Wakefield v Mackay, falsely calling herself Wakefield

Consistory Court  of London 
17^th November 1807

Michaelmas Term

Before (the judges sitting on the bench)

• Sir William Scott 

The parties to the case

• Daniel Wakefield
• Isabella Mackay, otherwise Lascelles, otherwise Thorpe, otherwise Jackson, “falsely calling herself Wakefield”

Judgment

Sir William Scott —

This is a suit, for the nullity of a marriage, instituted by Daniel Wakefield, Esquire, against Isabella, described in the libel as Isabella Mackay, falsely calling herself Wakefield.  The parties were married in the Church of St James, Clerkenwell , on the 29^th of May 1805, after a proclamation of banns in the name of Isabella Jackson. — It was observed, that this was not a new connection, and it certainly was not, either with relation to the time of their acquaintance, which preceded this marriage, or to the nature and description of their intimacy.

Mr Baster, who was examined, and who appears to be a fellow student of Mr Wakefield, at one of the Inns of Court , deposes, upon the fifth interrogatory, “that he had understood from the said Daniel Wakefield, the producent, that he, the producent, first became acquainted with the ministrant six or seven years ago.”  This brings it to about the year 1800. — It appears, that she and Mr Wakefield cohabited together during the former and latter part of that period, and that she lived with him under the name of Isabella Lascelles.  Who is the seducer, and who is the seduced in this case, does not at all appear by this evidence, neither is the age of Mr Wakefield disclosed; but the woman appears to have been of extreme youth at this time — by the dates assigned, not more than fifteen years of age, which lays some ground of probability, that she did not take the active lead in forming this connection.  What name she bore at the time Mr Wakefield was introduced to her, or under what circumstances she was living, does not at all appear.  In 1802 she took the name of Lascelles, Mr Wakefield, at the same time, assuming the same name, and passing as Mr Lascelles, the husband of Mrs Lascelles: he introduced her, as his wife, to a boarding school, where he visited her, he passing under that name.  In 1803 she took the name of Thorpe — the manner in which that was done, is thus described in her answers, “that, upon going to Salisbury and other places in the character of an actress, Mr Wakefield tendered to her a list of names for her acceptance, recommending the name of Baddeley; that she disapproved of that name, and chose, in preference, the name of Thorpe.  In 1804 she returned to London — they then cohabited together; he under the name of Mr Thorpe, and she under the name of Mrs Thorpe; he taking a house, and keeping a house, paying bills, and carrying on other transactions in that name.”

In the month of September in that year, a Roman Catholic marriage was celebrated between them, and she assumed his proper name of Wakefield with his full approbation and consent.  After this ceremony, solemnly though not validly performed, she attracted the affections of this witness, Mr Baster.  He admits, upon an interrogatory, “that after the said marriage, according to the rites of the Roman Catholic Church, he himself made professions of love and affection to the ministrant, and endeavoured to prevail upon her to leave Mr Wakefield, and marry him, the Respondent; and, in or about the month of April 1805, he caused banns to be published, in the parish church of Iver , for the marriage of himself with the said Isabella Wakefield, by the name of Isabella Jackson.”

That this offer, on the part of Mr Baster, was produced by any effort of her own, is, I think, repelled by the account which Mr Baster gives — “that he was the person who endeavoured to prevail upon her.”  He describes her as a woman of an engaging person and interesting manners.  The only unfair practice imputed to her is, that she fraudulently concealed the circumstance of her birth and parentage, and pretended a connection with divers noble and illustrious families.  To that fact Mr Baster is the only witness, and he proves, “that she did state herself to be the daughter of the Honourable Mrs Sandford, and that she was connected with the Marquis of Thomond , and other considerable persons.”  That this was done for the purpose of effecting any marriage, or the particular marriage upon which I have now to decide, does not appear.  It might be the gratification of an idle vanity, the purchase of a little present importance, among the persons with whom she was living; and not at all with any view to the effectuating of any marriage; for, upon the whole of the evidence, I see no anxiety on her part to procure the marriage: she had been content to live upon lower terms with Mr Wakefield.  Mr Baster’s admission, upon the eighth interrogatory, proves, I think, that her ambition was not very active in procuring this marriage; for he answers, “that he believes Mr Wakefield frequently entreated, and endeavoured to prevail upon the ministrant to consent to be married to him, and that it was in consequence of such entreaties they were afterwards married to each other;” and when she is married, she does not use the name of Sandford, whose daughter she had represented herself to be, but the name of Jackson.

I see no reason, therefore, to think that this fraud was practised with the intention imputed in the libel — “that she falsely pretended that her real name was Jackson, and that she was related to divers noble and illustrious families, and to a person who had married an opulent West India  planter, of the name of Wells, stated to be her aunt; and that she, having completely gained the affections, prevailed upon the said Daniel Wakefield to consent to be married to her, and she accordingly was so married.”  The representation being, that, on the contrary, it was he who endeavoured to prevail upon her, and that she consented to this marriage in consequence of his solicitation.

