had 
been produced in committees of privilege ; but that when that ceased, 
.and tne books were mere entries of that which parties had chosen to 
have entered in those registers, without any due authority being shown 
for the entry, they had not been received in evidence. 

Conformably with this principle, it has been the practice of the 
House of Lords to require the production of the original commission 
under which the visitation was made, before admittmg the visitation 
book itself to be put in evidence. This rule, however, is sometimes 
relaxed. Thus, on the claim of George Leigh to the barony of Leijjh, 
the visitation book of Warwick, 1683, was put in evidence, it being 
.proved by Garter that he could not find the commission.(5) But it 
would seem that the rule has not always been in ♦force r ^^.^ -• 
in the House. In the year 1812, on the claim of Viscount j- J 

Kiimorey to vote at the election of Irish Peers, the commission under 
the great seal to take a visitation was put in, being proved to have 
been examined with the enrolment of the record in the Rolls' chapel. 
Francis Townsend, Windsor herald, said that he had not been in the 
habit of producing authorities of thaX kind at that bar, because the 

(11) 9 Jonat, 334. («) Matthews ▼. Port, Comberbach, 63. 

( •) fliUm w. Walter, 1 Stra. 162. {q) Norrn t. Le Ne^e, 9 Barnardiston, SML 

(r) Min. Et. p. 12. (a) Leigh Btronjr, 1839, part 3, 138. 

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w4 HVBBiot's KymtudB Of suuttwibii* 

fact of the heralds' making vwitalions is too wellvktiowii in fliat bouie 
to need that He had produced them hi Courts of Law.(() 

Where the commission has been proved^ the connexion between 
that, and the visitation book relied on, must be shown. This is usu- 
ally done by the title of the book and the signature of the officer of 
arms, who made it. In one case, after proving a commission from 
Jac Lf to Clarencieux, to visit, a book marked C. 16, was produced 
from the Heralds* College, which was stated to be the original visiiap 
tion of Gloucestershire for 1623, taken under that commission by Mr. 
Camden, who was Clarencienx at that time. The pedigree, in sup- 
port of which it was tendered, was signed by two persons bearing the 
ramily name, but not proved to be members of it. The book was one 
of a set, but had no title, and no official signature ; and the only evW 
dence that it was compiled under the authority of the royzl conuni»- 
sioner was the fact of its having the same appearance, and having 
consecutive numbers with other books, which were undoubtedly au- 
thentic. There was in the book a reference to the visitation under 
the head of Tewkesbury. The Attorney-general at first objected to 
this book being put in, but afterwards he stated that having ascertain- 
ed that the facts contained in the pedigree entered in it, were perfectly 
consistent with the facts appearing in other evidence, he had no objec- 
tion to the same being put in, if it appeared to their lordships that the 
book was sufficiently identified as one of a series of returns to visita- 
tions. The pedigree was allowed to be put in.(u) 
r *fi4fi 1 '^ '^ "^ necessary to the admissibility of these books 
I- -I that the ^statement of pedigree relied on should be signed 

by a member of the family. In the Roos claim of peerage in 1804» 
the original visitation of Lincolnshire was put in evidence, in which 
the pedigree of the Earl of Exeter was signed by ** Robert Gibbons, 
for my master David Cecill.*'(v) Many other instances of a similar 
nature are to be met with in the minutes of evidence in various claims 
of peerage.(t£>) 

Neither is it required that the handwriting of the party who signed 
the visitation should be proved. In the Leigh Peerage case, upon 
ofiering to produce evidence of handwriting to prove the signature of 
Thomas Lord Leigh, counsel were informed that this was unnecee- 
sary, as it was the duty of the heralds to see the person subscribe his 

The official nature of these records is the around upon which their 
authority rests ; copies of them therefore, altnough made by heralds, 
do not stand on the same footing as to admissibility. 

It has been before observed, that many such copies are in existenoe 
in the Heralds' Office and elsewhere, which have been often unsuc- 
cessfully tendered in evidence. 

In one case alreadv cited, the copy chart of a pedigree extracted 
from the heralds' books and sworn to by Sir Wm. Dugdale, and **l€s. 
autres herault$" was refused in evidence, the Court holding that the 
books themselves should be produced.(y) 

A KilaorBy Vimmi)t7,BIis.ET.pb7. («) IVtcy BtroDy, Miii. E?. 1& 

(o) Root Buony, Min. £▼. p. ISa 

(to) Sea Camoys Barony, Mia. £▼. 1^ 174. Leigh Barony, Min. E?. 138. 

(«} Mia. £▼. pt. S, 140. (y) Earlof Tlunet t. FoMcr, 2 Jones, 234 

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Sa ia the case of Matthews v. Port^ it is said that copies had often 
been refused.Ci) 

Azid the rule of the House of Lords is the same. 

In the Chandos Peerage case, a copy of the visitation of Gloucea* 
tershire made by Yiucent, who was a herald* and bequeathed to the 
office by Ralph Huldon, in the year 1684, was tendered r ^^g -i 
in •evidence for the claimant. Mr. Townsend, Windsor ^ J 

herald, was asked whether such a book as this had ever been given 
in evidence either in that House or on a trial at law ; and ahhouffh he 
said he remembered attending at Stafford in 1786 or 1787, with one 
of Vincent's copies of a visitation of Staffordshire, the original of 
which was made in 1589, in order to establish the pedigree of a family 
of the name of Macclesfield, in a contest for the Manor of Moore, the 
book was rejected.(a) * 

So in the Kilmorey case^ a book in the handwriting of Augustus 
Vincent, purporting to be a visitation of Salop in 1623, was tendered^ 
but it being proved that this was only a copy of the visitation which 
Vincent enlarged, by putting into it what he found in other visitation 
books and papers, it was rejected.(&) 

It does not appear that there is any distinction as to the nature of 
the matters of pedigree of which the visitation books may be given in 
evidence. Not only the simple facts of births, marriages apd deaths* 
but the more complex ones of heirship, number of children, or failure 
of i8sue,(c) are within their scope. 

In the Huntingdon Peerage case, to prove that William Hastings 
married and had issue, the pedicree was produced, signed by Theo- 
philus, seventh Earl, in which he is entered "Willielmus Hastings 
Clericus,'* with the mark of an a^row, which Mr. Townsend stated, 
denotes that he had issue, (tf) 

But in the same case, after the claim of the petitioner had been 
made out, and he had taken his seat, further evidence was adduced, 
in consequence of some doubt of the Attorney-general, whether an 
ancestor of the claimant had not died without issue male, the fact of 
his having such issue male having been proved principally by the evi- 
dence only of two visitations.(e) 

So also in another recent case it seems to have been r ^.^ -. 
expected *that the fact of heirship should be substantiated »■ J 

by further evidence than the statement of a visitation alone.(/) 

Visitation books have been even used to disprove an alleged mar- 
riage by the negative evidence of its non mention. Thus in the Leigh 
case, the visitation of Cheshire, for 1668, was produced for the pur- 
pose of disproving an alleged marriage of Christopher Leigh with one 
of the daughters of Sir Robert Cotton, by showing that the visitation 
mentioned ten daughters of Sir Robert Cotton, six of whom married 
persons of other names than Leigh, and the other four died young, (g) 

(c) Comb. 63, cited sap. p. 545. (a) Min. Er. p. 132. 
(&) Min. Et. p. 8. 

(e) Claiin of A. L. Uojd to tho Btfony ofLomlej, Lords* Joorn. voL 9S, SSS. 

(d) BelTs Hunt Pmti^, 343. (e) Ibid. 375. 
(/) HasClsp BtroDj, Min. Ev. 307. 

(#) Leigh Barony, pt. 2, 138. 

Mat, 1845.— 18 

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486 iRmAOx's vfummm ot mnommom* 

But this sort of evidence is obviously less to be depended on than the 
statement of positive facts. 

Thus, the enumeration of a certain number of children only, is not 
conclusive of the fact, that there were no others : since many cases 
have occurred in which such defective returns have been made. 

Amongst the records in the College of Arms, forming the second 
class, mentioned in the Report of the Record Commission, are varioue 
miscellaneous volumes, entitled modern pedigrees, which contain the 
air record of pedigrees of families, proved in continuation of former 
entries in the visitations, and of such others, though not before entered, 
as produce proof in support of their descents. These records com- 
menced about 1089, 1 Wm. & Mary. Some few pedigrees are en- 
tered durinff the periods in which the visitations were in operation 
under the Larl MarshaPs orders, or those of the chapter ; sometimes 
in cases where the parties had been absent from their counties, whea 
the heralds were making their surveys.(A) They come down to 1826 ; 
others are copies of large pedigrees in which all the branches of an 
extensive family are brougnt together, compiled by divers officers of 
arms, and authenticated under the common seal of the corporation. ^ 
r •fiSl 1 '^ ^^^ ^^^ appear what proofs were requii^ or exhi- 
*• J bited in ♦support of the pedigrees thus registered in the 

college: the modern practice has not been very strict m that respect 

It IS stated to be customary at the Herald's College, on registering 
pedigrees, to obtain the signatures of individuals to verify them. They 
admit as sufficient evidence for this purpose, the statement of a living 
individual respecting the marriage and deaths of his grandfather and 
grandmother and their births, as well as the marriages and deaths of 
all the generations descended from them.(i) Perhaps the signature of 
the head, or other members of the family may have been always consid- 
ered sufficient to establish the correctness of the pedigree so attested* 

It was suggested in a former page( j) that documents of this des- 
cription cannot be considered as evidence of a primary character. 
The House of Lords have not always rejected them : but the modem 
decisions have been unfavourable to them. 

In the case of the barony of Willoushby of Parham, a manoscript 
book from the Heralds' Office, called "Arms and Descents of Nobility" 
marked £. 16, was received as evidence of pedigree.(A) This book 
was offered in evidence in the case of the barony of Zouch of Haryng- 
worth.(/) but the counsel not being able to shew under what authority 
the collections entered therein were made, and resting only upon the 
circumstance of its having been before received, the Committee of 
Privileges held it inadmissiDle.(m) ^ And other books from the Heralds' 
Office possessing no higher authority were also rejected. 

In the Berkeley Peerage case,(7t) it was proposed to read an entry 
in the original registry ol the College of Arms of the marriage of tw 
Margrave and Margravine of Anspach, at Lisbon, in the kingdom of. 
Portugal. It was stated that they both came voluntarily to the office^ 
and desired this certificate of their marjriage with the pedigree of tha 

(A) Griob OHf . Qm. 9S9. (I) Grtnfoy on Evidence. 987, n. 

( i) Sop. n. 540. (k) CruiM on Dig. ^ I . 

(01Ik.Ef.«tf. (m) Ibid.S06. (ik) 4itr ^ 

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MOU OV tttf VHLttSB^ aDLUHM» *9Bff 

^MargraTe to be entered, in order te make it as autbentie as iMf 
could. They both signed it, and produced the orighial oerttfioai#. 
The bouse refiiMd to receive this evidence. 

*Where these pedigrees have been signed by members r ^^^^2 1 
of the family, upon proving such signature, they may be '^ J 

iMed as secondary evidence in the nature of declaratioBs and reputa- 

In the Kilmorey case there was produced to the House a book of 
entries of pedigrees from the Heralds' College extending from 1697*8 
to 1758, containing pedigrees of persons who having found that their 
ancestors had formerly recorded their pedigrees, had been desirous of 
continuing the same up to their own time. It was in the handwriting 
of a herald, but was signed by several members of the family. A 
witness was examined to prove some of those signatures ; and upon 
that evidence the pedigree was admitted.(o) 

' In the same case a pedigree found among the muniments of the 
family and appearing to have t>een compiled by heralds, but not signed 
by any memoer of me family, seems to have been considered inad- 

The book used in the Kilmorey case was afterwards prodtioed m 
the Huntingdon case, to prove a pedigree which was signed b^ Selina, 
widow of Theophilos, ninth Earl of Hunlmgdon.(7) And similar ped- 
igrees were admitted in the case of the Hastings Barony,(r) and in 
the claim of Lord Rokeby to vote at the election of Peers in Ireland, 
in 1830.(s) 

In all these cases, the question of admitting or rejecting the docii- 
ment turned upon the same point, namely the proved signature of 
some member of the family; thus establishing a clear distinction 
between records of this nature and the visitation books, which as we 
have seen, are admissible without such proof. 

In the claim of Thomas Twisleton to the Barony of Say and Sele 
in 1761, it was stated that the pedigree of Fenys, as stated in the 
petition and case, wouM be proved by various ancient books in the 
CJolIege of Arms; viz. Baronage, marked Black Book, Baronrfge,No. 
tO; Vincent, No. 2 ; Visitation of Oxfordshire in ♦ISOe, p ^-^g , 
■ and Visitation of Oxfordshire in 16S4. It was further ^ -* 

stated, that the marriage of John Twisleton with Elizabeth, daughter 
and co-heir of James Fiennes,(0 might be proved by the said Baron- 
age, called Black Book ; by Vincent's Baronage, No. 20; and Baroq- 
f^ marked Arbor Honoris ; all in the library of the said College. 
Tne claim was allowed, but it does not appear whether the Baronases 
mentioned were admitted, nor what was the character of those books. 
Three years afterwards a Black Book of Baronies, probably one of 
the same books, was produced In the Howard de W alden case, and 
an extract read from it.(«) 

The third class of Heraldic Records mentioned in the Report of the 
Commissioners, consists of Peers' pedigrees taken under the standii^ 
order of the Howe ef Lords, made in 1767. For the history and par- 

M KflsMrerVitMttiny, Mia. Bv. puts. (») Ibid. ^14 

(f ) Bell*s Hunt Pteraflfo, 33a (r) Mia. Er. SMG. 

(•) IMaby Bum, Mia. £t. 16. (I) Sty aod Sale Barooy, Mia. £f . VIX 

(a) Howard dt WakleB Buooj, Mia. E?. p. IC 

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888 HUBBAOft'8 vrwoiCB or luocntioir. 

ticulars of that order, the reader is referred to a former part of this 

These pedigrees were duly taken, and after having been proved at 
the bar of the House of Ix»rds were registered, until the rescinding of 
this useful order in the year 1802. The last entry which appears in 
these registers, is a blazon of the arms of Lord Kedesdale, who was 
created apeer in that year. In the pages intended for the genealogies 
of Lord Thurlow and some few other noblemen, no entries but that of 
their respective coats of arms have been made.(ti7) 

The pedigree of James, Duke of Chandos, deceased, proved before 
the Committee of Privileges, on the 28th day of February, 1774, and 
duly certified by his Grace on the same day, pursuant to the above 
standing order of the House, was read for the claimant in the Chan- 
dos case«(a?) 

With reference to the Patents of Baronets it may be observed, that 
previous to the date of the Royal warrant of the 3rd of December, 
1783, there was no separate register in the College of Arms peculiarly 
r «664 1 *PP''^P^'*^^ ^^ ^® order of Baronets ; neither ♦were the 
L J patents of Baronets registered at the college before that 

time : the first registration took place under the authority of that order, 
and the practice of recording every patent at length continues to the 
present day.(y) 

Since 1783 all the patents of Baronets have under the direction of 
a royal warrant been transmitted from the Crown Office to the reg- 
ister of the College of Arms, to be recorded in books kept for that pur- 
pose, before delivery to the grantors ; and the pedigrees of the Baron- 
ets are by the same warrant ordered to be recorded before the pass- 
ingof the patent. 

The title of the documents described as Funeral Certificates denotes 
the occasion of their production and the 'information they contaie. 
The conclusion of a lite seems to suggest some inquiry into its history, 
and the descent of a man, the alliances he has formed, and the pos- 
terity he leaves, have generally engaged attention at the perioa of 

These funeral certificates contain attested accounts of the time of 
death, place of burial, and of the marriages, issue, and frequently the 
collateral branches of the several persons whose funerals were attend- 
ed by the officers at arms, or their deputies, illustrated with the armo- 
rial bearings of the deceased. The entries in the funeral certificates 
are so full and authentic, that they are of great value to those families 
whose ancestors are recorded in ihem.(z) 

The nature and authority of these records were thoroughly investi- 
gated in the Fitzgerald claim to the barony of Roos, from tne evidence 
in which case the following statement is chiefly taken.(a) In 1568, 
the Earl Marshal issued certain orders to the officers of arms, amongst 
which was the following regulation with respect to funeral certifi- 
cates : — ^* Item. It is also ordered and decreed, by the said Earle Mar- 
shall, that every King of Armes, Herald or Pursuivant, that shall serve 

(o) Sqik p. Sa (to) Grim. Ori?. Gen. 859. (ar) Mia. Ehr. p. 9S. 

(y) Put>lic Record Commitet Report, 1897, App. 107. 

ix) Grim. Orif . Geo. USS. (a) Rtot fitrooj, Mia. Ef . 183. 

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at any Funerafi as is aforesaid, shall bring into the Library or Office 
of Armes a true and certaine *Certificate, under the hands r ^^ «« r 
of the Execulors and Mourners that shall be present at the ^ ^ 

said Funeral!, conteyning the day of the Death, and the place of the 
Buriall of the person so deceased. And also to whom hee or shee 
niarryed, what issue they had, what yeares they were of at the time 
of the said Buriall, and to whom they were marryed, to the intent that 
the said Certificate mav be registered, and soe remain as a perpetuall 
record in the said Office for ever." Among certain orders of the 
Lords Commissioners for executing the Office of Earl Marshal, in 
1668, there was one to the same eSect{b) 

In pursuance of this order, the certificates were registered in books. 
It sometimes happened that the representatives, or others of the family 
of the deceased nave come to the office after the registration has been 
made, and have put their names to the registration. Previously to the 
year 1674, the original certificates were not preserved, but since that 
year, the originals of the nobility are for the most part remaining in 

Wnen heraldic influence began to decline, these funeral entries 
were also neglected, thoughythe certificates of some are recorded as 
late 1710, 1713, 1717. There is one for G. M. Leake, Esq., Garter- 
King-at-Arms, in 1735, and another for Evelyn Duke of Kingston in 
1773. Those of Nelson and Pitt have not yet been entered.((0 

Attejnpts were made at different times to procure Acts of Parliament 
for recording the descents of the nobility and gentry, but without suc- 
cess. In the 6 & 7 Wm. & M. however, a bill of that description, in 
the shape of a money bill, was passed. 

By section 50, (e) for the better preserving the genealogies, descent, 
and alliances of the nobility and gentry, it was enacted, that upon the 
burial of every person charged with the duty of 205. by that act, 
(except such as were charged only in respect of their having 50/. per 
annum in real estate, or 600/. personal ♦estate,) the party r gego -i 
liable to pay the said duty should deliver to the collector ^ J 

appointed by that Act, a certificate in writing under his or her hand 
and seal, engrossed in parchment or otherwise, expressing the name, 
surname, title, quality, oflice and employment (if any) of such deceased 
person, with the age, time of death, place of burial, marriages and 
issue, and the ages of such issue, together with the names, surnames, 
titles and qualities of the parents of such deceased persons, which cer- 
tificates shall be transmitted to the receiver-general, his deputy or 
deputies, who shall deliver them to the King's heralds and pursuivants 
of arms. And the said officers of arms shall thereupon forthwith 
number, schedule, and digest the same in alphabetical order in books 
to be provided for that purpose, and shall fill up the oriorinals in the 
(College of Arms for public use, and shall be answerable ior the keep- 
ing thereof without any fee or reward for so doing.(/) 

As might have been expected, the last provision of this clause was 

ih) Root Baronj, 330, 331. (e) Ibid. 184, 185. 

(rf) GriiBL Oric. Gen. 255. («) 6 &; 7 W. d& M. o. 6, s. 50. 

(/) Tftiit fection does not appear la the statutoa at large. 

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Altai to Ub efficiency. It was, in facti never carried intoeflect,(jr) and 
the act itself expired on the Ist of August, 1706. 

The modem practice of the House of Lords regulatinc; the adnois* 
sion of these certificates, seems to be analogous to that which prevails 
with respect to visitations. The Earl Marshal's order, being the 
authority under which they were made, is first proved, and then the 
certificate is allowed to be put in. This was the course folbwed in 
the Roos case, and on subse^quent occasions.(A) 

It has been stated that all the certificates now in the Heralds* Col- 
lege are not originals, and it seems to have been doubted whether such 
as are not original can be received in evidence; absolute proof of their 
oriffinality was apparently not required in the earlier cases. 

In the Howard de Walden Peerage case in 1784, an ancient book 
of funeral certificates, believed to be an original, as in one of the pages 
r *657 1 ^^ ^^^ signed by the Earl of Suffolk, was produced and 
I J ♦received in evidence, to prove the death of the first Earl 

of Suffolk in 1627.(0 

The certificate in this case may have been the original return ; but 
the same book was afterwards tendered in evidence in the Roos 
case,(^') from the proceedings in which it is apparent that some of the 
certificates registered in that volume were not originals. 

In the last mentioned case, counsel stated they would prove a fur- 
ther part of the pedigree by the heralds' funeral certificate of Philip 
Earl of Pembroke, taken in the year 1649, and having first produced 
the original deed under the hand and seal of the Duke of Norfolk, Earl 
Marshal in 1566, establishing certain orders for the regulation of the 
officer of arms, under which such certificates were taken, a book 
intituled, *• Funeral Certificates of the Nobility" was produced. It 
was objected to by counsel, as not being the original certificates, and 
although it was stated to have been produced hefore the House ii) 
several previous cases,(if) the receiving of it as evidence was post- . 
poned, until a volume ot funeral certificates, and such original certifi* 
cates as remained in the heralds' office were produced.(/) On a sub- 
sequent day, counsel having produced a partition book of the heralds 
contamin^ an account of the partition of all the fees divided between 
the heralds on occasion (inter alia) of funerals, wherein was entered 
the partition of fees on the funeral certificates proposed to be read, 
and naving produced such originals of funeral certificates as remained 
in the Heralds' Office, and shewn that they were correctly registered 
in the book offered in evidence, the counsel was informed that upon 
the facts proved, the book intituled ^ Funeral Certificates of the Nobi- 
lity" miffht be read, for the purpose for which it was oflered in evi» 
dence, the Attorney-general not objecting thereto.(m) 

On another occasion also a book of funeral certificates was proved* 
It was stated by the counsel that the originals were signed by the 

ig) See Narratiro of Heralds by Garter, delivered to the Houte of Lords. Hanr. MSS. 
494. • 

(A) Roos Barony* Min. Ev. 183. Vaux Barony. Min. Ev. 135. Camoyii Otrony, Min. 
Ef. 67. (i) Min. Et. p. 16. {j) Min. Er. p.d04. 

ik) The Bantmrr, Clinton, Beaumont and Howard de Walden eaeee were ouetod. 

(i) Min. £v. 18& (m) Wd. 330 

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iriaticmf efih^ deceased, and tbiay vten then copied *ioto p ^.^g <| 
the book then tendered : that the book itself was not sign- L J 

ed» and that the originals remained in the College of Arms. The book 
was admitted.(n) And if it is proved that search has been made for 
the originals without success, the copies may be put in evidence.(a) . 

From what took place in the Braye Peerage case, it seems to hav^ 
been sometimes considered that the admissibility of funeral certificates; 
depends on their bearing the signature of relations of the deceased. (;))^ 
In the Vaux case, however, the objection was made that the signa- 
ture of executors or relations was wanting, but afterwards the certifi- 
cate was received as an official document taken by those whose duty, 
it was to make it up.{q) 

Theise certificates may be given in evidence to prove, not only the 
deaths of the persons on whose funerals they were made, but also the 
other matters of pedigree stated in them.(r) Perhaps the true distinc- 
tion to be taken in requiring proof of the signature is, that where the 
death of the individual is the subject of proof, the certificate is of itself 
good evidence, as an official statement of a fact within the immediate 
cognizance of the officer who returns it; but where, as in the Clinton 
case, the certificate is put in to shew matters of pedigree, as marriage, 
or issue, which could not be supposed to be within the personal know- 
kdge of the officer, the signature of some person connected with the 
£imily is necessary to attest its truth. 

The books called the Earl Marshals' Books, commence in the tim^ 
of Queen Elizabeth, and continue to the present day : they contain 
entries of such instruments and warrants passed under the royal siffn 
manual as relate to the arms of the blood royal, licenses from the 
crown for the change of surnames and arms, or for acceptance of 
foreign honours : warrants for the grants of precedency, and augmen- 
tation to arms for public services, &c., and generally whatever relates 
to that part of the office of Earl *Marshal which concerns ^ ^^^ ^ 
the superintendence of the college, or relates to matters of I- •■ 

state, concerning which the public orders are issued by the Earl Mar- 
shal, or within his department. The early volumes of those books 
contain entries of some proceedings in the Earl Ma rshaPs Court, from 
the time of Queen Elizabeth to that of Charles II. inclusive ; and such 
of the i>riginal documents and records as still exist, relating to suits 
and proc^ings of the Court of Chivalry, between the years 1630 and 
1707, are deposited in the library of the college.(5) The earliest entry 
in those books is in 1601, the 4drd of Elizabeth; previously to that 
period the Earl Marshal's orders were frequently entered in the chap- 
ter minutes, partition books, &c. 

The Earl Marshal's books have frequently been received in evi- 

In the claim of Sir George Jerningham, Bart., to the barony of 
Stafibrd, part of the petitioner's evidence in support of his claim and 
pedigree, was a register from the College of Arms, containing entriei 

(«) ChftiMlM Barony, Printed Ev. 124. (o) Vanx Barony, Min. Ev. 133. 195. 

(p) Braye Rirooy, Mio. Ev. 98, where Banbury Earldom, Min. Ev. pp. 230. 241, and 
Root Barooyt Mim fiv. 186. 338, are cited. {q) Min. Ev. 132. 195. 

(r) aintoD Barony, Mr. SerjL Hill*a Coll. toI 30, p. 331. 
(a) Public Record Committee Report, 1837. Appcn. 107. 

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SOS H0BBAOK*t xvxDKNcx Of suoonsioir. 

of grants of coats of arms and supporters, containing a petitionary, 
dated AprQ 1720, from William Stafford, to the Ean of Berkshire, 
Deputy Earl Marshal, desiring to have assigned to him such sup* 
porters as his grandfather William, the last viscount Stafford, used ; 
and that the arms of Woodstock and Stafford might be quartered with 
his paternal arms ; also the register of the Deputy Earl Marshal's 
warrant, ordering such supporters and arms, and of the grant in con- 
sequence of such warrant(i) The book was received without objec- 

This case occurred in the year 1812. On a subsequent occasion, 
that of the De Lisle case, in 1826, the admissibility of these books was 
questioned. The Attorney-general, on behalf of the crown, proposed 
to put in evidence, a book called " The Earl Marshall's Book," pro- 
duced from the Heralds' College, containing an entry of a patent from 
Charles I., creating Lady Alice Dudley, Duchess Dudley. The entry 
was signed by Wm. Dugdale, Norroy King-of-Arms. The book was 
r •SfiO 1 ^®'^^®^®^ ^" evidence of certain *facts of pedigree recited 
I oou J j^ jj^g patent; it was offered as a copy of a charter for 
which an unsuccessful search had been made in the proper depository ; 
and it was proposed further to authenticate the document, by proving 
that an act of parliament had been passed for a purpose, for which ia 
the patent it was stated that an act should be Drought in. The act 
was accordingly read, and the evidence was further strengthened by 
a monumental inscription, stating that Lady A. Dudley had beea 
created Duchess Dudley by Charles I. It was objected that the book 
was not legal evidence, and the attorney-general admitted that in his 
opinion it was not. The house seem to have so considered it, but it 
does not appear whether, according to the suggestion of the attorney- 
general, it was treated as evidence in the case, which was a matter 
of favour and not of right.(u) In later cases these books have been 
received without objection. 

Thus in the vear 1830, on the claim of Matthew Baron Rokeby, 
to vote at the election of Peers for Ireland, in order to account for the 
change of the claimant's name from Robinson to Montagu, the Earl 
Marshal's Book was produced, containing an entry for the year 1776, 
of a license for the change in question.(t;) 

The record of the royal license for a change of name, produced by 
an officer from the Heralds' College, was also put in evidence in the 
claim to the barony of Hastings ;{u)) and a similar document was pro- 
duced on the claim to the barony of Camoys.(a:) 

Armorial bearings have often been much relied upon as showing 
the connection of families. The nature of this species of evidence will 
be considered in another part of this treatise ; it is sufficient here to 
notice it as forming one of the branches of genealogical history more 
peculiarly within tne duty of the heralds to cultivate. 

The books of armorial bearings in the College of Arms must, like 
other volumes, be shown to be official before they can be received in 

(t) Mid. Et. 1813, p. i06. («) Dd Lisle Barooj, 1896, Miiu Er. IS. 17. 

(«) Rokeby Barony, Mill. Ef. p. 14. (to) Mia. Er. {k 339. 

(s) Biin. £f. p. iOl. 

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•In the Chandos- case, a MS. book, described as a r ^^q. -i 
Herald Painter's work-book, was offered in evidence on ^ \ 

behalf of the crown. It had belonged to successive Garter Kin^s, and 
was then in the Heralds* College, and Sir Isaac Heard considered, 
from its contents, that it had been made under some instructions from 
Ae heralds of the day. Tlie evidence was first objected to by the 
counsel for the claimant, but the objection was afterwards waived. 
The att<H*ney-general, however, declined to accept the waiver unless 
sanctioned by the authority of the house; ana it appearing that, 
although the herald painters of the period in question had been ap« 
pointed by, and acted under the directions of the officers at arms, there 
was no proof that the entries had been made in the exercise of the 
duties and rules of the office, the Earl of Rosslyn thought the book 
could not be received.(y) 

The last class of books mentioned in the Report of the Commis- 
sioners consists of what are called Partition Books. These volumes 
are so called from their containing entries of the division of all fees 
accruing to the officers of arms, upon their different public attendances 
at coronations and funerals ; also of their fees on the creations of 
peers, baronets, and knights, and the consecrations of bishops. Their 
utility consists in affording the names of persons created, the dates of 
ihehr patents, and generally the limitations of the dignities : for many 
years past they contain in fact docquets of the respective patents, as 
also entries of the elections, and translations oi archbishops and 
bishops. The date of the earliest entry is )9 Hen. 8, 1528 ; they are 
continued to the present period. (z) They were used, as we have seen, 
in the Roos case.(a) 

There is in the Heralds' College also another class of books, deno- 
minated Founders' Kin Pedigrees, extending from 1620 to 1826. 
These volumes consist of pedigrees passed under the common seal, 
certifving the descents of individuals from certain founders of colleges, 
or fellowships, in the different universities, who have by their wills, 
settlements, or statutes for the •regulation of their bene- r m^ao i 
factions, directed a preference to be given to their own ^ J 

kindred : ns in the cases of Bishop Wykeham, at New College ; Sir 
Thomas White, at St. John's ; and Archbishop Chichele, at All Souls, 
in the University of Oxford; and Bishop Dee, at Cambridge.(6) 

These volumes also contain the descents of persons from the blood 
royal of England, who, by virtue of such descent, have taken or were 
entitled to honorary decrees at Cambridge. They do not commence 
before 1620, 18 James I. The practice of proving descents for the 
satisfaction of heads of colleges, in the early years after those founda- 
tions, was not by the evidence at present required, because the rela- 
tionship was then matter of notoriety, and vouched for by living 
parties, and the custom of recording notices of descent commenced 
only with the visitations. One of these books was tendered in evid- 
ence in the Roos case, but was not received.(c) 

The books entitled Benefactors' books at the College of Arms should 

(y) Chuaot €u^ by Belti, pp. S9. 51 

(z) Grim. Orig. Geo. 955. (a) Mill. £r. 388. 

{b) Q^m. Or if. Gwl 257, 358. (o) Xin. Ev« 8M 

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V4 BimBAOK*S VnMMOE ot $wcw9ntm* 

be noticed here. A comimssion was issued ander the Great Seal, 23 
Car. 3, authorizing certain of the officers of arms to receive subscrip- 
tions from the nobility and gentry to defray the expense of rebuilding 
the College of Arms, which had been destroyed by the fire of London. 
The commission contained the following provision, authorizing the 
compilation of " Benefactors' books." *' And our will and pleasure is, 
that our said officers of armes whoe wee hereby authorize and com- 
mand in that behalf, doe from tyme to tyme in testimony of their gra- 
titude to such of our nobility and gentry as shall be benefactors herein, 
take and register in the office of armes in bookes of Vellome, to be 
provided in that behalfe, certificates and memorials of the armes they 
oeare, together with their discents, matches, and issue, and of their 
liberality, to the end the memory thereof may remaine to after-ages. 
And also issue out and deliver from tyme to tyme under their commoa 
seal testimonialls thereof to such of their benefactors herein whoe 
shall require the same.'' ' 

r *663 1 *This commission was read in evidence from the Patent 
*• J Roll in the Roos peerage case,(</) in order to let in the evi- 

dence of the pedigree of the Earl of Carlisle in the Benefactors' book, 
which appearing to have been signed by himself in 1672, was admitted 
without objection. 

The following statement taken from the second report on the Public 
Records of Ireland, 1813,(e) will shew that there are numerous genea- 
logical records in the office of the College of Arms in Dublin, of a 
nature similar to those in the Heralds' College in London : — Ulster 
king of arms has in his possession : 

1st. Four volumes of books called Visitation books, containing the 
pedigrees and arms of the nobility and gentry of several counties in 
Ireland, particularly the counties of Dublin, Meath, Louth and Wex- 
ford, from 1568 to 1620, taken by virtue of commissions directed to 
Nicholas Harbonne and Daniel Molyneux, Ulster kings of arms. It 
appears that visitations were made in other counties from the refer- 
ences in the various books now in the office to such as were formerly 
there, and which were, it is supposed, detained as private property by 
the heirs or executors of the former officers ; but at what particular 
period is unknown. Many books are also said to have been carried 
off by the person holding the office of Athlone Pursuivant of Armsi 
who fled to France with King James II. He also carried off the 
official seal. 

2. Fourteen volumes of books, containing miscellaneous pedigrees 
and arms of the nobility and gentry of Ireland, being entries made in 
the office at various periods, and authenticated under the hand and 
seal of Ulster. 

3. Four volumes of the pedigrees and arms of the peers of Ireland, 
called Lords' entries, pursuant to an order of the House of Lords, 
^ated 12th August, 1707. 

r ^^QA 1 4. A book of the pedigrees and arms of the baronets of 
L J Ireland, *under a royal warrant, dated 80th day of Sept- 

tember, 1789, for correcting and preventing abuses in the order of 

(ii>EMBi«Qi7^1iiA.Bf.l86,187. <•} Appwdix, ^ «^ 

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IQlQIM W X9B WiUUiPi' Q0UM0* . W 

& FotirtMfi volymei of Entriei of the Funeral Certiiioatei of Nobi- 
lity and GeDtry of Ireland, beioff attested accounts of the arms, of the, 
time of the death, the [Jace of me burial, and of tlie marriages and 
issue of the several persons whose funerals were attended by the offi* 
cers of arms or their deputies, from the year 1595 to about the year 

0. Books containing lists of the peers as they sat in parliament at 
Yarious periods, and also of the creations of peers, baronets, and 
knights, from the time of Queen Elizabeth to the present time. 

7. A book containing entries of the royal licenses for changes of 
name and arms, and other matters. 

8. Books of registration of all grants of arms from the time of 
Edward VL to the present time. 

There are also some pedigrees and arms of the Peers of England; 
copies and abstracls of various records, and matters relative to genea- 
logical and antiauarian research; and also some copies of the visita- 
tions of the English counties of Yorkshire, Lancashire, Cheshire, Nor- 
folk, Suflblk, &c. There are also some vellum rolls of the pedigrees 
of some ancient families of Ireland. 

The order of the Irish House of Lords of 1707, by virtue of which 
the records of the third class above enumerated were establishedt 
expresses that it will be for the service of the Peerage, that imme- 
diately after the decease of any nobleman or noblewoman, their heira 
or executors should make an entry in the King of Arms' Office of the 
death of such lord or lady, with the matches and issues of their family. 
Examined copies of funeral entries in 1729 and 1750, expressed to be 
in pursuance of this order, were given in evidence upon the claim of 
James Netterville to the dignity of Viscount Netterville in 1830.(/) 
•The latter docnment was not signed by the Lord Netter- r ^.q- -i 
ville of thatoeriod; this being pointed out, it was proved ^ ^ 

that many funeral entries about that date were not signed , and an 
order of the Lord Chancellor of Ireland, dated 1750, appointing a 
i;uardian to John Lord Netterville, was put in, to show that he was at * 
that time an infant about six years old, which would well account for 
the absence of his signature. The entry in question seems to have 
been admitted.(g) It is observable that both tnese entries were pro- 
duced to prove the marriages and issue of the subjects of them : in 
the latter case the evidence was corroborated by the recitals in the 
Lord Chancellor's order. It is remarkable that on a more recent 
occasion this case seems to have altogether escaped notice. In the 
claim to the Alhenry Barony, an extract from the book of Lords* 
entries beinff tendered, the counsel were informed that the pedigrees 
given in under the direction above stated never had been considered 
as evidence, they appearing to be the parties' statement of their own 

The funeral entries described by the Record Comnussioners as of 
the fifth class, seem to be strictly official documents, prepared by the I 
Officers of Arms, in pursuance of their especial duty, and as such 
admissible on the general principle. An examined copy of an entry 
of this description was produced in the Netterville case, from the 

(/) MlB.£f.ppw9.U. (IT) MiQ. Ef. f. It. it)A»heaaej^Bmmf^W^Bi9.^9%. 


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Ulster oiSce of Arms in Dublin. The book from ^^hich H was taken 
extended from the years 1683 to 1652. The entry contained a state- 
ment of the death of Lady Netterville, in 1684, and the number, names, 
and marria^s of her children by Lord Netterville, and was expressed 
to be signed by him, and taken by the Athlone Officer of Arms, for 
the purpose of being recorded in the Ulster Office.(z) 

It is observable that in this, as well as the other cases of funeral 
entries from Ireland, certified extracts from the books of the Heralds' 
Office wqre allowed to be given in evidence. 

