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 A 
 
 DIGEST 
 
 ON THE 
 
 LAW OF SCOTLAND, 
 
 RELATING TO MARRIAGE. 
 
 BY 
 
 PETER HALKERSTON, LL.D. 
 
 A. M. S. S. C. F. R. P. S. 
 
 AUTHOR OF THE COMPENDIUM OF THE FACULTY COLLECTION OF DECISIONS^ 
 CONTINUATION THEREOF. — TRANSLATION AND EXPOSITION OF THE TECH- 
 NICAL LATIN PHRASES IN MR. ERSKINE'S INSTITUTE AN EXTENSIVE COL- 
 LECTION OF LATIN MAXIMS IN LAW AND EQUITY, FROM THE CANON, CIVIL, 
 
 FEUDAL, SCOTS, AND ENGLISH LAW, WITH AN ENGLISH TRANSLATION. 
 
 ANALYSIS OF THE LATE ACT OF PARLIAMENT, AND ACTS OF SEDERUNT, RE- 
 GULATING THE PROCEEDINGS IN THE COURT OF SESSION AND JURY COURT. 
 A VINDICATION OF OUR MARRIAGE LAW IN REFERENCE TO THE TRIAL OF 
 EDWARD GIBBON WAKEFIELD, FOR CONSPIRACY AND ABDUCTION OF MISS 
 TURNER, AND A TREATISE ON THE PALACE, LAW, AND PRIVILEGES OF THE 
 SANCTUARY OF HOLYROODHOUSE. 
 
 " I had a purjiose to make a particular Digest or recompilement of the laws of 
 my own country." — Bacon. 
 
 EDINBURGH: 
 PRINTED FOR THE AUTHOR, 
 
 AND 
 SOLD BY ALL THE BOOKSELLERS. 
 
 M.DCCC.XXXI.
 
 EDINBURGH '. 
 PRINTED BY A. BALFOUR AND CO. NIDDRY STREET. 

 
 ^ Ha 
 
 .S^^H/3 
 
 
 % 
 
 1 
 
 CM 
 •«* 
 
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 TO THE 
 
 RIGHT HONOURABLE 
 
 WILLIAM SCOTT LORD STOWELL. 
 
 &c. &c. 
 
 Mv Loud, 
 ^ In dedicating the following work to your 
 
 2 Lordship, by your kind permission, I feel myself 
 
 3 much gratified, not only for the approbation which 
 you have been so kind as to bestow upon a plan 
 or sketch of the work submitted to you, but in 
 having the happiness and favour of your Lordship's 
 patronage to the undertaking. 
 
 ^ I beg to be permitted to take this opportunity of 
 offering the humble tribute of my testimony to the 
 <p universally knowi;i and acknowledged talents and in- 
 R tegrity with which your Lordship has so highly 
 \f adorned the character of the administration of the 
 Q law, in the important branches of judicature your 
 Lordship has filled, and to the exalted rank which 
 your Lordship holds among the great characters who 
 have raised our country to the height of fame on 
 which it presently steinds ; and I trust sincerely 
 your Lordship will, in the kind disposals of Pro- 
 vidence, be long preserved.
 
 IV DEDICATION. 
 
 But in dedicating this Digest on the Law of Mar- 
 riage to your Lordship, I feel it my duty particularly 
 to notice the high estimation in which your Lord- 
 ship's elucidations and decisions on that branch of 
 the law are held, while your Lordship occupied the 
 high station of Judge of the Court of Arches in 
 England, then corresponding to the Consistorial 
 Court of Scotland, which by Act 6, Geo. IV. c. 120, 
 was transferred to the Court of Session in Edin- 
 burgh, and in minor cases to subordinate jurisdic- 
 tions ; and especially the profound knowledge dis- 
 played by your Lordship in all consistorial ques- 
 tions, in which the law of Scotland on that branch 
 came under your consideration, the most important 
 of which was the celebrated and distinguished case of 
 Gordon v. Dalrymple ; — in all of which, the autho- 
 rity of your Lordship has, in this country, as else- 
 where, obtained the highest consideration. 
 
 I beg only farther to assure your Lordship of the 
 very grateful feelings I entertain for the kind notices 
 of attention and regard which you have been pleased 
 so condescendingly to bestow upon me personally. 
 I have the honour to be. 
 
 My Lord, 
 
 Your Lordship's very obedient and 
 
 obliged humble Servant, 
 
 PETER HALKERSTON. 
 
 Edinburgh, 2m May 1831.
 
 PREFACE. 
 
 In submitting to the eye of the public the first 
 volume of the Digest on the Law of Marriage, in 
 reference to Scotland, it may be necessary to men- 
 tion, that when, for the period of ten years, the 
 Author acted as one of the examinators of interim 
 members of the Society of Solicitors of Supreme 
 Courts, (of which he was Librarian for a longer pe- 
 riod,) he uniformly took for his subject the title 
 of marriage, which became familiar to him ; and 
 discovering, that at this time no writer on our mar- 
 riage law had written a work entirely on the subject, 
 he at once formed the resolution of putting do\vii 
 his ideas upon our marriage law ; and after hav- 
 ing consulted many authors, ancient and modern, 
 and from time to time thrown together the notes 
 he had taken, he found that the subject had grown 
 to a considerable size of interest and importance, 
 which it might be necessary for the public to be 
 made acquainted with, and of which he was ap- 
 prised by some eminent and learned persons best 
 calculated to decide upon its merits. The work 
 having been attended with more than ordinary la- 
 bour and industry for years, the Author still found 
 that the sketch of the subject he had made out was 
 unsatisfactory, which led him to form various plans, 
 until at length he discovered one of an excellent and 
 dignified nature, and such as made ample amends 
 for the sacrifices and labour of many months to 
 mature and reduce to useful practice. By it, was 
 fixed as unalterable, that all the consistorial ques- 
 tions which came to be decided in the Court of Ses- 
 sion since its institution, were to be included uiuler 
 appropriate heads and titles, with the names of the
 
 VI P HE FACE. 
 
 parties, dates, and authorities ; a state of each case, 
 the arguments on both sides, with the decision of 
 the Court, or House of Peers, to where it may have 
 been carried by appeal. Of the value of this plan 
 in particular he was apprised by a learned Law 
 Lord, to whom, by his kind permission, the work 
 is dedicated. 
 
 From the work itself — the copious table of con- 
 tents — alphabetical index materiarum — tables of 
 cases — and alphabetical list of the pursuers' and 
 defenders' names ; this plan will in some measure 
 be exhibited, but in the end of the second volume 
 it will be given as an entire whole. 
 
 With due submission, this work will be of great 
 utility to the public, and to every father and child 
 of the realm; the judges and practitioners are es- 
 pecially interested in it, as at once, without any 
 trouble, they will discover most interesting cases ful- 
 ly decided, and thereby be the means of saving them 
 many anxious and fatiguing researches into other au- 
 thorities. It might be unnecessary here to mention 
 many of the 118 cases here discussed, but the Author 
 cannot help mentioning a fev/, viz. the international 
 cases, Forbes v. the Countess of Strathmore, M*Cul- 
 loch V. M'Culloch, Shedden v. Patrick, the latest of 
 which was that of Munro or Rose v. George Ross, 
 Madame Sassen v. Sir James Campbell ; also under 
 different titles, the cases of Edmonston v. Edmon- 
 ston, Forbes v. Forbes, Levit v. Levit, Pennycuick 
 V. Grinton, Cameron v. Malcolm, Walker v. M'Adara, 
 Jean Laing v. George Reid of Ratho-bank, Gordon v. 
 Dalrymple, and Lady Campbell and Children v. Sir 
 J. R. B. Honey man, Bart, and many others, with
 
 PREFACE, Vll 
 
 the speeches of Lords Stowell, Redesdale, Eldon, 
 Lyndhurst, Brougham, and others, at delivering judg- 
 ments in some important cases treated of in the work. 
 In short, from this laborious work, and the copi- 
 ous contents and indexes contained in it, there will 
 be discovered such various interesting matter as to 
 lead to a conviction of the arduous nature of the 
 undertaking, and such as the Author hopes will af- 
 ford him some consolation, that his exertions have 
 not proved abortive, and besides, may be the means 
 of correcting abuses, if any su.ch exist, that may 
 have crept into the system. 
 
 That some mistakes may have occurred in a first 
 work of this description, where there are so many 
 names, dates, titles, and authorities of ancient and 
 modern times, it may not appear surprising, but 
 not of such a nature as to lead to error and miscon- 
 ception. 
 
 In reference to the purity, liberality, and sanctity 
 of our marriage law, the Author, in the introduc- 
 tory part of the title of promise and subsequent co- 
 pula, observes — 
 
 In the jurisprudence of every civilized and en- 
 lightened community, women are favoured objects, 
 and accordingly our law throws around them ample 
 protection in their just rights ; and will not suffer 
 them to be ensnared without remedy, especially in 
 the mode of contracting marriage by a previous so- 
 lemn promise, followed by sexual intercourse ; and 
 seeing this is part of our law, and has been so from 
 the earliest times, and since the Reformation, due 
 effect ought to be given to it. 
 
 And in the end of the same title the following in- 
 ference is drawn — Thus we see that a promise, foi-
 
 VIU niEFACE. 
 
 lowed by a copula, establishes marriage, and that 
 the promise, with the exception of a regular court- 
 ship, can only be instructed by the oath or writing 
 of the man, and that the copula may, from its hid- 
 den nature, be proven by witnesses, even by near 
 relations, cum nota. And it is, therefore, a mistake 
 to suppose, that a promise can be proved by wit- 
 nesses, who are either low or corrupt. Even if they 
 were respectable, they could not be admitted to 
 prove the promise, because promises of this descrip- 
 tion may be easily mistaken, and may have in pros- 
 pect a future circumstance of an indelicate nature, 
 which it is not natural to suppose would be matter 
 of publicity. In every view the man is sufficiently 
 protected, and without committing perjury against 
 himself, he can suffer no injury ; nor can it be 
 deemed injustice to hold him bound, when he him- 
 self admits, that, under the honourable promise of 
 marriage, he has violated the chastity of a virtuous 
 woman, influenced by the tenderness of her affec- 
 tion for him, and by her generous confidence in his 
 integrity. Men ought, therefore, to be admonished 
 in their intercourse with the fair sex to observe the 
 same principles of candour, honour and truth, as 
 they do in their transactions with one another, and 
 strictly to observe the golden rule, quod tibi fieri 
 non vis alteri non Jeceris, and assuredly they will 
 be safe. It is a happy characteristic of our law, to 
 render it incumbent on them to be so. In this re- 
 spect, therefore, as well as in its important effects 
 on the purity of manners and population, our law 
 appears to possess an advantage which ought to be 
 an object of approbation and not of censure.
 
 CONTENTS. 
 
 Page. 
 Dedication to the Right Honourable Lord Stowell, iii 
 Preface, . . . . . v 
 
 BOOK I. TIT. I. 
 
 The first glorious Ordinance of the Almighty was 
 
 Marriage, . . . . . 1, 2 
 
 Definitions of Marriage, by M'Kenzie, Stau', Bank- 
 ton, Erskine, Confession of Faith, Professor 
 Brown, Dr Dwight, and Dr Taylor, . 2 — 15 
 
 Tlie Wonderful Formation of Adam by the Hand of 
 God, ..... 4 
 
 Adam's Likeness to God — His Noble Faculties and 
 Powers, and his Government over the Inferior 
 Creatures, .... 5 
 
 Adam alone — ^his Contemplations in Paradise, -6 
 
 God knowing the tendency of Adam's Nature, si- 
 multaneously, (on the day of his formation,) pro- 
 vided a help meet for him, . . . ib. 
 
 The Formation of Eve from a Rib taken from Adam's 
 left side, nearest to his heart, while asleep, . ib. 
 
 This Jewel, or rib, a woman, God presented to Adam 
 as a Bride to a Bridegroom to be married to him, 7 
 
 Milton's sublime and lofty language in the formation 
 
 of Eve; (ho Nuptial Sanctity, and Marriage Rites, 7, 8
 
 X CONTENTS. 
 
 Page. 
 
 Man shall leave Father and Mother, and shall cleave 
 
 unto his Wife, and they shall be one flesh, . 8, 9 
 
 How completely suitable did God provide a help 
 meet for Man, .... 9 
 
 Milton's exalted strains of Wedded Love in Paradise, ib. 
 
 A Contention of Mutual Love, Affection, Benefi- 
 cence, Forbearance, and Forgiveness, should be 
 the only strife in the Connubial State, . 10 
 
 The Angel Raphael's Farewell advice in Paradise to 
 Adam to love Eve, . . . 11 
 
 One Male, and one Female, were the first Progeni- 
 tors of the Human Race, . . . ib. 
 
 Noah's sublime and affectionate Address to his Wife, 
 on the appalling event of the flood, as related by 
 Ovid, ..... 12 
 
 Translation of Noah's Address — the same attempted 
 in verse, ..... 13 
 
 Ruth's affectionate and pious Language to Naomi, ib. 
 
 Marriage is founded in the Nature and Constitution 
 of Man — Justinean, Bankton, and Dr Gilbert 
 Stewart, ..... 14, 15. 
 
 Woman is the Stay and Solace of Man — she is his 
 Joy and Comfort in Adversity, . . 16 
 
 Woman's Eyes are Fair as the light of Heaven, and 
 show, contain, and nourish all the world, . ib. 
 
 A Good Wife is a crown, an honour, and cause of 
 wealth and power to her Husband ; and Children 
 are a crown to their parents, . . 17 
 
 Astonishing examples of Woman's affection, and her 
 
 exalted Character in the Connubial State, . 17, 18 
 
 The Communication of Good is the conspicuous 
 
 source of Enjoyment in the Deity, . 18, 19 
 
 Libertines, their Character — they attempt to shelter 
 themselves under the mistaken notion, that the 
 Apostle Paul discourageth Marriage, . 19 — 22
 
 CONTENTS. XI 
 
 Page 
 
 The Transcendent Language of Scripture to love one 
 
 another, . . . . 22, 23 
 
 There is no Fear in Love, 1 John iv, 18. Love is an 
 Enemy to distance and formal respect, . 23 
 
 Men often want Sincerity, and foolishly trifle with 
 the softer feelings of the Fair Sex — a striking in- 
 stance of this, .... 24, 25 
 
 Celibacy is a Misfortune to any Country — in Ancient 
 Greece and Rome Punishments were inflicted upon 
 Single Persons, . . . 25 — 27 
 
 The Feudal casualty of Marriage as peculiar to ward 
 
 abolished by Act Geo. IL c. 50. . . 27 ' 
 
 Interesting Lines of Nuptial Pates, . 28 
 
 In Scripture no instance is to be found of Marriage 
 being performed by a Priest, . . 29 
 
 Marriage is a Civil Contract, and ought to be Free, ib. 
 
 The Difference betwixt Marriage Regular and Irre- 
 gular, .... 30 
 
 Text Writers and Doctrine of our Marriage Law, 31 — 37 
 
 The Modes in which Marriage may be Established, 37, 38 
 
 BOOK L TIT. II. 
 
 OF THE DISABILITIES OF MARRIAGE, 39 
 
 1. I*upillarity in the Sexes creates disability to Marry, ib. 
 
 A Man may marry when 14, and a Girl at 12, 
 when both are presumed capable of consent, ib. 
 
 Exposition of the adage, nisi malilia suppleat 
 
 aetatcm, . . 40, 41 
 
 2. Inipotency or Sterility is another disability, 47
 
 XU CONTENTS. 
 
 Page 
 
 3. Idiotry or Furiosity is a third, . 49 
 
 4. Forbidden degrees by Consanguinity or Affinity a 
 
 fourth, . . 52 
 
 5. Bigamy or Polygamy likewise disables persons to 
 
 Marry, . . 55 
 
 6. The last disability is the Crime of Adultery, 59 
 
 The Levitical law of Adultery, . ib. 
 
 Punishments of Adulteries imposed by Mary, 
 
 1563, and James 1581, . 60, 6 1 
 
 The Adulterer cannot marry the Adulteress, 
 and vice versa, and their issue declared 
 spurious, . . 60, 6l 
 
 Punishments imposed upon Fornicators, 6l 
 
 Damages awarded to Wives against their Hus- 
 bands for the Crime of Leocinium, ib. 
 
 BOOK I. TIT. III. 
 
 OF CONSENT. 
 
 Introduction to this interesting title, . 63 
 
 At what period Marriage was considered to be a Sa- 
 crament, . . . ib. ^^^ 
 
 The Roman law held Marriage to be a Civil Contract, 64 
 Material alteration in the Form of the Contract af- 
 ter the Reformation, . . ib. 
 
 Our Marriage law is a Consensual Contract, ib. 
 
 Our Institutional writers upon this head, . 64 — 66 
 
 In ancient Rome there were three ways of contract- 
 ing Marriage, usus, conjarreatio, and coemplio, 68 
 
 History of the Council of Trent, (held in Germany 
 upon the Alps) in 1563, which, with little inter- 
 mission, sat 18 years, . . 69
 
 CONTENTS. XUl 
 
 Page 
 The Council of Trent recognised by France, 69 
 
 The Marriage law of Holland, . 70 
 
 The Statute of Geo. II. c. 33. introduced a new rule 
 
 in the Marriage law of England, . ib; 
 
 The Athenian Marriages, . . 71 
 
 The ancient Marriages of the Jews, . ib. 
 
 The Marriages of Arminians, Georgians, and Circas- 
 sians, . . 73 " 
 The IMarriages of the Friends or Quakers, 73 — 75 
 Free consent is the Essence of Marriage, . 76 
 INIosaic Institutions of Marriage, . 77 
 Origin of the Scots Law of Marriage, . 78 
 Debate in the Council of Trent as to the Validity of 
 Marriage, i£ contracted by children living iii fami- 
 lia without the consent of their Parents, . 79, 80 
 Former Marriages not declared Null by the Council, 8:2 
 Introduction of Proclamation of Banns into this Coun- 
 try, . . 82, 83 
 The Council of Trent declares all Marriages Null un- 
 less celebrated by a Priest, . 83 
 Debates in the Council. — See Pallavicino's History of 
 
 the Council, . . 84 
 
 See Huber, Vinnius, Voet, Cujacius, and other Ex 
 pounders of the Civil Law, 
 
 ■| 86—90 
 
 BOOK I. TIT. IV. 
 
 OF MARRIAGE IN FACIE ECCLESIAE, 91 
 
 Lord Karnes' Account of Ancient Scots Marriajres, 
 traced to the remote times of Tertullian and St. 
 Ambrose in the Second and Third Centuries, 91, 92 
 
 Christian Faith introduced into Scotland through the 
 Ministry of Palladius about the year 4.30, 92
 
 XIV CONTENTS. 
 
 Page- 
 Proclamation of Banns in Scotland through the Pon- 
 tificate of Innocent III. in 1216, resumed 93 
 
 Kirk of Saxon Origin, and signifies Church, or the 
 House of God, . , j|tj_ 
 
 The First Book of Discipline, drawn up by the Rev. 
 Messrs. John Spottiswood, John Knox, John Win- 
 ram, John Willoch, John Douglas, and John Row, 
 Ministers, and presented to the Nobility, anno 1 560, 94 
 
 The Reformation was chiefly attributed to John 
 Knox, the great Reformer, . jb. 
 
 Rules for the regular ceremony of marriage, contain- 
 ed in the directory for the public worship of God, 94 g6 
 
 Formula appointed to be observed by the minister 
 and parties upon performing the ceremony of mar- 
 riage, . . . 96—98 
 
 A register of marriages enjoined to be kept by the 
 Session Clerks, but much neglected, . 99 
 
 An account of Scots Penny Weddings, . ib. 
 
 Mary Queen of Scots proclaimed for marriage with 
 the Earl of Darnley, by the Rev. John Brand, 
 minister of Canongate, 21st July, 1565, in conse- 
 quence of a written order, under the hand of the 
 Lord Justice Clerk, . . . 100 
 
 For more than two centuries, the ladies have the 
 sole privilege of proposing marriage to the gentle- 
 men, every bissextile or leap year, which happens 
 anno 1832 — instance of success, . . jb. 
 
 History of the General Assembly, and the acts re- 
 specting the proclamation of banns, and the cele- 
 bration of marriage, • . . 101 — 105 
 
 Injunction to the Session Clerk, as to the regular pro- 
 clamation of banns on three several Sundays — the 
 previous consent of theparties,andthe minister — the 
 domicile of six weeks, and that the parties are not 
 within the forbidden degrees, . . IO6 
 
 Either the crime of adultery, or four years wilful de- 
 sertion, may ground an action of divorce, . 1 07
 
 CONTENTS. XV 
 
 Page 
 
 "D^ 
 
 The ceremony of marriage can only be solemnized 
 by a minister of the established church, or by an 
 episcopal clergyman, 10 Anne (termed the to- 
 leration act) or by ministers of the Secession, 107 — IO9 
 
 History of the Secession from the established church, 
 anno 1730, brought about through the influence of 
 the Rev. Messrs Ralph and Ebenezer Erskine of 
 Stirling, and Messrs. Moncrief and others, 107 
 
 Magistrates and Justices of Peace have no power by 
 law to celebrate marriage, but the parties' consent 
 may be declared before a magistrate or justice of 
 peace, which may afford to the party suing a de- 
 clarator of marriage, an opportunity to prove a de- 
 Whiirate consent de pracsetiti, . . 110 
 
 The text writers of our law, relating to banns and 
 
 celebration of marriage, . . . 110 — 112 
 
 Rule of proclamation of banns at Sf. Andrews, cor- 
 rect, . . • . . 113 
 
 Summary of this title . 114? — llG 
 
 BOOK I. TIT. V 
 
 OF CLANDESTINE MARRIAGE. 
 
 Introduction, . . . . 117 
 
 The Acts \6i!l-l66l-l695-l698, regulate marriage, 
 
 and impose pains and penalties on transgressors, 11 9, 120 
 
 The execution of these acts, intrusted to his majesty's 
 advocate, the procurator for the church, and fiscals 
 for counties, . . . • 121 
 
 Examples of persons being deposed, banished, and 
 
 punished for transgressing the marriage law, 121 — 123 
 
 Our judges are guardians to the injured and unpro- 
 tected, and award damages against persons for 
 breach of promise of marriage. Instances thereof, I2i, 125
 
 XVI CONTENTS. 
 
 Page 
 
 Beneficial effects of marriage, according to Archdean 
 Paley, ..... 125 
 
 Marriage is according to the laws of God and nature, 
 
 and sanctioned by all civilized nations, . 125 — 127 
 
 The power of love is strong as death, ' ib. 
 
 Jacob's remarkable love for Rachael, he served twice 
 seven years for her, and seemed unto him but a few 
 days, for the love he had to her, . . 127, 128 
 
 Christians ought not to be unequally yoked with un- 
 believers, .... 128—130 
 
 The marriage law of the Jews, and the form of their 
 marriage rites, most sublime, kindly furnished 
 with Hebrew translation by Mr. Ashensheim of 
 this city, . . • . 130—133 
 
 The marriage of Isaac with Rebecca, most interest- 
 ing, ... . 133 — 135 
 
 Cohabitation as Man and Wife, . . 137, 138 
 
 Marriage "per suhsequens malriinonium — History of 138 — 140 
 
 Consent de praesenti, by Letters or Declarations be- 
 
 foTe witnesses, . . • l^l, 142 
 
 Induction and General Doctrine of our Law of Mar- 
 riage, ..... 143 — 148 
 
 BOOK II. TIT. I. 
 
 Of Proof, . . . . 3 49 
 
 Of Proof ^cHp/o, . . . .150 
 
 Of Oath of Party, . . • .151 
 
 Of Proof by Witnesses, . • .154 
 
 Of Prohatio prout de Jure, ■ • 3 56' 
 
 0£ Proof Scripto vel Juramenlo, . . 16S 
 
 Cases under this Title, . . . ib. 
 
 Of Proof Parole, . . . . 170 
 
 Cases under this Title, . . < ih;
 
 CONTENTS. XVJl 
 
 BOOK II. TIT. II. 
 
 OF COMPETENT CASES. 
 
 Page 
 Introduction, . ... 204 
 
 Cases under this Title, ... 205 
 
 BOOK II. TIT. III. 
 
 OF INCOMPETENT CASES. 
 
 Cases under this Title, . . .231 
 
 BOOK II. TIT. IV. 
 
 OF FOREIGN AND INTERNATIONAL LAW. 
 
 Introduction, . • . 239 
 
 Cases under this Title, . . 244 
 
 BOOK III. TIT. I. 
 
 OF MARRIAGE IN FACIE ECCLESIAE ANNULLED. 
 
 Introduction, .... 306 
 
 Cases under this Title, . .314
 
 xviii CONTENTS. 
 
 BOOK III. TIT. II. 
 
 OF PROCLAMATION OF BANNS AND RESULTS. 
 
 Page 
 
 Introduction/ • • ^^^ 
 
 Cases under this Title, . _ 324 
 
 BOOK III. TIT. III. 
 
 OF ANTENUPTIAL CONTRACTS OF MARRIAGE. 
 
 Introduction, ! c I ^^^ 
 
 Cases under this Title, • . . 335 
 
 BOOK III. TIT. IV. 
 
 OF IRREGULAR MARRIAGES. 
 
 Introduction, 
 
 OF HABIT AND REPUTE. 
 
 346 
 
 348 
 
 Introduction, 
 
 Cases under this Title, • ^ ^^^ 
 
 BOOK III. TIT. V. 
 
 OF WRITTEN DECLARATIONS DE PRAESENTI. 
 
 Introduction, • - • • ^J^ 
 
 Cases under this Title, . • ^"-
 
 CONTENTS. XIX 
 
 BOOK III. TIT. VI. 
 
 VERBAL DECLARATIONS DE PRAESENTI ESTABLISH 
 MARRIAGE. 
 
 Page 
 Introduction, . . " • 431 
 
 Cases under this Title, . . 432 
 
 BOOK III. TIT. YII. 
 
 OF PROMISE AND SUBSEQUENT COPULA. 
 
 Introduction, . . 455 
 
 Cases under this Title, . . 459 
 
 Alphabetical Index INIateriarum, . 515 
 
 Alphabetical List of Defenders' Names et e Contra 533 
 Table of Cases in Volume I. . . 539 
 
 For more than half a century the English Marriages 
 at Gretna, Coldstream, the Chain Pier, Lamberton 
 Toll, Annan, Berwick, and other places upon 
 the Tweed, are averaged at seven hundred per 
 annum, . . . . 429 
 
 If a domicile of forty days in Scotland was establish- 
 ed, those Marriages from England on the borders 
 might in a great measure be prevented, 430 
 
 Speech of the Right Honourable Lord Stowell, at 
 delivering Judgment in the Case, Gordon v. Dal- 
 rymple, . ... 380-391
 
 XX CONTENTS. 
 
 Page 
 
 Speech of the Lord Chancellor Eldon at delivering 
 Judgment in the Case, Jean Laing v. George 
 Rei(f of Rathobank, . . . 4.11-4.22 
 
 The Speeches of the Lord Chancellor Lyndhurst, 
 Lord Eldon, and Lord Wyndford, in the Case of 
 Munro or Rose v. George Ross, . . 278-'286 
 
 The Lord Chancellor Brougham's Speech in de- 
 livering Judgment in the Case Dame Elizabeth 
 Campbell and Children v. Sir R. B. J. Honey- 
 man, Bart, ... . 48(3-504
 
 A 
 
 DIGEST 
 
 OF THE 
 
 MARRIAGE LAW OF SCOTLAND. 
 
 BOOK I. 
 
 TIT. I. 
 OF MARIIIAGE IN GENERAL, 
 
 Marriage is the grand cement and bond of so- 
 ciety. No subject in human life can be more interest- 
 ing. When prudently considered, and entered into 
 in a becoming manner, it will be attended with the 
 highest state of felicity to the parties themselves, and 
 to their children, who will rise and call them blessed: 
 they will prove ornaments to the state, and useful 
 members of society. Indeed, it cannot be otherwise, 
 when, for a moment, we consider, that marriage was 
 the first glorious ordinance of the Almighty! — that it 
 is according to the immutable Law of Nature — that 
 it has been sanctioned by all nations, from the begin- 
 ning of time, down to the present day, — and that even
 
 2 OF MARRIAGE IN GENERAL. BOOK I. 
 
 the glorified saints in Heaven spring from the human 
 race; and, therefore, all persons who have made good 
 sense to he the rule of their conduct, will hold mar- 
 riage to be the condition in life capable of the most 
 exalted joy, and may well entertain an ambition to 
 make the word JV^ife the most agreeable name in na- 
 ture ; if it is not so, the wisest part of mankind, in 
 all ages, have consented into an error. 
 
 Marriage may be defined to be " Vi?'i et mulie- 
 ris conjunction indwlcluam vitcB consuetudinem conti- 
 nensy'' ^ or, as expressed by Sir George Mackenzie,^ 
 " Marriage is the conjunction of man and woman, 
 vowing to live inseparably together until death." 
 
 Lord President Stair^ considers it to be " a vo- 
 luntary contract by engagement, bacause tlie applica- 
 tion of it is, and ought to be, of the most free con- 
 sent ; and because, in matters circumstantial, it is 
 voluntary, as in the succession of the issue and the 
 provision of the wife and children ; yet that mariiage 
 itself, and the obligations thence arising, ixiejure di- 
 vinoy 
 
 Lord Bankton.* " Marriage, which, in the Canon 
 Law, is termed espousals r/t? ^^r^^i'w//, requires words 
 importing a present consent to that state. It is the 
 conjunction of man and woman in a constant and 
 perpetual society of life. Marriage is perfected by 
 sole consent, for copula and carnal knowledge is only 
 the consummation of it." 
 
 And Mr Eiv^kine,^ our latest distinguished and 
 
 1 Lib. T. tit. 9. § T. dcf. mi p. [,2 B. I. tit. 6. § 1. 
 
 ^ Tit. 4. § 1. 4 B. I tit. .5. § 2. 5 B. I. tit. G. § 1.
 
 TIT. I. OF MARRIAGE IN GENERAL. 3 
 
 learned author, defines it to be " the conjunction of 
 man and woman in the strictest society in life, till 
 death do part them." 
 
 In the Confession of Faith, tho standard of our 
 Protestant Church, we find the following passage.*' 
 "Marriajre is to be between one man and one woman 
 only, and tliey such as are not within the degrees of 
 consanguinity or affinity prohibited by the Word of 
 God, and the parties are to be of years of discretion 
 fit to make their own choice, or upon good grounds to 
 give their mutual consent." 
 
 The late reverend, pious, and learned Professor 
 Brown at Haddington, in his valuable Dictionary of 
 the Bible, under the word Marriage, calls it " a so- 
 lemn contract, whereby a man and a woman for their 
 mutual benefit, and tlie procreation of children, en- 
 gage to live in a kind and affectionate manner ; it 
 seems also to partake of the nature of a vow, and can- 
 not, like other contracts, be dissolved by the mutual 
 consent of the parties." And in reference to the 
 goodness of God, in the constitution of the human 
 race, he beautifully remarks : " A w^oman every way 
 perfect, was provided for Adam's comfort, and the in- 
 crease of mankind." 
 
 From these, and other learned authorities to be 
 found in the Appendix, we may infer, that marriage 
 is, according to the primitive Law of God and Na- 
 ture, for the mutual help of husband and wife — the 
 propagation of the human race — the educating and 
 instructing of their chiltlrcn in the fear and love of 
 
 ' Direct. i>. 547.
 
 4 OF MARRIAGE IN GENERAL. BOOK I. 
 
 God, and training them to be useful members of so- 
 ciety. The more modern, but justly celebrated au- 
 thor, Dr Timothy Dwight, beautifully delineates 
 marriage — " It is," says Dr Dwight, '* the means 
 of comfort to tlje married pair, the preservation and 
 comfort of children, the source of all natural rela- 
 tions of mankind, and the gentle and useful natural 
 affection, the source of all industry and economy, the 
 ground of all education and knowledge, and to civi- 
 lity and sweetness ; the origin of all subordination 
 and government, and consequently of all peace and 
 safety in the world; and finally, the foundation of all 
 religion, as it prevents promiscuous concubinage, and 
 the children grow up, and perform Christian duties."' 
 We have said, that marriage was the first ordinance 
 of God. After the creation of ail things, Adam 
 and Eve were formed, and endowed with immortal 
 souls ; but man's creation w^as a more signal and 
 immediate act of divine wisdom and power than that 
 of the other creatures. The narrative of it is intro- 
 duced with solemnity, and a manifest distinction from 
 the rest: the vv^ord of command is turned into a word 
 of consultation — ** Let us make man, for whose sake 
 tlie rest of the creatures were made: this is a work we 
 must take in our hands.*'^ Man was to he a creature 
 different from all that had been hitherto made. Flesh 
 and spirit, heaven and earth, must be put together in 
 him, and he must he alhed toboth worlds; and, there- 
 fore, God himself not only undertakes to make, but 
 is pleased so to express himself, as if he had called a 
 
 7 Sermon. 119. 7 DccnL « Gen. i. 26 and 28.
 
 TIT. r. OF MARRIAGE IN GENERAL. O 
 
 council to consider of the making of him ; the three 
 persons of the Trinity consult about it, and concur in 
 it, because man, when he was made, was to be dedica- 
 ted and devoted to Father, Son, and Holy Spirit. 
 Man was made in God's image, after his likeness. 
 God's image on man consists in three respects : 1st, 
 In his nature and constitution, not that of his body, 
 but that of his soul. The soul of man, considered in 
 its three noble faculties, understanding, will, and 
 active power, is perhaps the clearest looking-glass in 
 nature in which to see God. 2d, In his place and 
 authority. As he has the government of the inferior 
 creatures, he is, as it were, God's representative 
 upon earth. 3d, In his purity and rectitude. God's 
 image in man consists in knowledge, righteousness, 
 and true holiness.'' He had an habitual conformity 
 of all his natural powers to the whole Mill of God. 
 His understanding saw divine things clearly, and 
 there were no errors in his knowledge : his wid com- 
 plied readily and universally with the will of God : 
 his affections were all regular, and he had no inordi- 
 nate passions or appetites. 
 
 The superiority of Adam over the other creatures 
 was thus clearly establislied, and he was accordingly 
 appointed to be the I^ord of this lower world. All na- 
 ture wass apparently subservient to him, but he was, 
 notwithstanding, dependent on the bounties of Provi- 
 dence. Every creature was intended to yield help to 
 man, — the flower, with its beauty and fragrance — 
 the tree, with its nutritious fruit — the animal tribes, 
 
 '^Eph. iv. 2i. Cul. ii. 10.
 
 6 OF MARRIAGE IN GliNERAL BOOK I. 
 
 with all their powers of administering satisfaction to 
 the senses and to the mind. Adam beheld them all 
 with delight; he saw their several characters, in their 
 several forms ; he gave them names ; he observed and 
 glorified his Creator's perfections, displayed in him 
 and in them. Still he was alone ! the understanding 
 was unemployed — the heart wanted its object — the 
 tongue could name all that the eye beheld, but there 
 was no tender, sympathetic ear, to which he could 
 say, how lovely, how glorious, is all this that we 
 behold ! It does not appear that Adam made any 
 complaint ; but the Lord God, knowing the tendency 
 of his nature, announced, " That it is not good for the 
 man to be alone, I will make an help meet for him :"^*' 
 thereby denoting, that it is not convenient, either for 
 the increase of mankind, or for man's personal com- 
 fort ; and emphatically signifying, that the woman 
 was to be suitable to him, in constitution, disposition, 
 and affection — a second self, or one to be at hand, or 
 near to him, familiarly to converse and consult with 
 him, to be ready to succour, serve, and comfort him ; 
 or whose eye, respect, or care, as well as desire, should 
 be to him ; and whose business should be to please 
 and help him. 
 
 Simultaneously the execution follows the design, 
 and Eve was formed from one of Adam's ribs: " And 
 the Lord God caused a deep sleep to fall upon Adam, 
 and he slept ; and took one of his ribs, and closed 
 up the flesh instead thereof."^^ Eve was taken out 
 of Adam's left side, nearest to his heart, and not out 
 
 10 
 
 Gen. ii. 10. '' Gen. ii.l21.
 
 TIT. 1. OF MARlilAGE IN GENERAL. 7 
 
 of his higher or lower parts, implying that he was not 
 to usurp authority over her ; nor to be his slave, to be 
 abused, despised, or trampled upon, but to be kindly 
 treated, and considered as a companion, with mode- 
 ration aud affection. 
 
 " And the rib which the Lord God had taken 
 from man made he a woman, and brought her unto 
 the man."^=^ This jewel, or rib, a woman, or second 
 self, God presented to Adam, as a bride to a bride- 
 groom, to be married to him ; and thereby teaching 
 parents their duty of providing- marriages to their 
 children, and children their duty of expecting their 
 parents' consent in marriage. 
 
 Here we may well introduce the sublime and lofty 
 language of Milton in his Paradise Lost. 
 
 The rib he form'd and fashion'd with his bauds ; 
 
 Under his forming hands a creature grew, 
 
 ISlanlike, but different sex ; so lovely fair, 
 
 That what sceui'd fair in all the world, soem'd now 
 
 Mean, or in her sunim'd up, in her contain'd, 
 
 And in her looks ; which, from that time, infus'd 
 
 Sweetness into my heart, unfult before ; 
 
 And into all things from her air inspired 
 
 The spirit of Love, and amorous delight. 
 
 She disappear'd, and left me dark ; I wak'd 
 
 To find her, or for ever to deplore 
 
 Her loss, and other pleasures all abjure : 
 
 When out of hope, behold her, not far oft", 
 
 Such as I saw her in my dream, adorn'd 
 
 With what all Eartli or Heaven could bestow 
 
 To make her amiable, (^n she came, 
 
 '^' Gen. ii. 22.
 
 8 OF MARIMAGE IN GENERAL. EOOK I. 
 
 Led by her heavenly Maker, though unseen, 
 And guided by his voice, nor uninform'd 
 Of nuptial sanctity and marriage rites. 
 Grace was in all her steps, Heaven in her eye. 
 In every gesture dignity and love ! ^^ 
 
 " And Adam said, This is now bone of my bones, 
 and flesh of my flesh ; she shall be called Woman, 
 because she was taken out of man.'"^ — This may im- 
 ply, that as soon as Adam awoke, he saw the woman 
 making, or, by the revelation of God, these words 
 were put into his mouth ; or in the exalted strains of 
 the same poet : — 
 
 I, overjoy'd, could not forbear aloud. 
 This turn hath made amends ; thou hast fulfill'd 
 Thy words, Creator bounteous and benign, — 
 Giver of all things fair, but fairest this 
 Of all thy gifts, nor envicst. I now see 
 Bone of my bone, flesh of my flesh, myself 
 Before me. Woman is her name, — of man 
 Extracted ; for this cause he shall forego 
 Father and mother, and to his wife adhere ; 
 And they shall be one flesh, one heart, one soul.*" 
 
 " Therefore shall a man leave his father and his 
 mother, and shall cleave unto his wife, and they shall 
 be onejieshr^^ These inferences of Moses by divine 
 nspiration, respect h^-bitation and society, conjugal 
 relation and affection, in the highest degree even far 
 beyond what we give to our parents ; or, as in the Sa- 
 maritan, Syriac, and Arabic translations, to be inse- 
 
 1 
 
 '3 B. VIII. line 4'39. '^ Gen. ii. 23. 
 
 15 B. VIII. line 490. i^' Gen. ii. 24.
 
 TIT. I. OF MAREIAGE IN GENERAL. if 
 
 parably united, and shall haveas intirnateand univer- 
 sal communion, as if they were one person, one soul, 
 one body, so close must their union he considered. 
 
 Considering marriage to he a divine ordinance, 
 polygamy and causeless divorce may he viewed un- 
 lawful. Polygamy and divorce were, indeed, allowed 
 among the Jews, hut our Saviour declares, this was 
 only for the hardness of their hearts. " But from the 
 beginning of the creation, God made them, male and 
 female. For this cause shall a man leave his father 
 and mother, and cleave to his wife ; and they twain 
 shall be one flesh ; so that they are no more twain, 
 but one flesh. What, therefore, God hath joined 
 together, let not man put asunder." ^^ 
 
 Thus we see how completely suitable did God pro- 
 vide a help meet for man : it transcends imagination, 
 much more description : conceive, all that is lovely in 
 form ! all that is graceful in manner ! all that is ex- 
 alted in mind ! all that is pure in thought ! all that 
 is delicate in sentiment ! all that is enchanting in 
 conversation! and we may with acclamation exclaim, 
 
 Hail, wedded love, mysterious law, true source 
 
 Of human offspring, sole propriety, 
 
 In Paradise, of all things common else ! 
 
 By thee adult'rous lust was driven from men, 
 
 Among the bestial herds to range ; by thee. 
 
 Founded in reason, loyal, just, and pure. 
 
 Relations dear, and all the charities 
 
 Of father, son, and brolher, first were known. 
 
 Perpetual fouiitiiiu of domestic sweets ! 
 
 '' Mark x. G, 9.
 
 10 OF MAKllIAGE IN GENERAL. BOOK I. 
 
 Here love his golden shafts employs, here lights 
 Ills constant lamp, and waves his purple wiugs.^^ 
 
 The greater strength of man is given for the pro- 
 tection and support of his beloved wife. His vigorous 
 and more profound powers of thought are designed to 
 be her instructor and guide. Does he possess supe- 
 riority of any kind ? it is evidently intended not to 
 oppress, but to support. Whatever advantage, real 
 or apparent, either may have. Providence clearly wills 
 that it should be employed for the comfort and bene- 
 fit of the other. A contention of mutual love ! af- 
 fection, beneficence, forbearance, and forgiveness, is 
 the only strife ! which nature, reason, and decency, 
 permit to this state and relation. 
 
 In connexion with these conjugal feelings, we may 
 well introduce the brief, pathetic, and exalted descrip- 
 tion of Adam and Eve in Paradise. 
 
