ART. IX.-CLAIM OF SIR AUGUSTUS D'ESTE.

Papers elucidating the Claims of Sir Augustus D'Este, containing, 1. Genealogical Tables showing the descent of Sir Augustus on the maternal side from various Sovereign Houses of Europe, and printed for the purpose of demonstrating the validity of the Marriage contracted by his Parents with respect to feodal and territorial succession in Germany, pp. 4. 2. The Case submitted to Dr. Lushington and Mr. Richards, with the opinions of those gentlemen thereupon, pp. 16. 3. Diplomatic Note or Exposé of those Claims transmitted to Earl Grey, pp. 36.4. A Letter to a Noble Lord from Sir John Dillon, explanatory of Proceedings adopted in relation to these Claims in the Court of Chancery, pp. 40, forming a Volume printed for private circulation.

HAVING been requested by a great many of our readers to furnish them with some additional information on this subject, we shall endeavour to clear up some doubtful points connected with it, which were only cursorily alluded to in our last number.

First, as to the bill now pending in Chancery, it is hardly necessary to apprize our professional readers that there is and can be no other object in filing it than that of perpetuating testimony; and although from the course adopted by the Attorney-general on the part of the Crown in demurring to the bill, it involves an important question affecting the collective body of the peerage, namely, whether there exist any and what means whereby an heir, apparent or presumptive, to a dignity, may secure testimony in favour of his right of future succession during the life-time of the actual possessor of the dignity; yet the question as to the validity of the marriage of the Duke of Sussex at Rome cannot become matter of legal discussion until Sir Augustus D'Este shall be in a condition to claim the estates or titles of his father, as heir. Should he fail in procuring the demurrer to be overruled, any disappointment that may occur to him in

Indeed,

that respect will not affect the merits of his case.1 were he to lose entirely the support of the testimony which it is his present object to record, he would have little cause for despondency, since the testimony in dispute is only that of the clergyman, and the marriage at Rome would be equally valid, whether solemnized by a clergyman or not; for (the statute 26 Geo. 2, c. 33, not extending to marriages beyond the seas or marriages of the royal family) it would stand on precisely the same footing as a marriage in Scotland, or in any other country where the Catholic canon law prevails; and the amplest proofs are extant of an actual matrimonial union having been contracted and consummated. The suit therefore has been instituted merely as a measure of precaution, and in consequence of the failure of the negotiation at which we hinted in our last Number under the mistaken name of an attempt at a compromise. We now know that the sole object of that negotiation was to procure an admission by the Crown or the ministry of the facts, or at least to prevent any impediment, merely technical, from being opposed to the examination of the clergyman. "Such a verification," says the formal communication to Lord Grey, "has never hitherto occurred; it is all which at the present moment is urged by himself (Sir A. D'Este) and such a verification (if now had) would leave nothing in doubt with the existing or any future generation-with present or future judges, as to the ground.

1 The following is the purport of the Bill as stated by Sir J. Dillon. After stating the fact of the marriage at Rome, certain circumstances respecting the landed property of which his mother was seised in her life-time; the creation of his royal father as Duke of Sussex, Earl of Inverness, and Baron of Arklow, with remainder to the heirs male of his body lawfully begotten, and that the clergyman by whom the marriage ceremony was performed at Rome is now upwards of eighty years of age, it merely submits that Sir A. D'Este "is entitled to examine witnesses to prove the said marriage, and that it was good and valid, and to perpetuate the testimony of such witnesses both as to the said marriage, and the other matters and things aforesaid, in order that he may have the benefit of such testimony as occasion may require; to the end, therefore, that the testimony of the witnesses may be preserved and perpetuated, and that he may be at liberty at all future occasions to read and make use of the same, as he may be advised," it prays that the Attorney-general may be ordered" to appear, answer, and abide the direction of the Court."

2 In Germany, Protestant princes also can contract marriage by the mere declaration of mutual consent. Sir John Dillon quotes a passage from Thibaut, one of the most distinguished lawyers of Germany, to this effect; but the printer has made sad work with it.

of decision. The misfortunes of Sir Augustus D'Este from his infancy have been hitherto sufficiently severe. It would be an additional hardship, if hesitating to adopt what is urged by such authority in the law as advisable, or impeded in the course of it, himself, his sister, or their posterity, should by the hand of death be deprived of testimony which might hereafter be thought necessary, and which by the proceeding at present in contemplation it is sought, whilst parties are in existence, to secure; a proceeding (to repeat the observation) limited to that one object." The application was vain, and the Attorney-general has demurred to the bill.

Sir John Dillon attributes the failure to an accident, and imputes no blame to any one. So do not we: the question is a public question, affecting both the nation and the Crown: it was the bounden duty of the ministry to co-operate with Sir Augustus D'Este in removing all removable doubts; "and we have yet to learn, that it is consistent with a due regard to justice, or even with the personal honour of the King, to permit such a matter to be conducted on special pleading principles to imitate the petty tricks, the miserable subterfuges, the mean attempts to shut out truth, which too frequently disgrace the practice of our Courts.