A book of entries, made by T. Preston, Ulster King of Arms, in 
r ♦see l ^^® ^^^^ 1634, and for a few years afterwards (probably 
■- h J one of *lhose described in the above return as class 6,) 
containing his entries and lists of Peers, some of them copies from 
the public records now extant in the Rolls Office, and others purport- 
ing to be copied out of the Journal Book, was tendered in evidence to 
show that Lord Slane sat in the House of Lords in 1613. The book 
contained some entries as late as 1689. It was proved that the Jour- 
nals of the House for that period were not in existence. The book 
Was admitted de bene esse,{j) 

Before quitting the subject of Heralds* Books, it may be proper to 
notice that about the year 1747, it was attempted to establisn a gene- 
ral register of births/marriages, and deaths in the Heralds' College : 
£ few entries were made at the time, but the measure failed in its 
eflect(ft) There was in fact no authority for making such a regis- 
ter : and though the entries made might have been useful as informa- 
tion, the register itself could not have been treated as legal evidence 
of the truth of its contents. 

[ ♦667 ] ^CHAPTER VI. 


The practice amongst ecclesiastics of committing to writing the 
names of those for whom supplication was to be made, is of very high 
antiquity, being traceable in certain registers of the Greek church, 
called diptycha^ which are mentioned in the liturgy of St. Chrysos- 
tom.(a) These dipiycha (j^nmx*^ two-leaved) were tablets of wood 
or ivory, on whicn were inscribed the names of such as either from 
their rank or virtues, were thought worthy to be remembered in the 
prayers of the church. They were of three kinds : diptycha episco* 
porum, containing the names of bishops renowned for sanctity of life ; 
diptycha vivorum, which contained the names of persons living at the 
time ; and diptycha morluorum, appropriated to those who had died in 
the faith, having merited the prayers of posterity as martyrs, sovereiga 

(i) NottarriUe VtKoanty, Mm. Ef. pw 4. 

Ij) Slane Baron j, Min. £ 1, p. 4. (k) Born, on P«r. Rc|r. 70. 

(a) Diaconui in Ciroaita sacram meosam tboriBeat, titdfjfumctorum me wnrum DiftyekM^ 
«t Uli lobtt, ptreofrk. Lit. SC Chrya. Saa Du Ctnfe, v. JDJp^db. 

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pontiffs, founders of churches and monasteries, &c.(h) The Romaa 
Church is said to have adopted from the Greek only the two latter 
kind of dipiycka ; the practice of keeping which, afterwards received 
the sanction of the council of Meriaa, m Spain, a. d. 60d. It was 
thereby appointed that in the sacrifice of the mass, their names should 
be recited by whom the churches were built, or who had contributed 
anything thereto — if they were yet living, before the altar ; if defunct, 
with the dead in their order. Elccard, junior, treats the diptycha mor» 
tuarum as being the same with the register called the obituary or 
necrology kept in monasteries; *and some have, with r ^^^ •. 
less reason, thought that the ancient diptycha vivorum ^ ^ 

were restored in baptismal regi8ters.(c) Probably these memorials 
were not in general calculated to afford evidence of descent, any fur- 
ther than as they recorded the mere names of individuals ; vet that 
some reference was had to the character of those individuals as an- 
cestors and kinsmen, is proved by the form in which they were prayed 
for : Memento etiam^ Damine^ patnun fratrumque nottrorum qui o6ie- 
runt in verAfide — potwimiun vero qui jam nominantur^ etc.{d) 

In England, monastic records have little genealogical interest until 
after the Conquest. It is even questionable whether the practice, 
afterwards generally followed, of recording in the archives of religious 
houses the names and pedigrees of their founders and bebefactors, 
was known to the Anglo-Saxons. Hickes, though he states that, in 
order to preserve the memory of past events, cluirters of every kind 
were enrolled in the books of the monasteries, as in public registers, 
and enumerates many subject matters of registration, as the transac- 
tions of the county court, sales, purchases, gifts, manumissions of 
slaves, &C., yet makes no mention of the practice in question.(e) 
There are, indeed, to be found in the M onasticon, records of monas- 
teries which carry the pedigrees of the founders to periods antecedent 
to the Conquest ; but, upon examination, they will generally be found 
to bear internal evidence of having been compiled from tradition, or 
some pre-existing sources, and never to consist of contemporary 
notices. Some Saxon chartularies have been examined in quest of 
information on this point,(/) but none of them contain genealogical 
entries. In the library of Corpus Christi College, Cambrid^e,(f ) there 
is a Saxon Martyrology — a description of record which, it will pre- 
sently be seen, frequently comprises *matter relative to r ^^qq -i 
laymen ; but this manuscript, assuming that it may be ^ J 

(&) Cardona, Joan. Btpt de Diptyobia, Tarraoone, 1587. Hiatoire da TAoad. dea loacrip. 
liooa, t ▼. 300, t. xviii. 3 i 6. 

(c) See tiie aatboritiea in Da Cang^e, v. Diptycha, 

id) Cafdooa de Diptjofaia, p. 140. There ia in Dibdin'a Tour, vol. ii. p* 148, an aoooont 
of aome diptycha atill extant; and a plate of a aingulor diptych may be aeen in the Iliatoire 
de HAcad. dea Inge, t xviii. 316. (e) Disacrt Epist. pp. 10, S9. 70. 

(/) Thoee of Abin«Ion, Evetham, and Wilton ; the latter aa printed by Sir R. C. Hoire* 
To the metrital chronicle of Wilton, pabliabed by the same gentleman, there ia appended a 
«kcomeiit, entitled ** Nomina Faodatorom,** (beinf the namea of the royal IbnDdera of the 
abbey,) in which are some ^nealogical noticea, but the date of the chronicle and its appen- 
dix ia aa late aa Uonty V. 

(r) Abp. Parker'a MSS. Cod. \ni. n. 5, library mark R 4. 57. Ia Duiirtan*a Concord of 
Riuei fi>r tbe Benedictine order, directions are given for reading the martyrology at a oer* 
toio pariod of tbe aernoe. Reyoer, App. p. 81, temp. Edgar, Reg 

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assigned to the Saxon times, contains upon this snbject entries of the 
obits of saints and monks onty. 

But with the Norman rule there began a more extensive system of 
mutual obligation between the monks and the richer laity, under 
which, among the services rendered by the former in return for bene- 
■fits conferred, they were accustomed to register the several particu- 
lars of the names, descents, alliances, and times of birth and death, erf 
the families of the founders and benefactors of their monasteries. 
The records thus originating are to the genealogist, in the proof of 
ancient descent, an extensive and still available source of evidence. 
Whether from their national character, or that considering the man- 
ner in which they had acquired their possessions, and the some time 
precarious nature of their footing in the countr}% they saw it their 
interest to conciliate the clergy, the followers of William became 
most munificent patrons of the English monasteries. According to 
the superstition oi the times, and the belief of the Romish church in 
the influence of religious of&ces upon the state of the soul after death, 
their liberality was usually manifested in the endowment of monaste- 
ries with lands to be held in frankalmoign, or by divine service, 
whereby the benefit of masses for their souls was secured to the 
donors, or to them and their heirs, as the gift might run. In order to 
provide for the lasting performance of these services, it was necessary 
to commit to writing the names of those entitled to them, lest they 
•houM be forgotten through lapse of time. Several charters have 
been preserved in which this latter duty is expressly enjoined or 
agreed to be performed. Thus about the year 1219, in a charier of 
Isabel, daughter of Hugh Gargat, to the canons of St Mar^ and St. 
Edburg, in Burcester, there is a clause expressing that the said canons 
had admitted her and her mother to the benefit of their prayers and 
the suffrages of their house forever ; and when they should depart 
this life, the canons promise that they would cause their names to be 
r ^-.y^ n inscribed in their martyrology.(A) So in 1335, Sir John 
^ J de *Molin8 having been a special benefactor to the canons 

of St. Mary Overy, in South wark, by an instrument in this year, they 
make him partaker of all their prayers, and covenant to mention him 
in all their masses and vigils, and as soon as notice should be given 
to them of his death, or the death of Egidia, his wife, to inscribe their 
names in their jnartyrology, and to make recital of them annually in 
their chapter, performing the like oflice for them as for their other 
benefactors.(t) Again, in a charter of the prior and convent of Hat- 
field, dated 1827, they grant to Roger de Wantham participation in 
all the services which shall be done in their house forever, and pro- 
mise to inscribe his name in their capitular martyit>logy ; and the^ 
pledge their faith t>iat they would register these their letters-patent, as 
well in their martyrology, as in the greater books of their church.(/) 

A charter of 1438 places the reason of the practice past a (k^ub^ 
The abbot and monks of Dorchester, in consideration of twenty 
pounds, grant to Edmund Rede the benefit of their prayers* and then 

ik) Kennelt'a Paroch. Antiq. ed. 1818, toL 1, p. 365. 

({) Dagd. Bar. torn 3, pw 145. Keon. P«r. Ant toL 3, », 39. 


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'they say:— "Ne autemlalcat Iwec nostra concessio, et toccedehti 
longo tempore per oblivionem negligatur, sed ut imprimatur cordibos 
nostrorum faturis temporibus sQcce8sorum« voluimus et ordiQavimus 
quod cum contigerit eundem Edmundum ab hac luce migrare, nomina 
omnium supradictorum cum obitu eorum in nostro martilegio inse- 
rantur, et singulis annis futuris perlegantur, in die anniversariorum 
suorum, presenti conventu, in domo nostri capitu}ari/'(Ar) 

Ttie records of monasteries ^bich are the richest in genealogical 
matter, are, however, of a different order from the preceding; their 
compilation having been gratuitous, and the purpose which it waa 
intended to serve merely temporal. 

It is common to meet with elaborate histories and narrative pedi- 
grees of founders or benefactors and their descendants, under the 
various tities of ** Stemma,** or ** genealogia fundaioris*' ; *'Hi$taria 
fundatorum'^ or **fundati(mis** ; " Nomina antecessorum** r ^^^. -• 
•or " benefactorum** ; «* Progenies fundatoris,*' &c., which L ' J 
contain minute details respecting the descents, births, marriages, deaths, 
^nd burials of the several members of the familv.(/) 

No instance has been discovered where the collection of these notices 
is eqjoined by any charter, or deed of gift, or by the statutes of the 
house's foundation ; and the custom, in part at least, seems to have 
arisen from the interest which the monks themselves had to ascertain 
who were the heirs of their founders and benefactors, that they miffht 
render them the different services due ; (of which, besides those of a 
religious nature, there were some feudal duties, as the aids for knight- 
ing the founder's male heir, and for the marriage of certain of hit 
female descendants.) (m) Something also must be placed to the 
account of a desire on the part of the monks simply to gratify their 
feudal patrons, in whose character there were ingredients which would 
lead them to prize this kind of service apart from any consideration 

(k) Renn. Par. Ant vol 3, p. 337. See other inttanoee, \\M. rol I pp. 434. 367. 400. 
(I) AiDOfDMt the records of the Priory of Berga^enny, was one eotiUed **llistolia Fittdft. 
^ taoois eom mndAtoris firtnealog ia.** It contains a copious narratire pedigree, together with 

' Inographical notices of the family of , the fbander of the Priory, ftom before the 

CoMtoest to the fourteenth century. Dog. Mon. Angl, vol if. p. 615. From the noUCt 
pfefixed to this extract in the Mooasticon, ** £x vetost membrau. penes Hamond le 8traungei| 
M6^** it Wonkf seem that this ** Hisloria** was in a separate ibrin, add n(A part of a vohiroe* 
la the same work ie given a copious fiuniiy history of the Maodevllles, Carls of JissCz, 
IcMdersofWalden Abhej. It is entitled " Fandationis llistoria FoiMiatoris etiam et bese- 
faetorum priecipuoram gunealogia et res gestss." It is printed fh>ni a MS. formerly belong- 
ing lo WaUen Abbsyi now in the possession of the Royal Sbciety, and several other chapters 
inmibmmaM vohune ha?e been printed in the MnnasUoon. The headings of sone of (he 
chapters are ae'foUows : De Rego Stepbano et eeiaile OaUrida De rege Henrico «i comke 
CMfildejuoiere. DeobitncomilisGalfridijuoiofis. De ooinitisaepabora. DeWHlielmode 
Msndevilhi comite Essexis. De peregrioatione comitis Willielini et de Ilinere Prioris. 
Mndkenin eoniMs ad aos. Ds obitn iregis Hearici et filio ejos Ricardo in regem oncto. 
Deobittt^MpokameemitisWiUielasL De Beatrice de Say et fiho ejw Ganfrida Vvg, 
Mea. Aagin vol. n. p. 139. 

- (») Phffips's Lifo of Pole, vol i. p. 333 ; 3 BL Com. 64. Tfab is'a^rauist the authority of 
' LsrdCbkd, wimin conunentiDg apon- IitUcton*s words, that tenant m frankalmoign wm 

aiBqaaCtDd of every aoaaaer of service, say% ** and yetnoAofaerviees only, bat also of hnprove- 
nsai of services; asif he be destreyned forreliefe, au(e|wr^ aiar<«r,«iik|Piir /alta ,^ 
^Maler, «ie.* Co. lit. 100, a, Bractoo, whom he cites in the margin, is an authority for 
• the exemption from roHef only. The subjection of monasteries to aids, whilst tfaqr were 
acquitted of all other services, may have arisen from their having been orignallv considered 

- aai as aervices, bat ae mete beaevolBncee, granted )»y the teumt to his lor 4 In tunee of diffi- 
aalty and distress. SBtCom.68. 

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400 BirBBAG«?«BnBqpQRW|qpcmtioir. 

of QtUity* A strong love of fame and almost proverlnal regard to 
r ♦579 1 ^^^^* ^^^® calculated to *cxcite in tnera a wish to profit 
•• J by that power to confer also an earthly immortality, with 

which the exclusive possession of the means of perpetuating men's 
origins, actions, and memories, invested the clerffy. The following 

!)reamble to a narrative pedigree of the family of Robert de Haya, 
bunder of Boxgrave Priory in Sussex, after an appropriate eulogy of 
the use of letters, shews that the motives of the compilers of these 
family histories were of this mixed character; consisting in the desire 
both to serve and do honour to their patrons, and to hand down useful 
information to their own successors : *' Cum literarum beneficio rudis 
animus informetur, memoria reformetur, et in mentem redeat quod 
obscuravit oblivio, quodque vetustas temporis antiquavit; nos, per 
anliquorum scripturas eruditi, pise recordationis Robert! de Haya, 
fundatoris nostn, et ejus heredum, nomina, per descensus generis ordi* 
nem, presenti pagini duximus annotanda, ob eorum amorem el honarefff 
et informationem noutronim etiam successorum. Sed imprimis appo- 
situm est, etc."(n) However, it is by no means improbable that this 
oflice of genealogists to their patrons, as it was not expressly imposed, 
may sometimes have been fulfilled by the monks, with a sidelong eye 
to the preservation of the connexion of certain families with their par- 
ticular monasteries, and in anticipation of future favours. ^Gibbon 
supplies an instance where the performance of its duties was in dura- 
tion co-extensive only with the patronage bestowed. Speaking of tba 
Courtenay family, he says : " The profuse devotion of the three first 
generations to Ford Abbey, was followed by oppression on one side, 
and ingratitude on the other ; and in the sixth generation the monks 
ceased to register the births, actions, and deaths of their patrons.*'(o) 
The foregoing appear to be the chief objects which the monks had 
in view in collecting the genealogical matter with which their records 
r *573 1 ^'^""^'(p) ^^^ following is a brief enumeration of the 
L J •various descriptions of documents in which such matter 

may occur, and it is necessary to regard the primary use, which gene- 
rally gave rise to the appellation of each kind of record, rather than 
the actual practice of the monks in making entries.(j) 

(ii) From Uie Chartoliry of Uie Priory in Um Cottonian oollection, Gland. A. tI. ioL 1, b. 
Mon. Aof L It. 646. The older part of Uie Chartular^ (in which the above extract 
oceori) is stated by tbe editor of the MonasUcon to be written in a hand of the thirtoaoth 
oeatuiy. (o) Roman Empire, ch. 61. 

(p) AttbeendofTanner*aNotitia Monastica, there is printed an alphabetical index of 
the foonders and principal benefactors of ** Abbies, Priories, Collegea, Hospitals, and fioueea 
of Friers,** with re fer ences to the Monasteriea, in the Notilia, which thev Ibonded. 

There is also an index of the persons and societies to whom the sites of the leHgHMishodMt 
were granted, which may aflford some cloe to the depositories of the records. 

iq) The extensive prevalence of the practice, and the comprehensive natare of the Moo* 
astio records is succinctly, bat dearly expressed in the fbilowinf extract from a book eotiltod, 
Disceptatio Historica de Antiquitate Benodictinomm in Angne Martyrologiis, p. IS7 :— 
NaUom fere totios AngliiB monasteriaro antiquum extitisse cojos non osqne bodie in bib* 
liotheds AngUae babeantnr historia9 manuscriptsB ; et quidem exactissimie. In illis ooo* 
signamnt, non solum p^esta eventaqne precipoa cujuscanqae AbbatisB, veram etiAm res 
mimrtissimas et quaslibel dooMmm notationee^ inaignioies benefactores ; imo et illostres 
bospites, etc. : imo j^reterea celebriora regum procerara episcoporum gesta : adeo ot nihil 
fere eutet in histonis plenioribos Angliie digestnm, quod non sit ex istis abbatiarmn ptf- 
ticolatibua registris deprombtum. Qui ergo tam exacte reUqoa onmia notaront; rem tui* 
tamqiMuiU est aolatio regatae apostotopim nostrorum in Beoedietiiiaoi non Botaiseat? On* 

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MniAaneu0MiB» Wt 

' Id most of the great monMrrieth was the practice to keep a C/uv^ 
nide. According to Bit hop Tannery this duty was performed by per- 
sons specially appointed to take notice of the principal events of the 
kingdom, and at the end of every year to digest them into annals. The 
chroniclers did not, however, confine themmves to the events of their 
day, but vied with each other in giving tbehr registers some reitaote 
period of commencement, snch as tne Birth of Christ, the Deluge, the 
Be^innin^ of the World, or some event alleged to be of almost bqual 
anuquity in the faboloos history, of Britain. The narrative is usually 
meagre, consisting for the most part of scriptural and royal ffenoalo* 
gies, until the writer approaches his own tinries, when be becomes 
more copious and particular as his materials multiply, and it is imneces* 
sary to state that, as a Mneral rule, his credit may be said to increase 
in the same ratio with the minuteness of detail As records of con« 
temporary events, monastic chronicles are of the greatest value to the 
historian : of their genealogical utility, some instances will presently 
be given : here it is only necessary to state on the authority quoted 
above, that in them the monks ** particularly preserved the memory of 
their founders and benefactors, the years and days of their births and 
deaths, their marriages, children, and succe8sors.''(r) 

«The Register properly relates to matters belonging to r ^^^. ^ 
the internal economy of the monastery, containing, for I* J 

example, a list of its members, and an account of its possessions, (aa 
lands, villeins, and stock,) and revenues ; but the name is often applwd 
as a generic term to all nK>nastic records* Documents bearing the 
title, nave been found to contain notices of patrons' families, entnes of 
their marriages, and lists of persons buried within the monastery. In 
a register of Abingdon Monastery there is a description of the office 
of chanter or precentor, in which it is said, that upon the decease of 
a monk, his name ought to be registered by the provision of this offi- 
cer in the martyrology.(5) 

In the Chartulary were enrolled all charters relating to the pro- 
perty of the monasierv. This record very generally commences with 
a history of the foundation, and an account of the founder's family ; 
after which follow in the order of time copies of the charters granted 
by them, and the other patrons of the house, and the archbishop's con- 
firmatiQu of them ; of the Pope's bulls, and their definitive sentences 
concerning the disputes arising about their lands and tithes. 

The Letger Book seems to w the same with the chartulary; at least 
no points of difference have been discovered. It seems hkewise to 
have been called a voucher, whioh was a general register book.(0 

The Necrology or Obkuarv is a register of the times of death of per- 
sons who, either by their rank or connexion with the monastery, were 
recommended to the notice of the registrar : as kings, bishops, abbots, 

Dinm omnino monaiterionim, pnMertim antiquonim naUfei et originea oonaif namnt ; quo 
amdalore, qua oocaakme, quo Rege, qao Episoopo cnoobia faerint erecta : ieriem ipsaaa 
abbatmn a primo ad aUimom posaeruot 

(1^ In the ProlofiM to the Annali of Wbton, by Thomaa Rodboni, a maak of Winloii, 
he mj^ that he oompoecd that short book oonceroiog thoae k\nf» and other frtat men of 
the kiDgdom, who were the fouoders and benefactors of the English Chorch, hj an inspeo- 
tlom of the Monastic Chronicles. Wharton*s Ang. Sac toL I, p. 987. 

(•) CoUon MB. Cland B. ?L f. 193. (Jt) 6i]tdi*s Coil. Cor. YoL il p. 175. 

Mat, 1845.— 14 ^ 

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•ad peers of note, mooirs, aad beneAieton of ih» bouse^ti) It iras 
•ometiines mftde to serve the same religious use as the Martyroiogy* 
Thus, in a charter of the abbot and mmiks-of St. Albaas to Sir Jotm 
r *575 1 ^^^* dated 1476, *they promise that as soon as they should 
^ J have certain notice of the hour in which it should pleaae 

the Author of Life to command their souls {vitu^ of Sir John Say, his 
wife and posterity) to migrate from the world, they would cause their 
venerable names to be inscribed in their obituart^ and, every yeart 
upon the day returning, would recite the same in their chapter- 
kxise^v) . 

The Mariyrology was originally a calendar, in which were set against 
particidar days the names of the saints and martyrs to be thereupoo 
oommemorated.(tt7) Afterwards, where the monastery either held 
lands by divine service, or for some consideration had granted the 
benefit of religious offices to certain persons, (of which instances have 
been given above,)- and a performance of services was required atsta** 
ted periods \(x) in such cases, the monks entered in their martyrology* 
as being a book in daily use, and devoted to the purpose of commem- 
oration, the names of the persons to whom the services were due* 
against the day on which the same ought to be performed. 

Sometimes the book was known by the simple name of the Ce/sn* 
dar or Journal^ though it contained the matter and was put to the use 
i^ a Martyrology.(y) 

In the laroer monasteries, where most or all of these records were 
kept, it was oy no means the invariable practice in making entries to 
confine each volume to its proper department; and in the smaller 
religious establishments, which possessed but one, two, or three kinds 
of records, it was usual to call tnem by particular names of chartulaiy 
OT leiger-book, or the general ones of chronicle or register, and to 
r «g,^Q 1 enter in them not only such ^matters as lay within the 
^ ^ original province of aocuments bearing those titLesy but 

such also as more properly belonged to tSat of some other description 
of record. The efiect of this irregularity is, that there are none of 
the kinds of records above mentioned with which the genealogist is 
unconcerned ; and this will appear from the variety of the sources 
where the instances of utility hereafter to be given are collected. ., 

The monasteries were also the cfficina of several records possess* 
ing geneali^^ical interest which do not fall under any of the fojregoiog 

Besides entering their patrons' pedigrees in some of the books of the 
monastery, the monks sometioies exposed them in their chapter*hoase, 
in a separate form, drawn out upon decorated rolls of pan:hmem*(s) 

, (») Giitch*t OoU. Cur. Vol ii. p. 176. («) M&dox Form. ADgl, pw 336. 

(to) DisceptftUo Hi^ttorict de aotiqaitafe BenedicUnorum ia An^Iis Martjrologiis, 197., 
Tn .Martyrologiis, sive emortuajibus libria, in qaibua quotidie pronanciabanlar obitoa, qui 
•ingolui diebua coDiigiatent, sive aanctorom, five fratmm et familiarium, ahre beneftetomm ; 
at primot orareat, pro aliia precee fundiirenL And tee FaHi Smeiorum, Da CStoge ? • 

(x) Aa in theciaea of divine service pat by Littleton *Mo sins amaeae everie Friday ia 
the weeke for the souks, duL, or everj years at sach a daj to sing a placebo et dirige, slc«** 
Litt Terns. 137. 

(y) See 6otch*s Coll. Cur. vol. ir. p. 175. From a Tract on the books osed in ofaureliM 
■nd monasteries, dtc^ hers in England befbrs the Reformation, bT J. Lewis, Minister of 
Margat*. (s) DaUawaj*s Heraldry, p. 114. 

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TboiupM the diMoliKieii of moratttfrief, a metrieal geoetlmf of tlui 
foooders of the hooBe was found haogtog io the priory of Stone, m 
St«fibrd6bire.(a) The pedtgreest not only in these rolls, but also in 
tbe books* were occasioiialiy io verse. There is among the record^ 
of Wyrksop Priory, a rhvminff pedigree of the family of Furnivall, 
(subsaqoenuy merged in that of Talbot,) who were the founders of the 
priory. It is headed, ^Stemma Fuadatorum Prioratus de Wyrk^ 
sq)e»" but tbe body of it is in English, id stanzas of seven lines. Tbe 
details are extremely copious, comprising the exact genealogy of the 
fiunilyt notices of its different members, with the most celebrated 
actions of their lives, the names of the places where they were buried, 
and sometimes copies of their epitaphs.(fr) An equally curious geoe* 
alogy of the Clare family occurs among the repords of the priory of 
Stoke Clare, in Sufiblk. It is written in Latin aind English verse, and 
is in the form of a dialogue between a layman and a friar ; the Cormer 
•eeeking, and the latter communicating information respecting the 
founder of the priory and his descendants.(c) 

*A practice existed in France of depositing in monas- r ^^^^j ^ 
teiies contracts of marriages, charta nuptiales or charkB ^ ^ 

conjugates. It was originally a right of the lord to be the depository 
of these contnots, but he commonly confided the care of them to a 
Mighbouring abbey; an instance of . which is given intheNouveao 
Traits de Diplomatique,(c/) where a lord remits for himself and hit 
vassals, to the abbey of St. Allire de Clermont, in Auvergne, all the 
contracts of marriaee of which he was the depository. Not only 
have no traces of mis custom (e) been discovered in England, butt 
excepting where the alliances of families are mentioned in the course 
of their pediereesi entries of marriages hardly ever occur in nK>nastiQ 
records ; and in a perusal of them this is the more striking, as separate 
entries of births and deaths are quite frequent One instance, how** 
ever, may be adduced from Tintern Abbey Regi8ter,(/) where there 
is entered a series of marriages in tbe same family. The chartulary 
of Sto. John of Jerusalem is said to afford another, in an entry of the 
solemnization of a marriage which took place in the priory.(^) U 
may be remarked, that entries of baptisms are e(|ually rare ; ami this 
would lead to the supposition that tne blank which the books of the 
moaasteries present on these subjects, was owin^ to the well-knowa 
jealousy which the monastic order entertained oi the secular clergy, 
to whom the celebration of the rites of baptism, and marriage belonged. 

In 1268, the monks of Dunmow Parva enter in their chronicle that 
io ifaat year Robert Fitzwalter (a member of their patron's family) 
** proved bts age by Hugh the prior, and by our chronides."{b) Aa 

(fl) A copy ii presenred in the Monoitiooiit toI vi^ port i. p. 330. It i« called, * The 
CopifB of the Table that waa hanging in the Priorv of Stone at the time of the suppression of 
tbe same in the xxix.yeareof the Raigneofour SoFeraign lord Iting Henry tlie VIII.** 

(() Alon. Angl., vol. 6, part L, p. 123. (c) Mon. AngL, vol. vi, part iil, p. 1600. 

(d) Tom. I, p. 393. 

(#) Family evidences in general were someUmet lodged in the monasterlee for the sake 
efpMeervation. An Instance is cited fVom the Year Books in Tanner^s Not. Mom. Pre£ p. 
n., note. See Plowd. Rep. 511, cited ibid. (/) HarL M8S. 

(V) There is a copy of tbe entry in Burn on Far. Regn p< 133. 

(I) Eodem anno [1268] Robertus filius Walter! etatem soam probavit per dominum Hnff- 
0II6BI Priorcm tunc eleotem Londonieneem et per oronioas aostns. Moo. Angl, vol vX, 

Piiti.^iia ■*., 

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404 HOTBAcrt t » i<M t iai mmccnuom. 

entry of the birth of this Robert occurs in the same chronicle nineteen 
years before ;(t) and it seems, therefore, probable that the purpose for 
which he required proof of his age was a claim of exemption on the 
r •STS 1 8^^°"^ ^^ minority, from some •service or charge. In 
>• -I making the second entry the monks appear to have had 

no other object than to record their venial pride, that their indt»try 
had proved of essential service to their patrons. 

Not many years after, in the 25th of Edward 1, the chronicle of a 
monastery was made use of in proving the full age of the heir of a 
tenant in capite. In the probatio ceiatis of Robert de Tony, son and 
heir of Ralph de Tony, a witness deposed that this Robert was bom 
at Thornby, in Scotland, but that twenty years before that time, hia 
mother brinffing with her her son, then one year old and more, came 
into England to Westacre Priory, in Norfolk, of which her son's ances^ 
tors had been patrons ; and that immediately upon his first coming, 
(he year and day of the birth of the said Robert were written in Xm ■ 
chronicle of the same priory, which chronicle he, the witness, had seen 
and read. Many other witnesses concurred in this testimony, except- 
ing that they had not seen the chronicle ; whereupon the said Robert 
had seisin of his lands and tenement8.(^') 

Records of monasteries were resorted to in several instances, in 
some of them for genealogical proof, on the occasion of the contra* 
versy between Scrope and Grosvenor, in the reign of Richard 2.(*) 
This suit, the most celebrated of those family fends, which were com* 
toon in the fourteenth and fifteenth centuries, respecting the right to par* 
ticular armorial bearings, lasted from 1885 to 1390; and miring thi« 
period evidence was taken in various parts of the country, before com- 
missioners appointed by the Court of Chivalry. The following are 
extracts from the deposition of John de Yeversley, canon and celerer, 
and John de Queldrike, canon and sacristan of the priory of Bridling* 
ton, in Yorkshire. (It may be observed that the suit partly turned on 
the respective antiquity of the two families.) 

r #579 1 *** They were sent by their prior, and beinff severally 
L ^*^ J sworn and examined, and being asked if they nad heard 
of the ancestors of the said Sir Richard Scrope, said yes, for their 
priory has possessions of the gifts of the said ancestors, which they 
proved by many charters, sealed with large * so\etnn\l) aeals, and 
within the seals, knights sitting on horseback, with spears in thetr 
hands, like Aose used at the Conquest." After exhibiting other chart* 
ers of divers persons deceased, •* they said that one Hu^ le Scrope, 
ancestor of the said Sir Richard Scrope, Fparty to the suit] was 
in their time ; and they showed by chronicles that he lived in the 
fifth year of King Stephen. And also the said canons showed 
us a Dook of chronicles, in which book are foond the naidea of 

(t) 1249. Natm est Robertas filiot WaRori pttromit de Panmove apod Henbam. Ibid^ 
U) Trin. 25 Edw. I, rot S6. Abbreriato Placitoram (Keoord Gomm.) ^ 293. 
(i) Perhaps there it not extant a more intereetinf record of the foorteeiUh century thna 
<he prooeedioffs in this oootroveny, or aa iktf are uanally onUad, the Sorope and Graefenor 
EotL Man/ hundrede of witnetaea were examined on both aidee, amoogat whom were iim 
moet reoowned men of the age, Geoffrey Chancer, Hotapnr, John of Gaunt, 4bc The dep». 
aitiona of the eooleaiaatics (of which eiunpiea are gWtn in the tect) etrikiagly exhibit thn 
Mperiority of tbetr aonrcea of inibroaatiou. The Roll baa latidy been pcinlidlaa aatapCaoas 
«Mnner for prifato diatribotitm vMkir the care of Sir Hanis llimltf. 


Digitized by VjOOQ IC 

the fiefopes, of the time of those who bore the name of Oant» vihb 
eatne into Eo^aDd with the Conqueror.'' And after speaking to 
the appearance of the arms in question^ in glass windows, in tneir 
churchy they deposed that ** the said Scropes and their ancestors have 
been in continual and peaceable possession [sciL of the arms] tcithaut 
dffaitli of ktirB nude cf them begoUon, as ihty have found by their 
chronicle of benefactors to their priory sitice the ConquesL*Hm) 

It will be obsei-vedy that the last extract affords an early instance 
tf the proof by means of a monastic record of an important genealo- 
gical factt the subsistence of a family in the direct male line. In the 
aridenee of the Abbot of Selby, another species of record was appeal* 
ed to for proof on a subject nearly akin to genealogy. He deposed 
that '' there ¥ras in their abbey an old book with colours depictedt 
quite full of eseutcheoos of the arms of kings, princes, earls, barons» 
bannerets, knights, and esquires, and in the same book were the names 
of each lord, written above *his arms, and of each baron r ^*gQ n 
and banneret, and of knights and esquires ; among which I- J ' 

were found the arms of the Scropes, azure a bend or, and their name 
written above ; the making of which book was not in memory ."(^) 

la the claim of Margaret Fenys to the barony of Dacre, which was 
referred by King James 1, to the commissioners for exercising the 
office of Earl marshal, there was received in evidence ** a pedigree 
taken out of an old book, renoaining now with my Lord Witliani 
Howard^ sometime bebnging to the priory of Lanercost."(o) From 
other parts of the proceedings,(p) it appears that the old book was the 
leurer book of the priory, and that the pedigree in it was thus headed^ 
^ Hasc sunt nomina barooum et dominorum de integr& baronii Gillesr 
hndte, ot dominorum parliamenti a Conquesta Anglie, ac fundator* 
istiua monasteriL" It was put in evidence to prove, by the following 
entry, the marriage of Matilda, the heiress of the family of Vaux, with 
ThoflMs Multon. ** Matildis de YaJlibus filisB Huberti de Vallibus. 
Thomas Multon maritus dicte Matildis sextus dominus parliamenti.^ 

No other iostanoes have been met with of the admission of mon- 
astic records for legal proof in matters of pedigree. The following 
are a few examples, (which might easily be multiplied), of their cita- 
tion by our best genealogists. Of course they are not offered as 
aolfaorities for the admissibility of the records, but only to illustrate 
their utility and importance. 

The great chartulary of the Percy family at Sion, and also the 
ohartulary of Whitby Abbey, to which that family were great bene- 
fiuHors, are frequenUy cited by Collins, in the Percy pedigree.(7) 

(m) Serope and Groireiior Roll, vol. i. p. 109, vol ii. p. 289. The poMage last cited it 
fCToneoMl^ tnuiilaM in the fooond Tolume; it ia readared *' cootional and peaceable poa- 
aenaion wilhout defaalt of heira male ; and aa appeara by their chronicle, were beneftclora 
to tbeir aaid priory ainoe the Conqoeal;" tbtia miarepreaantins tha fact proved by the 
chronicle, which waa nol the patrooa^ of the priory by the Scropet, but their peaceable 
poaaetMoo of tbe arnia withoot failare of iaaue male. Tha original ia aa followa :— Gt lea 
dki E!ocropa et aea aoneeatrea ont eate toedix on eoatinoel ct peaible poaiesaion aanz defaot 
4b betr anal de eox peroez come ib oant troves ploor oronkyk* de bien faito^a a lour dit pri- 
era depota le gqneat. Vol. 1. p. 1 09. 

(m) Sciope and Grroavenor Roll, vol. i. p. 99, vel ii. p. 271. 

<•) CoHiDa oa Baroniea, p. 33. (p) See p. 47. 

ii) CoUina Peer., foL iu pw 922, ei aeq. Sir B. Bry dfea*8 ed., 1812. 

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406 svBBAoit^i g f UuMUi or iveenuox. 

The chronicle of Alnwick Abbey is twice cited in the pedigrees ef 
the same family ; once in proof of the time of death and burial in 
Alnwick Abbey of one of the family, and another time to prove the 
faci^ of another member having bad issue.(r) 

r *581 1 *^ genealogical document in the British Museum, HarL 
'- J MSS. 692, relating to the Percy family, is said to be ex- 

tracted " ex Registro Monasterii de Whitbye,*\s) 

The same author cites the register of Wvrksop, in proof of gene- 
alogical facts in the history of the family of Talbot, Earl of Shrews- 

iJne monastic record deserves a particular notice, on account of 
the purpose for which it has often been cited. Soon after the Con* 
quest, the monks of the Abbey of Battle (a monastery so called* from 
having been founded by the Conqueror on the field of the battle of Has- 
tin^s,)(tt) are said to have compiled a list of the principal followers of 
William into England. This record, thence called the Battle Abbey 
Roll, is therefore commonly referred to by old genealogists in proof 
of the Norman origin of families. But its history is obscure, and its 
authority has long been considered doubtful. None of the copies extant 
are of an earlier date than the fifteenth century ; and they difler, one 
from another, to the extent of nearly two hundred names. Dugdate 
thus explains the difierence : " Such," he says, " hath been the subtihy 
of some monks of old, that finding it acceptable unto most to ht 
reputed descendants to those who were companions with Duke Wil- 
liam in that memorable eirpedition, whereby he became conqueror of 
tthis realm, as that to gratify them, but not without their own advan- 
tage, they inserted their names into that ancient catalogue." He also 
states it as his opinion that '^ there are great errors or rather falsities 
in most copies, by attributing the derivation of many from the French, 
who were not at all of such extraction, but merely English ; as by 
their surnames taken from several places in this realm, is most evi- 
dent"(v) Camden's opinion is yet stronger against its credit. He 
does not proceed upon falsification, but seems to denv the existence 
of any original record. He says, '* Whosoever considereth it wel^ 
shall find it always to be forged, and those names to be inserted which 
the time in everv age favoured, and were never mentioned in the 
r •682 1 ^^^^'^'^ record of Domesday."(u)) In this latter state- 
I- -' ment, *however, he is contradicted by Sir Henry EIKs, 

who informs us that, exclusive of a few interpolations, the names in the 
Roll will for the most part be found among the under-tenants of the sur- 
vey.(a:) Yet it must be remembered that a correspondence with Domes- 
day, either partial or entire, is quite reconcilable with the want of 
authenticity in the Roll ; as it would be easy for the compilers of the 
latter, to make it tally to whatever extent they pleased, with the 
national survey. 

