1 longs; and such forbearance does not arise from the poverty or inability of the said party to bear the expence of prosecuting such writ of error, or appeal to the next higher court; such a determination acquires a great degree of respect and authority in Westminster-hall, and is usually adopted and followed by the courts of justice in their subsequent determinations of the same point of law, as often as it comes before them. Yet it is not of quite so great authority as a determination of the House of Lords upon a question brought there in the last resort and we have sometimes seen such determinations overturned by subsequent determinations of the same or other courts of justice in Westminster-hall; as was done in the court of King's-bench in the case of Wyndham and Chetwynd, which I just now mentioned to you. Yet such overturnings of the former solemn determinations of courts of justice are very unfrequent, and are not in general approv-sidered and discussed before they were decided; ed of, though, perhaps, in some very strong cases, where the former determinations have been made upon very wrong principles, they may be justifiable. point, or points of law have been determined against him; and the losing party acquiesces in the said judgment, and brings no writ of error to reverse it; such an acquiescence of the losing party can operate as a confirmation of only those points of law which are deter mined against him, and not of those which are determined for him. In such a case, therefore, there will be several determinations of points of law, all deliberately made by the same judges and in the same cause, which will have different degrees of weight and authority, namely, the points determined in favour of the losing party, and the points determined against him. For the points determined in favour of the losing party will have that degree of weight and authority which arises from the respect due to the learning, abilities, and integrity of the judges who have decided them, and to the deliberate manner in which they have been con "In the third place, when a matter has been fully argued before one of the courts of Westminster-ball, and a solemn judgment has been given upon it in favour of one of the parties; and in the said judgment more than one point of law has been determined in favour of such party; and the losing party acquiesces in the said judgment, and forbears to bring a writ of error for a reversal of it in a higher court of justice; the determinations of such points of law acquire a considerable degree of weight and authority in the estimation of lawyers and subsequent courts of justice, but yet are not quite so much respected as the determinations in the two former cases: and for this plain reason, that, as more than one point of law are determined at the same time in favour of one of the contending parties and against the other, it is uncertain, whether the losing party, when he acquiesces under the whole judgment, and forbears to bring a writ of error in a superior court to get it reversed, acquiesces in all the points of law determined against him, or only in some, or one, of them; because, if only one of them is rightly determined against him, the judgment against him would be affirmed upon a writ of error, as much as if all the points had been so determined. This uncertainty concerning the particular points of law, in the determination of which the losing party may be supposed to acquiesce, takes from the determinations of each of the points of law, that are determined against him, some part of the weight and authority which such determinations would otherwise derive from his acqui escence. "And fourthly, if a matter has been fully argued before a court of justice in Westminsterhall, and a solemn judgment has been given upon it in favour of one of the parties; and in the said judgment one, or more than one, point of law has been determined in his favour, and another but those which are determined against the losing party will, besides the weight and authority arising from the foregoing circumstances, be entitled to an additional degree of respect arising from the acquiescence of the losing party, which will shew that be, and his counsel learned in the law, despair of having those points determined in a different manner, if they were to bring a writ of error for the purpose. "These seem to me to be the different degrees of authority which are attributed by the English courts of justice to the aforesaid different sorts of judicial determinations of points of law by former judges: which, I presume, you will agree with me in thinking reasonable. "F.