 For contemplation he, and valour form'd, 
 For softness she, and sweet attractive grace : 
 He for God only, she for God in him. '^'■^ 
 
 And here we may exultingly exclaim, " O Natii- 
 ra ! quam te colimus invito quoque :" *' O Nature ! 
 how we worship thee, however unwilling. How po- 
 tent are thy dictates, and how resistless are thy laws 1" 
 Or, as a holy Father describes marriage : " How shall 
 I be able to describe the happiness of that marriage 
 which is administered by the Church, which is con- 
 firmed by the oblation of the Holy Sacrifice, which 
 is registered and proclaimed by the holy angels ! and 
 is ratified by the Eternal Father !" ^ 
 
 '« Milton, B. IV. line 75(». i" Ibid. B. IV. 1. 297. 
 
 ^f Tertullian.
 
 TIT. I. OF MARRIAGE IN GENERAL. 11 
 
 The holy angels far excel all the sons of men in in- 
 telligence, strength, zeal, and love ; and it cannot but 
 be acceptable tointroduce the sublime, pious, and hea- 
 venly farewell advice by the angel Raphael to Adam, 
 to love Eve : an advice which we pray may be ri- 
 veted in the heart of every husband, to love his wife ; 
 and which, if followefl, must produce the joyful con- 
 jugal returns of love for love, and form the un- 
 changeable basis of happiness in the married state. 
 
 What higher in her society thou find'st 
 Attractive, human, rational, love still ; 
 In loving thou dost well, inpassion 7iot, 
 Wherein true love consists not — love refines 
 The thoughts, and heart enlarges ; hath his seat 
 In reason, and is judicious ; is the scale 
 By which to heavenly love thou inayest ascend.'^ 
 
 It is manifest that a single pair, one male and one 
 female, were the first progenitors of the human race, 
 that all nations of men might know themselves to be 
 made of one blood, and be thereby induced to love 
 one another ; but we know, from history, from the 
 creation to the deluge, that their primitive innocence 
 and felicity were lost. In the progress of their lives 
 they became the parents of a numerous offspring. 
 Marriages rapidly multiplied the numbers of men. 
 The ordinary course of life was prolonged through 
 many hundred years — many generations were at once 
 contemporaries upon the earth. Arts were invented 
 — social institutions were established. Melancholy, 
 however, to reflect, the vice of luxury soon mingled 
 with the crime of ferocity. About lGo6 years after 
 
 ' Milton, B. VIII. line 587.
 
 12 OF MARIllAGE IN GENERAL. BOOK I. 
 
 the creation of Adam, the tenth of the successive ge- 
 nerations of his descendants, with the suci^essors of 
 the pious nine, were all, save a single family, over- 
 whelmed by a mighty deluge, and buried in the 
 abyss of its waters.-^ 
 
 On this appalling change of nature, and in unison 
 with the sanctity of the heavenly fire of marriage, 
 and the powerful attachment that subsists between 
 the sexes, stante matrimonio^ we may well introduce 
 the sublime and sympathetic address by Noah to 
 his wife,* as related by Ovid,-^ on this overwhelming 
 event. 
 
 O soror, conjux, O foemina sola superstes, 
 Q,nam commune milii genus, et patruelis origo, 
 Deinde torus junxit, nunc ipsa pcricula jungunt, 
 Terrarum quascunque vident occasiis, et ortus 
 Nos duo turba sumus ; possedit csetera pontus. 
 Q,uid tibi, si sine me fatis erepta fuisses. 
 Nunc animi, miseranda, foret ? quo sola timorem 
 Turn modo posses, quo consolantc dolores? 
 Namque ego, crede mihi, si te modo pontus habcret, 
 Te sequerer conjux, et me quoque pontus haberet. 
 
 Or, in English literally, 
 
 O sister, O spouse, woman sole surviving, 
 
 "Whom common descent and consanguinity, as 
 
 Cousins, and then the marriage bed joined, 
 
 Now these verj'- dangers join ; in all places 
 
 Of the world, which east and west behold, 
 
 We two are the only crowd that remains ; 
 
 The sea possesses all the rest. How miserable now 
 
 2^ The original cause of the ancient flood, was the unequal mar- 
 riages between the sons of Seth, who professed the true religion, and 
 the beautiful women of Cain's j>rogcny. Gen. vi. 
 
 2^ Ovid, Met. B. I. Fab. VII. line 851. 
 
 * Called Deucalion and Pyrrha, by Ovid.
 
 TIT. I. OF MARRIAGE IX GENERAL. 13 
 
 Would thy mind have been, if, witliout me, 
 Thou hadst been snatcli'd away by the fates ! 
 IIow couldst thou all alone have borne the 
 Fright or endured the grief, without any one 
 To console you 1 Then believe me, my spouse, 
 If the sea now had thee without me, I would 
 Instantly follow thee, and the sea should 
 Have me likewise. 
 
 The same attempted in verse — 
 
 sister, O spouse, O solo survivor left. 
 
 Alone, without me, of all things else bereft ; 
 
 Of the same blood, we were of kindred kind. 
 
 And then in love by holy marriage join'd ; 
 
 And now, amidst these scenes of sad affright. 
 
 Appalling dangers closely us unite. 
 
 On earth, from east to west, from pole to pole. 
 
 We two alone are the remaining whole ; 
 
 All other things the ruthless deep contains, 
 
 And a vast void of desolation reigns. 
 
 What would have been thy fate, alone, forlorn. 
 
 If, without me, thou hadst from death been torn! 
 
 How hadst thou then have borne the fear, the grief. 
 
 Without one helping hand to yield relief? 
 
 Dear love, believe me, for I speak the truth. 
 
 No guileful word shall issue from my month. 
 
 Sliouhl now the sea my lovely wife contain, 
 
 I'd follow thee, and plunge into the main ! 
 
 How fine, how sublime, how affectionate! and we 
 may well avow, that tlie same feelings were concen- 
 trated in the heart of Noah's wife; and we have clia- 
 rity to believe, that similar reciprocal sentiments are 
 still entertained in the conjugal state. 
 
 But how inferior is this to the pious language of 
 Ruth to Naomi! " Whither thou goest, I will go, 
 and where thou lodge^^t, I will lodge; thy people shall 
 be my people, and tliy God my God ; where thou
 
 14 OF MARRIAGE IN GENERAL. BOOK I. 
 
 diest, I will die, and there will I be buried; the Lord 
 do so to me, and more also, if aught but death part 
 thee and me." ^^ 
 
 Thus we have shown, that for marriage there is 
 " confirmation strong as holy writ." 
 
 But marriage has likewise its foundation in the 
 nature and constitution of man. On this subject, 
 the language of Justinian is, " Jus naturale est, quod 
 natura omnia animalia docuit. Nam jus istud non 
 humani generis propriumest, sedomniumanimalium, 
 qu£e in coelo, qu£e in terra, quad in mari nascuntur. 
 Hincdescendit maris atquefeminseconjunctio, quam 
 nos matrimonium appellamus ; hinc liberorurn pro- 
 creatio, hinc educatio, videmus etenim cetera quoque 
 animalia istius juris peritia censeri." ^^ 
 
 Bankton, B. I. t. 5. § 1, justly says, marriage is 
 the foundation of the human race, is not dissolvable 
 by consent of parties, and is founded in nature and 
 the Divine Ijaw."^*^ 
 
 Or, as an elegant writer, of more modern times, 
 expresses himself to the like purpose : " It is not 
 to be denied, that before tlie idea of a public is ac- 
 knowledged, and before men have submitted to the 
 salutary restraint of law, the disorders of promiscuous 
 love disturb and disfigure society. Yet, even in these 
 wild and informal times, there exist parties, who, cling- 
 ing together from choice and appetite, experience the 
 happiness ofreciprocal attentions and kindnesses; who, 
 in the care of their offspring, find an anxious and in- 
 teresting employment, and a powerful source of at- 
 
 -'^ Ruth ii. 17, 18. 25 j3^ i_ p^ j^rg Haturali. 
 
 2« Gen. ii. 24, M.it. xix. G.
 
 TIT. I. OF MARRIAGE IN GENERAL, 15 
 
 tachment ; who, moved by love, by friendship, by 
 parental affection, and habitude, never think of dis- 
 continuing their commerce ; and who, in fine, look 
 forward with sorrow to the fatal moment, when death 
 is to separate tliem. 
 
 "This cohabitation or alliance, attracting attention 
 by its decency, its pleasures, and its advantages, would 
 grow into a custom or a fashion ; for what men ap- 
 prove, they will imitate. To this use, therefore, it 
 seems not unreasonable to refer the institution of 
 marriage ; and thus, before it is known as a political 
 consideration, it, in some measure, subsists in nature. 
 As men increase in their numbers, they perceive the 
 necessity of attending to an union, which is no less 
 important to society than to the individual — which 
 has in view the support of the one, and the felicity 
 of the other. A ceremonial is invented, which gives 
 it authority and duration. The state takes a share in 
 the cares of the lover, and prescribes the forms that 
 are to hind him to his mistress. Nature, while she 
 fits the sexes for each other, leaves it to polity or 
 law to regulate the mode of their conne.sion." -' 
 
 On this sublime subject, a learned divine, Dr Tay- 
 lor, truly says, " The first blessing God gave to man 
 was society, and that society was a marriage; and that 
 marriage was confederate with God himself, and hal- 
 lowed by a blessing. It contains in it all sweetness, 
 and all society and felicity, and all prudence, and all 
 wisdom : for there is nothing that can please man but 
 love. And if a inon be wearied of the wise discourses 
 of the apostles, and of the innoccncy of an evcii and 
 '^'' I'r Gilbert Stewart's View of Society in Europe.
 
 IG OF MARRIAGE IN GENERAL. BOOK I. 
 
 a private fortune, or hates peace, or a fruitful year, 
 he hath reaped tliorns and thistles from the choicest 
 ilowers of paradise ; for nothing can sweeten felicity 
 itself hut love ! But when a man dwells in love, then 
 the breasts of his wife are pleasant as the droppings of 
 the Hill of Hermon — her eyes are fair as the light of 
 heaven ;* she is a fountain sealed, and he can quench 
 his thirst, and ease his cares, and lay his sorrows down 
 upon her lap, and can retire home, as his sanctuary, 
 and garden of sweetness and chaste refreshments. 
 But he that loves not his wife and children feeds a 
 lioness at home, and breeds a nest of sorrows ; and 
 blessing itself cannot make him happy. So that all 
 the commandments of God, enjoining a man to love 
 his wife, are nothing l)ut so many necessities and ca- 
 pacities of joy ; she that is loved is safe, and he that 
 loves is joyful." 
 
 In connexion with the sanctity and natural law of 
 marriage, and those sublime affections of the soul in 
 the married state, we may observe how beautifully it 
 is appointed by Providence, that woman who is the 
 more dependent ornament of man in his happiest 
 hours, should be bis stav and solace when smitten 
 with calamity, windingherself in the rugged recesses 
 of his nature ! tenderly supporting the drooping head, 
 and binding up the broken heart. Though all around 
 is darkness and humiliation, there is always a world of 
 love at home ! There is, in every true woman's heart, 
 a work of heavenly fire! which lies dormant in the 
 
 * From woman's eyes this rloctrine is derived : 
 They sparkle still the right Promethean fire ; 
 They arc the books, the arts, the academes, 
 Tliat show, contain, and nourish all the world !
 
 TIT. I. OF MARRIAGE IX GENERAL. 17 
 
 hroad dayliglit of prosperity, but which kindles up, 
 and beams and blazes, in the dark hour of adversity. 
 
 Horace exultingly exclaims — " Domus et placens 
 yxor** ^^ — the house, aiid (in the cup of life that ho- 
 ney drop) thy pleasant wife ; and Dr Samuel John- 
 son happily observes, that in marriage we approach 
 in some degree to celestial intelligence. The truth 
 is, women possess milder virtues than men, and their 
 weapons are their charms and attractions.* 
 
 And we may even assert, that of all the pleasures 
 that endear human life, there is none more worthy 
 the attention of a rational creature, than those that 
 flow from the mutual returns of conjugal love. When 
 two minds are thus engaged by the ties of reciprocal 
 affection, each alternately receives and communicates 
 a transport, inconceivable to all hut those that are in 
 this situation ; whence arises that heart-ennobling so- 
 licitude for one another's welfare, that tender sympa- 
 thy which alleviates affliction, a :d that participated 
 pleasure which heightens prosperity and joy itself. 
 
 The following is a beautiful instance of this exalted 
 passion : — 
 
 Cyrus, King of Pcrsin, had taken captive tlie young 
 Prince of Armenia, together with his beautiful and 
 blooming princess, whom he had lately marrie ', and 
 of whom he Mas passionately fond. When they, 
 along with other prisoners, were brought before the 
 tribunal, Cyrus asked the prince, "What he would 
 
 '-^i' Od. Lib. II. c. XIV. V. fi. 
 * A good wife is a Crown, an honour, and cansc of wealth and 
 power to her husband. Prov. xii. 4. So arc children a Crown to 
 their parents. Prov. xvii. G, 
 
 B
 
 18 OF MARRIAGE TX GENERAL. EOOK. I. 
 
 give to be reinstated in his kingdonn ?" He answered, 
 with an air of indifference, *' That, as for his crown, 
 and his own liberty, he valued them at a very low 
 rate : but if Cyrus would retr^tore liis beloved prince?.s 
 to her native dignity and hereditary possessions, he 
 should infinitely rejoice ; and would pay (this he ut- 
 tered with tendernt ss and ardour), would willingly 
 pay his life for the i^ur chase. ^'' 
 
 When all the prisoners were dismissed with free- 
 dom, it is impossible to express how much they were 
 charmed with thei • royal benefactor. Some celebra- 
 ted his martial abililies — some applauded his social 
 virtues : all were prodigal of their praise, and lavish 
 in grateful acknowledgments. " And you," s id the 
 prince, addressing himself to his bride, " what think 
 you of Cyrus ?" — " I did not observe him," siid the 
 princess. " Not observe him ! Upon what, then, was 
 your attention fixed ?'* — " Upon that dear and gene- 
 rous man, who declared, tliat he \\o\A^ 'purcJiase my 
 liberty at the expense of his own life.^* 
 
 The Marquis of Tavistock, the father of the pre- 
 sent Duke of Bedford, died in consequence of a fall 
 from his hor: e, and his lady died some months aftei-- 
 wards, it was thought of a broken heart. It was ob- 
 served by her attendants, that, froin the time of his 
 lordship's death, she never opened her r ght hand, — 
 no inducement could prevail en her to do it ; but 
 after her death it was opened, and found to contain a 
 immature of her departed hushancL 
 
 Thecommunication of good is the prime and conspi- 
 cuous source of enjoyment in the Deity, and probably
 
 TIT. r. OF :\rAia{iAGE ix gexeral. • 19 
 
 in all created antl dependent orders of rational beings. 
 In all societies of mankind, from the least to tlie great- 
 est, it is the link and criterion, the active and glori- 
 ous moral engine, the fundamental and self-applaud- 
 ed cause of their orderly and happy state, and is not 
 confined to the interest of a family, neighbourhood, 
 village, town, city, province, kingdom, or empire, but 
 extends iti^elf to the welfare of the universe itself. 
 
 This consideration, being strongly implanted in the 
 mind of the Supreme Author of our existence, is na- 
 tural, just, and tiue, and no less interesting than mo- 
 mentous ; and thoi;gh obvious to all, from reason and 
 the moral faculty, mistaken notions of interest and 
 happiness, prejudices, inconsistencies, selfishness, ob- 
 stinacy, ignorance, weakness, folly, and vice, singly 
 or combined, often confuse tl:e eyes of men's under- 
 standing, and almost induce mental blindness. 
 
 He wlio says, or lives as if he thought, that "it is 
 good for man to be alone," gives the lie to his Maker, 
 violates the constitution of his nature, dishonours his 
 parents, defrauds another of the justest rights of hu- 
 manity, and in a case, too, where it is imj)ossible so 
 much as to complain, and expo.^es himself to commit 
 offences against society. In truth, it is a vile com- 
 pound of avarice and seltishncss, which the confirmed 
 bachelor wouhl fain pass upon the world for prudence 
 and self-denial. And it is to be feared, tliat many 
 libertines put no trust in providence divine, and 
 have no true regard for the fair sex, but, as it were, 
 they engraft their very souls in themselves alone, 
 and exclusively ! and in their riches which thev vvor-
 
 20 OF MARRIAGE IX GENERAL. BOOK I. 
 
 ship ! At present, suffice it to say, that such persons, 
 however rich, or in the eye of themselves, or of the 
 world, considered great and mighty, can be more un- 
 comfortable, never to he envied, sometimes to he pi- 
 tied, and in some instances despised. 
 
 One great and notorious obstruction to tlie growth 
 of marriage in the world, and particularly in Britain, 
 is the spirit and fashion of celibacy, which is diffused 
 like contagious particles in the air, and prevails more 
 or less among all ranks of both sexes, and of whose 
 baneful influence on the comfort of individuals, and on 
 the continuance and happiness of the inhabitants of 
 this kingdom, and mankind in general, they seem not 
 to be sufficiently aware. It were to he wished that 
 they were convinced, that there is no principle of more 
 lasting public importance, pregnant with more exten- 
 sive social benefit, and which privately affords more 
 solid pleasure, both in reflection and practice, than 
 believing, and exemplarily maintaining, that each 
 individual is not born for liimself alone, but was ori- 
 ginally intended to serve the world in general. Or 
 did they but consider that to contribute I'ttle to the 
 satisfaction and advantage of our fellovz-citizens of 
 the world, is the distingui bed mark of a depressed 
 and grovelling soul, emphatically detaching and sepa- 
 rating connected members, a kind of living we were 
 not made for, and in pursuit whereof none did, or 
 ever can, find themselves perfectly right. Imagine 
 each part of the human body to be animated with a 
 distinct consciousness, so that its several members, in 
 consequence of separate conscious endowments, de-
 
 TIT. I. OF MARRIAGE IN GENERAL. 21 
 
 termine to act separately for their preservation, with- 
 out supporting the common system, and the whole 
 animal fabric would be ruined ! The powers of man 
 can only be employed in the preservation of them- 
 selves, and procuring and increasing their own and 
 the public felicity. They seldom neglect to preserve 
 themselves, but frequently, and in a variety of ways, 
 disregard the general welfare, whenever their own is 
 partly involved. Those are of truly elevated and god- 
 like dispositions, who, while they please and profit 
 themselves, promote with their mental and bodily 
 abilities the complacency and good of others. 
 
 As an excuse for celibacy, libertines have attempt- 
 ed to take shelter under tlie mistaken notion, that 
 the Apostle Paul discouraged marriage. But he ad- 
 vanced no such doctrine. If he had, he would have 
 contradicted the law of God, which says, " It is not 
 good for man to be alone, I will make an help meet 
 for him ;" Gen. ii. 8. And he would likewise have 
 contradicted the woe that is denounced against single 
 persons, •* That two is better than one, and woe to 
 him that is alone ;" Ecc. iv. 9. &c. But the Apostle 
 would have contradicted himself, for we find him 
 asserting, in other parts of Scripture, that marriage 
 is honourable in all, and that the doctrine that for- 
 bids to marry is the doctrine of devils. But to clear 
 the Apostle Paul of every imputation, we must look 
 for some reason that could induce him to write to 
 the Corinthians in the strain of discouraging mar- 
 riage. And we need not look far off for a suffi- 
 cient reason, for we find it in the ^26lh verse of the 7th
 
 22 OF MARRIAGE IX GliNERAL. BOOK I. 
 
 chapter, namdy, " that it is not good /or the present 
 disf?Tss for a man to marry." It was therefore the 
 present distress, tlie disturbed and persecuted state of 
 the Church at the time when the Apostle wrote liis 
 Epistles, which alone can he supposed to operate as a 
 reason for his recommending to his Coririthian pro- 
 selytes a single state in preference to marriage. But 
 we do not think that tlie Apostle's reason was suf- 
 ficient, even to the extent of anything like a prohi- 
 bition for a moment. The persecuted state of the 
 Church lasted nearly two centuries, and had the 
 Apostle's doctrine been adopted in the strict sense, 
 the race of Adam would have become extinct. Or 
 had the Apostle recollected that in the Old Testa- 
 ment times, while AA'ars and persecutions were going 
 on, marriages were encouraged, he would not have 
 perhaps employed such language ; for we are inform- 
 ed that a new-married man was not allowed to go to 
 war, nor to be charged with business ; " but lie sball 
 be ^YQQ at home for one year, and shall cheer up his 
 wife which he hath taken." -^ 
 
 How transcendent is the language of Scripture to 
 love one another! The most intimate and endearing 
 relation, affection, and love between the Lord and 
 bis Church, is described to be a mariiage-union. 
 Thus, " Thy Maker is thine husband, the Lokd of 
 Hosts is his name ; and thy Redeemer the Holy One 
 of Israel ; the God of the whole Earth shall he be 
 called ;" Isaiah, ch. liv. v. 5. And in the Revela- 
 tions, ch. xix. V. 7, " The marriage of the Lamb is 
 
 '"• Dent. xxiv. 6.
 
 TIT. I. OF 3IAIiRIAGE IN GEXERAL. 23 
 
 come, and his wife hath made herself ready." And 
 the love of God is necessarily attended with the love 
 of one another, as described by the Apostle John, — 
 " Beloved, let us love one another, for love is of God, 
 and every one that loveth is born of God, and know- 
 etli God. He tliat loveth not, knoweth not God, for 
 God is love," 1 John, iv. 7, 8. Again, verse 16, *' God 
 is love ; and he that dwelleth in love, dweiletli in 
 God, and God in him." And that this love in man 
 ought to operate by love to his brethren, is manifest 
 from the declaration of the same Apostle, eh. iii. v. 17, 
 " Whoso hath this world's good, and seeth his bro- 
 ther Iiath need, and shutteth up his bowels of com- 
 passion from him, how dwelleth the L)ve of God in 
 him ? ' — " He that loveth not his brother, abideth in 
 death," v. 14. " And whosoever hateth his brother 
 is a murderer, and ye know that no murderer hath 
 eternal life abiding in him," v. 15. 
 
 Love is an enemy to di^tance and formal respect. 
 It emboldens us to speak without fear or doubt ; the 
 only cause of fear is, when we do not love one as we 
 may a|id ought. Hence we may fairly infer that con- 
 firmed bachelors are pitiful and awkwaid, and even 
 frighted, in the presence of a lovely woman, whose 
 charms and virtues they can not or will not perceive, 
 because they are not truly in love; and we would 
 strongly recommend to them to commit to memory, 
 and consider well the words of the poet — 
 
 O woman, woinaii, lovely woman, 
 Tliou wort made to temper man. 
 Wo liad been brutes without thee. 
 Angels were painted fair to look like thee
 
 24 OF MARRIAGE IN GENERAL. BOOK I. 
 
 There's in tliee all that we desire of Heaven, 
 Eternal goodness and everlasting love. 
 
 To the disgrace and crime of men, they frequent- 
 ly want sincerity, and often trifle with the more mild 
 and softer feelings of the fair sex ; and it cannot be 
 denied, that after gaining their affections by atten- 
 tions, pi omises, protestations, love, and such like, 
 they basely desert them : and there have even been 
 instances of men when at the Altar of Hymen, who 
 have cowardly retreated, on the ground of disappoint- 
 ment of riches, of which the following is an example. 
 
 A covetous bachelor made his addresses to a lady 
 of good family, great accomplishments, and beautiful 
 person but a vary small fortune, whom, after repeat- 
 ed solicitations and courtship, he persuaded to mar- 
 riage. The wedding-day was appointed, and they 
 went to church to go through the nuptial ceremony. 
 On the bachelor being asked whether he would ac- 
 cept the lady for his wife, he repented and refused, 
 and the marriage was not completed. Soon after, a 
 considerable fortune was left to the lady, on the death 
 of a near relation ; the news coming to her late lover's 
 ears, occasioned the impudent repetition of his ad- 
 dresses. He impoituned her to marry him in the 
 strongest terms, and asked forgiveness for his unpar- 
 donable ill usage. The lady seemed to comply, and 
 they both went a second time to the church to tie the 
 nuptial knot. The lady being asked by the priest if 
 she would have that man for her husband? she imme- 
 diately pulled out of her pocket a purse of gold, held 
 it in her hand with an extended arm, and with a loud
 
 TIT. r. OF MAIIRIAOE IN GENERAL. 25 
 
 but good-natured voice said, " Speak, man.^ij /" Tha 
 money not speaking, and consenting to the match, it 
 broke, and occasioned the lady's satirical retaliation, 
 the least punishment deserved by so unsteady, avari- 
 cious, and deceitful a man. Than which conduct on 
 the part of the lady, none could be more praise- 
 worthy; and it were to be wished, that all men pro- 
 fessing attachment to the fair sex, would discover the 
 strictest honour, and disinterested feeling, in a mat- 
 ter where their own happiness and the interest of 
 society, are so deeply concerned. 
 
 Celibacy is a misfortune to any country. It was 
 very dishonourable in several of the Grecian Com- 
 monwealths, and much discouiagcd by their laws ; an 
 adherence to it was discountenanced, and in some 
 places punished. For, the strength of states consist- 
 ing in the number of the people, those that refused 
 to contribute to their increase, were thought cold in 
 their affections to their country. The I^acedasmonians 
 were very remarkable for their severity against those 
 that deferred marrying, as well as those who wholly 
 abstained fiom it. No man among tliem could live 
 a bachelor beyond the time limited bv their law- 
 giver, without incurring severe penalties. Sometimes 
 the magistrates commanded the bachelors, once every 
 winter, to run round the Forum, uncovered; and to 
 increase their shame, they sang a certain song, the 
 words whereof aggravated their crime, and expo.^ed 
 them to ridicule. Another of their punishments was 
 (o exclude them from the exercises. Another puuish- 
 mcnt was indicted upon a certain solemnity, when
 
 26 OF MAUllIAGK IX GENERAL BOOK I. 
 
 the women dragged them round an altar, heating 
 them with their fists ; and they were deprived of that 
 respect which the yoinigor sort were obliged to pay 
 to their eiders. To the^e we may add the Athenian 
 law, wherehy all that were commanders, orators, or 
 were intrusted with any public affair, were to be 
 married and have children, and estates in land, for 
 these were looked on as so many pledges for their 
 good behaviour, v^'ithout which they thought it dan- 
 gerous to commit to theui the management of public 
 trusts. The Romans, likewise, consulting the gran- 
 deur of their republic, had always a particular honour 
 for the married state. Nothing was more usual than 
 for thecensois to impose a fine upon bachelors. In 
 the law of Augustus Csesar, which was at first rejected 
 for its severity, but afterwards amended and passed, 
 it was ordered that all the magistrates should take 
 precedence according to their number of children, and 
 a married man before a bachelor. That in elections 
 those candidates should he preferred who had the 
 most numerous progeny; and that any person might 
 statid sooner than ordinary for an office, if he had as 
 many children as he wanted years to he capable of 
 bearing such a dignity. That whoever, in the city of 
 Rome, had ihree children — in the other parts of 
 Italy, four, and in the provinces five, or, as some 
 say, seven — should ba excused from all troublesome 
 offices in the place v/here he lived. The piinclpal 
 penalty incurred by those tliat lived a single life was, 
 that they were incapable of receiNing any legacy or 
 inheritance by will, unless from their near relations ;
 
 TIT. r. OF MAinii.i.c;E in general 27 
 
 smd such as were maiiiecl, and yet had no ehildrers, 
 could Tiot receive abo^ e lialf of an estate. 
 
 On Augustus's return from the Civil ^Yar, lie ad- 
 dressed the hachelors at Rome to thii purpose, that 
 he judged them enemies to tlie state, enemies to pos- 
 teiity, nay, a sort of negative murderers, living only 
 for themselves, or for the gratification of evil j)assions, 
 that, were all the Romans like them, llie state would 
 only be unius cetatis et secalum vh'orum. 
 
 In the next title we have taken occasion to men- 
 tion, upon the authority of the Retjiam Majestatem., 
 Skeno and Craifj, in treating u^ion the feudal casualty 
 of marriage as peculiar to ward, that fourteen years 
 was considered the marriageable age of females, and 
 twenty-one of males. In the ward holdings, now 
 abolished by the Act 20 Geo. II. c. 50, the fee re- 
 turned to the superior, and continued in his hamls 
 during the minority of tlie vassal, if a male ; and in 
 the case of a female vassal till she had completed her 
 fourteen th year. The feudal laws fixed upon that age, 
 when the male vassal himself was capable to serve 
 his superior, and when the female vassal might reason- 
 ai)ly be expected to have a husband to perform the 
 military service. Wedonot desire again tosee anysueh 
 law ; but were a law passed, taxing bachelors after 
 the'r thiitieth yeai', none could be more popular and 
 legitimate, and attended with ha])pier consequences, 
 not oidy to themselves, but to females with whom 
 they may form the connexion of marriage. Habit, 
 especially in vice, has a strong hold of the human 
 mind ; and bv some moralists, liabit is considered
 
 28 OF MARRIAGE IN GENERAL BOOK 1. 
 
 stronger than the law of nature : but this we doubt, 
 at least at an early stage of life, or even at manhood, 
 and we have therefore pitched upon the age of thirty, 
 when the judgment may be presumed to be matured 
 by experience. 
 
 We conclude this sublime and interesting part of 
 the work with the following lines, which the author 
 has just received from a learned and pious clergyman, 
 a Doctor of Divinity, and to which we e .rnesily call 
 the attention of our readers : — 
 
 Delightful is the view of nuptial rites ; 
 Old Hymen's torch can burn with pleasant lights ; 
 Celebrity is wliat most men desire, 
 The unmarried can no lasting bliss acquire ; 
 Old age, when single, shares a loveless fate ; 
 Religion sanctions virtuous marriage state. 
 Pray, friends, my little book with candour view. 
 Each page you'll find replete with reasons true ; 
 To love sweet truth is still my joy and pride, 
 Even as the bridegroom doats upon the bride. 
 Rich be the prize that is to grace allied ! 
 Hail, wedded love ! had I but Milton's muse, 
 All thine attractions, then, I could diffuse. 
 Learn bachelors to court thy golden chain. 
 Keen, pledged, no longer single to remain. 
 Enough I've said, O reader, if thou'it wise, 
 Read this with lover's, not with a critic's eyes ; 
 Say the attempt, at least, is just and fair, 
 To paint connubial joj'^ with winning air, 
 On Hymen's head to place the gladdening crown. 
 No more to totter, or to tumble down. 
 
 We now proceed to consider the doctrine of mar- 
 riage in general, as applicable to Scotland : — 
 
 I3ut\ve premise, that it may appear remarkable, that
 
 TIT, T. OF MARPJAGE IN GENERAL 29 
 
 neither in the Old nor New Testament do we discover 
 a singlecaseof a marriage being performed by a priest, 
 except in one solitary instance, where it may be im- 
 plied by the august presence of the high priest of 
 our profession, on the miraculous occasion of his first 
 miracle in turning water into wine. 
 
 In the primitive times, all that was necessary to 
 constitute so solemn a contract, was the free and un- 
 fettered consent of the partie-, — matrimonia dchent 
 esse liheray marriage ought to be free, which is in- 
 deed the very essence of marriage, the ipsum matri- 
 monium^ without even the intervention of a priest, or 
 any particular ceremony accompanying it. 
 
 Among the Jews, the priest did not officiate at the 
 celebration of marriage, although he conducted every 
 thing that was sacred. The very forms of entering 
 into marriage, have been dissimilar in independent 
 states ; and even in the same state, there have been 
 various modes of forming the matrimonial union. 
 
 The history of our marriage law will be given in a 
 subsequent title. It is held to be a civil contract be- 
 tween a man and woman, capable of, and dcliberalely 
 giving their free consent. It is constituted by con- 
 sent alone. It may be established in various ways, 
 but the most common are, 1^/, in facie ecclesice, term- 
 ed regular ; and, 2<7, what is called irregular, which 
 usually takes place, — By mutual writings cle prcesentiy 
 importing present consent ; by verbal declarations 
 before witnesses, clearly and distinctly expressing 
 present consent ; by promise and subsequent copula ; 
 and, by habit and repute as man and wife.
 
 30 OF MARIMAGE IN GENEPaL. EOOK T. 
 
 A promise da fiiUiro inatrimonio, rebus iiitegris^ 
 M'ill not make a marriage, but the party resiling may 
 be subjected in damages for breach of promise of 
 marriage. 
 
 But the present conserst to marriage must be given 
 by persons who have arrived at mature age, — areca- 
 pableofmarriage, and are willing togive their consent; 
 consequently pupils, '"^^ idiots, impotent, sterile, and 
 furious persons, cannot contract marriage ; neither, 
 to avoid ince.-^t, can it be lawfully entered into, with- 
 in the forbidden degrees mentioned in Scripture ; nor 
 by persons alieady married ; nor, according to the 
 law of Scotland, can marriage be effectually entered 
 into by persons who have been guilty of adultery with 
 one another. But thrse disabilities will be fully di- 
 lated in the next title 
 
 The outlines or foundations of our marriage law, 
 termed regular and irregular, may perhaps be best 
 introduced by giving ad longum the quotations on 
 that subject fiom our learned institutional writers, 
 who, we feel happy in remarking, are at one upon the 
 essential points of this civil contract ; and unless upon 
 some minorconsiderations,the!rdoctrines on this head 
 are, to the praise of our eminent judges, strictly in 
 unison with our numerous important decisions of the 
 Court of Session and House of Peers, which are 
 grounded upon the precepts of the Gospel, the law 
 
 ^" If a marriage is entered into before the parties are of age, and, 
 after arriving at marriageable years, they shall cohabit together as 
 man and wife, tlie marriage will be effectual.
 
 TIT. I. OF MARRIAGE IN GENEILVL. 31 
 
 of nature and nations, and the principles of reason 
 and justice, and u liicli decisions will afterwards be 
 given at great length. 
 
 Sir George Mackenzie, B. I. tit. 6, § 1, 2, says, — 
 "Marriage is defined to be the conjunction of man 
 and Avife vowing to live inseparably together till 
 death. By conjunction here, consent is understood. 
 Nam consensus^ iion coitus fucit matrimonium. Con- 
 sent is either defuturo, ovdeprccscntl. Consent defu- 
 turo is a j.roinise to solemnize t!>e marriage, which, 
 in law, is called sponsaUa ; and this is not marriage, 
 for either party may resile, rebus in^egris^ notwith- 
 standing the interveiiingpromise, or espousals. Con- 
 sent de prcBsenti is that in which marriage does con- 
 sist, and therefore it necessarily follows that none can 
 marry except those who are capable to consent." And 
 aflerwards, in ^ 6, he says, — " Marriage is either re- 
 gular and solemn, or clandestine. The regular way 
 of marrying is by having their names proclaimed in 
 tlie church th. eesevcral times, which wecall proclama- 
 tion of banns ; without which, oi* a dispensation from 
 the bishop, the marriage is called a clandestine mar- 
 riage, and the parties are fin cable for it, and both lose 
 their y?/^ tvarii et jus reUcfce. But the marriage 
 is still valid, by the act 1G61, c. 34, and 10 Ann. 
 c. 7." 
 
 In like manner, Lord President Stair, Book 1. tit. 
 4, Conj. Obligat. says, "Though marriage seems to 
 be a voluntary contract by engagement, because the 
 application of it is and ought to be of the most free 
 consent, and because, in matters ci!c;;mstantial, it is
 
 32 OF MARRIAGE IX GENERAL BOOK I. 
 
 voluntary, as in tlio succession of the issue, and the 
 provision of the wife and children, yet that mar- 
 riage iti^elf, and the obligations thence arising, are 
 jure dkino. It appears thus, 1*^, Obligations arising 
 from voluntary engagement, take their rule and sub- 
 stance from the will of man, and maybe framed and 
 composed at his pleasure ; but so cannot marriage, 
 wherein it is not in the power of the parties, though 
 of common consent, to alter any substantial, as to make 
 the marriage for a time, or take the power over the 
 wife from the husband, and place it in her or any 
 other, or the right of provision or protection of the 
 wife from the husband, and so of all the rest, which 
 evidently dcmonstrateth that it is not a human but a 
 divine contract." Again, § fi, " It may be question- 
 ed whether the conjunction wherein marriage consists, 
 be a conjunction of minds, by mutual consent, to the 
 marriage state, and that whether privately or in the 
 public solemnity, or whether rather it be aconjnnc- 
 tion or commixtion of bodies. For clearing whereof, 
 consider that it is not every consent to the married 
 state that makes matrimony, but a consent de jwcb- 
 smtl, and not a promise de fiituro mafrimonio, for 
 this promise is only the espousals which are premised 
 to marriage, and that so solemn an act might be with 
 due deliberation. And therefore, though, asother pro- 
 mises and pactions, espousals be naturally obligatory, 
 and effectual, also by the canon law, whereby the 
 espoused persons may be compelled to perfect the 
 marriage, unless there arise some eminent discovery 
 of the corruption or pollution of either party, or de~
 
 TIT. I. OF MAHRIAGE IN GENERAL. 33 
 
 feet or deformity, tliroiigh sickness, or some other 
 accident, — C. de lit. de spo)i. extra, et chap. II. Eo- 
 dem C. ult. de conjugio. Yet by the civil law, there is 
 place for eitiier party to repent and renounce the es- 
 pousals, L. I. Code de Spo.'isalibus, which is also the 
 custom of this nation, for marriage uses not to be 
 pursued hefore solemnization rebus integris; so that 
 the matter itself consists not in the promise, but in the 
 present consent, whereby they accept each other as 
 hushand and wife. Whether that he, by wordsex- 
 pressly, or tacitly by marital cohabitation or acknow- 
 ledgment, or hy natural commixion, wheretherehath 
 been a promise, or espousals preceding, for therein is 
 presumed a conjugal consent de prcesenti. The pub- 
 lic solemnity is a matter of order justly introduced hy 
 positive law fur the certainty of so important a con- 
 tract, but not essential to marriage. Thence arisesonly 
 the distinction of public and solemn, private or clan- 
 destine marriages : and thougli the contraveners may 
 be justly punished (as, in some nations, by the exclu- 
 sion of the issue of such marriage from succession), 
 yet the marriage cannot be declared void and annul- 
 led, and such exclusions seem very unequal against 
 the innocent children. But, by our custom, cohabi- 
 tation, and being commonly repute man and wife, vali- 
 dates the marriage, and gives the wife right to her 
 terce^ who cannot be excluded therefrom if she were 
 reputed a lawfid wife, and not questioned during the 
 husbands life, till the contrary be clearly decerned, 
 jiar. 1.503, cap. 77. 
 
 *• As to the other point, though the connexion of 
 
 c
 
 3t OF MAIIRIAGE IN GENERAL . BOOK I. 
 
 bodies seemed necessary for tlie constitution ofaffinity 
 arising from marriage, yet the opinion of the canon 
 law is true, Consensus, non coitus , fa cit matrimoniufn. 
 But this consent must specially relate to that con- 
 junction of bodies, as being then in the consenter's 
 capacity, otherwise it is void, &c. Yet though this 
 capacity should never be actual, as if parsons botli 
 capable should, after marriage, live together ; and it 
 should be known or acknowledged, that all their lives 
 they did abstain, yet were the marriage valid as to the 
 conjugal rights on either part." Thus, according to 
 the opinion of Lord Stair, which might be supported 
 hy a multitude of authorities in the civil and eccle- 
 siastical law, married persons may continue all their 
 lives to abstain from the conjunctio cot-porum, without 
 injury to the marriage, so little is carnal copulation 
 essential to the validity or constitution of the contract. 
 
 Lord Bankton concurs on every point with the 
 other learned authors on the law of Scotland. He 
 says, Book L tit. 5, § 1 — " Marriage, as being the 
 foundation of the human race and societi/, and which 
 commenced in the state of innocency, well deserves 
 the first place among natural obligations; — it is 
 founded in nature and the Divine law, and cannot be 
 dissolved by the mutual consent of parties, nor does 
 it receive the measure of its obligation from their ar- 
 bitriment;" Gen. ii. 24, Matt. xix. 16 
 
 And again. Book I. tit. 5. § 2 — " Marriage, which, 
 in the canon law, is termed spousals de prcesentiy 
 requires words im porting a presen t consent to that state. 
 It is the conjunction of man and woman in a con-
 
 TIT. I. or MARRIAGE TX GENEE AT. 35 
 
 stant and perpetual society of life. Maniage is per- 
 fected by sole consent ; for copula., or carnal know- 
 ledge, is only the consummation of it. It is either 
 solemn or clandestine. A solemn marriage is that 
 which is celebrated by a minister of the established 
 church, or one having the benefit of the Toleration 
 Act,* after due proclamation of haims." — "But the 
 public solemnity is only a matter of order, and not 
 essential to marriaj^e ; and therefore, by our law, not 
 only a maniage solenmised byany minister or priest is 
 good, hut likewise cohabitation as man and wife suf- 
 ficiently ascertains the marriage not calltd in question 
 during their joint lives : but if such cohalnfationuas 
 interrwpted before either party^s death, the sui vivoi', 
 who did not enter a claim of adherence during the 
 deceased's life, will find difficulty to establish the in- 
 terest in the deceased's effects consequential to mar- 
 riage, without a proof of actual marriage, or at least 
 a proof by writing, that the deceased owned the sur- 
 vivor for his or her spouse, &c. Aiul it has been nl- 
 ready said, that a promise of marriage, with a suhse- 
 qiient coitus, will infer marriage, and an obligation to 
 adhere. Those marriaoes which are not solemrnzed 
 according to the order of the church, are termed clan- 
 destine. Notwithstanding that clandestine marriages 
 are equally binding with solemn ones, certain penal- 
 
 * The Toleration Act, 10 Aime, c. G, allows all sectarios in Scot- 
 land to meet for religious service in any place but a parish church 
 or chapel. It imposes L.lOO upon tIio>e who disturb them ; and 
 allows Episcopal clergy here to perform the ceremony of marriage, 
 and to administer the sacraments.
 
 36 or MARRIAGE IX GENERAL. BOOK I. 
 
 ties are imposed upon the parties who thereby con- 
 travene the order of the law." Lord Bankton after- 
 wards. Book IV. tit. 45, § 45, " Marriage is constituted 
 hy the mutual consent of the parties before consum- 
 mation ;" and after citing the rule of the Roman law, 
 Nuptias non concubitiis sed consesnus fucit^ he says, 
 " The first question upon this rule is, how the consent 
 that infers marriage, or the conjugal state, is to be 
 known or proved." And after giving a legular mar- 
 riage as the first example of requisite consent, he 
 says, *' Again, the man's lying with the woman after 
 a promise of marriage made to her, is safhcient evi- 
 dence of their consent to actual marriage, as I took 
 notice of in another place." 
 