Of this record several ancient MS. copies are in the British Mu- 

(r) Ibid p. 247. 

(«) Coll. Peer., vol. ii., p. 279. (0 Vol. iii. p. 16, 17. (v) Cimaen*t Britti. 249. 
(o) Baronage, pref. p. v. (to) Camden*8 Remains, 

(x) lotrod. to Domeadaj, pref. p. ix. Sir Henry omita to state which oopj of the fioll 
lie adopts, and by what standard the intcrpoktioos are to be determined. 

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n/y) iimI probably ia othort of our MS. Uhraries ;(z) c<^m^ aUi» 
varying more or less from each other, are printed in the Chronicles 
of Brompton, Holinahed, and Stow. Duchesne prints two different 
lists at the end of his Normannici Scriptores, and two lists are also 
dveo in Fuller's Church History, and in Banks*s Dormant Peerage. 
Some of the lists, as that in Brompton* are in rhyme. 

Whilst upon the subject of Norman origin, it is proper to state that 
there are extant several rolls of the Conqueror's companions besides 
those bearing the name of Battle Abbey. It is said that the oldest of 
these is a list in Wace*s Chronicle of the Dukes of Normandy, which 
is preserved in the royal collection in the British MuseQm.(a) Sir 
Henry Ellis, in his Introduction to Domesday Book,(&) has printed 
such extracts from it as comprise the names. The royal collection 
also possesses another Roll of William's followers written in 1436 ;(c^ 
and the Harieian contains a third, having an alphabetical index, ana 
headed as follows : ** These be the surnames of the psons of reputa- 
coos that entered into England wth Willni Conquerer."((f) The lasl- 
nanaed list is cited in Colhns's Peerage linder the Percy r ^^53 1 
*fannily.(e) Another of these lists is to be found amongst ^ J 

the Arundel MSS. in the College of Arms.(^ It is entitled, Cog- 
nomina Conquestorum Anglie cum Diio Willmo Duce Normanie Con- 
qiieatore Anglie.(jr) 

•CHAPTER VII. [ •584 ] 

mairisiTioHs post xoktbm, scotch kktovss, btc. 

Thb Monastic Registers above treated of, related only to the fami- 
lies of founders and benefactors of religious houses : the sphere of 
their usefulness therefore must always have been comparatively cir- 
euoiacribed ; to waive the question of their legal authority. The ^tkf 
ealogist will derive much greater assistance from the inquisitioisi 
taken after the death of tenants in capite, (a class comprisinfi: at one 
time almost aU men of property in the kingdom,) in which the death 
of the deceased tenant, and the name and age of his heir, were found 
by^a jury, and returned of record in a manner which will be after- 
wards mentioned. A genealogical utility, unequalled by any later 
institution, has been ascribed to these proceedings by very high author- 
ity. ** Perhaps^" says Lord Erskine, '< while tne ieudaf tenures pr»> 

(y> LuMdowoo MSS. 255, foL 117, oontaininff two littf, om from tha Nomitn Cbront- 
elo ; Lansdowne MSS. 446, ful. 15, and 88*2. Thero ia also a chronicle of Bcttlo Ablny, 
CoCUm MSS. Nero D. ii. 334, 6. 

{*) There ia one aroons^ ^® Arundel MSS^ in the Col. Arm. No. iz. It la aaid (C«t p. 
150 to be an incorreet cony from Broropton, to TwyAdcn^a Scriptorea Coil 963^ 

(«) MS. RejT. 4, c. zi. iol. 246. (6) Pref. p. ix. n. 

{c) MS. Reff. 14, B. L (d) IlaH. MSS. 293. 

(#) Ed. 1812, vol it p. 219. (/) No. xcvUi. 

{g) There b appended to Robert of 61oaceater*a Chronicle, aa printed by Heame, « 
ncArical *« Petegruc fro William Conqueror of the Crowne of En^felonde, lynyally descend- 
ing an to King Henry the fj.** Hearne deacribea and printa it 10 hia Appendix, p. 585— 
595. A more genoine copy of theae veraea b in the Cotlonian CoHeotion, MS. JoUua, B. 
if. VL i — 8, whioh hM wUfa great probability been Mcribed to Lydgate. 

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'408 Him^iOK'« 

▼allad with the ancient inquisitions pett mortem^ opportumtics of 
blishing descents were afforded, much superior to the modem means 
by the register of births and baotisms. The heads of houses upoa 
these occasions made solemn aeolarations» which were matter of 
record, and threw great liffht upon questions of inheritance." Lord 
Mansfield's testimony is still stronger: *' The proof of pedigrees has 
become so much more difficult since inquisitions pos< mortem have 
been disused, that it is easier to establish one for five hundred years 
before the time of Charles 2, than for one hundred years since his 

Jpon the death of each tenant in capite of the Crown, a jury was 
summoned to inquire; First, Of what lands the party died seised? 
Secondly, Bt what rents or services the same were held 7 Thirdly, 
r *5R5 1 ^^^ ^^^ ^'^ "^^^ hexT^ and of what age the said heir 
>- -I *then was ? The inquest was taken upon oath» and the 

verdict, under the seals of the jury, was returned to the officer by 
whose summons the jury was assembled.(a) This duty appears first 
to have belonged to the justices in eyre, but was afterwards trans- 
ferred to the escheators, officers appointed by the < crown for the pur- 
pose. King Edward 4 ordained that the Sheriffs should be escheatr- 
ors in their several counties.(6)^ Inquisititions poU mortem afterwards 
fell wilhin the jurisdiction of the Court of Wards and Liveries, which 
was erected in the 32d and d3d years of Hen. 6.(c) 

There were five different forms of writs issued by the Crown for 
taking inquisitions post mortem. The most common form was called 
the writ '* de diem clausit extremumf* which was issued immediately 
after the death of the tenant. The second was the <* de melius tn^ta- 
rendo/* where there had been no return, or an insufficient return to 
the former. The third was '* quce plura^^^ where any of the land had 
been omitted. The fourth was '* devenerunt^*^ where the heir of the 
tenant died within age. The fifth was "mandamus,^* which was 
issued where a year had -elapsed since the tenant's death before the 
issue of any writ(d) 

Sometimes writs of mandamus were directed to special commis- 
sioners instead of the usual writ to the escheator. 

When the value of the lands to be inquired of was under five 
pounds per annum, tlie inquisition might be taken by the escheator 
without a writ, virtute cfficii.{e) In every case the inquisition was to 
be returned into the Petty Bag Office whence a transcript was sent 
into the Exchequer, to enable the King's officers to collect the duties 
nmd services payable to the kin^. 

r S5RS 1 ^^^ earliest inquisitions oos^ mortem on record,(/) are 
■• J of the •reign of King Henry 8. They are continued 

(a) By I Hett. 8, e. 8, Inqtiiiitions poH moriem ire required to be taken on the oethe of 
twelve men, and in open placet. 

(h) Stat. 29 Edw. 1 ; 14 Edw. 3, et 1, e. 13, and 18 Hen. 6, c 7, relate to EM^beatort. 

ic) Stat 33 Hen. 8, a 46, and 33 Hon. 8, c. 23, relate to Warda and Livertee. 

id) Fitxh. Nat Brev. by Redman, 1535, p. S19. 

(a) Powen*s Att. Ae. 1630, p. 326. 

if) In the Harl. MS. No* &4, it a copj- ofaome Inqubiiielia of earlier date, certified bf 
8tr Simonds D^Ewea and Rmr Dodswortb, at having been compared bj them with tb* 
origioaifl, on Thursday, 3rd May, 1643. They have been pnblisbed by Mr. Grimaldi, ooder 
the title of *" RoUUi de dominabtta et puerk at pvaOk In donaliono R^it in XIL eottltft^ 

Digitized by VjOOQ IC 

biffl the )mU>mtioii of diaries 9* wIwq the practice of fakiiig them 
ceaaed, in cooseqiieoce of the abolition of nriHtaiy tenures, together 
with the Court o( Wards and Liveries to vthich they had given 

The practice of &e jmries in stating their findmg, on the third of 
the heads of inquiry to which their attention was directed, appears to 
have been by no nf)eans aniform. They always stated inaeed who 
was the heir^ bcrt did not always state in what degree tie was related 
to the deceaaed. Perhaps this was out of their power in cases of 
remote ccMisanguinity. Judging from the frequency of the descrip- 
tions "JH. et har.i^ and ^^frat et har.*^ it was probably customary to 
express the rektionship where it was so near ; but when a more dis- 
tant kinsman succeeded as heir, this was not so regularly done. Some* 
times a particular relationship is expressed, as the case might be ; at 
other times general consanffutnity is stated, and the heir is styled, 
^ emu. et harJ* Occasionalty, the steps in the pedigree are enume- 
rated ;(A) but the inquisitions are too frequently altogether silent on 
the subject, describing the heir merely as ** prox* har.^* 

The jurors were sometimes unable to ascertain the age of the heir, 
and in such cases they alleged their ignorance, with, perhaps, the 
reason for it ; as, that the heir was bom in foreign parts. In the great 
majority of cases, however, the age of the heir is mentioned. The 
time of the tenant's death, and the name and age of the heir, were the 
only facts immediately relating to ^the subject of pedi- r ^-^^ -i 
gree, which the jurors were expressly directed to ascer- ^ -* 

tain. But inquisitions often contain other matter incidental to those 
facts, of great value to the genealogist. Of this nature are the state- 
ments of the several steps of a pedigree, which were sometimes intro- 
duced, as also the statements of the survivorship of a widow entitled 
to dower. Besides such notices, it was common to recite the wills 
of the deceased ; many cases occur of wills recited in inquisitions 
fost mortem^ which are not to be found in the register of any Court 
Christian.(f) It was also the practice to recite family deeds and char- 
ters ip thcM inquisitions, instances of which occur in inquisitions pro- 
duced in the Roofi(^') and Devon claims of Peerage. 

The earlier inquisitions fowl mortem are deposited in the Tower. 
They commence in the 20th of Hen. 8, but the series is by no means 
regular till the Mth of his reign ; from which period they are con- 
tinued to the end of the reign of Ric. 8.(A) There are official calen« 

Ww Lineolnteir, Norharoptontirt, Bedaibrdaire, Boekiogbtiiivire, RoCekod, Hnoterdontfa*, 
Noriblk, Sudfolk, UerUbrdetirt, Eatex, Ctntabrif etira, Middeliez s de ituiari Ha|oai» de 
Morcwik, Rtdulfi Marda Willelmi Vavasaur et Magister Thome de Hepburn, Anno 3 1 Hen. 
IL, 1 185.** They contain abttracts of inquisitions taken in 1185, for the purpose of ascer- 
taiafaif the wardships, relieft, and other profits due to the King ftom widows and orphane 
af leoaota tfi aoptte, minataly describing their agea and heirsh^ their lands, the valiie of 
them, the beasts upon them, and the additional quantity neoeseary to complete the slock. 
Tliera are only ibor earlier records than these Rotnli, vii. 1. Domesday Book; 3* Charts 
Aotiqno temp. W. 1 ; 3. The Pipe Rolls, which commence in the reign of Scapban ; 4. 
The Black Book of the Exchequer, of the dute of Henry IL 

Or) 19Car.9,e.94. 

(Z) Many stapa of a pedigree are enamarated in an Inquiaition taken upon the death of 
Sir llMMnaa Gray in 1617. 
IPs lUi 

<i) PowelPs Rep. of Rec 1631, p. 6. (» Min. £t. 81. 

ift) Raf. Fob. lUouCpm, 1837. Appan4U.^ 69, 

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data of these instruments arranged in c<»3ntie8 ; and general ealeodanr 
of them have been printed in four folio, voluo^s, uacler the direction 
of the Commissioners of Public Records. 

The volumes of the printed calendar are chronologically arranged. 
' Volume 1 contains the inquisitions from Henry i; to the end of Edw. 
2. Volume 2 contains all of Edward 3. Volume 9 contains Ric. 3 
and Hen. 4. Volume 4 contains Hen. 5, Hen. 6, Edw. 4, and Ric. 8. 
They present the number of the inquisition, the name of tbe party on 
wbo«e death the inquisition was taken, the names of all the lands men- 
tioned therein, with generally a notice if the tenant was a felon or an 
idiot. To each volume are appended copious indicet nominum et loeo' 
rtan. The public utility of these calendars has, however, been very 
materially contracted, by the omission of the name and age of the heir- 

The inquisitions mentioned in the printed calendar were not aH 
r *588 1 iD4uisi^<>^P^^^^^^^^> there are numerous inquisHionef 
*- -1 *cul quod damnum contained amongst them. This is most 

commonly the case with respect to the second numbers; cautfon, 
therefore, is necessary in the examination of the calendars, to guard 
against mistakes.(/) 

An mventory of all the inquisitions post mortem f and ad quod dam- 
mrm, in the Tower, has been made, and they are so arranged, as to 
be readily accessible for consultation.(m) 

The inquisitions nos< mortem subsequent to the reign of Ric 8 aire 
preserved in the Rolls Chapel. They are officially intituled ** The 
Escheat Bundles,'' and commencing in the 1 Hen. 7, are regularij 
continued to the 20 Charles L Amongst those documents are also a 
fow inquisitions taken upon writs de lunatico inquirendo^ mqtiisittona 
taken virlnte o^Uii, and other inquisitions or offices finding titles in the 
crown after that period.(n) There are complete indexes for each 
year, of the names of persons, alphabetically arranged, with references 
to the bundles and numbers of the inquisitions, but no office indexes 
or calendars of places.(o) 

There are other inquisitions post mortem which, having been return- 
ed into the Exchequer, were deposited in the Ki^s Remembrancer't 
Office ; others were in the Office of the Lord Treasurer's Remem* 
brancer. They have all recently been removed to the Carlton Ride. 
From the beginning of the reign of Hen. 7, they have been collected 
together, and arranged in chronological order ; and calendars have 
been made of the names of the persons to whom they relate, 
r *569 1 ^^'^"^i^S^^ ^^^ MSS. in the British Museum, is a bo<^ 
^ -'in folio, containing short notices of several thousand inqoc* 

sitions taken from Hen. 3 to £e 14th Edw. 4, with an index of names 

<I) Nieolat on the PoUio Rec^ p. 78. (m) 4th Rep. of Dep. Keep. ofRec, p. 5W. 

(II) ]0t Rep. of Selmn Com. on Pah. Ree. App. ; Rep. Fob. Rec. Cora. 1887, App. p. 1 It. 

(o) The lata Mr. KipUnr, en hie retnni to the Order of the Select Cbmioittee of 1800, 
Mated, that be had anong; Mr. Rooke*a collection of Manuflcripta, Calendars, or Indexee of 
Manon and Landa, alphabetically arranged, ref^ring to the tiamea of pereona to whom 
liveriea were granted of the aatatea of their aneestoiv, and containing the names of the 
anceetors, and the times at, or about which they died, by which means, many of the iaqni. 
'sitioos, posl fuertsnl, may be readily referred to by searching the Ofiioc Calendar under tlie 
names of tbow ancestors. In his further return, Mr. Kipling recommended that all the 
Office Indexes to these inqoisitioiis should be printed for public ose. (First Report from the 
BelectCommitto>ofthflHooseofCoininoiiiopeiithflFQhttcR<ofl>da,p. eS ' tsg 

Digitized by VjOOQ IC 

m : «I1 

ttthe end. Tbh volume woidd be DsefidiDtraeii^aiKneRtpodmeeg. 
It is said io the catak^^oe to be in the handwriting of Robert 6K>ver9 
Somerset Herald.Cp) 

In the Ptiblic library at Cambridge, there is a book containing 
inquisitions post tnortenh taken in the county of Cambridge, from the 
13 Car. 1 to 1639. There is also a volume entitled '' A Booke of In- 
qoisitions taken at Cambridge and Huntingdon, by the Escheator, 1M7, 
1638, 1639, and 1644." 

In an old case, it was said that the reascm why an inquest pesi mot* 
i$m may be read is, because of the antiquity of it, or to prove a pedi« 
grea(9) The correctness of this dictum may, however, be douMed. 
A deed by its antiquity proves itqelf ; but this is not the case with an 
inquiffltion jtost morUm ; the necessiihr of proving the authority under 
which the inquisition was taken, sufficiently shows that its admissibi- 
lity depends upon something more than its antiquity. Neither are 
these records allowed as evidences of pedigrees under the rule before 
meotiooed, pecuUar to that species of evicbnce. The true ground of 
tbor admissibility is the fact that they are the results of inquiries made 
by virtue of competent public authority. 

It has even been said in cases of inquisitions nos^ moriemf and such 
private offices, you cannot read the return witnout reading the com* 
mi88ion.(r) This statement appears to be too general. It is true that 
it has beioQ hekl tluit an inquisition poit moriem cannot be read in evi- 
dence, unless it be proved that a commission was isstied to warrant 
iti(s) but it has also been decided upon the same authority, that an 
old inquisition poai mortem mav be read without producing the cofi>- 
missioa upon which it is issued ; but that it is necessary to prove that 
such a commission did actually issue, which may be done vivd voce.{i) 

*In Peerage claims, in which, much more frequently r ^^g^ «• 
than in cases of any other nature, recourse is had to thie *- ' 

evidence of inquisitions post mortem^ h seems to be the settled practice 
of the House of Lords to require the production of the commission. 
The original commission with the inquisition must be produced by the 
officer in whose custody it is. And, except perhaps in the case- of an 
Irish inauisition,(tt) certified copies of the inquisition will not be admit« 
ted. Thus, in the Y auz case, where an attested copy of an inqmsition 
taken in Durham, was tendered, the counsel were informed that the 
origioal, being in England, must be produced.(t)) 

£Fen when the authority for taking the inquest is satisfactorily 
shewn, yet if there appears to have been any irregularity in the pro* 
oeedings, the evidence of the inquisition will be rejected. Thus, in the 
, case of the Barony of Powis, a. n. 1731, three inquisitions pos^ iTiorleiii 
were produced ; but as the finding of the jury in two of them had ex- 
ceeded the authority conferred by the writ, and a supersedeas had 
issued and vacated a third, and it appeared that the Court of Wards 
had declared them insufficient, they were rejected.(u7) 

But though an inquisition which has been declared void wiU be reject* 


(9) Per Pratt, J^ Jooet ▼. White, Stranjre, 6a (r) Ball N. P. 93a 

i$) N«wbargk v. Newburgh, 3 firo. P. d 553. (0 Andertoa ▼. Manwie/, iU 58a 

(«) See post (o) Vaux Barony, Min. £r. €7. 

(») Cmiie on DigiH •• €^ a. iO. ^ 

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ed, one that is merely Toidable may be received. Thus in the case 
of Leighton v. LeightoD,(a;) upon a trial at bar, the defendant made 
title under an old entail, and amongst other things oflered an inquisi- 
tion post mortem in 25 Hen. 6, wliereby it was found that the deceased 
tenant was seised in fee, and upon traverse of this, it went down to 
be tried, and found to be only a seisin in tail, upon which judgment 
was givecy and an amoveas manus issned. This was objected to by 
the counsel for the plaintiff, because it was taken and tried in the 
cotmty of Salop, whereas the lands lay in Wales, and this being before 
•the 27 Hen. 6, c. 26, which united Wales and England, it was coram 
nonjudice and a mitiriaL But the court ordered it to be read, saying 
it was not void, but voidable. 

r *591 1 *And if the inquisition has been acted on, it seems that 
L J irregularity appearing on the face of it, will not render it 

inadmissible, but the court will presume in favour of its regularity.(y) 
In the case of Millar v. Collumbine, a trial at bar in trespass and eject*- 
ment, Rolle, C. J., held that an ofRce which is found after the death 
of one that died seised of capite lands in a county wherein the lands 
found in that office do not lie, but in another county, may, notwith- 
standing it was not found in the county where the lands do lie, be given 
10 evidence to a jury that is to try the title of those lands, if therfe 
were a special livery granted unto the heirs of those lands, for this 
presumes that there was a special direction for finding this office in 
Ifais extraordinary way. 

The mention or recital in inquisitions post mortem of deeds, wills, 
dimrters, &c., is such evidence of the existence and tenor of those 
documents, that it will be sufficient to prove any fact which might 
have been proved by the documents themselves. Thus in the Devon 
claim of Peerage, there was pbt in evidence an inquisition poH mortem 
which recited, that a charter of 10 Hen. 5, from Hugh Courtenay, 
cranting lands to Hugh Courtenay, ** avuncrdo suo^*^ was exhibited to 
3ie jury : and this was allowed as proof of that relationship existing 
between those partie8.(z) 

So at law, an inquisition post mortem^ setting out the tenor of a deed 
was held to be evidence of the deed.(a) And an inquisition post mor^ 
iem on the death of Isabella de Hastings was put in, to shew that she 
was wife of Sir John de Hastings, by her holding in dower lands 
which had been his.(&) 

The form of the writ, without the retbrn of the jury, will in some 
eaaes aflford a sufficientiv strong presumption of the period of the 
tenant's death* Where K>r instance the writ was ** diem dausit ex- 
iremamf** it is indicative that the tenant died vrithin a year preceding 
the date of the writ Thus in the Devon claim of Peerage, to prove 
that Sir Hugh Courtenay died in the eleventh of Edward 4, a writ of 
r •592 1 ^'^"^ daunt exlremum was put in evidence, ^reciting 
L J " Quia Hugo Courtenay Mies, qui de nob^ tenuit in capite^ 

diem dausit extremum ut acceptmus,{c) 

On the other hand, where the writ was ** mandamus" it is equally. 

(s) Stranfei 308. (y) 1 Lill P. R. 553. («) Appendix, p. 34 

(«) Burridgtt t. fiurl of Enez, 3 Lord Rsyn. 19S3. 

(i) lUtUngt Barony, Min. £?. 341. («> Appsidla^ p. 9$. 

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w 4I» 

certain that the deaA must have occcarred more than a year previ* 

loquisitioQs poU marienh tboyffh admissibley are not ccmclusive evi« 
dence. This was observed bvljord Hardwioke, in the oaae of Ser^ 
fflsoQ V. Sealey i(d) and Lord Rede^dale, in the caae of the L'Irie 
Barony, where an inquisition postnu>rtem was relied on to prove the 
death withmH legitimate issue of Sir R. Dodleyy said that ioquiaitions 
are far from being decisive; and he instanced the case of Lord 
Powis, where there were two inquisitioiia ezpresdy contradicting each 

The findings of the jury were in fact often contradictory, and there* 
fore contrary to the trutb.(y ) Of this there is sufficient evidence ia 
the numerous cases of interpleader which occur in the Year-Booka 
and old reports. Where two parties had been severally found heir to 
the same person, as the king could not know which had the better 
title, they were obliged to try the questtoo of heirship by a suit of 
ioterpleader before either could obtain livery df the lands. Tins might 
occur in the case of one inquest, as where twins had been fouod 
beirs,(^) and the priority of birth was doubtful : or more commonly is 
the findings of difierent juries in difiereiit counties.(A) Sometimes alto 
the inquisitions taken under writs <* de meUtu inoMirendo" contradict* 
ed those which had been previously taken. Thus in the Banbury 
case, the first inquisition taken on the death of the Earl of Banbury ia 
1632, found that he died without issue male» but a second iDqui8itt<Hi 
taken seven years afterwards, found that Edward, then Earl of Ban- 
bury, was his son and next heir, and that he left another son namoA 
Nicholas, (i) 

*lt has been said that it does not appear to have been r ^^g^ -■ 
nec^sary that the proof of heirship should come from ^ * 

relatives :{j) and the evidence of strangers would obviously be moro 
iiahle to error. 

The evidence of inquisitions not being conclusive, it may be rebnttsd 
by presumptions arising from other circumstances. Thus the evid«. 
eoce of an inquisition recitins a grant of lands from Hen. to tho 
ancestor of the plaintiff, and lie subseqtjent seisin of his descendant, 
was held not to be conclusive evidence of such seisin, but to be repeU 
led by the operation of an act of resumption of 38 Hen. 8, vesting tbm 
reversion in the crown.(A) 

The inquisitions posi mariem which were taken within the Duohy 
of Lancaster, were kep^ i^ the office of that Palatinate. Of tlMiii 
about three thousand five hundred and siity-nine have been fooKLi 
The earliest bears date 34 Edw. 1, and the latest 18 Car. L A calen* 
dar of thecd. has been published under the authority of the Record 
Commissioners, bearing the title of ** Ducatus Lancastriss Inq. pat 

(iI)9AaL412. 8eeEkmv.Pigot,2£ag.&.Y.S5. 
(e) L*l8le Barony, Mio. Ev. 123. 

(/) In the preface to Tanner*t NoUtia Monastica, p. zix. n.(/), aeveral initviees are 
OoOfltfad of errooeous findings bj the jarj as to the (baD^erthip of reHgioua bdOMa^ 
ig) SUtinf. Pr»r. Reg. tit Interpleader ; Trin. 1 Hen. 7, 38, cited Uiert. 

(A) Caae cited, Abbre?. Placit, p. 309 ; Mich, 3 Edw. 3, Rot 13S. 

(i) Crniae on Dign. 381. 

U) Vide Trad in Harl MSS., Cod. 1333, IS. 

(fs) Eari of Thaottt n FonCar, Jcnof, 384. 

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414 BTnnuLOx'6 wwatcM or mtcoEBesotu 

morfem, &c. tema Re?.'* This calendar presents tho 
date of the inquisition, the name of the party on whose death it was 
taken, and the lands of which snch party was seised, and adds also 
occasional entries that such party was attainted, outlawed, idiot, &c 
Some of the inquisitions are also distinguished as ** probaHones atatis/* 
** pro assignatione dotis/* &c. 

From a short period af\er the Conquesti the prelates of Durham for 
four centuries exercised within, and co -extensively with, the limits of 
the Palatinate, every right attached to a distinct and independent sove- 
reigniy.(/) Amongst these was the paramount seignorial property ia 
all lands, with its feudal incidents, the privileges of escheat, forfeiture, 
and wardships. By virtue of the same powers, the prince bishops ap« 
pointed by patent during pleasure, their own escheators, as well as 
r *594 1 ^^^^^ officers, to whom *upon the deaths of the tenants of 
»► J the see, writs of " inquirendoposimortemf'* in the bishop's 

name, were issued from the Episcopal Chancery. The Close and 
Patent Rolls of Bishop Bury, who was appointed to the see in 1383, 
are the earliest extant in the chancery at Durham, and exhibit speci*' 
mens of all the usual writs, including writs " de inquirendo post mar* 
Umi^ differing little, except in the variation of the episcopal style, from 
those issued from the Royal Chancery.(m) 

The statute 27 Hen. 6, c. 24, deprived the bishop of Durham, 
amongst other temporalities, of the right of issuing writs in his owa 
name : but as that act did not interfere with the right of the Bishop 
to have his own Court of Wards, the inquisitions pos< mortem within 
the Palatinate, still continued under the separate jurisdiction, until the 
general abolitioYi of the system of military tenures, when the Episco- 
pal and Royal Courts of wards were swept away together. The 
inquisitions post mortem of the Palatinate are deposited in the registry 
•f the Chancery of Durham. 

' The rolls of Bishop Bury, and of his three immediate successors, 
eonsist of parchment schedules tacked together at the top. Those of 
Langley and the succeeding prelates are on continuous rolls of parch- 
ment. When one side is filled, the further entries are written on the 
other, commencing the contrary way, and they are said to be " tn 
iorso rotidV* There is no chasm in the rolls, and they have a suffi- 
cient index, very neatly written, about the time of Bishop Crewe, and 
continued to the present time.(n) 

These inquisitions are admissible in evidence, but we have seen 
that, in the House of Lords, the originals themselves must be pro- 
duced, and that a certified copy will not be suffioient(o) 

[*595 1 ^^ regular series of Irish inquisitions post mortem 
-■ commences *in the reign of Elizabeth, and ends shortijr 

(f) It wai a maxim with reference to the powen of the bishop, ** quicqoid Rex habet «x. 
Ira, Epivcopas habet intra.** *' Solum Dunetmense atola Judical et ense.** Sorteea* Uiatoiy 
Qf Durham. General History, vol 1, p. zvi. n. (A). 

(m) Sartees^a Hietory of Durham. Gen. Hist vol. 1, p. z1?iii. 

(fi) Ibid, xlvili. M. (m) In tho same work \a f^iven a copy of an tnqnisition po$t mortem 
<* virtuU officii^* taken by the Esdieator of the Bishop of Durham, npon the death of Rich* 
ard 3, atyted therein *« nnper rex Anglic de facto led non de jure.^ It recites Uut he had 
by Act of Parliament been attainted of high treason, and had forfeited his lands, &c Thk 
inquisition is dated the second year of the Bishop, which was the first year of Heory 7 • 
?eL i., AppeMlix lo GMsral BMory, p. dzTt (•} 8apra,p.S9a 

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after the Rastoration. Th^jr ar^ depotlfed in tbe HoSbi? Oflke, and in 

the office of the Chief Remembrancer in the Court of Exchequer in 
Dublin. Catalogues of these ioquisitioDS have been printed in the Sup* 

Element to the eighth report of the Record Commissioners for Ire* 
ind.( p) These catalogues give merely the number of the inquisition, 
the name of the party on whose death it was held, and the date and 
place of taking.(a) It is said that the inquisitions in the Chief Re- 
membrancer*s Offico relate principally to the possessions of the dis* 
solved monasteries.(r) 

Under the authority of the Commissioners of Public Records a 
repertory of their contents has been formed. The first volume com- 
prises the Repertory of the province of Leinster. It will be found in 
general to contain the date of each inquisition, and the place where^ 
taken ; the name or names of the person or persons to whom it' 
relates ; the lands of which he or tney was or were seised ; their 
acreable or other contents, and real or nominal value ; the time of 
his or their death ; the heir or heirs, and his or their ase or ages, and 
marriage; the tenure by which the lands were held under the Crown. 
The repertory of each county is preceded by a catalogue of its inqui- 
sitions, and followed by copious indexes of persons and places* in 
which the references are made to the number of each inquisition, 
placed according to chronological arrangement in each reign. A 
few inquisition^ appear enrolled in the patent rolb of Chancery ; these 
are not comprised in the repertory.(5) The second volume comprises 
the inquisitions in the province of Ulster. 

*In the Irish inquisitions f>oi^ mortem^ numerous family r ^^g^ -t 
settlements, deeds, wills, leases^ and other mstruments, ^ -' 

relating to property in Ireland, are set out at full length, or copiotisly 
recited, ancl of the greater number of these there are at present no other 
traces to be found.(/) 

In the Slane Peera^^e case there was put in evidence an inquisition 
post mortem taken in tne 29 Car. 2, an. 1676, on the. death of Randalk 
Lord Slane.(u) It recited the death of his father and brother, and an 
mdenture and deed poll, by which it was proved that William l<ord 
Slane, was son of Christopher, Lord Slane, and that he died in \h^ 
VQdLt 1641, leaving Charles, Lord Slane, bis eldest son and heir; that 
Qiarles dieds. p. in 1661, and wa^ succeeded by his brother Randall; 
that Randall married, first, Elenor, daughter of Sir R. Barnwall, by 

(» pp. 439. 568. (7^ Cooper oo Pub. Rec., fol i., p. 341. 

(r) The emrlwtt loqnisition pott mortem mentioned in the CaUlogne of the Rulli* Inqut- 

ioBa, bean date S Heii. 6, and wac taken to tlie eoanty of Loath. Tbe earlieit mentioned 
Um Chief EemembraBcer'a Office Cataloigue it dated 36 Han. 6. MaoT Inquiaitioas 
mr of a date prior to the reign of Elizabeth, and later than Car. 2.; the lateat ie dated 
Wh Jamiarj, 1760. Meet of thene probably were not inqoif itions potf mortem. Appended 
to tJbe Catalogue of Inqaintions in the Remembrancer's Office, is a short CatakMfQO of fifty* 
tkrae loqoisitions in the Secondary's Office in the Exehequer. They are dtescrtbed a» 
r^iatiog principally to the lands and possessions of the persons mentioned in them, and a9 
kefflf of a different nature from those in the preceding Catalogoe, but their nsture is not 
•lated. The first is dated in the 35 Car. 3, and the Slst, 13 April, 5 Jao. 3. : the lost but 
Me is dated 18th Mar, 1681); the date of the lost is illegiUo. 8th Rep. uf Rec. Com. for 
btland. Supp. p. 613. 

(») Prefiice to the 1st Vol of ^ Inqu. in RoL Cane Hib. Repert** 
, (1) PreC to Reperto^, vol. iL 

(») %oe Barony, Miu. Ev., part 3, p. 3. This inqoisition mentioned the passing of thsi 
Aoiiir file Aboritioa of Military Tenures. ' 

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whom he bad an only child* Mary, that he afterwards married Lady 
P* Moore, daughter of Henry, fSarl of Drogheda, by whom he had 
three sons, Christopher, Ifenry, and Randall, and an only daughter, 
and that he died in 1676, and was succeeded by his eldest son, Chris- 
topher, Lord Slane. 

In the same case an examined copy of an inquisition post moflem^ 
taken at Navan, on the Idth January, 1625, upon the death of Chris> 
topher. Lord Slane, was produced by Mr. William Crawford, Athlone 
Pursuivant at Arms, who stated that he produced it from the Rolls' 
Office of the Chancellor of Ireland, and had himself examined it.(v) 
The commission does not appear to have been produced or called for, 
and the copy of the inquisition was apparently received without ob- 
jection. So on the claim of James Redmond Barry to the Viscounty 
of Buttevant, in 1825, office copies of inquisitions post mortem^ in the 
Rolls' Office of Chancery in Dublin, attested, one by the Master of the 
Rolls, and one by the deputy keeper of the rolls, and proved to be 
time copies, were received in evidence.(u>) 

r •597 1 ^' connected with the subject of inauisilions post mar' 
L J tem^ and •though not in all respects analogous, yet bearing 

a close resemblance to them, it is proper here to notice the retours of 
■ervices in Scotland. According to the law of that country the legal 
chara6ter of '* heir" in feudal property, together with the rights and 
obligations attached to that cnaracter, cannot be regularly created 
except by a solemn judicial act. The person who claims that cha- 
racter must procure a formal recognition of his title, by the procedure 
under a ** brieve of succession^** By that writ, the judge to whom it 
is addressed, is required to ascertain by the verdict of a jury the fol- 
lowing points, viz. in what lands the person deceased was feudally 
invested at the period of his death : if he had died at the faith and 
peace of the kinff : if the bearer of the brieve be the nearest law- 
ful heir of the deceased in those lands ; if he be of lawful age ; 
what is the annual value of the lands ; of what superior they are feu- 
dally held ; by what species of tenure ; by whom they are at present 
powessed ; and why, and how long they have been so possessed. To 
each of these questions a specific answer ought to be ffiven by the 
jury, and their verdict, whm drawn up and authenticated indue form, 
16 called a service, and* is with the original brieve retottred or trans- 
mitted to the office in Chancery, from which it issued, where it is 
recorded, and where an authenticated* copy, commonly called the 
** Retour of the service," is delivered to the bearer of the brieve.(a;) 
This species of service is called a ^ service in special^* but withoiA 
reference to investiture in any feudal property, it is sometimes desir- 
able to establish the character of bemg by propinquity the nearest 
heir of a person deceased. For this purpose the forms of a " service^ 
or ** brieve <^mquestf'* have been empb3red, which in contradistinction 
to the former, is termed a ** general service,^ and is in like manner 
returnable to Chancery. 
Where the succession consists of several subjects lying within differ^ 

(«) ffline B^roiij, Mid. Ev^ p«rt 1, p, 13. (lo) Min. Ev. 

(«) The oriffmaf** Retour** wu ia earlv limes retaroed to the heir, sfler beias^ reoorM : 
ftk le proved by the &et, thtt man/ evicn original! are now among the monimenta of Um 
taauMaa lo which tbejr rebtt. 

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R>. , 417 

eDt juri8dictk)iM»(y) a serviee oqght to be expede before the judge of 
each jurisdiciioD, for the subjects lying within if. *The r ^^gg ^ 
Court of. Session, however, bad long been in the use of 1- -I 

granting commissions to their macerst in order that the service might 
proceed before them as judges in that part, without respect to the 
county in which the property was situated. By a recent Act of Par- 
liament^ 1 & 2 Geo. 4, c 38, this form of proceeding before the 
macers has been abolished, and the Court, in place of granting com- 
missions to the macers, are authorized to grant a commission to the 
Sheriff of Edinburgh, or his substitute, before whom the service may 
proceed, wherever the lands lie. 

It was reauired that the claim should specify the degree of propin- 
quity through which the heir claimed to be served ; and unless \he 
inquest stated every link in the chain of propinquity, the service was 
liable to be set aside.(z) From the circumstances of this detail, the 
service would perhaps appear better entitled to credit, than the ex 
parte nature of the proceeding would otherwise have permitted. 

In support of the heir's claim, certain points were to be presiuned, 
unless direct proof of the contrary was brought before the inquest 
1st. The legitimacy of the claimant and his ancestors was to be pre- 
sumed. The buirden of proof, when bastardy was affirmed, lay upon 
the alieger. 2nd. When any degree of propinquity was proved, that 
was presumed to be the nearest, until a nearer was proved. In the 
proof of a pedigree, therefore, if the line of the claimant was fully 
established, it was not necessary that he should establish the extinc- 
tion of all nearer heirs without issue or descendants. Mr. Erskine 
says that the proof of the propinquitv resolves itself into this negative, 
that there is no nearer degree, which proves itself.(a) 

This rule was always followed in practice, and many cases of con- 
tested pedigree have been decided, where the party never could have 
succeeded, if it had been incumbent upon him to *extin- |> _qq -■ 
guish all nearer heirs, or prove the fact that none nearer '- J 


It seems doubtful whether the practice of recording the retours of 
services always prevailed, or whether it is of comparatively modem 
date. The question is unimportant ; if the oldest retours were record- 
ed, the records have been lost, and no trace of them remains. Those 
which now exist are kept among the Chancery Records in the Regis- 
ter Office in Edinburgh. 

