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Decisions of the Superior Courts of New South Wales, 1788-1899

Ex parte Lacelles [1833] NSWSupC 98

habeas corpus - Dowling J., affairs of - married women's legal disabilities

Supreme Court of New South Wales

Dowling and Burton JJ, 8 November 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266[1 ]

[p. 151] [Ex parte Lacelles, calling himself Edward Lord Viscount Lacelles son of Earl Harewood.  In re Lilius Dickson.]

Lacelles in person applied for a Habeas Corpus to be directed to Thomas Barker of Sydney, Miller, commanding him to bring up the body of one Lilius Dickson, alleged to be illegally detained in the custody of Barker, against her, & his (Lacelles) consent, in order that she might be delivered to him, as his (Lacelles) lawful wife.  The applicant set forth an affidavit, that on 21st April last he & Miss Dickson [p. 152] entered into a marriage contract, which had been [?] & consummation affected - that she had lived with him as man & wife, & that she had repeatedly acknowledged him, in the presence of witnesses to be her lawful husband.

The affidavit failed to state before whom & by whom the marriage was celebrated, or even to mention the name of any other person privy to the transaction.  There was nothing to shew that the lady had in any way recognized the marriage, either by act, amity, or any mode of acknowledgment.

Dowling J. & Burton J therefore rejected the application at once. -

Reposed.  (Forbes C.J. was confined to the House by illness. -)

[p. 153] Note: My nephew Willoughby Lewis Dowling was at this time (as I was privately informed) paying his addresses to Miss Dickson, & married her in the month of January 1834.  She was one of the natural children of a miller named Jn Dickson, who had resided many years in New South Wales, leaving his wife in Scotland.  He had cohabited many years with another woman & lived with her in Sydney, & had several children by her - Lilius Dickson being one.  Her mother was a convict as I was told, but this is doubtful.  Dickson was a notorious atheist, & otherwise a person of questionable reputation.  In July 1833 he absconded from a charge of forgery, having been committed by the Sydney Bench, but admitted to Bail.  (See the case of Brown v Dickson Vol. 85. p 84.)  It was privately admitted to be true, & I [p. 154] was privately informed of the fact by Dr. Bland, (the Doctor attended my family at this time) who was [?] with Dickson, that Lacelles had clandestinely paid his addresses to Lilius; that this fact being discovered by the father, the latter flew into a rage, & struck his daughter with a chair.  Thereupon she left her father's house, & placed herself for one night under the protection of Lacelles, who next day delivered her up to her father at the intercession of the Doctor.  It was understood & believed that nothing improper in fact, took place between the lady & Lacelles during this interval.

Lacelles had privately applied for a Habeas Corpus to the Judges.  But this [p. 155] application was refused by all the judges.

Mr. Barker & the other parties interested, prayed to be permitted to contradict on oath what had been sworn to by Lacelles, concerning cohabitation & consummation, but the judges thought there was no case made out which called for an answer.

The young lady was said to have a light reputation, in consequence of too much familiarity with one or two other persons of the opposite sex, independently of her acquaintance with Lacelles. -  I have been credibly informed that Mr. Keith (Himself a man of no reputation), an attorney of the Court, undertook to demonstrate this additional circumstance of disqualification, to render the young lady [?] an [p. 156] eligible match for Willoughby.

I have never been informed what steps were taken in pursuance of this undertaking - though Willoughby was informed of it.  (As Jw Rogers informed me, & that he himself was the communicant to Willoughby of what Keith had to state.)  Nevertheless he got married according to the forms of the Scotch Church, he being a Protestant of the Church of England.  It was never resolemmized by the rites of the Church of England.

There being a cloud hanging about the personal reputation of Lilius, I could never reconcile it to my sense of respect for the honest & virtuous prejudices of the world, to regard her as a member of the Dowling family - however, I might have been disposed to get over pedigree & connexions.


[1 ] See also R. v. Dow or Lascelles, 1835. On this extraordinary man, see Kirsten Mackenzie's fascinating book, A Swindler's Progress: Nobles and Convicts in the Age of Liberty, UNSW Press, 2009; and see Baron Charles Hugel, New Holland Journal November 1833-October 1834, transl. And ed. By Dymphna Clark, Melbourne University Press, Melbourne, 1994, pp 298-299

Published by the Division of Law, Macquarie University