 Mr Erskine, the latest author on the law of Scot- 
 land, supports in clear terms the doctrine already sta- 
 ted, He says. Book I. lit. G, § 2, " Marriage is truly 
 a contract, and so requires the consent of the parties ; 
 and it is constituted by consent alone, by the conjunc- 
 tio anlmorum^ so that, though the parties, after consent 
 given, should, hy death, disagreement, or other cause 
 whatever, happen not to consummate the marriage 
 corijunctione corporum, they are nevertheless entitled 
 to all the legal rights consequent cm marriage." And 
 afterwards, in section 5, he proceeds : " The consent 
 essential to marriage is either express or tacit. Ex- 
 press consent in regular marriages is signified by a 
 solemn verbal vow of the parties accepting each other 
 for tljeir lawful spouses, utttred before a clergyman, 
 who thereupon declares them married persons. But 
 it is not essential to man iage that it be celebrated by 
 a clergyman. The consent of parties may be express-
 
 TIT. I. OF MARRIAGE IN GENERAL, " 37 
 
 ed before a civil mag'strate, or even before witnesses, 
 for it is the consent of parties wliich constitutes mar- 
 riage ; and lience tlie same statute, wl.ich declares that 
 no person can be a minister without episcopal orJina- 
 tion, takes it for granted that marriage celebrated by 
 a person who is not ordained by a bishop is valid, 
 1072, cap. 9- Marriage may be also, without doubt, 
 perfected hy the consent of parties, declared by writ- 
 ing, provided the writing be so conceived as neces- 
 sarily to import their present consent." And in sec- 
 tion 10, after noticing that prcclamaticn of banns is 
 requisite to a regular marriage, he says, section 1 1 , 
 " Clandestine marriages, which are contracted with- 
 out the previous solemnity of publishing banns, are 
 as valid as regular marriages are, but certain pe;, al- 
 lies have been annexed to them from time to time by 
 statutes affecting not only the parties, but also the 
 celebrator and witnesses." These pains and penal- 
 ties will be considered when we come to treat of clan- 
 destine marriages. 
 
 In general, fi om these authorities we may learn that 
 the constitution of marringe is completed hy the free 
 unfettered consent of the parties, antecedent to tlie 
 conjuncdo corporum ; and hence, in particular, we 
 may infer, 
 
 1st. That the consent to marringe is established 
 by celebration in facie ecclcsice^ that is, by the cere- 
 mony performed by a clergyman of the Established 
 Church, after due proclamation of banns ; and un- 
 questionably, this is marriage indissoluble, if serious- 
 ly i>erformed at the time, whatever reservation there 
 may be in any of the parties' minds.
 
 38 OF lAlAUrjAGE IN GENERAL. BOOK I. 
 
 2f/, JMarriage may be completed by a })i'ivate or 
 irregular celebration, that is, without proclamation 
 of banns, or by a person not a minister of the Estab- 
 lished Church, and not specially authorized to per- 
 form the marriage ceremony. Such a ceremony is 
 unquestionably effectual, though it may subject all 
 the parties to pains and penalties. 
 
 And in both cases, the fact of the marriage may be 
 proved by all the ordinary means of proof, by the cer- 
 tificate of the clergyman, or other celebrator, by the 
 witnesses present, or by the subsequent acknowledg- 
 ment of the parties. 
 
 ^d. Marriage may be constituted without any cere- 
 mony, namely, by the mutual present consent of par- 
 ties declared in writing. 
 
 4///. Marriage may likewise be constituted without 
 any ceremony by deliberate acknowledgment, or de- 
 claiation before witnesses, and this evidently may be 
 established by all the ordinary means of proof. 
 
 ^t/i. It may be constituted or completed by a mere 
 promise of marriage, if followed by consummation. 
 
 And marriage may be constituted or presumed 
 Juris et deji/re, without any express declaration ; re- 
 bus i^isis etfactis, by cohabitation as man and wife, &c. 
 
 In the absence of written and verbal declarations 
 de 2}r(JBsenti, habit and re[)ute as man and wife, ver- 
 bal promise and subsequent copula, the decisions of 
 our Supreme Court estahlisl), that marriage may be 
 constituted by oaths on refeicnce, by judicial declara- 
 tions, and by written declarations followed by sexual 
 intercourse.
 
 39 
 
 TIT. II. 
 OF THE DISABILITIES OF MARRIAGE. 
 
 In the preceding Title we have shown from lioly 
 writ, that marriage was the first glorious institution 
 of the Almighty — that it is the foundation of the hu- 
 man race and society — that it commenced in the state 
 of innocency — and that it is according to the immu- 
 table law of Nature. In the last ten pages of the 
 same Title, we have briefly pointed out, from our in- 
 stitutional writers, the Marriage-Law of Scotland in 
 general, and drawn a legitimate conclusion therefrom. 
 
 1. We now proceed to dilate upon the disabilities 
 of marriage. The parties entering into the state of 
 marriage, must not only be capable to give their con- 
 sent, but they must de facto give it. There are six 
 disabilities known in our law, which ought to render 
 marriage null, namely, Pupilarity — Inipotency, or Ste- 
 rility — Forbidden degrees— Bigamy, or Polygamy — 
 and Adultery. 
 
 2. As to the first, Pupilarity, by our law, and the 
 law of many other countries, the habitus corporus in 
 men is fourteen years, and women are held to be viri 
 potentes at the age of twelve, when they are presumed 
 capable of consent, and able to perform tl)c duties of
 
 40 A DIGEST OF THE LAW OF MAIIKIAGE. BOOIt I. 
 
 matrimony. Sir George M'Kenzie, Book I. tit. 6, 
 § 3, in treating of consent de prcesenti as necessary 
 to marriage, and the incapacities of idiots and furious 
 persons durante furore^ adds, — " Nor can infants 
 marry who have not attained the use of reason ; that 
 is, when they are within the years of pupiiarity, which 
 is defined in law to be fourteen years in males, and 
 twelve in female?, nisi malitla suppleat cBtatem.'* It 
 appears from tlie same enlightened author, that ac- 
 cording to a translative interpretation of the Human- 
 ists, the Canons and Civilians differ as to the mean- 
 ing of the word malitia, ^ or sagacity, wit, or under- 
 standing to do ill ; — the former imagining that it 
 imports tlie having a faculty to hurt by forethought, 
 and a stability of the organ, on which the mind ope- 
 rates, and from which the Canonists presume an 
 aptitude or capacity to beget children : whereas the 
 Civilians form their opinion upon a certain number 
 of years, when the body is thought to acquire stabili- 
 ty, a rule concerning the judgment, and a capacity to 
 consent, one of the requisites of marriage. But by 
 others, this brocard has been justly condemned, and 
 particularly by Erskine, Book I. tit. 6, § 2, who, af- 
 ter noticing that pupils cannot marry, because they 
 are incapable of consent, observes, — " The canon law 
 indeed affirms, that a pupil may enter into marriage, 
 where there is an ability to procreate or conceive. — 
 
 ' In the Roman law, malitiosus and dolosus are synonymous. See 
 R. Stephani Thesaurus Limjucc Latince — Stephen's Latin Lexicon.
 
 TIT. II. or THE DISABILITIES OF MARRIAGE. 41 
 
 Dec. I.. 4, tit. 2, c. 3 ; or, as it is expressed by some 
 Doctors, 7iisi malitia sujjpleat cetatem.''' But tlie 
 same dis^tinguislied writer, not satisfied witli the pu- 
 rity of this doctrine, very properly gives the follow- 
 ing reasons against it :—" 1st, It draws after it an 
 indecent inspcctio corporis, which is not to be ad- 
 n)itted without the most urgent necessity. — L. 3. C. 
 Quand. tut, vcl Cur. 2d, It is adverse to first prin- 
 ciples ; for if the hiw declares a pupil incapable of en- 
 tering into the most trifling contract, fiom a defect of 
 judgment, it surely ought not to suflerhim to engage 
 in an indefeasible society, the nature of which he can- 
 not form the smallest notion of." In like manner Lord 
 Stair, tit. 4,^6, observes, "That the common essentials 
 of consent must also here be observed, so that he who 
 cannot consent, cannot marry," — "as infants, and those 
 under age, who are not come to the use of discretion, 
 nisi malitia siippleat cBtatem, thrjt is, when the person 
 is within the years of pupilarity, commonly established 
 in law to be fourteen in males, and twelve in females; 
 yet, seeing that marriage is an obligation natural, and 
 not annullable by positive law, as to it, regard must 
 be rather had, whether the parties be truly come to 
 discretion and capacity, M-hcrcof commixion of bodies 
 is sufficient evidence. And this also is the sentence 
 of the canon law, de ilUc. c. 9, ult. de spons." Bank- 
 ton says, Book I. tit. 5, § 26, " Thus, likewise, per- 
 sons not capable to consent, Ihrongh nonage, carmot 
 marry : such as are under pu{>ilarily, viz. foiutecn 
 in men, and twelve in women, are regularly incapable
 
 4:i A DIGEST OF THE LAW Ol" 3!AK1UAGE. liOOK I. 
 
 to many." So likewise Mr Eriskine, Book I. tit. (-, 
 J^ 2, observes, "Neither idiots nor pupils can marry, 
 be( ause both are incapable of consent." 
 
 3. To the same purpose is the law of England, as 
 appears from Bacon's Abridgement, Vol. III. p. 119 ; 
 Wood's Institute, Book I. ch. 6, § 2; and Blackstone, 
 Book I. ch. 15, p. 436, uses the following words: 
 " The next disability is the want of age. This is 
 sufficient to void altogether contracts on account of 
 imbecility of judgment in the parties contracting ; a 
 fortiori, therefore, it ought to void this, the most 
 important contract of any. Therefore, if a boy under 
 fourteen, or a girl under twelve years of age, marries, 
 the marriage is only inchoate and imperfect ; and 
 when either of them comes to the age of consent 
 aforesaid, they may disagree, and declare the marriage 
 void, without any divorce, or sentence in the Spiritual 
 Court. This is founded on the civil law ; but the 
 canon law pays a greater regard to the constitution, 
 than to the age of the parties^ for if they are habilas 
 ad matrimoniuDt, it is a good mairiage, whatever 
 their age may be ; and in our law, it is so far a mar- 
 riage, that if at the age of consent they agree to con- 
 tinue together, they need not be married again." 
 
 4. Our Confession of Faith, or the standard of our 
 national church, in the second article, titled the "So- 
 lemnization of Marriage," assert-, " That the jiarties 
 are to be of years of discretion, (it to make their own 
 choice ; or, upon good grounds, to give their mutual 
 consent."
 
 Til. 1. OF THE DISABILITIES OF ^lAKIilAGE. 43 
 
 5. Some of the old Roman lawyers appear to have 
 disputed whether or not the habitus corporis, at least 
 with regard to males, ought to be regarded, as well 
 as the age, in questions ot" marriage. This, however, 
 was settled by Justinian, and the age alone establish- 
 ed as the rule, in order to prevent the impudiaim in- 
 spectioneni corporis, as appears from the following 
 passage of liis Institute. " Pupilli pupilleeque, cum 
 puberes esse coRperint, (u) tutelaliberantur. Puberta- 
 tem autem vetercs quiJem non solum ex annis, sed 
 etiamex habitu corporis in masculis a^stimari volebant. 
 Nostra autem majestas dignum esse castitate nostro- 
 rum temporum (exislimans,) bene putavit : quod in 
 foeminis etiam antiquis impudicum esse visum est, id 
 est, inspectionem habitudinis corporis, hoc etiam in 
 masculos extendere. Kt ideo (nostra) sancta consti- 
 tutione promulgata, pubertatem in masculis post de- 
 cimum quartum annum completum illicoinitiumac- 
 cipere disposuimus : antiquitatis normam in foiminis 
 bene positam, (in) siio ordine relinquentes, ut post 
 duodecim annos complctus vlri potcntcs esse credan- 
 tur" hisf. B. 1. tit. 22. Here it is laid down, that 
 the marriageable iigc is fourteen years in males, and 
 twelve in females, and this was held to be nprcesiuNp- 
 tio juris et de jure, the inspectio corporis being dis- 
 charged in males and females, and so the matter has 
 been understood by all the commentators ; and the 
 above rule has prevailed generally throughout Eu- 
 rope. 
 
 0, The gencralily of women in great Biitain be-
 
 44 A DIGEST OF THE LAW OF MAPJUAGE. BOOK I. 
 
 gin to be viri poteiites at the age of twelve : and in 
 JioUer climates, at eight, nine, or ten. Mahomet mar- 
 ried one of his wives at five, and consummated the 
 marriage at eight, as we read in Prideaux's Life of 
 Maliomet : and Montesquieu says, that in the hotter 
 parts of xVrabia, and in the Indies, eight is considered 
 to be the marriageable age, and they frequently bear 
 children in their tenth year : and in hot countries, 
 married women are considered to be old and infirm at 
 the a^e of thirty. Ahaz, the son of Jotham, King 
 of Judah, about the tenth year of his age, was espou- 
 sed to Abijtdi, the daughter of Zechariah, by whom 
 he had his son Hezekiah, about a year after. 
 
 7. In the preceding Title we took occasion to no- 
 tice, upon the autliority of the Rcg'iam Majestatem, 
 Skene, and Craig, in treating of ward-holdings, now 
 happily abolished, that fourteen years was considered 
 to be the, ^iiarriageable age of females, and twenty- 
 one of males : and that the fee returned to the supe- 
 rior, and continued in his hands during the minori- 
 ties of the vassal. The feudal law fixed upon that 
 age, when the male vassal himself was considered ca- 
 pable to serve his superior, and when the female vas- 
 sal might reasonably be expected to have a husband 
 to perform the military service. 
 
 8. Sir Thomas Craig gives the following account 
 of the matter in his Institute : — " Finitur autem 
 heec custodia post perfectam a^tatem vassalli ; qui si 
 mas fuerit, censetur perfectc© ffitatis })Ost vigesimum 
 primum annum completum, ut nuper dixi : si fcemina, 1
 
 TIT. I. or THE DISABILITIES OF MARRIAGE, 45 
 
 post (lecimum quartiim. Nam licet foemina viri po- 
 tcns dicatiircum duodecimum annum expleverit, ta- 
 men quod ad jus dominii sui attinet, in custodia 
 pennanet usque ad decimum quartum annum, quod 
 eo tempore vereet non presumptive sit nubilis ; ultra 
 quod tempus, dominus, si nan providerit ei de marito, 
 sed cessaverit earn elocare, investituram ei facere de 
 siio feudo tenetur. Kt si filia ipsa se elocaverit, mi- 
 noris aestimabitur niaritatio, ut postea dicemus." Lib. 
 II. Dieg. 20, § 21. Also see § 15 and § 18. The 
 superior was 1 kevvise entitled to a casualty upon the 
 marriage of tlie vassal, so that when he attained the 
 age proper to marriage, it was the custom of the supe- 
 rior to offer liim a wife, with whom he might receive 
 a reasonable pojtion, that being the measure of the 
 superior's casualty ; and, in case he refused, without 
 any reasonable cause assigned, he became liable to the 
 double avail per modiim poence ; and as this was a 
 perquisite of the superior's, it could not be defeated 
 by any ))remature marriage of the vassal ; and tliere- 
 foie it was, that, in order to regulate these questions 
 between the superior a:,d vassal, and to fix the proper 
 limits when an heir might marry in the lifetime of 
 his predecessor, without any presumed intention to 
 defraud his supeiior of the casualty of marriage, or 
 when it should be allowable for the superior to re- 
 quire the vassal to marjv — this was fixed at the aae 
 of fourteen complete in females, and twenty-one in 
 males. The sole consequence of marrying sooner, was 
 to give the superior certain rights, which he could 
 not have hadotherwisc. Tlie avail, value, or tax, whicb
 
 46 A DTGE8T OP THE L.UV OF ^rAPJJIAGr. BOOK T. 
 
 the superior was entitled to, was not dne, whore the 
 heir was married before the ancestor's deatli, or where 
 }ie had died before puberty. In I674, the single 
 avail was fixed by the Court of Session at three years' 
 rent of the vassal's estate, but it was afterwards re- 
 duced to two years' rent. The double avail was due, 
 where the superior offered a wife to the heir, in every 
 respect his equal, who publicly declared her readiness 
 to marry him, but whom he refused to many, and 
 married another. At first, the douhle avail was esti- 
 mated at two single avails ; but it is probable, that, 
 had it been questioned, it would have heen reduced 
 to three years' free rent of the vassal's estate. In es- 
 timating the amount of the avail, not only the ward 
 estate, but the whole free estate of the vassal, was 
 brought ill camjiuto, as it stood at the peiiod when 
 he became marriageable. The act 20th George II. 
 c. 50, abolishing ward-holdings, put an end to this 
 exaction. 
 
 9. Sir George Mackenzie, in the title of Ward- 
 holdings, Book II. tit. 4, § 3, observes : — " In female 
 vassals the casualty lasts only till 14 years complete, 
 because they may then marry husbands, who may be 
 able to serve the superior ;" implying that this is the 
 age at which they may readily be married, though by 
 the law, he lays down 12 in females as the marriage- 
 able age, and he mentions 21 to be the legal age of 
 marrying male-vassals. Thesamedistinction appears 
 from Stair and Bankton. The attaining to the age 
 of puberty, therefore, presumes, prcesumptione juris 
 etdejure, the capability of consent, unless it can be 
 
 j
 
 TIT. ir. OF THE DISABILITIES OF MARRIAGE. 47 
 
 proved that the ])arties are natural idiols, or furious 
 piTsans; and it is likewise a presuinpti<)n,y«r/*e^ de 
 jure^ that they have tlie potestas coeundi^ unless it 
 can be proved that they are naturally impotent, or 
 sterile, which leads us very briefly to introduce the 
 next disabilitv, viz. 
 
 IMrOTENCY, OR STERILITY. 
 
 K). The next disability against contracting mar- 
 riage, is impotency in men, or sterility in women, 
 wliatever the age may he. Marriage being chiefly 
 instituted for the ])rocreation of the human race, it 
 is quite clear, that if there exist defects in the or- 
 gans of generation, in b;th, or either of the sexes, 
 it cannot he held that the parties have a capacity 
 to fulfil the engagements of marriage ; and accord- 
 ingly, Bankton, in treating on that sul>ject, says, 
 Book I. tit. 5, v^ 27 — " Consummation by carnal know- 
 ledge, or at least a capacity of it, being essential to mar- 
 riage, if the man is impotent, or if the woman is Ila 
 arcln, ut mvlier fieri 71011 possit, as Ulpian speaks, L. 
 XI V. {^ 7, fl^. de (cdiL edict, the marriage is void, since 
 the end of it cannot he obtained." To the same pin-- 
 pose, IStair, tit. 4, § 6, asserts : — " 'J'hough tlu^ com- 
 mixion of bodies seems necessary aiising from mar- 
 riage, yet the opinion of the canon law is true, 
 consensus^ lion coitus, facit matriinoniuin. But this 
 consent must especially relate to that conjunction of 
 bodies, as being tlien in theconsenter's capacity, other- 
 vi^ise it is void ; so that the consent of persons natu-
 
 48 A DIGEST OF THE LAW OF MARRIAGE. BOOK I. 
 
 rally impotent, or of dubious bermaplirolites, where 
 the one sex doth not eminently predominate, does 
 not make marriage." Erskine confirms this doctrine, 
 Book I. tit. 6, § 7 — " Marriage in itself is null, where 
 either of the parties is, at the time of contractiisg, 
 naturally incapable of procreation ; for such mar- 
 riage is inconsistent \\ith the procreation of mankind, 
 which is, at least, one great design of the institu- 
 tion." And in confirmation of these doctrines, we 
 adduce Huher, L. I. tit. 1, § 10, De Nuptiis, " Apti- 
 tude quidem ad generandum, essentiale matrimonii 
 requisitum est, concubitus ipse non ad fierfcctioneiH, 
 sed ad implement am pertinet." 
 
 11. If a divorce should follow upon the head of 
 impotency or steiility, ail things return Idnc ind(\ 
 l)ecause, in truth, there never was a true and legiti- 
 mate marriage: and it was so found in the case of 
 the Earl of Eglinton against Lady Eglinton, July 
 14, 1610, Haddington, Diet. 1413, Mor. 6185. In 
 the case of Lady Lennox against Lord Lovat, col- 
 lected by Colvilie, under the head of impotency, it 
 appears, that while the process was in dependence be- 
 fore the Commissaries, the lady claimed an aliment. 
 It does not however appear what judgment the Com- 
 missaries pronounced upon the merits, for, during the 
 dependence of the action, it was removed to the Court 
 of Session, where the abstract question of aliment 
 came to be determined. The report bears — " During 
 the dependence of the process of divorcement for 
 impotency, although the suit was at the vvifes in- 
 stance, vet, in the meantime, the Lords found — She
 
 TIT. ft.' OF THE DISABILITIES OF MARRIAGE. 49 
 
 was to be alimented at the husband's charges. — 23d 
 March, 1579-" This was so decided, allowing- an ali- 
 nient, although the husband offered to take her home. 
 To the same purpose is the case of Logan against 
 Wood, 26th March, 1561— Balfour 99, Mor. 339, 
 where the Court found a wife entitled to an aliment, 
 pending the suit. 
 
 12. It must not be expected tliat the incapacities 
 attending impotency or sterility, can be here suffi- 
 ciently described ; but to supply this defect as far as 
 possible, we have considered it necessary to refer to 
 an account of the subject from a late work upon Me- 
 dical Jurisprudence, by an enlightened author, Dr 
 Farr, under the head of Divorce, and from which 
 an extract will be found in the Appendix. 
 
 IDIOTRY OR FURIOSITY. 
 
 13. The third disability is Idiotry or Furiosity, 
 than which surely there cannot be exhibited more 
 substantial grounds for prohibiting marriages, or an- 
 nulling them after they are entered into. An idiot 
 may be held to be a natural fool or changeling, one 
 without the powers of reasoning; and a furious per- 
 son, one who is mad, phrenetic, raging, violent, im- 
 petuous, transported by passion beyond reason. And 
 surely it can never be supposed that creatures in these 
 circumstances are capable of cool and deliberate 
 thought and reflection ; hence they cannot act or 
 judge for themselves, far less for others, in matters of 
 
 D
 
 50 A DIGEST OF THE LAW OF MARPJAGE. BOOK Ir 
 
 the most trivial concern, and doulttless in no view can 
 they be considered capahle to enter into, far less to 
 perform, the sacred and civil contract of marriage; 
 but shoidd unwarily any of the sex be entrapped in- 
 to marriage in these circumstances, at an unguarded 
 moment, there must doubtless be found a remedy to 
 annul it. 
 
 14. Bankton, Book I. tit. 5, § 26, says, *' The 
 consent of the parties contracting is essential to mar- 
 riage, and therefore idiotry or furiosity hinders par- 
 ties from marriage, because they cannot give consent 
 for want of judgment ; hut supervening madness will 
 not annul a marriage aheady constituted. Multa 
 impedhmt nmlrlmoniwn contrahendmn quce non dU 
 rimunt contr actum. ^'' Stair, tit. 4, p. 31, observes, 
 " And the common essentials of marriage must also 
 he here observed, so that he who cannot consent, can- 
 not marry, as idiots and furious persons." Erskine, 
 Book I. tit. 5, § 2, states, " Neither can idiots marry, 
 because they are incapable of consent." He considers 
 them incapable of committing crime. Book I. tit. 
 4, § 7, he notices, *' But lesser degrees of fatuity, 
 or furiosity, which only darken reason, without to- 
 tally obscuring it, afford not a total defence to the 
 pannels, but barely save from the pcena onUnaria.''* 
 Guardians are wisely provided to this description of 
 persons. The same author, Book I. tit. 7, § 27, says,. 
 " that curators are given to idiots or furious per- 
 sons." Of the first sort, he observes, " Idiots or furi- 
 ous persons are entirely deprived of the faculty of 
 reason. The distemper of the furious persons does
 
 TIT. II. OF THE DISABILITIES OF MAKRIAGE. 51 
 
 not consist of the defect of reason, but an overheated 
 imagination, which obstructs the application of reason 
 to the purposes of life. Ahhough furious persons 
 cannot marry, yet when the furiosity happens after 
 marriage, it will not be a ground for voiding it." 
 
 15. And in reference to the above doctrine, we 
 have to bring into view the only case, so far as we can 
 discover, of a marriage being annulled, upon the head 
 of idiotry, where the husband was an idiot from his 
 birth, viz, Blair v. Blair, June 28, 1748. Kilkerran. 
 Here the marriage was found null, soon after a liv- 
 ing child was born. The marriage was annulled by 
 the Commissaries, and a bill of advocation refused ; 
 " after many months' cohabitation, and the birth of a 
 child, upon proof being brought that the pretended 
 husband was an idiot from his birth." The particulars 
 of the case are these :— " John Blair, second son of 
 tlie deceased David Blair of Borgue, insisted in an 
 action before the Commissaries of Edinburgh, for an- 
 nulling the alleged marriage of Hugh, his eldest bro- 
 thei*, on the ground that the said Hugh is, and from 
 his infancy has been, so far in the state of idiotry, as 
 to be incapable of giving his consent in any contract, 
 and more especially incapable of the matrimonial 
 vows." The Commissaries allowed either party a 
 proof before answer. The defender complained of 
 this judgment by bill of advocation, insisting that the 
 Commissaries were incompetent to judge of a ques- 
 tion of idiotry, it being only cognoscible before the 
 Judge Ordinary, by an inquest of fifteen sworn men. 
 But it being answered, that this was an incidental
 
 52 A DIGEST OP THE LAW OF MARRIAGE. BOOK I. 
 
 question, it was competent for the Commissaries to 
 determine it incklenfer^ ad liunc effectumy as tliey 
 might do upon forgery, although not judges in for- 
 gery ; and in support of this position, the case of 
 Robert Prinole was referred to. The Lords remitted 
 to the Lord Ordinary to refuse the bill of advocation. 
 Upon advising the proof, the Commissaries found : — 
 " That the defender had been from his youth a natu- 
 ral fool, and void of that degree of reason and under- 
 standing which is necessary to the entering into the 
 marriage contract, and therefore found the preten- 
 ded marriage between him and the defender, Nicholas 
 Mitchell, to have been from the begining, and to be 
 in all time coming, void and null." The defender 
 having again brought the case before the Court by 
 bill of advocation, the Lords remitted to the Lord 
 Ordinary " to refuse the bill ;" and this they did, 
 notwithstanding that Nicholas Mitchell, the pretend- 
 ed wife, was in the interim delivered of a child. 
 
 FORBIDDEN DEGREES, 
 
 16. The fourth disability to marriage is the rela- 
 tion of the parties, within certain degrees forbidden 
 by our law, either of consanguinity - or affinity. Mar- 
 
 2 Consanguinity is the relationsliip of persons descending from the 
 same ancestors ; it is either lineal or collateral. Lineal or direct con- 
 sanguinity is that formed between the persons generating and gener- 
 ated, and is either descending, as in the case of parent or child — or 
 ascending, as from the child to the parent. Collateral consanguinity,
 
 TIT. II. or TUE DISABILITIES OF MAIIRIAGE. 53 
 
 riage in the direct line is forbidden in infinifum, as it 
 is also in the collateral line, where one of the parties 
 is loco 2^cirentis to the other, as grand- uncle, great- 
 grand-uncle, &c. 
 
 But we do not consider it necessaiy liere to en- 
 large, as we beg leave to refer to Stair, tit. 4, § 4, 
 and subjoin the authority of Mr Erskine, our latest 
 institutional writer upon the su]>ject, and which em- 
 braces tlie Jewish law, and our acts of Parliament, as 
 the ground of our law on this subject. His words 
 are. Book I. tit. 6, § 9, " i^s to the degrees in which 
 marriage is prohibited, the law of Scotland has adopt- 
 ed the Jewi.sh law by act 1507, c. 15, declaring that 
 marriage shall be as free as God liath permitted it, and 
 that seconds in the degrees of consanguinity and affi- 
 nity, and all degrees further removed, contained in 
 the word of God, may lawfully marry, by which man- 
 ner of reference it would seem that our legislature 
 hath considered the Law of Moses in that matter to 
 be obligatory upon all nations. By Leviticus, c. 18, 
 
 termed also transverse or oblique, is that which subsists between per- 
 sons descending from the same ancestor, but not from one another, as 
 brothers, uncles, and ncpliews. Affinity is the relationship arising 
 from marriage between the liuslxMid and the blood-relations of tlie 
 wife — and between the wife and the blood-relations of the husband. 
 Thus the relations of the husband stand in the same <legree of afiinity 
 to the wife, in which they are related to the husband by consanguinity. 
 But there is no affinity between tlie kinsmen themselves. Thus the 
 husband's brothers, and tlie wife's sister, have no afiinity. Ex. gr. 
 Solomon made afiinity with riiiiruoh, by espousing his daughter. — 
 1st Kings, iii. 1. Jehushaphat joined in affinity with Ahab, when he 
 took his sister Athaliah to be the wife of his sou Jehoram. — 2d 
 Clxrou. xviii. 1.
 
 54 A DIGEST OF THE LAW OF MARllIAGE. EOOK I. 
 
 the following iiile.^ are established, either expressly or 
 by consequence, " ist, Intermarriage between ascend- 
 ants and descendants in the direct line is forbidden 
 in injinitum, let the degrees of propinquity between 
 the parties be ever so distant ; for such marriages are 
 universally agreed to be repugnant to the law of na- 
 ture, and deitrucliveof the ties of birth; Grot, de Jur. 
 Btll. L. II. tit. 5, § 12, ver. 2. ^dly, Marriage, even 
 in the collateral line, is forbidden ininjinitum, where 
 one of the parties is loco 'parentAa to the other, /. e- 
 where he is brother or sister to the direct ascendant 
 of the other party. Thus one cannot intermarry with 
 bis grand-niece, though he be as far removed from 
 her in degree as first cousins are, both by the com- 
 putation of the civil and the canon law. ^Ml'^j, In 
 every instance which falls not under either of these 
 two rules, marriage is lawful in the second degree, 
 according to the canon law, or in the fourth, accord- 
 ing to tlie Roman ; and, consequently, cousin-ger- 
 mans may intermarry, and all that aie farther remov- 
 ed than they. It may be observed, that the Act 1567, 
 which was enacted not long after the Reformation, 
 has folloAved the rnle of the canon law, as it was the 
 common way of computing degrees in Scotland at 
 that time, and continues to this day among the vul- 
 gar. ¥hi}j. The degrees prohibited by the law of 
 Moses in consanguinity are in every case virtually pro- 
 hibited in affinity ; and by the aforesaid Act 1537, 
 the proliibition is equally broad in the degiees of affi- 
 nity as in those of consanguinity. Thus, one carmot 
 marry his wife's sister more than he can his own.
 
 TIT. II. OF THE DISABILITIES OF MARRIAGE. 55 
 
 In all this matter tlie rules are the same, by the law 
 of Scotland, whether the parties he related by full or 
 half-blood." 
 
 17- On this subject, we find in the Confession of 
 Faith, under the title, *' The Solemnization of Mar- 
 riage," p. 517, " That marriage is to be bt'twixt one 
 man and one woman only ; and they such as are not 
 A^ithin the degrees of consanguinity or aflinity prohi- 
 b ted by the Word of God ; and the parlies are to be 
 of years of discretion, fit to make their ciioice, or upon 
 gnod grounds togivetheir mutual consent." The same 
 standard of our Church, C. 21. S. 4, lays down the 
 following rule as to marriage between those connected 
 in affinity : — "The man may not marry any of his 
 wife's kin(h-ed nearer in blood than he may of h s 
 own, nor the woman of her husband's kindred nearer 
 in blood than of her own." — Liv. C. 20, v. 19, 2D, 21. 
 
 BIGAMY, OR POLYGAMY. 
 
 18. The fifth disability to contract marriage, is the 
 previous marriage of either of the parties still subsist- 
 iujr — hence the crime of Bigamy. This crime of hav- 
 ing two wives at once, or, according to the canon 
 law, the marriage of a second wife— or of a widow 
 —or of a woman already debauched, were, in the 
 Church of Rome, considered as bringing a man un- 
 der some incapacities, or ecclesiastical offences. By 
 the Papal canons, a clergyman who has a wife, can- 
 not hold any ecclesiastical benefice, much leso can a
 
 5G A DIGEST OF THE LAW OF MARRIAGE. BOOK I. 
 
 bigamist have any benefice according to our law. By 
 Act 1551, c. 19, in the reign of Queen Mary, the 
 crime of bigamy was held to be of so malignant a na- 
 ture, whether committed by the man or the woman, 
 that it was declared punishable with the pains of 
 perjury. These are confiscation of goods, imprison- 
 ment, and infamy. Baron Hume, formerly many 
 years an eminent Professor of the Scots law in the 
 University of Edinburgh, seems to think, that, in 
 order to found a charge of bigamy, both marriages 
 must be completed by formal celebration; but this 
 point has not yet been settled by any precedent.—- 
 Hume, Vol. I. p. 455, et seq. 
 
 19. Stair, in the subjoined passage, is of opinion 
 that, by the law of nature, every man ought to con- 
 tent himself with his own wife, and vice versa. He 
 says, tit. 4, § 3, Conj. Oblig. " That the affection of 
 the property and chastity of women, and animosity 
 and jealousy that ariseth in men naturally upon the 
 breach thereof, both evince that, by the law of nature, 
 every iifian ou2,ht to content himself with his own 
 wife, and women not to be common, for, as no man 
 can endure the communication of his own, so it must 
 necessarily follow, that he should not encroach upon 
 other's property. And, seeing nature holds not a pro- 
 portion betwixt the male and the female, whereby 
 every man might appreciate more, it must therefore 
 subsist in one, and so was the first institution by 
 God, and allthe posterior directions in his word are 
 — for a man and his wife, not his wives ; and as the 
 man halh not power over his body, but the wife, so it
 
 TIT. II. OF THE DISABILITIES OF MARRIAGE. 57 
 
 were an absurd inconsistency if that power were in 
 many, and so behoved to resolve into a management 
 by the common consent of the wives." Mr Erskine, 
 Book IV. tit. 4, § 54, gives a concise definition of the 
 crime of bigamy. " The crime of bigamy," says he, 
 " consists in one's entering into the engagements of a 
 second marriage, in violation of the duties he owes to 
 his first wife, whose marriage is still subsisting; and it 
 is not only an offence against chastity, but a species 
 of perjury ; for he who takes on him the second mar- 
 riage vovv^s, while under tlie impression of an oath, 
 counteracts his first engagement, and pretends to 
 oblige himself by oath to duties, which by a former 
 oath he had been rendered incapable of performing. 
 Bigamy is of tv/o kinds, on tliepart of the man, and 
 of the woman. When a woman marries while a for- 
 mer husband subsists, it is doubtless tlie most cri- 
 minal of the two, for where the use of the same woman 
 is common to two men, the issue of that promiscuous 
 conjunction cannot know their proper father, nor the 
 father his child. This sort has, therefore, been re- 
 probated by the laws of all nations. The other kind, 
 which is the relation of two or more wives to the 
 same husl>and, has been tolerated by the Jews and 
 the Romans ; but all bigamy is prohibited by the pre- 
 cepts of the Gospel : and it is punished by our law, 
 whether on the part of the man, or of the woman, 
 witli the pains of perjuiy." 
 
 20. On this head it maybe observed, that bigamy, at 
 least for a time, has some rej-emblance to a man first 
 ^clandestinely marrying one woman, and afterwards
 
 58 A DIGEST OF THE LAW OF MARRIAGE. liOOK. I. 
 
 manying another in facie ecclesice ; the first irregular 
 nianiage having, af.er trial, turned out valid, and of 
 which, with the exceptions of the case of Campbell ??. 
 Coclirane, and Napier v. Napier, the following ai'e ex- 
 amples; — In Campbell v. Cochrane, or Kennedy, July 
 28, 1747, Falconer, I. 271), Mor. 10,456, it was final- 
 iy decided in the Commissary Court (the case hav- 
 ing been previously snhmitted to the review of tlie 
 Court of Session, and House of Peers), thnt a second 
 marriage, in facie ecdesicE, was preferred to an al- 
 leged first marriage of twenty years' cohabitation, 
 and private written declarations of Captain Campbell, 
 Alison, Pennycuick, and Son, against Grinton and 
 Graitie, Dec. 15, 1752, Fac- Coll., where an irregu- 
 lar marriage and the issue of a child were preferred to 
 an after marriage in facie ecclcsice, grounded inter 
 alia upon the judicial declaration of the defender, im- 
 porting a promise of marriage, and subsequent co- 
 pula. Napier against Napier, June 13, 1801, but not 
 collected, in which asecond marriage, m/ac/^tcc/^^/^, 
 was preferred to a first marriage, by habit and repute, 
 of an ambiguous nature. Inglis against Robertson, 
 Maich 3, 1768, Fac. Coll., where a judicial declara- 
 tion was found to constitute marriage, notwithstand- 
 ing a subsequent marriage in facie ccchsicE. And in 
 Gordon v- Dalrymple, Haggart's Rep. p. 59, July 11, 
 1811, decided by the learned and enlightened Lord 
 Stowell, importing that an irregular marriage, found- 
 ed upon mutual written declarations da pr(Bsentt^^\\ 
 implied concuhitns, and other circumstances, establish 
 a marrii^ge, noluitlislanding of a subsequent mar- 
 riage in England in facie ecc!es:(c. 
 
 I
 
 TIT. II. OF THE DISABILITIES OF MARRIAGE. 59 
 
 ADULTERY. 
 
 2^1. The last disability is the crime of Adultery. 
 Adultery may be considered to be uncleanness be- 
 tween a man and a woman, one or both of whom be- 
 ing married to another person. By the Levilical 
 L.aw, adultery was punished with death in both sexes ; 
 Lev. XX. 10 ; Deut. xxii. 22 ; " Yea, stoned to death ;" 
 John viii. 5. Gur ancient law, to be now mentioned, 
 acting perhaps upon the same principle with the Jew- 
 ish law, punished the committers of notour adultery 
 capitally ; but subsequently the puuibhment of adul- 
 tery, in its various shapes, was considerably modified. 
 By act 15SSi c. 55, it is specially declared that tlie 
 adulterers cannot legally marry. If they were so 
 permitted, it is quite clear that they might with 
 impunity connive at their own crime, nnd annul pre- 
 vious lawful marriages at pleasure. And, therefore, 
 the Legislature long ago passed an act, declaring such 
 marriages null and void, and the i-^sueof such illicit 
 conjunctions to be incapable to succeed as heirs to 
 their parents. The ^ame act declares, that the party 
 injiirer loses all benefit accruing through the mar- 
 riage ; but the party injured halh the same benelit 
 as by the other's natural death. It was so found 
 in the case of Lady Manderston v. the Laird of Ren- 
 ton, March 21, 1G27, Steiir, xlii. tit. iv. § 16- By 
 the act l.:.jl, c £0, adulterers (by bigamy) shall be 
 denounced rebels, ])ut to the horn, and their move- 
 ables eschtatid, kc- ; " and sua na application inter-
 
 60 A DIGEST OF THE LAW OF MARRIAGE. BOOK I. 
 
 poned fraethe censures of public kirk to suspend the 
 horning." By the Act of Mary, June 4, 1563, c. 7K no- 
 tour adultery is punislied with death- " It is statute 
 and ordained by the Queen's majesty and three estates 
 in Parliament, that all notour and manifest commit- 
 ters of adulterie in time to come, after the date here- 
 of, sail be punished with all rigour unto the deatli, as 
 ■well the woman as the man." By Act of James, 1581, 
 c. 105, explaining the act touching the notour and 
 manifest committers of adultery, it is declaretl, "That 
 it shall be judged in law notour adulterie, worthie of 
 the said paine of death, quhar there is bairnes, ane or 
 mae, procreat betwixt the persons adulterers, or quhen 
 they keep company and bed togidder, notourislie 
 known? or quhen they are suspect of adulterie, and 
 thireby give sclander to the kirk, quhairupon upon 
 beino' dewlie admonished to abstain and satisfie the 
 kirk be repentance or purgation, and zit contem- 
 plaundlie refusand, are excommunicate for their ob- 
 stinacie, all thir three degrees of adulteries, and every 
 one of them, being called and convict before the jus- 
 tice and his deputes, shall incur and suffer the said 
 pains of death." And by the Act James VI. 1592, 
 c. 117, "a woman guilty of adultery cannot sell to 
 the prejudice of her lawful children, or her other heirs 
 whatsoever." 
 
 22- Stair on this subject, tit. 4, p. 32, observes, 
 that " all do agree that adulterie hath some effect 
 upon marriage; the canon law doth not thereupon 
 dissolve it, that the party injured may be free to marry 
 again, but only granteth separation. But our Sa-
 
 TIT. II. OF THE DISABILITIES OF MAliRIAGE. Gl 
 
 viour's precept slioweth the contrary, who, in rela- 
 tion to the custom that there was of divorce for light 
 causes, resolves, that putting away was not lawful, 
 except in the case of adultery, and so in that case ap- 
 proves the divorce even as then used : Matth. xix. 9. 
 It may be doubted whether the adulterer, after the 
 dissolution of the marriage upon his default, may 
 marry again. But although positive law, as a penalty 
 upon adulterers, may hinder their marriage with the 
 adulteress, or otherwise declare such marriages as to 
 succession and civil effects void, yet it cannot simply 
 annul it as to any other person they may marry. 
 With us marriage betwixt the two committers of adul- 
 tery is declared null, and the issue inhabilitated to 
 succeed to their parents. Pari. 1600. c. 20. But 
 otherwise the person guilty may again marry." ^ 
 
 23. Damages against adulterers have been given 
 in sundry instances. In Stedman against Cooper, 
 damages were awarded against an adulterer, the per- 
 son havingpreviously obtained dccreeof divorce against 
 his wife, SOtli January 1744. Kilk. Diet. 4427. Mor. 
 7339. In Maxwell against JNlontgomery, damages 
 were found for corrupting a wife called Lenocinmm, 
 without pursuing a divorce : ]\Iarch 7, 1783. Fac. 
 Coll. Diet. 4227. Mor. 13919. And in Paterson 
 against Bone, a husband was entitled to an action of 
 damages against an adulterer, without any previous 
 
 ^ Formerly simple fornication was rigorously punished, viz. by 
 imprisonment, pillory, a fine, and ducking ; vide Stair, 1. C. 1567, 
 c. 13. But the Lords found this act in desuetude; July 8, 17G8, 
 Donaldson, and lined only in L.IO, iu terois of the act 1661, c. 38<
 
 C2 A mClEST OP THE LAW OF MARRIAGE. BOOK I. 
 
 process of divorce, 10th December 1803. Fac. Coll. 
 Mor. 13920. 
 