The earliest records of retours now eicisting are of about the date 
of 1630. They contain a miscellaneous collection of retours, of which 
the oldest is dated in 1547, but of which the number prior to 1600 is 
very inconsiderable. From the year 1600 to 1630, the collection 
becomes gradually more ample, and approaches somewhat to a regu- 
lar chronological order. From the year 1630, downwards to the 

(y) Sand&rd oo Heritable Saccession in SooUand, vol. 1, p. 873. 

(s) Erakine*a lost, book iii., tit. 8, s. 66, Earl of Cantlis ▼. Earl of Wigtos, S3nd July, 
Ifi^S. Dictionarj of Decisiona of the Court of SetaioD, p. 14423. 
(a) Erak. Inat, book iii. tit 8, a. 66. 
{b) Saodford, p. 277, How t. Bryden, 9Ui Mtrcli, 1822. 
BLlt, 1845.— 15 

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416 bttbback's hwWekcbop stjoonfsiok* 

preeent day, the record may be considered a§ nearly perfect ; one 
volume relative to the years 1610-1014 is missing. There is reason 
to suppose that the collection of •* special services,^^ is more complete 
than that of " general services/* many of which have probably never 
been retoured to Chancery, and consequently never entered in the 
record.(c) The Record Commissioners have caused an abridgment 
of the records of retours to be published, under the title of " Inquisi- 
tionum ad Capellam Domini Regis Retornatarum, quae in Publicis 
Archivis Scotiae adhuc servantur Abbreviatio. — The Abridgment of 
the Register of Retours to Services in Scotland.** In this abridgment 
the retours of special and of general services have been separated 
from one another. 

In those of special services, a local arran^emetft is adopted, ac- 
cording to the several counties in which the lands are situated, and 
they are placed according to the order of time, 
r ♦600 1 *^^^ abridgment of each retour gives (he date of the 
I- J service ; the names of the heir and the ancestor ; their 

natural relation to each other ; the specific description of heirs to 
which the former belongs, i. e., whether simple heir, or heir male, heir 
of provision, heir portioner, &c., an exact enumeration of the landii 
and annual rents to which the claimant has been sworn heir; and )a 
statement of the valuation of the whole, or of its different portion^, 
according to the old and new extent. There is subjoined a reference 
to the volume and folio of the record, and when the retour is of a 
complete kind, there is added a reference to the other counties, under 
which, in then: chronological place, the other portions of the retour 
are to be found. In connection with this part of the work there are 
given alphabetical indexes both of persons and places. 

In the arrangement of the retours of general services, the order of 
time has been observed ; and in framing the abridgment of each, 
nothing more has been deemed necessary, than to specify the names 
of the heir and the ancestor ; their natural relation to each other; and 
the particular description of heirs to which the former belongs. A 
reference to the original record, and an alphabetical index of persons 
is subjoined. 

These records were instituted in 1680, without any public autho- 
rity, by Sir John Scott, of Scotstarvet, who then held the office of 
Director of Chancery. Notwithstanding this, they are constantly ad- 
mitted as evidence m Courts of Law.(dl) 

Retours of *' speciaP* and ** general services** do not stand upon 
precisely the same ground in respect of their admissibility as evidence. 
The former, as we have seen, were always taken with reference to 
some subject of feudal investiture ; the latter might be, and often were 
taken, without reference to any subject; it may, therefore, well be 
supposed that the proofs of propinquity would be less rigidly examined. 

(c) For t more fbO «od partScnlar account of the lervices general and tpecial, the resder 
is referred to the Preftce to the Abridgment of the Register of Retour* of Servicca in Soot* 
land, published by the Commissioners of Records, and the Appendix to the First Report of 
the Commissioners of Records, from which the brief notice of the Rctoars given above, baa 
been chiefljjr compiled. See also the same sobject treated at length in Sandfcrd on Htiitar 
ble Soccesaion in Scotland. Vol. i., p. 265, et aeq. 

{(i) App. to Sep. Pahi Rco^ 1812, p. 153. 

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Hie natcre of the evkleiice to be estracled from general retouf f» 
has been stated in the following terms : — 

♦A general retour can only be brought to prove two ^ ^^^^ -. 
facts, 1. That the ancestor died 2. That tbe claimant I ^*"* J 
served by that retour, was in the propinquity therein set forth. Now, 
in ordinary cases, both these propositions are received on user, habit 
and repute. Seldom is a witness brought who saw the death of the 
ancestor, or who saw the birth of the claimant. A general service is 
not therefore per se sufficient proof of the propinquity, when that pro- 
pinquity must be proved for another purpose. The retour, like any 
other verdict, is that formal instrument which the law requires to 
prove certain facts for a certain purpose, and to the extent of that 
purpose it is in law believed. Beyond that purpose it is nothing but 
an adminicle.(a) 

The production of retours of service is of frequent occurrence in 
claims to Scotch Peerages. 

In the Annandale Peerage case, in 1625, in order to show that tbe 
claimant was the eldest son of Lady Ann Hope Johnstone, a retour 
of general service in 1823 was offered in evidence.(/) The Attor- 
ney-general submitted, whether this, being of so late a date, could be 
considered as evidence. Counsel submitted that it was, at all events, 
primd facie evidence. The House considered it as evidence, giving 
toil such weight as they considered it entitled to. 

It has been stated,(g) that the Lord Chancellor Eldon said, '*it 
might be received as primd facie evidence, but that better ought to be 
given. Old retours or inquisitions postmortem could not generally be 
substantiated, but modem facts required better proof." And it is said 
that the printed minutes of this Peerage take no notice of Lord Eldoa's 
observations, and from the statement that the evidence was received, 
convey an erroneous impression as to the admissibility of such evi- 
.dence on disputed cases. 

♦The procedure by brieve of succession was resorted r ^^g i 
to when the property was held of the Crown. If the lands »• ■■ 

are held of a subject superior, the heir, in place of being served by an 
inquest, may obtain a precept of seisin from the superior, called 
** Clare constat" from the first words of its narrative, in which the 
superior acknowledges that the obtainer of the precept is next lawful 
heir to him who died last seised, in the particular lands therein spe- 
cified, holden of himself, the grantor, and, therefore, commands his 
bailiff to infeft him in them. The heir thereby acquires an active 
title as to the subject contained in the precept in question, with the 
superior who has thus acknowledged his right, or with his heirs. 

A precept of dare constat^ and instruments of sazine proceeding 
thereon, were admitted as evidence of heirship, on a claim to vote at 
the election of Peers for Scotland.(A) 

There were two otheir classes of Scotch inquisitions retoured to 
Chancery, and there recorded, of inferior importance to those which 

(e) Cochnoe t. Ramsaj, 11th March, 1838, per Lord Batgonj. Saqdford, 1, 300. 

( f) Mia. £t. d. 28. In a recent case, it was obseryed bj the Lords that litUe attention 
fa paid to these oocaments on account of their having been ex parte proceedings. Ai^ 
Earldom, Min. Et. p. 9L (g) Grim. Orig. Geo., pp. 145, 146. 

(4) Eleetkn of Psen ftff Scoflna, inn. £t. 1791, p. 14L 

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490 axnBBACK^s fc f iiawcjt or tmocmaoM. 

have been considered. One class of these originates in what is called 
the " Brieve of Tutory" and has for its object to ascertain who is the 
person that by law ou^ht to be appointed to the office of tutor to a 
minor under the age of puberty, asbeing the nearest agnate, or pater- 
nal relative, of the age of twenty-five years. Another class origi- 
nates in what is called *' Brieve of Idiotry,^* or ''of Furiosity^^ the 
purpose of which is to ascertain, in the first place, the mental incapa- 
city of the individual alluded to, for the management of his own 
affairs ; and, in the second place, who is the nearest agnate of proper 
age and capacity, on whom that management is to be devolved. la 
the Abridgment, the retours of both these classes have, from their 
analogy, been arranged together in the order of time, under the gene- 
ral tiife of Inquisitions de Tutela.{i) These may occasionally be 
found to aflTord some genealogical evidence or information. 

Some other inquisitions proceeding from royal authority should be 
I •BOa 1 "^^*^®^ ^^ supplying occasional evidences of pedigree. 
L ^^^ 1 Some *of these, especially those called " the Hundred 
Rolls f^ partake so far of the nature of inquisitions post mortem^ as they 
embrace many of the same subjects of inquiry. 

The rolls officially denominated " the Hundred RoTb/* contain 
inquisitions taken in pursuance of a special commission issued under 
the Great Seal, dated 11th day of October, 2nd Edw. 1. This cona- 
mission was issued in order to correct abuses which had crept in 
during the reign of Hen. 3, by which the revenues of the Crown had 
been diminished, at the same time that the subject had in many cases 
sufTered from illegal exactions. 

It was a function of the Justices in E)a'e to inquired, as well of all 
rights of the Crown, in order to preserve so material a part of the 
' royal revenue as arose from the incidents to feudal tenures, as of 
oppressions of the King's officers. For this purpose the justices deli- 
vered in charge to the hundredors certain articles called " Capitula 
Itineris" Wnen Edw. 1 issued the special commission above men- 
tioned, some additional articles of inquiry beyond those usually pointed 
out were given in charge to the jurors; which additional articles, 
after the 6 Edw. 1, were embodied in, and formed a part of the heads 
of inquiry, or " capitvla" always given in charge by the Justices ia 
Eyre. Thev were entitled " nova capitula!^ as distinguished from the 
old articles. (J) 

Amongst the subjects of inquiry in these inquisitions, were the per- 
sons holding manors formerly belonging to the Crown, tenants tm 
capite and ancient demesne, subinfeudations by tenants in capite, 
alienations to the Church, wardships, marriages, escheats, suits and 
services wilhholden and subtracted. It is evident, from the nature of 
these inquiries, that much genealogical information must be contained 
in the returns to them. 

r ^604 1 ^^^ original inquisitions for the county of Lincoln are 
L J among Hhe records in the Tower : those for several other 

(t) Preface to the Abridgment 

(J) Vide Fleta, Lib. 1, e. 20, tit ** De etpitalie Corone et Itineriik** For a more pertiffi. 
kr eeooDnt of the oavees and olijectof the Commiasion of 9 Edw. 9, and the contents of thM« 
••eai^tala,** the r«iderb referred to the pre&ee to the lit voLof the Handled RoU^pi^ 

liilMd I7 the CMWBiMioMra of PabBc ] 

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j ui ftgwf 101 9Qgt majvk »xo> 4S1 

fiooBties are among the records of the Court of the Receipt of the 
Exchequer, recenily removed from the Chapter House at Westmii>- 
gter to the Carltoa Ride. These rolls have been printed, in two 
volumes, by the authority of the Record Commissioners ; and, as no 
original rolls have been yet discovered for a few counties, extracts of 
the inquisitions for all the counties, which are entered on these rolla 
in a handwriting coeval with the inquisitions, and also preserved in 
the Chapter House, have been printed to supply the deficiency.(&) 
The second volume of the Hundred Rolls contains some inquisitiona 
of a later date, but of the same nature, taken under a special con> 
mission of the 7 Ed. 1, by way of a general mrvey of the kingdom ; 
of which, however, only those for the counties of Bedford, Bucking- 
ham, Cambridge, Huntingdon and Oxford, are known to exist.(/) 

A volurpe has also been printed, containing ** placila de quo war* 
ranta." • These are proceedings taken on behalf of the Crown against 
those persons who, in the inquisitions taken by the Justices in Eyre, 
were found to be claimants of lands or liberties against the Crown, 
without sufficient title. The rolls from which these pleadings of the 
reigns of £dw. 1, Edw. 2, and Edw. 3, have been printed, are in 
good preservation,(m) and are amongst the records recentlv transfer- 
red to the Carlton Ride from the Court of the Receipt of the Exche- 
quer, and the Chapter House. 

Inquisitions " ad quod damnum,^* were taken by virtue 'of writs 
directed to the escheator of each county. When any srant of a mar- 
ket, fair, or other privilege, or license of alienation of lands was soli- 
cited, the escheator was commanded by a writ of this denomination, 
to inquire by a jury whether such grant or alienation was prejudicial 
to the king or to others, in case the same should be made. They com- 
mence in the 1st of Edw. 2, 1307, and end with 38 Hen. 6, 1400.(n) 
Their place of deposit is the Tower. 

*A sufficiently copious calendar of these inquisitions ^ ^tQQK i 
has been printed, under the direction of the Record Com- *• -I 

missioners, to which is subjoined an index locorum et nominum.{o) Of 
this work it has been remarked, that though the result of the inquisi- 
tions is not to be gathered from this Calendar, for which the original 
records must be consulted, it is nevertheless of much utility; for it 
generally proves that the parties mentioned were seised of the lands 
alluded to, and occasionally presents genealogical facts, and curious 
antiquarian and historical information.(p) 

Forming part of the volume which contains the calendar of inqui- 
sitions ad quod damnum, and therefore proper to be mentioned here, 
is the calendar of the Charter Rolls^ the originals of which are in the 
Tower.(g) These records contain royal grants of privileges to cities, 

(i:) The Rolli are not complete for any of the coantict. Itt Rop. on Pub. Reo. App. p. 
54. {I) See Preface to vol. 2, Hundred Rolls. 

(M) Pr«&ce to Plaoita de quo warr., and tee Cooper on Pub. Reo, L p. 977. 

(«) Pre&oe to Calendar of Imu. ad qiiod dann. 

(0) Cooper on Pub. Rcc. U p. 295. Since i}ie publication of this Calendar, seventj-two 
additional inquisitions hare been discovered, of which a calendar has been interpolated, in 
an interleaved copy of the above Calendar. 4th Rep. of Dep. Keep, of Pub. Rec, p. 36. 

(j») Nicholas on Pub. Rcc, p. 44. 

(t) There are other Charter Rolla at the Rolls Chapel, which will be Dotioed in a f«tar» 

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towns, bodies corporate, and private trading companies, grants of 
markets, fairs, and free warrens ; grants of creation of nobility, from 
the 11 Ed. 2, to the end of the reign of Ed. 4 ; grants of privifeges to 
religious houses, &c. The calendar which was printed by the Record 
Commissioners from a MS. apparently of the time of Jac. 1, has an 
index locorum et nominum;(r) and with some few inaccuracies is 
said to be, upon the whole, a valuable book of reference to the con- 
tents of the records :{s) and to afibrd much information with respect 
to lands and individuals.(/) 

Domesday Book may be mentioned here as the oldest inquisition 
amongst the records of the country. It contains a survey of all the 
counties in England, except the four northern, with a statement of all 
the ancient demesne lands of the Crown. It also contains some pedi- 
grees. It is kept in the Chapter House at Westminster. 

Inquisitions of lunacy will sometimes bq^vailable as evidence of 

r *606 1 P®^^'*^®* ^" ^^® ^''*^' ^f ^^ ^^^"® ^"^ ^f Chancery the 
L J ♦proceedings on a commission delunaiicoinquirendo were 

put in evidence. In the return to the inquisition the jury found £. R. 
Cotton the next heir of the lunatic, and that he was of the a^e of 
thirty years.(ii) This was read to prove the legitimacy of fi. R. 
Cotton. It was proved that it was formerly the practice, when an 
inquisition was executed in the country, to find heirship, but not iMrhen 
it was executed in town. In both cases it is customary to refer io the 
Master to inquire who is the next heir. 

In the House of Lords on the claim of James Netterville, Esq., to 
the Viscounty of Netterville,(t?) the appointment of a guardian to a 
lunatic, reciting the commission and inquisition, whereby it was found 
that his brother was his next heir, were put in evidence : examined 
copies of the inquisition from the ofBce of Registry of Chancery in 
Ireland were put in« but the inquisition itself does not appear to have 
been called for. These were formerly, together with other inquisi- 
tions returned into Chancery, deposited at the Rolls, or in the 
Tower ; but they are now kept in annual bundles in the Petty Bag 

[ -^607 ] •CHAPTER VIII. 


Records are " the memorials of the Legislature, and of the King's 
Courts of Justice," and are said by Gilbert, C. B., to be " authentic 
beyond all manner of contradiction."(a) By this it must not be 
understood that records are conclusive evidence of everything that may 
be found in them. This seems clear from the case of Pride v. Earl of 
Bath, in which evidence was admitted to bastardize a man after his 
death, and that of his father and mother, by showing that their mar- 

(r) Pre&ce to the Calendar of Charter Rolla. 

(r) Coo^ on Pub. Rea in p. 995. (0 Nicolas on Fab. Reo^ p. 41. 

(•) Beer ▼. Ward, Ut issue, p. 53; ^od issue, p. 71. («) Min. E?.. p. 57. 

(IP) 3iid Repi of Dep. Keep, of Pubb Roc, p. ifi. . (e) Oiib. on £v. p. 7. 

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Ajfcmnr fvblio bsoomm* fSf 

riage was void, against a pateat of Poerage» and an Act of Parlia; 
ment, in which he was styled son and heir.(6) With respect, how- 
ever, to the principal fact of which the record is a memorial, as the 
passing of an Act of Parliament, or the tenor of a judgment or decree, 
" no averment, plea, or proof to the contrary"(c) can be admitted. 
Except on claims of peerage, examined copies of records have always 
been treated as primary evidence, apparently on the principle stated 
to be applied to parish registers, namely, the public inconvenience 
which would be caused by 3ie removal of public documents from their, 
proper depositories.(rf) 

In claims of peerage, however, a stricter rule has prevailed, and it 
is the uniform practice of the House of Lords to require the produc- 
tion of the original record, in the hands of some officer of the estab- 
lishment where it is deposited, if within the kingdom. Thus on one 
occasion, an examined copy of an inquisition post mortem^ taken in 
the Palatinate of Durhanil was rejected, and the *original r ^^qq -■ 
was required. In another case permission was given to ^ J 

counsel to read from an examined copy, on account of the damaged 
state of the Roll itself, which would have made a considerable time 
necessary to make it out ; but there the Roll was produced, and thQ 
permission to read from the copy was only given, after particular 
inquiry as to the examination of it, by the witness who produced th^ 
Roll, and his knowledge of its accuracy.(c) The rule has not been 
extended to records out of the kingdom, examined copies of which are 
received, the witness who produces them having been first sworn to 
his examination of them, and their accuracy.(/) 

The recent act for the regulation of the public records, after enact- - 
ing that a public record office shall be established under the direction 
of the Master of the Rolls, who is to have the custody of all the pub* 
tic records, amongst other enactment, directs that a seal of the office* 
shall be made ; that copies of any records in the custody of the Mas- 
ter of the Rolls may be made by his permission, which being exam- 
ined and certified by the deputy or assistant keeper of the records, 
shall be sealed with* the seal of the office; and that all such copies 
shall be received as evidence in all Courts of Justice, and before all 
legal tribunals, and before either House of Parliament, or any com- 
mittee of either House, without any further or other proof thereof, in 
every case in which the original record could have been received 
there as evidence.(^) 

In the recent case of the claim of Sir B. W. Bridges to the Barony 
of Fiiz waiter, a copy of a commission to take a visitation, under the 
seal of the Record-keeper in pursuance of this act, was put in evidence 
without objection ;(A) and it would seem, therefore, that the House 
of Lord^will receive documents certified and sealed in accordance 
with the act, even in claims of Peerage.(t) 

(() 3 Lerlnz, 410. (e) Co. Litt SA) a. 

id) Seo Dongl. 594, n. ; 1 B. & A. 185. (e) Marmyon Barony, Min. Ev. 25. 

(/) Sec Alhenry EUm>ny, Min. Ev. 8; copy of Promdinga in Chancery in Ireland, 
tdmittod in the same caae, Min. £v. pp. 32. 34 ; Copy of Decree in Scotch Court, Rozborgh 
Dukedom, Min. Ev. 116. (g) i &. U VicU o. 94, aa. 10. 13, 13. 

(A) Min. £v. 1842, p. 94. 

(i) That the House of Lords if not bound by the ordinary roles of efidence, see ram 
|k 9o« 

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r *609 1 ^^ treating of the public records of the kiD|:clom as 
^ J sources of ^genealogical evidence, it will be desirable in 

some degree to observe the classification of them which has been 
inade by other writers; by whom they have been traced as concern- 
]i)g the proceedings of the Houses of Parliament, the Revenue, the 
Courts of Common Law, and the Court of Chancery. (^') The pro- 
fmiscuous nature of the contents of some of the earlier records makes 
it difficult, if not impossible, to distinguish them all according to this 
classification ; but exact accuracy is not necessary. 

The Parliamentary Records, or, as they may be generally deno- 
minated. Rolls of Parliament, form by far the most important branch 
of the public records of the kingdom, from their antiouity, and the 
multiplicity of subjects, which in the earlier periods of our history 
came before the parliament. They are of course of a very miscel- 
laneous nature, comprising statutes in varies forms, parliamentary 
petitions, writs and proceedings thereon, wms of election and sum- 
mons, charters, and various other matters not easily susceptible of 
distinct classification. Some of them, as the Charter, Patent, Close 
and other Rolls, form distinct sets, and will be treated separately ; and 
of the rest some sort of classification will be attempted ; in which 
arrangement, the different publications, which have from time to time 
been put forth, in the forms of calendars, indexes, abstracts, &c^ of 
diflTerent classes of these records, will assist. 

No record which can properly be called a Roll of Parliament, an- 
terior to the eighteenth year of Edw. 1, has been discovered. Rolls 
of pleadings coram rege et concilio of an earlier date have been found, 
but there are no consecutive records of the legislature until the above 
mentioned era ;{k) and even from that time the series of records is 
very imperfect. Thus of Edw. 1, only the Rolls of the 18, 19, 20, 21, 
22, 23, 26, 28, 29, 30, 33, and 35, are preserved. Of Edw. 2, only 
the 8, 9, and 14. Of Edw. 3, only the 1, 4, 5, 6, 13, 14, 15, 18, 21, 

L -I and there are many chasms in subsequent reigns.(/) 

The parliamentary petitions, writs, and other proceedings thereon, 
contained in the Records of Parliament, are of two classes : public 
petitions, upon which the public statutes were grounded ; and private 
petitions, presented by individuals, or communities, in relation to their 
own aflrairs.(m) The former, though of great value to the historian, 
do not aBbrd much assistance to the genealogist, and do not require a 
very detailed description here. 

It may be suflScient to notice the several forms in which they exist 
Of these there seem to be four classes, all of authority as records. 
The Statute Rolls which contain the statutes to the 8 Edw. 6. Inrol- 
ments of Acts of Parliament, containing the acts ceriified,''and deli- 
vered into chancery, from 1 Ric. 3, to the present time. Exemplifi- 
cations, Transcripts, Writs ; and Original Acts from the 12 Hen* 7, 

( «') Batler*8 Co. Lit S60 a, n. (1). 

(1^) Up to that tinio, the proceeding of the legislstare were exceedingly irremitar, tnd 
greatly defective in point of form ; tfterwarde they acquired greater regiuarity, though iar 
removed from that in which they appear at present. Ibid. 

{t) Cooper on Poblic Recorda, vol % pL 11. («t) Itnd. toL 1, p. 395. 

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to the present thne, wfaicb, with someinterraptions, are in the Parlia* 
ment Office.(n) 

The second class of Parliamentarj writs and proceedings above 
mentioned, namely, those founded on the petitions of private persons 
or communities, abound with curious ana valuable facts, illustrative 
of matters of descent, tenure, and genealogy. The writs of summons 
and election will be treated separately ; the other writs, commissions, 
and documents relating to Parliament, may be briefly noticed under 
the following heads : — Commissions for the conservation of the peace, 
or for the punishment of breaches of the peace; commissions of inquiry 
relative to usurpations, wrongs, and oppressions, not cognizable in the 
ordinary course of law ; the grants of franchises, or remedies of public 
nuisances ; grants of tolls and dues to bodies corporate, or individuals ; 
grants *of lands and dignities made by the king with con* r ^^. . ■. 
sent of parliament ; remedial and other commissions ; *- J 

writs issued by virtue or particular statutes, as those relating to the 
perambulations of forests, purveyance, &c.(o) This summary, short 
mod imperfect as it is, will serve to give some notion of the nature of 
the information derivable from these records. 

Six folio volumes of the Rolls of Parliament were published in the 
year 1767, under the auspices of the House of Lords. They were 
said to contain all the existing records of the parliamentary proceed<« 
ings,(p) and had the character of being executed with the greatest 
accuracy.(9') Numerous ancient parliamentary petitions, &c., have, 
however, been discovered since the publication of that work, and it is 
stated to be otherwise imperfect.(r) Yet it is certainly a valuable 
pablication, comprising a period of our history from 1278 to 1508, and 
contains a large number of petitions, pleas, and other documents upon 
the miscellaneous subjects, which at that period came before the House 
of Parliament.(s) 

The writs of summons to peers, writs for the election of members 
of the Commons' House of Parliament, writs for levying the expenses 
of knights and burgesses, writs of military summons, and other parlia- 
mentary writs, form a large and important branch of the Records of 
Parliament A collection of these valuable writs is in process of pub* 
lication, under the authority of the Record Commissioners. It includes 
all the records which show the constituent parts of the ancient legisla* 
tive, and remedial assemblies of England, beginning with the reign of 
Edward 1, when they first assumed a definite organization. A state* 
ment of the documents from which it has been compiled, will serve to 
show the nature of its contents. They have been arranged under the 
following heads :{t) — Writs of summons addressed to the prelates, the 

(•) For a foil deMsription of Uie nature and oontento of theia itatoto rolla, 6lo^ Mt Um 
Introdaction to the Authentic Collection of Statute* published bj the authority of the Record 
CommiMioners, p. xxxiT. This collection contains numerous charters, instruments, and 
iBattert of a parliameotary ibrm and oharacAer, beeidea the statutee tbemsekea. 

(a) Cooper on Poblto Records, toI. 1, p. 320, where see a more detailed classifioatioB of 
Uiese parliamentary proceedings. 

( p) Preface to Index to Rolls of Parliament, 1833. 

iqy Butler's Co. Litt 260 a, note (1 ). 

(r) Edinborgh Review, vol. LuL p. 474 ; Introdoction to Authenlie Collection of Stat pn 
zzzvii. (a) Preiace to Index to Roils of Parliament, 1832. 

(I) Frelkoe to 1st voi. of Parliamentary Writs, published 1827, where aet a more full 
M«0Qnt of the writs, 6uh 

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4M HUBtAMVvvww^'^ilvwilttoir. 

^ ^ cereSf or ^Magnates^ and also to the justices, clerks, and 

others of the council Proxies of the prelates, earl?, and proceres. 
Precepts, and mandates requiring the attendance of the inferior clergy* 
Writs for the election of members of the Commons' House of ParUa- 
nent, and returns. Writs for levying the expenses of knights, citizens^ 
and burgesses. Writs of military summons specially addressed to the 
greater or lesser barons of the realm. Writs for the performance of 
military service, addressed to the sheriff of the county. Commisaions 
of arrays and other instruments relating to the military service. Re* 
cords affording evidence of the names of the individuals vi^ho actually 
attended, or deliberated, in parliaments or councils. Records afford- 
ing evidence of the actual performance of military service. The work 
is accomfmnied by a chronological abstract of the documents, v^ith 
historical notes, a calendar of the writs of election and returns, and an 
lilphabeticaj digest of the facts relating to persons. Two volumes of 
this work (the second in three parts) nave been given to the public 
The first comprehends the reign of Edward 1, the second that of 
Edward 2.{u) 

The Rolls of Parliament, from the 16 to 35 Edw. 1, and one of 
petitions in parliament, of 7 Hen. 5, are in the Chapter-House at West* 
minster. A book of inrolment, called Vetus Codex, in which are 
entered proceedings in parliament from 18 to 35 Edw. 1, and in 14 
Edw. 2, is in the Tower.(t;) There also are rolls containing pleast 
and other proceedings in parliament, between 5 Edw. 2, and 13 Edw, 
3, and rolls of parliament of 9 Edw* 2 ; 4, 5^ 6, and 13 Edw. 3, an4 
from thence to the end of the reign of Edw. 4 ; those which follow, 
down to the present time, are in the Chapel of the Rolls. So late a^ 
the reign of Car. 1, miscellaneous matters and proceedings of parlia* 
ment were enrolled together with the acts, public and private ; but in 
the early part of that reign, tlus practice was discontinued, and from 
r *613 1 ^^^^ ^^'^^ inrolments of Acts of Parliament contaii) 
^ -I nothing ^but the public acts, and the titles of private acts, 

the latter bead moreover having been omitted since the 32 Gea 2.(ip) 

The certified transcripts into Chancery of Acts of Parliament, are 
received in evidence of the contents of the acts, even by the House of 
Lords in Peerage claims. Thus, in the Roos case, the original certi- 
fied transcript into Chancery of an act passed, 22 Car. 2, lor the ille- 
ffitimation.of the children of the Lady Ana Roos, wife of John Lord 
Roos, was read in evidenc6.(4;) 

The Parliament Rolls for the periods before the commencement of 
the Journals, are the proper evidence of the sitting of peers in parlia- 
ment, and of all other facts which would follow as consequences of 
such sitting. It is to claims of peerage that we must look, for illustra- 

(«) Prefftoe to tlie 9nd ^arae of Pariiamentary Write, pnblialied 1834. The < 
of writs of fidw. 3, and Ric 9, are oompleled ; Report of Prooeedings of Editor of RoOs of 
Parliament for 1830, 1831. See Ckwpei on Public Records, vol. 2, p. 77. 

(») This book ie an aotlientio record. See Cooper on Pabttc Records, vol. 1, p. 176, n. 

(w) lotroducUon to authentic collection of Statutes, zxxv. Copies of Petitions in Parlia* 
isent, and Answers thereto, of various years of Cdw. 1, Edw. 3, and Edw. 3, are anionff Lord 
nale*s M89. in the Library of Linoohi'a Inn. Ibid. p. xxxTii. And see Cooper on Pnblie 
Records, v^L I pp. 161 1^. 176. {s) Roos Barony, Biin. £t. 145. 

Digitized by VjOOQ IC 

ttons of the use of tliese> earij reeonbi, as ffenealogical evidrace^ 
Thos, in the ctaim of Sir W. Jemingbam to the Barony of StafTord* 
the Parliament Roll of 25 Bdw. 3, produced from the Tower, was put 
in, to prove that Ralph Baron of Stafford, sat in parliament, as a baron^ 
and was appointed one of the triers of petitions in £Dgland.(y) Ib 
the same case, to prove that Henry, Dnke of Buckingham was attaint'* 
ed of high treason, the Parliament Roll of the 1 Ric* 3 was produced 
from the Rolls' Chapel.(z) And, again, in the same case, to prove tho 
restitntion in Mood of Edward StafS^rd, knight, son and heir of the 
said Henry, Duke of Buckingham, the Parliament Roll of 1 Hen» 7 
was produced from the same cu8tody.(ii) 

The miscellaneous information contained in the early rolls of parlku 
ment, which begin to be less copious about the time of Hen. 8, is in 
hiter times supplied by the journals of the two houses. The journals 
of the House of Lords commence with the 1 Hen. 8, but the originali 
of some years of that reign, and *the first and second ^ itiiiA i 
sessions of 1 Mary are wanting.(J) They have at all L ^^ J 
tinoes been considered as recor(is,(c) and copies of them have conae- 
quently been admitted in evidence. 

The nature of the facts to prove which the journals have been 
admitted by the house itself in claims of peerage, has been noticed ia 
a former page.((2) Some further instances may be adduced here. In 
the claim of Mr. Trefusis to the barony of Clinton, in 1794, to prove 
that Edward Earl of Lincoln died in 1692, without issue male, the 
journals were referred to ; by which it appeared, that an order was 
made, that the Earl of Lincoln do not take the oaths, until the report 
of a committee, to whom the patent, and his pedigree had been refer* 
red, should be received. This committee, having been attended by 
the heralds, delivered in a pedigree signed by the heralds, which they 
were of opinion was clear, and from which the fact of failure of issue 
appeared. In the same case, recourse was had to the journals, to 
shew certain proceedings of the house, in investigating the precedence 
of an ancestor of the claimant, from which an inference was drawn, . 
as to the creation of the barony by writ, and not by patent ; and this 
inference appears to have been considered sufficient, no direct evi- 
dence to that effect having been adduced, and the claim being allow* 

So in the claim of Sir J. S. Sydney to the barony of L'Isle, entriee 
in the Journals of the House of Lords were produced, to prove thai 
Robert Sydney, first earl of Leicester of that name, left Philip Sydney, 
second earl of Leicester, his eldest son and heir, who left descendants* 
who successively enjoyed the title.(/) 

The Journals of the House of Commons commence in 1 Edw. 6 ; 
but until the beginning of the reign of EUzabeth, they contain merely 
short notes of the several readings of the respective bills before the 

(y) Stafford Barony, 1808, Min. Er. p. 39. («) Ibid. p. 41. 

(a) Ibid. p. 53. Aqd we Camoys Barony, Mia. E?. p. 20 et aeq. 

{h) Introd. to Coll. of Stat App. F. p. Izx. 

(e) Per Lord Mansfield, Jonee ?. Kandall, Cowp. 17. 

(<0 Supra, p. 100. 

(<) Clinton Barony, Serjt HUrs Collection, yoL 30, p. 831. 

(/) L'UecaM,^ySiriLNioolM,pb4<i. See «leo Fit2walt«r Barooy, Min. Ev. p. 6. 

Digitized by VjOOQ IC 

49$ bubvaokIi BViUM wa i w ( 

house, with a few occasional entries only of other procee<]ings.(s^) They 
r ^atK 1 ^^^^ not always *stood on the same ground with those 
"■ J of the House of Lords; and doubts were formerly enter- 

tained whether they were admissible, the House of Commons not being 
a court^of record.(A) Copies of the journals were, however, admitted 
without dispute, in the case of Rex v. Lord George Gordon.(i) The 
House of Lords has also admitted such copies ;{j) it may now, there- 
fore, be considered as settled, that the Journals of the Commons bear 
the character of records, at least, to the extent of making copies of 
them admissible as primary evidence. 

Amongst the records of the House of Lords of Ireland, preserved in 
the Parliamentary Record Office, Dublin Castle, are several petitions, 
reports, and other papers connected with claims to peerages made pre- 
vious to the Act of Union. The dignities to which those documents 
chiefly relate, and the period at which such claims were made, are as 
follows :(*) — 

Papers relating to 
The Barony of Slane, dated about the year - 1709 

Earldom of Tyrone ... 1717 

Barony of Kingsale - . . . 1721 

Barony of Upper Ossory ... 1749 

Barony of Le Poer .... 1767 

Viscounty of Valentia, &c. - - - 1771-2 

Viscounty of Boyne, &c. .... 1772 

Barony of Castlestewart ... 1774 

Barony of Dunsany .... 1782 

Viscounty of Castellogallen ... 1788 

Earldom of Ormond and Ossory ) 

Viscounty of Thurles > - - 1791 

Baronies of Butler and Arcklow ) 

Earldom of Roscommon, &c. - - 1792 

Barony of Trimblestown ... 17^ 

Earldom of Pingall .... 1795 

Barony of Louth - - - - 1798 

Viscounty of CJormanstown ... 1800 

r »0I6 1 *Afier the Act of Union, some other claims to dignities 

^ J were also preferred. Of these, one of the most interesting, 

on account of its being principally grounded on continental records, is 

the claim to the viscounty of Galmoye. 

The series of the Charter Rolls commences in the year 1 199,(/) and 
terminates in 1516, when that species of royal diploma called charters 
ceases ; and all the written acts of the sovereign in the nature of grants, 
were thenceforward made in the form of letters-patent, and recorded 
upon the Patent Rolls.(m) They have been described as containing 

(g) Cooper on Pablic Records, toI. i. 177. 

(i) Per Lord Mensfleld, Jones ▼. Randal], Cowp. 17. (t) Dongl. 572. 

(i) Wynne ▼. Middleton, Ibid. note. 

(i) View of the Legal Institutions, Honorary Hereditary Offices, and Feudal Baroniee 
CtCaUisbed in Ireland daring tbe reign of Hen. 2, 1830, p. 277. 

(I) A membrane containing some charters of 1 Job. was lately discovered m the OfBceof 
the King's Remembrancer of the Exchequer. They are printed at the beginning of the 1st 
ToL of Rotuli Chartamm. Introdoctioo to that work, p. zzxix. 

(SI) For a ptrticnlar teoription of the differeiioo between chtrteit, latters^patcnts, and 

Digitized by VjOOQ IC 

royal grants of privileges to cities, towns, bodies corporate, and private 
trading companies, grants of markets, fairs, and free warrens, of crea^ 
tions of nobility, of privileges to religious houses, &c.(a) 
The Charter Rolls from the 1 Joh* to the end of the reign of Edw. 

4, are in the Tower of London ; the subsequent rolls are in the Rolla* 
Chnpel. A calendar of the Charter Rolls in the Tower was printed 
under the Record Commission, from three volumes preserved in the 
Record Office, apparently of the time of Jac. 1. An index locorum al 
fuminum is 8ubjoined.(o) A volume forming the first part of a regular 
series of the Charter Rolls was published under the authority of the 
Record Commissioners in 1837. It contains the charters down to the 
18 Joh. and has a copious index of places and person8.(p) 

The Patent Rolls contain grants of offices and lands ; restitutions of 
temporalities to bishops, abbots, and other ecclesiastical r ^^.^ . 
•persons ; confirmations of grants made to bodies corpo- "• J 

rate, as well ecclesiastical, as civil ; grants in fee farm ; special ser- 
vices ; grants of offices, special and general ; patents of creations (si 
peers, and licenses of all kinds which pass the great seal ; and on the 
Dack of these rolls are commissions to justices of the peace, of sewers, 
and all commissions, indeed, which pass the great Bes,l{q) 

These records commence in the 3 Joh. and are continued to a recent 
period. The earlier rolls down to the 23 Edw. 4 are deposited in the 
Tower. Those which follow, commencing with a small roll of Edw, 

5, are in the Rolls' Chapel. 

