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Week 32—“Yes, now I’m a Judge! | Though all my law be fudge, | Yet I’ll never, never budge, | But I’ll live and die a Judge!” (WS Gilbert, Trial By Jury (1875))

by on October 18, 2013

In my post on an earlier week’s instalment, I pointed out that, on the day of Magdalen’s marriage, Captain Wragge would get from her his two hundred pound fee for facilitating that marriage and would then disappear from view. I then said that I couldn’t foresee any circumstance in which Magdalen would be likely afterwards to demand that Wragge return that fee (assuming that she could even find him in order to make that demand). That being the case, I finally said that I couldn’t think of any reason why Wragge would want to obtain legal advice about Magdalen’s impending marriage.

In this week’s instalment, Collins supplies a reason for Wragge’s wanting that legal advice. It’s said to have been altruism on Wragge’s part: “I took a lawyer’s opinion …, thinking it might be useful to you.” I’m surprised that that didn’t occur to me earlier as a possible reason for Wragge’s conduct, given what I already knew about his character!

Obviously, I don’t find very convincing the reason that Collins puts into Wragge’s mouth for his wanting that legal advice. The real reason, it seems to me, why Wragge gets that legal advice is that Collins wants us readers to know the legal position (or, at least, one view of the legal position) and has no real way that he can channel that information to us otherwise than through Wragge. I should add that I would have found it even less credible if Collins had had Magdalen go to a lawyer in the ordinary way to seek legal advice on the validity of her proposed marriage, which suggests to me the reason why it was that Collins decided to choose Wragge as the conduit for the information.

In any event, as to the legal advice that Wragge obtained, the essence of it was as follows:

If Mr Noel Vanstone ever discovers that you have knowingly married him under a false name, he can apply to the Ecclesiastical Court to have his marriage declared null and void. … [I]f he could prove that he had been … deceived, the legal opinion is that his case would be a strong one. … [T]he chances are all in favour of his carrying his point.

It may be recalled that Wragge had obtained that advice from a friend at the friend’s residence “in a distant quarter of London”. Of course the advice was obtained in that way because it would be most unusual for someone to go to a lawyer in the ordinary way in order to seek advice as to whether a proposed marriage would pass legal muster following a deception of someone in the way that Magdalen has deceived Noel. What’s more, probably only a lawyer who’s as bent as Wragge is himself would be prepared give advice in such circumstances.

All the circumstances suggest that Wragge’s lawyer friend gave him advice without charging for it. That being so, the content of the advice illustrates the old saying that you get what you pay for. That advice was far too optimistic from Noel’s point of view. Any case brought by him based solely on Magdalen’s use of a knowingly false name would not have been a strong one and the chances would not have been all in favour of his carrying his point. Instead, his claim would have been a difficult one in which to succeed, assuming that it was adequately defended on Magdalen’s behalf.

Whether or not Collins knew that that advice was far too optimistic from Noel’s point of view and wrote into the story Wragge’s being given it just to heighten the suspense of the story, I can’t say. Perhaps that will become clearer later in our story.

At the date that our story has now reached, the Judicial Committee of the Privy Council, despite its non-court-like name, was the ultimate appellate court in English ecclesiastical (as well as a number of other) matters.

JCPC1846

The above illustration, from the front page of the issue of the Illustrated London News for APR 11 1846, depicts a contemporaneous hearing of the Judicial Committee of the Privy Council. (By the time that I made my one appearance before the Committee as a barrister, about 140 years later, it conducted its hearings in a room that was set up more like a courtroom than the room in the above illustration, although the judges still wore mufti, while the barristers wore giggle gear, a unique court dress code in my experience.)

In a case in 1835, Swift v Kelly (1835) 3 Knapp PC 257 [12 ER 648], Lord Brougham, on behalf of himself and the four other judges constituting the Committee on that occasion (including two others well-known as judges, Baron Parke and Vice-Chancellor Shadwell), had stated the law of England relevant to Noel’s contemplated complaint as follows (at page 293 [661]):

[I]t … is [the general law] of England, that unless there be some positive provision of statute law, requiring certain things to be done in a specified manner, no marriage shall be held void merely upon proof that it had been contracted upon [knowingly] false representations, and that but for such contrivances, consent never would have been obtained. Unless the party imposed upon has been deceived as to the person, and thus has given no consent at all, there is no degree of deception which can avail to set aside a contract of marriage knowingly made. [S]uch [is] the law touching consent to … marriage … and … fraud whereby that consent was obtained….