 Men guilty of adultery are bound to restore the 
 tocher, of which we liave an instance in the case of 
 Janet Auchinleck against James Stewart, 18th De- 
 cember 1540, noticed by Balfour, p. 99. In the case 
 Lady Restalrig against the Laiid of Restalrig, ob- 
 served by Lord Colvill, March 23, 1579, fol. No. 5/1, 
 in a declaration at the wife's instance against her 
 husband for adultery, the Court refused to remove 
 him from certain lands in which she was infeft, in 
 respect that she had not raised and insisted in a pro- 
 per declarator of suit for that purpose, but still re- 
 taining the pi-inciple. And in Lyall against Dou- 
 glas, 22d June 1670, Gosford, Die. 123. Mor. 329, it 
 was found that an adulterer could not marry an adul- 
 teress^ and their issue were declared illegitimate.
 
 (J3 
 
 TIT. III. 
 
 OF CONSENT. 
 
 1 . In an early period of society, every contract of any 
 iinportance wasentered intowith form and solemnity. 
 This was necessary, as, before writing came to be in- 
 troduced, it was requisite that all agreements should 
 be attended with some striking circumstances, suffi- 
 cient to make an impression upon the minds of the 
 parties and spectators. A rigid adherence to these 
 solemnities gradually wore out. The liberal advance- 
 ment of society inclined men to pay more regard to 
 the substance than to the form of justice; and to give 
 eflect to every obligation, whenever it coukl be shown 
 with certainty that sufficient ground for such enforce- 
 ment existed. In no country is this obvious principle 
 of natural justice and equity more attended to than 
 in Scotland. Law and equity are in fact the same ; 
 for, what is not equity, will not he found to be law. 
 2. This is illustrated by considering the law of 
 marriage. Upon the introduction of Christianity into 
 Kurope, the contract of marriagecameto be esteemed 
 a Sacrament, and, of course, to be entered into only 
 with striking solemnity. It had by the Roman law 
 been considered merely as a civil contract ; and the 
 Canonists, notwithstanding the sacred character
 
 G4 A DIGEST OF THE LAW OE MAERIAGE. BOOK I. 
 
 they bestowed upon it, so far adopted the principle 
 of that law as to hold the children to be legitimate, 
 although the parents had never celebrated the sacra- 
 ment, if there had heen an acknowledgment of the 
 parents that they had been married, or if they had 
 lived together as husband and wife. Upon tlie Re- 
 formation, a manifest alteration as to the form of this 
 contract took place. That great event concurring 
 with the natural advancement of liberal sentiment, 
 struck out all superstitious and unnecessary forms ; 
 so that, from that period, marriage came to be consi- 
 dered purely as a civil contract, and, of course, held 
 to be legally constituted by the same circumstances 
 which were deemed sufficient to constitute any other 
 civil agreement. 
 
 3. By the law of this country, then, marriage is a 
 consensual contract. The consent of 'parties, if they 
 are of lawful age, and not disabled otherwise, is the 
 essence and only indispensable requisite ; nor is it of 
 any consequence, in what manner it shall be made 
 appear that such consent was adhibited. It may 
 either be express or tacit. It may be either given 
 verbally or in writing; or it may be inferred from cir- 
 cumstances and the conduct of the parties, as is the 
 case in cohabitation, where consent is inferred from 
 the parties living together as man and wife ; by pro- 
 mise and subsequent copula, &c. 
 
 4. Such is clearly the opinion of our most eminent 
 writers upon the law. Sir Geo. M'Kenzie, after de- 
 fining marriage to be the conjunction of husband and 
 wife, vowing to live inseparably together till death, 
 says, B. I. tit. 6, § 2, "By conjunction Ijere, consent
 
 TIT. irr. OP roNSEXT. (t^ 
 
 is understood. Nam consensus, non coitus, facit 
 matrimonium. Consent is either de futuro, or dr 
 •prcBsentl. Consent de futuro, is a promise to so- 
 lemnize the marriage, which, in law, is called sponsa- 
 lia; and this is not marriage, for either party may 
 resile, reiw* infegris, notwithstanding th intervening 
 promise, or espousals. Consent de prceseyiti is that 
 in which marriaoe does consist, and thei-eforeit neces- 
 sarily follows, that none can marry except those who 
 are capable to consent." In like manner Lord Stair 
 observes. Tit. 4, § 1, " Though marriage seems to be 
 a voluntary contract by engagement, because the ap- 
 plication of it is, and ought to be, of the most/r^e 
 consent, and because, in matters circumstantial, it is 
 voluntary, as in the succession of the issue, and the 
 provision of the wife aud children, yet that marriage 
 itself, and the obligations thence arising, are^wre di- 
 vino'* Again, "it maybe questioned whether thecon- 
 j unction wherein marriage consists, be a conjimction 
 of minds hij mutual consent, to the married state, and 
 that whetlier privately, or in the public solemnity, 
 or whetlier rather it be a conjunction or commixion 
 of liodies. For clearing whereof, consider that it is 
 not every consent to the man-led state that makes 
 mati imony, but a consent de prcescuti, and not a 
 promise de futuro matrimonio ; for this promise is 
 only the espousals which aic premised to marriage, 
 and that so solemn an act might he done with due 
 deliberation." And, after referring to the canon and 
 civil law, lie says, "so that the matter itself consists 
 not in the ])romise, but in the present consent, where- 
 by th-'v accept each ether as husband aud wife; whc-
 
 C6 A DIGEST or THE LAW OF ]MAREIAGE. BOOK I. 
 
 tber that be by words expressly, or tacitly by marital 
 cohabitation, or acknowledgment, or by natural com- 
 mixion, where there hath been a promise, or espou- 
 sals preceding, for therein is presumed a conjugal con- 
 sent de pi-cisenii.'" His Lordship adds, " As to the 
 other point, though the commixion of bodies seems 
 necessary, for the constitution of affinity arising from 
 marriage, yet the opinion of the canon law is true. 
 Consensus, non coitus, facAt matrimonium \ but this 
 consent must specially relate to that conjunction of 
 bodies, as being then in the consenter's capacity ; 
 otherwise it is void." To the like purpose Bankton, 
 B. I. t. 5, § 2, says, " Marriage, which in the canon 
 Jaw is termed espousals de prcEsenii, requires words 
 importing d^ present consent to that state. It is the 
 conjunction of man and woman, in a constant and 
 perpetual society of life. Marriage is perfected by 
 sole consent, for copula or carnal knowledge is only 
 the consummation of it." Again, B. 4, t. 45, § 46, 
 "Marriage is constituted by tlie mutual consent of 
 the parties before consummation ;" and then lie re- 
 cites the rule of the Koman law, Nupfias non con- 
 cubitus sed consensus facit, and shows how the con- 
 sent to marriage is to be known or proved. And Mr 
 Erskine, in treating upon consent as essential to mar- 
 riage, observes, B. 1, t. 6, § 2, " marriage is truly a 
 contract, and so requires the consent of the parties : 
 and it is constituted by consayit alone, by the conjunc- 
 tia animorum ; ^o that, though the parties, after con- 
 sent given, should, by death, disagreement, or other 
 cause whatever, happen not to consummate the mar- 
 riage conjunctione corporam, they are, nevertheless.
 
 t;t. in. or CfJXSLNT. CT 
 
 entitled to all the legal rights consequent on mar- 
 riage." And in section 5, he says, " The consent 
 essential to marriage is either express or tacit. Ex- 
 press consent, in regular marriages, is signified by a 
 solemn vow of the parties, accepting each other for 
 their lawful spouses, uttered before a clergyman, 
 who thereupon declares them married persons. But 
 it is not essential to marriage, that it is celebrated 
 by a clergyman ; the consent of parties may be 
 expressed before a civil magistrate, or even before 
 uitnesses, for it is the consent of parties which con- 
 stitutes marriage. And hence the same statute, 
 which declares that no person can be a minister 
 without episcopal ordination, takes it for granted, 
 that marriage, celebrated by a person who is not or- 
 dained by a bishop, is valid, 1672, c. 9. Marriage 
 may be also, without doubt, perfected by the consent 
 of parties, declared by writing, provided the writing 
 be so conceived as necessarily to import iheiv present 
 consent. The proof of marriage is not coiiiined to the 
 testimonies of the clergymen and witnesses present at 
 the ceremony. The subsequent ackiiowledgiuent of 
 it by tlie parties is sufficient to supj)ortthe mairiag(», 
 if it appears to have been made not in ajocular man- 
 ner, but seriously, and with deliberation. Thus, a 
 marriage was sustained against tlie husband, Febru- 
 ary 173 \ Arrot, chiefly on his owning it to tlie mid- 
 wife, whom he had called to assist his wife in the 
 birth, and to the minister, whom he had desired to 
 baptize tlie child, without any actual proof, either of 
 the marriiige, or of the parties cohabiting together as
 
 68 A DIGEST OF THE LAW OF MARRIAGE. LOOK I. 
 
 married persons. In illustration of the doctrine here 
 stated by MrErskine,and in confirmation of which he 
 has given thecase,Young(7^«m*^ Arrot, we will brief- 
 ly mention three other cases : — In the first, M'Kay 
 against Peggy Ferguson, 1781-2 (not collected), it 
 was found that a verbal declaration before witnesses, 
 followed by a bedding, nudus cum nuda, established 
 a marriage. 2d. In Margaret Aitken, a Scotswoman, 
 against Topham, an Englishman, decided in 1782 
 (not collected), it was found, that verbal declarations, 
 on several occasions, by an Englishman to a Scotswo- 
 man, in Scotland, constituted marriage. 3J. In the 
 still more recent, but not less important question. 
 Walker against M'Adam of Craigingillen, it was 
 found, by the Commissaries, the Court of Session, and 
 House of Peers, that Mr M'Adam's acknowledging 
 before witnesses the pursuer to be his lawful wife, 
 and that two children were their lawful issue, on the 
 forenoon of the day on which he died, established 
 a marriage. March 4, 1807. Fac. Col. 13617, No. 
 275, Mor. Ap. 1. Proof No. 4. 
 
 5. It is well known that in ancient Rome there were 
 three ways of creating the relation of marriage, Usus, 
 Coi}farreatio, and Coemptio. To one of these only, 
 Confarreatio, the intervention of the priest, Pontifex 
 MaximuSy and the Flamen JDialis, as observed in 
 Rennet's Antiquities of Rome, was necessary. In the 
 more or less solemn marriagesof the Romans, is proba- 
 bly to be seen the source of the present regular and irre- 
 gular marriages of Scotland. In thisrespect, indeed, the 
 law of Scotland is the same as the law of every coun-
 
 TIT. III. OF CONSENT. 69 
 
 try in Europe was, prior to the decree of the Council 
 of Trent, in the year 1563, which, while it asserted, in 
 the strongest manner, the prior validity of clandes- 
 tine marriages, and denounced anathemas against 
 those who should deny it, declared them null in fu- 
 ture, on grounds of expediency.^ 
 
 6. In France, after the time of the Council of 
 Trent, the benediction of the priest became an essen- 
 tial requisite of marriage ; for although the authority 
 of that decree never was there acknowledged, because 
 it was thought to encroach in many respects upon the 
 liberties of the Gallican Church, and the temporal 
 power of princes, yet the Kings and the Church of 
 France gave force by their own edicts and canons to 
 thos^e parts of it which met with their approbation. 
 Dupin's Eccles. Hist. vol. iii. p. 648, et seq. Hence 
 the modern origin of the nullity of clandestine mar- 
 riages in France, whereas, in every other country sub- 
 ject to the Popish power, they were valid, and even 
 held sacred, prior to the time of the Council of TrcnI. 
 
 1 This noted Council was held in the Bishopric of Trent, a province 
 of Germany, in the Circle of Austria, situated upon the Alps. It sat 
 •with some intermissions, from the year 1545 to 1663, when the doc- 
 trine of the Pope's Infallibility, Transubstantiation, &c. were con- 
 firmed. The Council was first opened under Paul the 3d, on 13th 
 December 1545, continued under Julius the 3d, interrupted under 
 Marcellus the 2d, and Paul 4th, by the wars and troubles of the con- 
 tinent, re-opened by Pius the 4th, January 18, 15G2, and terminated 
 about the year 1563, and was confirmed by a Bull signed by the legato 
 of the Holy See, who, according to the i)ractice of all ages, presided at 
 the Assembly.
 
 70 A DIGEST OF THE LAW OF MAKIUAGE. BOOK I. 
 
 Although in France marriage is considered as a sacia- 
 ment, yet a celebration by the consent of parties, in 
 presence of a notary public, had all the civil effects 
 of a marriage before the ordonnance of Blois altered 
 the law. Inst. par. M. Argen, liv. 3, cap. 2, § 13. — 
 The present law of that nation, holding marriage to 
 be a civil contract, commences the ceremony before 
 the Pr^efect, or civil magistrate, after which the priest 
 may bestow the nuptial benediction. — Code Napo- 
 leon. 
 
 7. In Holland the public law, as a matter of order 
 and decency, prescribes certain solemnities of mar- 
 riage ; but marriages otherwise contracted are valid, 
 and may be enforced in the spiritual courts. Habit 
 and repute is there held to constitute marriage ; and 
 espousals, even without a subsequent copula, are held 
 to be a sufficient ground to declare a marriage com- 
 pleted, in cases where one of the parties refrains from 
 an actual celebration. — Bras we r, de Jure Connub. 
 p. 255. 
 
 8. By the Common Law of England, the consent of 
 parties was the only essential requisite to constitute 
 marriage, until the statute of the 26th Geo. II. c. 33, 
 introduced a new rule : — " Any contract," says Black- 
 stone, B. 1, c. 15, § 5, ^' u\2iAe per verba de prcesefitiy 
 or in words of the present tense, and in case of coha- 
 bitation per verba de futuro, also between persons 
 able to contract, was before the late act deemed a 
 valid marriage to many purposes, and the parties 
 might be compelled in the spiritual courts to cele- 
 brate it in facie ecclesicE.'" The same enlightened
 
 TIT. III. OF CONSEXT. 71 
 
 author remarlvs, that, " By the act Geo. II. marriage 
 was not held valid unless accompanied with the bene- 
 diction of the priest, in some parish church or chape], 
 after prochimation of banns, or by hcence or dispen- 
 sation from the Archbishop of Canterbury." But, 
 inter alia, in reference to the statute, Blackstone 
 adds, " this is merely Juris posiiivi, and not Juris na- 
 turalis aut dimni •'^ in which last opinion Stair con- 
 curs. Vide Burn's Ecclesiastical Law, vol. ii. pp. 421, 
 4^22, 436', and 437. 
 
 9. The Athenian virgins, before they could law- 
 fully marry, were bound to present themselves before 
 the shrine of Diana, and offer sacrifices, in order to 
 appease her resentment for their intention to depart 
 from tlic single stale. At Sparta, when two persons 
 had agreed to marry, and when the preliminaries 
 were settled by a female match-maker, she shaved 
 the bride, dressed her in men's clothes, and left her 
 vsitting upon a mattress. The bridegroom stole pri- 
 vately to her, and having staid a short time, stole as 
 privately away. The laws of the Spartan republic 
 obliged the married couple to observe the same 
 studied privacy in their intercourse with each other, 
 during the whole of their lives. 
 
 10. Anciently the Hebrews wore crowns on their 
 marriage day, and it seems the bridegroom's was j)ut 
 on by his mother, Song iii. 11. The ceremonies cf 
 marriage continued three days for a widow, and seven 
 for a virgin ; Gen. xxix. 27 ; Judges, xiv. 17, 18. 
 During this time, the young men and young women 
 attended the bridegroom and bride in different apart- 
 ments, and the former puzzled one another with rid-
 
 72 A DIGEST OF THE LAW OF MAHKIAGE. BOOK I. 
 
 dies; Song v. 1 ; Psal. xlv. 9, 14, 15, Jiidg. xiv. A 
 friend of the bridegroom's governed the feast, that no 
 drunkenness or disorder might be committed; John, 
 ii. 9, iii. 29. At the end of the feast, the parties were 
 with lighted lamps conducted to the bridegroom's 
 house. The bridegroom, leaving his apartment, call- 
 ed forth the bride and her attendants, who, it seems, 
 were generally about ten ; Matth. xxv. 1-10. The 
 modern Jews retain the most of these ceremonies; 
 only, since the ruin of their city and temple, the 
 bridegrooms wear no crowns on the marriage day. 
 They generally marry widows on Thursday and vir- 
 gins on Friday. On the evening before, the bride is 
 led to the bath by her companions, making a sound 
 with kitchen instruments as they go along. Being 
 washed, she returns, and her friends sing the mar- 
 riage song at the door of her father'' s house. On the 
 marriage day^ the bridegroom, and especially the 
 bride, dresses herself as fine as possible. A number 
 of young men attend the bridegroom, and young wo- 
 men the bride. They are ordinarily married under 
 the open air, on the bank of a river, or in a court, 
 garden, &c. The parties, each covered with a black 
 veil, and with another square veil with four hanging 
 tufts on their heads, are placed under a canopy. The 
 Rabbin of the place, the chanter of the synagogue, or 
 the nearest friend of the bridegroom, taking a cup full 
 of wine, and having blessed it, and thanked God for 
 the creation and marriage of the sexes, causes the 
 parties to taste the wine. Next, the bridegroom, by 
 putting a golden ring on the hand of the bride, weds
 
 TIT. III. 
 
 OF CONSENT. 73' 
 
 her to be his wife. The contract of marriage is then 
 read, and the bridegroom delivers it into the hands of 
 the bride's relations. Wine is brought in a brittle 
 vessel, and being six times blessed, the married couple 
 drink thereof, and the rest of it, in token of joy, is 
 cast on the ground ; and the bridegroom, in memory 
 of the ruin of their city and temple, with force dashes 
 the vessel to the ground. When, at the end of the 
 marriage feast, they come into the bridegroom's house; 
 and, after a long blessing sung over in Hebrew, they 
 take supper ; after which the men and women, at 
 least sometimes, dance a little, not in our lascivious 
 and mixed manner, but the men and the women in 
 different apartments. After rehearsal of another long 
 blessing or prayer, the bride and bridegroom retire. 
 
 11. The Armenians, Georgians, and Circassians, 
 in their marriage ceremonies use the ring, as an em- 
 blem of eternity. The priest performs the ceremony 
 in the church, and he anoints both the bride and the 
 bridegroom, by pouring consecrated oil upon their 
 heads. The relations of the parties come dressed in 
 white, and the young women accompany the bride, 
 with natural or artificial garlands, according to the 
 season of the year ; and when the ceremony is over, 
 they place them under their feet at the church door. 
 Songs of love are sung before the new-married couple 
 on their return home, and the evening is spent in 
 every sort of festivity. 
 
 12. The ceremony of the Society of Friends, or 
 Quakers, is attended with much decency aud solem- 
 nity. Previous to the ceremony, the man and woman
 
 74 A DIGEST OF THE LAW OF MARllIAGE. BOOK I. 
 
 j)resent themselves at a monthly meeting of the So- 
 ciety where they reside, and there declare their inten- 
 tion of taking each other as husband and wife, if the 
 meeting have no material objections against it. The 
 principal conditions of acceptance are the following : 
 1st, It is a rule that no man propose marriage to a 
 woman without the previous consent of his own and 
 her parents, or guardians ; but if the unbridled af- 
 fections of any should have precipitated him into a 
 breach of this rule, he is required to remove the of- 
 fence, as is also the woman, and to give satisfaction 
 to such parents, or guardians, and to the meeting to 
 which they belong, by a due and open acknowledg- 
 ment of the offence, and to get the consent of their 
 guardians before they can proceed with the marriage. 
 2d, That the parties be of the same opinion and judg- 
 ment in matters of religion, and professed members 
 of this society. 3d, Tliat none shall marry within 
 such degrees of consanguinity or affinity as are for- 
 bidden by the law of God. And 4th, That if either 
 party has given scandal or offence to their friends, 
 they shall acknowledge it. If no objections are then 
 made, notice of the intended marriage is puhlished 
 in the meetings where the man and woman reside, or 
 did reside, which must be done before the marriage 
 is solemnized, in order that convenient time may be 
 granted for satisfaction concerning all scandal, &c. 
 The parties are required to give their attendance a 
 second time at the monthly meeting, which is usually 
 the next ensuing, when the persons appointed to make 
 the inquiry return and give the answer, which, if
 
 TIT. III. UP CO>;SKNT. 7.) 
 
 found satisfactory, the parties are at liberty to proceed 
 to the solemnization of the marriage. The marriage 
 is solemnized in the ordinary meeting on a weekday, 
 usually Thursday. Towards the conclusion of the 
 meeting, the parties stand up, and, taking each other 
 by the hand, declare, in an audible and solemn man- 
 ner, to the following effect : — The man first says, 
 " Friends, I take this, my friend C. D. to be my 
 wife, promising, through divine assistance, to be unto 
 her a loving and faithful husband, until it shall please 
 the Lord by death to separate us." The woman, in 
 like manner declares, "Friends,! take this, my friend 
 A. B., to be my husband, promising, through divine 
 assistance, to be unto him a loving and faithful wife, 
 until it shall please the Lord by death to separate 
 us." After this, a friend of the man or woman reads 
 publicly a certificate of the marriage, the names and 
 designations of the parties being first inserted. They 
 then sign the certificate, the man first, then the wo- 
 man, by her maiden name; the relations next, and, in 
 further confirmation, such of the members present as 
 choose mav adhibit their names, but do not add wit- 
 ness. The ceremony here closes, and the happy coujde 
 leave the chapel, arm in arm, man and wife, with- 
 out a priest's blessing, or any further solemnity. 
 
 13' It is unnecessary here to mention any more of 
 the different modes of celebrating marriage as proofs 
 of consent, as, in the Appendix, will be found the 
 outlines of marriages in most of the states of the civi- 
 lized world, and the history of our Scottish marriages 
 will afterwards be given at considerable length. It is,
 
 7*1 A DIGEST OF THE LAW OF MAKRIAGE. BOOK I. 
 
 however, material to observe, that there is but one 
 l)iinciple which pervades them all, viz. that the ma- 
 trimonial union is, in all cases, to be established by 
 consent alone, and that the formalities which the laws 
 of different states require, are nothing more than so 
 many modes of declaring or substantiating this con- 
 sent- They all have a reference to the publicity or 
 evidence of the marriage ; but the source of the obli- 
 gation is consent, which founds the relation of hus- 
 band and wife, anterior to all other succeeding cere- 
 monies and formalities, and to any carnal connexion. 
 From the very nature of the thing, it could not be 
 otherwise ; for it were absurd to rest in any degree 
 the validity of a permanent and rational society for 
 life, on the momentary gratification of an animal pas- 
 sion ; and it may be affirmed, without the fear of con- 
 tradiction, that in every nation on the globe, which is 
 but one stageremoved from the confines of barbarism, 
 the constitution of marriage is derived from consent, 
 duly authenticated, independent of the co/j;'w/?c//ocor- 
 porum- A moment's consideration will show that this 
 must necessarily be the case, wherever society and re- 
 finement of manners have advanced so far as to make 
 a distinction between the legitimate and illegitimate 
 intercourse of the sexes- For what is the mark of the 
 distinction? Abstracting from the degrees of con- 
 sanguinity and affinity, wherever the relation of hus- 
 band and wife is established, the conjunctio corponcm 
 between them is lawful. In every case where that 
 relation does not exist, carnal connexion is criminal 
 and unlawful From this it clearly appears, that the
 
 TIT. Til. OF CONSENT. 77 
 
 relation of husband and wife must necessarily be crea- 
 ted, and exist hy free consent antecedent to any carnal 
 copulation, otherwise such conjunctio corpo7'um,m op- 
 position to the conjunctio animorum, would be illegi- 
 timate, and a mere act of fornication, which could 
 never establish a marriage. 
 
 14. Accordingly, it has been universally received, 
 that consent alone, antecedent to copulation, is the 
 constituent principle of the matrimonial union. It 
 existed even in the Mosaic Institutions, for it is 
 said, Deut. xxii. 23, 24 : '* If a damael that is a 
 virgin he betrothed unto a husband, and a man 
 find Iter in the citt/^ and lie with her, then ye shall 
 bring them both out into the gate of that city, and 
 ye. shall stone them with stones that they die. 7 a e 
 damsel because she cried not, being in the city, and 
 the man because he hath humbled his neighbour s 
 WIFE. So thou shall 'put away evil from among you^ 
 Here a woman betrotherl, though she should continue 
 a virgin, is considered as a wife, and he who violates 
 her chastity is punished as a per.'^ on committing adul- 
 tery with the wife of his neighbour ; which clearly 
 shows that in the Mosaic law carnal copulation was 
 by no means necessary to establish the relation of 
 husband and wife. The ancient Romans adopted the 
 same principle, at the earliest period of the history 
 of their law to which our knowledge extends. The 
 established maxim of the civil law, accordingly, was, 
 *' Nuptias Jion concubitus sed consensus facit."' — 
 Digest. Lib. 50, t. 17,De Regnlis Juris. 1. 30.— This 
 maximhas been acted upon in every nation in Europe,
 
 78 -A. DIGEST OF THE LAW OP MARKIAGE. BOOK I. 
 
 for about 2000 years. Its meaning cannot admit of a 
 doubt, and is demonstrated by accumulated autho- 
 rities. 
 
 15. Whether the lau' of Scotland borrowed its 
 idea of marriage from the Mosaic institutions, or 
 from the Roman code, or whether the same principle 
 of enlightened reason, which produced the idea at 
 Home, taught it also in Scotland, is at the present 
 day a subject of inquiry more curious than useful. 
 The perspicuity and conciseness of the I^atin phrase 
 has recommended it to general use in conveying the 
 sentiment; but it is at least possible that the idea 
 e?^isted among us before we knew well either the 
 Corjms Juris, or the Law of Moses, or the Gospel. 
 This, however, is a matter of no moment ; for it is 
 most certain that, from the earliest period of time to 
 which our knowledge extends, the maxim has been 
 received with us, as well as other nations of Europe, 
 in its fullest extent. Accordingly, as has been said, 
 marriage was considered as a civil consensual contract, 
 wliich, like every other contract of that kind, is per- 
 fected solely by consent, when adhibited in the man- 
 ner which the law holds as sufficient evidence of the 
 fact. 
 
 16. A time was, indeed, after the introduction of 
 Christianity, when marriage came to be considered 
 by the Roman Church as a sacrament. But it is 
 certain that tbiis did not derogate in the smallest 
 degree from the principle, that consent is the sole 
 fountain of the matrimonial obligation. This doctrine 
 will apoear to derive additional force from the ideas
 
 TIT. III. OF CONSENT. 70 
 
 of the Roman Church concerniug the nature of the 
 sacrament ofmariiage, for even there, it was the consent 
 of the parties alone, not the benediction of the priest, 
 or any ecclesiasiical ceremony, that imparted to mar- 
 riage its sacramental quality. This was the opinion 
 of the Fathers, and the established doctrine of the 
 Chnrch itself. Accordingly when, in the Council of 
 Trent, the queslion was debated, whether marriages 
 contracted by children in family, without the consent 
 of their parents, should be declared null, John de Tre- 
 visa. Patriarch of Venice, opposed the declaration of 
 nullity, on this ground — ** That the Ciiurcli had no 
 power to disannul such marriages, because it could 
 not make void a sacrament, which had both matter 
 and form ; that the essence of the sacrament of mar- 
 riage consisted only in mutual consent ; that the 
 sacramental quality could not he^ token away, where 
 such consent was had ; and that it icas contrary to 
 natural right for the marriage of two persons, ivho 
 were of age to have children, to depend uj)on the 
 father's ivilL'' — Dupin's Ecclesiast. Hist. fol. edit, 
 vol. iii. p. 613. i\ltliough concerning the nullity 
 of the marriages of children in family, ^vithout the 
 consent of their parents, there was much ditference of 
 opinion in the Council, yet the Patriarch stood un- 
 contradicted in the position, that the essence of the 
 sacrament of marriage consisted only in the consent 
 of the parties. This opinion is confirmed by that of 
 the Cardinal of Lorraine, in the same Council, who, 
 as reported hy tlie same author, p. 613, said, *' That 
 he wished they would pid into On: decree, that, hcsidcs
 
 80 
 
 A DIGEST OF THE LAW OF MARRIAGE. 
 
 BOOK I. 
 
 the other sotemnities, the hlessijig of the priest might 
 be necessary to make the marriage a sacrament f 
 a request with which the Council do not appear 
 to have complied, hut which demonstrates that, prior 
 to this time, the benediction of the priest was not 
 necessary^ and that, according to the Patriarch, mar- 
 riage was made a sacrament by the consent alone of 
 the parties. To the same purpose speaks one of the 
 learned Fathers and Doctors, Martene de Antiquis 
 EcclesicB Ritibus, vol. ii. lib. 1, ch. 9, art. 3, § 6, 
 p. 347, where, after describing the preliminaries of the 
 ceremony of marriage, he says, " Sistebantur {i. e. 
 sponsus et sponsa) sacerdoti ad portas ecclesise, qui, 
 secundum quosdam, eos interrogare debebat, de fide 
 quam profitebantur. Deinde datis sibi mutuo doxtris, 
 exigebat ah utrisque consensum, in quo totam sacra- 
 menti matrimonii essentiam reponebant antiqui,"&c. 
 From these authorities it will be seen, that consent 
 alone was not only the principle of the constitution 
 of marriage, but formed the very essence of the sacra- 
 ment. Whether, therefore, marriage is to be consi- 
 dered as a sacrament or not, is of no moment; the 
 principle appears to be equally supported by the civil 
 law, and by the established doctrine of the Church. 
 17. After the Reformation, however, it is certain 
 that with us marriage, ceasing to be a sacrament, re- 
 turned to its original nature of a civil consensual con- 
 tract. The obligation of marriage, the relation of hus- 
 band and wife, is therefore created by consent alone, 
 when given de jircesenti, and legally proved. Con- 
 Junctio corporum, though iti* a natural coni;equence.
 
 TIT. lir. OF CONSENT. 81 
 
 is but the mere fulfilment of tlie contract. It is, so 
 to speak, pars negotii of the copartnery, after it is 
 completely established by consent. It is one of the 
 duties, or effects, of the union, which neither party 
 can justly refuse, after the contract has been once 
 concluded by consent ; but it is for that very reason, 
 among others, no part whatever of the constituent 
 obligation of marriage ; for miptias non concuhitus 
 scd consensus facit. Such was the idea of the law of 
 Scotland from the earliest times, and still continues 
 to be the established law. This proposition, the ge- 
 neral principle of which has been already explained, 
 is supported by our eminent institutional writers, as 
 ■will be found in § 4 of this title. And the same 
 authorities prove, that the same principle is applicable 
 to marriage of every description, whether regular or 
 irregular, whether private or public ; for no distinc- 
 tion has been made in this respect, although it is 
 trltissimi juris, that besides celebration in facie ec- 
 clesicp, there are several other modes of contracting 
 marriage by the law of Scotland. 
 
 18. From the superior respect due to the public 
 solemnity, clandestine marriages were indeed discou- 
 raged, both by the Church, and by civil forfeitures 
 and penalties ; but the marriages themselves were, 
 nevertheless, at all times valid by the law of Scotland. 
 Nay, more, above 1500 years after the introduction of 
 Christianity elapsed, before any attempt was made by 
 the Papal power on the Continent to annul clandes- 
 tine marriages. It is true, that from the ninth cen- 
 tury, as appears from the history of the Church, there
 
 82 A DIGEST OF THE LAW OF ^rAF.niAGE. BOOK I. 
 
 were several decrees of Councils, forbiddiiifr and dis- 
 couraging clandestine marriages by ecclesiastical pu- 
 nishiiients, such as excommunication ; and the decree 
 of the Lateran Council, held in the year 1215, under 
 Pope Innocent HI., expressly prohibited clandestine 
 marriages ; ordered proclamation of banns to be made 
 in churches ; imposed penalties on those who should 
 countenance or authorize clandestine marriages ; but 
 did not declare them void. It was only in the 24th 
 session of the Council of Trent, in 1563, that these 
 marriages were declared null ; but, prior to that timc^ 
 clandestine were as valid as public marriages, in every 
 country in Europe subject to the Papal jurisdiction. 
 Of this there is convincing evidence from the decree 
 of the Council of Trent itself, which asserts the prior 
 Validity of clandestine marriages in the strongest 
 terms, butassigns reasons of expediency for declaring 
 them null in future. 
 
 19. The decree of the Council of Trent, in 1563, is 
 entitled "Decree concerning the Reformation of Mar- 
 riage :" and the preamble of it, which is given both 
 in Dupin's Eeclesiastical History, vol. iii. p. 623, and 
 in the fourteenth volume of the Decrees of the Coun- 
 cils, p. 876, is in the following words : — " Though 
 there is no question but clandestine marriages made 
 with the free consent of the contracting parties, are 
 true and valid marriages, so long as the church does 
 not make them null j and consequently, that those 
 are to he condemned, as the Holy Council does con- 
 demn them, with an anathema, who deny them to be 
 true and valid, and who falsely affirm, that marriages
 
 TIT. III. OF COXSEXT. 83 
 
 contracted by the children of the family, witlioiit the 
 consent of their parents, are null, and that the pa- 
 rents may ratify them, or make them void ; yet the 
 Holy Church of God has for very just reasons always 
 detested and forbidden them. But the Holy Coun- 
 cil, perceiving that these prohibitions are not now of 
 any use, by reason of the disobedience of mankind, 
 and reflecting upon the heinous sins which proceed, 
 from such clandestine marriages, and particularly 
 upon the state of damnation in which those live who 
 leave their first wife, whom they married clandes- 
 tinely, and publicly marry another, \vith whom they 
 live in continual adultery, which evil the Church, 
 which judges not what is hidden, cannot prevent, un- 
 less some more powerful remedy be applied, doth or- 
 dain, pursuant to the steps of the Holy Council of 
 the Lateran, which was held under Innocent HI., 
 that for the future," &c. And then, agreeably to 
 the decision of the Lateran Council, the decree orders 
 banns to be thrice proclaimed before any marriage is 
 celebrated ; butgivespowertotheordinaiy todispense 
 with the proclamation for good reasons, which the 
 Council leaves in his discretion. The decree after- 
 wards goes on to annul, in the following words, all 
 marriages otherwise contracted than is thoreby allow- 
 ed: — '* Qui alifer quam prase ute jjaroclio, vel alio 
 sacerdotc, de ipsius parochi seu ordinarii licentia, et 
 duobus vel tribus testibus, matrimonium contrahere 
 attentabunt, eos sancta synodos ad sic contrahendum, 
 ornnino inhahiles reddit : et hujusmodi contractus ir- 
 ritos et nullos esse decernit, prout cos prsesenti decre-
 
 84 A DIGEST OF THE LAW OF MAEFvIAGE. BOOK I. 
 
 to irritos facit et annullat. Insuper parocliiim vel 
 alium sacerdotem qui cum miiiore testium numero ; 
 et testes qui sine parocho vel sacerdote hujusmodi 
 contractu! iiiterfucrint, nee non ipsos contrahentes, 
 giaviter, arbitrio ordinarii, puniripigecipit-'* By this 
 decree alimarriages not celebrated hy a priest, are 
 declared null ; which confirms the strong assertion in 
 the preamble, that such marriages were formerly va- 
 lid, otherwise there would have been no occasion for 
 enacting the nullity introduced by the decree. If any 
 more evidence on this subject were necessary, it would 
 be found in the proceedings of the Council of Trent, 
 as given by the reporters of the transactions of that 
 Council. 
 
 20. Pallavicino, in his History of the Council of 
 Trent, Lib. xxiii. c 9, § 2, p. 275, gives the opinion 
 of the legate Osius in the following words : *' Osius 
 legatus misit postridie, ad synodi scribas, hujusmodi 
 scriptum, de matrimoniis clandestinis, sentire se id 
 quod hactenus ecclesia censerat, a qua illicita, non ir- 
 rita existimata sunt. Eam igitur novitatem sibi non 
 placere, adversantem doctrinae qua? ad id usque tem- 
 poris acceperat ab ecclesia." And Petrus Suavis Po- 
 lanus, commonly called Father Paul, in his history of 
 the same council, gives the opinions of other learned 
 Fathers to the same purpose. The Bishop of Salme- 
 ron, who was for having clandestine marriages decla- 
 red null in future, did not question their validity in 
 former times. He only dwelt on the inconveniences 
 resulting from them. He was followed by the Z>e- 
 canus Parisiensisy who opposed the nullity of clan-
 
 •nr. III. OF coxsENT. 8,5 
 
 destine marriages, and whose words are given us by 
 Father Paul, Lib. viii, p. 537. Secutus est postridie 
 Decanus Parisiensis de institutione matrimoni, &c. 
 ** At super articulo de clandestinis matrimoniis, cum 
 disseruisset vera esse et matrimonia et sacramenta, 
 dubitationem inject, an ecclesia potestatem haberet, 
 ea irrita infectaque dicendi." And then, in answer 
 to the Bishop of Sabiieron, he affirmed tliat the 
 Christian Cliurch had for 1500 years submitted to 
 the law, which, in reference to the validity of clan- 
 destine marriages, was now described as intolerable. 
 His words arc, " Ecclesiam christianam per annos 
 mille qiiingentos huic jnri, consuesse, quod jam tan- 
 quam intolerabile describitur : immo quod non mi- 
 nuris estimandum, a principio mundi, matrimon"a 
 clandestina valida fuisse ; neque cuiqnam unquam in 
 ir:entem venisse ut ea rescindere vellet/* 
 
 21. In tlie enacting words, therefore, as well as in 
 tlie preamble of the decree of the Council of Trent, 
 and in the proceedings of the Council, there is satis- 
 factory evidence, that in every country of Europe 
 where the Papal power prevailed, clandestine mar- 
 riages were valid prior to the Council of Trent i elf, 
 in 1563, which for the first time declared them null; 
 biit this decree never was received, nor had the least 
 authority in Britain. It was enacted after the com- 
 mencement of the Reformation, and even after its 
 complete establisliment by law, both in England and 
 ill Scotland. 
 
 2^. We shall close this part of the title of Consent, 
 by introducing son.e of tlie expounders of the ( ivil
 
 86 A DIGEST OF THE LAW OF MARRIAGE. BOOK T. 
 
 law, all bearing upon our authorities in the law of 
 Scotland. "Tliere is nothing," says Mr Taylor, 
 Chancellor of Lincoln, in his Elements of Civil Law, 
 p. 30J, *' in the whole consideration of matrimony, 
 which the Roman lawyers have inculcated with half 
 the vehemence as this single position, viz. That the 
 very essence and foundation of it consists in consent 
 alone." The truth of this opinion is supported by a 
 multitude of authorities. Huber, Lib. i.tit. 10, § 1, 
 De Nuptiis, p. 23, after giving a definition of mar- 
 riage, says, "Vox conjunctio, non tarn actum conjun- 
 gendi, qui per consensum fit; quam statum conjugii, 
 exprimere videtur." And then, after illustrating this 
 position, he says, " Kerum tamen est^ solo nuptias con- 
 sensu perfici ; aptitudo quidem ad generandum, essen- 
 tiale matrimonii requisitum est, concubitus ipse non 
 ad perfectionem, sed ad implementum pertinet." 
 The same author, Huber, Lib.xxiv. tit. 2. De Divortiis 
 ,€t Repudiis, after laying down the distinction be- 
 tween spousals de prcBsenti, and those de futuro, and 
 maintaining that the latter may, but that the former 
 cannot, be resiled from, by mutual consent, says, 
 " Sponsalia qua? de prsesenti vocantur, esse ipsum 
 matrimonium, habetur in C. 25, d. tit. et vidimus ad 
 tit. desponsal. nee ideo mutuo consensu dissolvuntur, 
 C- 3, eod. ; nee adeo ob alias quam propter quas ma- 
 trimonium rescindere licet,de quibus inferius, dissolvi 
 possunt. Adeo, ut si quis post sponsalia de prgesenti 
 cum una contracta, dein aliam sibi despondeat, etsi 
 posteriora concubitu adimpleta fuerint, priora tamen 
 preeferenda sint." This opinion is express and clear.
 
 TIT. in. OP CONSENT, ' 8T 
 
 tliat marriage is completed by consent de j)rcBsenti 
 alone, antecedent to any conjunctio corporum ; in so 
 nnicl), that a marriage contracted in that manner, is 
 preferred to a posterior one, even followed by copula. 
 
 23. Vinnius, Lib. i. tit. 9, p. 5 delivers precise- 
 ly the same opinion, saying, " Verum quidem est 
 matrimonium solo consensu perfici." 
 
 24. Voet, I^ib. xxiii. tit. 2, § 2, &c,, says, " Con- 
 trahuntur nuptia) secundum prsecepta Juris Romani 
 consensu quomodocunquedeclarato, verbis autfacto." 
 By the same passage it appears, that if consent was 
 adliibited, the deduc'io in domum was not essential to 
 but merely held as evidence of, the marriage. After 
 stating, " Necessaria non fuerit festivitas, ulla nup- 
 t alis," he proceeds, "Et nominatim, nuptias, sine 
 deductione sponsas in domum sponsi, ratasesse ex solo 
 consensu; sigiiificationemque tabularum dolaliuni, 
 riec non sponsa? deductioiiem in domum sponsi, ple- 
 rumque etiam post contractum matrimonium fieri, 
 Scasvola autor est, 1. pen. in pr. if. de donation, inter 
 vir. etuxor. Nee his adversatur responsum Pomponii 
 et Ulpiani in 1. mulierem ; 5- ff". h. 1. 1. cui fuerit; 
 1.5, ff. de condit, et demonstrat. et d. 1. pen. § 1. ff. 
 de donat inter vir. et uxorem ; cum deductio hu- 
 jusmodi non tam ad substantiam matrimonii perti- 
 nucrit, quam potius ad probationem ejus j eodem 
 modo, quo et ipsa adhihitio aqua) et ignis cujus in 
 d. 1. pen. £eque ac deductionis, mentio est, tantum ad 
 festivitatem et probationem, non substantiam nup- 
 tiarum pertinet ; idque in susidium, quoties anibi- 
 guum erut ob deficieates alias probationes, an iiup-
 
 88 
 
 A DIGEST OF THE LAW OF MARRIAGE. 
 