I see no reason to think that this fraud had that effect upon Mr Wakefield; because, from his answers, I collect it to have been his general persuasion, that she was the daughter of this person — the same as she is described to have been in the libel.  But taking the fact to be otherwise, that a fraud had been practised with this view, and that it had been successful — that Mr Wakefield had been captivated by this pedigree, which she had assumed to herself — still that will not, in the least, of itself, affect the validity of this marriage.  Error about the fortune or family of the individual, though produced by disingenuous representations, do not at all affect the validity of the marriage.  A man, who means to act upon such representations, should verify them by his own inquiries; The law presumes that he uses due caution in a matter, in which his happiness for life is so materially involved; and it makes no provision for the relief of a blind credulity, however it may have been produced.  I must, I think, lay all that matter, both in point of fact and in point of law, out of the question; and must consider this case, as confined to the legal question, arising upon the fact of her being married, under the name of Jackson, by proclamation of banns, when she had borne the several names that I have recited.  To prove a nullity of marriage, it must be shown, to the satisfaction of the Court, that Jackson is an untrue name.

The libel pleaded, that she was the natural and the lawful daughter of John and Ann Mackay, with whom she is proved to have lived much, and whom she is proved to have treated with great filial affection, as she did likewise a brother and a sister with much sisterly affection.  The fact established, however, by the evidence of her mother, and of two other persons who are examined, is clearly what I am bound to take, as the real fact of the case upon this evidence — that she was the daughter of Ann Mackay, whilst a spinster, under the original name of Jackson.  There is no evidence who was the father of this child; but, at any rate, she is not to be considered as the natural and lawful daughter of John and Ann Mackay.

It was said by the counsel, that the party, having set up a legitimacy, had no right to avail himself of what turned out to be the fact — the contrary evidence of illegitimacy.  I am of opinion, however, that Mr Wakefield has a right to use any evidence introduced into the cause by either party, if he can arrive at the conclusion that Jackson was not the true name by any other means, and that he has a right to avail himself of the benefit of that conclusion, however obtained.

It occurs to me that there are three possible ways in which this case may be put, on the one side and on the other.  First, that any one of these names was a sufficiently true name, so long as she continued to go by it.  Secondly, that none of these names can be considered as a true name; for that the circumstances of her birth and fortune were such, that she never acquired what the law can consider as a true name; and, thirdly, that only one of these several names can be deemed the true name of the party, and that the Court is bound to ascertain that name, in order to determine upon the validity of this marriage.  That any one of these names is a sufficient name for the purpose, was asserted upon an authority entitled to great respect, namely, that of the Master of the Rolls , Sir Joseph Jekyll , who, in the case of Barlow v Bateman (3 Peere Williams, 65), lays down, certainly in very unequivocal terms — that any one may take upon him what surname, and as many surnames, as he pleases; and for the term during which he uses such a surname, if he has a right to use it, it is what cannot be denominated an untrue name.  I am far from meaning to trench upon the reverence due to any assertion of that great man, when I say, that the solid grounds, upon which this proposition of law is stated, do not appear to have occurred to him just at the moment of the delivery of that judgment — because the reasons stated in that report, can hardly, I think, be deemed satisfactory to produce such a conclusion.

It is stated that the reasons are, first, that surnames are not of very great antiquity.  It is pretty well now established, that surnames were fully in use, even among the common people, by the reign of Edward the second , which is now five hundred years ago, a pretty reasonable period for the establishment of any legal usage.  It is likewise observed, that, in ancient times, the appellation was by the christian name, and place of habitation — as Thomas of Dale, but which of Dale is of itself merely a surname, a local surname certainly — but not less a surname on that account; for surnames were local, either taken from places of habitation, or descriptive from other circumstances, that belonged to the individuals, to distinguish men who were not at all distinguished by Christian names: They are, many of them, general appellatives.  Christian names are scattered about among the mass of the people, with such profusion, that convey little or no distinction, and the very introduction of the surname was to discriminate that, which was not before discriminated.  It is observed too by Sir Joseph Jekyll, that the usage of an act of parliament for a name is but modern.  Certainly it is; and so are Acts for many other private family concerns: They are of modern introduction.  But there has been a practice of great antiquity, that is, the grant of a licence, for the assumption of a name, by the Crown, passing through one of its public offices: Certainly, the ancient style of the ancient offices of the Crown is of great authority upon such a subject.  However, I would observe likewise upon the confusion that must be produced, to a degree that would compel a legislative correction; if the practice at all followed this rule, that every one might take what surnames he pleased, and when he pleased: The whole world would be at hide and seek about identity, in the concerns of almost every individual.