AN00583414_001

The above print of Lord Brougham is © Trustees of the British Museum. It was published three years before Swift v Kelly was decided.

Although, as appears, Lord Brougham’s statement of the relevant English law had been made a dozen years before Noel and Magdalen’s apparent marriage, it hadn’t been superseded by anything that had happened in the interim and can be taken to have represented the law at the date of the apparent marriage.

Although I recognise that it may be difficult for non-lawyers to find this area of the law comprehensible (and even more difficult for them to find it interesting!), nevertheless I feel obliged to try to explain a number of aspects of Lord Brougham’s statement.

First, as Lord Brougham implied, to be valid, a contract of marriage had to have been “knowingly made”, so that if a party to an apparent marriage wrongly believed, at the time that he participated in a marriage ceremony, that the only consequence(s) of the ceremony was (were) something other than his becoming married, then his apparent marriage would have been void. (For convenience, I’ll discuss the matter from a male point of view throughout, though what I say will usually be equally applicable to a female.)

The party might mistakenly have believed, for instance, that the ceremony, rather than leading to his being married, was leading to: his becoming betrothed only; or to his becoming a member of a particular religious denomination (to give two examples from real cases decided after Swift). In such instances, the apparent marriage would have been void.

Secondly, leaving aside for now the question that Lord Brougham adverted to of the existence of a relevant statutory provision, the only ground of voidness of an apparent marriage by reason of knowingly false representations was that “the party imposed upon has been deceived as to the person, and thus has given no consent at all”.

In using the notion of deceit “as to the person” in the context of a discussion about the validity of apparent marriages, Lord Brougham seems plainly to have been adopting terminology that one can trace back at least to the twelfth century work Decretum Gratiani. In his Decretum, the Italian jurist Gratian had used a fourfold classification of errors (whether induced by fraud or not) when discussing errors that might affect the validity of an apparent marriage. His classes of errors were errors: of person; of fortune; of condition (or status); and of quality. Gratian was obviously writing before the coming into existence of the Anglican church, but his four classes of error were later adopted for the purposes of that church too, as appears from Ayliffe’s Paregon (1726). Ayliffe, however, considered that the class of errors of condition or status was by then obsolete.

I’ll discuss in a moment what Lord Brougham seems to have meant by deceit “as to the person” that led to there having been no consent given at all, but I’ll focus first instead on deceit as to fortune or quality, types of deceit that, in accordance with Lord Brougham’s statement of the law, wouldn’t lead to the voidness of an apparent marriage, no matter how gross the deceit concerned. (I’ll follow Ayliffe in ignoring for present purposes as obsolete the class of errors as to condition or status.)

The notion of deceit as to fortune is obvious: the deceiver claims to be wealthier than she knows she is.

As to the notion of deceit as to quality, Gratian gave two examples of errors of quality (which could, of course, have been induced by deceit): thinking a woman chaste when she’s a prostitute and thinking her a virgin when she’s been seduced in the past. In his discussion of errors of quality, Ayliffe used the same “virgin” example as Gratian had used and added the example of mistakenly believing that a woman is of “a noble family” when she’s of “a mean parentage.” Obviously, many other examples could be thought to fall under the general heading of deceit as to quality, for instance, a knowingly false statement by a woman as to her religious affiliation (or lack thereof) or as to her pregnancy (or lack thereof).

The crucial question for present purposes is, of course, what Lord Brougham had in mind when using the notion of a party to an apparent marriage having been been “deceived as to the person, and thus ha[ving] given no consent at all”. In discussing that question, I’ll take it that a deception as to one’s true name is involved in a deception “as to the person”.

On one view, what Lord Brougham had in mind was that absence of effective consent would necessarily follow from one’s being deceived as to the person. In other words, there was an automatic rule that a man gives no effective consent to marrying a woman when he knows that woman by a false name as a result of a knowingly false representation about her name made to him by her (or on her behalf). Whether or not Wragge’s lawyer friend was aware of Lord Brougham’s statement, he seems to have approached the matter in accordance with the view that I’ve just described.

However, there’s a serious difficulty in construing in that way what Lord Brougham said. Why would he have thought it appropriate to have an automatic rule of validity despite deceptions as to fortune or quality, but an automatic rule of invalidity for deceptions as to person? That would be illogical. It might be absolutely fundamental to a man’s decision to marry a woman that her fortune be what she claims it to be and absolutely trivial to him whether her name be what she claims it to be. Yet on the above construction of what Lord Brougham had said, the fundamental deception as to fortune could have no effect on the validity of the marriage, while the trivial deception as to name would automatically invalidate it.