The calendar to such of these Rolls as are in the Tower, was print* 
ed from four MS. volumes, procured in 1775 by Mr. Astle for public 
use, from the executors of H. Rooke, Esq., and collated with two 
MSS. in the Cottonian Library in the British Museum, marked Titus 
C. II. and III. Indexes "rendu,** " locorum,*' and "nominum," are sub- 
joined. The work itself^, though yielding much important information, 
IS only a selection, and, in fact, a comparatively small selection, from 
the whole number of entries contained in the Patent Rolls ; of the con- 
tents of which a general and perfect calendar, has for some years past 
been in progress at the Tower.(r) 

One volume of the Patent Rolls was published in 1 885 by the Record 
Commissioners. It contains the rolls from their commencement to 
the 18 Joh. An index nominumf and index locorum is appended. 

There is no scarcity of instances amongst the numerous claims of 

lettera clote, lee NIooIm on Publio Recordf, p. 40, and th« Introdoctkm to the fdi. of Rot 
Chart, Rot. Patent and Rot. Claut. 

(a) Preface to Calendar of Charter Rolla and Inqoisitiona ad quod damnum, 

(o) Although the exact purport of the difierent chartera cannot alwaya he gleaned firoBi 
the printed Calendar, it neTertheiesa afforda much iaformation with leepeet to lands ud 
iodividoala. See Nioelae on PobUc Records, p. 41. 

{p) It is intended to publish the whole of the Charter, Patent, and Close Rolls now extant, 
in a regular seriei, onifbrmly with the Parliamentaxy Writs, Slo.; some of the TolooMi 
have been pabliahed. See inf. p. 617. 621. 

(^ Preface to Calendar of Patent Rolls ; and see a rather foUer desoriptioo of the ooa* 
tento of these rolk, in the Appendix to the First Report of the Seleot Committee on Pohlio 
Reeords, pp. 53. 84. ^ 

(r) It has been ascertained that on an average in the reigns of John and Hen. 8, not men 
than one in fborteen of the entries had been noticed in the printed Calendar. In the times 
of Edw. I and Edw. SL the averages is about one in twelve, and in the sobse^nent leigM 
•hMrt^ne ha ten. ieoCeopertMiPab]ieRMordi»liaColLfoLl.ii.SaS. 

Digitized by VjOOQ IC 

mm nummfB ithj— m 

•Peerage) of the utility of tliete rectada io afibrdiog. evidence of descent* 
r ^618 1 ^^ ^^ claim of Sir George Jerningham to the Barony *of 
■- * J Stafford in 1812, to prove a part of the claimant's pedi- 
gree, the original Patent Roll ot the 22 Ric. 2 was put in evidence, 
containing tt^ King's license to Edmund Earl of Stafford, to marry 
Ann, the widow of his late brother Thomas.(s) 

So the Patent Roll of 9 Jac. 1 was put in, to prove by a grant of 
•livery made to Francis Lord Norreys, that he was the grandson of 
Henry Lord Norreys.(0 

It has been stated in a former page, that where the creation was by 
patent^ the patent itself must be produced to prove the creation, unless 
Its loss can be shewn.(tt) In a recent case, where the enrolment of 
a patent of Peerage of 18 Car. 1 was produced to prove the creation ; 
in reply to an inquiry, whether search had been made for the original 
patent, it was stated that the claimant had no means of searching in 
any direction ; that it could not possibly be in any custody or possess- 
ion to which he had access ; that he had inherit^ no estate, and was 
not the personal representative, and therefore, had no muniments to 
refer to, and had not entitled himself to search for papers. The coun- 
sel were informed that the evidence might be received de bene es8e.{v) 

A document purporting to be a patent of Peerage from Jac. 2 to 
Thomas Nugent, was put in evidence in the claim of Wm. Thomas 
.Nugent to the Barony of Nugent of Riverstown in 1839. (to) 

In a patent of the 1 Jac. 1, produced in the Say and Sele case^ no 
'£Bwer than six descents of the pedigree were stated.(2;) 
r *619 1 Nevertheless, it seems that letters-patent are not con- 
L J elusive *proof of facts recited in them. This is clear from 

an old case at law, m which evidence was admitted to bastardize a 
aon after the death of his father and mother, against a patent and Act of 
Parliament, in which he wascalled son and heir.(y) And thesame view 
'apparently is taken in the House of Lords. In the L'Isle case, letters- 
.fMlent were produced against the claim, which recited the marriage 
I of Lady Douglas Howard with the Earl of Leicester, and the conse- 
quent legitimacy of their son. Sir Robert Dudley, which, if true, would 
.have imposed upon the claimant the necessity of proving failure of 
iasne from him* From 4be circumstances, however, under which it 
was granted, 20 Can 1, when the King was at Oxford, and as a com- 
pensation for the small price the Royal Family had paid for Kenil- 
worth, no great weight seems to have been attached to this docu- 

The close or '^claua^' rolls contain many important dooumeots 
relative to the prerogatives of the Crown, and other matters of a very 
niscellaaeous nature. That part of their contents more immediately 
connected with the subject of this Treatise, is contained principally 

(«) Mm. Ey. 1612, p. 21, and see cUim of Sir W. Jerninghain, Min. Er. p. 58. 

(0 BeaQDiont Barony, Min. £▼. 138. Other instances occur in the Lisle Baronj bjr 
Nicolas, pp. 34, 38 ; Goortenay claim, App. p. 85 ; Marmyon Barony, Min. £▼, p. 49 ; 
Camoys Barony, Min. Ev. p. 51. Letters Patent, Goortenay claim, App. p. 40. 

<tt) Sap. pp. 155, 156, which see as to effect of stat ZSci £dw. 6, c 4, and 13 Elix. ■.& 

Qd) Tracy Barony. Min. Ev. 12. 

(id) Min. Ev. p. 4, where see considerable di8CDS8ion8,as to the respectlTolhniMof ptkats 
cf peerage, and writs close. ix) Mb. Ev. p. 173. 

(y) Prids f. Etrlof fiath, 3 Lev, 410. (s) Iftctte^ iMkttm^ 419, 

Digitized by VjOOQ IC 

oti the b^ck of the Rolls, nni Musiits tf writi of MRnmons to Paritai^ 
tnent, and for the expenses of kjQtghts, citizens, and bargesses, procla- 
mations, inrolments of deeds between party and party, Kveries and 
seisins of lands, wHh a great variety of instruments too numerous to be 
recounted.(a) Since the reign of Hen. 8, they contain mostly the 
inroiment of deeds of bargain and sale, settlements and wills of Roman 
Catholics, conveyances of bankrupts' estates, recognizances, specific 
cations of new inventions and other instruments, either acknowledged 
by the parties thereto, or sworn to by a subscribinff witness for the pur^ 
pose of inroln>ent, or inrolled for safe custody only, by warrant from 
the Lord Chancellor or Master of the Rolls, ana also memorials df 
deeds, and other securities for annuities.(6) 

Until the reign of Edward 3, the entries on the close roll of the writs 
of sumnK>ns and of elections were extremely irregular. It appears to 
have been the practice (yet continued) for the Clerk of r ^qq *i 
•the Chancery to make out the writ from what is termed *• J 

the Parliament Pawn, that is to say a pannel or schedule of parch- 
ment, containing the form of the mandate, and which it was his duty 
afterwards to enter upon the Close Roll. It is apparent, from the 
examination of the records, that such business was considered of see* 
ondary importance, when compared with the documents coneeraing 
^operty. Sometimes the clerks allowed the pannel to remain upon 
the file without transcribing it; or they would content themselves with 
tacking it as a tidtr to the Close Roll; whilst every writ relating to 
land was carefully recorded and enrolled, long before the clerks of the 
Chancery felt it a duty to make the Parliamentary enrolments with 
more regularity. In a constitutional point of view, this fact is of great 
importance, smce every argument arising from the non«appearanee of 
Parliamentary writs upon the Close Roll, must fiail entirely to the 
ground ; and though the Records do not furnish any writs of summons 
of the temporal peers, anterior to the Parliament convened by Simoii 
de Montfort ; still, as there is full evidence upon the Pipe Rolls, that 
they were issued as early as the reign of Richard CcBur de Lion, we 
can only attribute their absence on this roll to the carelessness of the 
official transcriber. This sbvenliness is shown in many instances ; it 
is not uncommon to find a baron summoned to Parliament many years 
after he had been consigned to the grave, to the great perplexity of 
the toiling genealogist, who vainly endeavours to reconcile the con- 
tradictions of the most authentic materials of the pediffree.(c) 

Like the Patent Rolls some of the Close Rolls are deposited in the 
Tower, and some at the Rolls* Chapel. The former comprise those 
from their earliest existing date, Joh. 1204, to the end of the reign of 
Edw. 4. The latter beginning with £dw. 5, are continued down to a 
recent period. 

There is no calendar to these Rolls, and their value has, therefore, 
hitherto not been generally known. There is, however, in the pos- 
session of the Record Commissioners a MS. volume, containing snort 
abstracts of " RoluL Claus" from the sixth to the ninth r ^^^i i 
•year of John, and abstracts of some few Rolls of the ■- ^ 

(a) App.tol8tRep.ofCom.onPQb.Rae.ppw53,85. (i) IbkL p* 88. , 

(€) .C«^ sa Fab. fieo. (BIS. CoU.) tol i. p. 330. 

Digitized by VjOOQ IC 

ia$ BVBNMf^ mnumuM op mfOfv^^om. 

twelfth and fbnrtedoth yearg of that Kingr of which a few ptfM hMVt 
been printed.(d) 

One volume of the Close Rolls was published in 1833, by the Record 
Commissioners. It contains the Rolls from 1204 to 1224 ; an index 
nominunif and index locarum is added. 

Their utility as evidence of pedigree is sufficiently demonstrated by 
the frequency with which resort has been had to them in cases of peer- 
age claims, of which a few instan(^es will be sufficient. ThiM, in the 
claim of Lady Charlotte Fitzgerald to the Barony of Roos, in 1804, 
to prove a step in the pedisree, the original Clause Roll of 10 Edw* 2« 
was put in evidence, which contained the King's writ to the escheator. 
commanding him to deliver seisin to William de Ros, of the lands of 
WiUiam de Ros his father.(e) So in the claim of Sir William Jero- 
ingham to the Barony of Stafford, to prove that Edmund de Staflbrd 
had livery of the lands, of which his father Nicholas Baron de Staff- 
ord died seised 22 Edw. 1, the Clause Roll of that year was pro- 
duced. (/) And similar evidence was given for the same purpose as 
to another member of the family. Again, in the same case we find 
the Clause Rolls of 1 1 Edw. 3, adduced, to prove that Ralph Baroa 
of Stafford, was summoned to Parliament in the eleventh and several 
subsequent years of Edw. ^.(g) 

The Patent and Close Rolls of Ireland begin about the end of the 
reign of Edw. L They contain the enrolments of matters of a sinni- 
lar nature to those which are the subjects of enrolment on the Patetit 
f ^22 1 ^^"^ of England, with some few additional matters of ^ 
L -I nature peculiar to Ireland, such as grants of land under 

the acts of settlement and explanation, and under the commissions of 

{pace of Car. 2, and Jac. 2, and grants from the commissionera of 
orfetted estates, &c. 

The oldest Irish Close Roll is of the 20 Edw. 2. This class of Rolls 
appears not to have been continued in regular succession; there are 
indeed comparativel v few of them now existing, not more than sixteen 
haying been found, of various dates from the 20 Edw. 2, to the 13 Car. I. 
It has in fact been observed, that any difference which might originally 
have existed between the Close and Patent Rolls in Ireland, was discon- 
tinued in course of time, although the name of the former was still 
preserved ; for both species of Rolls contain matter of a similar kind, 
and in only one instance is there a Close and Patent Roll for the same 
year or period; which if they were meant to be distinct in their nature, 
could not but in sorn^ instances have been the case ; apd as far back 
as the books of reference to the Rolls extend, the Close RoUi are 
referred to, without any distinction from the Patent Roll.(A^ 
The Gascon, Norman, and French Rolls are records of the English 

{i) Cooper 00 Pnb. Bbc., f^. i. p. 304. (e) Min. Ef . p. 95. (/) Min. Er. p. 5. 

ig) Min. £?. p. 19. Other imUnces wiH be feond, tee Camoyt Barony, Min. Er. p. 6, 
sereral doee Rolls from 7 Ric.2, to 8 Hon. 5. Ibw 19 Hen. 7, end peerage claimeMM. 
On the Cloae Roll of 6 Edw. 9, dl 39 d, there i« a meoaorandam de nativitate Edwardi filU 
Edwafidi 9 Regie Aoglie primogeniti. The meou>randam ie printed in the Foedera, vol. 9, 
■t 1, p. 187, and mentions the daj of birth, and the baptism ibor days afterwards of Edw. 
8, and ako the-nanros of his godfetbtra, of whom he bad seven. 

(A)£ep.fromOom.oiiPiib.R«e.Ir8laMi, ToLLp.7a. 

Digitized byVjOOQlC 


relatiag to ihe mflkira of certmin parts of Prance, whiltt 
uoder the dominioo of the kings of Eugland.(t) 

The Gascon Rolls begin in the twenty-sixth jrear of the reign of 
Heik 3, and end with the 39 Hen. 6. 

The Norman Rolls begin in the second year of the reign of King 
John, and end with the reign of Hen. 5. They contain not only the 
instruments relating to Normandy which passed the great seal, but 
also the •*chiroffraphs" of** concords'* which were effected before the 
Exchequer at Kouen. 

The French Rolls begin with the sixteenth year of the reign of Hen. 
>, and end with the reign of £dw. 4. 

*The Gascon, Norman, and French Rolls are in the ^ ^i^os i 
Tower, and calendars to them were printed by Mr. Carte, ^ ^ 

with indexes of the names of persons and places in 1743, under the 
title of '' Catalogue des Rolles Gascons, Normans, and Fran9ois con- 
serve dans les Archives de la Tour de Londre8."(^*) 

The Roman Rolls begin in the 84 Edw. 1, and end with the reign of 
£dw. 4. They contain the transactions with the Romish see. No 
calendar has been made to them.(A) They are deposited in the 

It has been observed that the rolls of France, Rome, and Almaia 
may be considered as branches of the Close Rolls, bein^ chiefly com- 
posed of diplomatic instruments relating to transactions with the 
potentates whose names are indicated by their titles, and which, on 
account of their extent and number, were more conveniently divided 
from the genera] serios.(/) 

The Scotch Rolls begin in the nineteenth of Edw. 1, and end in 
the twenty-second of Edw. 4. They relate to the transactions 
between England and Scotland during the above period.(m) Their 
place of deposit is the Tower ; but there are Scotch treaties, letters, 
ice in the Chapter House, extending from the reign of Richard 1 to 
that of Elizabeth, which are said to be of importance. 

The Welch Rolls begin in 4 Edw. 1, and end with the 23 of the same 
King. They are in the Tower. Calendars of the Scotch and Welch 
Rolls were printed in 1772.(n) 

The Coronation Rolls contain the commissions, and proceedings of 
*tbe commissioners appointed to hear and determine r ^o . •. 
claims of services to be performed at coronations. The *• J 

Rolls of Edw. 2, Ric. 2, Hen. 4, and Hen. 5, are in the Tower : those 
from Jac 1, to Geo. 2, with the exception of Car. 1, are in the Rolls' 
CbapeL The Roll of Geo. 3 was not made up in the year 1818.(o) 

liiere are no Indexes to the Coronation Rolls, but as the whole 

(t) App. to lit Rep. of Com. on Fob. Rec p. 53. 

ij) Tbit calendar was printed for the nse of the hihabitaote of the Dochj cf Aoqoai* 
teiao, wImmo firanchieei Ourdintl Flear/ attaoked, by an arrit in the nature of a fiie wan 
fwite. CooperoiiPiib.Ree.1, pbd04. Qoarterlj Review, tqL uxu. p. 53. 

ik) l8tRepiofCoiii.onPob.Reo.Appbpb53. 

(/) Quarterly Re?iew, vol. zzziz. p. 53. 

(») let Rep. of Com. on Pab. Ree. App. p^ 53. 

(•) See the title of the work contaioing thie calendar, which embraoot virioaa other nSk' 
jeola, mwa at len|;th, Cooper on Pnb. Ree. 1, pb 306, b. 16. 

(e) Marmjon Arony, U Mta. If. ^ 107. 
Mat, 184(k~16 

Digitized by VjOOQ IC 

4M BUBBMX*t E t iniaw or loueitoj oii. 

proceedfngs at each coronation are contained in' one RoH, tbe claim 
recorded therein may be easily referred to.(p) 

In the claim to the Marmyon Barony, in 1818, seteral steps in the 
pedigree of the petitioner were proved bv the Coronation RoHs of 
almost every Sovereign from Ric. 2 to deo. 2, shewing upon each 
occasion, the right of me ancestors of the petitioners to exercise the 
office of champion, from their tenure of the manor of Scrivelsby, 
containing statements of pedigree, and evidencing the course of de- 
scent of the petitioner's fami]y.(f) 

The Pipe Rolls are described as containing " an account of the 
•ncient revenue of the Crown, written out in process every year, td 
the several sheriffs of England, who were the general receivers and 
collectors thereof, and by them levied and answered to the Crowd 
upon their annual accounts, before the clerk of the pipe ; which 
method is continued for so much of the said revenue as yet remains, 
and hath not been alienated from the Crown ; for all which, the 
respective sheriffs still continue to account, and take out their qmeivM 
yearly."(r) The earliest roll of this kind now remaining has been 
attributed to the 18th year of Hen. 1, the 5th of Stephen, and the 1st 
of Hen. 2 ; but there is good internal evidence for assigning it either 
to the 26th or 80lh of Hen. 1. The next which occurs is the 2nd of 
Hen. 2, and from that time downwards the series is nearly cotnh 

The entries on the more ancient of these rolls are of an extremely 
r *625 1 "^i^^'1^^^0^8 description, owing to the great number io 
*• J ♦former times of the sources of royal revenue. The fol- 

lowing are some of the principal particulars to which these Records 
relate : — Reliefs, escheats, fines for granting the wardship of infilints ; 
fines not to grant such wardships ; tines from knights to have wards 
in marriage ; fines from wards not to be given in marriage ; fines 
from the Jews on every imaginable occasion ; fines from knights for 
license to defraud them ; from the Jews for protection from being 
defrauded ; fines for aids, scutages, tallages and customs ; fines to 
have justice and riglit, for writs, pleas; trials, and jndgments, for expe- 
dition of pleas, trials, and judgments, for delivery of pleas, trials, afld 
judgments ; fines payable out of debts to be recovered ; fines for hav- 
ing offices by tenants in capite, for leave to many, for leave to trade, 
for the king's favotn*, for his protection and aid, for his mediation, for 
seisin, for replevin or bail, for acquittal, for murder, manslaughtert 
trespass, and misdemeanor ; fines for leave to settle duels, 6cc.(Q 
Most of these particulars may be genealogically useful, btit chieffv 
those which relate to the profits accruing to the king from the inci- 
dents to tenure.(tt) The course taken by lands held in capile te 
thereby 8etn.(v) These Rolls were formerly kept in the Court of 
Exchequer, at Westminster, but in 1800 they wefe removed, porsoaat 

(p) ] 8eltot 0001.00 Fob. K0e.,Afp.(A) p. S4,(D)^ 81 

(9) Min. £?. pp. 35. 107. 

ir) lit Rep. of Select Com. oo PoU Ree^ App. p. 161. 

(«) Preftce to the Fragment of the Great Roll for Normandy, apod Cooper on Pub. iRec 
ToL i. p. 316. (0 Grim. Orig. Gen. p. 37. 

(v) Madoz describes the great Roll of tbe Pipe a« ** the most stately Record of the 
Ezcheqoer, and the great medium of charge and discharge of renti,.lkna8» and d^btft do* 
toUMsrowB.** Hiat.fiicii.foL 11, p. IK (•) Coopir €oPab.Reo.foLI,p.917. 

Digitized by VjOOQ IC 

It^tiie Arectidti rf the eommittee on PoUie RdcoKb, fo tM WQthB 
under the eastern wing of Sonorset Hooea Tbey have receniljr 
been traosfemd to the Oarlton Ride ; mtd are in a coarse of publi* 
calioQ by the Record Comtniasioners. 

The JPipe Rolb hi Ireland commence with the reign of Hen* Sk 
They are described as principaHy composed of the returns of the 
leceipt and expenditnre of the royal revenue contained in eseheators' 
aad flheriflb' accounts; in addhioa to much general information, they 
are said to "throw great light on the history of private property, ao4 
the genealogy of the principal persons in the kingdom."(tiy) Aa 
txamioed copy of the Great Roll pf the Pipe, 12 Ed. 1, in Iretawi 
was put in evidence to show, by a fine ^or non-attend- p ^^qa ^ 
anee in Parliament, that Peter Ae Bermingham was eatip- ^ J 

lied to sit^x) 

So early as the time of the Plantagenets this Roll of the Exchc^ 
<|oer was referred to for evidence connected with descent, alihouffh 
Apt for the express purpose of proving a pedigree. In 40 Hea 3, the 
King took homage of William Lonsspee, son and heir of Idonea, 
fate wife of William Lonffspee, for allthe lands which were Idooea's* 
The abbot of Persbore, the King's escheator, was ordered to take 
aeeurity of WHImud for fiAy shillings for his relief; but afterwarde» 
Jipeii searching this roll of the Exchequer, it was found that the sa}4 
Idonea held of the King, in capite, two baronies ; whereupon it was 
adjndged by the Court of Exchequer that the said William should 
pay to the King two hundred pounds for his relief for the said baro- 

In the claim of Katherine Bokenham to the Barony of Bemers, in 
'1717, the Pipe Roll of 31 Eliz. was referred to, in proof of part of 
the pedigree of the claimant.(t) 

Dtmdale, Collins, and other genealogical writers, have made great 
me of this record ; as a reference to any of the pedigrees trac^ by 
them and published, will prove. Amongst these the nossell family is 
indebted to it, for the pedigree commences by stating that this ilW 
tvions family has been for many ages possessed of a large estate ia 
the county of Dorset, as is manifest from the account of the sherii^ 
in 1203, the 3rd of King John, when John Russell mve fifty marke 
ibr license to marry the sister of a great man called Dooo Bardolf.(a) 
This sheriff 's account proving John RusselPs existence, marriaga, 
wod estate, is obtained from the Pipe Roll, and the partiouiars of these 
parties exist on no other record. 

The following instances will at once exemplify the variety of mat- 
ten entered on the roll, and the use that may be made of it by the 

^In the pedigree of De Cronn, Dugdale cites the Pipe r ^^nj 1 
Aall of 38 Hen. 3, containing an entry, stating that Mau^ ^ J 

rice De Croun gave a fine of 300 marks to the King for his license to 
marry the widow of Albert Create, and to enjoy her dowry.(6) 

i«) Rap. ftom Com. on Pub. Ree. of IreUnd, vol. il 77. 

(x) Athenrr Barony. Min. Ev. p. 7. 

(y) Grim. Ong, Gea. 40. CraiM on Dipi. p. 33. Madoz, o. 10, t . 4. 

(t) ColliM. 349. (a) Collins's Peerage. 0ir JB. Brydget*! ei, foL I. p. 9®. 

iff) Dogdaie^f BaroDage, foL i p. 412. 

Digitized by VjOOQ IC 

4Ml HUiBMM^i tivc 

< ThePtpeRoilof48 Hea. 8, iscitedbyDwdde^ia ti»podq^ 
Mortimeri of Ricards Cattle, to shaw that Hugh da Mortimer* aott 
and heir of Robert, upon the death of William de Stateril, husband 
to Margery de Say, his mother, on pajriog one hundred pounds for 
his relief, had liverv of all those lands of' her inheritance, which he 
the said William held as tenant by the curtesy.(c) 

In the pedigree of Lacy, Dugdale cites an entry in the Pipe RoH 
of 6 Ric. 1, stating the payment by Walter Lacy of an aid for tha 
King's redemption of 512. \08.{d) In 10 Ric. 1, this Waker Lacy 
save the King 2000 marks for his favour, and to have the livefy m 
bin lands ; but this being the last year of King Richard's reign. King 
John immediately succeeding exacted of him no less than 1200A for 
the like favour and livery.(e) 

In the pedigree of D'Arcy, Dugdale cites the Pipe Roll of 29 Hen. 
8, to prove the payment by Norman D'Arcy of 30/* upon assassmfeot 
of the aid for marrying the Kind's eldest daughter; and that of 98 
Hen. 3, to show his payment of 40i!. upon collection of the aid for 
making the King's eldest son a knight(/) » 

The Memoranda Rolls contain entries of a vast yariety of matters 
connected with the King's Exchequer of account They comroettoe 
in the reign of Hen. 3, and continue to the present time.(^) Tbajr 
have been transferred with other records of the Lord Treasaror's 
Remembrancer's Office from Somerset House to the Carlton Ride. 
The Index to the Memoranda Rolls posterior to Hen. 7, was pub- 
T *628 1 li^i^^ ^y J^"^* 1" 1705, and an ^abstract of them has 
L -I been ordered by the Record Commissioners to be made 

which is now in progress. 

In the claim of Margaret Fenys to the Barony of Dacre, in ibe 
time of Eliz. and Jac. 1, the marriage of Ralph de Dacre with Mar* 
garet, daughter and heiress of Thomas de Moulton^ was proved by 
an entry on the Memoranda Roll, 6 Edw. 3, of the payment by them 
of 139. 4d.9 as their relieis.(A) There are other Rolls, called Afamo- 
randa, of a similar nature to these, which were formerly kept in 4h6 
office of the Queen's Remembrancer at Westminster; they also have 
recently been deposited in the Carlton Ride, where inventories and 
calendars of them will be prepared.(i) Other Rolls from the sawe 
office are now in the Stone Tower at Westminster Hall, and in the 
Exchequer Office in the Inner Temple.( j) 

The Memoranda Rolls of Ireland commence in the 1 Edw. 2« and 
continue to the present time. They are stated to be of a far more 
miscellaneous nature than those of the Exchequer in England, at iMMt 
as far as the latter has been described by MaLdox.(il) 

The Originalia are the estreats transmit^ from the Court of 
Chancery in the office of the Lord Treasurer's Remembrancer in the 
Exchequer, of all grants of the Crown enrolled on the Patent aSKl 
other Rolls, whereon any rent was reserved, any salary payable, or 

(c) Vol I. Pi. 162. (d) Vol. L p. 97. (e) Vol L pb 97. (/) Vol. L p. 370. 

(r) Ist R«p. of Seleot Gem. on Fob. Ree. p. 1S5, whefe aee fUrther Mcoont of thtqi. 
(A) Collins, p. 47. 

(t) 4tli Rep. of Dep. Keep, of Pub. Reo. 1843, p. 18. Law H^f. vol 30, p^ SaS, 
7) Rep. of Rec. Com. 1»7, App. pp. 154. 194. 
j Ref. €B Fab. R«o. of Ireland, foL U. p. 8S3. 


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■Bjr terviee toi be peHbrmedt "which eitraaU cotinieisee «boal tbt 
bogumingof the reign of Hen. d^aad mre ooatiDiied to a late penod.(}) 
-Tnese r^ords are now in the Carlton Ride. 

An abstract of some of tbete Rolls has been printed by the Record 
Gommimonenu It commeooes with the Roll of 20 Hen. 8, the ear* 
Iie«t record of this tetiim diseoyerabie, and concludes with the end of 
<be rmgn of Edw. 8. It bat been compiled from a •oare- p ^ng n 
fol examination of the office repertoriea with the records *- ^ 

tbemselTOs; the former^ tbou^n of considerable use, having been 
feond not desenring of implicit retiaoce. Indexes renifn, iS^aruph 
and nmnmum are subjoined to each volume.(m) An index to the 
■lore modem part of the Originalia (from Hen. 8» to Anne) has been 
published by Mr. Edward Jones.(n) 

The OriginaHa Rolls, containing a writ 23 Edw. 8, to the eschea* 
tor, commanding him to give seisin of certain lands to the heir fouad 
by the iaquisitiont were produced in the claim of Lewis Dymoke to 
toe Barony of Marmyon, to prove that de8cent(o) 

The Liberate Rolls contain precej)ts directing the pajrmeotof sums 
of money, or to a sheriff to deliver possession ot lands of Koods 
wUch had been extended. They begin in second Job. and end with 
4ke reim of Edw. 4. They are chronologically arranged, and are 
referred to in the general calendar of the records ia the Tower, 
-where they are depos]ted.(p) 

The Fine Rolls in the Tower begin in the sixth year of the reign 
of King John, and end with that of Edward 6. Thev contain entries 
«f fines paid to the King for licenses to alienate lands ; fines pro 
exaneratume mUitum^prolicentia concardoMdi, and occasionally lir- 
eries of lands, 6cc These rolls are arranged in chronological order, 
and are pointed out in the general calendar.(9) 

Tba« are other Pine Rolls of later date in the Rolls Chapet. 
These commence with the reign of Edw. 6, and end with the 17th 
year of Oar. 1. These are sometimes called the Lord Treasurer's 
Roils, and appear to contain a greater variety of matter than those 
ia the Tower. larolments of patent offices in the gift of the Lord 
Treasurer, of general liveries of lands held •» captle, and entries of 
writs de dwn elau$U extremum, d^c, are to be found in these 

^In the claim of Sir W. Jerningbam to the barony of r ^om i 
ataifcrd in 1809, to prove that Robert de Stafford had ^ ^^^ J 
livery of all the lands of which his brother, Henry de Stafford^ died 
seised in the 25 Hen. 8, the original Fine Roll of that year was pnK 
duced in evidence from the Tower, (f) 

Tlie Rolk of Redisseisin contain writs to, and proceedings of, sher- 
iffs, for restoring to the possession of lands or tenements those who 
had been unlawfully dispossessed. They are digested in chronologic 

(I) Ift Rep. of Select Com. on Pub. Ree. App. p. 155. 

(m) FnfkoB to Abe. of OrigintBa. (•) OMper on Pob. Ree. toL i p. HL 

(•) Mul.Bv.^93. ip) letRep.ef 8eLGoai.onPab.Ree.,App^p.54. 

(f) let Rep. of Select Com. on Fob. Ree. App. p. 54. 

(r> let Rep. of Selett Ctai. on Fab. Ree., App. pw 8S. 

(t) Mio. £?. p. 5, and seeCuBoye Bafooy, liiii. Bv. pp. )8. 35. ' 

Digitized by VjOOQ IC 

4M KinniMNiVsvii 

cal order, and are pointed cot ia the general calefidaT of Itie reeordtf 
in the Tower, where they are depo8itod.(<) 

The Confirmation RolU, which are fMreaerved in the Rolls Chapel, 
b^n with Ric. 3, and end in 12 Jac. 1, none bavinc^ been made up 
since that time. They contain confirmations of charters to cities^ 
boroughs, or other bodies corporate or politic, and also to private per* 
sons, and all confirmations since that time have been enrolled pro* 
miscuously with other patents on the Patent Roll8.(tt) 

The returns to writs de probatione atatis are amongst the records 
of Chancery deposited in the Tower. They do not appear to have 
' been ever kept as a distinct class ; but are mixed up with records^ 
described as Miscellaneous Rolls by the Record Commissioners* 
Hence no calendar or index to these records has existed, and though 
** of the highest importance for the establishment of pedisTees,**(a) 
they have CKBen comparatively unknown and inaccessible. Tne nature 
(^ these document, and the occasions on which the writs were issued* 
are explained in a former page, where also will be found some 
instances of their utility as genealogical evidences.Oo) Upwards of 
six hundred and thirty-one of these important documents nave bean 
brought to light, in the course of examining the Miscellaneous RoUi 
above mentioned. The earliest of these is dated in the 10 £dw» 8, 
f *63i 1 ^^ ^^ latest in the 51 £dw. 3. It is probable *th«t 
^ ^ more will be discovered in the progress of the examina* 

tion. Catalogues of those already found have been prepared, whicli 
present, in a tabular fonp, the name of the person who was the sub»> 
ject of the inquiry, the result of the inquiry, and the county where U 
was made.(ar) 

The ancient placita^ or Rolls of the Curia RegiSf form another 
most curious fund of information to the historian and genealogietb 
They are the records of pleadings in our several Courts, and the 
judgments thereon, from an early period, and their contents are, coa* 
sequently, of a very miscellaneous character ; amongst them will be 
found pleadings concerning heirships and the proof of age aad pedi- 
gree, nonours and baronies, upon writs of quo warrcmio^ and other 
topics, not necessary to be detailed here. Many of the proceedings 
on the placila are also to be found in the quo warranto and Hundred 

Amongst these records may be particularized the Rotlsof the King's 
Bench, from 1 Ed. J, to the end of Hen. 5, and of the Common Pleas; 
from the same date to the end of Hen. 7. They have lately beea 
deposited in the Carlton Ride. 

The most material of these pleadings and judgments, from the 9 
Ric. 1 to the end of Edw. I, have be^ printed under die authority 
«f the Record Commissioners, in a volume entitled, *^ Abbrevatio Pt»- 
citorum,'' with a copious index renmu This work contains abstraeta 
and selections from the placUOf and though extremely defective, 

41) Ifi Repu of Seleet Com. od Pab. Rec^ App. p. 54. 
(ti) Ist Rea of Select Com. on Fob. Ree., App. p. 85. 
(«) Third Rop. of Dep. Keep, of Pub. Reo. pb 93. (it) Sop. p. 431. 

is) These caUlogaes are printed in the Third Report of the Defk Keep, of P«b. Bee. 
App. II. 5 e, p. 302, and the 4th Repu App. II. 5 fr, p. 131. 

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temlhe ottmbef of etnt^rm left uoooUcodt k yet a valuable ac(^t«i^ 

With respect to ibese Rolls, it has beeo observed, that if they were, 
accordiog to a suggestion made to the Record CommissioDers, to be 
published in Eioglisn, it is apprehended there would scarcely be a per^ 
iOQ of family, or possessing real property, who would not be able to 
traoe therein some evidence of his pedigree, or of the ancient rights^ 
privileges, and fraiK^hises formerly attached to the property he now 

*In the claim of Margaret Fenys to the Barony of «- ^^0 1 
Dacrdt in the rei^n of Queen Elizabeth, the marriage of I- J 

Thomas de Mouuon with Maud, heiress of the family of Vaux, was 
proved by an entry in the Placila coram Rege^ 43 lieu. 3, in whicti 
said Thomas ckinM to be patron of the priory of Lanercost, through 
Matilda his wife, who was the heiress of the founder.(z) Several other 
links of the claimant's pedigree were proved by the Pladia Rolls of 
Aaszize of Ed* 1 and Ed. 2.(a) 

In the year 1554, Edward Kynaston, Esq., who claimed to be heir 
to the Barony of Powis, filed a bill in Chancery against certain per*- 
sons named Vernon, charging them with setting up a pretended titlf 
to be heirs to the last LfOrd Powis ; and he afterwards examined wiw 
nesses (two of whom had attained their respective ages of one hun- 
dred years) in perpetinm rei memoriam. Nearly two centuries after- 
wards this evidence was made use of by his descendant, John Kynash 
ton, in a renewal of the same claim ; and the only evidence of the 
marriages of two of the parties in the pedigree, were the placila of 
the Queen's Bench for the years 1571, 1575, and 1590.(6) 

The ancient ^^acita of Ireland begin with the thirty*sixth year of 
Hen« 3. Tiiey contain a similar profusion of information on various 
topics to those of England.(c) An attested copy of an extract from 
the Irish Plea Roll of 3i Edw. 1, containing a claim for dower of 
Johanna, widow of Meiler de Bermingham, eldest son of Peter de 
Bermingfaahfi, and also a petition of the said Peter, against tha 
escbeator who had seised certain lands, on the death of the saiii 
Meiler, were put in evidence in the Athenry clainnu(d) 

The Fine and Recovery Rolls of the Court of Common Pleas form 
an important branch of the Records. The earliest of the fines weiie 
oriffinally among the Records in the Chapter House, but in the reign 
of Hen. 8, the practice of enrolling them there appears to have ceas^, 
and they have since that Ume been ^deposited m various r ^^ » 
offices connected with the Court of Common Pleas. In '- f 

the Chirographer's Office records of all fines, with the names of the 
paries, were regularly entered in books. In the Prothonotary's Offioa 
were i^e^corded entries of pnBcipes for suflerinc recoveries, with tha 
names of the parties^ and description of the lands. These Rolls from 
the Chirographer's and Prothonotary's Offices were, in 1809, removed 

(Sf) Coop, on PQb.Roc.fol. 1, p. 945. 

(s) Colli M*0 ClaimB to Baronies bj write, title DccfM, 47. 

ifl) In tiie same ctse were cited the Plaeita dejurttiu et a$9Ui$, 7 Edw. 1, ib. 56. 

(ft) Orim. Ori;. Gen. 1 14. CoHins, title Powys, 398, 399. 

(c) Rep. Com. Pub. Rec. Ireland, Min. £v. vol. 2, p. 79. 

{fi Atbenrj Baronj, Min. £t. 8. 10. 