 BOOK I. 
 
 t'.a3 essent iriitae nee ne, uti id satis significatum ab 
 Aureiiario in ]. 6. c. de donation, ante nuptias, dum 
 donatfB rescripsit, cum in te simplicem donationem 
 dicas factum esse, die nuptiarum, et in ambiguum 
 possit venire, utrum a sponso an a marito donatum 
 8it ; sic distinguendum est, ut si in tua domo donum 
 acceptiim est, ante nuptias videatur esse facta donatio ; 
 quod se penes si dedit sponsus, retrahi possit ; uxor 
 enim fuisli. Quod ut majus intelligatur, sciendum 
 est, uxorem diici potuisse et preesentem, et absentem. 
 Si pia^sens duceretur, nulla opus fuisse sponsas in 
 duinum sponsi deductione ; sin absens, nee tunc ne- 
 ce^sariam fuisse in domum sponsi deductionem, si alise 
 adessent consensus interpositi probationes." This 
 author draws a clear line of distinction, that merits 
 attention, between the consent which was essential 
 to the constitution of marriage, and those forms which 
 were only adhibited as evidence of that consent. 
 
 25. The opinion of Cujacius concurs entirely with 
 those already cited. In his Commentary on the Pan- 
 dects, Lib. xxiii. Digest. Lib. xxiii. tit. 2, Tie Ritu 
 Nuptiarum, voL i. page 800, he says, "Nuptia quo- 
 que conventiones sunt, et nudo consensu constitu- 
 untur, qua de causa hypothecls comparantur, et fiunt 
 etiain inter abs.ntes sicutsponsalia." The same au- 
 thor, in his Commentary on tlie Codex, Book v. tit. 
 1, Dc Spoiisalihus tt Arris, after stating that matri- 
 mony, like emp'io venditio, toccUio,societas, and otlter 
 consensual contracts, is perfected nudo consensu, pro- 
 coeds as follows : — "Matrimonium inquam nudo con- 
 sensu perficitur; nam neque verba, neque scripturaj
 
 TIT. III. OF CONSENT. 80 
 
 proprietatem desiderat. Neque doteQi,neqiie conciiT 
 bitum, neque pompam, neqiie uxoris deductionem in 
 domum viri, 1. pen. fF. de donat. inter vir. et uxor- 
 1. si donationem, inf. de nupt. quae sunt quidem per 
 consequentias matrimonii propria, sed reliqua, non 
 principalia, quas rem negotiumque confidant ; nudus 
 consensus rem conficit," In other parts of his work, 
 Cujacius proceeds still farther to inculcate and illus- 
 trate the same doctrine. He maintains that consent 
 alone induces and creates the conjunction of man and 
 woman, as well as the coition of bodies. He con- 
 tends that this coition, or conjunctio cor2JO?^mn, is the 
 very subject about which parties bargain in contract- 
 inr^ marriage ; and, therefore, it seems absurd to 
 suppose that it should form both the obligation and 
 the subject matter of the contract. 
 
 26. The last authority with which we shall detain 
 our readers is that of Gotliofredus. He distinguishes 
 between the cause or constituent obligation of mar- 
 riage, which he derives from consent alone, and the 
 form or manner of declaring or authenticating that 
 consent. As to the first point, after citing the rule, 
 Nupfias non concubitus sed consensus Jacit^ which he 
 y)rofes?es to expound, and after mentioning olber au- 
 thorities on the sulject, ho says, "Non igitur r/(? 
 ccncuhif.u asstimantur nuptite, vol inde computantnr ; 
 uoque ex concuhitu nupticO satis probantur, sicuti et 
 retro secubitu, matrimonium non dissociatur, sen 
 separatione thori aut habitationis ; imo solo consensu 
 rctinentur nuptiaa. Ex solo igitur consensu nupt'as 
 seotiniantur, solaquc aninii der^tinati' no. With re-
 
 90 
 
 A DIGEST OF TllE LAW OF MAUKIAGE. 
 
 BOOK I. 
 
 gard to the second point, namely, the manner of de- 
 claring or authenticating the consent, he says, " Alia 
 vero jam questio est et ulterior, quomodo hsec animi 
 destinatio, hsec maritalis affectio, seu honor, plenus 
 honor, consensus hie declaretur, quibusque adeo con- 
 jecturis matrimonium contractum censeatur : de quo 
 late JVlenochiuB, 1. praesumpt. 1. 2." He then enu- 
 merates several circumstances from which the consent 
 is inferred, such as conjunctio vitre, or cohabitation ; 
 the opinion of the neighbourhood ; Deductio in domum 
 marltl, quamv's yiondum in cubiculum mariti muiiyr 
 verier if, and some other circumstances -, but it is re- 
 markable that all these, even cohabitation, are men- 
 tioned as proofs of consent, and no otherwise infer- 
 ring or constituting marriage than as they are evi- 
 dences of such consent. His words, additional to those 
 already cited, are, "Hasc, inquam, omnia ad implia- 
 rum probationem pertinebant, non ad substantiam 
 matrimonii seu nuptiarum contrahendarum." And 
 then he concludes in the following words : " Et ita 
 quidcm etiam satisfactum jam iis qu^e vulgo objici 
 solent adversus hanc regulam. Uno verbo ; de con- 
 sensus substantia, heec lex est, cui opponitur con- 
 cubitus ; non de modis quibus consensus declaratur : 
 Item delegitimo consensu est ha^c regula." 
 
 If the truth of a proposition in law was ever de- 
 monstrated from reason a j^i^iofi and from legal au- 
 tiiority, it is this, that marriage derives its constitu- 
 tion fs'ora consent alone, antecedent to any conjunc- 
 tio corp'.rum.
 
 I 91 : 
 
 TIT. IV. 
 
 t)F MARRIAGE IN FACIE ECCLESI.E. 
 
 1. Marriage in facie ecclesice is held to be regular, 
 or public, in opposition to irregular, private, or clan- 
 destine marriages. If public, or in conspectu ecclesice; 
 jiopuli scilicet congregati in ecclesi(\ two solemnities 
 are necessary : 1st, Proclamation of banns ; i and, 
 2cl, Celebration by a clergyman of the Established, 
 or Episcopal Church, or by a dissenting minister, 
 after proclamation of banns, according to the rules 
 of the Established Church. 
 
 2. Our illustrious and learned countryman, Henry 
 Home, Lord Kaimes, in his elucidations, Art. 3, p. 
 29, observes, tliat " marriage required no solemnity 
 before the time of Pope Innocent the Third. The 
 bridegroom went to the house where the bride lived, 
 and led her home to his own house, by which simple 
 form they became man and wife." And in this ob- 
 servation his lordship in effect is supported by Voet, 
 
 ^ Banns (from ban, Teut.) used in publishing matrimonial contracts 
 in the church before marriage. In the very letter of the Canon law, 
 banns are termed " Banna sunt proclamationcs Sponsi et Sponsa;, in 
 ecclesiis fieri solitaj." C. 27, extr. de Spons. In Blount's Nome Lexi- 
 con, he calls it Clamor. Ban is a Saxon word, importing public 
 notice or proclamation. In Scotland it signifies proclaiuation in the 
 .church or churches previous to a regular marriage.
 
 92 A DIGEST OF THE LAW OF MARRIAGE, BOOK I. 
 
 L. 23, t. 2, § 2, whosays, " Etnominatim,Ruptias, sine 
 dcductione spons(B in domuin sponsi, ratas esse ex 
 Solo consensu; Signationemque tabularum dotaliiim, 
 nee 72on sponscE deductionem in domum sponsi, pler- 
 umqiie etiam post contractum matrimonii jieri^ 
 Again, " Cum deductio hiijusmodi non tarn ad suh- 
 stantiam matrimonii pertinuerity qvam pctius ad 
 prohationem ejus ; eodem modo quo et ipaa adhibitio 
 aquce et ignis cujus in d. I. pen. a que ac dcductionis 
 meniio est,'' &c. The same learned lord follows up 
 the suf ject, by observing, " But a ceremony so 
 sliglit giving occasion to many questions about mar- 
 riage, both with regard to the parties and their issue, 
 marriage in the church before the priest was estab- 
 lished as an essential solemnity. Thus, though con- 
 sent may in foro poli make a mairiage, yet, in all 
 civilized countries, certahi solemnities are requisite 
 to complete a marriage, and public utility makes 
 these solemniiies indispensable, in order to remove 
 doub's about lawful issue, and to prevent the intri- 
 cacy and uncertainty of parole evidence." 
 
 3. But the celebration of maniage ia facie eccle- 
 sice may be traced to greater antiquity than to Pope 
 Innocent the Third ; for we find it in the time of 
 Teriullian and St Ambrose, in the second and thii'd 
 centuries. They speak of the priest's blessing taking 
 place in Christian marriages. But the p:ie.>t's hlcss- 
 ii;g was not held to be essenlially necessary to mar- 
 riage." 
 
 ■^ Tlic conversion of the Scots to the Christian faith began through 
 tlic niiiiislry of I'liladiuSj about the year 430 ; :ukI froui the first
 
 TIT.- IV. OF MARRIAGE IN FACIE ECCLESI.t:, 93 
 
 From the writers on tlie canon law it appears, that 
 the solemnities requisite to the celebration of mar- 
 riage had been established at a much earlier period of 
 tiie Church. See Dictionnaire de Droit Canonique. 
 
 4. Under the pontificate of Innocent the Third, 
 in the year 1216, banns were introduced by the La- 
 teran Council, and recognised by our provincial 
 councils, which were held at Perth in the years 1242 
 and 12C9, and remained in observance down to 1661, 
 when, although of Popish origin, they were introdu- 
 ced into our kirk,^ and first published by Bishop 
 Wilkins in his Concilia Magna; BritannicEf and 
 afterwards by Lord Hailes, where we find the forms 
 for the celebration of marriage. In Canon 65, it is 
 provided, " Quum matrimonium ab ipso Deo in Pa- 
 radise noscitiir institutuin, et quoad originem, pri- 
 mum est inter alia sacramenta; ut liberiuset canoni- 
 ce de castero contrahatur, pra3cipimus, ut nulli dctur 
 fides de matrimonio contrahendo, nisi coram sacer- 
 dote, et tribus vel quatuor viris fide dignis, ad hoc 
 specialiter convocatis. Nullus sacerdos pr^esumat 
 aliquas pcrsonas matrimonialiter conjungere, nisi 
 prius terna denunciatione in ecclesiapublice et solem- 
 niter prasmissa, secundum formam Concilii Gener- 
 alis ; ita quod, qui voluerit et valuerit legitimum im- 
 pedimentum opponat." 
 
 establishment of Christianity in that country, till the Reformation, 
 their church government was Episcopacy ; but until the reign of 
 William and Mary, A.D. 1689, the Presbyterian discipline was not 
 finally established. 
 
 , ^ Kirk is of Saxon origin, and signifies church ; or it may be a con- 
 traction of two Greek words, singifying the House of God.
 
 94 A -DIGEST OF THE LAW OF MARRIAGE. BOOK I. 
 
 5. Banns, then, is the ceremony of publishing the 
 names and designations of those who intend to marry, 
 three several Sundays in the church or churches where 
 the bride and bridegroom reside, after the congrega- 
 tion is assembled for divine service, that all persons 
 who have any objections to the marriage may offer 
 them. Indeed, so necessary did the General Assembly 
 hold proclamation of banns to be, that as far back as 
 Sess. 23, Ass. 1638, Art. 21, they found marriage, 
 without proclamation, discharged, except the presby- 
 tery, in some necessary exigents, dispense therewith. 
 
 6. The reformers of our church did not consider 
 marriage strictly in the light of <t sacrament, but 
 viewed it nearly in that light, and held the celebra- 
 tion by a minister, after proclamation of banns, to be 
 necessary, as a matter of order introduced by law. 
 
 7. The First Book of Discipline, drawn up by 
 Messrs John Winram, John Spottiswoode, John 
 "VVilloch, John Douglas, John Row, and John Knox,"* 
 ministers, and presented to the nobility, anno 1560, 
 and afterwards subscribed by the kirk, and lords, un- 
 der the head of marriage, chap. 13, § 5, says, " In a 
 
 4 The Reformation was chiefly attributed to John Knox, that 
 great Reformer. Like Calvin, he seems to have been less an ene- 
 my to liturgies and established forms, than his more moderate fol- 
 lowers. There is now no liturgy in the church, and the minister's 
 only guide is, the Directory for the Public Worship of God. Mar- 
 riage is solemnized nearly after the manner of the Church of Eng- 
 land, with the exception of the ring, as an emblem of eternity, and 
 which is, perhaps improperly, deemed a relic of Popery. The ring 
 is put on the bride's left hand, on the finger next the least, because 
 it was believed a nerve reached from theace to the ^heart. — Macrob, 
 Sat. 7. 15^
 
 TIT. IV. OF MARRIAGE IN FACIE ECCLESI.12. , 95 
 
 reformed kirk, marriage ought not to be secretly 
 used, but in open face and public audience of the 
 kirk. And for avoiding of dangers, expedient it is that 
 the banns be publicly proclaimed three several Son- 
 dayes, unless the persons be so well known that no 
 suspicion of danger may arise, and then may the 
 time be shortened at the discretion of the ministry ; 
 but nowise can we admit marriage to be used secretly 
 how honourable soever the persons be; and, there- 
 fore, the Sorieday, before noon, we think most expe- 
 dient for marriage, and that it ought to be used na 
 day else, without the consent of the whole ministry." 
 App. Spottiswoode's Church History, p. 172. 
 
 8. The well-known Directory for the Public Wor- 
 ship of God, 3d February 1645, Sess. 10, ratified by 
 Charles I. Pari. S, Sess. 5, holden at Edinburgh on 
 the 6th of February same year, under the article, 
 "The Solemnization of Marriage," anxiously en- 
 joined the forms to be observed, and ordered mar- 
 riage to be publicly solemnized by a minister of the 
 word, in a place appointed by authority for public 
 worship, before a competent number of credible wit- 
 nesses. It enacts, that, " Before the solemnizing of 
 marriage between any persons, their purpose of mar- 
 riage shall be published hy the minister three several 
 Sabbath days, in the congregation, at the place or 
 places of their most usual and constant abode, respec- 
 tively ; and of this publication the minister who is to 
 join them in marriage shall have sufficient testimony, 
 before he proceeds to solemnize the marriage." It 
 further directs, that before publication of such their 
 purpose, if the parties be under age, the consent of
 
 96^ - A DIGEST OF THE LAW OF MARllIAGE. 1500K I,*^ 
 
 their parents or guardians ought to be macfe known 
 ta the church-officers, to be recorded ; the like to he 
 observed in the proceedings of all others for their first 
 marriage ; and in after marriages, the parties shall be 
 exhorted not to contract marriage without first ac- 
 quainting their parents, (if with conveniency it may 
 be done,) endeavouring to obtain their consent ; and 
 that " parents ought not to force their children to 
 marry without their free consent, nor deny their con- 
 sent without Just cause. 
 
 9. The Directory then proceeds — " After the pur- 
 pose or contract of marriage has been thus publish- 
 ed, the marriage is 7iof to be long deferred. There- 
 fore, the minister, having convenient warning, and 
 nothing being objected to hinder it, is publicly to so- 
 lemnize it, in the place appointed by authority for 
 public woiship, before a competent number of credi- 
 ble witnesses, at some convenient hour of the day, at 
 anytime of the year, except on a day of public humilia- 
 tion ; and we advise that it he not on the Lord's day." 
 
 10. And because all relations are sanctified by the 
 word and prayer, the minister is to pray for a bless- 
 ing upon them to the following effect : — " Acknow- 
 ledging our sins, whereby we have made ourselves 
 less than the least of all the mercies of God, and pro- 
 voked him to embitter all our comforts ; earnestly, in 
 the name of Christ, to entreat the Lord (whose pre- 
 sence and favour is the happiness of every condition, 
 and sweetens every relation) to be their portion, and 
 to own and accept them in Christ, who are now to be 
 joined in the honourable estate of marriage, the cove- 
 nant of their God \ and that as he has brought them 
 together by his providence, he would sanctify them
 
 f IT. fV. OF MAREIAGE IN FACIE ECCLESI^. 113 
 
 much ceremony, as the ground for proclamation. On 
 the Sunday following, while the congregation is con- 
 vening for divine service, the precentor announces^ 
 from a paper the names and designations of the man 
 and woman purposing to be married, three several 
 times, at short intervals of a few minutes, adding, 
 this for the first time — this for the second time — and 
 this for the third and last time. Even in some pa° 
 rishes, the announcement, as we are informed, is made 
 without any interval at all, and thereby defeating in 
 agreat measure the objects of the various acts and rules 
 before detailed. The session-clerk aftewards certifies 
 the proclamation in writing, for which he receives a 
 fee ; and which certificate is held to be a sufficient 
 warrant to the minister to tie the nuptial knot, which 
 he frequently does on any convenient day fixed on, in 
 the course of the ensuing week, without having given 
 his previous consent to the proclamation, or even with- 
 out any knowledge of the parties, or their circum- 
 stance's. If the consent of the minister to the procla- 
 mation of banns has been neglected, we consider it to 
 be his duty, brfore celebration, to inquire whether cle 
 facto the proclamation on three several Sundays ha» 
 been observed. In St Andrews and some other parish- 
 es, however, we have access to know, that no procla- 
 mation takes place without the previous consent of 
 the minister, a rule which we trust will be observed 
 in future : or for greater certainty in the case, where 
 neither the minister nor the session-clerk knows the 
 parties, it may be advisable, previous to issuing a 
 warrant for proclamation of banns on three severull
 
 114 A DIGEST OF THE LAW OP MARRIAGE, BOOK I. 
 
 Sundays, that an elder or householder, or both, cer- 
 tify that the man and woman have resided six weeks 
 within the parish, are reputed single persons, and 
 not within the forbidden degrees of consanguinity or 
 affinity. 
 
 26. We shall conclude this title with a summary of 
 its contents: 1. That before proclamation of banns was 
 introduced into our kirk, by the Lateran Council, 
 the bridem'oom went to the house where the bride 
 lived, and led her home to his own house, by which 
 simple form they became man and wife.— 2. That, 
 in reference to marriage in facie ecclesire^ the pro- 
 clamation of banns was introduced by the Lateranr 
 Council, under the Pontificate of Innocent the Third,: 
 in the year 1216, and recognised by our Councils,.^ 
 held at Perth in the years 1242 and 1269, and 
 remained in observance down to the act 166*1, when" 
 it was introduced into our kirk. — 3. That the Council 
 of Trent, in the year 1563, holding marriage to be one 
 of their seven sacraments,^- ordained proclamation of 
 bannsto be madeon three several Sundays, or festival 
 ^ays.- — See Brent's Translation of the History of this 
 noted Council, written in Italian by Pietro Soave Po- 
 lano, p. 784. — 4. That proclamation of banns on three 
 several Sundays was recognised by the first book of 
 Discipline, anno 1560, confirmed by the well-known 
 Directory for the Public Worship of God, 3d Feb. 
 1645, and ratified by Parliament, 6th February same 
 
 12 The Seven Sacraments in the Catholic Church are — Baptism, Con- 
 firmation, Matrimony, Holy Eucharist, Holy Orders, Penance, and Ex- 
 treme Unction.
 
 tiT. IV. OF MARRIAGE IN FACIE ECCLESIiE. Il5 
 
 year. — In the Directory, see the article titled " So- 
 lemnization of Marriage."— 5. That the rules as 
 to proclamation of banns on three several Sundays, 
 are enforced by acts of the General Assembly, par- 
 ticularly by act 1638, art. 21, and the acts 1698, 
 1699, and 1711. Then the modes of proclama- 
 tion of banns, and the necessary residence of the 
 parties desiring marriage, are pointed out, and parti- 
 cularly, that, by act of Assembly 1784, the session- 
 clerk is ordered not to proclaim persons for marriage 
 until he give intimation to the minister of the parish, 
 in a writing dated and subscribed by him, of the 
 names, designations, andplacesof residence of the par- 
 ties to be proclaimed, and obtain the minister's leave 
 to make the proclamation, with certification. — 6. That 
 as to the celebration of marriage in facie ecclesice^ we 
 have shown, that by law it can only be performed by a 
 clergyman of the Established or Episcopal church or 
 by dissenting ministers, after proclamation of banns is 
 made, according to the rules of the Established church, 
 and that no civil judge has power to celebrate mar- 
 riage.— 7. Thatby sundry acts, and especially by act of 
 Assembly 1638, Sess. 23, c. 21, not only bishops, but 
 presby teries and ministers, were indulged with apower 
 of dispensing with the canon as to the proclamation 
 of banns on three several Sundays, on extraordinary 
 occasions. — 8. That the doctrine of marriage in facie 
 ecclesicE is confirmed by quotations from our eminent 
 writers. Finally, we have closed the subject by 
 briefly adverting to the present general practice of 
 proclamationof banns, and the celebration of marriage
 
 116 A DIGEST or THE LAW OF MARRIAGE. BOOK I. 
 
 by a minister of the Established Church, in the con- 
 fident hope that the General Assembly will consider 
 the matter as of such magnitude as to induce them 
 to remit to Presbyteries to report upon the usual 
 modes and customs observed in the proclamation of 
 banns and celebration of marriage, and of their be- 
 ing registered, as enjoined by the Directory, and that 
 Presbyteries, in terms of the act of Assembly 1690, 
 take notice of all ministers within their bounds who 
 should be found guilty of celebratingclandestine mar- 
 riages, without the proclamation of banns, and be 
 censured accordingly, with a view to discover the 
 irregular practices that have crept into the parishes, ^^ 
 —and particularly as to the immoral practice of mar- 
 rying at Gretna Green, on the borders of Eng- 
 land, and other places, where a blacksmith, or some 
 such person, performs the impious ceremony — and to 
 the clergy being all tied down to one sound and le- 
 gitimate rule. — The judges, clergy, the heads of fa- 
 milies, the guardians of youth, kirk-sessions, session- 
 clerks, parochial schoolmasters and teachers, the in- 
 experienced youth of both sexes, and all persons of 
 sound discretion, are deeply interested in the law 
 of marriage, which ought to be regulated by the 
 precepts of the Gospel, which is love and charity, and 
 the wise rule of the Roman law. Consensus, non cot- 
 iuSyfacit matrimon'mm. De Regul. Jur. 1. 30, 
 
 ^3 The clergy of parishes, professors of universities, and ehapdis of 
 ease, exceed 1000 ; and in connexion with the Church of Scotland, 
 in different parts abroad, there are about 60. The clergy of England 
 are supposed to be ten time,^ the number in Scotland.
 
 I 117 3 
 
 A J. J 
 
 iiib. 
 
 l^U. TIT. V. 
 
 OF CLANDESTINE MARRIAGES. 
 
 , 1. It may be questioned how far the term clandes- 
 tine, given to marriage by our law, is correct ; for a 
 marriage of this description is held to be as valid as a 
 marriage in facie ecdesicB- There is, nevertheless, a 
 marked distinction as to the manner in which these 
 marriages are entered into ; the one is private, while 
 the other is public by proclamation of banns, and ce- 
 lebration by a minister of the gospel, and pains and 
 penalties are imposed against persons concerned in 
 clandestine mamages ; while those in regular mar- 
 riages, according to the rules of the church, are not 
 subjected to any penalty, blame, or censure; and 
 therefore, perhaps, the more proper term, likewise 
 given to it by our law, would be irregular or private, 
 in opposition to regular or public, and thereby denot- 
 ing theiropj)osite characters and qualities, or, that con- 
 sent to marriage may be given without the interpo- 
 sition of the Church, or the observance of its usual 
 forms. But, in allusion to the general acceptation of 
 the term which we have given to this title, and as de- 
 nominated by our law, the learned Lord Stowell (for- 
 merly Sir William Scott), in delivering his judgment 
 in the noted question, Gordon v. Dalrymple, 1 6th July 
 1811, elegantly remarks, "The marriage which is
 
 118 '^ A DIGEST OF THE LAW OF MARRIAGE. BOOK I. 
 
 pleaded to be constituted by virtue of some or ail of 
 the facts of which I have just given the outline, and 
 to which I shall have occasion more particularly to 
 advert in the course of my judgment, has been in the 
 argument described as a clandestine and irregular 
 marriage. It is certainly a private transaction be- 
 tween the individuals ; but it does not of course fol- 
 low that it is to be considered as a clandestine trans- 
 action in any ignominious meaning of the word ; for 
 it may be, that the law of the country in which the 
 transaction took place, may contemplate private mar- 
 riage with as much countenance and favour as it does 
 the most public. It depends likewise upon the law of 
 the country, whether it is justly to be styled an irre,- 
 gular marriage. In some countries only one form of 
 contracting marriage is acknowledged, as in our own 
 (England), with the exception of particular indulgen- 
 ces to persons of certain religious persuasions; saving 
 those exceptions, all marriages not celebrated accord- 
 ing to the prescribed form are mere nullities- There 
 Is, and can be, no such thing in the country as an ir- 
 regular marriage. In some other countries, all modes 
 of exchanging consent being equally legal, all mar- 
 riages are on that account equally regular- In other 
 countries, aformis recommended and sanctioned, but 
 with a toleration and acknowledgment of other more 
 private modes of effecting the same purpose, though 
 under some discountenance of the law, on account of 
 the nonconformity to the order that is established.'* 
 2. But, waving these technicalities, we proceed with 
 our subject, as if none such had been stated. When 
 
 A
 
 l-IT. V. OF CLANDESTINE MARRIAGES. 119 
 
 the order of the Church is observed, the marriage is 
 styled regular, or in facie ecclesice^ as in the preceding 
 title ; but if the order of the Church is disregarded, it 
 is termed clandestine or irregular, though by tiie law 
 it is valid, yet statutory penalties are annexed, affect- 
 ing not only the parties, but the celebrator and wit- 
 nesses; acts 1661, cap. 64, 169.5, cap. 12, 1698, cap. 6; 
 and, besides, the parties were punished with the loss 
 of certain conjugal rights ; the husband lost his jus 
 maritiy and the wife her ^'m* relicta;,- by 1672, cap. 
 •9. This last was rescinded, with other acts of confor- 
 mity, by IC90, cap. ^i7, by which the penalties of the 
 act 169 2 against clandestine marriages were re- 
 scinded. 
 
 3. By the act of Parliament 1641, cap. 8, revived 
 t)y 1661, cap. 34, it was enacted. That whoever shall 
 bereafter marry in a clandestine and inordcrly way, or 
 procure themselves to be married by Jesuits, priests, 
 or any others not authorized by this khk, shall be im- 
 2)riso7iedJbr three months, and shall pay, each noble- 
 man L.1000,eacli landed gentleman 1000 merks, eacb 
 gentleman and burgher, L.500,each other person 100 
 merks, and shall remain in prison until they shall make 
 payment of these respective penalties ; and that the 
 celebrator of such clandestine marriages be banished 
 the kingdom, never to nturn under the pain qfdtath. 
 By the same act, the proclamation of banns was en- 
 
 , The riglit of tlic Imsbaiul over the moveable estate of his wiff. 
 
 * The widow's right to a sliare of the goods in commnnioii, which, 
 where there are children, is one tiiird, aiul where there are no cliij- 
 drcn, is one half, and of which the husband cannot deprive her by 
 any testamentary deed.
 
 no 
 
 A DIGEST OF THE LAW OF MARRIAGE. BC^K i. 
 
 forced under similar penalties^ and poor men wh© 
 could not pay were appointed to he punished jvith 
 stocJcs and irons, 
 
 4. Further, that by act of Parliament 1698, cap. 6, 
 It was enacted. That parties clandestinely or irregu- 
 larly married, contrary to the act 1661, shall be ob^ 
 Jiged to declare the name of the person who celebrated 
 fhe same, and of the witnesses, under the penalty, upon 
 ^ nobleman of L-2000, upon a baron or landed gen- 
 .tleman 2000 merks, upon a gentleman or burgess 
 JL.IOOO, and upon each other person 200 merks, to 
 ibe applied to pious uses within the parish, and of im. 
 prisonment, not only till they discover the celebrator 
 and witnesses, but also make payment of the penal- 
 ties above mentioned. Further, the celebrator shall 
 be liable to be summarily seized and imprisoned by a 
 ^magistrate, and be j^unished by perpetual hamshmenty 
 ;and hy such pecunial and corporeal pains as the Privy 
 Council^ shall think fit, and the witnesses shall be 
 liable each of them in L.lOO Scots, to be applied as 
 aforesaid, or, if insolvent, to such corporeal punish- 
 inent as the said Privy Council shall think fit. «>« 
 
 5. The execution of these acts against the contra- 
 ^eners and delinquents is exclusively intrusted to his 
 
 ^ The Privy Council of Scotland was so denominntetl in opposition 
 to the Parliament, which was the King's Great Council. The Privy- 
 Council was chosen by the King to advise in matters o'f government 
 and police, and in questions of wrong and public peace which were 
 found to be beyond the cognisance of the courts of common law. 
 But by the act of 6 Anno, cap. 6, the Scottish Privy Council 
 •were absorbed in the British Privy Council. Erskine, B. 1, Tit, .S, 
 
 $9-
 
 TIT. \* OF CLANDESTINE ]\IAimiAGEl?^ 121 
 
 Majesty's Advocate, the Procurator for the Kirk, and 
 the Procurator Fiscals of the counties where the clan* 
 destine marriages are celebrated. In the Appendix 
 will be found quoted those important acts 1661 and 
 1698, and two complaints founded thereon, at the in- 
 stance of the Procurator Fiscal of a county, one of 
 ihevci against the celebrator, and the other against 
 the parties and witnesses. 
 
 6. The statutory precaution of proclamation of 
 banns, which in its origin was of Popish institution, 
 being introduced by the Lateran Council in 1216, 
 and sanctioned by the canons of our provincial coun- 
 cils,* 1243 and 1269, is, says (Mr Hume) Baron 
 Hume, one of the few remnants that were saved from 
 the general wreck of the Popish discipline. 
 
 7. Although the marriages termed clandestine, or 
 irregular, are valid when entered into deliberately and 
 fairly, by a true consent, which our judges are at all 
 times anxious to discover ^;rma instantia, yet, under 
 thestatutes before noticed, the celebrators and others 
 concerned have been punishedby banishment, impri- 
 sonment, fines, and otherwise, a fewinstances of which 
 we will notice : — Sir James Kerr, a deposed and ex- 
 communicated minister, for persisting to baptize and 
 marry, was sentenced to be exposed for two hours at 
 the Cross, with a paper on his hat, bearing his crime, 
 
 ,.*"Nullus saccrdos prcesuraat aliqu.is pcrsonas matriinouialiter 
 jBonjuugcrc, nisi prius terna dcnunciatione in occlesia publico et so- 
 lenniter pra3missa secundum forniam Concilii Gcncralis : Ita quod 
 qwi voluerit et valuerit legitimum iuipodimentum oppouat," Caug^as 
 of Provincial Councils, Act Go.
 
 122 
 
 A DIGEST OF THE LAW OP MARRIAGE. 
 
 BOOK I. 
 
 and to abstain from such practices in future, 18th 
 June 1590. George Craighead, a person who bad 
 falsely assumed the character of minister, and a false 
 name, and taken upon him to celebrate marriages, was 
 convicted and banished from Scotland, under pain of 
 deatli in case of return, 6th February I76O. John 
 Connochar, an Episcopal preacher, indicted at the 
 CircuitCourt of Inverary, was convicted, and had sen- 
 tence passed ujion him in terms of the statute, inter 
 aliay for not having proper letters of orders, nor ta- 
 iling the necessary oaths, and marrying a girl of thir- 
 teen to a man who had a wife alive, April 10, 1755. 
 Episcopals, under the Act 10 Anne, cap. 7, are for- 
 bidden to marry, unless banns are proclaimed in the 
 parish churches where the parties reside, and are sub- 
 ject to the penalties of the acts against clandestine 
 marriages. Relevancy to that effect was foimd against 
 Alexander Duguid, an Episcopal minister, 3 1st Ja- 
 nuary I7I8. Archibald Muir, minister of Garvald, 
 was charged, but not convicted, of having officiated in 
 the marriage of his own daughter to Walter Nisbet, 
 a minor, February 6, 1727. Peter Wilson was ba- 
 nislied for marrying without proclamation of banns, 
 March 18, 1 786. At the circuit at Jedburgh, April 15, 
 1812, Andrew Rutherford and James Hoggan were 
 convicted of acting as clergymen in the celebration of 
 clandestine marriages, and banished, in terms of the 
 statute. And in the more recerit case tried before the 
 High Court of Justiciary, at the instance of the Lord 
 Advocate v. Joseph Robertson, sometimeaministerof 
 .a Chapel of Ease at Edinburgh, grounded, inter alia.
 
 "TIT. v. OF CLANDESTINE MARRIAGES. 123 
 
 upon tlie Act 1661, he was, on the 19th March 1818, 
 banished Scotland for life, for using two certificates of 
 proclamation of banns, knowing them to be forged, 
 and clandestinely marrying two men and two women, 
 never to return under the pain of death ; and a per- 
 son of the nameofPeaison, connected therewith, was 
 banished Scotland for foiu'teen years. In the case of 
 the Fiscal of Annandale against Carruthers of Hol- 
 mains, for payment of 1000 merks, under the sta- 
 tute 1631, collected by Lord Fouutainhall, Decem- 
 ber 7, 1705, Forbes 5, Mor. 2251, the Lords found 
 that the steuart and his fiscal had no right to the 
 fine, being a clandestine marriage within the king- 
 dom ; but considered, if there was no reward, there 
 would be no pursuer : Therefore found he ought to 
 have all his expenses allowed him out of the first end 
 of the fine, and repelled the defences founded on the 
 payment made to the minister, and found Carruthers 
 of Holmains liable in the fine. In the case, the 
 Kirk Session of Dundee against Hackney, November 
 14, 1761, it was found that there is no Act of Par- 
 liament which allows the Kirk Session to exact fines 
 for clandestine marriages, unless the judges of the 
 jurisdiction regularly impose them. In Kamsay v. 
 Brown, February 18, 1779, not collected, it was found 
 that a false certificate of proclamation of banns does 
 not annul the marriage, but subjects the parish clerk 
 to the statutory penalties of the Acts l()(il and 1698, 
 and not to an action at common law. In such a case, 
 the issuing of a false certificate, knowinir it to be 
 ialse, assuredly ought to subject the clerk to the pu-
 
 124 A DIGEST OF THE LAW OF MARRIAGE. BOOK I. 
 
 nishment of banishment. In M*Turk v. Matthew- 
 Dykes, November 18, 1789, not collected, a pixjof of 
 the celebration of marriage was allowed after the 
 death of one of the parties. 
 
 8. Our judges, ever guardians to the unprotected 
 and injured, where no marriage can be established, 
 arising from a penury of evidence, rehus integris, 
 have justly awarded damages against persons for 
 breach of promise of marriage, of which a few cases 
 will briefly be given. In Graham v, Erskine and 
 Burn, January 2, 1685, Fount. I. 328. Mor. 8472, 
 damages in solatium were aw^arded to the pursuers, 
 after a contract of marriage was entered into, no suf- 
 ficient reason being assigned for breaking off. In a 
 declarator of marriage, Linny v. Hamilton, Decem- 
 ber 1, 1749. Kilk. 487, Diet. 4, 228, Mor. 13,912, 
 the pursuer failed in her proof quoad marriage, but 
 she was found entitled to L.200 of damages. In 
 like manner, in Thomson v. Wright, June 27, 1767, 
 Fac. Col. 4, 10, Mor. 13,915, the defender was as- 
 soilzied from the marriage, but subjected in damages. 
 In Johnston v. Paisley, December 31, 1770> Fac. 
 Col. 188, No. 62, Mor. 13,916, damages in solatium 
 were found due for breach of promise of marriage, and 
 for writing an injurious letter. In a declarator of 
 marriage, Buchanan v. M'Nab, January 16, 1785, 
 Fac. Col., the defender was assoilzied from the mar- 
 riage, but found liable in damages in solatium for 
 debauching the pursuer. In Mollier v. M'Dowall, 
 the defender was assoilzied from a declarator of mar- 
 riage, but subjected in damages, decided about the
 
 TIT. V* J- OF CLANDESTINE MAERI AGES. 125 
 
 year 1791, not collected. And in Hogg v. Gow, May- 
 27, 1812, Fac. Col. 16, 664, Mor. 174, damages in 
 solatium were found due for breach of promise of mar- 
 riage, but not exacted, as Gow, the defender, soon 
 after the decision, entered into the social relation of 
 life with the pursuer. 
 
 9. Although we are well aware of the vast import- 
 ance that marriage is to the parties themselves, to 
 their issue, to their friends, and to the state,^ we do 
 not advance so far as to say, that our law is any thing 
 like perfect, but we humbly maintain that, consistent 
 with civil liberty, it is as perfect as human institu- 
 tions can well admit of; and even in reference to 
 the divine law, it is perhaps more in accordance 
 with it than in any other country. In our first 
 title, we have adverted to the origin of matrimony, 
 viz. that it was the first glorious institution of the 
 Almighty ; that it is according to the law of na- 
 
 ^ The public use of marriage institutions consists, according to 
 Archdeacon Palcy (Phil. vol. i.) in their promoting the following 
 beneficial effects: — 1. Tlie private comfort of individuals; S. The 
 production of the greatest number of healthy children, their better edu- 
 cation, and the making of due provision for their settlement in life ; 
 8. The peace of human society in cutting off a principal source of con- 
 tention, by assigning one or more women to one man, and protecting 
 his exclusive right by sanctions of morality and law ; 4. The better 
 government of society, by distribution of the community into separate 
 families, and appointing over each the authority of a master of a family, 
 ■which has more actual influence than all civil authority put together; 
 5. The additional security which the state receives from the good be- 
 haviour of its citizens, from the solicitude they feel for the welfare of 
 their children, and from their being confined to permanent habitations; 
 And, 6, The cucouragcmcut of industry.
 
 126 
 
 A DIGEST OF THE LAW OF MARRIAGE. 
 
 BOOK I.' 
 
 ttire ; that it makes part of the law of nations, and 
 has been observed by the wisest part of mankind in 
 all ages ; and from thence we may truly infer, con- 
 formably to the divine law, that " it is not good that 
 the man should be alone ; I will make him an help 
 meet for him." Gen.ii. 18. — " Therefore shall a man 
 leave his father and his mother, and shall cleave unto 
 his wife; and theyshallbe one flesh." Verse 24. — "For 
 this cause shall a man leave father and mother, and 
 shall cleave to his wife ; and they twain shall be one 
 flesh." Matth. xix. 5. — "Wherefore they are no more 
 twain, but one flesh." Verse 6. — " For this causeshall 
 a man leave his father and mother, and cleave to his 
 wife." Mark, x. 7. — "And they twain shall be one 
 flesh : so then they are no more twain, but one flesh." 
 Verse 8. — There is not in all these passages of holy 
 writ a single restraint even hinted at against the 
 free choice of the parties ; oyi the contrary^ there is 
 in them all an implied command to marry, unless per^ 
 haps that the consent of parents is required or expected^ 
 Gen. xxiv. 1, xxxiv. 4 ; Judges, xiv. 1, 2, 3 ; and 
 2 Chron. xxv. 18. — And that Christians shall not 
 marry with unbelievers or infidels ; but the prime 
 source of this social relation is love or charity.^ In the- 
 
 ^ Love or cbarity is a, natural affection of rational ci'eatures, in-- 
 dining them to show kindness to, or desire fellowship or enjoy- 
 ment of, some person or thing, on account of some excellency appre- 
 hended therein — when once implanted, love for ever continues ; it 
 renders us patient under trouble, slow to anger, ready to forgive in- 
 juries, and even makes us straiten ourselves to help our neighbour, 
 makes us mourn for his faults and afflictions, and kindly bear with
 
 TIT. V. OF CLANDESTINE BIAKRIAGES. 12/ 
 
 absence of this godlike virtue, tlie conjugal relation 
 of man and wife ought not to exist ; and agreeahly 
 to this sound doctrine, we find that Isaac loved Re- 
 becca, and he was comforted aftei* Sarah his mother's 
 death. Gen. xxiv. 67 — " The soul of Shechem clave 
 unto Dinah, and he spake kindly to the damsel." 
 Gen. xXxiv. 3. — " And Michal, Saul's daughter, loved 
 David; and they told Saul, andthe thing pleasedhim." 
 1 Sam. xviii. 20 — " And Saul saw and knew that 
 the Lord was with David, and that Michal, Saul's 
 daughter, loved him." Verse 28. — *' And the king 
 loved Esther above all the women, and she obtained 
 grace and favour in his sight more than all the vir- 
 gins; so that he set the royal crown upon her head, 
 and made her queen instead of Vashti.'* Est. ii. 17. — 
 *' Hearken, O daughter, and consider, and incline 
 thine ear ; forget also thine own people, and thy fa- 
 ther's house. So shall the king greatly desire thy 
 beauty ; for he is thy Lord ; and worship thou him.'*^^ 
 Psal. xlv. 10, 11, et sequen. 
 
 10. The power of love is strong as death ; many 
 sacrifices will be made to obtain it; many waters can- 
 not quencli it, nor floods drown it, as is confirmed by 
 holy writ. " And Jacob loved Uachel; and said, I 
 will serve thee seven years for Raclicl, tliy younger 
 daughter." Gen. xxix- 18 — " And Laban said, it is 
 
 Iris infirmities, is the bond of perfection, iintl, in fine, is pure and fer- 
 vent. It tends to render onr life a very heaven upon earth. Gal. vi. 
 6. 1 Cor. 13. Vide Assembly's Paraphrases of Sacred Scripture, No.- 
 4&.
 