It is possible to conceive the case of a person who should start up, previously altogether unknown, of whose existence the world had never before heard, or who, if heard of, had always passed as the offspring of other parents moving in humble or private life, who should repeatedly have given contradictory or varying accounts, and who, having lain by during a series of years until all persons who could have given testimony against the imposture were in the grave, should suddenly claim to be of a regal stock, producing documents in support of such a claim, the authenticity of which might be fairly questioned, or rather ought to be considered more than suspicious, as hominum opinione penitus damnata. Such a case would have hardly a claim to any regard whatever, still less to assistance, or to a departure in any point from the strictest rigour of proof.

Such however is not the case of Sir Augustus d'Este. There is no doubt of his personal identity, nor of the double marriage of his parents; he has always occupied an elevated position in

society, and in a manner to reflect back honour on his stock: he is merely advancing a claim, which he must be utterly lost to all the best feelings of humanity to give up, with unyielding firmness certainly, but still with dutiful respect; he asks only for confirmed legal proof of that which every man in the kingdom is morally convinced of; and the ministry instruct the Attorney-General to demur. Such conduct is utterly unaccountable, in whatever light the case may be viewed; for if the claim be a suspicious one, it seems not the less advisable to perpetuate the best evidence of the facts, in order to expose the imposition, when the proper moment for investigating it shall come. The Crown is held to be so far interested in the point, as to render it necessary to make the Attorney-General a party to the Chancery suit. The Rev. Mr. Gunn (the clergyman who performed the ceremony) is therefore as much a witness for the crown as for Sir Augustus d'Este; but as he is now eighty years of age, it is by no means improbable that he may die during the long delay the legal objection may cause, and thus two questions (of law and fact) may arise out of circumstances which, by the proposed arrangement, would be compressed into one; namely, whether the Royal Marriage Act does or does not extend to bonâ fide marriages abroad, And here it seems by no means beside the subject to remark, that the Act in question, made to humour the prejudices of the reigning monarch and strongly protested against at the time, is one to be construed, like all penal statutes, rigorously, one rather to evade than to stretch. In our opinion, the royal family have suffered far more in public estimation from the illicit connections so many of them have been led to form in consequence of the restraints imposed by this act, than they would ever suffer from intermarrying with the native nobility; and the fear of a disputed succession, arising from such unions, is absurd.

This therefore adds yet another doubt to the mystery in which the conduct of the ministry is involved, nor have we the means of penetrating it. It has been rumoured that a petty court faction has been actively bestirring itself to undermine the case by procuring evidence, ignorantly supposed indispensable, to be withheld; but this has been authoritatively denied, and it is hardly credible that the noble personages

hinted at would allow themselves to be led, by petty jealousies, into an opposition which must militate eventually against themselves.1 Then the king's kindliness of feeling towards all who claim kindred with him, is proverbial; and it appears from the Court intelligencers that Miss Augusta d'Este is constantly about the person of the queen. The only remaining party interested, and most deeply interested of all, is the royal father himself; and as he must be supposed to possess some influence in a Cabinet, with the members of which he has uniformly co-operated, some faint suspicions may arise that he does not back the petition of his son. But the most cursory review of his past conduct will put all such suspicions to flight, and obtain for that illustrious personage the warm approval of every well constituted mind.

In 1793 we had no diplomatic or even consular establishment at Rome; no liberty of divine worship in any public chapel; no facility of solemnizing any religious rite but by the accidental resort of a protestant minister to that capital, compelled to perform his sacerdotal functions by stealth; yet all these difficulties are braved by the Duke to procure the attendance of a clergyman; the marriage is preceded by a written contract, solemnly appealing to God; and the completion of the ceremony is deliberately recorded upon that. For fear of any difficulty being made as to the legality of his child's birth (these are his own words), he causes himself to be married again; opposes, by all the means in his power, the subsequent attempts at divorce; and never ceases contending, for a series of years, that his marriage was legal and his offspring legitimate. Personal differences, we believe, subsequently caused the royal couple to separate; but the Duke did not, and could not, cease to regard Lady Augusta Murray as his wife. Until very recently, too, comparative indifference was excusable; for it was not until after his mother's death (in 1830) that Sir Augustus became possessed of the documents, and only a few months have elapsed since the opinions of Dr. Lushington and Mr. Richards, which entirely alter the whole

1 The person really pointed at by the above-mentioned rumour, is a gentleman in the household of the Duke of Sussex; through whose interposition, it is said, Mr. Gunn now refuses to be interrogated, on the ground of his own criminal responsibility; but this objection might be easily removed by the Crown.