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to the Chapter Honfe^Ce) whence, together with those originally en- 
lolledy they have recently been removed to the Carlton Ride. Varioos 
Rolls of the Conrt of Common Pleas, from 7 Hen. 3, to 19 Edw. 3, 
and various Essoin Rolls from 10 Hen. 8, to 88 Edw. 8, have been 
removed to the same repository from the Tower.(/) 

Other Rolls of the Court of Common Pleas, formerly preserved in 
rooms adjoining the Court at Westminster, have also been deposited 
in the Carlton Ride. Amongst these were a large class described as 
pladta terrcBt containing recoveries, proceedings in guare impediit 
dower, and frequently partition. They are described as being or very 
great importance, on accoont of the evidences of title which they con- 

Inventories and calendars of a great number of these different Rolls 
have been commaiced, and are in course of formation.(A) The value 
of these records, as showing the transmission of lands, and ajQferding 
evidence of descent, need not be enlarged on, but may be easily 
exemplified. Thus, in a recent claim of Peerage, an original fine of 
IS Hen. 7, and another of 18 Hen. 7, and the Common Pleas Roll for 
the same vears, containing the licenses for concord, and a recovery 
suffered of certain lands by Sir W. Radmylde, were put in evidence, 
to show the want of issue of Sir William, by his mode of. dealing 
with the lands.(2) 

The earliest records of suits in Chancery at present known to exist 

r *634 1 ^^® ^^ ^® ^'^^^ ^^^^ ^^ ^^^' ^* ^^^ petitions in that reign 
L J •are numerous, but during the two succeeding reigns 

comparatively few appear to have been filed. From the commence- 
ment of the reign of Hen. 6, the bills, petitions, and other proceedings 
in Chancery have been preserved with great regularity ; at that time 
too the use of the English language, which had been partially tntm- 
dnced in the preceding reign, l>scame generally adopted in those plead* 
ings, instead of the French. But few decrees in those early periods 
have been discovered.(^') The oridnal records of the earliest date 
are preserved in the Tower of London. 

Calendars of some of the proceedings in Chancery have been pub- 
lished under the authority of the Record Commissioners, from the 
Records in the Tower. This work does not notice any of the pro- 
ceedings prior to the reign of Queen Elizabeth, and embraces the 
period from 1568 to 1693. The calendars state the names of the 
plaintiffs and defendants, the object of each suit, and the name and 
situation of the lauds in dispute, with sketches of the nature of the 
claims, alphabetically arranged under the names of the plaintiffs. R 
is, perhaps, to be regretted that the earlier pleadings have not been 
noticed in the calendars ; but the work, in its present form, is of great 
value. Besides the records of Chancery proceedings in the Tower, 
the judgment or Decree Rolls in the Rolls Chapel siioukl be noticed* 
They contain the decrees and distmaaaons of tne Court of Chancery 

(«) Rep.ReaCom. 1837,App.p.l3. (/) 4Ui Rep. of Dep. Km. •£ Fob. R«e. fi. 14. 

ig) Report of Mr. HewleU. Rep.lUe. Com. 1837, App. p. 133. 4Ui Rep. of Dea Koap. 
Pub. Rcc 1843, p. 15. 

(A) A lilt of these it given in the report last reared to, to which aeveial of th»m nfs 
appended. See Report, p. 18. 

(t) Camoy'i Baronj, Min. Et. pp. 39. 41 . 49, 50 ; ib. 6. Fuie» 33 Htn. 7. 

ij) Preikoe to Cdeodais of Pftoeedinga in GhMOeqr* 

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ittroilBd lA the Six Clerkf* Oflke. Tber begin about the 85 Hen. B, 
and eontinae to about the 6 Geo. 8. There are complete calendars or 
indexes to these rolls, under the names of plaintifis referring to each 

Some idea of the valne of the matter to be extracted from the plead* 
lags in Chancery may be formed from the following statement : — ^ In 
the claims to the estates of the late Duchess of Norfolk, the Scuda- 
raore pedigree was traced from the reign of the Tudors ; every known 
collateral branch was inserted, and the births, marriages and deaths, 
of Dearly every individual, descending from every collateral branch, 
for nine generations, were proved by registers, wills, inquisitions |ios< 
marUm, and other ^documents. Many thousand title deeds r ^^^^ -i 
were browht into Court and indexed, as was also a mul- ^ -' 

titutude of documents relating to the Scudamores and their con- 
nexions ; and thus are the archives of Equity Courts often found to 
contain records and particulars of families which are not now to be 
discoTored in any other depository in the kingdom.''(/) 

In the claim of Katherine Bokeham to the Barony of Berners, a 
bill in Chancery, temp. Hen. 8, was part of the evidence for the claim-^ 

In an old case reported in Dyer, it appears that an exemplification 
of depositions taken in Chancery to prove one's being of age when 
he levied a fine, was allowed as evidence, and the jury regarded them 
more than the fine's being reversed for non-age.(n) And it is observ- 
able that the d^)Ositionfl were made to establish the very point which 
was at isBoe in the cause where this exemplification was afterwards 
pot in.<o) 

The most ancient depositions in suits in the English Court of Chan* 
eery now preserved in the Tower of London, were taken in the 
reign of Hen. 6.(p) The Master's Reports kept in the Report Ofltee, 
Chancery- lane, do not commence before the reign of Elizabeth. It 
seems that the earliest affidavits in Chancery suits discoverable in the 
Affidavit Office, Symmond's Inn, do not date from a period more 
remote than the reign of Charles \.{q) 

The earliest Chancery proceedings discovered in Ireland are of the 
r«|rn of Hen. a(r) 

Before quitting this branch of the subject, it will be proper shortly 
to notice the important changes which have taken place in the man- 
agement of the pnblb records, under the operation of the Act 1 Ac 3 
Vict. c. 04. The number of separate buildings or offices p ^^oa i 
has been much reduced. The Tower of London, the I- -I 

RoUs Chapel and House, the Carlton Ride, the Chapter House, and 
Stone Tower at Westminster, at pres^iit contain all the records which, 
by the statute were pot under the control of the Master of the Rolls ; 
axid the Deputy Keeper of the records, in his fourth report, dated July, 
1848, expresses a hope that the two latter will shortly be disused.(s) 

(k) Fmt Rep. Set Com. Pali. Rea App. p. 66. 

(I) Orim. Ortg. 0%n. 91, 93. (m) Cbllini, 343. 

(a) Vin. Ab. Ev. A, 6, 33, pi. 4. lyyvt, 391, pi. 40, 13 Eliz. 

(#) As to the admiMibility feneraHy of tbeee records, see post, cb. 9. 

(p) ADoient depositions used in Powjs eUinn. CoUins, title Powjs, p. 398, 399. 

(f) Cooper's Pab. Reb. vol. 1, p. 357. 

(r) &ep.Coai.Pob.Eee.Irekiid,ftLl,p.67. (•) Plift88i 

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With & few comparatively uoimportcuit enoeplicMis, all the records of 
Her Majesty's three Courts of Common Law at Westminster, undejic 
the control of the Master of the Rolls, are now deposited in one builds 
ing, the Carlton Ride. Free access to the records has been scK^ured 
for the public by the provision of uniform and regular attendance at 
eacf) office, and by the removal of obstructive fees and regulations i 
and lastly, numerous inventories, catalogues, calendars and indexes 
are in a course of preparation, b^ which the reierence to any parti* 
cular record will be materially facilitated. A list of these will bo 
found in the fourth report of the Deputy Keeper of the Public Re- 

Some observations have already been made upon various clasaM 
of the Irish Records. The most important of them, as connected 
with the objects of this Treatise, appear to be the plea Rolls and gr^at 
and small KoHs of the Pipe* which are in the Bermingham Tower ; 
the patent and close Rolls in the Rolls Office ; and the Memoranda 
Rolls in the Chief Remembrancer's Office. Considerable atteAtioa 
has lately been paid to the Irish, as well as the English Reoords ; 
and much care appears to have been bestowed, as well upoa the pre* 
servation and arrangement of them, as upon the preparation of calen* 
dars, indexes, and repertories, by means of which access may be more 
readily obtained to their contents. Calendars and indexes to a largii» 
proportion of the close and patent Rolls have been prepared and imtq 
in progress, and a repertory to the decree Rolls of the Exchequer^ 
down to 1767, was completed so long ago as the year 1827.(u) A 
classified schedule and general inventory of the Memoranda Rolls ia 
the office of the Chief Remembrancer will be found in the report of 
the Comoussioners of Public Records of Ireland.(t>) 

[ •637 ] •CHAPTER IX- 


Thb course which has been followed in treating of the a&ciwt pd^ 
lio reeordst ooosi^ii^, as many of them do, of judicial proceedinei, 
briags us to the consideration of judicial prooeedings generally^ 
inohiding those which are not records, and the use which may be 
made of them as a source of genealogical evideooe. It shotild be 
borne in mind that matters of pedi||ree may be established by •«!«> 
dance of reputation ; and therefere it it obvious that judicial pro- 
oeedings, as a source of evidence, may be considered in two pomls 
of view : either as direct evidence of a Aict, or as evidence of the pre^ 
yailinff reputation respecting such faot In the present chapter tUe 
branch of evidence will only be considered with reference to the finrt 
of these points ; the other iJeing reserved for a subsequent chapter, in 
which the subject will be treated at length. 

The judgments and verdicts of the superior courts being matters of 

(f) Pa^e 39. <ii) See Report of CommuBionefs of Pub. Reo. Ireland, 1627, p. 19. 
<•) Page 59S. 

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jiiiitMiiti iniffiMs* MP 

v6fsor<U BO endence is- adaiHted to cofntmdkst tbem K^) bm tb«y are 
jooU thwefotOf admissible as evidence of every fact which might be 
inferred from them. Perhaps the general rule on this subject cannot 
be better stated than in the language used be C. J. de Grey in the 
DtiobMs of Kingston's ca6e.(u^) He deduced from the variety of 
eases the folloviring propositions : first* the judgment of a court of 
coocurrent jurisdiction directly upon the point, is as a plea a bar, and 
as evidence conch]sive> between the same parties, upon the same maW 
(er directly in question in another Court : secondly, the judgment of a 
Court of exclusive jurisdiction directly upon the point, is in like man- 
ner conclusive upon the same matter between the same parties^ 
coming incidently in question in ^another Court, for a dif- r ^oa -i 
ftrent purpose. But neither the judgment of a concur- ^ J 

rent nor exclusive jurisdiction is evidence of any matter which came 
odlaterally in question, thouffh within their jurisdiction,, nor of any 
BMitter incidentally cognizab^, nor of any matter to be inferred by 
argument from the judgment.(«) 

Two points then require particular attention, in considering whether 
verdicts or judgments can be successfully tendered in evidence : first, 
the identity of me parties : secondly, the identity of the subject-matter. 
Tbe identity of parties is not a question of much difficulty. The rule 
may be Mated to be, that verdicts and judgments are not in general 
admissible for or against strangers to the proceedings in which they 
«ere obtained. And this rule prevails, allnough the truth of the fact 
to be established, is a necessary inference from the verdict or judg* 
iiaent sought to be put in evidence. 

Thus in a trial at bar in ejectment, wherein the legitimacy of the 
Duke of Albemarle was the only question, it was rul^ by the Court 
that a fonner verdict between other parties, concerning other lands,- 
depending upon the same question and title, could not ho read in evi* 

It is proper to observe, however^ thai the identity of parties in con- 
templation of law, with respect to this rule of evidence,' ma v be either 
actual or constructive. Thas in ejectment, the lessor of the plaintifif 
and the tenant being substantially the real parties, a judgment recover- 
ed by tbe defendant in a former ejectment, is admissible in evidence 
against the lessor of the plaintifi* in a second ejeotoientt where the les- 
sor of the plaintifif and the defendant are the sanM parties.(t) So it 
has been held that verdicts and judgments are receivable in evidenoe 
against the parties on whoae ^'account the suits in which r ^g^ <i 
tmy were obtained, were instituted or defeftded.(a) *- J 

Identity of interest seems in scone cases to be constroad into, or at 
iea^ to stand in .the piaoe of, identity of parties, in the application of 
this rule. Thus verdicts and judgments are admissible between parties 
who are in privity with the parties to the former proceedings. And 

(«) 1 Co. Lit 360, a. (w) 30 Hov. St Tr. 355. 

(jr) It has been objected that the principles laid down by tlie Chief Justice present an 
inadeqaatc, and in some measure, incorrect view of the state of the law, on this subject 
Bee the observations on this point^ 1 Phil on Evidence, p. 558, 8lb ed. The learned author 
of that treatise, admits the difficulty of laying down general rules appUcahk to the subjecf 

(y> Clarges v. Sherwin, 12 Mod. 343 ; M. T. U W. 3. ' 

(s) Doe d. Strode v. Seaton, 3 Cr., M. & R. 731. 

(S) Kinnersley t. Orpe. 3 Doug. 517. Haaooek v. Welsh, 1 St 347. 

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tins, wbeiber the jmrity be by Mood, in Iaw> or by estate. A teHt<^ 
for the ancestor may be given to evidence by the beir who is privy 
in bk>od.(6) A verdict agtinst an unmarried woman is admissible 
against herself and a snbseqoently taken hn^nd, who by snch maf' 
riage becomes privy in law.(c) With respeet to privies in estate, it 
has been held that a verdict for one in remainder may be given in evi» 
dence for one next in remainder, under the limitations of the same 
deed ^d) and that a verdict for or against a lessee, is evidence for e/t 
against the reversioner.(e) 

And as actual identity of parties is not in all cases necessary, so 
neilher where it exists without identity of character, will it be sufli* 
cient Thus a verdict or judgment in one suit will not be evidence 
against the same party appearing in another character in another 

The secood point above noentioned, as requiring attention, namety» 
i^ntity of omtter, gives rise to rather more ditficufty on account of the 
malification which follows the two propositions stated by C. J. De 
Urey ; " that the matter must have been directly, and not collaterally 
in question." It seems, from the cases, not always easy to distinguian 
what is to be considered a direct decision on the matter, for the par* 
pose of applying the rule under consideration. The question has fre- 
r ♦640 1 ^T^'^^'y occurred with reference to the *conclusivenes8 of 
L J judgments of the Ecclesiastical Courts, as Courts having 

exdusive jurisdiction, respecting the validity of marriages, or the right 
to administration. 

The conclusiveness to the Temporal Courts <^ sentences in the 
Ecclesiastical Courts determining the question of marriage has been 
discussed in a former page.(^) 

* The eases of Bouchier v. Taylor,(A) and Thomas y. Ketteriche,(i) 
have been cited, as proving that in grants of administration to the nest 
of kin after a suit, the proximity may be directly determined by the 
flMitence, so as to make it conclusive evidence of such proximity^ in 
suits for distribution.(^') 

It would appear, from a recent case, that not only must the prox- 
imity of kindred be dhrectly decided in such a suit, but also the facrts 
upon which that proximity depends must be the proper object of the 
suit, or the sentence will not be conclusive in another Court. In a suit 
for distribution, the daintiff claimed to be niece and sole next of kin 
of the intestate. Tneire had been a suit for administration betweea 
the plaintiff and the defendant in equity, the hitter of whoA claimed 
lo be second cousin, and next of kin. The decree of the Prerogsrtivie 
Court pronounced that as far as U appeared from (fo evidence in ike 
canu the deoeased died without a parent, brother or mster, onoie or 

, (^) Loeke T. Norboro^ 3 Mod. 141. 

(e) Outrun ▼. Morewood, 3 Eait,345, and we for other instanoee of privies in Uw, tikm 
CMee of Rex ▼. Hebden, Andr. 389, Lord Brounker ▼. Atkini, Skin. 15, Berry ▼. BtnneT, 
Petke, 156, Travis ▼. Cbalooer, 3 Gwill. 1337, Carr ▼. Heaton, ib. 1261. 

(d) Pyke ▼. Crooeh, 1 Lord Raym. 730. And see Bishop of Lincoln ▼. ElliS, Bonb. 110. 

(a) Per Coriam, in Roshworth ▼. Ck>antes8 of Pembroke, Hard. 473. For more particalar 
information as to tlie identity of parties requisite lo make JQd|rments admissible, see PhU. 
Sl Am. on Evidence, vol 1, p. 514, et acq. and tbt cases cited tliere. 

(/) Robinson's case, 5 Rep. 39 b. (g) Sop. p. 364, et sen. 

(i) 4Bn.P.a70e;«d.TbiiiL (t) I Ye*. aeop 833. (j) 8ap.p.44. 

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aoMf ucfbem or nine, or oouiin gerom, and iniattolc, I^Thig Um 
4e&iidani in eouity h^ lawfid socoiid ooutia and noxt of km : And 
that S. H. B.» Ine plaintiff in eqiaty had failed in prarf that she was 
the lawfol niece and next of kin of the said deceased : and letters of 
administration were granted to R. J. The gronnd of this sentence 
a(>pears to have been the alle^ illegitknacy of the father of S. H« B. 
At the hearing of the cause m Chancery, il was contended, on the part 
ef the defendant, that the adjudication oif the Ecclesiastical Court wa^ 
conclusive on the question of pedigree, which was the question of fiust 
nosed in the Court of Chancery, and that the plaintiff's bill ought to 
be dismissed. The V. C. Knight Bruce, after taking time to consider, 
decided against the conclusiveness of tlMt sentence, and directed an 
issue for ue purpose of trying the ^question of fact His r ^^ . . ^ 
Honour stated that he was not prepared to say, that, ■- J 

according to the proper sense of Itne expression, the judgment of the 
Ecclesiastical Court was directly upon the point of the alleffed illegiti* 
«acy of the plaintiff's father, and nad the establishment of that sup 
posed fact for its proper purpose and object, so as to render his ilie* 
gitimaoy remjudtcatam between the parties, on a question of distribo* 

It seems that where the fact, in evidence of which a judgment is 
tendered, was not expressly in issue, parol evidence is not admissible 
to shew that it was nevertheless in fact expressly decided : assuming 
the parol evidence to be admissible, still, on the authority of the diotum 
of C. J. De Grey, the judgment could not be recei ved.(Q It has been 
remarked, however, that if the parol evidence were admissible that 
Ocimm seems not to apply.(m) 

In the Gardner Peerage case, a doubt was intimated by the Home 
whether the production of the Ubel, defensive allegations, and sentence* 
of the Ecclesiastical Court in an action for divorce, would make aH 
the facts contained in those proceedings, evidence on a claim of Peer* 
age, against one who was no party to the suit in the Ecclesiaslicai 

Proceedings in a writ of ri^t recitin^^ a pedigree, not disputed by the 
opposing party, have been held inadmissiote on a claim of Peerage, 
even as evidence of reputation.(o) 

. In like manner it appears that the House of Lords will not, of course, 
receive proceedings before the Privy Council on a claim of Peerage^ 
aa evidence, on the same footing as proceedings before Committees of 
Privilege* But it being shewn that the House had acted upon the 
pioceedinffB in question, they were p^mitted tp be received as evi- 
drace de bene e99B.{p) 

*A decree in the Court of Chancery, though not strictly r ^^^ « 
a Court of Record(9) may in general be given in evidence ^ -* 

on the same footing, and under the same limitations, as the verdict or 
judgment of a Court of Common Law. On a trial touching the right 

(ifr)Bunv.JadMQii,lT.I&GoLaC«583. ThiiaeekuNi hubMssppMltd Aoimbitt 
Um iodfineiit hat not ▼•< been gUvk. 
{[) Per fiejle?, J., in Rei ▼. Kn«ptoA, 9 B. AiC 883, (9 S. C. L. R.) 
(m) PhiL and Amoa'on E?idenee, 1, p. 599, n. (6.) 
(•) Gardner Barony, by Le Marohan^ p. 6. 
(•) Camova Barony, Btin. £v. p^ M0b (f) ritswattsr fisMBy, Mia* £«. fw i. 


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44t HroBAo«% w n umm ^ wmoiusion. 

to latMls, deorees in Chancery between other parties concerning the 
feame lands, were held admissiUe in evidence, to shew the character 
in which the possessor enjoyed the iands.(r) 

The House of Lords, however, will not always receive a decree as 
evidence. Thus in the Roos Peerage case, an origmal decree of the 
Court of Chancery was offered in evidence to prove that the petition* 
er w«s the only child of the Honourable Charlotte Boyle Walsingham, 
but being objected to by the Attorney-General, the evidence wai 
rejected. The ground of objection is not stated; probably it was 
thou&^ht that the fact being modern, was capable of belter proof.(») 

Wffere a parly intends to avail himself of the contents of a decree 
in evidence, the regular course is to prove the proceedings on which 
the decree was founded.(<) 

This rule is observed in the House of Lords in claims of Peerage. 
A decree in. the Court of Chancery fn Ireland was offered in evidence 
to prove that a settlement was made upon a certain marriage, ainl 
that the marriage afterwards took effect, the original settlement being 
lost; btit the counsel were required to produce the bill and answer.(tt) 
So in the Gardner case, the sentence of the Ecclesiastical Court in the 
action of divorce brought by Captain Gardner against Mrs. Gardnerv 
•was produced as evidence of that action. The committee declared 
that the sentence alone without the libel and defensive allegations wat 
not sufficient. The claimant must proceed in the same manner as 
was done in the bill for the divorce : the evidence as between Captain 
Gardner and Mrs. Gardner could not be evidence as against Henry 
Ponton Gardner, untess all the proceedings were produced.(o) 
f *643 1 *^^c^P^ 1" some special cases the production of the 
*• J original Record is unnecessary. The copies of Records 

which are received in evidence, are either office copies, or examined 
copies. The former are authenticated by some officer who is intrust* 
ed with that duty, and such copies are m the same Court eqoivatral 
ID the original Record, but in another Court require proof that they 
have been examined. An application having been made to the Mas* 
ter of the RoHs, for an order that the officer of the Court might attend 
e trial at law, with the original Record of a Bill and Answer in a suit 
for the perpetuation of testimony, in order to let in the depositions ct 
the witnesses, his Lordship, after consideration, and inquiry into the 
practice, refoised to make the order. He said that in criminal cases^ 
and where it was necessary to prove handwriting, it is usual to order 
Ifae attendance of the officer with the original Record, but nA in other 
eases, because Records ought not to be moved from their proper place 
of deposit; and he referred to the observations of the Judges in Hen^ 
aell V. Lyon,(t(7) as shewing this to be the practice.(a;) 

The Ecclesiastical Courts are not Courts of Record, and where 
proceedings in those Courts are required to be produced in other 
Courts, it seems that the practice is to produce the original documents. 

<f^ DtvisT.Lowii4M,inBf.N.a607,(97£.aL.R.) 

(0) Roof Btrooy, Min. £▼. p. 344. 

(0 Obro. Dig. tk. Ef. (A 4,) p. 85. Thiwen ▼. Caitle^ 1 Keb. 91. 

(«) Bsmewall Vbeoanty, Min. Ev.pp^ 80, 39. 

M Oardaer BtroDy, by Le Marchant, p. 6. (w) 1 B. 4t A. 18^ 

(•) AttomyXSenoad v.iliif, M^ 11 May, 18^; & 0. 9 Htv^ 618. 

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Thif 18 alleged to be the reason vrhjr a praeticey i^htch formerlj pro^ 
vailed in the Prerogative OflBce, of bioding up answers^ &c,, in volumei» 
was some years ago discontimied. Tte inconvenience of carrjing 
large volumes down to attend trials at the Assizes and elsewhere was 
found to be great.(j^) 

A Bill in Chancery is no evidence of the truth of its own assertions 
or denials,(2) even against the complainant, as in the nature of admi»> 
tions by him, although an opinion formerly prevailed, that to a certaift 
ext^Dl it was evidence.(a) Proof of the Bill is, however, often nece»- 
sary, in order to let in the answer or depositions, and thus to shew 
what facts were in i8sue.(fr) 

•The admissibility of bills in Chancery as evidence of r ^ .^ h 
pedigree slated in them will be afterwards con8idered.(c) ^ J 

An answer in Chancery being upon oath, is evidence of a strong 
nature :((t) and may be used by way of admission, against the party 
who makes it, even by a stranger to the suit in which it was made.(0) 
But the answer of an infant by his guardian, admitting a pedigree, 
cannot be used in ejectment as evidence against the infant.(/) So 
an answer in Chancery was rejected as evidence of the time of a mar* 
riage as between thircl parties.(^) 

It has been seen that in claims of peerage admissions made between 
the parties to a suit are not received as evidence.(A) 

Dhepositions in Chancery are receivable upon proof of the bill and 
answer :(i) oi*, if ancient, without that proof :0') they may also be 
read in Chancery, without proof of the bill and answer, by order of 
the Court(*) They are not conclusive, however, and in a case above 
referred to, where the defendant had recovered some verdicts at lavi^ 
pounded on depositions in Chancery, the evidence appearing unsati^ 
actory, and there being also contradictory evidence, the jury found for 
the piaintiflr.(/) The examination of a defendant before the Master haft 
been received by the House of Lords upon a claim of peerage.(m) 

With respect to judgments in foreign Courts proceeding in rem. 
it appears, that if the matter in controversy is land or other immov^ 
able property, the judgment pronounced in the forum rei seilm is o( 
universal obligation; and the same principle has generally been applied 
as to movable property within the jurisdiction of the Court pronounc- 
ing jodgment.(7i) The effects of sentences ♦in foreign r 1^^^ ^ 
Courts respecting the validity or invalidity of marriage ^ J 

has been stated in a former page.(o) 

In the%laim of Alexander Home, Esq., to the earldom of March^ 
mont, in 1822, a decree of a Scotch court against John Home znonfy 
lauftU son of Sir Andrew Home, was given in evidence before the 

(Sf) Pub. Hec Com. Rep. 1837, p. S57. («) Per Lord Keitftm, 7 l>nn R«p. 9. 

(a) a N. P. 935 ; GUb. Et. 60 ; Seltr. N. P. 744. (^ Per Lord Kenyon, obi mf^ 

<e) Post, cbmp. 10. (<0 De Wbelpdale ▼. MUbm^n, 5 Pr. 485,(3 £. Ex. R.) 

(ff) Asfamore v. Hardy, 7 C. & P. 505, (32 £. C. L. R.) 

(/) Eccleston ▼. Petty, Carth. 79 ; Comb. 156. (f ) Hilliard ▼. Pbaley, 8 Hod IBOl 

(1) SUne Barooy, Min. £▼. 1830, pt. 3, p. 95 s pt S| p. 0» sdp. p. 97. 

(1) GUb. Et. 62. 

(j) Byam ▼. fiootli, 3 Priee. 334, (I & Et. R.) S«e Floy«r ▼. Straekley, 19 Tia. Ab. 
17 ; Net. Ch. Rep. 7 Ctr. 1 . (Ir) Mmer t. Lord Ayletbary, 16 Vee. 176. 

(2) Floyer ▼. BirecUejr, 19 Yin. Ab. 57. (m) Fittwtlter BAfooy, Mim E?. 166. 
(A) Phil on £7. 1,639. ' * (e) Sipfli, pi Mi. 

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440 wnmACK!M nviwiwi ot i 

committee of the Houte of Lords, to prove that Patrick Home, the 

younffont son of Sir Andrew, died before his father : and the marriage 
of a John Home, was proved by the decree of separation obtained by 
his wife against him.(p) So in the claim of Sir James Inoes to tM 
dukedom of Roxburgh in 1808, the committee of the House of Lords 
received a copy of a decree in a Scotch cause, to show that Henry 
and William Kerr died without issue.(9) The House of Lords, in 
another peerage case, refused to receive a decree of the Irish Court of 
Chancery in evidence, because it was not accompanied with the bill 
and answers.(r) 

The several places of deposit of the more ancient records of the 
(Courts of Law have been pointed out in the preceding chapter. The 
records of the Court of Queen's Bench, now deposited in the Rolls 
House, include those of twenty years' date and upwards. Those of a 
later date remain in their respective depositories belonging to the 
court So the records of the Court of Common Pleas, and of the 
Common Law side of the Exchequer, of a similar date, and some of 
the latter court of a more modern date, have been deposited in the 
Carlton Ride. It is presumed, that the accruing records of all these 
several courts will be yearly transferred to the same respective repo- 

The records of the Equity side of the Court of Exchequer have beeo 
also deposited in the Carlton Ride, with the exception of such of them 
as were required for the current business of the Court of Chancery* 
These, upon the abolition of the equity jurisdiction of the Court of 
Exchequer, were placed in charge of the proper officers of the Court 
r ^KUB 1 ^^ Chancery. Decrees, and entries *of decrees, for ten 
■- J years preceding November 1841, and minutes of decreefl^ 

and orders from Miohaelmas Term 1820, are amongst those thiiui 
delivered to the chancery officers.(() 

The records belonging to modem suits in chancery, were retained 
in the Offices of the Six Clerks, where they were respectively filed, 
until the abolition of those offices under the act 5 & 6 Vict a 10$. 
By the third order of the 26th October, 1842, made in pursuance of 
that act, the custody ofpleadings and records is transferred to the 
Clerks of Records and Writs. It does not appear that any regularity 
was observed in the transmission of Chancery records from the Six 
Clerks* Offices to the Tower, either as respects the intervals at which 
such transmissions took place, or the periods to which the records 
transmitted belonged. The last transmission was made in 18JI2, which 
included bills, answers, depositions of witnesses, and other pleading 
to which reference is made in six calendars or indexes, marked with 
the letter A, and endorsed 1714 to 175a It appears, however, from 
the mode of arrangement and indexing, most commonly adopted in 
the Six Clerks' Offices, that amongst the documents referred to in the 
above*mentioned calendars, some will be found bearing dates prior to, 
and others subsequent to the years marked in the endor8ement(«) 

( ji) ICinvtM of Efideooe, Mtrehmoot Etfldoui, pp. 47. 60. 
. (f ) Mimitef of EfldtnoQ, Rnsbofffa DlllndoD^ n. 116. 

(r) BtraewtU VMooontj, pp. 30. 39. (t) 4lli Sap. of Dep. Ksep. of Fob. Sso. p. 14. 
(l)3rdR«p.ofDep.Ka«p.ofPiib.RM.p.i. "-r- -r- r- 
(n) Sad Sap. of Dip. Kietp. «f Fab. Km. p. 48. 

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JVMBI JCL W!KIT9lttS* 449 

The custody of the records of the Ecclesiastical Courts, was not 
aflected by the act 1 & 8 Vict. c. M. They, therefore, contiuue it 
the same depositories as formerly. A tolerably full account of the 
various records of these courts, their places of deposit, state of preser- 
iration, and accessibility by means of calendars and indexes, will be 
found in the Report of the Kecord Commissioners, 1887. The follow- 
ing are amongst the most important of them with reference to the 
sulbjects of this treatise.(o) In the Prerogative Oflice, in custody of 
the registrar of the Archbishop of Canterbury, are the acts recording 
grants of probates of wills from 1526, with the exception of the yeat 
1 ©62, complete to the present time. Acts recording grants r ^^-^ ^ 
of administration •from 1669, except the year 16(52, to the ^ J 

present time. Original wills from the year 1484, with many chasms, 
down to 1660, and from that year to tlie present time complete. Tran^ 
scripts of wills, for nearly a similar period ; alleeations, or pleas, com- 
mencing in the year 1666, and continuii^ to the jH'esent time. Oil 
the conclusion of the cause, these were filed in yearly bundles, and 
indexed. The bundles from 1665 to 1860 inclusive, are kept at Lam- 
beth Palace, and from that time at the Prerogative Office. Answers, 
from the year 1666 to the present time. Until the year 1787, these 
were bound in large volumes, with indexes, which are in Lambeth 
Palace. Since 1787, the practice of binding them has been discon- 
lifiued, as it is said, oa account of the inconvenience attending the 
production of the books at the assizes and elsewhere.(tr) Sentences 
of the court, from the year 1600 to 1797, are at Lambeth ; since 1800, 
they have been kept in the Prerogative Office. Depositions of wit* 
nesses, from 1656 to 1788, bound and indexed. These are kept at 
Lambeth. Subsequent depositions remain in the Prerogative Office, 
unbound, for the reason above stated respecting answers. Besides 
these, there are various otiier documents ; such as bonds, exhibits, 
orders of courts, processes, &c., which may occasionally afford genea- 
logical information. 

* In the Arches Court, will be found answers to pleas, depositions, 
sentences, appeals, acts of court, and other documents. 

In the custodv of the Registrar of the Consistory Court of London, 
are original wills, from the year 1507 to the present time; marriage 
Ecense affidavits, from 1697 to the present time; marriage license 
bonds, from 1696 to 182a(2r) 

It may be observed generally, respecting the Records of the Eccle^ 
siastieal Courts, that considerable regularity and method seems to 
Inve prevailed in the arrangement of them, and great attention appears 
to have been bestowed on indexing them, and rendering their contents 
readily accessible, as well as in preserving their substance from injur}^ 

(•) Pak Rec. Com. Sep. p. 257. (v) Ibid. («) Ibid. p. 205. 

Mat, 1845.— 17 

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[ ♦648 ] ♦CHAPTER X. 


In questions of pedigree hearsay evidence is adnnitted, from th« 
necessity of ihe case. As it would be impossible to establish descents 
according to the strict rules by which contracts are established, and 
rights of properly regulated, courts of law are obliged in matters of 
pedigrees to depart from their ordinary rules, and to have recourse to 
a secondary kind of evidence, the best the nature of the subject will 

In treating this subject it is proposed to consider first, what are 
matters of pedigree, in proof or which such evidence is admissible ; 
secondly, the principles and limitations which regulate its admission; 
and thirdly, the various forms under which it may be found. 

It is not easy to define exactly what are matters of pedigree, vrith 
reference to the subject under consideration, otherwise than by enume- 
rating them separately. It has been observed, that such points as the 
following : " who was related to whom ; by what links the relationship 
was made out ; whether it was a relationship of consanguinity or o( 
affinity only ; when the parties died, or whether they are actually 
dead," may be proved ** as matters relating to the condition of the 
family," by the declarations of deceased members of the family.(r) 

The reader is referred to former pages, for numerous cases illustra- 
r *649 1 ^'^® ^^ ^^^^ branch of the subject Thus it has been seen 
L J *that the fact of death,(a) the failure of issue,(ft) the fact of 

marriage,(c) the birth of a child,(rf) and the periods either absolutehr 
or relatively to some other event, at which any of these events took 
place, may be proved by hearsay evidence. 

The age of a person at any giVen time may be proved by evidence 
of this nature : as well by declarations speakinj; generally to that 
point, as by express statements of the date of his birth. The lYientiob 
by a father in his will of the time of his child's birth, is, until contra- 
dieted, evidence of that fact.(c) Upon a trial at bar, where the ques- 
tion was, whether a testator was ot full age at the time of making his 
will, an almanac, in which his father had made an entry of his birth, 
was produced, to prove his nonage, and was allowed to be strong evi- 

So in the case of Kidney v. Cockbum, it was held that the ages of 
two persons at the times of their respective deaths, might be proved 
by means of monumental inscriptions, and the statements of members 
of their family,(^) and in the argument of that case it was stated, that 
similar evidence had been recently admitted by Littledale, J.(A) 

The illegitimacy of a person is a matter which may be proved by 
the acknowledgment of the reputed father, and by general reputation, 

(y) 13 Vet. 143. 

(s) Per Broaflrbam, C, Mooctoa ▼. AttorneyXteneral, 3 R. dt M. 156. 

(fl) Sup. p. 1 65. 184. ih) Sup. p. 804. _ ^ (c) Sap. pw 245. 

{d) Sap. p. 437. (e) Valliamv Y. HaskiBioa, 3 7. 4t Gol. 60. 

') Herbert ▼. Tacka], Sir T. Raym. 84. (g) S Ron. dt Mj. 167. 

Ryder ▼. Malbooe, cil«d, Ibid. 


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and thebaslard htmaelf may be etamined as to such acknowledgment 
' and rept]tatioa(t) And it has even been held that the declarations of 
a person himself, that be was illegitimate, may be received, to show 
that the marriage of his parents took place subsequent to his birth.(^') 
It was said this evidence was admissible as beine the representation 
of one of the family respecting the degree of reiationship which he 
bore to it It seems, however, that the declarations in this case 
amonnted rather to a denial, that the person makins them was a mem* 
ber of *ihe family, and, if properly receivable, cotud only r ^^^^ - 
have been received as such against himself; for the legal ^ -I 

<>tjection, that a bastard though de fucio^ is not dejure a member of 
the family, has prevailed to the exclusion of his declarations.(&) ' In 
4be same case ot Cooke v. Lloyd, opprobrious epithets, implying illegi- 
timacy. Implied by the father to the children, and his dying declara* 
tions, by which he pointed out a younger child as his heir, were 

' Id the Berkeley Peerage the judges gave an unanimous opinion, that 
evidence of the declarations of a father that A. was his legitimate son, 
•was admissible to prove the legitimacy of A.(/) ^ 
* General kindred, as that a person was heir to another, being his 
<M>usin or relation, is a matter of pedigree, and declarations to that 
effect are, it seems, receivable in evidence, though the point was for- 
merly considered to be doubtful, at least so far as regarded proof of 
title \n an ejectmenL(in) 

In a question of legitimacy turning upon the tinfe of birth, the evi- 
dence of a witness was tendered, that she had heard her mother (who 
was the sister of the mother of the alleged bastard,) say, that she had 
suckled the child ; which, coupled with evidence of the time when her 
own child was born, tended to fix the alleged bastard's birth at a period 
posterior to its parents' marriage. The evidence had been received 
on the trial of the issue before Gurney, B., but Lord Cottenham ex- 
pre»E^ his opinion, that being a declaration of a particular fact, it 
ought not to nave been admitted.(9t) 

The objection to this evidence might be more explicitly stated. The 
parentage of a child, its legitimacy, the time of its birth, and indeed 
all matters of pedigree, may be sajd to be particular facts. There is 
this distinction in Uieir favour, that they are all facts which are obvi- 
ously, and immediately, and at the time of their occurring, important 
to the family of the child, with reference to their mutualobligationSf 
claims and rights. Each has an interest in knowing ^ ^^g. -. 
*them, though the interest will be proportioned to the de- ^ J 

ipree of the relationship, or the intervention of nearer relations. But 
w the principal case, the fact declared to had not at the time the 
remotest bearing upon the relationship of the parties, or their rights in 
respect of such relationship, and it only became subsequently a fact 
form which the legitimacy was inferrible by argument. 

(i) Rez ▼. Nottingham, 13 EmI, 58, n. 

( f') Cooke ▼. Lkjd, Peake*i Ev. App. 7a 

(f ) Doe a. Bamford ?. Barton, 2 Moo. & Rob. 38. 

(I) 4 Gimpb. 401, seeood quettioD, 

(«) Doe d. FoUer ▼. Raodall, 3 M. &. P. 35, (17 E. C. L. R.) 

(•) UtM f. Gompertx, BfS. Lord Clu 16Ui June, 1837. 

