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the second marriage before the first is dissolved, has no more validity than the marriage of the Prince without the Sovereign's consent. Indeed, the law of all countries abounds in examples of acts absolutely void causing a forfeiture. Our English law makes the fruitless attempts of a tenant for life to enlarge his estate, a forfeiture of that estate, as if he were naturally dead; the next in succession takes it, although the act done is not of more value than the paper or parchment on which it is written. So in Scotland the act done in contravention of the prohibitions of an entail is an absolute nullity, and yet the doing it lets in the next in succession. But we need go no further than this in the argument; the solemn provisions of the Bill of Rights and Act of Settlement must be assumed as repealed without any reference to them by the Act of 1772, before we can admit that the invalidity of a marriage contracted against the prohibitions of that Act, will prevent the forfeiture.
When we moot this question, notwithstanding its delicacy, and against what appears to have been the wishes of the illustrious Duke appealed to, as well of the present Duke of Bedford, we must remind the reader that the discussion has been forced upon us by somewhat higher authority than the author of the work now before us, and of his deceased brother,—an authority which the last-named Duke will not be disposed to disregard. Lord John Russell thought proper to publisb in Mr. T. Moore's Diary a private conversation at which that individual was present, and of which, according to his practice, he made a note on going home. The persons who joined in the discussion of the legal question at present under consideration, were the Queen's Counsel, her Attorney and Solicitor General, Mr. Williams (afterwards the Judge), and Mr. C. Butler, the most eminent conveyancer of his time, and a zealous Catholic; whose prejudices, therefore, must have been against the forfeiture, could he as a lawyer have entertained any doubt upon the subject. The report in the Diary states the opinion of all these learned gentlemen as clear that the invalidity of the marriage could not prevent the forfeiture, and upon the grounds which we have here stated. But when the Diary adds that the point was not taken by those advocates of the Queen in 1820, because there was no evidence of the marriage, there must be a gross misrepresentation of what passed; for it is well known that not only Mrs. Fitzherbert but Mr. H. Errington, who witnessed the marriage, was still alive, and that the intimations thrown out by the Counsel of the resistance to the Bill of Pains and Penalties possibly throwing the country into confusion, never could refer to recrimination. No doubt, had Mr. Errington been called, he, as well as Mrs. Fitzherbert, might have refused to answer a question which would expose them to severe penalties; but it is at least equally clear that their refusal would have sufficed to put the fact of the marriage beyond all moral doubt, while Mrs. Fitzherbert never would have denied that she had at all times been a Roman Catholic, even if a strained application of the rule as to self-crimination had protected her from answering that question. The case of a disputed succession, with all its dreadful consequences, would therefore have arisen, supposing that no documentary evidence of the marriage had been forthcoming; and that is by no means certain.
1 In his Memoir of Mr. Fox he states the fact of the marriage broadly enough; but in his publication of T. Moore's Diary, he further gives the opinion of learned lawyers upon its penal consequences. This goes much further than the documents which his brother decided that Lord Albemarle should refuse to make public.
It must be further observed, that the provision respecting forfeiture is, considering the importance of the subject, and the unquestionable honesty of the intentions with which the great men of the Revolution of 1688 penned it, singularly illone should say carelessly and inartificially-conceived, because it is left without any mode pointed out for carrying it into execution. How the fact of the marriage is to be ascertained, or how the Catholicity of the party, is left wholly unmentioned. How, if ascertained, the cause of the forfeiture is to be declared, and the forfeiture itself to be promulgated, is equally left in the dark. The subjects are absolved from their allegiance, but no means are afforded them of knowing whether that duty has ceased or not ;-nay, at what time it has ceased ;-indeed, at what time the wrongdoer has ceased to be Sovereign, whether at the time of committing his offence, or at the time of its
being discovered, or at the time of its being declared (probably by the two Houses of Parliament, on the supposition of the doctrine being sound which one party held a century after on the question of a regency), is not in any way stated, nor is anything stated from whence an inference can in any manner of way be drawn. And yet all these gross and most glaring defects notwithstanding, it is quite certain that the statutory provision is in full force, and is regarded as one of the main bulwarks of our constitution against the dangers of a Catholic reign.