Another and more likely view of what Lord Brougham had in mind was that absence of effective consent might follow from one’s being deceived as to the person, depending on the particular circumstances. On that view, once a deception as to the person has been established, the enquiry then shifts to the question whether, in the circumstances, that deception led to the man’s apparent consent being ineffective.

If Lord Brougham had it in mind that there would be an enquiry as to whether, in the circumstances, a deception as to the person led to the man’s apparent consent being ineffective, what would be the nature of that enquiry? Was the court, particularly in cases of deception by use of a false name, expected to conduct an examination into what the man would or would not have done had he known beforehand the true name of the woman that he’d apparently married?

Just as there’s a serious difficulty in attributing to Lord Brougham contrary automatic rules depending on whether the deception is as to the person, on the one hand, and as to fortune or quality, on the other, there’s a serious difficulty in attributing to him an intention that, in cases of deception by use of a false name, the court conduct an examination into what the man would or would not have done had he known beforehand the true name of the woman that he’d apparently married. Why would Lord Brougham have considered it appropriate that the court conduct an enquiry into what the man would or would not have done had he known the true position regarding the woman’s name, but not into what he would or would not have done had he known the true position regarding the woman’s fortune or quality?

That serious difficulty leads to the conclusion that Lord Brougham must have had a special class of case in mind in which a court was expected to enquire as to whether, in the circumstances, a deception as to the person led to the man’s apparent consent being ineffective.

In my view, that special class of case was one in which a man claimed that, believing that he was marrying a particular woman, he had, because of a deception as to the person, actually participated in a marriage ceremony with a different woman.

Imagine a case where a marriage has been arranged by others or even by a man and woman themselves, but the man has never seen the woman before; alternatively, imagine a case where the man has seen the woman before, but only many years ago. In either of those cases, a woman might be able deceptively to take the place at the marriage ceremony of the woman that the man intended to marry.

One can even envision cases in which, unlike in the cases just mentioned, the man is aware of the present personal appearance of the woman that he intends to marry and yet another woman is still able deceptively to take the place at the marriage ceremony of the woman that the man intended to marry.

Perhaps the ceremony will take place with the woman being covered up, whether for religious or cultural reasons. That’s presumably what happened in the Bible, Genesis, chapter 29, when Jacob, who believed that he was marrying Rachel, was tricked into marrying Leah.

Hendrick_ter_Brugghen_-_Jacob_Reproaching_Laban_-_WGA22181

The above painting (from here) depicts Jacob remonstrating with the father of Leah and Rachel after he’s discovered his error. It’s easy to decide which of the two women in the picture is which.

An example has also been given in a judge’s reasons for judgment of a “marriage[ ] in masquerade”, although the example seems to have been put forward as having been derived from some unnamed work(s) of fiction.

Perhaps (although this example is also probably the stuff of fiction only) the ceremony will take place with the woman in full view, but the man, thinking that he’s marrying one of two identical twins, is tricked into going instead through a marriage ceremony with the other twin. (Compare Collins’s Poor Miss Finch (1872), in which an identical twin unsuccessfully plots to have a woman marry him in the belief that he’s his brother.)

In all of the above examples, it would inevitably be concluded that the man “ha[d] been deceived as to the person, and thus ha[d] given no consent at all”.

It appears to me that, in referring to deceit as to the person leading to the absence of effective consent, Lord Brougham had had in mind only the substitution by a trick cases that I’ve just mentioned. If I’m correct in that construction of what he said, then, obviously, Noel’s case wouldn’t fall within what Lord Brougham had had in mind, since there’d been no substitution in Noel’s case of one woman for another.

I have one final matter to discuss.

It will be recalled that Lord Brougham had begun his statement of the English law by adverting to the possibility that there could exist “some positive provision of statute law, requiring certain things to be done in a specified manner”. What he obviously had in mind was a provision that would not only require that certain things be done in a specified manner, but would also provide that if those things weren’t done in that manner, then a consequential apparent marriage would be void.