 12f8' A DIGEST OF THE LAW OF MAllRIAGE. BOOK t 
 
 better that I give her to thee, than that I should give 
 her to another man : abide with me." Ver- 19--—" And 
 Jacob served seven tjcars for Rachel ; and they seemed 
 unto him but d^few days."" Ver. 20. — '* Set me as a 
 seal upon thine heart, as a seal upon thine arm ; for 
 love is strong as death ; jealousy is cruel as the 
 grave-, the coals thereof are coals of fire, which hath 
 a most vehement flame." Sol. viii. 6. — " Many waters 
 cannot quench love, neither can the floods drown it y 
 if a man would give all the substance of his house for 
 love, it would utterly be contemned." Ver. 7* 
 
 11. It is, however, to be feared, that many per- 
 sons, in forming the lawful, honourable, and impor- 
 tant relation of marriage, forget the law of God, 
 which enjoins Christians "not to be unequally yoked 
 together with unbelievers," " and to marry only in 
 the Lord." 2 Cor. vi. 14, and 1 Cor- vii. 39. Such 
 mistakes among true believers must arise from inat- 
 tention to the commandments of God ; and we would 
 request our readers carefully to consult the following 
 passages — Gen. vi. 1, 3. and xxxiv. 8 — 17, Exod. 
 xxxiv. 14, 15, 16. Deut. vii. 3, 4, Josh, xxiii. 12, 13, 
 1 Kings, ii. 4, Mai. ii. 11, 12, Judges, xxxv. 8, Ezra, 
 ix. % 12, andx. 1, Neh. xiii. 23—27, 1 Pet. iii. 7- 
 From these verses it appears, that the obligation of 
 believers to marry only in the Lord has been the 
 same in all ages. If this law is despised, the viola- 
 tors of it cannot prosper. How can two walk to- 
 gether unless they be agreed ? and none are farther 
 from one another than a believer and an unbeliever. 
 The one loves, and the other hates God. Some ima-
 
 TIT. V. or CLA;NDESTine aiARIilACES. 12i> 
 
 giriary bliss may be possessed, while the novelty of 
 such a newly-formed relation exists : but when it de- 
 parts, they will experience a sad reverse. We have 
 said elsewhere, that God made a help meet for man, 
 but surely this meetncss cannot be found in an un- 
 believer ! If she is a stranger to the knowledge and 
 comfort of the Gospel, she cannot be a helper of his 
 faith and joy ! If she is destitute of the power of 
 godliness, she cannot walk with him as an heir of the 
 grace of life ; and if she is destitute of the love of 
 God, she cannot engage in the duties of Christia- 
 nity. In unison with those sacred oracles, an act of 
 Parliament was passed, I69O, c. 24, WiUiam and 
 Mary, making it lawful for all persons to marry who 
 are capable, with judgment, to give theirconsent, and 
 to marry only in the Lord. But the same act en- 
 joins persons professing the reformed religion not to 
 marry with infidels or other idolaters, nor such as 
 are godly to be unequally yoked, by marrying with 
 such as are notoriously wicked in life, or maintain 
 damnable heresies. But a difference of opinion in 
 religion is no effectual bar to marriage, so that a Pro- 
 testant may maiiy a Papist, a Christian a Jew, I'urk, 
 or Pagan, because marriage is founded in human na- 
 ture, and perhaps has no reliance on religious dif- 
 ferences ; but, to avoid discord or apostacy, it may 
 be advisable to abstain fiom it. On this subject 
 Bankton, B. i. Tit. v. § .'.^3, observes—" It is true, 
 the law of nations may forbid such marriage, on tlie 
 pain of nullity, w^iicli will deprive the married couple 
 of the civil effects of marriage. This was the sanction
 
 130 
 
 A DIGEST OF THE LAW OF MARRIAGE. BOOK I. 
 
 of the civil laws in the case of a marriage between a 
 Christian and a Jew, L. 6. C. de Jud. 1. 1, C. de Niipt. 
 Gentil. and so is of other nations, who likewise declare 
 marriage void, where the rite is not solemnized duly; 
 but wehavenosuch law, andmarriages between Chris- 
 tiansand Pagans, or unbelievers, are plainly authorized 
 by the great Apostle, who only allows them to be dis- 
 solved, if the unbeliever depart." 1 Cor. viii. 15. 
 
 12. In the Law of Moses we do not find any par- 
 ticular form of ceremony required; but from the laws 
 of tlie Rabbins (Vide the Talmud Kiddushen), it is 
 clear]ydemonstrated,thatin three different ways mar- 
 riage might be constituted, without any further cere- 
 mony—] . With money, or money's worth, given by a 
 man to a woman for the purpose of becoming his wife; 
 hence the custom of the marriage-ring given by the 
 man to the woman, forms the still existing ceremony 
 amongst the Jews. 2. By writing a letter to her, 
 and promising therein to be her husband. And, 3. 
 By retiring with her on condition of becoming her 
 husband. Either of those modes was sufficient to 
 constitute marriage ; but during the second Temple 
 the Rabbins did away with the last ceremony, in 
 order to put a stop to forwardness and immorality. 
 It does not require any particular person to perform 
 the ceremony of marriage rites : it is generally wit- 
 nessed by the Chief llabbi of the place, or any man 
 whom he desires to attend. In the first place, par- 
 ties attached to each other are betrothed, which is 
 done by calling a few friends together, in whose pre- 
 sence the contract of marriage is written, wherein the
 
 TIT. V. OF CLANDESTINE MARRIAGEF. I3l 
 
 time for the wedding is stated (with the dowry of tlie 
 woman, if any), which conforms to the second rule 
 before mentioned ; and when the time specified in 
 the contract has expired, either party may demand 
 the fulfilment of it ; and neither party can withdraw 
 without mutual consent in writing, which is done 
 as a regular discharge ; but if no disagreement has 
 taken place, the marriage is consummated in the fol- 
 lowing manner : — On the day appointed for the mar- 
 riage they are brought from their houses, each by 
 their parents (if alive) or nearest relations. The 
 bridegroom by two gentlemen, viz. his father, and 
 the father of the bride. The bride bv her mother, 
 and her intended mother-in-law, to the house where 
 the wedding is to take place. The friends who are 
 invited assemble there to witness the ceremony. The 
 Rabbi who is also to witness the ceremonv, as soon as 
 he arrives, throws a veil over the wcman'shead, whicli 
 points out the difference between the single and mar- 
 ried state, as by the law married women are not al- 
 lowed to go bareheaded. There is a canopy erected, 
 under which the parties and Kabln stand, and the 
 bridegroom and bride are led by their respective 
 friends, as above mentioned, when the Rabbi reads 
 or chants the following prayer. He takes a glass 
 with wine, and says, 
 
 ** Blessed art thou, O Lord our God, Kin"- of the 
 Univpr^e, who created the fruit of the vine. (By- 
 standers,) Amen. 
 
 "Blessed art thou, O Lord our God, King of the 
 Univoree, who has sanctitied us with his command-
 
 132 A DIGEST OF THE LAW OF MARRIAGE. BOOK I. 
 
 merits, andcommanded matrimony, and has forbidden 
 us the betrothed ones, and sanctioned the married 
 ones unto us, through the means of the canopy and 
 marriage." 
 
 Bride and bridegroom drink off the cup. Then 
 the bridegroom takes a gold ring, whicli he puts on 
 the finger of the bride, saying, — 
 
 *' Thou shalt be married unto me with this ring, 
 according to the law of Moses and Israel." 
 
 Then the Rabbi reads what is called Kessubba, 
 wherein the duty of the husband to his wife is describ- 
 ed, as also the marriage portion of the wife, settled 
 on her at the time of marriage. For particulars, vide 
 Talmud Kiddushen, which contains the second mode 
 of marriage. Then he takes another glass of wine, 
 over whicli he reads the following marriage songs and 
 prayers : — 
 
 " Blessed art thou, O Lord our God, King of the 
 Universe, who created the fruit of the vine. Amen. 
 
 " Blessed art thou, O Lord our God, King of the 
 Universe, who created all for his glory. Amen. 
 
 " Blessed art thou, O Lord our God, King of the 
 Universe, creator of man. Amen. 
 
 *' Blessed art thou, O Lord our God, King of the 
 Universe, who hast formed man in his image ; m the 
 image of his likeness he formed him, and established 
 unto him, from him, an everlasting building. 
 
 " Blessed art thou, O Lord our God, King of the 
 Universe, the former of man ; O cause to rejoice and 
 gladden tlie barren (Jerusalem,) by the gathering 
 ^f her children in the midst of her with gladness.
 
 TIT. V. OF CLANDESTINE MARRIAGES. 133 
 
 Blessed art thou, O God, the rejoicer of Zion, with 
 her chikiren. Amen. 
 
 ** O cause to rejoice the loving pair, as thou hast 
 caused to rejoice at thy creation in the garden of 
 Eden. Blessed art thou, O God, the rejoicer of 
 bridegroom and bride. Amen. 
 
 " Blessed art thou, O Lord our God, King of the 
 Universe, who hast created hilarity and rejoicings, 
 bridegroom and bride, joyful songs, exultation and 
 happiness, love and friendship, peace and neigh- 
 bourly love. Hasten, O Lord our God, and let it be 
 heard in the cities of Judah, and in the streets of 
 Jerusalem, the voice of gladness, the voice of rejoic- 
 ing, tlie voice of bridegrooms, the voice of brides, 
 the shouting voice of bridegrooms from under their 
 canopies, and the voices of youths from the feast of 
 their gardens. Blessed art thou, O God, whorejoic- 
 est the bridegroom with the bride." 
 
 During the existence of the temple, the distin- 
 guished office of High Priest could not be filled by a 
 bachelor. Vide Talmud Joma. 
 
 13. In the patriarchal ages, parties were joined to- 
 gether without much ceremony. See Judges, xxi. 
 20, 9.1, 22, 23. And of which we have a striking 
 instance in the marriage of Isaac with Rebekah. It 
 proceeded, as related in Gen. xxi v. 1 to the end, 
 from a message by Abraham to his upper servant, 
 Eliezer, (the help of God,) to go to his (Abraham's) 
 own country, to search for a wife to his only son 
 Isaac, He took Eliezer bound by an oath, that he 
 should bring none of the Cana^nites,^,but one of his
 
 134 A DIGEST OF THE LAW OF MAPtRIAGE. BOOK I. 
 
 relations in Mesopotamia, and sent him off to Nahor, 
 a city tliere, nearly 470 miles north-east of Hebron. 
 When he was nigh to the city, he hglited on a well, 
 to which the young women of the place used to come 
 morning and evening ; there he waited to fresh 
 himself, and his ten camels He prayed that the 
 Lord would discover the virgin, proper for Isaac, by 
 her offering to draw water for his camels, when he 
 only desired her to do it for himself. Rebekah, the 
 daughter of Bethuel, the Syrian, and sister of Laban, 
 came to the well, and not only gave water to Eliezer, 
 hut to his camels. Pleased with her features, and 
 finding that she was Abraham's grand-niece, he adorn- 
 ed her with a pair of rich gold ear-rings, and a pair of 
 massy gold bracelets for her hands, and inquired if he 
 and his camels could be lodged at her father's house. 
 Having answered in the affirmative, she ran to inform 
 hor father's family, and Eliezer returned his grateful 
 acknowledgments to God for giving him his desired 
 token. Laban hasted and kindly conducted him to 
 the house. Eliezer had scarcely sat down, when he 
 informed him of his errand. Bethuel, her father, and 
 Laban, her brother, replied that they saw the matter 
 was determined of God, and could not oppose it. Af- 
 ter again lifting up his heart to God, he presented 
 Rebekah with the jewels of silver, and jewels of gold, 
 and rich apparel, which he had brought with him, 
 and gave her mother and brother valuable presents. 
 The following verses of the same 24th chapter of Ge- 
 nesis show \\\Q faithfulness of Eliezer, \\oy^\\\Q^ consent 
 was obtained, and the dispatch with which the mar-
 
 TIT. V. or CLANDESTINE MARRIAGES. 135 
 
 riage was accomplished, verse 54< to the end: — "And 
 they did eat and drink, he and the men that were 
 with him, and tarried all night ; and they rose up in 
 the morning, and he said, Send me away vmto my 
 master. And her brother and lier mothersaid,Letthe 
 damsel abide with us a few days, at the least ten ; 
 after that she shall go. And he said unto them. Hin- 
 der me not, seeing the I^ord hath prospered my way; 
 send me away, that I may go unto my master. And 
 they said. We will call the damsel, and inquire at 
 her mouth. And they called Rebekah, and said unto 
 her. Wilt thou go with this man ? And she said, / 
 will go. And they sent away Rebekah their sister, 
 and her nurse, and Abraham's servant, and his men ; 
 and they blessed Rebekah, and said unto her. Thou 
 art our sister, be thou the mother of thousands of mil- 
 lions, and let thy seed possess the gate of those which 
 hate them. And Rebekah arose, and her damsels, 
 and they rode upon the camels, and followed the 
 man ; and the servant took Rebekah, and went his 
 way. And Isaac came from the way of the well 
 Lahai-roi, for he dwelt in the south country. And 
 Isaac went out to meditate in the field at the even- 
 tide, and he lift up his eyes and saw, and behold, 
 the camels were coming ; and Rebekah lifted up her 
 eyes, and when she saw Isaac, she lighted off the 
 camel ; for she had said unto the servant. What man 
 is this that walketh in the field to meet us ? and the 
 servant had said. It is my master ; therefore, she 
 took a veil and covered herself. And the servant told 
 Isaac all things that he had done. And Isaac brought 
 her into his mother Sarah's tent, and tooJe Rehekahy
 
 136 
 
 A DIGEST OF THE LAW OF MARRIAGE. 
 
 BOOK I. 
 
 and she became his wife, and he loved her ; and Isaac 
 was comforted after his mother's death." 
 
 14. From this very interesting marriage, and espe- 
 cially from the token at the vveil, by Rebekah's giving 
 the camels water, when Eliezer asked it by prayer 
 only for himself, we may clearly see that it proceeded 
 from the Lord, as ought likewise all other marriages ; 
 also the faithfulness of the servant, and that, when 
 the consent is obtained, it ought not to be long de- 
 layed. It is not apparent that Abraham consulted his 
 son of the message, nor that he was to be connected 
 in marriage with a relation of his own, and from his 
 own country, and it seems quite clear that Isaac had 
 not even seen Rebekah, or knew any thing of her ap- 
 pearance before her arrival at his tent in the evening, 
 when Eliezer told Isaac all things that he had done, 
 and with which he was well pleased ; for, at the con- 
 clusion of the chapter, we are informed that Isaac 
 brought her into his mother Sarah's tenty and she be- 
 came his wife, and he loved her, and he was comfort- 
 ed after his mother's death. *' Isaac was 40 years 
 old when he took Rebekah to wife, the daughter of 
 Bethuel, the Syrian of Padan-aram, the sister to 
 Laban the Syrian." Gen. xxv. 20. 
 
 15. The ceremonies of the Hebrew marriages, in 
 so far as respects the consent of parents, the rich attire 
 of the bridegi'oom, and especially the bride, the pre- 
 sents, the ring, the veil, and the tent or canopy, resem- 
 ble the marriage of Isaac and Rebekah. And Isaac's 
 leading Rebekah into Sarah's tent, and her from that 
 circumstance becoming his wife, has a likeness to the 
 hiductiodomum anciently practised in Scotland ; vide
 
 TIT. V. OF CLANDESTINE MARRIAGES. 137 
 
 B. 1, Tit. 4, § 2 ; and their cohabitation as man and 
 wife, without the intervention of a priest, has an ana- 
 logy to our ancient and present law of habit and re- 
 pate making a marriage, and legitimizing the issue, 
 a law which exists in many countries, and in Eng- 
 land before their marriage act, and in Holland at the 
 present day. 
 
 16. Nearly in unison with these sacred oracles and 
 others, and in accordance with the law of nature, 
 there is, perhaps, no country less liable to restraints 
 on civil liberty than Scotland, and where the un- 
 certainty in the mode of contracting marriage is at- 
 tended with less danger to the parties, or the effects 
 arising therefrom, to their issue, in reference to dis- 
 puted succession. And there is no country where 
 the chastity of the fair sex is so intimately connect- 
 ed with the state of morals, and less tainted than 
 in S'cotland; nor is there any other country that can 
 boast ofa purer system of general manners. This, in 
 a great measure, may be asciibed to the liberal piin- 
 ciples of our marriage law, which, if well understood, 
 will, with deference, not be attended with any danger 
 or uncertainty in establishing it. 
 
 17. Cohabitation, as husband and wife, (something 
 like that of Isaac and Rebekah,) uhen attended with 
 publicity, and circumstanced, in all respects, with the 
 honourable character of marriage, does, in truth, con- 
 stitute the nuptial tie, and its publicity may be held 
 more marked than a regular ceremony before a priest 
 and witnesses; because, of necessity, it must bs hotter 
 known to a much greater number of people. Here, 
 too, the children of such marriages are legitimized,
 
 138 A DIGEST OF THE LAW OF MARRIAGE. BOOK 1. 
 
 and entitled to the inheritance of their parents, as has 
 been repeatedly decided, particularly in the case of 
 M'Kenzie v. M'Kenzie, March 8, 1810, Fac. Col. 
 15,613, No. 16, Mor. 287, where a marriage was 
 found, grounded on habit and repute, and no regard 
 paid to a subsequent letter of disclamation of mar- 
 riage, by the wife to the husband, denying that they 
 were married or had lived together as man and wife. 
 And we ask, would it not, in these circumstances, 
 be impolitic and unjust to deny the parents the ho- 
 nourable character of man and wife, and their chil- 
 dren the denomination of lawful issue ? The maxim 
 — matrimoniimi subsequens tollit peccatuni prcecedensy 
 Jur. Civ. appears to be according to the precepts of 
 the Gospel, which declares that, if we confess and 
 forsake our sins, (if the cohabitation of man and wife, 
 without any previous ceremony, shall be so consider- 
 ed,) they shall be forgiven. See Cor. vii. 36. 
 
 18. Even where persons have not cohabited as 
 man and wife, but by their intercourse children have 
 sprung up — in this case, too, the marriage and off- 
 spring may be declared lawful by a solemn subse- 
 quent marriage before a priest, and a declaration be- 
 fore witnesses specially called, that the woman is his 
 lawful wife, and the children their lawful issue. 
 There is perhaps no doctrine better founded in nature, 
 reason, and justice, than our law, j^er subsequens ma- 
 trimonium^ in reference to the legitimation of children 
 by the marriage of their parents subsequent to their 
 birth. The practice of perpetuating families by adop- 
 tion, prevailed among the Jews. In the time of the 
 republic, it prevailed among the Romans. It was 
 
 ■51 !
 
 TIT. V. OF CLANDESTINE MAKRIAGES. 139 
 
 held to be founded on thejm gentium ; see Heinecc. 
 ad. lib. 1, tit. 7. ff- The adopted child acquired all the 
 rights connected with one of the same family, and 
 was subject to all the obligations. In Rome, the 
 child of plebeian parents, adopted into a noble family, 
 acquired the Jus Imaglnum^ and all the rank and no- 
 bility of the adopting father. Adoption in Rome 
 was performed in the comitia; but when these ceased, 
 and the imperial authority came in their stead, the 
 practice of adoption liad probably become less fre- 
 quent in the Roman world, while at the same time 
 concubinage prevailed. The first Christian emperor, 
 Constantine, attempted to put an end to this impi'o- 
 per habit in life, by alluring the parents into mairiage; 
 and this was done, by declaring that the children 
 born illegitimate would be held to be lawful children, 
 or would acquire legitimation, providing the parents 
 shou d, within a certain time fixed by the imperial 
 edict, enter into marriage. Edicts of a similar de- 
 scription were renewed by the Emperors Zeno, An- 
 astasius, and Justinus. At length Justinian made 
 the law perpetual, that children might be legitimated 
 by the subsequent marriage of their parents. This 
 law, with scarcely an exception, has been introduced 
 into the canon law, and among European nations. 
 On this subject, Mr Erskine says, B. 1, tit. 6, § 52, 
 " Legitimated children are those who were born bas- 
 tards, but have afterwards been made lawful. By the 
 Roman law children were thus legitimated, either by 
 letters of legitimation from the sovereign, at the de- 
 sire of their natural father, who had no issue lawful, 
 Nov. 89, c. 9, of which afterwards, b. 3. tit. 10, or bv
 
 140 A DIGEST OF THE LAW OF MARRIAGE. BOOK I. 
 
 the subsequent inter-marriage of the mother of the 
 child with him by whom it was procreated. This 
 last kind, though it was not received by our most an- 
 cient customs, Reg. Maj. L. 2, 51, § 2, 3 ; Cr. lib. 
 2. dieg. 18, § 8, has been adopted into our law for 
 some centuries past, and entitles the children so legi- 
 timated, to all the rights of lawful children ; and, 
 consequently, if they be sons, they exclude, by their 
 right of primogeniture, the sons procreated after the 
 mariiage, from the succession of the father's heritage, 
 though these children were lawful children from the 
 birth. The subsequent manage by which this sort 
 of legitimation is effected, is, by a fiction of the law, 
 considered to have been contracted when the child le- 
 gitimated was begotten; and, consequently, no chil- 
 dren can be thus legitimated, but those who are pro- 
 created of the mother, whom the father, at the time 
 of the procreation, might have lawfully married; if, 
 therefore, either the father or the mother of the child 
 were at that period married to another, such child is 
 incapable of legitimation." The same doctrine is 
 supported by M'Kenzie, preced. quest. 19. Novel. 12. 
 c. 4, Stair, tit. 4. Con- ohlig. Bankton. B. 4. tit. 5, 
 § 55. The latest and most interesting case ground- 
 ed on the doctrine per suhsequens matrimonium, is 
 that of Walker v. M'Adam, decided March 4, 1807. 
 Fac. Col. 13,617. No. ^27- Mor. Ap. 1. Proof, No. 4. 
 There, it was found in the Consistorial Court, the 
 Court of Session, and the Court of the last resort on 
 proof, that the late Mr M'Adam of Craigingillan 
 publicly acknowledging his housekeeper to be his law- 
 ful wife, and that two children were their lawful issue,
 
 TIT. V. OF CLANDESTINE MAKIIIAGES. 14 1 
 
 on the forenoon of the day on which he died, consti- 
 tuted a marriage, and by which the wife and children 
 were entitled to all the rights and privileges of a law- 
 ful wife and lawful children. In this doctrine there 
 is liherality, because our law is liberal, and principle, 
 because justice is done to th^ woman and the inno- 
 cent children. But in our neighbouring country, 
 marriage is not held to be lawful by anticipation, 
 and acts and deeds done, having for their object 
 those of an anterior nature and tendency. 
 
 19. Our law, as a matter of order in the church, 
 introduced by Pope Innocent, after the Lateran 
 Council, and the Council of Trent, our Provincial 
 Councils, and the statutes and rules to which we have 
 adverted elsewhere, is nothing more than to ascer- 
 tain, with perhaps greater certainty, the evidence of 
 the marriage contract ; but we would ask, barring the 
 ceremony entirely, can there be greater certainty of 
 ' the contract, than express declarations before wit- 
 nesses, importing present consent, or the mutual ex- 
 change of lettei'S de prcescnti, inferring marriage be- 
 tween the parties. The consent to marriage before 
 witnesses, approaches so very near to regular marriage 
 before a priest, that there is scarcely a shade of dis- 
 tinction between them, and is in all respects accoid- 
 ing to Scripture, where it was not indispensa'le that 
 a priest should be present. JNIarriage is an interest- 
 ing and inipoi'tant contract, in respect to the happi- 
 ness of individuals, and the benefit of the public ; but 
 itiscertainly notmore important than life, orperhajis 
 propertyofthehigb.cst value, or reputation, which may 
 be preservedor forfeited by thetestimony of witnesses,
 
 142 A DIGEST OF THE LAW OF MARRIAGE. BOOK I. 
 
 in many instances more liable to suspicion than those 
 usually attending marriages, and swearing to circum- 
 stances more liable to mistake and misapprehension 
 than those which usually pass on matrimonial occa- 
 sions. 
 
 20. Nor can there be greater certainty in any case, 
 than mutual explicit declarations de prcesentim wri- 
 ting, certainly much more strong than verbal declara- 
 tions before a priest. Here we would ask, if the law 
 of marriage is a civil and not a religious contract, what 
 greater certainty can possibly attend it than this ? 
 Thus the j udge has at once within his own grasp written 
 evidence to ground his judgment upon the de prcesenti 
 consent of tlie parties. Each of the parties is in this 
 mannerpossessed of their presentwritten consent, and 
 this musttherefore beheld to befully as binding as any 
 marriage m/«cz3^cc/^5«^, where matters are often left 
 loose, and where frequently no document is granted, 
 nor entry made in the session records, but left to ad- 
 ventitious circumstances, which not unfrequently oc- 
 casion disputes about lawful marriages and their issue. 
 It is possible that such mutual writings interchanged 
 between the parties, in some instances proceed from 
 fraud, and witha viewtosexual intercourse, or for some 
 other such like purpose. From the nature and consti- 
 tution of man, this is possible. Religion, like mar- 
 riage, may be profaned, and may be made a cover for 
 fraud and oppression ; but surely we would not, from 
 that circumstance, restrain the exercise of religion. 
 Would we lay aside the d alings of merchants, be- 
 cause frauds are frequently practised ? Assuredly not ; 
 and we may therefore ask, why lay restraints uj)on
 
 LIT. V. OF CLANDESTINE MARRIAGES. 143 
 
 marriage in general, seeing that a few persons, from 
 improper or profligate designs, may wear the mask of 
 sincerity and matrimony, without intendi ng to marry ? 
 21. Woman is held to be the weaker vessel, and 
 dependent on man, who is considered to be her lord 
 and master, arising, perhaps, from her bein^ first in 
 thetransgression. But man, by himself alone, is more 
 helpless than woman ; for the Lord God said, " liis 
 not good for the man to be alone ; I will make an help 
 meet for him ;" and the help meet was a woman. But, 
 supposing her to be the weaker vessel, our law will pro- 
 tect her in her just rights as his equals which we con- 
 sider her to be, and will not allow her to be trampled 
 upon in the mode of ascertaining marriage, viz., by a 
 previous solemn promise to marry, followed by a sub- 
 sequent sexual intercourse ; and, when this is our law, 
 and has been the practice from the earliest times, even 
 during Popery, and since the Reformation, due effect 
 ought to be given to it. It hrs bt en insinuated, that 
 youngmenmaybeensnared into iinprudjnt marriages 
 by artful and designing women. This may possibly 
 happen ; but is there no danger that the most honour- 
 able minds, conscious of the purest innocence, may re- 
 ceive the deepest and most irreparable injuries from 
 the insinuation and address of profligate and unprin- 
 cipled men ? Will it be said, that il is the exclusive 
 province of impartial justice to protect onlythe honour 
 and interest of one sex, and not also of the other ? 
 Because some women miy be without sincerity, and 
 without affection towards the persons whom they 
 would ensnare, ought all men to enjoy a general 
 licence, under professious of marriage, to corrupt
 
 144 A DIGEST OF THE LAW OF MARRIAGE. BOOK I. 
 
 the virgin innocence of the most virtuous and re- 
 spectable of the sex ? Because a few women may 
 practise deceit, ought it to be permitted to all per- 
 sons, under the cover of marriage, to stain the ho- 
 nour and destroy the peace of mind, forever, of every 
 woman, without distinction of rank in life ? These 
 practices our law detests and punishes, and always af- 
 fords redress to these grievous wrongs, by holding a 
 promise, cum copula^ to be a marriage. The rights 
 and interests of the male sex are sufficiently guard- 
 ed ; for, with respect to the institution of marriage by 
 a promise, cum copula, eYery thing is in favour of the 
 man. The promise of the man, which is the ground- 
 work of this mode of marriage, can only be proved 
 by his oath or writ, and of Avhich we have a noted 
 instance in the case of Pennycuik and Son v. John 
 Grinton and Graitie, Dec. 15, 1752, Fac. Coll. 166, 
 No. 46, Mor. 12,677, where, after the pursuerhad rai- 
 sed an action for the supportof her bastard son, as she 
 supposed, not knowing that she stood upon much 
 higher grounds, to entitle her to demand the honour- 
 able character of wife, and her child that of lawful is- 
 sue—but being afterwards better informed, she raised 
 a declarator of marriage; and even after the defender 
 had married a woman in facie ecclesice, he was exa- 
 mined before the commissaries, and explicitly declared 
 (there being no writing) that it was in consequence 
 of a promise of marriage that a subsequent copula 
 took place, and of which a son was born ; and, therefore, 
 the marriage was declared, and the legitimation of the 
 issue found, and no regard was paid to the subsequent 
 marriage with the woman Graitie, in facie ecclesicc.
 
 TIT. V. or CLANDESTINE MARRIAGES. 145 
 
 It is, therefore, an entire mistake to suppose that a 
 promise can be proved by witnesses; low or corrupt, 
 even if they were respectable, they could not be ad- 
 mitted, because promises of this description may be 
 easily mistaken, and because such promises have in 
 prospect a future circumstance of an indelicate nature 
 which it is not natural to suppose would be made 
 matter of publicity. In every view, the man is suffi- 
 ciently protected, and, without committing perjury 
 against himself, he can suffer no injury, nor can it 
 be deemed injustice to hold him bound when he 
 himself admits, that, under the honourable profes- 
 sion of marriage, he has violated the chastity of a 
 virtuous woman, influenced by the tenderness of her 
 affections, and by her generous confidence in his inte- 
 grity. Men ought to be admonished, in their inter- 
 course with the fair sex, to observe the same principle 
 of honour and truth that they do in their transactions 
 witli one another, and strictly to follow the golden 
 rule, and assuredly they will be safe. It is the happy 
 characteristic of our law to render it incumbent on 
 them so to do. In this respect, therefore, as well 
 as its important effects on population and purity of 
 manners, our law appears to possess an advantage 
 which ought to be an object of approbation, and not 
 of censure. 
 
 *22. But it has been said that our marriage law is 
 inexpedient and uncertain. Surely it ouglit not to 
 be a subject of controversy, that wliere there are true 
 and serious declarations f/^ 79r<z?5cw^/, and wdiere mar- 
 riage is the only object and intention of the parties,, 
 they ought to be disregarded; nor is there any greater
 
 146 A DIGEST or THE LAW OF MARRLVGE. BOOK I. 
 
 danger of inexpediency in allowing such contracts to 
 be entered into, than there is in ])ermitting all man- 
 kind, in the same manner, to enter into other con- 
 tracts, involving the most important interests, and 
 the most extensive property, although, in all sucli 
 cases, men may act from fraud and deception. And 
 as to the alleged uncertainty of our marriage law, 
 and the wish that has heen expressed of correcting 
 and improving it, a very few considerations will 
 evince, that there is not in truth such uncertainty, 
 for in all the classifications of cases, of the descrip- 
 tion before given, it must long ago have been seen 
 that all and each of them stand upon solid grounds, 
 having for their basis the free consent of the 
 parties clearly and distinctly established, and as to 
 which our eminent judges make it their sedulous 
 inquiry ; and when they discover that such consent 
 has been fairly, and not fraudulently, given, they 
 are at once possessed of the tpsiim mati'imonium, the 
 marriage itself, and thereby put their judgment 
 upon as solid a footing as if they were interpret- 
 ing and giving effect to any well-known act of Par- 
 liament. When, therefore, the principle of our mar- 
 riage law is settled as clearly as any universally re-, 
 ceived maxim, the alleged inexpediency and looseness 
 of the law must at the least admit of a doubt. The 
 principle being settled, arguments of inexpediency 
 or uncertainty fly off, and can never be admitted 
 without pulling down the ancient and universally 
 received bulwark of the most interesting social rela- 
 tions of life, having for its origin the statutes of the 
 Almighty, and the law of natiu'e.
 
 TIT. V. OP CL.VXT>ESTlNE MARRIAGES. 147 
 
 23. The law of Scotland at the present day is the 
 same that was the law of every civilized country prior 
 to the Council of Trentin 1563^ for till then there was 
 in all of them not only marriage by public solemnity, 
 but there were likewise clandestine marriages, which, 
 though discouraged by the church, continued to be 
 as valid as the most regular marriages. France, long 
 ago, and England, by its marriage act, have annulled 
 every description of clandestine marriages, and by 
 introducing a variety of forms as essential, have ren- 
 dered perhaps more difficult the attainment of the 
 state of matrimony ; but whether from this chancre 
 any important benefits have been derived, we are not 
 possessed of the means of forming a correct opinion. 
 
 ^24:. It were, notwithstanding, devoutly to be wished, 
 that there were but one mode of contracting matri- 
 mony, as in England, provided it was liable to no 
 objections, as doubtless it woulddo much good, andbe 
 the means of averting much evil. One mode seems 
 to have been the unerring rule of the Gospel, but we 
 know fi'om history that the primitive innocence of 
 man was lost, and that from his nature and propensi- 
 ty to evil, he hath been led away from the paths of 
 virtue. Indeed, it cannot be otherwise, when we con- 
 sider that his heart is evil continually ; hence we find, 
 that almost in every state which is removed from the 
 confines of barbarism, various modes of performing 
 the social relation of marriage, even in the same state, 
 have been introduced. Even religion and marriaore 
 in diflferent states, are at variance with one an- 
 other, and without a miracle of which we are not 
 a^vare, the different forms of constitutinc: marriaore
 
 148 
 
 A DIGEST OF THE LAW OF MARRIAGE. 
 
 BOOK I. 
 
 arising from education, habits, and such like, will 
 continue to the end of time. — Vide Kurd's History 
 of all Nations. 
 
 24. From this title we may, inter alia, infer, that 
 persons contravening our marriage law may be pu- 
 nished, of which we have quoted some instances, and 
 that our decisions afford evidence of damages being 
 awarded to injured innocence; that persons form- 
 ing the relation af marriage ought not to be unequally 
 yoked, but it ought to be established on the principles 
 of Scripture, which are love and charity — that cohabi- 
 tation as man and wife validates marriages, and legiti- 
 mates the issue, and is founded in reason and justice — 
 that explicit mutual present declarations in writinc^ 
 or before witnesses, or by previous promise and subse- 
 quent copula, also establish marriage. That our mar- 
 riage law is in no respect uncertain or inexpedient, but 
 clearly defined and known, and being grounded on 
 civil liberty and morality, ought in all respects to be 
 considered expedient and clear. Finally, we draw this 
 sound conclusion that conjugal fidelity is greater in 
 proportion as marriages are numerous and less diffi- 
 cult; that restraints as ta marriages, especially among 
 the lower class, are detrimental to the public, by hin- 
 dering the increase of the people, and to religion and 
 morality, by encouraging licentiousness and de- 
 bauchery among the single of both sexes. That thepo- 
 pulation is the grand point to be considered with re- 
 gard to the public, and that any institution making 
 public utility subservient to the mere consideration of 
 preventing now and then private inconveniency, is 
 an impolitic and mischievous law.
 
 149 
 
 BOOK II. 
 TIT. I. 
 
 OF PROOF. 
 
 The proof of any matter or fact may be establish- 
 ed by proper evidence. This evidence or proba- 
 tion is, by writing, by the oath of party, by the tes- 
 timony of witnesses, or iwobatio prout de jure — 
 this last includes every legal kind of proof. These 
 modes of proof open a wide field of discussion, and 
 such as we are not warranted to enter upon, beyond 
 the limits of the subjects under consideration, and 
 even in this view it must consist entirely of a brief 
 summary. 
 
 2. The rule of probation by lawyers is,jidemjacere 
 judiciy to make faith to the judge of a fact or thing 
 to be proved, either on the part of the pursuer or 
 defender, or both. Erskine, Book IV. tit. 2, J 1, 
 says, " that all averments made by parties to a suit, 
 whether by the pursuer in his libel, or by the de- 
 fender in his plea for eliding the libel, must be sup- 
 ported by proper evidence or proof. Proof may be 
 admitted according to the different nature of the 
 facts, either, Ls/, By writings signed by him against 
 whom the fact is alleged, which is called proof 
 
 o
 
 150 A DIGEST ON THE LAW OF MARRIAGE. uooKii. 
 
 scripto ; — and in this way all points may be proved 
 against a party without exception, ^dly, ^j ^^^ 
 party's oath or juramento ; and by this manner 
 of evidence most obligations may be also proved, 
 with very few exceptions, which shall soon be taken 
 notice of. 3dli/, When the point to be proved is of 
 such a nature that it is capable of proof, not only 
 by the writing or oath of the party, but by wit- 
 ness or parole evidence, that manner of proof gets 
 the name of prohatio prout de jure, because it in- 
 cludes every kind of legal proof : but there is a va- 
 riety of facts, in which evidence by the testimony of 
 witnesses is not receivable." 
 
 OF PROOF SCRIPTO. 
 
 When a party in a suit founds upon a written 
 document, subscribed by the defender himself, the 
 judge at once has within his own grasp the power 
 of ascertaining with precision the point at issue. If 
 the libel is correctly and properly laid, fortified and 
 strengthened by an unexceptionable, written, intel- 
 ligible, deliberate deed, sentence and decreet may, 
 with clearness and certainty, be pronounced in terms 
 of the libel. If, for instance, it declares a de prw- 
 senti marriage, decree of declarator may be given 
 qiiam primum ; but if the writing is of the nature 
 of a promise to marry at some future period, term- 
 ed de futuro, the judge, in order to bring out the 
 facts, generally allows a proof of all facts and cir- 
 cumstances tending to establish the libel. There
 
 TIT. r. OF OATH OF PARTY. 151 
 
 must, no doubt, be exceptions to this rule of judicial 
 procedure, but they are few in comparison with 
 those that occur in the modes of proof by oaths or 
 witnesses, or probatio prout cle jure, because, in a 
 proof scripto the parties in the contest are not en- 
 tangled by the intervention of third parties ; and 
 the question generally being purely and incontro- 
 vertibly between themselves, it is jus tertii of any 
 other to interfere. 
 
 OF OATH OF PARTY. 
 
 « 
 
 This second mode of proof is not so narrowed as 
 the former, but opens up a broader and more un- 
 certain field of discussion, arising from the means of 
 proof not being so directly and immediately under 
 the eye and power of the judge. If, for instance, 
 in a declarator of marriage, it shall be alleged by 
 tl»e pursuer that it was upon the faith and belief of 
 a prior promise of marriage and courtship, that in- 
 duced her to submit to the embraces of her para- 
 mour, it is of importance to inquire how this pre- 
 vious promise can be legally established. We do 
 humbly presume to think, that it would be danger- 
 ous to allow any other mode of proof but the oath 
 or writ of the defender ; and accordingly, in cases 
 of this description, the commissaries uniformly grant 
 a proof of the promise scripto veljuramento of the 
 defender. The reason for adopting this rule is, 
 that verbal promises may be easily mistaken by wit- 
 nesses ; and from a parity of reasoning, as parole
 
 152 A DIGEST ON THE LAW OF MAIUIIAGE. book is. 
 
 evidence cannot be admitted to prove matters of 
 small moment, far less can it be permitted to prove 
 a solemn promise of marriage, thereby involving in 
 it the most important interests in conjugal life. In 
 proof of this doctrine, the case of Pennycuick and 
 Son, V. Graite and Grinton, decided in 1752, Fac. 
 and others will be afterwards quoted. But there is 
 an exception to those cases, where to instruct a pre- 
 vious promise by the writ or oath of the party, wit- 
 nesses were allowed to prove a regular courtship 
 followed by a copula without proof of any express 
 promise ; and so it was decided in the case of Smith 
 and Grierson v. Grierson, 26th November, 1755, 
 Fac. Mor. p. 1, 9. 
 
 2. Suppose, then, that the matter at issue is referred 
 by one of the parties to the oath of the other, such 
 oath, though made in favour of the deponent him- 
 self, is decisive of the point ; not because a party's 
 oath in his own cause is evidence against himself, 
 but because the reference is a virtual contract be- 
 tween the litigants, by which they are understood 
 to put the issue of the cause upon what shall be de- 
 posed. Erskine, B. IV. T. Prob. § 3. And Bank- 
 ton, B. I. T. 5, § 3, maintains, " Where the mar- 
 riage is to be made out by a promise of marriage 
 and subsequent copula, the promise must be proved 
 by the defender's oath or writing ; for our law re- 
 jects parole evidence in promises of all kinds, and it 
 were most dangerous to admit such proof in matters 
 of the greatest consequence, as the constitution of 
 marriaeje is.*'
 
 TIT. I. OF OATH OF PARTY. 153 
 
 3. To avoid snares to perj iiry, the party to whom 
 the oath is referred may refuse to depone, till his 
 adversary swear that he can bring no other evi- 
 dence in proof of his allegation, Stair iv. 44, 2. Or 
 the party to whom reference is made, in place of 
 making oath sometimes refers the point back to the 
 oath of his adversary ; but this will not be in- 
 dulged, unless it shall appear that he himself cannot 
 depone in the matter referred to him with distinct- 
 ness. In general, an oath of party cannot benefit 
 or hurt tiiird parties, for as to them the rule res in- 
 ter alios acta applies, and it is a principle in our 
 law, that nemo tenetiirjurare in suam turpitudinem. 
 
 4. In oaths of reference there are what we call in- 
 trinsic and extrinsic qualities. If intrinsic, the qua- 
 lity makes a part of the allegation which is referred 
 to oath, and is received by the judge as such, but 
 that which the judge rejects or separates from the 
 oath is extrinsic ; the illustration of them by exam- 
 ples does not come within the scope of this work, 
 but we consider it right to place before our read- 
 ers, in the Appendix, Lord Kames' elucidations 
 on this point, under the 25 th article, " quali- 
 fied oath," p. 185, where he submits six considera- 
 tions, tending to explain the difference between in- 
 trinsic and extrinsic qualities. 
 
 5. Oaths in supplement are sometimes resorted to 
 when the ])roof by witnesses is lame and imperfect, 
 and get the appellation of semiplena prohatio^ or 
 half proof, and of which instances occur in the work 
 under the title of proof parole, and particularly in
 
 154 A DIGEST ON THE LAW OF MAllRIAGE. book ii. 
 
 the cases of Law against Lunden and Lumsden, 24th 
 June 1747, Kilk. 435, Mor. 12,158. White v. 
 Hepburn, Nov. 18, 1785, Fac. Mor. 12,686, and 
 Dalzell V. Richmond, Feb. 4th, 1792, Fac. Mor. 
 4907. 
 
