Swifte v Attorney General for Ireland

• Jurisdiction: Ireland
• Judgment Date: 10 December 1909
• Date: 10 December 1909
• Court: Court of Appeal (Ireland)

Legitimacy Declaration (Ireland) Act, 1868. George Godwin Barnham Swifte

Petitioner

and

The Attorney-General for Ireland

Respondent

and

Godwin Butler Meade Swifte

Intervenient (1).

Appeal.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1910.

Construction of statute — 19 Geo. 2, c. 13 (1r.), s. 1 — Irish Penal Code — Statute rendering void any marriage of a Protestant celebrated by a Roman Catholic priest, whether extra-territorial in operation.

Section 1 of 19 Geo. 2, c. 13 (Ir.), enacting that every marriage after the year 1746 celebrated between a Papist and any Protestant, or between two Protestants, if celebrated by a Popish priest, should be null and void, was not extra-territorial in its operation, and did not, while it was in force, affect a marriage celebrated in a foreign country.

In 1833, while this enactment was in force and unrepealed, a marriage was celebrated in Austria between A, a Protestant and domiciled Irishman, and B, who was a Roman Catholic, by a Roman Catholic priest in facie ecclesiae. This marriage was valid according to Austrian law, and at that time there was no other way in which a marriage could be validly contracted in Austria:—

Held, that this marriage was not avoided by sect. 1 of 19 Geo. 2, c. 13 (Ir.), and therefore that A could not, while B was alive, contract a valid marriage with another woman.

Petition seeking to establish the legitimacy of the petitioner, who claimed to be the lawful son of Godwin Meade Pratt Swifte and Jane Anne Swifte, otherwise Hopkins. The Attorney-General did not appear, and Godwin Butler Meade Swifte, who was admittedly a lawful son of Godwin Meade Pratt Swifte, by his marriage with Mary Jane Clarke, intervened by leave of the Court and resisted the claim.

The same issue had been raised in an action in the Chancery Division in which the petitioner was plaintiff, and the intervenient was a defendant, which sought for the administration of

the personal estate of Godwin Meade Pratt Swifte. Mary Jane Swifte, who was also a defendant in that action, delivered a defence (a) denying that the plaintiff therein was the lawful son or one of the next-of-kin of Godwin Meade Pratt Swifte, and pleading the Statute of Limitations. The Master of the Rolls (Sir A. M. Porter) decided in favour of the defendant on both grounds, but the Court of Appeal and the House of Lords affirmed his decision on the application of the Statute of Limitations, without expressing any opinion as to the legitimacy of the plaintiff. The present proceedings were instituted for the purpose of having the judgment of the Master of the Rolls reviewed. The petition was tried before Wright, J., without a jury, who, in conformity with the judgment of the Master of the Rolls, found (1) that the marriage between Godwin Meade Pratt Swifte and Jane Anne Hopkins on the 18th March, 1845, was not a lawful and valid marriage, and (2) that the petitioner was not their lawful sou. On motion to set aside these findings, the King's Bench Division, without delivering any formal judgment, but also in. conformity with the decision of the Master of the Rolls, refused the motion with costs on the 23rd November, 1909.

The material facts of the case will be found fully stated in the judgment of the Lord Chancellor. They may be briefly outlined as follows:—

On the 3rd February, 1833, Godwin Meade Pratt Swifte, who was a Protestant, and a domiciled Irishman, was married to Maria Theresa Baroness von Wetzler, in the parish church of Kirchdorf, in the Empire of Austria, by a priest of the Roman Catholic Church, the Rev. Matthaus Kerschmauz, Vicar. This was a perfectly valid marriage according to Austrian law, and was the only way in which, at that time, a marriage in Austria could be lawfully contracted. Maria Theresa died on the 30th January, 1859. The Austrian marriage was never annulled. There was one son of that marriage, who died unmarried. On the 18th March, 1845, Godwin Meade Pratt Swifte went through a ceremony of marriage with Jane Anne Hopkins, at St. John's Church, Liverpool (which, except for his previous marriage, would have been undoubtedly valid). Of this union the petitioner was a child.

Jane Anne Hopkins died on the 14th August, 1847.

In 1863 Godwin Meade Pratt Swifte married Mary Jane Clarke. The internment was the only son of that marriage, which was admittedly valid.

The question of the petitioner's legitimacy thus depended on the alleged invalidity of the Austrian marriage, which, he alleged, was rendered null and void by 19 Geo. 2, c. 13 (Ir.), section 1.