Let us now consider what would have been the effect of bringing forward the subject in the proceedings of 1820. We say nothing of the consequences which would have resulted from legal proof being given of the marriage, because we consider it manifest that this must have occasioned a declaration of forfeiture. But supposing, what is more probable, that no such proof had been tendered, in consequence of the witnesses called refusing to answer the question, it seems most likely that an Act would have been passed to declare, or rather to enact, somewhat violently, that, the marriage being void, no forfeiture had been incurred; and further to remove all doubts of the title of the Prince as Regent and as King in the preceding years. Indeed, this would seem to be as necessary a proceeding as the Act passed in 1688 to remove all doubts as to the sitting of the Parliament; for he was no whit more a king in 1820 than they were a Parliament in 1688. It does not appear necessary to pass such an Act now, even if the documents proving the marriage were produced ; nevertheless some doubts might be raised upon this; and it is to be remembered that among other important acts made during his reign, one was the abrogation of the Penal Laws. What a strange notion of duty towards their religion (may we observe in passing) the Romanist authors of the work before us must have, when they take such pains to prove the forfeiture of his Crown by the Sovereign whose most distinguished legislative act was the removal of the disabilities under which for a century and a half their Church had suffered !
We have passed over many things in this book which give rise to remarks little laudatory of its author. Thus there
VOL. I. NO. I.
is more than insinuation against Mr. Fox that he had volunteered a denial of the marriage in the House of Commons, without due authority from the Prince. Whoever reads his letter ten days before the marriage, and the Prince's answer, containing the most gross falsehood, and also reads the shuffling denial which he afterwards gave to Mrs. Fitzherbert and Lord Grey, of having authorized Mr. Fox, will at once acquit Mr. Fox of this charge, although we cannot avoid feeling that he did wrong both by Mrs. Fitzherbert and by himself, in not retracting the denial as soon as he discovered that he had been deceived, and been made the channel through which a falsehood was solemnly asserted to the Parliament and the country. He was at all events bound to make it known in more distinct terms than those used by him (“he had direct authority'), that the Prince's own denial was what he intended to convey.
Another thing which we may note respecting this book, is the extraordinary notion entertained by Lord Stourton that he does his kinswoman honour by relating her advice to the Regent in 1811. She strongly urged him “not to sever himself from his former political friends." But she said he might, after “retaining them in power for six weeks, find some pretext to dismiss them; only she advised him not to break with them without some pretext or other.” This advice of a woman always esteemed honourable and even high-minded, may serve to show at once how dangerous is the contact of a court, and how much princes are to be pitied for the atmosphere of intrigue which they seem doomed always to breathe.
The canvassing of Peers by the Prince on the judicial question of Miss Seymour's guardians, would give rise to a third observation, but for the inaccuracy as to dates, and indeed other matters of fact which pervade this volume, and make it extremely difficult to be assured that the letter in p. 154 to the Duke of Norfolk, related, as Mr. Howard of Corby (representative of his Grace's executor) assumes, to the appeal from Lord Eldon's order; and there is great doubt cast on the whole statement by the comparison of dates.
ART. VIII. — PAPERS OF THE SOCIETY FOR PRO
MOTING THE AMENDMENT OF THE LAW.
I. REPORT OF THE SPECIAL COMMITTEE ON THE PARTNER
Report of the Special Committee appointed at the Special General Meeting
held on the 18th February, 1856, to consider and report on the Partnership Bill. Read at the General Meeting on the 25th February, and then received and adopted. THE Partnership Amendment Bill consists, in effect, of the
following clause only, viz., The advance of capital or money to be used in any trade or undertaking, not being the trade of a banker, upon a contract with the person carrying on such trade or undertaking that the person making such advance shall receive a share of the profits (or shall bear a share of the loss] of the trade or undertaking, shall not of itself render the person making such advance [liable to third parties as] a partner in such trade or undertaking."
The Law Amendment Society claim for themselves the merit of having first pointed out in their Reports and Resolutions of last year (by way of opposition to the intricate measure then contemplated) that such a clause as this was nearly, though not altogether sufficient, to establish a system of partnership on limited liability. On further consideration of the subject, they are convinced that somewhat more is required. The following are their reasons :
Ordinarily, where limited partnerships are formed, it is not intended to create the relation of debtor and creditor between the parties. The advancer would generally be willing to advance to the concern, and not to the ostensible party.
« Profit” is, shortly speaking, what remains after the debts are paid and capital replaced. To agree to lend for a profit return is, in effect, to agree to let the general trade debts be first paid.
Parties who advance money to a concern for a share of the profits are now partners to all intents and purposes. They are
| The words between brackets at present form part of the clause.