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^S9 HUBBACs's wmmBom or scfoovsaioir. 

Bat it is not necessary that the declaration should express, Midem 
verbis^ a genealogical fact. It may be couched in language whick 
amounts to the same thine : thus, if it speaks of the rights and benefits 
to which the party would be entitled by virtue of his birth or relatioa* 
ship, it will be admissible, though it do not expressly allude to such 
relationship. In Isaac v. Gompertz, declarations by his mother, that 
Henry would have the property, that he would be a gentleman, were 
admitted by Gurney,B., in evidence of his legitimacy, and were treats 
ed as evidence by the Lord Chancellor, if they had been freed from 
the objection of lis mota. 

Jt is observable that in the case of Annesley v. Earl of Angleaea, 
helirsay evidence proceeding from persons, who, though not relationSf 
had the best opportunities of knowing the facts of which they spoken 
were in two instances rejected. It was a material question in that 
case whether Lady Aliham ever had a child. The declaration of a 
midwife, that she had delivered Lady Altham of a child, and the dec- 
laration of a deceased lady, that she had stood godmother to the child 
of Lord Altham, were offered in evidence, and rejected.(o) The 
grounds of rejection'in the first of these instances are not stated ; but 
Irom the arguments and judgment on the second, it would seem that 
the evidence was considered as subject to the general rules, and the 
exception in favour of questions of pedigree was not noticed. Both 
declarations w ere in truth not so much assertions, touching directly a 
matter of pedigree as statements of particular facts, from which a 
matter of pedigree was to be inferred. 

r •653 1 ^^ place of birth is not a matter of pedigree, so as to 
L J be ^proved by hearsay evidence. In a settlement caae^ 

where the question was, whether the father's declaration of the place 
of birth of his illegimate child were competent evidence of that fact« 
Lord Ellenborougn, C. J., said, the only doubt which had been intro- 
duced into the case, had arisen from improperly considering it as a 
question of pedigree; the controversy was not, as in a case of pedi* 
gree, from what parents the child had derived its birth, but in what 
place an undisputed birth, derived from known and acknowledged 
parents, had happened. The point thus stated, turned on a simple fact, 
mvolvin^ no question but of locality ; and, therefore, not falling within 
the principle of, or governed by the rules applicable to cases of pedi<* 
gree ; and was to be proved, therefore, as other facts generally are 

E roved, according to the ordinary course of the common law, that ist 
y evidence, to which the objection of hearsay did not apply.( p) It 
is observable, that here, not only the particular point in issue was not 
a matter of pedigree, but the case itself did not raise a question of that 
nature ; and if, the distinction pointed out by Park, J., m Whittuck v. 
Waters, is to be considered universally appUcable, that would have 
been a sufficient ground for rejecting the evidence. 

In an action ror use and occupation, under a lease for lives, the 
defence was, that the cestuis que vie had died before the time from 
which the claim was made. The evidence as to the death of one of 
the cestuis que me, was merely, that the witness had heard in the 
family that the person was dead. Mr. J. Park said^ << That wiU not 

(•) 17 How. St Tt. 1156. 1160. |4 Bmct. Erith, 6 EM, 59». 

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fc. TW« IS not a question of pedigree, when hearsay in the family is 
admissible f and the evidence was rejecled.(y) 

The law having, from necessity, admitted in matters of pedigree, 
aa exception to the rule which excludes hearsay evidence, has yet 
guarded this exception by two rules, wu., 1. That the hearsay allow- 
ad, shall be that only which proceeds from relations. 2. That hearsay 
ahall not be received which originated under circumstances likely to 
bias those from whom it is derived. The <^latter rule is p ^-,,y. ^ 
expressed in the terms, that a declaration made post litem L J 

moiam is not receivable. 

The value of hearsay evidence, must, of course, mainly depend upon 
the knowledge which the declarant must be supposed to have posses- 
ted, of the facts spoken to. It seems doubtful, when it was first con- 
sidered, that some kind of connexion, from which such knowledge 
might be presumed, must have subsisted between the parly making the 
declaration, and those to whom it referred. At first, no such connec- 
tion appears to have been deemed necessary ; and the general reputa- 
tion, or traditions, existing in the country or neighbourhood, were con- 
sidered admissible evidence, even of particular facts of descent or. 
relationship. Thus, the general reputation of the country, that a cer- 
tain boy was the legitimate son of Lord Altham, was allowed to be 
given in evidence in the case of Annesley v. Earl of Anglesea.(r) So 
also in the Huntingdon Peerage case, the Attorney-General admitted 
evidence of the general reputation in the county of Leicester, that the 
uncle of the petitioner virould be entitled to the earldom of Hunting- 
don, on failure of issue of the late earl.(5) The expression of Lord 
Mansfield, that ** tradition is sufficient in points of pedigree,"(0 would 
seem to imply, that at that time, no stricter rule had been established. 
But according to Lord Eldon, the doctrine of Lord Mansfield must ba 
understood in a more limited sense than his words would imply. " \ 
accede," said he,(tt) " to the doctrine of Lord Mansfield, as it has been 
stated from Cowper ; but it must be understood, as it has been prac- 
tised and acted upon, and one word in that passage wants explanation. 
It was not the opinion of Lord Mansfield, or of any judge, p na^A n 
that tradition ♦generally is evidence, even of pedigree ; ^ J 

the tradition must be from persons having such a connection with the 
party to whom it relates, that it is natural and likely, from their dom- 
estic habits and connections, that they are speaking the truth, and 
that they could not be mistaken." From these expressions of Lord 
EldoD, it may be collected, that it had already become the practice to 
require that some connection, from which knowledge might be pre- 
sumed, should be shewn to have subsisted between the parties. 

(V) WWttook ▼. Watert, 4 Car. & Fay. 375, (19 E. C. L. R.) 

(r) Before the BaroDi of the Exchequer in IreUnd, a. ik 1743, How. St Tr. 17, 1195. 

(a) Attoniey.OeDeral*8 Rep. Huntingdoo Earldom, 359. See al«> 9 W. Bl. 1099 ; 14 
But, 330. It 18 the practice in Scotland to admit evidence of genealogical repntation in 
mtttera of pedigree. Than, in the proceedingfs in a canse, where the legitimacy was dis- 
piled, a witneee, a relation of the parties, deposed that it was the general belief of the 
eooDtry that the cbimant waslawfol heir male and lineal descendant, ** and that he is habittf 
and repute as such.** Min. of Ev. Election of Scotch Peerage, 1790, p. 136. In the Caith* 
ness claim, a wKnest, not a relation, was allowed to speak as to the time of birth of the 
ancestors of the claimant, and whether they had issue. Ibid. p. 171. See Stair, Inst lib. 4, 
ton. 43, sec. 16. 

(f) Do« T. Mow, Cowp. 694. («) Whitelocke t. Baker, 13 Vm. 514. 

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The nalure of the requisite conneclion'conlinued for some time un- 
defined. Upon several occasions at nisi prius^ the declarations of 
servants, physicians, and intimate friends, "were admitted \{v) and this 
practice received some countenance from obiter dicta of Mr. Justice 
Buller, Lord Kenyon, and other judges.(M;) 

At a later period, Lord Eldon said he conceived thaf the question, 
whether a physician, or a servant who had attended the family could 
be admitted, had not been decided.(a?) Abbott, C. J., in the case of 
Beer v. Ward, received the declarations of servants and acquaint- 
ances ; but he did so, subject to a further discussion of tbe question, and 
expressing at the same time an opinion against their admissibility.(y) 

But, although prior to the case of Johnson v. Lawson, the rule con- 
fining the admissibility of declarations to those of relatives is no where 
expressly stated, it seems, from the expressions of some of the judges 
there, that they considered it even then established.(z) In that case, 
Graham, B. refused to receive declarations of a deceased housekeeper, 
that a person under whom the plaintiff claimed, was the heir of her 
master ; and he staled, that De Grey, C. J., had laid it down, that hear- 
say evidence must be confined to persons who are members of the fam- 
ily. Upon a motion for a new trial, the Court of Common Pleas were 
r ^g-K -I unanimous in thinking the evidence properly rejected. 
^ J Best, C. J., in *delivering judgment, after observing that 

hearsay evidence must be subject to some limits, said, <* The rule ap- 
plicable to such evidence, and the limitation hitherto pursued, has been 
to confine it to the declarations of relations, and members of the fam- 
ily, connected by blood or affinity, and to no others." And after 
making observations upon the circumstances under which, in the case 
of Beer v. Ward, declarations had been received, as shewing that that 
case could not be considered as establishing a different principle, he 
said, that the principal cases which had been decided on the subject, 
were all confirmatory of the rule which confined the declarations to 
be admitted, to those of kindred or members of a family.(a) Mr. J. 
Park, also in the same case spoke of it as a known and definite rule 
which ought to be adhered to.(6) 

In a subsequent case, the dying declaration of a servant of a family, 
upon matter of family pedigree, was rejected.(c) In Crease v. Bar- 
ret,(d) Parke, B., in delivering the judgment of the court, cited Johnson 
V. Lawson, as an authority for saying, that in cases of pedigree, hear- 
say must be derived from relatives by blood, or from the husband, with 
respect to his wife's relationship ; and that it was not admissible if it 
proceeded from servants or friends. " The line," he observed, " was 
clearly de6ned in this description of hearsay evidence." The same 
rule has been observed by the House of Lords in claims of peerage.(e) 

(v) See the oases cited in 9 Moo. 187. 193. 

(10) See Rex v. Eriswell, 3 T. R. 719. Weeks ▼. Sparke. 1 M. &; a 679, (28 E. C. L. 
H.) («) Walker v. Wingfield, 18 Ves. 44S. 

(tf) Printed Report of trial, seoond issoe, pp. 189. 192. See obser?ation8 offieat, Ch. J., 
on tbis case, in Johnson v. Lawson, 9 Moo. 1^ 

(«) 2 BinjT. 86, (9 E. C. L. R.) ; 9 Moo. 183, (17 E. C. L. R.) 

(a) Page 189. (b) Page 194. 

(s) Doe d. Sotlon ▼. Ridgway, 4 B. & Aid. 53, (6 £. C. L. R.) 

(d) 1 Cr^ M. 8l R. 928. 

(«} Claim ofR.C.Coofca to BaroDy of Staffiird, 1825. MiiL£T.pk4. 

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On a qtiestionjof legitimacy, depeDdinc upon the validity of a mar- 
riage. Lord Kenyon admitted eviaence of a declaration by the clergy- 
man, that a friend of the wife had forbidden the banns ; he considered 
the declaration admissible, as being a confession by the clergyman that 
he had married without banns, by making which confession, he had. 
put himself ifi a dangerous situation.(/) And a clergyman's declara- 
tion, as to the fact of marriage, when it was not against his interest, 
has been held inadmissible. (^) 

♦The case of Higham v. Ridgway, cannot be consi- r ^g-^ -i 
dered as an authority for admitting declarations of persons "- J 

not relatives, on the footing of hearsay. There, an entry made by an 
accoucheur in his book, of having delivered a woman of a child on a- 
certain day, the charge for which was marked " paid," was consider- 
ed admissible as evidence of the birth of the child on that day, on the 
trial of an issue as to his ase at the time of his afterwards sufferiog a 
recovery.(A) The principle on which that case was decided was, 
that it was a statement against the interest of the party making it ;(t) 
none of the judges put it on the ground of pedigree.(^^ Lord Ellen- 
borough, C. J., expressly stated, that " his opinion was not formed 
with reference to the declarations of parents, received in evidence, as 
to the birth, or time of the birth of their children."{A) 

In the case of Annesley v. Earl of Anglesea, cited in a former page, 
it has been seen that the declaration of a midwife, that she had deli- 
vered Lady Allham of a child, was rejected.(/) 

The rule is now well established, that hearsay evidence, on matters 
of pedigree, lo be admissible, must proceed from sortie member of the 
family to which it relates; and the declarations of an illegitimate 
member of the family have been held inadmi8sible.(m) The publicity 
of instruments of pedigree, however, will sometimes be held to supply 
defect of proof as to their origin. For, if from their place of deposit, 
such instruments must be presumed to have been known to members 
of the family, the fact of their remaining uncontradicted, is, in effect, 
an acknowledgment by the family of the truth of the statements con- 
tained in them ; and such an acknowledgment is obviously equivalent 
to an original assertion of the same facts. 

Perhaps a sufficient reason for limiting the admission of hearsay to 
the declarations of relatives, may be found in the neces- r ^^^^ -• 
sity *of drawing some line, and the certainty and inlelli- '■ -■ 

gibility of the rule afforded by that limitalion.(n) An additional rea- 
son may, however, be advanced in the probability that a relative would 
have more accurate knowledge on such points than a stranger. Lord 
Erskine pointed out this principle in the case of Vowles v. Young,(o) 

(/) Stmnden ▼. Standen, 1 Peake, N. P. C. 47, 3rd ed. 

d) Berkeley Earldom, Printed Min. £v. 1811, p. 655. See Robins t. Wobeley, 2 Cai.. 
temp. Lee, 35. 475. (h) 10 East, 109. 

if) Per Bajlej, B , I Cr. 4d J. 458. 

( i) Per Lyndhurat, C. B., ibid. 456. 

(ir) 10 East, 117. See alao as to the case of Higham ?. Rldffway, per Bayley and Vao- 
gfaan, fia*a.; Gleadow ▼. Atkin, I Cr. & M. 422, 

(Z) 17 How. St Tr. p. 1157, sup. p. 651. 

(m) Doe d. fiamfbrd ▼. Barton, 3 Mo. & Rob. 28. 

(«) SeeperCh.J.,Best,9BftQ0.188,(17 JS.&L.R.) (s) 18Ves.l40. 

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4fift hitbbaok'b wmmmm 09 tmrnmaoju. 

vfhere he obser^^, that the hearsay of relatioiis i^as eyidenee, ft<im 
the interest of those persons in knowing the connectioos of the family. 

It seems to be chiefly on this principle that declarations of a bus* 
bandi respecting the legitimacy, or descent of his wife» are admissible ; 
for, though not related to the wife by blood, the husband, as was re* 
marked by Lord Erskine,(p) has a strong interest in knowing her legi« 
timacy, on account of the rights which her succession to real or per- 
sonal estate might confer on him. 

The connection of marriage is sufficient to render admissible dec- 
larations of the party so connected respecting the family .(9) And it 
is not necessary, in such cases, to shew that the information waa 
obtained by the declarant during the continuance of the marriage. 
An objection to the declaration of a husband a^ to his wife's I^iti- 
macy, made after her death, wlien, as was contended, his connection 
with her family had ceased, was overruled by Lord Erskine, on the 
ground, that his knowledge must have been acquired whilst he was a 
member of the family.(r) Perhaps it might have been not improperly 
considered, that the connection of marriage is not dissolved by the 
death of either party. This was held in a recent case before the rrivy 

It appears that hearsay, in the second degree, or declarations upoa 
r *658 1 ^^^I^^^ionS' ^^y ^ admitted. It is true, that in the case 
L -I *of Johnson v. Lawson, Best, C. J., said, that double hear- 

say, or declarations upon declarations, had never yet been received 
as evidence in Westminster Hall, although made by members of the 
family ;{t) but this observation was probably intended to apply only 
to cases where one of the declarants was a stranger, which was the 
fact in the case(u) with reference to which the observation was made. 
In the subsequent case of Doe v. Randall,(o) the same learned judge 
expressly assented to the admissibility of such hearsay, where both 
declarants were members of the family. . In that case, he said, '^ If a 
party, on cross-examination, was questioned as to declarations made 
by a person deceased, although he did not hear them himself, it would 
be sufficient for him to state that he had heard his relations (that is, 
relations of the deceased,) say that the deceased declared who and 
what his cousins or other relatives were." 

In Monkton v. Attornev-General,(u^) the Lord Chancellor treated it 
as clear, that there is no distinction to be taken between declarations 
made by a relative from his own personal knowledge, and declara- 
tions made by him, as to what he had heard from others. His lord* 
ship observed, that such declarations are most frequently founded upon 
what the declarant has heard from others to whom he gave credit So 

(p) 13VW.147. 

iq) Doe d. Northey ▼. Harrev, 1 Ry. dt Moo. 297, (21 E. C. L. It) Doe d. Futter ▼. Ran- 
dall, 2 Moo. &, P. 20, (17 E. C. L. R.) Airth Earldom, Mio. £t. 1 16. 

(r) In Vowlea ▼. Youn^, per Borroogh, J., 9 Moa 194. 

(•) Becquet t. God fray, 1 Knapp, P. C. C. 376, where the qaeation waA, whether a liiis* 
band> whose wife had died, conld act ai a judge in a cause in which her nephew was a party, 
which, by the law of the land, (the Island of Jersey), he could not have done daring her 
life. (0 9 Moa 190, (17 E. C. L. R.) 

(») Brown t. Shelley, cited by Boiler, J., in Rei v. Eriswell, 3 T. R. 719, and in John* 
•on ▼. Lawson. 

(v) 3 Moo. Sl Pay. SO, (It a C. L. R.) (to) 2 Rim &. My. 165. 

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▼. Wade, Lord Cottralmin, C, observed, that in cases of 
deelaratioDs, it is not supposed that the party is speaking from his own 
lowwiadge, bat from what he has heard as a member of the family.(:i;) 

Besid^ the declarations of particriar relations, the general reputa- 
tion of the family is sometimes admitted upon questions of pedigree* 
Id Doe d. Baanmg r. Griffin, in order to prove a person to have died 
UMMirned, a relative was allowed to state that, according to the re- 
pute of the family, he had died in the West Indies, and that she had 
never heard in the family of his being married.(y) It has been ob- 
servedt that the common reputation, or belief of the family, gives 
cradit to hearsay evidence.(z) *It has been thought that r ^^^q -i 
general reputation, in matters of pedigree, may be proved ^ •■ 

by the evidence of strangers ; but there does not appear to be any 
sufficient authority for excepting evidence of this description from the 
nde that excludes declarations not made by relatives. 

It is not necessary that the hearsay evidence, which is admitted 
upon questions of pedigree, should be contemporaneous with the events 
to which it relates, ouch a restriction would completely defeat the 
purpose for which hearsay in pedigree is let in» by preventing it from 
ever goinff back beyond the lifetime of the person whose declaration 
is to te adduced in evidence.(a) In the Lovat Peerage case, a witness 
was allowed to prove what she had heard her mother say as to the 
state of the family six generations back.(6) 

Before the declaration of a relative can be admitted in evidence, his 
relationship with the family must be proved aliunde ;(c) that is, it 
must be established by extrinsic proof, or evidence dehors the declara- 
tion8,((Q and not out of the declaration itself. Thus in the Banbury 
Peerage ease the judges held, upon a question put to them by the 
House of Lords, that a bill in chancery, purporting to be filed by the 
next friend of an infant, such next friena therein styling himself the 
uncle of the infant, and depositions in the same cause made by persons 
styling themselves relatives of the family, were not evidence that the 
parties respectively sustained those characters, so as to let in such bill 
and depositions on the footing of declarations, in a case where the 
legitimacy of the infant was m question.(e) In the Leigh Peerage 
case it was held that the relationship between the family and the party 
whose declaration was tendered in evidence, must be proved on oath, 
before the declaration could be admilted.(/) Pernaps in proving 
ancient pedigrees this rule might be considered too exclusive, as the 
^relationship of the declarant with the family is often a r ^^^^ -. 
fact of equal antiquity, and equally difficult of^proof, with •• J 

the relationship which is the subject of the declaration. In the Staf- 
ford case the counsel were informed that hearsay was not evidence, 
unless it could be proved that the person making the declaration was 

(X) 1 Mj. Sc Or. 355. (y) 15 East, 394. (s) BaU. N. P. 995. 

(a) MoaktoQ ?. AttorneT-GeneraJ, 2 Run. Sl Mt. 157. And m« Kidney t. Cookbvn, 

(k) Min. Ev. p. 89. And see Hood ▼. Lady Beaachamp, 8 Sim. 26. 

(e) See per Lord Eldoo, C. Walker v. Wingfield, 18 Ves. 44& 

(d) Per Lord Brou||rb«iii, C, Mookton ▼. Attorney.General, 3 Ruas. & Myl. 156. 

(c)3Selw.N.P.754. Par Lord Ekbo, In UieBerUay <tM,4Cui^4lS. 

( f ) I«igh fiaiopy, liin. £f. 18S8, (I a07. 

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4a ritbback's msa mo B iw tvoopBaioif. 

acknowledged by some of the known relatives.(^) It is clear that a 
mere claim of relationship by the person making the declaration is not 
sufficient That would in effect be " to allow a party to claim an 
alliance with a family by the bare assertion of it(A) 

It is sufficient that the declarant be connected by extrinsic evidence 
with one branch of the family touching which his declaration is ten- 
dered. To require proof of his connection with both branches would 
be to render the declaration itself superfluous, as the very fact in proof 
of which it is used would then be established.(») 

Hearsay evidence is of course inadmissible if the person making the 
declaration is alive, and can be caUed.(^') But the declarations of a 
deceased mother as to the time of the birth of her son are admissible, 
though the father is living and is not called.(ft) 

As the law has endeavoured to secure accurate knowledge in the 
witnesses whose declarations are to be receivable at second hand, by 
admitting only such as from their connections are most likely to be 
well acquainted with the facts, so it has been careful to guard this 
evidence from the danger of intentional incorrectness, by requiring 
reasonable security for the absence of all bias from the minds of the 
witnesses. With this view the second rule above stated has been esta- 
blished, that declarations made post litem moiam are not admissible, 
r *661 1 ^^^ ^"'^ appears not to have been established with any 
■- •■ ^precision, or to have been much considered, before the 

present century.(/) The objection to admittmg declarations made after 
the state of things had arisen upon which the contest was, *' vrhen 
there was a discourse about the matter,'' seems to have prevailed in 
an old case, before Reynolds, C. B., although it appears that declara- 
tions made *^ when there was no prospect of a controversy" were 

The next case is that of Hay ward v. Firmin,(n) before Lord Camden, 
in which, according to Mansneld,C.J.,(o) on a question of the legitimacy 
of the son, the declarations of the mother as to her marria^, made after 
the commencement of the suit, were received after objection taken, 
and debate had ; but not a word appears to have been said of the prior 
decision of Lord C. B. Reynolds. In Goodright v. Mo6S,(p) the oojec- 
tion to the answer that it was post litem motam does not seem to have 
been taken : and upon examination it will be found, that the new trial 
was granted on the ground, that the general declarationsof the father and 
mother had been rejected. It does not appear that there is any other 
authority upon the subject in our law,(}) prior to that of the Berkeley 


r) Stafford Barony, 1835, Min. Ev. p. 5, 

Per Best, Ch. J^ Doe d. Futter y. Randall. Davies ▼. Morgan, 1 Or. & J. 591, and 
Adamthwaite v. Synge, I Stark. N. P. C. 183, shew that the character and costody of recordi 
miMt be proTed by extrinsic e?idenoe. In the former caee, Bayley, B^ referred to tlia Ban* 
boiy and Berkeley casee. See also per Bayley, J., in Rex ? . All Saints, 7 a & C. 788, (14 
£. C. L. R.) (t) Per Brougham, C, 3 Russ. 6l My. 157. 

U) Pendrell ▼. Pendrell, 2 Str. 924. (ft) Rex ?. Birmingham, MS. 

{I) Graham, B. who differed from the rest of the judges as to the first qoestioD in the 
Berkel^ case, disclaimed any knowledge of tlpe rule. 

(m> Viner»8 Ab. E?. T. b. 91. 

(II) Cited by Lawrence, J., in the Btekeley case, 4 Campb. 410. 

(0) Ibid. 417. (f) Cow(K 594. 

iq) In the Doii|^ CMe,ii appeared th«t the stottis of the defender and his brother bad 
been disputed fh>m a period fery sQoa«av tfaeir hirtb»uid thet pvooeodinfi htA bMa tiken 

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Peerage easot unless that of Bdvrafds v. HarvOT(r) can be eomUvei 
such. There, upon the trial of an issue, a M& pedigree drawn out 
by, and found among the papers of a deceased relative was r^ected: 
but it is not clear whether it was^ rejected upon the ground that it bad 
been made after the doubts had arisen as to the pedigree, or because 
the person who made it had herself an interest in establishing the rela- 
tionship. It may be observed; however, that Mr. B. Graham, who 
rejected that evidence, was the only one of the Judges who in the 
Berkeley Peerage case disclaimed any knowledge of the rule in ques- 

*In the Berkeley Peerage case the particular time at r ^^g i 
which declarations were made was considered with respect ^ ^ 

to their admissibility.(8) To explain the question submitted to the 
Judges, it is only necessary to state that William Fitzhardinge Berke- 
ley, the claimant, was born on the 2dth of December 1786, and that 
be alleged that his father and mother were married in the parish of 
Berkeley in the county of Gloucester, on the 30th of March 1785. 
They were likewise married in the parish of St. Mary Lambeth, on 
the 16th of May 1796, till which time Lady Berkeley did not appear 
as his Lordship's wife ; and the claimant was not till some time after 
treated as their legitimate son. They had several children after the 
second raarria^^. The only question before the Lords respected the 
legitimacy of the claimant; and that depended entirely upon the reality 
ofthe first marriage alleged to have taken place between his parents. 

In the year 1799, a bill was filed in the Court of Chancery by the 
claimant, and three of his brothers born before the second marriage, 
to perpetuate the testimony of their legitimacy, on the ground that 
they were entitled, in remainder in tail after an estate for life, to cer- 
tain lands then held by their father : the children born after the second 
marriage, and ethers entitled in remainder after them being made the 

The Earl of Berkeley was one of the witnesses examined on interro- 
^tories for the plaintifis, and in his deposition he swore positively to 
me reality of the first marriage, and the plaintiffs' legitimacy. The 
counsel for the claimant, after a large body of other evidence 
adduced before the Committee of Privi^ges, now proposed to read 
this deposition, as a declaration by the late Earl of Berkeley in a mat- 
ter of pedigree, respecting the legitimacy of his son. The admissi- 
bility of this deposition was oppoj^d on the part of the Crown, axid the 
eldest son after the second nutrriage. 

Thereupon the Judges were summoned, and the following with other 
questions, submitted by the House of Lords to their consideration. 

*1. Upon the trial of an ejectment respecting Black r ^^^^ -•- 
Acre between A. and B., in which it was necessary for »■ -■ 

A. to prove that he was the legitimate son of I. S., A., after proving 
by other evidence that L S. was his reputed father, offered to give in 

to prove tbem illegitinute ; yet the dying deokrationof Lady Jane Douglaa, and the decla- 
ration pf Sir John Stewart sabsequently to this, were received without obiection. But that 
caae was tried by the law of Scotland, by which, as before noticed, great latitude is allowed 
in the admission of hearsay evidenoe. (r) Cooper, Ch. Ca. 39. 

(•) Berkeley Eartdom, May 13, 1811, 4 Campb. 401. 

(0 See Lord Itersioy t. FMihardinfe, 6 Vei. 351. 

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4M HUBBAoc*# wnsmum <» Mootssion . 

evidenee a depovtion made by L 8. in a cause in Chancery instituted 
fcj A. agaioet C. D., in order to perpetuate testimony to the alleged 
fact dmputed by C. D., that he was the legitimate son of I. S., in which 
ebaracter he claimed an estate in remainder in White Acre, which 
was also claimed in remainder by C. D. B., the defendant in the 
ejectment, did not claim Black Acre under either A. or C. D., the 
ptaiBtiff and defendant in the Chancery suit According to law, could 
the deposition of I. S. be received upon the trial of such ejectment 
against B. as evidence of declarations of I. 8, the alleged father, in 
matters of pedigree % 

The Judges who were present, to the number of seven, delivered 
their opinions at length : and with one exception pronounced the depo- 
sition of L S. inadmissible. The ground of inadmissibility mainly 
relied on was, that it had been made font Ktem motam. The rule there- 
fore must be considered as thoroughly established by that case. 

It becomes then material to ascertain the precise meaning of the 
term lii mUaxn the rule in question, for which purpose a consideration 
of the principles on which the rule is founded will not be unimportant. 

In the case of Whitelock v. Baker, Lord Eldon. after mentioning 
various formsof traditional evidence, said, they are all admitted upon the 
principle that they are the natural effusion of a party, who speaks upon 
an occasion, when his mind is in an even position, without any temp- 
tation to exceed, or fall short of the truth.(a) These expressions are 
referred to by more than one of the Judges in the Berkeley Peerage 
case, as containing the principle of the rule in question. 

Mr. Baron Wood, after quoting the words of Lord Eldon, said : 
f *664 1 *** Up^° ^^^^ principle it has been the general rule, as far 
^ J back as my experience and knowledge go, to reject hear- 

say evidence of the declarations of deceased persons, not only relative 
to matters in actual suit, but in dispute and controversy, prior to 
the commencement of judicial proceeding8."(«') Mr. J. Lawrence also 
adopted the principle, and almost the language, of Lord Eldon, and 
then went on to say,(ttj) " The receiving of these declarations, there- 
fore, though made without the sanction of an oath, and without any 
o|:^f>ortuaity of cross-examination, may not be attended with such 
mischief as the rejection of such evidence, which, in matters of pedi- 
gree, would often be the rejection of all the evidence that could be 
offered. But mischievous indeed would be the consequences of receiv- 
ing an ex parte statement of a deceased witness, although upon oath, 
procured by the party who would take advanta^ of it, and delivered 
under that bias which may naturally operate on the mind, in the course 
of a controversy upon the subject*' He then observed, that declara- 
tions in cases of pedigree stood on the same footing as cases of pre- 
scription» where what a witness had heard after the beginning of a 
controversy, was never admitted ; and after stating that the author- 
ities were balanced, he said, resort must be had to principle, and the 
uniform practice which had obtained in questions of prescription. ** Can 
it be presumed that a man stands perfectly indifferent upon an existing 
^ispate respecting his kindred 1 His declarations post litem motam^ 
not merely after uie commencement of the law-suit, but after the dis- 

(«) 18 Vm. 514 (e) 4 Campb. 406. (lb) Hud. 409. 

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jmfe km amn, (ti»t k tha primtrjr meafiing of ^e word Hi,) are erf^ 
deatly more likely to mislead the jury, than to direct them to a right 
concluaioD^aod therefore ooght not to be reedived in evidenoa" 

The meanii^ then of the term pott litem mskim is here explained to be 
after the dispute has arisen. Lord Chief Juetice Mansfield, in !b^ 
Berkeley Peerage case, said, '' The line of distinction is the origin of 
ike controversy^ and not the commemcement of the suit After the con^ 
troversy has originated, all declarations are to be excluded, whether 
it was or was not known to the witness. If an inquh*y were to be 
instituted in each instance, whether the ^existence of the r ^^g. ^ 
controTorsy was or was not known at the time of the L •■ 

declaration, much time would be wasted and great confusion would 
be prodoced.(a:) 

A subsequent case has gone yet further in defining what is the com* 
mencement of the controversy. Where a person died possessed of 
property, which many years afterwards another person commenced a 
suit to recover, and in the year after the first person's death, a rehb- 
lion of the second person made a declaration, the efiect of which was 
to prove that he was the heir and next of kin of the first person, it was 
held that the second person could not avail himself of such a declara- 
tion in evidence. It was argued, that if the existence of a controversy 
were essential to the exclusion of the evidence, a party might lay l^ 
and make no controversy till he had got a suflScient body c? such evi* 
dence ; the evidence was rejected by Alderson, B., on the prfncipte 
that the commenceniait of the controversy must be taken to be, the 
artfling of that state of facts on which the claim is founded, without 
any thing more.(v) 

So far the authorities agree with each other ; but in the case of 
Monkton v. Attorney-General,(z) Lord Broueham expresses a difierent 
opinion. Speaking of a MS. pedigree, which was put in evidence as 
containing the declarations of a relative, his Lordship said, ** bring it 
within the rule either of Whitelock v. Baker, or the Berkeley Peerage 
case : prove that it was made post Ktem motamf not meaning thereby 
a suit actually pending, but a controversy exisHin^, and that the person 
making'or concocting the declaration took part in we controversy : shew 
me even that there was a contemplation of lesal proceedings, with a 
view to which the pedigree was manufactured, and I shall then hold 
that it comes within the rule which rejects evidence fabricated for a 
purpose, by a man who has an interest of his own to serve.'' It would 
seem, from this language, that Lord Brougham did not consider that 
it would be sufficient for the exclusion of the evidence, to show that 
the pedigree was prepared after the arising *of the state p ^^^^ ^ 
of facts on which the claim was founded, but that he ■- J 

thought some knowledge of, and share in the controversy, must be 
brought home to the compiler. 

In the Berkeley case, Graham, B., suggested that if it could be 
clearly shewn that the party making the declarations could not by 
possibility know that a suit was commenced or contemplated, surely 
the declarations would be receivable : and observed upon the field of 

(s) 4 CRmpb. 417. 

(3f) Walker T. Beftpchamp, 6 C. «t P. 558, (25 B, C L. R.) 


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MS RiiBBAQS*« mua m mm w ■paadssioif . 

baqairy that woidd be opened in every case where hetrtay e^deooe 
was tendered, if it was to be excluded where the declarant was shown 
to have had such knowledge. It is observable that C. J. MansfieU 
urged the same consequences, as a reason for not recpiiriDg any evi- 
dence of such knowledge.(a) 

In Slaney v. Wade,(6) estates were devised to one for life, with 
limitations to his first and other sons in tail, with remainder to the risht 
heirs of the testator. A copy of mural inscription, made by a member 
of the family after the death of the testator, but in the life of the tenant 
/or life, who afterwards died at the age of fifty, without issue, was 
offered in evidence for the person who claimed as heir of the testator* It 
was objected to, as having been made after the state of facts arose which 
r «667 1 '^^"^ ^® •ground of the suit. It was, however, admk* 
L -l ted at law ; and on a motion for a new trial, the Lord 

Chancellor considered it admissible. He said it would be going for 
beyond any other case to hold, that at the time the copy was madei, 
there was a lit mota.{c) 

In a still more recent case, the state of facts not having arisen whM 
declarations were made, the actual existence of a suit at that time 
seems to have been considered by one learned Judge insufficient to 
render the declarations inadmissible. In Ansdell v. Gompertz, the 
question was whether Henry, the son of Joseph Isaac, was bomlvefore 
or after the marriage of his parents in 1783. It appeared that a large 
sum of money stood limited, in the event of the aeath, without issue, 
of the tenant for life, to the first son of Joseph Isaac, who should attaia 
twenty-one. A suit was instituted, in 1782, respecting this proper^» 
and was pending when declarations respecting the legitimacy of Henry 
were made. The tenant for life, however, was then alive, and on that 
ffround the objection of lis mota did not prevail at law. But Lord 
Tottenham said he should have great difficulty in concurring with the 
Judge (Baron Gurney,) that declarations were admissible, if mad« 
under these circumstances. 

. In the claim of Robert Barclay Allardice to the Earldom of Aurth» 
part of the evidence tendered by the petitioner, to show the extinctioii 
of one branch of the family, was a paper, entitled *' a narrative of the 
family of Airth and Monteith." It was in the handwriting of one Jolm 
Bogle, who had married a descendant of the last Barl of Airth, and 
was by him prepared and transmitted to his son, with a view to induce 

(•) AmcNiffst the civilianB, the general role wae, that heanay originatuig po&l UUm i 
was inadmistible ; but to this role there was an exception, apparently fbuDded oq the pre- 
turned ignorance of the li9 mota on the part of the deckrant, namely, that if the witness 
proved that he heard the fiict in a plaoe very fkr distant from the scene of controversy, his 
evidence was to be admitted. The rule and eioeption are thus staled in Masomhis 4m 
Probattonibos, (probably the booli referred to b;^ Ch. J. Mans6eld, (4 Campb. 4170 •• « 
treatise of great learning, entitled ** De Probationibus,'*) ** Nee vero tantommodo debent 
esse persono graves, sen etlam debent deponere se audivisse ea que asserunt, ante litem 
naUu ; quod si post litem motam d^xmerent, mm sohkm non probarent, sed neo allam 
fidem faoeient ; quia facile eontingere potest, ut quis-^ptam id audivtrit ab aliot qui UM 
protolU in fraudem, vel quod lb ipsi mota traxerit istam famam.*^ ** Istud autem quod 
diximos, debere testes deponere ante litem motam, sic est accipiendum at verum sit, si Ibid* 
*em, Uhi res agitnr, aodient ; at si alibi in looo, qui longissime distareC, sie intellexerit, etkni 
post litem motam, tertes de audito admittuntor. Loogiquitaa eaim looi in oaosa est, ot omaas 
•uspieio abesse videator, quoB quidem suspido adesse potest, qoando testis de tudita post 
litem motam ibidem, ubt ret agitnr, depooit.*' Maso. Conclos. 490^ n. 4, 5,^ 

(i) lMy.lbCr.d3a (c) 1 tfy. & CV. 356. 