The portion of the judgment of the Master of the Rolls delivered on the 15th November, 1905, dealing with this question was as follows:—

“The question then first arises obviously on the marriage in Austria, with the Baroness von Wetzler. If that was a valid marriage, and if it was not severed by divorce or some other proceeding, then Godwin Pratt Swifte was not at liberty to contract a marriage in 1845, or at any time before the death of the Austrian lady. As I have said, the fact of that marriage is not denied, nor could it be. The certificate has been produced. Everything in the case shows that the parties were legally married. The certificate produced would be treated as conclusive evidence of the fact of marriage in an Austrian Court; and of the fact there is no doubt. It was celebrated not only in a way lawful in Austria, but in the only way in which if both had been Austrian subjects, or domiciled in Austria, it could have been there celebrated. There is no other way. It was celebrated by a parish priest, in the presence of witnesses, in facie ecclesiae; and that that was a valid marriage it is hardly worth while to pause to consider: but I take it on the evidence of the two Austrian lawyers who were examined here in Court on the subject. It is proved by the evidence of Dr. De Griez. He is asked (Question 1039), ‘According to Austrian law what effect has the production of that certificate (the certificate of marriage) in an Austrian Court?’ He says, ‘The Austrian Courts accept it as evidence of a marriage legally concluded.’ In answer to Question 1041, he says that the certificate contains everything that the law in Austria requires. He is asked (Question 1042), ‘Now, assuming the marriage referred to by that certificate to have taken place at the date mentioned, was there any machinery or provision in Austrian law by which the parties to the marriage could be divorced?’ He says the fundamental rule of our marriage law is based upon the canonical; and whether a marriage is between Catholic and Catholic or between Catholic and non-Catholic, the disability attaches to it at the present day that it cannot be dissolved.’ (Question 1043), ‘So even at the present day there is no machinery provided by Austrian law for the dissolution of a marriage between a Catholic and a non-Catholic?’ ‘Absolutely none.’ And Dr. Krenn (the gentleman who gave his evidence through an interpreter) says to the same effect—Question 1079, ‘Ask him if that certificate were produced in an Austrian Court, would it be accepted as evidence of a marriage?’ ‘Yes, it would be absolute evidence for the wedding that is evidenced by the certificate.’ And again (1086), ‘Ask him on what grounds can a marriage be annulled?’ ‘It is possible of course, but all the grounds must be before the marriage was concluded. Any incident that took place after the marriage was concluded would certainly be no reason.’ And 1096:—‘Is there any means by which a marriage between a Catholic and a Protestant validly celebrated in Austria can ever after the marriage be annulled?’ ‘No.’

“Thus to defeat the marriage some disability must be shown to have existed at and prior to its celebration. The disability relied on is that created by 19 Geo. 2, c. 13 (1745), which was in force in 1833.

“Section 1 of 19 Geo. 2, c. 13 (Ireland), recites:—'Whereas the laws now in being to prevent Popish priests from celebrating marriages between Protestant and Protestant or between Protestant and Papist, have hitherto been found ineffectual' (the previous statutes made, being hanging matter for the priest, but that was found to be ineffectual) ‘for remedy whereof, be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled, and by the authority of the same, that every marriage that shall be celebrated after the first day of May, which shall be in the year of Our Lord God, 1746, between a Papist and any person who hath been, or hath professed him or herself to be, a Protestant at any time within twelve months before such celebration of marriage, or between two Protestants, if celebrated by a Popish priest, shall be and is hereby declared absolutely null and void to all intents and purposes, without any process, judgment, or sentence of law whatsoever.’

“The words are very wide—‘shall be and is hereby declared absolutely null and void to all intents and purposes, without any process, judgment, or sentence of law whatsoever,’ and that is relied on by plaintiff's counsel as being a legislative enactment of the impossibility of any marriage being celebrated between a Protestant and a Catholic which should be valid under the Irish law if celebrated by what is called a Popish priest; and there can be no doubt that the parish priest who celebrated this marriage was a Roman Catholic. But, admittedly, some restriction must be imposed upon the latitude of the language of the section. There is no reference to locality. Every marriage so celebrated comes within its language. It would include a marriage celebrated between subjects of a foreign State over which we have no jurisdiction at all.

“There was manifestly no power in the Parliament of Ireland to avoid foreign marriages, made...