Although there existed, at the date of Noel and Magdalen’s apparent marriage, at least one statutory provision of the type that Lord Brougham had had in mind, section 22 of the Marriage Act 1836, I don’t believe that Noel could have relied successfully on a breach of that provision to establish the voidness of his apparent marriage to Magdalen. That provision appears to have excluded from its purview apparent marriages according to the rites of the Church of England pursuant to special licence and Noel and Magdalen’s apparent marriage had been according to those rites and by special licence. Further, even in its application to common licences, the provision had been held by the date of Noel and Magdalen’s apparent marriage not to render an apparent marriage void when a man, having been deliberately misled by a woman as to her name, had himself innocently applied for and then obtained the licence using the woman’s false name and they had afterwards been apparently married pursuant to that licence: Clowes v Clowes (1842) 1 Curteis 185. Leaving aside the difference as to the type of licence, the facts of that case were on all fours with Noel’s and Magdalen’s situation.

Perhaps more to the point though is that there’s no hint in our story that Wragges’ lawyer friend was relying on an alleged breach of any such provision in giving his advice; his advice was based solely on Magdalen’s deception of Noel, not on any defect in the legal preliminaries to their apparent marriage.

(Before I end this post, I want to mention again Collins’s Poor Miss Finch. In that novel, the wicked twin, as part of his plot to trick the heroine into marrying him, obtains, by impersonating the good twin, a licence permitting the good twin and the heroine to marry. Afterwards, however, the wicked twin gives that licence to the good twin to use and he and the heroine do use it. Although Collins appears to have been unaware of the problem, it seems that the apparent marriage between the good twin and the heroine in reliance on that licence would have been void. In the Clowes case, already mentioned, the judge, Sir Herbert Jenner Fust, stated what he said was the principle involved: “[W]here there has been no error as to the person, and no fraud practised in obtaining the licence, that is, such fraud as if known would have prevented the granting of the licence, the marriage cannot be voided”. Obviously, Sir Herbert had it in mind that if there had been error as to the person or fraud practised in obtaining the licence, the marriage would be declared void. Here there was fraud practised by the wicked twin in obtaining the licence, namely his false representation that he was the good twin. That fraud by him, if known, would surely have prevented the granting of the licence. The good twin and the heroine, knowing the circumstances under which the licence had been obtained, should not have sought to use it, but should have applied instead for a fresh licence.)

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5 Comments
  1. Sheldon Goldfarb permalink

    On the legal side, the point Collins is able to introduce is that Noel may be able to contest the validity of the marriage if he discovers the deceit, but only if both he and Magdalen are still alive.

    So this gives Magdalen a motive for either murder or suicide. If she murders Noel after the marriage and before he can have it declared void, then according to the law as presented by Wragge, Magdalen would presumably inherit as the widow and reclaim the property she and Norah lost.

    I was going to say that if she died before the deceit was discovered, then she could will some of the money to Norah: would that be possible? (I look to Leslie.)

    I do think, though, that the original motive (recovery of the Vanstone property) seems to have receded quite a bit. This seems more now a story about marrying someone for money, marrying someone you can’t stand for money, and the horrible things that does to your psyche.

    • Leslie permalink

      Sheldon, you say, “I was going to say that if she died before the deceit was discovered, then she could will some of the money to Norah: would that be possible? (I look to Leslie.)”

      If Magdalen dies before Noel, then, even if she’s made a will leaving all her property to Norah, there’ll be no property of substance that she owns at the date of her death on which that will can operate.

      If, on the other hand, she dies after Noel in circumstances in which she’s succeeded to all of his property and has made a will leaving all of her property to Norah, then Norah will succeed to all of Magdalen’s property. (In saying that, I’m assuming that Norah remains unmarried at the date of Magdalen’s death, as she is now in our story.)

      • Sheldon Goldfarb permalink

        Thanks, Leslie. Then it’s really only a motive for murder.

  2. Geoff permalink

    Thankyou for your efforts to clarify the legal position. I really enjoy reading the extensive comments after each chapter. Is there a further significance in Magdalen being under 21 ?

    • I’m on the move right now and without access to my research materials. My answer is therefore based on my recollection. If I find out afterwards that I’m wrong, I’ll correct this.

      You may remember that it was Noel who swore on oath that Magdalen was twenty-one.

      My understanding is that a person under twenty-one needed the consent of a parent (or a guardian) to marry, but if a person under twenty-one was married without such consent after it was claimed that he or she was twenty-one, that didn’t affect the validity of the marriage. However, a person who knowingly falsely swore that the person was twenty-one could be prosecuted for false swearing. Here, the only swearing was done by Noel, who obviously believed that what he swore was true. Therefore, he couldn’t be prosecuted successfully for knowingly false swearing. Neither could Magdalen, because she didn’t swear anything.

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