 6. But if possible to guard against groundless alle- 
 gations and collusive practices, particularly in ac- 
 tions of divorce upon the ground of adultery, oaths 
 of calumny are introduced by act of sederunt, 13th 
 January 1692, which will be found in the Appen- 
 dix, by which either party may demand his ad- 
 versary's oath, which is truly an oath of verity that 
 he believes the facts contained in the libel or de- 
 fences to be just and true. Act 1429, c. 125. 
 
 OF PROOF BY WITNESSES. 
 
 The third mode of proof is by witnesses, which 
 from its uncertain and complicated nature, is still 
 more difficult and unattainable than by any of the 
 other two. The secret chambers thoughts and im- 
 aginations of our hearts are only known to the in- 
 scrutable author of our nature ; but they are often 
 concealed from the eye of man, notwithstanding of 
 the faculties of perception, reason, understanding, 
 and active powers that are implanted in his nature 
 and constitution by the Almighty, for the discovery 
 of truth and the detection of falsehood. The ad- 
 missibility, credibility, and relationship of witnesses 
 to the parties in the suit, are points of vast import- 
 ance, and deserving mature consideration. A j udge
 
 TIT. I. OF PROOF BY WITNESSES. 155 
 
 cannot be a witness in his own cause. Index non 
 potest esse testes in propria causa, 4, Inst. 279. 
 He cannot judge in his own cause. Nemo debit 
 esse judex in propria causa. Loft. 197. Neither 
 can a judge pronounce a judgment in a case in 
 which he has an interest. And no person v/hose 
 near relation to another bars him from being a 
 judge in his cause (1681, c. 13,) can be admitted as 
 a witness for him ; but he may against him, except 
 a wife or child, who cannot be compelled to give 
 evidence against the husband or parent, oh i'everen- 
 tiam personae et metum perjurii. Fac. July 23d, 
 1700. Ersk. eod. die. Drummond, Erskine, B. IV. 
 T. 2, § 13. Infamous persons and pupils are in- 
 habile witnesses. By statute 2 Rob. I. c. 33, wo- 
 men were excluded from being witnesses ; and by 
 the canon law, c. Forum 10, Duretal Gregor, dever- 
 horum significatione, they were excluded as being 
 natura inhahiles. By repeated decisions they were 
 rejected, and the party restricted to prove the ac- 
 tual celebration of marriage, and limited to establish 
 habit and repute and cohabitation as man and wife. 
 But in occult crimes,in the absence of other witnesses, 
 women witnesses, and even the brothers and sisters of 
 the parties are admitted cum nota. Erskine, B. IV. 
 T. 2, § 14. says, " The testimony of women is always 
 received when it is necessary, i. e. when the fact can- 
 not be proved without them — and it is seldom ad- 
 mitted where other witnesses can be had. 1730, 
 Dunbar. 13th January 1737. Wiseman. And ac- 
 cording to the same author, near kinsmen or do-
 
 156 A DIGEST ON THE LAW OF MARRIAGE, book ii. 
 
 raestic servants may, where there is a penury of 
 witnesses arising from the nature or circumstances 
 of the fact, be received cu7n nota. That is, their 
 testimony, though not quite free from suspicion, is 
 to be conjoined with the other evidence, and to have 
 such weight given to it, as the judge shall think it 
 deserves." 
 
 Of Prohatio proMt de Jure. 
 
 This last mode includes every kind of legal proof, 
 by writ, oath of party, and by witnesses. Suppose 
 the case, that in a declarator of marriage the pur- 
 suer were to offer to prove a promise of marriage 
 by witnesses, it would be rejected, and confined to 
 the defender's writ or oath, but the pursuer would 
 be entitled to prove the copula prout de jure^ aris- 
 ing from circumstances, such as retiring together in 
 places creating suspicion of guilt, nocturnal meet- 
 ings by themselves, and the like, or after an incom- 
 plete proof is led by witnesses, recourse may even 
 be had to the oath of the defender ; and in the case 
 of a res n^viter, even the writ of either party may 
 be produced and founded upon, as a declaration de 
 presenti per se establishing marriage. 
 
 2. Upon this subject Lord Stair expresses himself 
 strongly, alluding to the state of the law as it stood in 
 his time. He observes, B. 4. T. 3. § 8., "Positive law 
 or custom hath been too apt to reject witnesses who 
 were not morally inhahile, which is very allowable,
 
 TIT. I. OF PROBATIO PROUT DE JURE. 157 
 
 where there is a variety of witnesses, if the other 
 party can give sufficient evidence thereof, as when 
 any deed is done at a public market, burial, or mai^- 
 riage — or at solemn conferences, before friends or 
 arbiters, or by examination of the adducer, if he 
 knew of any other witnesses, and who they were, 
 or by preliminary examination of the witnesses, 
 who were the contestes in the point to be proved : 
 In such cases the judge may warrantably forbear to 
 examine that witness till some others of the contes- 
 tes be called, but otherwise to exclude those, who, 
 by divine law are hahile^ and thereby to exclude the 
 adducer from his right, is not warrantable. And, 
 therefore where it appears that there could not be 
 many witnesses, those that are present will be ad- 
 mitted, though in other cases they will be rejected, 
 as in encroachments upon men in and about their 
 houses ; if there be any vestige of the crime, wit- 
 nesses are not rejected, because they are servants, 
 or such other relations as otherwise would exclude 
 them. And in all clandestine acts there is not to 
 be expected variety of witnesses ; and so suspicion 
 should not exclude." 
 
 3. Lord Bankton, B. 4. Tit. 30. § J 5. lays down a 
 similar doctrine. " Some cases require that all per- 
 sons capable of observation be admitted witnesses as 
 above hinted. Thus, in occult and domestic crimes, 
 all persons are receivable that are supposed capable 
 of knowing what happened, though in other cases 
 incompetent, because, from the nature of the thing 
 there is difficulty in the proof, and otherwise these
 
 158 A DIGEST ON THE LAW OF MARRIAGE, hook u. 
 
 crimes might pass unpunished : And in other cases 
 also, where, from the nature of them, there is a 
 penury of witnesses presumed." And he gives as 
 an instance, that " the emdence of brothers and sis- 
 ters is admitted ill a proof oi clandestine marriage, 
 such near relations being generally the only persons 
 called thereto. 
 
 4. According to Mr. Erskine also, B. 4. T. 2. § 26. 
 " In occult or more private facts, where there must 
 in most cases be a penury of unexceptionable wit- 
 nesses, some of the disqualifications above mention- 
 ed are overlooked. Thus domestic servants are re- 
 ceived as witnesses in transactions that are manag- 
 ed within doors, Decern. 31st, 1708, Smith's New 
 Coll. ii. 70, and even brothers and sisters may be 
 produced in clandestine marriages, where frequent- 
 ly no other witness is called to attest them." 
 
 5. In corroboration of this doctrine Mr. Erskine 
 refers to two decisions. In the case of Barber v. 
 Stewart, Morisoij's Dictionary, p. 16,742, July 31st 
 1732, " The pursuer's brother, with his sisters 
 and their husbands, were admitted cum nota to 
 prove the marriage, for this reason, that as private 
 marriages are not put extra commercium, no wit- 
 nesses can well be depended upon but the nearest 
 relatives, upon which a bill of advocation presented 
 to the Lords was refused." The ratio of the court 
 is somewhat awkwardly expressed in this report, 
 but it seems to have amounted to this, that in ir- 
 regular marriages it was impossible to depend in 
 the general case upon procuring any witnesses but 
 Tiear relations.
 
 TIT. I. OF PllOBATlO PROUT DE JURE. 159 
 
 6. In the case of Young v. Arret, also mentioned 
 by Mr. Erskine, Morison's Dictionary, p. 16,743, 
 December 1738, " A sister and aunt to a woman 
 were admitted as witnesses cum nota in proving 
 her marriage, even though it was established chief- 
 ly from circumstances." It was there expressly 
 conceded by the objectors as undoubted law, " that 
 near relations are admitted in proving the real act 
 or ceremony of marriage, because it is presumed 
 such only are called on that occasion." The ob- 
 jection urged to the witnesses was founded upon 
 their sex, women being considered at that period 
 inadmissible, and upon the nature of the pursuer's 
 averment that the marriage was constituted by 
 habit and repute. The court, however, disregard- 
 ed these considerations. 
 
 7. Subsequent cases have confirmed the doctrine as 
 to the admissibility of witnesses otherwdse inhabile, 
 in cases where it is natural to expect a penuria tes- 
 tium. " In a process by a wife against her hus- 
 band for separation and aliment on account of mal- 
 treatment, she was allowed to adduce their common 
 children as witnesses, not because they were the 
 same relation to both parties, which was no good 
 reason, but because they were necessary witnesses 
 ill re doinestica. v. Gumming, Kilk. 
 p. 599, March 5, 1748." 
 
 8. Thus also in a process of divorce for adultery, 
 the court found that the pursuer of a divorce for 
 adultery must condescend specially upon the per- 
 son with whom the crime is supposed to have been
 
 360 A DIGEST ON THE LAW OF MARRIAGE, bookii. 
 
 committed, and that the sister of the pursuer was 
 admitted " in corroboration of the evidence, with 
 regard to certain facts, in the proof of which there 
 was a penuria testium, and this, although she had 
 made some investigation as to the adultery, and had 
 said that she would not be easy till she had sworn 
 to what she knew." — Tail's Law of Evidence, p. 
 384. Nicolson v. Nicolsons, December 6, 1770. 
 Fac. Mor. 16, 770. It is needless to multiply cases, 
 as the spirit of our law in this respect is perfectly 
 well known. 
 
 9. We may however notice a case which leans the 
 other way, that of Dalziel v. John Richmond, 10th 
 July 1790, Fac. Morison, 16,780, in which it was 
 found that the mother and sister of the pursuer of 
 a declarator of marriage, were inadmissible wit- 
 nesses on her behalf. In the work this case will 
 be given ad longum. Meanwhile we may observe 
 that the pursuer of the declarator had founded her 
 libel upon the simple and insulated fact of the cele- 
 bration of a marriage, in presence of an individual 
 personating the character of a clergyman. She had 
 no evidence that the parties who were very unequal 
 in rank had formed any previous intention to con- 
 tract a marriage, or even that any very remarkable 
 intimacy had subsisted between them, except what 
 was to be obtained from the depositions of her own 
 relations, her father, her mother, and her sisters. 
 In this state of the case nothing certainly could be 
 more dangerous than to allow a proof of the mar- 
 riage solely upon the evidence of these suspected
 
 TIT. I. OF PllOBATIO PllOUT DE JURE. l6l 
 
 individuals. Here, too, the court found upon prin- 
 ciple, that an oath on reference was competent after 
 the adducing of parole evidence. 
 
 10. In a subsequent case, Bell v. Isobel King, Ja- 
 nuary 21, 1797, Fac. Morison 16,786, where the 
 circumstances were different, a woman defending 
 an action of divorce, " proposes to adduce her mo- 
 ther, brother, and sister, as witnesses. She wished 
 in particular to disprove a material circumstance, 
 sworn to by a single witness for the pursuer, which 
 she alleged to be false, and her brother was the 
 only person who had access to know it to be so." 
 The objection was sustained, because it would have 
 been dangerous to put a near relation in competi- 
 tion with an unexceptionable witness. " It was 
 also observed, that the fact which the defender was 
 desirous of disproving by her brother's evidence, 
 being sworn to by one witness only, could not ma- 
 terially injure her cause." The finding of the court 
 was, that the defender in an action of divorce can- 
 not adduce her mother, brother, or sister, as wit- 
 nesses." 
 
 11. Inarecentcase,thequestionof the admissibility 
 of such witnesses, in questions of private marriage, 
 was resumed and discussed at full length. This 
 was a declarator of marriage at the instance of 
 Ann Mackinnon v, James Sands. It was admitted 
 or proved, that the parties had at one time formed 
 the intention of becoming married persons, and had 
 actually set out on a journey to Glasgow with that 
 view. On their way they stopped during the night
 
 K)2 A DIGEST ON THE LAW OF MARRIAGE, book ii. 
 
 at the house of the woman's brother ; and it was 
 here alleged by her that mutual declarations of 
 marriage de iwcEsenti were interchanged, or at least 
 that a copula took place in consummation of the 
 previous intention to marry. No evidence however 
 existed as to these occurrences, except that of the 
 woman's brother, his wife, and daughter, and some 
 partial admissions in the declaration of the defender 
 himself. This case did not depend entirely upon 
 the evidence of her relations, but upon circum- 
 stances. It was unfavourable in this respect, that 
 the brother, besides his relationship, had exposed 
 himself to additional suspicion, by the eager interest 
 that he had obviously taken in forwarding mar- 
 riage ; and it was alleged that an undue degree of the 
 influence had been exercised over the defender, who 
 was a very young lad. The case, so far as we know, 
 is not yet reported, but we understand that the court 
 did not regard the case of Dalziel v. Richmond as 
 an imperative or at least an universal precedent ; 
 at one time an interlocutor was pronounced, remit- 
 ting to the Commissaries to receive the proposed 
 witnesses- Upon advising a reclaiming petition and 
 answers, however, this interlocutor v/as recalled, 
 not as it appears from any opinion that it was er- 
 roneous, but from a wish, in so delicate a question, 
 to act with every degree of caution, and the remit 
 to the Commissaries was limited so as to authorize 
 them merely before further answer to examine one 
 of the pursuer's relations as a haver. The case, so
 
 TIT. I. OF PROBATIO PROUT DE JURE. l63 
 
 far as we know, has not again been brought for- 
 ward. 
 
 12. An alleged paramour in adultery cannot be ad- 
 mitted to prove his own and the defender's inno- 
 cence. This was found in the case of Marshall v. 
 Anderson, June 26, 1798, Fac. The judgment of 
 the Court of Session runs in these terms, "In a 
 process of divorce brought by a husband upon the 
 head of adultery, the alleged adulterer is not a com- 
 petent witness for the defender with regard to the 
 witness's own criminality." But this judgment 
 was reversed upon appeal. And since that period 
 much less jealousy has been observed in situations 
 of this kind. " Thus in an action upon a letter of 
 guarantee, where the defence was that it had been 
 forged by the principal debtor, his sister and his 
 natural son were admitted as witnesses for the pur- 
 suer, to prove its authenticity, notwithstanding the 
 interest in point of character, which the principal 
 debtor had in the question." Tait's Law of Evi- 
 dence, p. 372. Macdowall v. Kelly, November 15, 
 1806, Fac. Mor. voce witness, App. p. 2. In this 
 case it was observed on the bench, *' The decision 
 in the House of Lords in the case of Hay Marshall 
 has put an end to the objection of metus perjurii, 
 and the objection of relation does not apply to the 
 present case where the witnesses are not related to 
 either of the parties, but to a third person." 
 
 13. In the law of England, indeed, the objection of 
 relationship, excepting always that of husband and 
 wife, is never sustained against the admissibility of
 
 164 A DIGEST ON THE LAW OF MARRIAGE, bookii. 
 
 the witness, as it is deemed sufficient that the judge 
 take it into consideration in weighing his credibili- 
 ty. The canon and civil codes more nearly resem- 
 ble our own Law, as they exclude relations in the 
 general case, but admit them in matters of an occult 
 or domestic nature. Two eminent Continental 
 lawyers are entitled to consideration. Sanchez, in 
 his disputations de 31atrimonio, lays down the 
 principle very broadly with reference to the identi- 
 cal case of clandestine marriages. Lib. 3, De con- 
 sensu clandestino, Disp. 41. § 5, " Ad matrimonii 
 valorem sufficeri quoscunque testes habentes rationis 
 usum, nee desiderari ut habeant qualitates jure re- 
 quisitas ut in aliis Negotiis habiles ac legitemi tes- 
 tes cpnseantur. Quare sufficit licet sint infames, 
 excommunicati, parentes, consanguinei, servi, fami- 
 liares, feeminse, irao et infideles." For this doctrine 
 he assigns various reasons, " Quia quamvis alias 
 testes sint illegitimi et inhabiles faciunt sufficien- 
 tem fid em nee repelluntur, quando sunt. Instru- 
 mentarii hoc est oppositi instrumento ex communi 
 contrahentium consensu sed testes in matrimonio 
 adhibentur communi consensu contrahentium ; Ergo 
 sufficiunt quicunque.'* 
 
 14. According to this illustration of Sanchez, 
 a written declaration of marriage was produ- 
 ced, the date of which might undoubtedly be 
 competently proved by the brother and sister, 
 had they attested it as instrumentary witnesses. 
 The same learned canonist proceeds to assign 
 other reasons for relaxing the rules of evidence
 
 TIT. I. OF PROBATIO PKOUT DE JURE. 165 
 
 in questions of marriage, " Quia in causa favora- 
 bili admittuntur testes alias inhabiles at causa ma- 
 trimonii est valde favorabilis. Quia Domi fieri soli- 
 ta, possunt per testes inhabiles probari, ut per fa- 
 miliares, servos, qui alias inhabiles sunt ut in causa 
 Domini velfamiliaris testificentur; sed matrimonium 
 communiter solet domi inire, ergo sat sunt testes 
 alias inhabiles." 
 
 15. Mascardus in his learned work Z)e probatio- 
 nibus speaks to the same effect. After adverting to a 
 general maxim, that it is expedient in marriage, if 
 possible, to have witnesses of unimpeachable credit, 
 he directs the attention of his reader to some modi- 
 fications of the ordinary rule, " Ut non procedat in 
 parentibus utriusque sexus : hi enim, licet alias non 
 sint idonei testes pro filiis, tamen in causa Matri- 
 moniali pro filio vel filia deponere possunt — quod 
 et procedit in quocunqiie alio coiijuncto. Vol. iii. con- 
 clusion 1024, § 23, 24. 
 
 16. With great deference we see no reason why, 
 perhaps, the law of Scotland should distinguish it- 
 self from other systems, by aiming at an extraordin- 
 ary degree of strictness in this respect ; a care for 
 the moral purity of witnesses is perhaps carried too 
 far when it comes to exclude the light, and to de- 
 prive parties of valuable and sacred privileges. On 
 the other hand, there is surely no reason why it 
 should be considered more unsafe here than else- 
 where to trust judges with the task of weighing 
 evidence, why the door should be shut altogether, 
 merely because there is a suspicion that some mix-
 
 166 A DIGEST ON THE LAW OF JMAllRIAGE. book ii. 
 
 ture of prejudice or partiality may gain admission. 
 It may safely be inferred from an experience of hu- 
 man affairs, that wherever there is any departure 
 from integrity, it will not be difficult on a careful ex- 
 amination to detect it upon the face of the evidence. 
 
 1 7. Glasford's principles of evidence deserves notice. 
 He observes, " As the discovery of truth is the pri- 
 mary and fundamental object in every inquiry, the 
 most general of all rules or maxims, is that what- 
 ever may contribute to this discovery, ought to be 
 admitted in evidence, and that course adopted by 
 which this great end may be attained in the most 
 perfect manner ; in other words, law will favour 
 the admission rather than the exclusion of evidence. 
 
 " Generally speaking, therefore, whatever has the 
 effect of disclosing or illustrating the truth, and in 
 whatever form it may be found, is a proper matter 
 of evidence, and may legally be used as a circum- 
 stance of proof, if it be genuine." 
 
 18. The distinction of legal evidence as admissi- 
 ble, or not admissible, seeqis to be founded on this 
 reason, that where the evidence offered is of such a 
 kind that it cannot be expected to throw any light 
 upon the point at issue, and is moreover such as, 
 without possessing that advantage, would plainly 
 lead to bias and influence the minds of those to 
 whom it is addressed, it ought to be rejected, as not 
 merely superfluous but dangerous. When, on the 
 contrary, the testimony of a witness, or any other 
 evidence, is only attended by circumstances which, 
 on account of a Lesser degree of influence, renders it
 
 TIT. I. OF PllOBATIO rilOUT DE JURE. 167 
 
 liable to suspicion, while at the same time there is 
 a probability that it will throw light on the inquiry, 
 it would be dangerous to the interests of truth that 
 it should be rejected altogether. The evidence is 
 to be heard therefore, and weighed, and to receive 
 that effect, which after such an examination of its 
 circumstances shall appear to be just. 
 
 19. In conclusion upon this head of evidence, we 
 may bring into notice what Mascardus lays down as 
 to the admissibility of parents, brothers, and sisters 
 to prove a marriage. Adverting to the rule which he 
 had previously laid down, that parents, and brothers, 
 and sisters are admissible witnesses to prove a mar- 
 riage, Mascardus observes — " Istud velim declares 
 ut verum sit, nisi constaret parentes et alios con- 
 jimctos incredibili ardere desiderio, ut matrimoni- 
 um, super quo deponunt optatum finem consequere- 
 tur ; tunc etenim ut suspecti iion essent accipiendi 
 in testes. Secundo declares, banc tertiam limita- 
 tionem ut vera non sit, si probatum erit mulierem 
 fuisse carnaliter cognitam : Nam quia eo casu agi- 
 tur de injuria illata toti familiai testimonium con- 
 junctorum admitti non debet : Et idem dicere de- 
 benms si alia de causa nuilieri infamia inureretur. 
 Nam esti non probaretur carnaliter cognita, tamen 
 hoc casu ratioue communis injuries parentes et con- 
 juncti non essent testes admittendi." 
 
 But the modes of proof adopted in our law will 
 appear from the following decided cases them- 
 selves : —
 
 168 A DIGEST ON THE LAAV OF MARRIAGE, rook u. 
 
 Proof Scripto vel Juramento. 
 
 1. Barclay v. Anna Napier, 5th July 1611, Stair, 
 act 1503, c. 77. Forbes, Diet. 2,267. 
 
 The Court sustained a relict's process on her con- 
 tract of marriage, (and on the general ground of 
 habit and repute) licet matrirnonium nunquam fue- 
 rat in facie ecclesiae celebratum. Vide this case il- 
 lustrated under the head of Habit and Repute. 
 
 2. Catharine Harvie v. Crawford of Milton, Diet. 
 2,228, 9th Feb. 1732. 
 
 This was " a process of adherence before the 
 
 Commissaries, in which the pursuer offered to prove 
 
 a promise of marriage atid subsequent copula. The 
 
 Commissaries held the promise relevant scripto vel 
 
 juramento, and the copulation iwout dejure." 
 
 Against this judgment the pursuer oifered a bill 
 of advocation, insisting that she should be allowed 
 to prove the promise by witnesses. The Lords re- 
 fused the desire of the bill, which, in conformity 
 with other decisions, settles the point, that a pro- 
 mise of marriage previous to a copula can only be 
 instructed by the writ or oath of the defender, and 
 the copula ^ro?^;? dejure. 
 
 3. Cockburn v. Logan, Gosford, Die. 2,228, 19th 
 July 1720. 
 
 In this case, which is stated under the head of 
 Proof Parole, it was found that in an action for ali- 
 ment at a woman's instance, against the represen- 
 tatives of a defunct, to whom she had borne a child.
 
 TjT. I. OF PROOF SCRIPTO. 169 
 
 under an alleged promise of marriage, it would be 
 dangerous to allow any proof to be received but 
 writing. 
 
 4. John and Christian Campbells v. Alexander 
 M'Glashan. Fac. 5th June 1812. 
 
 In this case it was found that proposals of mar- 
 riage given to a woman's brother, but not proven to 
 have been shown to her nor her father, are not to 
 be considered as a marriage contract, and as such 
 to cut off the right of her representatives to share 
 the goods in communion, though marriage followed 
 the proposals. 
 
 In 1792, M'Glashan married Margaret Campbell, 
 the sister of the pursuers. In December 1809, the 
 marriage was dissolved by the death of Mrs. 
 M'Glashan ; and the pursuers, as her nearest of kin, 
 called the defender to account for her share of the 
 goods in communion. 
 
 In defence, the following document was pro- 
 duced. 
 
 Perth, Chcuiotie Street, 25th June 1792. 
 
 " Proposals of Alexander M'Glashan to Miss 
 Margaret Campbell— 1st, To marry and take her 
 for better and worse — 2d, In case of her surviving 
 me, to secure to her an annuity of L.lOO Sterling, 
 to be paid half yearly during her natural life — 3d, 
 In case of her having no children, her j)ortion from 
 her father, whatever it may be, the same to be her 
 pwn, and at her own disposal ; but having children, 
 she is to be entitled to the annuity only.'* 
 
 '' N. 13. — Should these proposals not be accei)le(l,
 
 170 A DIGEST ON THE LAW OF MAllRIAGE, book i. 
 
 and agreed to by Saturday the 30th instant, they 
 are to be declared withdrawn." 
 
 If, as was argued by the defender, this case re- 
 sembled Wemyss v. Wemyss, 1 6th November 1768, 
 where a regular contract of marriage was entered 
 into and subscribed by the husband and the bride's 
 father, some effect might have been given to it ; 
 but these proposals being merely the creature of 
 M'Glashan himself, not even shown to the bride, nor 
 subscribed nor sanctioned by any of her friends, 
 no regard could be paid to it. 
 
 The interlocutor of the Lord Ordinary was, " ap- 
 points the defender to give in a state or condescend- 
 ence of the goods in communion between him and 
 his deceased wife at the dissolution of the marriage, 
 and that within eight days.'* 
 
 Upon advising a representation and answers, his 
 Lordship refused the representation. 
 
 The defender reclaimed to the court, and upon 
 considering the case upon petitions and answers, 
 their Lordships were clearly of opinion that the 
 jotting founded upon could not in any way be con- 
 sidered as a marriage contract, and adhered. A se- 
 cond reclaiming petition was refused, without an- 
 swers. 
 
 OF PROOF PAROLE. 
 
 5. Druramond v. Bisset, 15th Feb. 1551, Mor. 
 Balfour, Diet. 2,227. 
 
 Although a contract of marriage cannot be other-
 
 TIT. I. " or PROOF PAROLE. 171 
 
 wise proved than vscripto, yet the Lords found, that 
 promises of tocher rnay be established by witnesses. 
 6. George Baptie v. Christian Barclay, Jan. 30, 
 1665, Stair, 1. 261. Gilmour 99, Diet. 1,563. Mor. 
 8413. 
 
 This is among the most antiquated cases touch- 
 ing upon the point of promise and subsequent co- 
 pula as establishing a marriage, and the proof ne- 
 cessary to fix a second child on the father of the 
 first before adherence. 
 
 Christian Barclay had obtained a declaration of 
 marriage and adherence before the commissaries, 
 founded upon a letter or ticket acknowledging that 
 she had born a child to Baptie under promise of 
 marriage. He raised a suspension and reduction 
 of a charge upon an extracted decreet to oblige him 
 to adhere chiefly on the ground that the woman had 
 carnal dealings with another man, and had born a 
 child to him since she had a child to Baptie under 
 promise of marriage. The court ordained her to 
 condescend on the times she was in company with 
 the suspender, after he had granted her a letter ac- 
 knowledging a child, and was under promise of 
 marriage to her. President Gilmour gives the fol- 
 lowing report of it. George Baptie gives a ticket 
 to Christian Barclay, acknowledging that a child she 
 had brought furth was his, under promise of mar- 
 riage, whereupon she pursued him before the com- 
 missaries of Edinburgh for adherence, and obtained 
 a decreet, whereof he raised a suspension and re- 
 duction, upon this reason — that she being a taver-
 
 172 A DIGEST ON THE LAW OF MARRIAGE, book ii, 
 
 ness, loose, and of a very lewd life too. He could 
 not deny but that he had carnal dealings with di- 
 verse others also, though upon him she fathered the 
 child, and long after the birth of the child she did 
 most subtilly and falsely exprobate and affirm upon 
 him, that he had made a promise, and upon a cer- 
 tain day came to him upon the streets, and told 
 him she would presently go and drown herself, if 
 he would not subscribe the ticket, which he simply 
 was moved to do, though he was content to make 
 faith, that he had never given her such a promise 
 afterwards, he ever still more and more abhorred 
 her, and never used her company. Meantime, she 
 brings furth another child long after the ticket ; so 
 that, granting he had truly made a promise, as the 
 ticket bears, she has forfeited the benefit thereof, by 
 her after whoredom, which would be a lawful ground 
 of a divorce if they were lawfully married, and far 
 more ought it to be a ground to impede the solemniza- 
 tion of a marriage or adherence. It was answered, 
 that copula, and the ticket under his hand, bearing 
 the promise, made a validum et ratum matrimonium, 
 and any child gotten thereafter, the law presumes 
 to be in the marriage, Jilius enim est quum niipticB 
 clemonstrant, unless the pursuer can offer to prove 
 her an adultress with another, in which case he may 
 pursue a divorce, and so it was found by the Com- 
 missaries. Replied, that though the ticket did bear 
 a promise and copula, yet the marriage was not le- 
 gitime solemnized, nor did there any cohabitation 
 follow ; and therefore, she afterwards playing the
 
 TIT. I. OF PROOF PAROLE. 173 
 
 whore, and bringing furth a child, unless that it 
 could be made appear that he did cohabit, or any- 
 other way converse with her (so that it might be at 
 least probable that he had dealing with her) that the 
 presumption of the law in this case cannot have 
 place. 
 
 The Lords, before answer, ordained the defender, 
 the woman, to condescend, whether or not she can 
 make it appear that ever she conversed with the 
 pursuer after the subscribing of the ticket, or was 
 in his company, and when, and where. 
 
 Stair briefly states, in these words, " Where a man 
 by his writ had acknowledged that such a child was 
 got under promise of marriage, and promised to so- 
 lemnize the same, yet the Lords, on the man's alle- 
 geance that the woman had borne a child to another, 
 and her answer, that it behoved to be presumed his, 
 would not sustain that presumption without in- 
 structing their conversing together, medio tempore^* 
 
 If the parties in compliance with the Commissaries 
 decree of declarator and adherence had lived together 
 as man and wife, and after such connexion the 
 woman had borne a second child, the brocard filius 
 cnim est qiium nupt'iae demonstrant would have ap- 
 plied, and the child would have been presumed to 
 be his, and the onius prohandi would have been laid 
 with the man, that his wife had committed adultery 
 as a ground of divorce, in a declarator for that pur- 
 pose ; but in the absence of adherence or cohabita- 
 tion, the court, on the footing that the marriage was 
 incomplete, allowed the woman to establish that the
 
 174 A DIGEST ON THE LAW OF MARRIAGE, book ii. 
 
 man Baptie was the father of the second child. The 
 report does not bear that she led any such proof ; 
 if she did, the second child would have been consi- 
 dered as legitimized. 
 
 7. Lady Milton v. Lord Milton, Stair 25th Feb. 
 1667, Diet. 2,262. 
 
 Adultery was found proved, though not any two 
 of the witnesses concurred in the same individual 
 act ; for in such crimes which allow of reiteration of 
 acts proceeding from the same animus, like so many 
 links of a chain, the semiplena pt^ohatio of every 
 one fortifies the whole, and makes it equivalent to 
 the full proof of two concurring witnesses to one 
 specific act, which must hold, especially where the 
 pursuit is not capital, but as in adultery to annul 
 the marriage only, or restore the jointure. 
 
 8. Lord Milton v. Lady Milton, Stair 31st Jan. 
 1671, Diet. 2,527. 
 
 In clandestine crimes, such as adultery, infamy is 
 not a relevant objection against a witness, unless it 
 be injamia juris, by doing a deed which the law de- 
 clares to infer infamy, or where the witness is de- 
 clared infamous sententic^ judicis. 
 
 9. Lord Milton v. Lady Milton, Stair, Die. II. 
 528, 31st Jan. 1671. 
 
 In clandestine crimes, such as adultery, it is not a 
 relevant objection against a witness, that he is not 
 worth the king's unlaw ; or the sum of L.IO Scots, 
 or a fine for small delinquencies. Bankton B. IV. 
 T. 30. ^ 21. Stair B. IV. tit. 43. § 9.
 
 TIT. r. OF PROOF PAROLE. 175 
 
 10. Taylor v. Lord Lindores, Fount. 2. 495, Diet. 
 2d, 527, 22d Feb. 1709. Mor. 16,716. 
 
 It being objected against a witness, that he was 
 infamous, infamiafacti, as having confessed adultery 
 before the kirk-session, and satisfied for the same ; 
 the Lords considered that what was done in foro 
 poenitentiall for exonering of one's conscience, and 
 purging the scandal, was no ground to deprive hira 
 of his civil privileges as a witness, or otherways, 
 else that would scar or frighten men to confess, 
 and harden them in their sins, and therefore re- 
 pelled the objection, unless he had been convicted 
 in a civil court. 
 
 11. Cockburn v. Logan, Gosford, Die. 2,228. 
 Mor. 12,386, 19th July 1670. 
 
 In a process at a woman's instance, for aliment, 
 against the representatives of a defunct, to whom 
 she had born a child under an alleged promise of 
 marriage ; the Lords thought it of dangerous con- 
 sequence to sustain the probation of a promise of 
 marriage after the man's decease, otherwise than by 
 writ, seeing the defenders, being strangers to the 
 fact, could not know how to object against the wit- 
 nesses, or propone relevant interrogatories, or allege 
 relevant defences ; and the case being of itself most 
 unfavourable, therefore they refused to sustain any 
 other manner of proof but writ. 
 
 12. Countess of Monteith v. the Earl, Harcas. 
 222, 788, Novem. 16, 1687, 1st January 1684. 
 
 In this case, the Lords allowed women witnesses
 
 176 A DIGEST ON THE LAW OF MARRIAGE, book ii. 
 
 to be received omni exceptione majoreSy to prove 
 adultery in respect of the occultness of the crime. 
 
 It is thus abridged in the Dictionary, women 
 omni exceptione majores were found habile witnesses 
 in the crime of adultery, in respect of the occultness 
 thereof. 
 
 But the grounds and principles of this decision 
 will more evidently appear from the collected case 
 itself, by President Falconer. 
 
 There being a bill of advocation given in by the 
 Countess of Monteith against the Earl of Monteith, 
 in an action of divorce depending against her upon 
 this reason, that the Commissaries did sustain the 
 adultery to be proven by women witnesses. It was 
 alleged for the Countess, that by the chap. 34, stat. 
 2, Robert I. women were excluded from being wit- 
 nesses. And by the canon law, c. Forum, 10 De- 
 cretal Gregor de verborum significatione, they were 
 excluded as being 7iatura inhahiles. It was an- 
 swered for the Earl, that by the civil law they were 
 witnesses, and notwithstanding the text in the ca- 
 non law alleged, yet they were witnesses habiles in 
 atrocious and latent crimes such as adultery, other- 
 wise that crime should go unpunished without any 
 legal probation, women being most conversant in 
 trocking about that crime. It was replied, that not 
 only was it the positive law of the nation that wo- 
 |nen should be excluded from being witnesses, but 
 likewise the uncontroverted practique of the nation. 
 And in all the divorces since the institution of the 
 Commissaries of Edinburgh, there never was a wo-
 
 ■riT. I. OF PROOF P4.ROLE. 177 
 
 man adduced as a witness in a divorce. It was 
 duplied for the Earl of Monteith, tliat it can never 
 be instanced that mforo confradictorio, women were 
 rejected in the like cases. The Lords remitted the 
 cause to the Commissaries, and found, that women 
 omni exceptione majores might be received as ha- 
 bile witnesses, in respect of the occultness of the 
 crime. 
 
 13. Cook V. Johnston, Fount. 2. 92, Die. 1, t. 
 Husb. & Wife. Mor. 5905, 23d Feb, 1700. 
 
 Fountainhall briefly states it in these words, 
 " Jean Cook, daughter to Mr. Patrick Cook, mi- 
 nister of Prestonpans, having obtained a decreet of 
 adherence against Johnston of Corehead, on these 
 qualifications of marriage, that he had suited and 
 courted her as his wife, andgiven hertokens; that they 
 had cohabited and conversed together for some time 
 as man and wife. And 3f/, that she had borne him 
 children which he owned. Of this decreet he raises 
 suspension and reduction, on these reasons, 1*^, The 
 Commissaries committed iniquity in sustaining these 
 qualifications relevant. 2f/, In finding them proven, 
 for the material witnesses she had adduced were on- 
 ly women, who are inhabile in law, and only de- 
 poned on hearsays. 3^/, He offered to prove, that 
 during the time she pretended to be married to 
 him slie was guilty with another man ; and as that 
 would in law dissolve the marriage, though it had 
 been formal, public, and solemn, so much more 
 must it defend him from adhering to or taking home 
 a whore, where the marriage was only inferred by
 
 178 A DIGEST ON THE LAW OF MARRIAGE, book li. 
 
 stretches, presumptions, and occult converse. The 
 Lords thought the second reason relevant, and 
 would not put him to raise an action of divorce ; 
 but seeing this might be obtruded against all ad- 
 herences, therefore they repelled it, unless he paid 
 in a sum to her for her aliment, medio tempore^ and 
 to carry on the process and condescended on the per- 
 son he meant, with certification, if he succumbed, 
 they would consider the infamy what it should 
 import if it be found a calumnious defamation. 
 
 It is thus abridged in the Dictionary. 
 
 A woman having first brought a proof of her 
 marriage, and then pursuing for adherence, it was 
 sustained as a defence, that since the time of the 
 alleged marriage she had been guilty with another 
 man, which in law would dissolve a marriage though 
 formal and solemn, much more a clandestine mar- 
 riage inferred by presumptions ; and here the Lords 
 refused to oblige the pursuer to raise an action of 
 divorce ; yet, seeing this might be obtruded against 
 every action for adherence, they appointed the de- 
 fender to pay in a sum for an interim aliment, and 
 to carry on the process, with certification, if he 
 succumbed they would consider it as a calumnious 
 defamation. 
 
 14. Ann Chalmers v. Alexander Brown, Fount. 2, 
 255, Die. p. 530, Mor. 16,708, 5th Jan. 1705. 
 
 Women witnesses, from the weakness of their 
 sex, and their being too apt to be influenced and 
 imposed upon by designing men, were, by statute 
 of King Rob. I. cap. ?A, expressly rejected, 21st July
 
 TIT. I. OF PROOF PAROLE. 179 
 
 1675, Wilkie, and 27tli Nov. 1628, Tait. And by 
 the Roman law, a woman might not so much as be 
 a witness in a testament, and the canon law enacts 
 the same, cap. 10, de verb. Therefore, in conformity 
 to this doctrine, women witnesses were rejected to 
 prove the celebration of marriage, but were limited 
 to prove habit and repute and cohabitation. 
 
 Lord Fountainhall, after giving a full report of 
 the case, in conclusion says, the Lords found by a 
 plurality, that the Commissaries had done no wrong, 
 neither in delaying to examine the minister, nor in 
 refusing women witnesses to prove the celebration 
 of the marriage, and therefore found no need of in- 
 structions in this case, but remitted it back simply 
 to the Commissaries. 
 
 The report in the Dictionary runs in these terms. 
 
 In a process of adherence the Commissaries hav- 
 ing refused to allow women witnesses for proving the 
 actual celebration of the marriage, but declared they 
 would admit them to prove cohabitation, and being 
 repute man and wife, and the man's owning and 
 acknowledging her to be such, and the child to be 
 his lawful begotten child, and any other matrimo- 
 nial deeds subsequent to the marriage ; the Lords, 
 at advising a bill of advocation, found that the 
 Commissaries had not committed iniquity, and there- 
 fore remitted the cause. 
 
 15. Jean Anderson v. James Gordon, Fount, 
 Forbes' Die. 2,231, 26th June 1706. 
 
 James Gordon, merchant in Elgin, having got 
 Jean Anderson with child under promise of mar-
 
 180 A DIGEST ON THE LAAV OF MARRIAGE, book ii. 
 
 riage, as was alleged ; and he being threatened with 
 a pursuit for adherence, made a verbal transaction, 
 whereby she was to give him a declaration that he 
 was free to marry whom he pleased, and he was to 
 pay to Grant of Auchintully, for her behoof, one 
 hundred merks and two bolls of meal. He having 
 resiled from this stipulation, he was pursued for im- 
 plement, and it is oifered to be proved by the wit- 
 nesses and communers. 
 
 Alleged — This is of the nature of a promise, and 
 so can only be found scripto vel jurmnento, and wit- 
 nesses are not allowed in such cases, seeing nuda 
 verhorum emissio, may be easily mistaken, the very 
 position of words ofttimes altering the sense. Du- 
 rie, 25th March 1629, Russel v. Paterson, Gilmain, 
 13th July 1664, Cheyne v. Keith and Stair, 3d July 
 1668, Donaldson v. 9th Feb. 1672, Wood 
 
 V. Robertson. But it being urged that this was not 
 a promise but a bargain, and had interventus rei, her 
 declaration freeing him of his promise ; and it is an 
 undeniable case, that testaments or legacies, and 
 bargains of victual or other goods, may be proved 
 by witnesses. " The Lords found it of the nature 
 of a bargain, and so proveable by witnesses ; and it 
 being objected against Grant of Auchintully, that 
 he could not be admitted because he was a party, 
 the promise being made to him ; and it being an- 
 swered, that he was only as a communer, and so the 
 fittest person to declare the terms ; the Lords ad- 
 mitted him as a competent habile witness in this 
 case.
 
 TIT, I. OF PROOF PAllOLE. 181 
 
 It is thus reported in the Dictionary. 
 
 A man having got a woman with child, did, at £l 
 communing with her friends, promise to pay a sum 
 of money to one of them for her behoof, she being, 
 on the other hand, to give him a declaration that 
 he was under no promise of marriage. The Lords 
 found that this was not a naked promise, but a mu- 
 tual bargain, and therefore relevant to he pi'oven hy 
 witnesses. 
 
 IG. Forbes and Auchmuty v. Forbes and Munro, 
 Forbes, 332, Die. 2,530, 9th Feb. 1709, Mor. 
 16,719. 
 
 In the process at the instance of Lydia Forbes and 
 her husband against Jean Forbes and her husband, 
 the pursuers condescended upon women witnesses 
 for proving that Captain Charles Forbes was mar- 
 ried to Jean Price, the said Lydia's mother, or at 
 least that they were habit and repute as married 
 persons. 
 