-1 enter very readily into these distinctions between the different sorts of judicial determinations, and think them very natural and reasonable. And, according to this gradation of them, it seems to me that the opinion of lord Mansfield, delivered in the case of Campbell and Hall, concerning the sole legislative authority of the crown over conquered countries, (even supposing the other judges of the King's-bench to have concurred with him in it,) must be placed in the fourth, or lowest class of them. For in that case there is no room to infer any thing, from the acquiescence of either of the parties, in favour of that opinion. For, as to the defendant Hall, who was the losing party, all that can be inferred from his acquiescence in the judgment given against him in that action is, that he and his counsel acquiesced in the opinion of the Court upon the 2d point, of the immediate operation of the king's proclamation of October 1763, as a bar to the exercise of his antecedent legislative authority,' and despaired of having it otherwise determined, if he should have brought it into the House of Lords by writ of error. And as to the plaintiff Campbell who gained his cause, he could not bring a writ of error to reverse a judgment that was given in his favour. So that the opinion of lord Mansfield upon that first point must, indeed, be considered as the opinion of that learned lord, and, perhaps, of the whole court of King's-bench, upon a point that had been fully argued before them, and must be entitled to all the respect which is due to it on that account, but cannot derive any additional weight from the acquiescence of either of the parties under it; that is, it must be a judicial decision of the lowest of the four classes of judicial decisions which you have been just now describing. "E.-It is exactly so. The opinion of lord Mansfield upon that first point is a decision of that fourth and lowest class. And therefore I suppose that it would not be considered by the same or any other court of justice in Westminster-hall, on any other occasion in which the same point, of the king's legislative authority over conquered countries,' should occur, as being absolutely binding and decisive of the question, so as to be entitled to the confirmation of such court of justice, though the reasons on which it was founded should be entirely disapproved by the judges of which such court should be composed; since we have seen, in the case of Wyndham and Chetwynd, (which was determined by lord Mansfield himself) that even a decision of the second class is not always so considered. But yet it would certainly have considerable weight with the judges of such subsequent court of justice, so as to induce them to give judgment agreeably to it, if they were only in a state of doubt concerning the validity of the reasons on which it had been grounded, and did not thoroughly disapprove them. So that I am afraid we must allow, that (weak and ill-grounded as it ap. pears to you and me,) this opinion of lord Mansfield, concerning the king's sole legislative power over conquered countries, is a temporary judicial determination of that question in favour of the prerogative of the crown. But, as you rightly observed, it is a decision of the fourth, or lowest, class of the several sorts of judicial determinations above described. But I hope your curiosity is now satisfied with respect to this important question of law, coucerning the supposed sole legislative authority of the crown over conquered countries, which, I think, we have very sufficiently discussed. 66 alone, without the concurrence of the parlia ment, a power to make laws and impose taxes at pleasure on the inhabitants of all countries that are conquered by the British arins?I therefore hope, either, that the law upon this subject will soon be altered by an express act of parliament for the purpose, or that the question may again be brought under the con. sideration of some court of justice, and be there determined in a different manner, as the case just now mentioned, of Wyndham and himself and the other judges of the King'sChetwynd, was determined, by lord Mansfield bench, in a manner directly contrary to a former determination of the same point of law said former determination had been a decision in the same court of King's-bench, though the of the second class. For it may be of terrible consequence to the freedom of the English constitution to have so enormous a power fixed permanently in the possession of the crowu. "F-I heartily join with you in these wishes: but doubt a little whether they are likely to be soon accomplished. However, if this question were again to come before a court of justice, and the merits of the cause were to turn singly upon the decision of it, (which was not the case in the action of Campbell against Hall,) I can hardly persuade myself that the judges of any court in Westminster-hall would think themselves bound to determine it agreeably to lord Mansfield's opinion, merely through deference to that opinion and without any new reasons that should influence their own judgments in favour of it; seeing that the reasons alledged by lord Mansfield in support of it have appeared, upon examination, to be so very weak, and that its authority as a judicial decision is two degrees lower than that of the case in the court of King's-bench, above alluded to, (which is called the case of Ansty and Dowsing,) which was overturned by the same court in the subsequent case of Wyndham and Chetwynd, that case having been a decision of the second class, and this being only of the fourth. But this is all matter of conjecture, and consequently not worthy our further consideration." Canadian Freeholder; a work of which Dr. Watson, the eminent bishop of Llandaff, has very truly said (Note to Assize Sermon preached