However, I am content, as perhaps I ought to be, to take the mere assertion, coming from so venerable a person, confirmed, as it may be, by other authorities of the like kind. — But, taking it as generally true, I think, that the particular case of the Marriage Act [1753] might be admitted to form an exception.  The marriage, except in case of a licence, is to be performed by proclamation of banns, which is to designate the individual, in order to awaken the vigilance of parents and guardians, and to give them an opportunity of protecting their rights.  It therefore requires that the true name should be given to them, evidently considering that a name, assumed for the occasion, is a name that will not answer the purposes of the provisions. — Accordingly this Court has conceived itself to be carrying the intention of the law into effect, when it has annulled marriages, where a false name has been inserted in the banns, though no fraud were intended; upon the ground, that such proclamation was no proclamation referring to that marriage, but to another transaction; the marriage therefore was without proclamation of banns, and consequently illegal.  There was a fraud, a want of fidelity and truth, in the application of the banns to the marriage, though there might be no fraud in the original intention.  It is therefore, I think, clear, that if there is a true name, that true name must be used; it may be a name less notorious to the world, than some name which the party has thought fit to assume, but is not less the true name on that account; it is the name which, it is presumed, her relations, her parents, her guardians are the best acquainted with, and, therefore, the name which ought to be applied upon such an occasion, provided she is possessed of such name.

But, it may be said, in the second place, that, under the circumstances of this person’s birth and fortune, she never did become possessed of that which the law would consider as a true name.  It is, I think, a possible case that there may be no true name, ascertainable as belonging to a particular individual.  Suppose the illegitimate child of a person of vague and erratic habits, who has been tossed about the world in a variety of obscure fortunes and situations, who has, at different places, been passing under different names — the child of such a person, at a marriageable age (and that, in the female sex, is a very early age) may not be possessed of any name, so clearly established.  She has none from her birth, and there may be none so clear, as to be depended upon for so serious a purpose, as that of invalidating the marriage.

What would be the rule of law in such a case?  In my opinion, it would be that such a person would be out of the statute.  The law presumes, as is generally true, that every person has a name; but the law, which presumes that, and calls for that name, does not compel parties to impossibilities; and if the party is not possessed of that which can be considered as a true name, it would not be unfair to judge of the marriage of such a person, upon the old footing of the canon law, which requires banns as matter of regularity, but not as matter necessary to the validity of the marriage.  Perhaps those, who have attended to the evidence, and the long and elaborate arguments, which, in this case, have been constructed upon them, may be disposed to entertain an opinion, that this very case approaches something towards that description.  Here is an illegitimate child, with very little history applying to the early periods of her life, assuming a succession of five different names before she marries — certainly it must be admitted, that it is no easy matter to ascertain, what has a right to be considered as the true name of this individual, under all these circumstances.

It may, however, be said, that the legislature has held out, that every person has a true name, and that it is the duty of the Court, in this case, for the determination of this suit, to decide which of these several names is that, which is best entitled to that character.

Five names have been stated — three of those, I think, have been very much dismissed out of the argument; the names of Lascelles, Thorpe, and Wakefield, though she used them for a considerable time; they were all of them presents from Mr Wakefield, the last of them, in consequence of the ceremony of the Roman Catholic marriage, which had taken place between them.  But the question has turned, as, I think, it ought to turn; upon the competition between the claims of the name of Mackay, and the name of Jackson, which of them is to be considered in the character of the true name of this individual.

I will state the evidence which applies to these names.  Six witnesses have been examined, two only of these six witnesses speak of her under the name of Mackay.  Of the other four, Pudderphat and Garnett knew her only under the name of Lascelles, during the years 1801 and 1802.  She lodged with Pudderphat during the year 1801, and with Garnett, during part of the year 1802, by that name.  Mr Baster appears to have known her only by the name of Thorpe till she took the name of Wakefield, upon the Roman Catholic marriage, on the 6^th of September 1801.  Turner, who was a porter at the Inn of Court, carried messages to her from Mr Wakefield; but under what name or names she then passed, or where she was living, this witness does not describe.  There are only two witnesses who speak to the name of Mackay; the one is a Miss Gray, then an assistant to Mrs Bayley, who kept a Roman Catholic female boarding school at Hammersmith, who proves, that she was a boarder for an entire year, under the name of Mackay, till January 1794, being then a child of about eight years of age.  The other witness is Mr Andrews, a perfect stranger to the family, but who was introduced to the knowledge of her, by a memorable transaction of her life — He is the surgeon of the police office in Bow Street, and was brought in to attend a child, who had been forcibly violated by a person of the name of Murphy, who was afterwards convicted of the crime.  This was in August 1794, and he identified this person to be the child that he had attended, bearing the name of Mackay.  Copies of affidavits which were then made, in which she describes herself as Isabella Mackay, and her mother describes her under the same name, are produced to the Court.