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fain to daiai tke peeraffe, which however be never did. The petitioiier 
claimed through ao elder branch. The evidence was objected to, on 
the ground that at the time when the document was prepared, there 
was a controversy in the family, as to who would be entitled to the 
dignitv, and tetters were produced, showing that the claim had been 
the subject of discussion. The Committee for Privileges, however, 
considered, that as the document was a pedigree transmitted by a 
lather to his son, in order to induce him to make a claim r ^^^^ -i 
to ^peerage, it was natural to suppose that the information ^ •> 

was correct: and the son not having been induced to make the claim, 
it did not come within the exception of lis pendens.{d) 

The House of Lords have admitted evidence in the nature of decla- 
rations, which originated after a claim had been actually made by a 
person to whom the declarant was heir. A retour of service, dated 
in 1805, shewing the descent of Mary Bogle, was tendered as a decla- 
ration : it was objected to, on the ground that there had been a dispute 
in the time of Mrs. Bogle's uncle, whether he was or was not Earl of 
Monteith ; and that as she was his heir, there was a sufficient lis pert' 
dehs to exclude the evidence. The counsel were informed that the 
only ground on which the evidence could be rejected was, that there 
was a lis mota ; that the only evidence upon that was the claim made 
by her uncle in his lifetime; that he had died in 1783, and there was 
no trace of any claim, or intention to prosecute a claim, by any mem- 
ber of the family after that period ; tnat if that claim having once 
esdsted, could be considered as sufficient to exclude evidence, it would 
go to the rejection of evidence in almost all ca8es.(e) 
' It should be noticed that in the case last cited, the pedigree which 
was received after objection, was not compiled with a view to sup* 
port any claim that the compiler himself could ever have put forward* 
This distinguishes the case from another modern case, where a MS. 
pedigree was considered inadmissible, because it was not a spontane* 
ous effusion, but was made for a particular object, and in contemplation 
of litigation. In that case a pedigree found among the papers of 
the claimant's family in the hand-writing of the claimant's father, 
was tendered in evidence. It appeared that the pedigree had 
been compiled with a view to support a claim to certain estates. 
It was urged, in support of its admissibility, that the father could 
have no interest in the question then in agitation, as he never could 
have claimed the peerage, which the petitioner claimed through 
his mother ; and that there had not been any proceedings instituted of 
which they had any knowledge. It was, however, considered that the 
evidence *was inadmissible, as made in the prospect of a p ^^g n 
contest for property ; and although it appeared that in the "- J 

claim to the estates, the descent was admitted on both sides, their 
Lordships held that that fact made no diflference, as it might be equally 
for the interest of each party to admit a particular fact, though con- 
trary to the truth.(/) 

It would seem, upon principle, that a lis mota^ in order to have the 
effect of excluding aeclaralions, must be upon the fact of heirship. No 
authority upon tlus point has been met with in our law ; but the que»- 

(^ AiHh Etrldom, Mm. Er. p. 116. (c) Ibid. p. 99. 

(/) SkntBtrooy, Miii.fif. 1830, pt•],^6;pt.3,p•35,•lldpt3,p.e. 

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464 hubback's svimvob pv focwomioii. 

tion has occiuTed in the Coarts of the Unked States. In a caae whoie 
a controversy had arisen, or was expected to arisei coocenui^ the 
validity of a deed, against which one of the parties to th^ priac^Md 
suit claimed, but no coatroversy was then expected to arise about the 
heirship ; a letter, written about that tinoe, stating the pedigree of the 
claimants, was held not within the rule excluding declarations made 
post litem motam.(g) 

A distinction has been taken in favour of declarations made with 
an express regard to the possibility of a future controversy, where the 
object of the declaration was to establish a fact, which might prevent 
the controversy arising. I.«ord Mansfield said, that he had knowB 
advice given to a father and mother to make attested declarations in 
writing, under their hand, of the precise time of the birth of the bastard 
eigne, and the subsequent marriage, to prevent controversy in the 
family touching the inheritance. (A) And his Lordship impUed that 
such evidence would be admissible. The answer of the Judges totlie 
third question, put to them in the Berkeley, case, is more express to 
the same e£rect.(i) They said, *' That writing in a bible, or any other 
book, or any other piece of paper, would be admissible in evidence* 
as a declaration of the father in matter of a pedigree, notwithstanding 
that the father was proved to have made such entry for the express 
r *670 1 P^^P^^ ^^ establishing the legitimacy of his son, and the 
■- J *time of birth, in case the same should be called in ques* 

tion after the father's death. Its particularity would be a strong cir- 
cumstance of suspicion, but still it would be receivable, whatever thq 
credit would be to which it would be entitled." 

The rule, and the principle of it have been thus stated* With refer* 
ence to Lord Mansfield's language, it has been said, " It sanctioiiB 
the doctrine, that the having a distinct object in view in making a 
declaration in writing, or by parol, even though the object can onW 
be gained by afterwards using the declaration in evidence, is not suffi- 
cient per se to exclude that declaration. In plain terms, if a father or 
mother make a pedigree, for the purpose of preventing disputes in tha 
family, bis Lordship says he will admit that pedigree in evidence^ even 
when those very disputes arise ; because it was not made with a view 
to their own interest, but to preserve a comtat, as it were, on record, 
of facts peculiarly within their knowledge, (which is one of the main 
grounds of admitting such hearsay declarations ;) and the observa- 
tion, that it was made for the purpose of settling family disputes, and 
may not have been so spontaneous and natural as some of the dicta 
of the Judges would seem to require, shall only go to its weight and 
credit with the jury, and shall not preclude its admission by the 
Court.'*( j) The opinions both of Lord Mansfield, and of the Judges 
in the Berkeley case, agree, that the credit due to such evidence is 
matter for the consideration of the jury. 

There are one or two cases which seem to support the doctrine that 
the declarations of a person in pari jure with the person seeking to 

(r) fniiot T. Peireol, 1898, 1 Pefen*i Rep. (U. &) 49a 

(1) Goodriffat ▼. BfoM, Coirp. 591. (i) 4 OuapU 41i. 

0') Per Lord Broaghun, 9 Rum. 4d Mj. 164. 

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Qte them, afe iMdm!98ibIe.(Jl) Thus, in tbe eUim of Sir CecO Bisbopp 
to the Barony of Zouche, some private papers, purporting to be the 

Csdigree of Lord Zouche of Haryngworth, from the possession of a 
dvy since dead, who was a branch of the family, and conceived her- 
self entitled to the dignity claimed by the petitioner, were rejected.(i) 
It seems probable, however, •that the true ground of rejec- r ^^^ - ^ 
tion was, that the pedigree had been compiled in contem- ■- ' ^ J 
plation of a claim to the dignity. 

On a motion in Chancery, for a new trial of an issue, the question 
was, whether a paper, ofiered to be produced as evidence on the part 
of the plaintiff, and which Mr. Baron Graham had rejected at the trial, 
ought to have been received as evidence. It was a pedigree drawn 
out by Bridget Lloyd, a maiden lady, deceased, shewing that C. D.^ 
who was her relation, was related to A. B. It was made after the 
doubts arose as to the pedigree, but she herself was dead, and it was 
found amongst her papers. It is stated in the report, that the Master 
of the Rolls (Sir W. Grant,) refused a new trial, because, if Mrs. 
Bridget Lloyd's pedigree, written by herself, were evidence for her 
relation, so woulo her declaration have been evidence to shew that she 
was herself entitled to the estate.(m) Here, also, it may be doubted^ 
whether the real ground of the decision was not rather the time at 
which the pedigree was made. 

It is now, however, perfectly settled, both upon reason and author* 
ity, that hearsay evidence is not to be excluded, on account of the bias 
supposed to operate on the person making the declaration, in conse- 
quence of his being, or believing himself to l>e in the same situation 
touching the matter in contest, with the party relying upon that decla- 

It is not necessary that the declaration should distinctly express 
totidem verbis the particular fact in evidence of which it is adduced ; 
expressions equivalent, as assertions inconsistent with the existence of 
any other state of facts, will be sufficient This subject will be more 
fully considered in discussing the various forms under which hearsay 
eviaence may be presented.(o) 

It is, lastly, necessary to treat of various forms under which bear- 
say evidence, in matters of pedigree, may be presented, r ^.^^ i 
*The original statement may have be^n made orally, and ■- J 

may be proved by the testimony of those who heard it, in which case» 
it is strictly what Lord Mansfield spetfks of as " iradilian;" or, which 
is much more frequently the case, it niay have been made in writing, 
and will then depend upon the production of the instrument containing 
it, or secondary evidence of its contents. In traditional hearsay, the 
author of the statement is known, and the evidence is received upon 
the credit which is given to him ; and the same observation will apply 
to some forms of written hearsay ; but as has been noticed in a former 

'(k) In DnmnDOiKTa ease, 1 Leach, Cr. C. 578, Uie eridcnee wta clear] j inadmisaible apon 
•dwr grouDdt Umn the sUaatioD of Uie paitj making the declaratioD. Beeper Lord Brooffaam, 
a 2 Roaa. Sd My. 160. (Z) Zoache orHanrDgworth BaroDj, 1804, Min. Et« p. S07. 

(m) Edwarda v. Hairey, Cooper, Ch. Rep. SS. 

(») Per Lord Bhw baia, 0. Monktoo ▼. Attorney-Genera], S Rvii. Sd Mj. 160, 

(a) See Kellie Earldom, cited rap. p. 90ft. 

Mat, 1845.— 18 

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4M rubbajOK^! 

9^ there are oilier forms of written hearsay, in which the aothon 
sing unknown, credit is nevertheless mven to the statement, as hav* 
ing been acknowledged and adopted dv persons interested to know 
and maintain the truth. Of the former kind, are statements contained 
in family letters, descriptions in wills, or recitals in deeds: of the 
latter, monumental inscriptions, engravings on rings, or pedigrees 
openly hung np in mansion-hooses, may be cited as examples. 

Entries in family bibles are among the most common forms of hear* 
say evidence of pedigree : but it is questionable to which of the above 
classes they more properly belong. G. J. Mansfield, in delivering thb 
answer of the Judges to the second question in the Berkeley case, 
expressed an opinion, that an entry written by a father in a bible, 
would not be of more weight than the same written in any other 
book.(p) Lords Ellenborough and Redesdale, however, intimated that 
the use of the book as the ordinary register of families, and the access 
of the family to it, would give a degree of strength and solidity to the 
evidence, which would not be conceded to another docoment. The 
distinction between a family bible and other documents was carriett 
further by Lord Brougham, who observed, that as a family acknowiede^ 
ment, and on account of its publicity, such book would be admissim 
without proof that the entry was made by a member of the family.(9) 
r •GTS 1 ^" Johnstone v. Parker, an entry in a family bible wtt 
^ •■ used to *shew that a man was under age at the time ef 

bis marriage by license.(r) It does not appear that it was proved bjr 
whom the entry was made. It should be noticed, that wtiatev«r 
difference of opinion existed between the Judges, and the Law Loi4s 
in the case above cited, referred, not to the admissibility^ but to the 
comparative value of the supposed entry. Nor is it to be collected 
that the book, as a bible, was considered to be entitled to any dis^ct 
admissibility or credit For there is no ground for a notion, whidi 
teems sometimes to have existed, that the character of a book as a 
religious work, may affect the sidmissibility of genealogical memtv 
randoms made in it.(s) 

It has been seen, that an almanac has been admitted to prove by an 
entry made therein in the handwriting of the father, the date oi his 
son's birth.(<) So an old book, from the library of Lord Oxford, 
mentioning the pedigree of William Zouch, signed by himself, is 
stated to have been received.(u) 

On the other hand, in a recent case, where an entry in a pray»- 
book, alleged to have belonged to a member of the fkmily, was ten- 
dered in evidence, without any proof by whom the entry relied on 
wais made, it was rejected.(t>) 

A missal, containing numerous entries, made by a father, of births, 
deaths^ and marriages of his children. Was received by the House of 
Lords apparently without difficulty.(ti?) 

Correspondence between members of the family, addressing each 

(p) Gimpb. 421. 

iq) Monkton ▼. Attorney GenMl, 3 Rosa. & My. 169. (r) 8 FhiH 88, (1 Ecc R.> 

(9) See HfiodT. Lady jBiefttidiainp, cited pott, p. 637. 

(<) Herbert v. TuckaU, Sir T. Raym. 84. 

(11) Via. Ab. Cv. T. b, 67, pi 5, Gaikiford Lent Assises, 5 Geo. 1. 

(o> Trtcy Barony, 1843. See Hood t. Ltdy Beattcamp, cited MSt m 687* 

(») Slane Buoay, 1831, Bfln. Bv. pt. 9, pi 49. 

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tUbttr as n]«UiM» mud makiiig ttataiseiits of pedigfM, h^Lvm been fre- 
qaeotljr adoutted. In Kidney y. Coekbnni» a letter was put in evi- 
dence to prove the age of the writer's grandfather at the time of hie 
deatii.(a:) So in the Huntingdon Peerage case, a letter was put in 
evidence fimn the Countess of Moira, sister of the tenth Earl c^ 
HmrtingdoB, to Archdeacon Hastings, in which *she r ^^ . ^ 
enters into « very extensive detail of the pedigree of her ^ J 

fiunily, which was foimd to correspond with the other evidence laid 
before the Atloniey*6eneral. In this letter she also states her belief 
that the claim to the title was with the family of the petitioQer*( y) 

In a recent case, a l^ter-book in the possession of the exectitor of 
Ihe ezeoi;rtor of the Earl of Marchmont, being tendered in evidence 
befope the Gonmiittee of Privileges, as containing declarations relating 
to the family, it was required to be shewn that the letters were those of 
Lord Marchmont Afterwards, a witness deposing that he had exam* 
ined the handwriting of Lord Marchmoont on tne Records of the Scotch 
Parliament, and made himself well acquainted with it, and that some of 
Ibe letters hi tbe book were written, and others corrected in the same 
writii^,.tbe book was received.(s) Numeroys other cases may be 
leferred to.(tf ) 

The contents of deeds will often afford admisuble evidence in the 
natmne of declarations bf members of the family.(6) Marriage set^ 
lleoaents are particularly fmitfnl sources of information as to descent. 
Tarions sti^ in the pedigree of the Courtney family were proved by 
ibeir descriptions in documents of this nature.(c) Deeds to lead thle 
■mtM of a fine,(</) or a recovery,(e) indentures of apprentieeship,(/) 
contracts of marriage,(^) marriage articles,(A) family settlemenU,(t) 
•od other deeds have been admitted. 

' ^Evidence of this nature ismost frequently found in the ^ _^. ^ 
reoitals of deeds ; but the description of parties will some- ^ } 

liDMs afibrd proof as to identity. Thus, to prove that Alexander 
B<nrthwick vras at first described as of Johnstonbum, and afterwards 
of Gilchriston, an original indenture of apprenticeship of his son 
William Borthwick, to a surgeon in Edinburgh, in which Alexander 
bore tbe foregoing description, was produced in evidence from among 
tbe title deecb of Uie family.(&) 

It foUows from the principles upon which the admission of such evi- 
dmice is founded, that if the deed was not executed by a member of 
Ike tumlj to which tbe statements refer, the contents will not be 

(•) 3 Rum. Sl Mr. 167. (y) Bell*! Hnntinffden P«er. em\ A, 6. Rep. p. 357, 

(s) MArofamoiit Earldom, Min. Et. pp. 345. 353. See also Airth Earldom, Mm. £f . p. 

(«) fiemert Baronjr; Goiniie oo Bar. 355, S>6. 361. Leigh Barony, Mio. Ev. pt 9, p. 
140. HaiiiBgafiarooy, Min.Ef.p.196. 

ih) Neal d. D. of Athd ? . WildiDg, 3 Str. 1 151 ; Chandos Barony, Min. Ev. p. 27 ; Staf. 
tard Barony, Min. Et. p. 110 ; Zoache of Haryngworth Barony, Min. Ev. 1804, p. 275 ; 
Liafo Barony, pp. 116.127 ; Banbury Earldom, pp. 6. 117. 

(c) Devon Earldom, by Nicolaa, 1832, App. pp. 44. 46. 

(d^ Haatinga Barooy, Min. Et. p. 200. (e) Marmyon Barony, Min. Et. p. 111. 

(J) Bortfawiek Barony, Min. Et. p. GS. (g) Hontly Blarqniiate, Min. Et. p. 15. 

(1) Roaoommon Earldom, Min. Et. p. 36i In this caae, tbe Lorda beld that marriage 
•rtidea, aigned by the partiea, made in contemplatioo of a marriage ahortly to be had, were 
rMehrablo aa evidence of the marriage. 

(t) Vaoz of Harrowden Barony, Min. Et. p. 44. 

ik) Borthwiek BmDy.Min. Et. p. 62, > 

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401 BVBBAMt^ 

admissible. ^U9, in a recent case in (%ancery, the recital in m 
' indenture of assignment of a term» that the assignee was the son of 
certain parties, was held inadmissible to prove that fact, because the 
assignor, who alone execnted the deed, was not a member of tkm 
famil7.(0 And in Fort v. Clarke, Lord Gifibrd, M. R*, decided^ ifafit 
recitals of pedigree, in a deed of conveyance, whatever eflfect they might 
have against the parties to the deeds, could not as against third persons, 
be any evidence of the pedigree.(m) In a recent Peerage case, bow- 
ever, a copy of a contract marriage, dated in 1664, attested by two 
notaries, but not by the parties, and produced from the muniment 
room of the family, was admitted as evidence of the relatidi^iip 
stated in it The' Lord Advocate, on behalf of the Crown, stated 
that it would be held good evidence in Scotland if it were proved ibot 
the original could not be obtained, which was done.(n) 

The evidence derivable from deeds, is not confined to what may be 
drawn from recitals of descent, or descriptions of parties. Tfae 
whole tenor and eflfect of these instruments will often, by the mode 
in which property has been dealt with, aflTord strong inferences as to 
the state of families or individuals at the time of execution. Refer* 
ence is made to a former part of this work for various illustrations c[ 
tiiJs branch of the subject.(o) 

r *676 1 *^^ seems, that where an Act of Parliament has rea" 
I- -* dered the enrolment of a deed necessary, an exammad 

copy of that enrolment will be admitted to prove tiie contents of tte 
deed, even by the House of Lords, in claims of Peerage. An ob}eo» 
tion to evidence of this description was overruledf in the YauK 

In the case of Collins v. Maule, an examined extract of the r^^ 
try of deeds of the county of Middlesex, was tendered ai seeondaiy 
evidence of the contents of a deed, dated in 1701, to prove the des- 
cription of one of the parties to it. The evidence was objected to« 
but Tindal, C. J., thouch he observed, that there was very little en* 
dence of inquiries for we original deed, received the evidence, taking 
a note of the obiection.(g) 

' A slip of parchnnent, said to have been found in a shoemaker's shop, 
and marked Mr. A. B.'s measure,- which apparently contained two 
, lines of an old deed, recitinff a descent, having been rejected in evi* 
dence, the Court of King's Bench is said to have granted a new trial 
on the ground that it vms improperly rejected in a case depending en 

(Z) Slaney v. Wade, 1 My. & Craig, 33a 

(m) 1 Rom. 604. (n) Hontl^ Mvqdnte, Ifin. fir. p. 1& 

if) f/lin, Et. p. 81. It may not be improper to notice in thia place, ai afibrding genaa- 
logical evidence, a faloable collection of chartera in the Britiab Museum. Many of them 
extend to a later period than the reign of Chariea I., and the majority are Tery mooh older 
than the time of Richard II. Of these documents it has been remarked, that in o«a 
instance, charters have been found which establish no less than five descents of a pedigree ; 
and there are but ftw families whose genesloffy would not receive material iOostratioas 
fiom them. Charters granted by the Sa>ttish Mooarchs, of certain lands upon the death 
of the ancestors to their successors, and reciting deseent, marriages, &^, have been adoii^ 
ted as evidence thereof by the House of Lords. Proceedings in the Boose of Lords npm 
dispoted daims to vote at eleotion of Scotch Peers, 1791, p. 109. 

(9)CQllia8T.Maii]e,eCar.a&P.,(34£.C.L.£.) See Ubele t. Kilner, ibid. H. 989. 

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MfHitatioii. It afienfards appeared that 4ie parchment was a fiibri- 

Seeoddaiy evideooe of genealogical matter contained in a deed 
nmy be given. In a trial at bar in ejectment, it was offered in evi- 
dence vipA voce, that at a trial in ejectment against the defendant, for 
parcel of the land then in question, the defendant produced a deed of 
leleate, which had a clause in it to prove the ()eaigree. The Court 
held this good evidence, because the defendant might *give •• ^^^^ ^ 
llMt very deed in /evidence if he would, and having the I- -I 

deed in his custody, he might disprove the witness if he swore 

It has been observed, that no documents afford more satisfactory 
evkleooe than wills, for fixing the identity of persons, and their sev- 
ral relations. In them is to be found certain proof of the existence, 
Ihe individual connexions, and the line in which families have 
4escended(0 Wills being admissible upon the principles above stat* 
ed as governing hearsay evidenoe, it is not material that they should 
be valui or subsisting instruments, if only there is sufficient evidence 
of their luithentioity. Upon an ejectment, a paper purporting to be 
a will signed with the mark of the testator, and duly attested, but 
with the seal torn off, found in a drawer in (he house of the person 
hit seized, amonj[ some other documents belonging to him, was pro- 
dneed by the defendant to shew the existence and seniority ot an 
SBicestor through whom he claimed. This evidence was admitted^ 
and on a motion for a new trial. Lord Ellenborough considered that 
]| had been rightly admitted : that it must be taken that the paper had 
been kept by the person last seized, with other family papers, as some- 
tfaifig relating to his family, and might be considered as recognising 
that there was such a person in the family .(v) 

The probate of a will is not evidence in an action for the recovery 
of real estate, even to prove a pedigree stated in the will.(v) Thie 
pBobate is only a copy, and the fact of its being authenticated by the 
seal of the Court, does not render it a good substitute for the original^ 
to prove the truth of its contents. Thus, in ejectment, a copy of a regis- 
1^ of a will, and the probate of the same will were both rejected by 
Holt, C. J., though tendered to prove a pedigree, and not to make 
title under the will.(aD) It is said, however, that afterwards on the 
same ^circuit, Tracy, B., admitted the same probate as r ^^^^ ^ 
eivideoce of the pedigree upon the trial of an issue out oi^ J 

Chancery, distinguishing tnat from a trial in ejectment, because, he 
could not know that the title to the land weuld come in question ; but 
it has been questioned whether this is a sound distinction, because, 
even in the ejectment, the title to the land was not derived under the 

(f1 Ter Tbomsoo, B., 9 Peake, N. P. C. 305. («) Ecoleston t. PeUy, Garth. 70. 

tl) Prelim. CN». Nicotat, to Teit Vetivt. p. 1. 11. 

(«) Doe d. Jobnfoii t. Earl of Pembroke, 11 Eaet, S04. 

(0) Ron. Ab. 678 ; Bol. N. P. 240. Doe d. Weld ▼. Ormerod, 1 M. d& Rob. 466. 

(«0 Dike T. Polhill, Lent Anisea, 1701, Lord Raymond, 744. Perhapa a qaeation might 
be raised, whether a register of a will in the county of York or Middlesex ought not to be 
aSmitled, as those registers are made under the aathority of Acts of Parliament, and there, 
lore, the reason applicable to a probate of a will of lands would net apply to such registers. 
VitU 2 & 8 Ann. c 4, as. 20,21 ; 6 Aim. c. SS, ai. 14, 15 ; 7 Ann. c 20, ss. 8, 9 ; 8 Qeo. 

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wifL(r) In the case of Dbe d. Weld v. Ormerod, Alderton, R, 
refused to recei^re a probate as evidence of pedigree, upon the autliop* 
ity of Dike v. Polhill, considering himself bound by the decision in 
that case, though be declared that he was not satisfied with the prin* 
ciple of it(y) 

The ledger book of the Ecclesiastical Court, which is the Roll of 
the Court, and not a mere cop?, is admissible to prove a ped]gree.(t) 
This was admitted in the Yaux Peerage case.(a) 

By the stat 55 Greo. 3, c. 60, it was enacted, that no will made hf 
any petty officer, or seaman, non-commissioned officer of marined^ or 
man in the King's service, shall be valid to bequeath any wages, pay, 
or prize or bounty-money, unless it shall contain, among other things, 
a full description of the relationship or residence of the person or per- 
sons, to whom or in whose favour as executor or executors the same 
shall be granted or made. If the testator died after having left the 
service, an extract from the parish register of his burial, or of some 
otlier authentic evidence of death was required to be sent to the Navy 
Pay-Office. By the same statute, it was enacted, that at the death of 
such seaman or marine intestate, application was to be made by ihm 
next of kin at the same office, in a particular way pointed out by the 
Act for a certificate to enable them to administer. The petitions, cer* 
tificates, and other documents lodged at the office of the Inspector of 
Seamen's Wills at the Navy Office, in pursuance of this Act, as well 
as the wills themselves, will often afford the means of tracing and 
r *679 1 ^^^^^'fy^'^S individuals. This act was ^repealed by 11 
L -I Geo. 4 and 1 Wm. 4, c. 20, which, however, contains 

enactments of a very similar nature. 

It is customary in claims of Peerage, to require the production of 
the original wills, or to account in a satisfactory manner for their non** 

fToduction.(ft) The practice, however, has not been very uniform, 
n the Braye case, in 1836, the Record Book from the Prerogative 
Office, was offered in proof of the will of Sir Robert Peckham, 1560, 
to shew that he died without issue, but the Lords objected to receiv* 
ing it. The Lisle case was referred to as an authority, in which the 
b<x>k had been admitted ;(c) but it was stated that there a search had 
been made at Penshurst for the original will which could not be fbondt 
and without some evidence of a search for the original, the book 
could not be admitted.((Q It does not appear to have been noticed 
on this occasion, that in the Roos case, such a book was admitted 
without, as it seems, any evidence of search for the original wiB 
among the family muniment8.(e) A little later in the same year, the 
same question occurred in the Yaux case. Upon that occasbn, the 
counsel for the claimant stated, that in many cases formerly, original 
wills were returned to the parties with the probate annexed, a prac- 
tice adverted to in Lord Coke's 3rd Inst p. 149, and 4 Inst p. 896 : 
that a statute was passed 21 Hen. 8, regulating the fees for probates 
of wills, and granting of administrations : that when the party did 

(x) Ranningtoo on Etectment, 343. 

(«) 1 Moo. & Rob. 466. («) Bui. N. P. 246. («) Mio. Er. p. 188, pMf ^ €79* 

(b) De Lisle BaroDjr, Min. Et. p. 158, and Peerage oaees iMMim. 

(0) Nicholas's Lkle Baronj, 61 ; Min. £▼. pp. 303. 206. 

(d) fimje fiuoDy, Min. £f. f* 70. («) Root Baraay, 1804, Miru £^^.378, 

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Mt inrwMT . wwiff p mi pi 

Mt hriog a oopy £oar afsfrobate to bo arocuccid the probalri wan b^ 

ruly affixed to the origiQfd: that the will in question, appeared oa 
face of it, to have b^n compared with the ori^inaU which Vf,^ 
aMkted to have been returned : and he produced the ledger in which 
the same was registered as of record. This seems to have been sat* 
i«fact<M'y.(/) The evidence given on a subsequent occasion states, 
that the practice of delivering out the original wills, and retaining 
copies, was continu^ till about the year 1700 ; aiKi that from 1380 
U> 1480^ but one original will had been found in the office. Upon 
*this evidence, and upon reference to the Braye and Vaux ^ ^^^ ^ 
cases, the registered copy of the will in question was al- '• J. 

Wed tp be read d^ bene es8e.{g) It does not appear, that on this, 
occasion it wa? brought to the notice of the House, that in the Tracy 
case in ^839, ap official copy of a will dated in 1662, which wa« 
«tated to have been left on the file when the original was delivered 
out» was received without objection.(A) 

In order to put in evidence a copy of a will, it was first proved 
th^ no register of the probate of it could be discovered in the pro- 
per offices ; then a deed executed by the testatrix, in which the power 
|o make a will was recited was put in ; and lastly, receipts for lega- 
cies given by the will were produced to shew that it had been acted 
on ; the copv of the will was then allowed to be read.(z) 

Examined copies of wills in the Prerogative Office of Ireland have 
been admitted ae bene esse, but it was held that the originals ought to 
be produced^O) 

The official copy of a will, signed by the Registrar of the Bombay 
Court, and sent from thence to tne Prerogative Court of London, and 
registered there as the original, and of wmch probate was granted by 
that Court, was received in evidence by the House of Lords in tm 
Tracy case cited above.(A) 

Before leaving the subject of wills, it may not be improper to 
remark, that a considerable number of original wills are preserved 
among the charters in the British Museum* Many wills are also to 
be ibund recited in inqusitions poit mortemf the originals of which 
would be vainly searched for in other quarters.(/) 

The books of administrations at the Prerogative Office are admis- 
sible to prove matters of pedigree incidentally appearing r ^^^^ • 
♦from the proceedings therein recorded. In the Tracy ^ J 

Peerage case, the death of F. Tracy in youth, was proved by the 
production of the book of administrations for 1683, in which he was 
described as an infant in the entry of a commission issued to his 
mother to administer to him.(m) 

Where statements of pedigree have been incidentally made in bills, 
answers, and depositions in Chancery, not calling in question the facts* 
such statements seem admissible on the footing of declarations. 
Lord Mamifield considered the answer of parents to a bill in Chan- 

(/) Vaoz of Harrowden Btfooy, Min. Ev. p. 188. 8m alto Tracy Barony, Mio. E?. 
pp. e2, 66. (g) Fitzwaltor Baronj, 1843. Min. £?. p. J3. 

(A) Tracy 0aronT, Mio. Ef. p. 13. (t) Camoys fiarony, Mio. £?. p. 465. 

( 1) Roscommon Earldom, Min. Ev. 1826, p. 7. (I) Mio. Ef. p. 34. 

(i) See PoweU*8 Rep. of Bee 1631, p. 6. Diroctiont lor aearch of Reo. 162^, pb 71. 
(••) TW7JMBjriMiA.£v.pw37. See al«o Sufiord Baiop j Min. £r, ^ LU^ 

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492 xvbbaob'b] 

eery edmimble, as evidence mider their hand of their having 
the declarations coetained thereiD.(ii) And Lord Kenyoo is stated ie 
have expressed the opinion, that a bill in Chancery by an ancestor, 
was evidence to prove a family pedigree stated therein, in the same 
manner as an inscription on a tombstone, or in a family bible.(o) 
Some cases there are which might seem to militate against the cor» 
rectness of these opinions ; but they may be satisfactorily explained, 
as having been decided on independent principles. Thus in one old 
case, it was held that an answer was not evidence of pedigree, 
because, bein^ the answer of an infant, it was put in by guardians ; 
and even in this case, there seems to have been some doubt in the 
minds of the Judges as to the propriety of rejecting it.(p) In anotber 
case, where the answer of a mother as to the fact of her marriage, 
was tendered on the trial of an issue out of Chancery, as to the l^i- 
timacy of her son, the objection taken to its admission was, that me 
person against whom it was tendered, did not derive any title throiqf^ 
the witness. It is also clear from the report, that the evidence was 
open to the further objection that the mother herself was alive at the 
time. The reporter adds, that the Lord Chancellor (Macclesfield) 
thou£;ht it hard that such evidence had been rejected, though it might 
be a question whether it was conclusive.(9) 

C*682 1 ^^ ^" Piercv's case, depositions in a suit were rejected 
•I as ^evidence, oecause they were not accompanied by the 
answer.(r) In the Banbury Peerage case, in answer to Questions pot 
by the House of Lords, the Judges stated that neither a oill filed for 
the perpetuation of testimon v, nor depositions taken in the suit, would 
be received in evidence in the Courts below on the trial of an eject- 
ment, against a party not deriving title through any of the parties to 
the Chancery suit, either as evidence of the facts therein deposed to, 
or as declarations respecting pedigree. And they added, that it 
would not make any difference m their opinion, if the bill had been a 
biU seeking relief. The Attorney-Greneral had objected to the admis- 
sion of the evidence on two distinct grounds ; 1st Because the suit 
was ret inter alios acta. 2nd. Because it did not appear that the wit> 
nesses were connected, in the manner stated by them in their deposi* 
tions, with the persons respecting whom they deposed.(f) The latter 
of these objections would be sufficient to prevent the reception of the 
•evidence, without the existence of any general rule as to the inad- 
missibility of statements contained in bills or depositions; and it 
would seem, that the Judges, in answering the questions put to them, 
considered the evidence as subject also to the objection of lis moia^ 
At all events, it has long been the practice of the House of Lords to 
admit as evidence of p^isree, bills, answers, and other proceedings 
in Chancery, where the facts of pedigree were not in dispute, mA 
only incidentally mentioned. 

The original proceedings in Chancery, being the bill and answer 
in a suit in 1627, were received in evidence in support of the peti- 
tioner's claim to the Barony of Zk)uche of Haryngworth*(/) Ana the 

(#) Goodrisrht V. M ow, Cow|i. 594. (•) 7 T. R. 8, note. 

ip) BoclesUm ▼. Pettj, Garth. 79. a C. Combk 156. 

(9> HiUiftrd ▼. Pbaloy, 8 Mud. 180. (r) Joom, 164. 

(t) GardBtf fiarM7,b7LeMaroliut,pw4ia. (^ Ma-Ab^SSl^ 

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W ITBIWMT lTimuiW> wt9 

enmiasfioA of a flefendant upon iirfenrogatories before tbe M eeter, 
Ml puraaanee of a decree in a suit institnted in 1786, was produced 
fnm tbe Tower, aod received in evidence in the recent claim to the 
Barony of Fitzwalter.(a) In the Galmoye Peerage claim in 1828, a 
bill in Chancery filed in 1678, by one of the family, and the answers 
of the defendants, also members of the family, were received in evi« 
dence by the Attorney-General for Ireiand.(9) So in the NetterviUe 
case, a bill and answer in Chancery in Ireland, were admitted to 
prove the death of a *party, and the succession of his r ^^g^ -i 
heir, by admissions in the answer.(u7) It does not appear ^ J 

that the defendant, whose admission was relied on, was a member of 
tbe family. 

^ Sach evidence, however, must always be received with caution, 
since it is obvious that erroneous admissions may easily be made 
when the parties have no particular interest to ascertain the precise 
&cts. And this may be done, either through inadvertence or design. 
It appears that in thie case of Le Neve v. ^rris, the .contrivance was 
resorted to of filing a bill against John Neve, describiog him as heir 
of Oliver Neve, in order to give strength and countenance to his title, 
and afterwards upon the trial of an ejectment, it was used as evidence 
of the pedigree.(a:) Positive averments in an answer, which is put 
in upon oath, will, of course, be entitled to more credit than the state- 
ments of a bill, which often are made at variance with, or in igno- 
ranee of the truth. And it should be remembered, that answers and 
examinations are authenticated by the signature of the party himself, 
a circumstance which may reasonably give them a degree of weight, 
to which bills, not bein^r so authenticate, are not entitled. 

A petition of Lord Viscount Netterville to the commissioners, under 
an aet passed after the Restoration, for settling the aflairs of Ireland, 
produced from the office of Surveyor-General of Lands in Ireland, 
containing statements of pedigree was admitted in evidence.(y) 

In order to prove that Christopher I^rd Slane left an only daughter, 
Ellen Flemine, an examined copy from the books of certain trustees, 
af^inted under an act respecting forfeited estates in Ireland, which 
were in the custody of the Commissioners for Woods and Forests, of 
a claim made by her guardian in which the relationship is stated, was 
given in evidenee.(z) 

^Affidavits sworn by parties for the purpose of procur- r ^gg^ n 
ing marriage licenses, are admissible as declarations. In '- -■ 

tbe case of Beer v. Ward, the affidavit of W. Cotton, in order to 
obtain a license previous to marriage in 1742, in which he described 
himself as a bachelor^ and his intended wife as a spimterf and the 
, bond on the same occasion were put in evidence.(a) It is worthy of 
remark, that with respect to the description of bachelor and spinster 
in the affidavit and bond to obtain license, C. J. Abbott said, ** There 
is very little to be derived from it i You will find very few instances 

(«) Mid. Ey. p. 105. (9) yiew of Le^^ Institationt, ^0., 1830, p. 979. 

(w) Min. £v. p. 43. See alto Mtrchinont Earldom, Min. £?. pp. 358. 361. Athenry 
Sarooy, Min. £?. p. 33, sorreplicatioo, dated 1567, admitted. And tee lb. pp. 34. 39. 
(x) Le Neve t. Norris, 4 Brown'a Parlfamentary Cases, 479. 
(y) Netterville Vteoomity, Min. Et. p. 5. (a) Slane Barony, Mio. Ev. p. iSk 

(a) Bear V. Ward, lat iiBiie, p. 173. 

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4V4 HUBBjLOK'AffriMiiQiiarilvqnmioir. 

iadeed when the firal marriage to recited, and the lecoad to said ta be 
celebrated for aod in assurancet &>c^ though it ought to have beeu 

. An affidavit made, on a similar occasion, was adduced as evidence 
of the age of a party in the Roxburgh Peerage case. 'The book of 
affidavits was produced from the registry of the Consistory Court of 

On the claim of Matthew Barnewall to the Viscounty of Bame-^ 
wall of Kinffsland and Barony of Turney, to prove a part of the 
pedigree of the .petitioner, two cases for the opinion of counsel, drawn 
op about 1740, and proved to have been found among the family 
papers, were admitted by the Irish Attorney and Solicitor- General,(cQ 
and admitted de bene e$se by the Committee of Privileges, and they 
do not appear to have been afterwards repudiated.^(e) But in a sua- 
sequent case a document of a similar nature was rejected. To prove 
tbe death of the several sons of Sir Gregory Byrne, a case prepared 
lor the opinion of counsel in 1777, and found among the papeb of a 
member of the family, was ofiered in evidence* An objection being 
taken, the Leigh Peerage was cited, in which a case made oy an execu- 
tor for the opinion of counsel had been received. The committee held 
that it could not be taken as a declaration, statements for counsel 
r *(^5 1 "^'"S ^J^^uently made to obtain a favourable opinion to 
I- J drive ^persons to a reference; that it might have been 

made by the attorney, who generally draws the case ; and that it was 
not connected with the person whose declaration it purported to be. 
The evidence was withdrawn.(/) 

It has been stated, that instruments of pedigree may be received in 
evidence without proof of their origin, if ttey have been acknowl- 
edged or treated as authentic, by members of the family. Aa ac- 
knowledgment sufficient for tbto purpose may be presumed from yari- 
ous facts. The publicity of the instrument is an obvious ground of 
presumption that its contents are true. Thus, a chart of a pedigree 
openly hung up in a family mansion, is receivable in evidence, because 
it cannot be supposed that an erroneous document would be permit- 
ted to remain in such a position.(j') 

It is not essential to the admissibility of a document of this nature 
that it shoukl have been publicly exposed ; even tho4gh it may have 
I)een privately kept, if it clearly appears to have been preserved hj 
members of the family as an instrument of value, it will be admissi- 
ble upon the same principle of adoption and acknowledgeme