at Cambridge in the year 1769) that it is replete with sound and perspicuous reasoning. F-My curiosity is, indeed, satisfied on this subject: but the pleasure I have had in the enquiry is allayed with some mixture of uneasiness arising from the weight that may be With respect to the application of the rethought to belong to that opinion of lord Mans-venue arising from the four and a half per cent. field. For how can any lover of liberty and duty, see some discussions in the House of the English constitution (as I most sincerely Lords on April 6, 1802, and in the House of profess myself to be) not be sorry to find, that Commons on March 30, 1802; on July 2, 1804, the only judicial decision that has been made Parl. Deb. vol. 2, p. 902, and on May 8, 1809, upon the subject, has ascribed to the crown Parl. Deb. vol. 14, p. 409, 551. The Trial of ELIZABETH, calling herself Duchess Dowager of KINGSTON, for Bigamy:* before the Right Hon. the House of Peers, in Westminster-Hall, in full Parliament assembled, 15th, 16th, 19th, 20th, and 22d Days of April: 16 GEORGE III. A. D. 1776. † [Printed under an Order of the House of Lords.] "Mr. Wallace had moved on the part of the defendant, for a Certiorari to be directed to the justices of Oyer and Terminer, at Hicks's- hall, to remove into the Court an indictment found against her, at the sessions there, for bigamy; and, upon the motion, the court granted the writ. "But now lord Mansfield took notice to Mr. Wallace, that the motion was irregular. For a defendant has no right to remove an indictment of felony from Hicks's-Hall, without the consent of the prosecutor; and in this case there was no consent, therefore his lordship said the writ issued improvidè, and must be superseded. "Mr. Wallace said, the only object of remov ing the indictment was for the purpose of her being bailed; but per lord Mansfield, the purpose for which it was intended, makes no difference. The next day Mr. Wallace moved for a Habeas Corpus, Mr. Justice Aston having granted a warrant for her apprehension (as bad been settled amongst the parties, as the properest method to be taken) upon a certificate of the indictment being found. sented to her being bailed, as there could be no doubt (he said) of her appearance to answer to the indictment. "Lord Mansfield. Though we should undoubtedly have bailed her, it is better to take it as upon the consent of the prosecutor; and she must be bound to appear in the House of Lords when required, to answer to the indictinent, as well as to appear in this court. But as there is nothing against her in this court, her appearance here may be dispensed with for the future upon motion, without giving her the trouble of actually appearing here in court any more. "Bail was taken accordingly, herself being bound in 4,000l. and each of her four bail in 1,000l. "The recognizance was as follows:England. Duchess dowager of Kingston, 'who stands indicted by the name of Eliza'beth, the wife of Augustus John Hervey, esq. 'is delivered to bail, upon a writ of Habeas Corpus ad subjiciendum, for her appearance in the court of our sovereign lord the king, 'before the king himself at Westminster, on the first day of the next term, and so from day to day, until she shall be discharged by 'the said court, and not to depart the said court without leave; and also for her appearance 'before our said lord the king in parliament, to answer to an indictment against her for fe quired. By the Court. BURROW.' "The warrant and the return to it were read; and then Mr. Wallace moved to bail her. Helony, whenever she shall be thereunto rementioned the suit in the spiritual court, upon the proceedings there against Mr. Hervey, for jactitation of marriage, and also the proceedings in Chancery relating to her marriage; all these proceedings were put into court, and entered as read. He observed, that she must, at all events, be tried by her peers, as Mr. Hervey was now become earl of Bristol. "Mr. Bearcroft, for the prosecutor, con "I have inserted this recognizance, verbatim, because there was found only a single instance of the like, (viz. of a recognizance taken in this court to appear in parliament) which was that of the earl of Orrery, taken and acknowledged before lord chief justice Pratt, on the 14th of March, 9 Geo. 1, for his appearance in the court of our lord the king, The yeoman-usher of the House. The barons, two and two, beginning with the youngest baroti. The bishops, two and two. The viscounts and other peers, two and two. The lord privy seal and lord president. The archbishop of York and the archbishop of Canterbury. before the king himself at Westminster, on the first day of next term, and so from day to day until he shall be discharged by the said court, and not to depart that court without leave, to answer to those things which, on the behalf of our said lord the king shall be objected against him; and also for his appearance from time to time, until he the said Charles lord Orrery shall be discharged by due course of law, before our lord the king in parliament, whenever by our said lord the king he shall be thereunto required, to answer to those things, which on. behalf of our said lord the king shall be there objected against