It was observed very justly by the counsel for Mr Wakefield, that this was a very serious transaction; but the name of the party injured was, certainly, not the most material part of this serious transaction; for the crime was the having deflowered a child of that tender age — be it Mackay or be it Jackson, it made no sort of difference in the offence of the party, or the punishment he was subjected to in consequence of it.  These are the only witnesses who speak to the name of Mackay, one, during the whole course of the year 1793, the other, in a detached transaction, in the summer of 1794.  It is a possible thing, that this defect of evidence may have arisen from the course of the cause; for, having pleaded, as I presume the counsel supposed at the time, that she was a legitimate child, they might, perhaps, have relied upon the presumption of law, necessarily arising from thence, that she must be of the name of her father and mother; but the fact failing, the inference fails, and that fact is as necessary to be proved, and directly proved, as any other fact in the case.

Now there is no evidence whatever, arising from the depositions that are produced, before the year 1793, when she was a child of eight years of age; and this transaction, which I have just noticed in August 1794, that applies the name of Mackay to her.  There is an entire blank in the history from that time, till she emerges as Mrs Lascelles in the year 1801.  It is true, that there is, upon her answer, an admission to this effect — that she did, at times during her childhood, pass by the name of Mackay.  In the first place, I most observe, that this admission is that which the Court has hardly a right to notice, because it is perfectly extra-articulate and gratuitous, there being no allegation in the libel, that requires any answer to such a proposition, and therefore the admission finds its way there without any effect.  Next, I must observe, that the admission is pregnant with a contradiction; for when she admits that, in her childhood, she passed by the name of Mackay, she insinuates that she passed, at other times, by some other name; but that name does not appear.  It goes no further than this — supposing that to be an admission which I could notice — that, at times, she, as was natural, living in their family, did pass by the name of Mackay: Such is the whole amount of the evidence that applies to this name.

Now, what is the evidence that applies to the name of Jackson?  She is born an illegitimate daughter, the mother gives her the name of Jackson, naturally and properly; because, though, in point of law, she is nullius filia, yet, in fact and in nature, she is of the blood of the mother, who produced her, and therefore properly and usually designated by the name which the mother bore.  The mother swears, that at her birth she was described as Isabella Jackson; not, I presume, in the baptismal rite itself, where only the christian name is conferred, but in some register, some record, some formulary or other, that was applied to that ceremony.  The mother swears, that at the other sacrament for adult Christians , she took it under the name of Isabella Jackson; it being the practice of the Roman Catholic church to receive the confession  of the party in the preparation for it, and to make herself known by her name as a person duly prepared: she went through the ceremonials of that holy rite under the name of Isabella Jackson.  She did other acts likewise of a solemn nature under the same name.  In 1804 she is married by a Roman Catholic marriage to Mr Wakefield, as Jackson, without any adequate motive for a fraudulent use of that name, as far as appears, or without any reason for it than her own apprehension, that it was the name that properly belonged to her, her mother attending at that ceremony, sanctioning the use of that name, and meaning, most certainly, not to destroy the validity of that marriage afterwards, by the use of an improper name upon the occasion.  The mother swears that it was generally understood afterwards, that her real name was Jackson.  How that may be I cannot say, but this clearly appears, that Mr Baster understood it to be so, because when he gave in the banns, to be published at Iver, the year following, he described her as Isabella Jackson; therefore he certainly understood, at that time, that the name of this person was Jackson.  Lastly, when, near a year after the Roman Catholic marriage, she comes to this marriage, she again appears by the name of Jackson; — she is proclaimed in the banns, and married under that name.

Then taking all this evidence together, that it was the name of her mother; that it was the name impressed upon her at her birth; that she has used that name in the most solemn acts of her life, civil and religious, and at various periods of her life, which has not been a long one; I say, taking that evidence, and comparing it with the evidence on the other side, which embraces only a very short period of her eventful life; the Court would not be warranted to say, upon this evidence, that Jackson is so clearly demonstrated to be the untrue name of this person, if she did possess a true name, as to destroy the validity of the marriage.

I am the less disposed to sustain the objection to the validity, because Mr Wakefield has his remedy.  If it is a nullity, upon this ground, it is a nullity ipso facto, and ipso jure, under the statute, and which may be pleaded, upon any occasion, in which she claims to be considered as his wife.  It is a matter which may be put in issue, and may be established upon other evidence to the satisfaction of a jury, under the direction of the Judge, if he is able to produce such evidence.  But, upon this evidence, I am clearly of opinion, that the name of Jackson is not demonstrated to be other, than the true name of the party, and, therefore, I dismiss the party from all other observance of justice in this cause.

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Orders of the court

Suit dismissed.