him." Cowper's Reports, p. 283. Upon occasion of these proceedings against the prisoner in the following Trial, Mr. Hargrave was consulted on the part of the prosecution. With his wonted zeal he composed, previously to the trial, a most elaborate, learned, and able discourse Concerning the Effect of Sentences of the Courts Ecclesiastical in Cases of Marriage when pleaded or offered in evidence in the Courts Temporal,' which several afterwards he published in his Collection years of Tracts relative to the Law of England.' In this discourse he has accumulated a vast mass of judicial decisions and legal reasonings respecting the two main questions of law which were made in this case, viz. 1. Whether a sentence of the spiritual court against a marriage in a suit for jactitation of marriage is conclusive evidence so as to stop the counsel for the crown from proving the said marriage in an indictment for polygamy? 2. Whether, admitting such sentence to be conclusive upon such indictment, the counsel for the crown may be permitted to avoid the effect of such sentence by proving the same to have been obtained by fraud or collusion? In addition to what will be found in this report of the trial, I must refer the reader for farther illustration of the law respecting these two questions to that treatise of Mr. Hargrave; which it is to be hoped will be incorporated into his valuable Jurisconsult Exercitationes' now in course of publication. Mr. Leach has inserted in his Cases in Crown Law a very brief note of this case, exhibiting the decision of the Court upon the two questions which I have just stated, and also upon another question which was agitated, viz. Whether a peeress convicted by her peers of a clergyable felony is by law entitled to the benefit of the statutes, so as to excuse ber from capital punishment, without being burned in the hand, or being liable to any imprisonment? Four serjeants at arms with their maces, two and two. The serjeant at arms attending the great seal, and purse-bearer. Then Garter king at arms, and the gentleman-usher of the Black Rod carrying the white staff before the Lord High Steward. Henry earl Bathurst, chancellor of GreatBritain, Lord High Steward, alone, his train borne. His royal highness the duke of Cumberland, his train borne. The Lords being placed in their proper seats, and the Lord High Steward upon the woolpack, the House was resumed. The clerk of the crown in Chancery, having his majesty's Commission to the Lord High Steward in his hand, and the clerk of the crown in the King's-bench, standing before the clerk's table with their faces towards the state, made three reverences; the first at the table, the se. cond in the mid-way, and the third near the woolpack; then kneeled down; and the clerk of the crown in Chancery, on his knee, presented the Commission to the Lord High Steward, who delivered the same to the clerk of the crown in the King's-bench to read: then rising, they made three reverences, returned to the table. And then proclamation was made for silence, in this manner: and Serj. at Arms. Oyez, oyez, oyez! Our sovereign lord the king strictly charges and commands all manner of persons to keep silence, upon pain of imprisonment. Then the Lord High Steward stood up, and spoke to the Peers. L. H. S. His majesty's Commission is about to be read: your lordships are desired to attend to it in the usual manner; and all others are likewise to stand up uncovered while the Commission is reading. All the peers uncovered themselves; and they, and all others, stood up uncovered, while the Commission was read. "GEORGE R. To "George the third, by the grace of God, of Great-Britain, France, and Ireland king, defender of the faith, and so forth. our right trusty and right well-beloved cousin and counsellor Henry earl Bathurst, our chancellor of Great-Britain, greeting. Know ye, that whereas Elizabeth the wife of Augustus John Hervey, late of the parish of St. George, Hanover-square, in our county of Middlesex, esq. before our justices of Oyer and Terminer, at Hicks's-ball, in St. John-street, in and for our county of Middlesex, upon the oath of twelve jurors, good and lawful men of the said county of Middlesex, then and there sworn and charged to enquire for us for the body of the said county, stands indicted of polygamy,* and *Polygamy, or, as it is more frequently, though improperly, called, bigamy, (which only means having two wives in succession,) consists in having a plurality of wives at the same time, and was originally considered as of eccle feloniously marrying Evelyn Pierrepont late duke of Kingston, she being then married, and the wife of the said Augustus John Hervey: we, considering that justice is an excellent virtue, and pleasing to the Most Higb, and siastical cognizance only: though so early as the stat. 4 Ed. 1, c. 5, de Bigamis, it was treated as a capital offence, and ousted of clergy by that statute. The benefit of clergy was however restored by the stat. 1 Ed. 6, c. 12, § 16. And the crime itself being as it seems left of doubtful temporal cognizance, the stat. 1 Jac. 1, c. 11, enacts, that if any person or persons within England and Wales, being married, or who hereafter shall marry, do marry any person or persons, the former husband or wife being alive, every such offence shall be felony; and the person and persons so offending shall suffer death as in cases of felony.' Clergy however is not thereby taken away; but by the stat. 18 Eliz. c. 7, § 2, 3, the offender, besides being burned in the hand, may be imprisoned not exceeding one year and by stat. 19 Geo. 3, c. 74, § 3, a moderate fine or whipping, in the manner therein specified, may be substituted in lieu of burning; but not to abridge the power of the court to imprison under any former act. And now by the stat. 35 Geo. 3, c. 7, If any person or persons within England and Wales being married, do at any time from and after the passing of this act marry any person or persons, the former husband or wife being alive, and shall be in due manner convicted under the said act (of Jac. 1,) they shall be subject to the same punishments, paius and penalties, as by the laws now in force, persons are subject to, who are convicted of grand or petit larceny.' "This by stat. 4 Geo. 1, c. 11, (and stat. 6 Geo. 1, c. 23,) may be transportation for seven years in lieu of burning or whipping. But though the stat. 35 Geo. 3 merely re-enacts the enacting part of the statute of James, yet it also virtually includes all the exceptions contained therein and after mentioned, for the title of the act is for rendering more effectual the statute 1 Jac. 1,' and it begins by reciting that whereas the punishment of persons convicted of felony under the statute 1 Jac. 1, has not proved effectual to deter wicked persons from the offence therein described, be it enacted, &c.' and it afterwards attaches the increased punishment upon such as are convicted of the offence specified under the said act. 66 By§ 2, (of stat. 35 G. 3, c. 67,) if any person ordered to be transported by this act shall be afterwards at large within Great Britain, without some lawful cause, before the expiration of the terin, &c. every such person being thereof lawfully convicted, shall be guilty of felony, and suffer death without benefit of clergy. "By 4, of 1 Jac. 1, c. 11, no attainder for any felony by that act shall work corruption of blood, loss of dower, or disherison of heirs." East's Pleas of the Crown, c. 12, § 1. | | being willing that the said Elizabeth of and for the felony whereof she is indicted as aforesaid, before us, in our present parliament, according to the law and custom of our kingdom of Great Britain, may be heard, examined, sentenced, What Mr. East in the above passage has said concerning the statute 4 Ed. 1, c. 5, de Bigamis, is not altogether correct. That statute has for its object the case of bigamists in the proper sense of the word who might be convicted of felony; and it does not at all relate to polygamists. Possibly Mr. East was led into the incorrectness by an error in the quarto edition of the Statutes. This error had been pointed out by the very learned and accurate annotator upon lord Coke's first Institute, in the following note to lord Coke's fourth kind of disparagement, sc. propter jacturam privilegii,' &c. "The word bigamy' is frequently used to describe the crime of marrying a second wife during the life of the first; but the proper name for this offence in our law is polygamy,' and with us a bigamist is a man who either marries a widow, or after the death of his first wife marries a second time, in consequence of which he formerly could not claim the benefit of clergy. This denial of the benefit of clergy to bigamists was in consequence of some antient papal constitutions and canons of councils against admitting bigamists into holy orders; a prohibition, which, however speciously defended by texts of scripture, wholly originated from the injurious policy of the church of Rome in discouraging the marriages of the clergy, and lead the way to the complete establishment of celibacy amongst them. See Levit. c. 21, v. 13, 14. 1 Tim. c. 3, v. 12, Summa Concil. per Mirand. fol. 4, a. 119, a. 168, b. 230, b. Bingh. Ant. Christ. Ch. b. 4, c. 5, Tayl. Elem. Civ. L. 295, and the word 'biga'mus' in the index to the Corp. Jur. Canon. ed. Pithæor. However, the exclusion of bigamists from the benefit of clergy was not entirely accomplished till the council of Lyons ended the doubts which before prevailed, by positively declaring bigamists, omni privilegio clericali 'nudatos.' It appears, that this constitution was immediately received in England; for the statute of 4 E. 1, de Bigamis, takes notice of it, and explains how it should be construed, by directing that it should be understood to comprehend bigamists before, as well as those who became so after. See 4 E. 1, c. 5. 2 Inst. 273. 2 Hal. Hist. Pl. Cr. 372. 2 Hawk. Pl. Cr. b. 2, c. 33, § 5, and Barringt. on Ant. Stat. 2d ed. 73. When the benefit of clergy by being allowed to all who could read, was extended to laymen as well as persons in orders, the reason for ousting_bigamists of clergy in great measure ceased; but notwithstanding this, the exception of bigamy continued till it was taken away by the statute of Edw. 6. The pointing out exactly the appropriated sense of the word bigamy' in our law was the more necessary, because very sensible writers have been inatten. |