 Without detaining our readers upon this subject, 
 we will quote the decision from Forbes and the 
 Dictionary. Forbes, in conclusion, says, " The 
 Lords sustained the defender's objection, and refused 
 to sustain women witnesses as habile to prove that 
 Captain Forbes and Jean Price were married, or 
 habit and repute as married persons. Because, in 
 notorieties penuria testium cannot be presumed.'* 
 And in the Dictionary it is stated, " The Lords 
 found women were not habile witnesses to prove 
 that persons ivere married, or hahit and repute 
 
 so. 
 
 a
 
 182 A DIGEST ON THE LAW OF MARllIAGE. book ii. 
 
 17. Murray v. Smith, Die. 2,530, Mor. 16,741, 6th 
 June 1730. 
 
 A woman having raised a declarator of her 
 marriage with a certain person then defunct, in order 
 to have the benefit of the legal provisions, the Lords 
 refused to sustain the valid testimony of two wo- 
 men witnesses, offered for the pursuer, to prove the 
 solemnization of the marriage, unless further ad- 
 minicles could be condescended upon. 
 
 18. Catharine Harvie v. Crawford of Milton, Die. 
 2,228, Mor. 12,388, 19th Feb. 1732. 
 
 In a process of adherence before the Commissa- 
 ries, the pursuer offered to prove a promise of mar- 
 riage and subsequent copulation, which the Com- 
 missaries sustained the promise relevant scripto vel 
 jiirmnento, and the copulation iwout dejure. Against 
 this the pursuer applied to the Lords by advocation, 
 insisting that she should be allowed to prove the 
 promise by witnesses. The Lords refused the de- 
 sire of the bill. 
 
 19. Sybella Barbour v, Stewart, Die. 2,521, Mor. 
 16,742, 31st July 1732. 
 
 In a process of adherence before the Commissa- 
 ries, the pursuer's brother, with her sisters and their 
 husbands, were admitted cum nota to prove the mar- 
 riage, for this reason, that, as private marriages are 
 T[ioi\)Vii extra commercium^ no witnesses can well.be 
 depended upon, but the nearest relations ; upon 
 which a bill of advocation presented to the Lords 
 was refused, or with a note, importing that such 
 belief would be given to the oaths as they merited.
 
 TIT. I. OF PROOF PAllOLE. 183 
 
 20. Law V. Lunden and Lumsden, Kilk. 435, 24th 
 June 1747, Mor. 12,158. 
 
 In this case, which is of a civil nature, for pay- 
 ment of certain accounts, the same principle was re- 
 cognised (as in the case Jean White v. William 
 Hepburn, directly to be noticed,) that after wit- 
 nesses have been examined, to establish the libel, 
 and failed, the pursuer may have recourse to the 
 defender's oath in supplement. 
 
 It is thus collected. Jean Law, as executrix da- 
 tive of David Bayers, her husband, brought an ac- 
 tion against Lunden of Lunden, and Lunden of In- 
 nergelly, for payment of two different accounts, as 
 due to her deceased husband, consisting of deals, 
 timber, irons, &;c. furnished ; in which there was 
 an act pronounced, finding the libel and accounts 
 therein referred to relevant to be proved prout de 
 jure^ and granting diligence. 
 
 In consequence of this, the pursuer adduced two 
 witnesses, one on Lunden's account, who knew no- 
 thing of the matter ; another on Innergelly*s, who 
 proved the account so far as the testimony of one 
 witness could go. And where the act came to be 
 called in order to a second diligence, the pursuer 
 passed from the proof by v/itnesses, and offered to 
 refer the verity of the two accounts to the defen- 
 der's oath. " But the Ordinary found, they were 
 not bound to depone, seeing the pursuer had under- 
 taken to prove the accounts by witnesses. And 
 upon a representation, having advised with the
 
 184 A DIGEST ON TttE LAW OF MAllHTAGE. book iJ. 
 
 Lords, adhered to his forjner interlocutor. Against 
 which, the pursuer having reclaimed, the Lords 
 found, that the libel might be referred to the par- 
 ty's oath, notwithstanding of the depositions of the 
 witnesses." 
 
 21. Smith and Grierson t). Grierson. Fac. Coll. 
 Karnes' Select Decisions Die. vol. iv. 159> 26th 
 Novemb. 1755. 
 
 The particulars of this case are in a declarator of 
 marriage^ at the instance of Christian Smith, daugh- 
 ter of John Smith, merchant in Brechin, against 
 James Grierson, merchant there. The facts speci- 
 fied in the libel as relevant to infer the conclusion 
 were, that the pursuer, a young woman, living in 
 family with her father and mother, was addressed 
 by the defender in the view of marriage ; that with 
 the permission of her parents, he had free access to 
 her father's house, as is usual in a courtship upon 
 a matrimonial footing. That this intended mar- 
 riage was a common subject of conversation in the 
 town of Brechin. That the pursuer, and her pa- 
 rents, communicated to some of their friends the 
 purpose of marriage. That the defender did the 
 same, and when the defender was joked by his com- ^ 
 panions, made no difficulty of owning the fact. 
 That while preparations were making for the mar- 
 riage, the pursuer, put off her guard by what she 
 judged a certain prospect of marriage, ,was tempted 
 by the defender to yield to his embraces, upon the 
 plausible pretext that having plighted their faith.
 
 TJT. I. OF PROOF PAROLE. 185 
 
 they were husband and wife in the sight of God, 
 and that the celebration would soon follow. The 
 copula, in consequence of which a child was brought 
 into the world, was admitted : the defender rested 
 his defence upon this, that he had made no promise 
 of marriage. The Commissaries pronounced an in- 
 terlocutor, finding " the previous promise of mar- 
 riage by the defender relevant to be proved by writ 
 or oath only." The cause being advocated to the 
 Court of Session, the pursuer complained, that the 
 interlocutor did not apply to the case. It was ad- 
 mitted for her, that a promise of marriage, which 
 must be followed with a copula in order to make a 
 marriage, cannot be proved otherwise than by writ 
 or oath ; but that the present case must be regu-- 
 lated by other principles. A man who commences 
 a courtship to his equal in the view of marriage, 
 never has an opportunity to make a promise of 
 marriage ; his will and inclination are understood. 
 The only point is to obtain the woman's consent, 
 which is to be done by solicitation, not by promises. 
 A man in the way of regular courtship is in reality 
 as much engaged as he can be by the most solemn 
 promise ; and therefore such a courtship, with a 
 subsequent copula, ought to bind him to celebrate 
 the marriage no less than a promise does. The 
 only question is about the mean of proof. A pro-, 
 mise of marriage is justly confined to writ or oath. 
 A woman has it in her power to demand a promise 
 in writing ; and if she trust to a verbal promise, it 
 is her own fault. In a regular gourtship there m-*
 
 186 A DIGEST ON THE LAW OF JMARUIAGE. uuok ii. 
 
 ver can be termini habdes for demanding any vouch- 
 er in writing; and therefore, if a regular court- 
 ship, with a copula, be relevant to oblige a man to 
 make good his engagement, the courtship and vari- 
 ous circumstances must be proveable by witnesses 
 as the only mean of proof. Nor is oral testimony 
 so dangerous in this case, as in a promise of mar- 
 riage. A regular courtship must always be open, 
 and attended with many circumstances that are pub- 
 licly known. The judges were much divided, and 
 cross interlocutors were pronounced. But the final 
 judgment was to remit to the Commissaries, with 
 this instruction, that before answer to the rele- 
 vancy, they should grant a proof by witnesses. 
 This point appears to me extremely delicate. It 
 probably will be thought by many, that ovir law 
 has already gone too far when it makes a promise, 
 v/ith a subsequent copula, a good foundation for the 
 interposition of the judge to make the marriage ef- 
 fectual ; and that, to extend the law to similar ca- 
 ses, would in all probability be attended with cor- 
 ruption of manners. Why should any encourage- 
 ment be given to women to lay snares for men, in 
 order by the interposition of the judge to hook them 
 into marriage ; a sad resource even where the plot 
 succeeds, because a forced marriage never can be 
 comfortable to either party. And whether it suc- 
 ceed or not, is ruinous to the character and destruc- 
 tive of virtue. This weighs in the one scale ; but 
 let us examine whether greater weight may not lie 
 on the other. Judges ought to bs upon their guard
 
 TIT. I. OF PROOF PAROLE. * 187 
 
 while they endeavour to repress the machinations 
 of the female sex, not to give too great encourage- 
 ment to the other sex. Every one must be sensible 
 how unguarded the virtue must be of a young crea- 
 ture during courtship, and what reliance she has 
 upon a man to whom she has innocently engaged 
 her affections. It is not in the power of law to 
 guard her sufficiently in such ticklish circumstan- 
 ces, otherwise than by making it dangerous for the 
 lover to make any attempt upon her. When such 
 a crime is committed, the man has no other means 
 to repair the honour of the woman he has injured, 
 but to complete the marriage. And if he add crime 
 to crime by leaving her in misery, the law justly 
 interposes and forces him to make that reparation 
 which in good conscience he is bound to make of 
 his own accord. Taking thus a complete view of the 
 matter, and of what presents itself to the eye on either 
 side, the result seems to be this — that the punish- 
 ment ought to rest upon the guilty person alone, if the 
 man be the aggressor, let him be punished with mar- 
 riage, if the woman be the aggressor, and the snare 
 is laid by her, let her be entangled in her own 
 snare as a just punishment upon her ; the man in 
 this case is not bound in conscience to give her the 
 reparation of marriage, and the law ought not to 
 compel him. To apply this rule to the present 
 case, the circumstances offered to be proved, re- 
 move all sus})icion from the woman, and afford real 
 evidence that the man was the aggressor. In a 
 regular courtship where a man offers himself in 
 marriage, the woman can have no occasion to lay
 
 188 A DIGEST ON THE LAW OF MARRIAGE, book ii, 
 
 any plot for ensnaring him, and for this reason, 
 especially, I have no doubt that the interlocutor 
 is well founded. The judges who dissented doubt- 
 ed not of the competency of a proof by witnesses, 
 supposing the faults libelled relevant to infer mar- 
 riage. But being afraid of consequences, gave 
 their opinion that a courtship cu7n copula is not re- 
 levant to infer marriage, even though both should 
 be admitted. 
 
 22. Philip Miller t;. Angelo Framendo. Fac. 211. 
 No. 72. Mor. 12,395. 29th January 1771. 
 
 In this case, which originated in the Court of 
 Session for performance of certain promises alleg- 
 ed to have been made by Framendo in the view of 
 marrying Miller's daughter, the pursuer craved 
 to be allowed a proof of them pi'out de jure. The 
 defender maintained that the promises alleged 
 were not proveable by witnesses. The Lord Or- 
 dinary having allowed a proof before answer, the 
 defender in a reclaiming petition pleaded, — that by 
 the law of Scotland, and the universal practice of 
 the Court, verbal promises did not admit of a proof 
 by witnesses, and tould only be established by writ- 
 ing or oath of party. 
 
 It was answered that a promise made verbally 
 resolved into a nudu emissio verhorum and witness- 
 es casually present might no doubt easily mistake 
 the meaning of parties ; the present case however 
 was very different, for the pursuer did not allege or 
 found on any gratuitous promise, but upon a solemn 
 engagement the defender had come under in the 
 view of his daughter's marriage. Every stipula-
 
 TIT. I. OF PllOOF PAROLE. 18{) 
 
 tion and engagement intuitu matrimonii, was con- 
 sidered in law as highly important, and as these 
 were always made in a more formal and explicit 
 manner than others of less importance, the proof 
 allowed was not only perfectly safe, but agreeable 
 to the principles of law, and that justice should be 
 allowed to a party who had fulfilled his part of the 
 mutual agreement. 
 
 The Court was much divided. It was admitted 
 that simple promises could not be proved by wit- 
 nesses, but that bargains as to moveables might, 
 and several of the judges thought that as those in 
 the present instance were made intuitu matrimonii, 
 they fall to be considered as a bargain for an oner- 
 ous consideration, but the majority would not admit 
 the distinction, or depart from the general rule, 
 and it was therefore found that a proof by witness- 
 es in this case was not competent. To which 
 judgment, on advising a petition and answers, by a 
 decision however of but 7 to 6, the Court adhered. 
 
 23. Jean White v. William Hepburn. Die. 4,170. 
 Fac. Mor. 9,364. 18th November 1785. 
 
 This case is so very brief that we shall insert it 
 i}€rhatim, — 
 
 William Hepburn and Jean White, both young, 
 persons of middling rank, having contracted an in- 
 timacy with each other, the consequence was the 
 birth of a child. His having that intercourse was 
 not denied by Hepburn, and it was proved by wit- 
 nesses that while Jean Wliite was with child, he 
 
 said to diflcrent persons " that he was married to 
 
 1.
 
 190 A DIGEST ON THE LAW OF MARRIAGE, book iu 
 
 her, or that she was his wife," caused proclamation 
 of banns to be made between him and her, and en- 
 tered with her father on a treaty of marriage, but 
 there was no evidence of any such treaty, or of a pro- 
 mise of marriage, prior to a copula, and but a very 
 slight proof that any courtship had then taken place. 
 
 The Commissaries " found facts, circumstances, 
 and qualifications proven, sufficient to infer mar- 
 riage between the pursuer and defender." This 
 sentence was brought under review by advocation 
 for Hepburn. 
 
 " The Lord Ordinary having reported the cause 
 upon infonnations to the Lords, refused the bill, 
 and remitted the cause to the Commissaries, with 
 this instruction, that they alter their interlocutor, 
 finding facts, circumstances and qualifications prov- 
 en, relative to infer marriage between the parties, 
 and assoilzies the defender." 
 
 If the treaty of marriage here proved, could have 
 satisfied the judges, that it was tantamount to a 
 promise, prior to the copula which was admitted^ 
 it is apprehended that the Court would have found 
 a marriage. 
 
 It has a strong resemblance to Grierson y. Grier- 
 son quoted under this genera) head, where a proof 
 was allowed of facts inferring a previous promise 
 of marriage and courtship. 
 24. Margaret Dalziel v, James Richmond, Fac. 10. 
 
 288. No. 1454— 4th Feb. 1792. Die. 4,23. Mor. 9. 
 407. 
 
 In this declarator of marriage, the mother and
 
 TIT. I. OF PllUOF VAIIOLE. 191 
 
 sjster of the pursuer were found to be inadmissible 
 witnesses. 
 
 Though the judgment of the court fixed no mar- 
 riage, yet it settled the point, that after a woman 
 has failed in her proof by witness in a declarator of 
 marriage, she may, notwithstanding, refer the libel 
 to the defender's oath. 
 
 Several witnesses were adduced, but the Com- 
 missaries found the evidence insufficient to infer 
 marriage, and assoilzied the defender. 
 
 The pursuer thereafter, in a petition to the Com- 
 missaries, offered to refer the libel to the oath of 
 the defender, but they refused the petition, and she 
 offered a bill of advocation. 
 
 It was inter alia pleaded for the pursuer, it is 
 indeed reasonable, that before reference to oath, the 
 party referring should renounce all other evidence, 
 because if such oath be not necessary as a means of 
 proof, his only object must be to ensnare his ad- 
 versary into perjury. And on the other hand, when 
 all further proof has been relinquished, the refer- 
 ence to oath is competent. Voet. 12. t. 2. § 11. 
 Ersk. B. 4. t. 2. § 3. Law v. Lunden, 24th June, 
 1747, Kiik. 
 
 By certain older decisions, it is true, a reference 
 in these circumstances was denied, for which it is 
 the more difficult to account, as it was always ad- 
 mitted ill cases where proof by writing had been 
 attempted. Ersk. B. 4. t. 2. § 3. But the point was 
 unalterably fixed, 24th June 1747, in the case of 
 Law v. Lunden, in which it was found " That a
 
 192 A DIGEST ON THE LAW OF MARRIAGE, book ik 
 
 libel might be referred to the parties oath, notwith- 
 standing the depositions of the witnesses.'* Kilk. 
 Answered.— He who makes a reference to the oath 
 of his adversary, ought to be actuated by an expec- 
 tation that the truth will thereby be declared, hav- 
 ing confidence that the adverse party is not dis- 
 posed to commit the crime of perjury. Were a per- 
 son impressed with the opposite sentiments to in- 
 sist on his adversary's oath, his conduct would be 
 immoral in a high degree, nor in a legal sense 
 upon the crimes being afterwards perpetrated, could 
 he be viewed in any other light than that of an ac- 
 cessory. But if he has already made his election 
 of a different mean of proof, especially that by wit- 
 nesses, he betrays his distrust in the veracity of his 
 opponent, to whose oath the law will no longer leave 
 him at liberty to recur. L. 11. Code de verb. Cred. 
 etjur. 
 
 Besides, it is an observation of Lord Stair, that, 
 " allowing the oath of party, there would infer per- 
 jury and defamation of witnesses." Irvine v. Ross. 
 And on the other hand, the preceding testimo- 
 nies might create an unjust suspicion of the truth 
 of what the party deponed. 
 
 It may be remarked, that there is in this respect, 
 a just distinction between written and parole evi- 
 dence ; the former being something which already 
 exists, and which, therefore, it is natural to make 
 use of, before the creating of new evidence by the 
 latter. 
 
 Accordingly, there occurs a singularly uniform
 
 ^iT. I. OF PROOF PAROLE. 193 
 
 series of decisions, respecting references after pa- 
 role proof had been attempted. Thus Colvil, 5th 
 July, 1574, Earl Sutherland; ibid. 20th January, 
 1575, Lord Glenbervie, Durie ; 15th June 1622, 
 Lord Roslin ; 29th January 1639, Lord Westmor- 
 land ; Spottiswood, 26th January 1630 ; Duke of 
 Lennox ; Hope, 5th July l6l7, Finlayson ; Foun- 
 tainhall, 26th February 1686, Home ; Stair, 22d 
 June 1676, Irvine ; Clerk Hume, ISth November 
 1737, M'Brair ; to all which the case quoted on the 
 other side is alone to be opposed. 
 
 The Lord Ordinary remitted to the Commis- 
 saries, with this instruction, to ordain the de- 
 fender to depone on the pursuer's reference. 
 
 The Lords adhered to the Lord Ordinary's inter- 
 locutor. 
 
 It is thus stated_^in the Diet. Margaret Dalziel, 
 in a declarator of marriage against Richmond, ad- 
 duced several witnesses in support of her libel. The 
 Commissaries having found the proof insufficient, 
 she petitioned that the libel might be referred to the 
 defender's oath. Answered, — This is incompetent 
 after a proof by witnesses. The Lords found it 
 was still competent for the pursuer to refer the libel 
 to the defender's oath. 
 
 25. The brother and sister of the defender of a de- 
 clarator of marriage were rejected, to prove an 
 alleged concubitus. Chapman and Lindsay v. Mrs. 
 PatuUo, Fac. 23d Feb. 1826. 
 
 Both these persons, Chapman and Lindsay, had
 
 194> A DIGEST ON THE LAW OF MARRIAGE. BOOK. il. 
 
 laid siege to Mrs. Fatullo, a handsome widow, of 
 fine looks and some fortune. 
 
 The short state of the cases are these. Robert 
 Chapman a widower, formerly dyer in Pitroddie, 
 thereafter in Dundee, had formed an attachment for 
 the defender Mrs. Patullo, widow of Charles Fatul- 
 lo, farmer in Broadley ; hearing that she had been 
 proclaimed for marriage to Alexander Lindsay, far- 
 mer at Myres of Errol, on the 7th November 1819, 
 Chapman hastened to her in the evening of that 
 day, and persuaded her to accompany him from 
 Broadley, where she was residing, to Dundee, a dis- 
 tance of about fifteen miles. On the 9th of the 
 said month of November, Mrs, Patullo, in the house 
 of Peter Adam in Dundee, declared that she v/as 
 perfectly free from Alexander Lindsay, and she then 
 declared herself to be the wife of Robert Chapman 
 before witnesses, and they went to bed as husband 
 and wife. She likewise wrote a letter to the ses- 
 sion-clerk of Errol, in which she desired that the 
 farther proclamation of banns between Lindsay and 
 her might be stopped, as she had given up all inten- 
 tion of marrying him, by becoming the wife of 
 Robert Chapman, that they lived together at Dun- 
 dee as husband and wife for several days, they 
 visited their acquaintances in that character, and 
 received congratulations on their mamage. Af- 
 ter spending some days in this manner, it was 
 agreed that they should return to her house at 
 Broadley, being more commodious than that at 
 Chapman's, and that he should go to his house at
 
 TIT. I. OF rUOOF PAKOI.E. 19'^ 
 
 Pitroddie, to make some arrangements previous to 
 his taking up his abode in Mrs. Patullo's house. 
 For this purpose they left Dundee together in the 
 stage coach. Chapman quitted the coach at the 
 nearest point from his house, leaving the defender 
 to be carried on a few miles farther to her house at 
 Broad ley. 
 
 Chapman having made his arrangements at Pi- 
 troddie, proceeded to the house of his wife. But, 
 on his arrival there, he found that Alexander Lind- 
 say, and his father, had been before him ; that they 
 had established a sort of guard over the house anti 
 its inmate, and Lindsay and Chapman in vain at- 
 tempted to obtain access to her. Lindsay and his 
 father were aware of what had taken place between 
 Chapman and Mrs. PatuUo ; but in spite of this, 
 and of the remonstrances of the session of the 
 Burgher Association at Pitroddie, of which they 
 were members, they continued to live in Mrs. Pa- 
 tullo's house, and prevented any communication 
 between her and Chapman. 
 
 In these circumstances, Chapman raised an action 
 of declarator of marriage in the Commissaiy Court, 
 on 3d May 1820, founded upon the intercourse be- 
 tween them at Dundee, before detailed. 
 
 Chapman's opponent was the said Alexander 
 Lindsay. This person, who had been in the cus- 
 tom of visiting Mrs. Patullo for marriage, had ob- 
 tained her consent to marry him, and both consent- 
 ed that they should be proclaimed for marriage in 
 the parish church of Errol, on the 7th Noveniber.
 
 196 A DIGEST ON THE LAW OF MAURIAGE. book if. 
 
 Not only did they agree to this, but the brother 
 and sister of Mrs. Patullo likewise consented. And 
 after the session-clerk had received instructions to 
 make the proclamation, her brother and Lindsay 
 returned to the house of Mrs. Patullo at Broadley 
 between ten and eleven o'clock at night, where they 
 found that she had retired to bed. Her brother 
 brought Lindsay into her room to where she had 
 so retired, and informed her that the proclamation 
 of banns was ordered as agreed upon ; and when 
 her brother, William Forgan, said to Lindsay, 
 ** she is as much yours as e'er she'll be, gang 
 in beside her," or words to that purpose ; and ac- 
 cordingly she herself judicially admitted that he 
 slept with her all night, and gave him the privilege 
 of a husband, in consequence of which she fell with 
 child to him, as admitted in her judicial declaration. 
 
 In these circumstances, Lindsay likewise raised an 
 action of declarator of marriage against Mrs. Patullo, 
 on the 1st of July 1820, (about two months subse- 
 quent to Chapman's), founded upon a promise of 
 marriage, followed by a copula, and consent depre- 
 sefiti. 
 
 In these conflicting cases, theCommissaries having 
 iallowed to Lindsay a proof of his allegation, and to 
 Chapman a proof of the relevant averments, made by 
 him in a minute which he was permitted to lodge 
 in answer to Lindsay's condescendence. Lindsay of- 
 fered his own father and brother as witnesses ; but 
 these were rejected by the Commissaries as inad- 
 missible, and he then adduced the brother and sis-
 
 TIT. I. OF PROOF TAUOLE. 197 
 
 ter of Mrs. Patullo, whose admissibility was object- 
 ed to on grounds not appearing on the record, 
 which bore the objections to be stated on a paper 
 apart, but no such paper has been lodged. The 
 Commissaries repelled the objections, and the wit- 
 nesses being examined, deponed to circumstances 
 confirmatory of the facts stated by Mrs. Patullo in 
 her judicial declaration. Previous to the examina- 
 tion of these witnesses, the session-clerk of the pa- 
 rish had been adduced, and deponed that Lindsay 
 and Mrs. Patullo's brother had on Sunday given up 
 the names for proclamation, and that they had been 
 proclaimed accordingly the next day for the first 
 time ; but that, before the succeeding Sunday, he 
 received a letter from Chapman desiring him not to 
 proceed with the further proclamation, and also one 
 from Mrs. Patullo to the same effect, which was 
 produced, and was of the following tenor : " As I 
 have totally altered my mind in respect to marrying 
 Alexander Lindsay, I request you to stop the pro- 
 clamation, as I am become Robert Chapman's law- 
 ful wife." Several witnesses were examined for 
 Chapman, from whose testimony it appeared that 
 Lindsay and Mrs. Patullo did not consider them- 
 selves as married persons, and in particular that 
 Lindsay had at first raised an action of damages 
 against Chapman, on the ground of the latter hav- 
 ing prevented his marriage with Mrs. Patullo ; that 
 they had made proposals for an arrangement witli 
 him, the terms of which implied that they consider- 
 ed the child of which Mrs. Patullo had become 
 
 R
 
 198 A DIGEST ON THE LAW or MARRIAGE, book ii. 
 
 pregnant to be Chapman's ; that they had applied 
 to a surgeon for medicines for the purpose of pro- 
 curing abortion ; and that both parties had declared 
 to the clergymen of their respective congregations 
 that they were both free of each other. On advis- 
 ing this proof, the Commissaries were equally di- 
 vided in opinion as to its import, and judgment was 
 accordingly pronounced against the pursuer Lind- 
 say, assoilzieing Mrs. Patullo from the conclusions 
 of his action. He thereupon presented a bill of ad- 
 vocation, which, having been reported by the Lord 
 Ordinary on memorials for Lindsay and Chapman, 
 the Court ordered additional memorials, " particu- 
 larly on the point, whether it is competent for the 
 pursuer Lindsay to found upon the judicial declara- 
 tion of the defender Mrs. Patullo, and upon the evi- 
 dence of Elizabeth and William Forgan, the sister 
 and brother of the said defender ;" and senior coun- 
 sel were subsequently heard on the question. For 
 Chapman it was contended, 1st, That Mrs. Patullo 
 had, by her own conduct in the cause, identified 
 herself with Lindsay, whose action was evidently 
 brought merely as a defence against that of Chap- 
 man, to which she was the defender, and the proof 
 therefore adduced by Lindsay was to be considered 
 as led in defence against Chapman ; that, conse- 
 quently, it was impossible to allow her defence to 
 be proved by her own declaration, or by the evi- 
 dence of her own relations, especially as this evi- 
 dence was not in confirmation of other unexception- 
 able testimony, but was the sole proof of that which
 
 TIT. I. OF PROOF PAROLE. 199 
 
 constituted the alleged marriage ; and that if such 
 latitude were allowed, it would enable women living 
 in adultery to prove a prior marriage with their pa- 
 ramours by their own relations, and thus lead to the 
 most dangerous consequences in regard to the rights 
 and status of individuals ; and 2d, That there was 
 no room for the exception founded on a necessary 
 penuiia teMium^ as the manner of completing the 
 alleged marriage was the cause of any such penuria. 
 On the other hand, it was pleaded for Lindsay, 1st, 
 That collusion or combination on the part of Mrs. 
 Patullo with him to make a false statement, could 
 only be inferred by assuming the statement made 
 by her to be false, of which no evidence had been 
 produced. 2ld, That there was a penuria testium 
 necessarily existing in cases of marriage, and that 
 whether regularly or irregularly celebrated, as none 
 but relations were generally present on such occa- 
 sions. 3d, That the evidence having been actually 
 received, it could not be objected to. And 4th, 
 That the objections did not appear on the record. 
 The Court, " in respect that the declaration of Ag- 
 nes Patullo was incompetent in the conjoined pro- 
 cesses, and could afford no evidence in her own fa- 
 vour, or in the favour of Lindsay, with whom she 
 had made a common cause ; and in respect that her 
 brother and sister were inadmissible as witnesses, 
 on account of their relationship to her," unanimous- 
 ly refused tlie bill of advocation. 
 
 Lord Pitmilly — This is a case so peculiar, both 
 in its circumstances and the mode in which it has
 
 200 A DIGEST ON THE LAW OF MARRIAGE, book i 
 
 been conducted, that the decision can scarcely be 
 founded on as a precedent in any other. Lindsay 
 and Mrs. Patullo were living together when Chap- 
 man's action was brought, and Lindsay's was not 
 raised till afterwards, and was evidently for the sole 
 purpose of meeting the previous declarator of mar- 
 riage by Chapman. Mrs. Patullo's defences to this 
 action, and her whole conduct, show an anxious de- 
 sire for the success of Lindsay. She employs the 
 same solicitor with Lindsay ; she states that she 
 can make no defence against his action ; she moves 
 to have the two processes conjoined, that Chapman 
 may be the party on the one side, and she and Lind- 
 say together on the other ; and she joins along with 
 him in defending against Chapman. It is unne- 
 cessary to speak of collusion, for the real case is, 
 that Mrs. Patullo appears as defender against Chap- 
 man's action, and the manner in which she pleads 
 her defence is by getting Lindsay to bring his ac- 
 tion against her. It is exactly the same as if she 
 had pleaded in defence to Chapman's action that she 
 was married to Lindsay ; and she therefore being 
 the party defender, cannot make use of her own de- 
 claration, and of the evidence of her relations, to 
 support her defence, and as little can Lindsay, act- 
 ing with her, do so. This is a case much stronger 
 than those of Dalziel against Richmond, and Stir- 
 ling against Hamilton. I do not doubt but that 
 the evidence of relatives, in cases of this descrip- 
 tion, may be received in corroboration of other tes- 
 timony ; but this cannot apply here, as it is the
 
 TIT. I. OF PROOF PAROLE. 201 
 
 copula which is here offered to be proved by rela- 
 tions alone ; for the other evidence as to the pro- 
 clamation of banns rather goes to disprove the co- 
 pula, as it evinces an intention to celebrate a regular 
 marriage at some distance of time. On the whole, 
 I am of opinion that Lindsay cannot make use of 
 this evidence, and that his bill therefore must be 
 refused. 
 
 Lord AUoway. — I agree in all the general views 
 which have been taken by Lord Pitmilly; but I 
 consider the decision we are about to pronounce to 
 be most important as a precedent, and not depen- 
 dent merely on the peculiarities of this case. I do 
 not go so far as to say that relations may not be 
 received, in particular circumstances, in cases of 
 clandestine marriages. There may be such cases, 
 but the general rule is against their admissibility, 
 and it is only as exceptions, and to corroborate other 
 evidence, that they are received. But there is no 
 case in which marriage has been allowed to be 
 proved solely by the evidence of relations ; and if 
 such a doctrine were admitted, it would be attended 
 with very dangerous consequences. If ever there 
 was collusion, it is here. The parties are identified ; 
 and, consistently with the doctrines laid down in 
 the cases of Dalziel, of Stirling, and of Bell, it is 
 impossible to allow the evidence in this case to be 
 founded on. 
 
 Lord Glenlee. — I was relieved of much doubt by 
 attending specially to the circumstance of Chap- 
 man's action havinc^ been raised first. A<>ainst tliat
 
 202 A DIGEST ON THE LAW OF MAHRIAGE. book ii. 
 
 action Mrs. Patullo might have pleaded in defence 
 her prior marriage. But in order to evade the dif- 
 ficulty of leading her evidence, she had recourse to 
 this measure of Lindsay's action. She cannot how- 
 ever be allowed to be thereby in a better situation 
 than she would have been, had she been merely a 
 defender in Chapman's action, Lindsay's being her 
 defence against it. It is said her judicial examina- 
 tion was on the motion of Chapman ; and so far as 
 she was examined by him, her declaration may be 
 admissible as evidence, but it cannot be admitted 
 so far as she was examined in chief by Lindsay. 
 
 Lord Justice Clerk I entirely concur that the 
 
 evidence in question cannot legally be founded on. 
 The identification of Mrs. Patullo with Lindsay is 
 completely made out by the circumstances of the 
 case. Chapman's is the leading action, and Lind- 
 say's is brought forward merely as a defence ; and 
 it is of importance to observe, that it is Mrs. Pa- 
 tullo who prays to have the actions conjoined, and 
 that she accompanies this with a declaration that 
 she has no defence against Lindsay's. The penuria 
 here is the act of the parties themselves ; and where 
 parties are the creators of the penuria, I shall al- 
 ways look to the admission of relations with great 
 jealousy, even when their testimony is to be merely 
 corroborative ; but when that which is essential to 
 the constitution of a marriage is to be established 
 by relations alone, their testimony cannot be admit- 
 ted ; and we cannot overlook the consequences 
 which would result, were such evidence allowed.
 
 TIT. I. OF PROOF PAROLE. 203 
 
 I have always considered the case of Dalziel v. 
 Richmond as laying down a principle which ought 
 never to be deviated from, and I consider the pre- 
 sent decision as establishing an additional precedent 
 in support of the same principle. 
 
 The advocator's authorities were 4 Stair 3. 8 ; 
 4 Bank. 30. 16 ; 4 Ersk. 2. 26 ; 3 Sanchez de Con- 
 sensu Clandest. 41. 5 ; 3 Mascardus de Probat. 
 1024. 23. 24 ; Glassord, 253 ; Barber, July 1732 
 (16742) ; Young, December 1738 (16743) ; Cum- 
 ing, March 5, 1748 (Kilk. 599) ; Nicolson, Decem- 
 ber 6, 1770 (16770); Marshall, June 26, 1798 
 (as rev. in H. of L.) — Respondent's authorities, 
 Tait, 386 ; Stirling, July 11, 1704 (372) ; Dalziel, 
 July 10, 1790 (16780); Bell, January 21, 1797 
 (16786).
 
 204 
 
 BOOK II. 
 TIT. II. 
 
 OF COMPETENT QUESTIONS. 
 
 According to the learned opinions of the judges 
 delivered in the cases Edmonston v. Edmonston, 
 Forbes v. Forbes, and Levit v, her husband, decid- 
 ed on the 1st June 1816, and will be found in 
 detail, towards the end of this title, it is laid down 
 as sound doctrine that a marriage contracted in 
 England or Ireland, may be dissolved in Scotland if 
 domiciled, and adultery is there committed, even 
 although the defender should not be personally cit- 
 ed, because his domicile being fixed, and a citation 
 left at his dwelling house is held equivalent to a 
 personal citation. The delict and the domicile, are 
 the two concurring circumstances which, if establish- 
 ed, justify the Court in pronouncing decree, a vin- 
 culo matrimonii. If a party comes to Scotland, and 
 commits adultery on the day of his arrival, and is 
 personally cited, he would be as effectually subject- 
 ed to the jurisdiction of the Court, as if he were 
 actually domiciled, for the best of reasons, inter 
 alia, because he has committed a crime against the
 
 TIT. 11. OF COMPETENT QUESTIONS. 'J05 
 
 State, and society, and in the face of the J?is gen- 
 tium, and besides, violated his oath of fidelity to 
 his marriage vow, and committed perjury, and 
 therefore he cannot in justice and sound policy be 
 allowed to return to another country, with impu- 
 nity, but if he should escape, and an action of di- 
 vorce is raised in Scotland, and personally intimat- 
 ed to him by a notary in England or Ireland, to 
 where he may have fled, such intimation will prove 
 as effectual as if he had been domiciled in Scotland, 
 and personally cited there, and of which we have 
 several decided cases, which will be found under 
 their appropriate heads and titles. 
 
 And we shall therefore, without further com- 
 ment, give in detail the decided cases. 
 
 1. The 1st is that of Lees v. Parlane, Fount, v. 2. 
 p. 5^5. Diet. V. 1. p. 326. 12th November 1709, 
 where it was found that soldiers having no fixed 
 domicile are not liable to the domicile of forty days, 
 and may be cited within that period. 
 
 The reason for soldiers having no fixed residence 
 is, because they are moveable at pleasure by the 
 order of their commander. The laM' and practice 
 of Scotland as to the Jwum domicilii seem not so 
 strictly to require the full residence of forty days, 
 in the case of a military man, as in that of a 
 foreigner residing in Scotland in a mere civil ca- 
 pacity. 
 
 In the Dictionary the above case stands thus. 
 
 " In a reduction of a decreet against a soldier 
 pronounced by the Bailies of a town (Perth,) where
 
 206 A DIGEST ON THE LAW OF MARRIAGE, kook m. 
 
 the regiment lay for the time, and he personally- 
 warned, it being alleged that he was not forty days 
 there, and so the decreet was pronounced a non suo 
 judice, yet the Lords, considering that soldiers hav- 
 ing no fixed dwelling, but must remove at their 
 commander's order, unless when in garrison, found 
 his being there when cited sufficient." 
 
 2. Dods V. Wescomb, Kilkerran 213. Falconer, 
 11th June 1745. 
 
 Wescomb, an Englishman, held an office in the 
 Exchequer in Scotland for several years, in the 
 course of which he cohabited with Rebecca Dods, 
 a Scotswoman, as man and wife. She raised a de- 
 clarator of marriage and adherence, failing of 
 which she concluded for an aliment. He declined 
 the Commissaries' jurisdiction, as he was not a na- 
 tive of Scotland, nor had residence or effiscts in it. 
 The Commissaries repelled the declinature, allowed 
 the pursuer to prove her marriage, and after the 
 proof was led, found the marriage proved, and de- 
 cerned. Wescomb preferred a bill of advocation 
 in the face of an extracted decree, but this infor- 
 mality was waved, and upon the merits of the case 
 the Lords repelled the declinature upon sundry 
 grounds, not so much upon the locus contractus 
 as upon the questio status which might involve the 
 pursuer into inextricable difficulty, by obliging her 
 to resort to England to prove her marriage, where in 
 all likelihood she must fall under the reproach of 
 being an unchaste woman, and her child a bastard.
 
 TIT. I. OF COMPETENT QUESTIONS. 207 
 
 though she was really a married woman by the 
 law of Scotland, where she entered into that state. 
 
 The report concludes, — '* It was for this reason 
 of expediency and on which all questions in the 
 j)ublic law, and especially the questiones status are 
 to be judged, that the Court in this case proceeded, 
 though some were for sustaining the declinature, as 
 we were not to do wrong out of fear, though the 
 judges of another country might do so." 
 
 3. Blair v. Hugh Blair, Kilkerran 277. Falconer 
 Diet. 32297. 28th June 1748. 
 
 In this process, which originated in the Commis- 
 sary Court for annulling the marriage, the libel 
 states that the said Hugh Blair, from his infancy, 
 has been so far in the state of idiotry as to be in- 
 capable of giving consent in any contract, and more 
 especially incapable of the matrimonial vows. 
 " The Commissaries allowed either party a proof 
 before answer." Of this judgment the defender 
 complained by bill of advocation, chiefly on the 
 ground of incompetency in the Commissaries, and 
 that the allegation of idiotry was only cognoscible 
 before the Judge Ordinary by an inquest of fifteen 
 sworn men. But it was maintained for the pursuer 
 that though idiotry in general falls regularly to be 
 cognosced by a jury, yet where it is alleged as a 
 medium to annul marriage, it may be hicidentcr 
 cognosced by the Commissaries ad hunc cffectum, 
 and reference was made to the case of foraerv, 
 though the Commissaries are not regularly judges, 
 of forgery, yet they may, as in the question Priiigle
 
 208 A DIGEST ON THE LAW OF MARRIAGE, book ii. 
 
 of Symington, judge in it. Replies were put in, and 
 the Lords, on advising the proceedings, remitted 
 to the Lord Ordinary to refuse the bill of advoca- 
 tion. Upon advising the proof the Commissaries 
 found '* that the defender had been from his youth 
 a natural fool, and void of that degree of reason 
 and understanding which is necessary to entering 
 into the marriage contract, and therefore found the 
 pretended marriage between him and the defender 
 Nicholas Mitchell, to have been from the beginning, 
 and to be in all time coming, void and null." But 
 the defender having again brought the matter be- 
 fore the Court of Session, the Lords *' remitted to 
 the Lord Ordinary to refuse the bill," and this they 
 did, notwithstanding that Nicholas Mitchell the 
 pretended wife was in the interim delivered of a 
 child. 
 
 4. Mary Perie v. Andrew Lunan, Fac. IL 496, 
 No. 210. Mor. 4594. 8th March 1796. 
 
 In 1788 Andrew Lunan and Mary Perie, natives 
 of Scotland, were married in Aberdeen, where they 
 resided some years. The parties afterwards settled 
 in London, but he deserted his wife and came to 
 Scotland with another woman in 1794. After 
 remaining some while at Stonehaven, he returned 
 to London with her. Mary Perie, though residing 
 in London, and her attorney in Scotland, brought 
 an action of divorce against her husband, on the 
 ground of adultery, but the Commissaries *' in res- 
 pect that the domicile both of the pursuer and de- 
 fender is in London, and that the facts founded on
 
 TIT. 11. OF COMPETENT QUESTIONS. 209 
 
 in the libel as inferring the defender's guilt of adul- 
 tery, are stated to have happened there, dismissed 
 the action as incompetent." 
 
 Against this judgment the pursuer offered a bill 
 of advocation, which being refused, in a reclaiming 
 petition she pleaded, as both parties are natives of 
 Scotland, the jurisdiction of the Commissaries is 
 incompetent ratione originis. Ersk. p. 30, § 19. 
 Durie, 15th Novem. 1626. Galbraith, 8th December 
 1726, Lord Blantyre, Kilk. p. 214, July 1747, 
 Anderson, 27th June 1760. Hog, especially, as 
 Scotland was the locus contractus and the country 
 where the parties, at the time of marriage, intended 
 to remain, a circumstance which materially distin- 
 guishes this case from that of Brunstane v. Sir 
 Thomas Wallace, 9th February 1789, Fac. The 
 petition was appointed to be answered, and due in- 
 timation was given thereof by a notary-public to 
 Lunan in London ; but no answers being given in, 
 the petition was advised ex jicirte, when it was ob- 
 served on the bench, — Even in the case of Sir Tho- 
 mas Wallace, where the marriage took place in 
 England, the Court were much divided in opinion, 
 and the propriety of the decision may be doubted. 
 In this case there can be no harm in allowing- the 
 action to proceed, and decree to be obtained in ab- 
 sence, valeat quantum valere potest. 
 
 The Court remitted to the Commissaries to pro- 
 ceed in the action. It is believed the Court was 
 chiefly moved to sustain the competency of the 
 Commissaries' jurisdiction upon the ground of the 
 locus contractus^ the parties having been married in
 
 210 A DIGEST ON THE LAW OF MARRIAGE, book ui. 
 
 Scotland, and remained some years there after it was 
 contracted. 
 
 5. French v. Pilcher, Fac. 13th June 1800. Mor. 
 Ap. 1. Forum Comp. No. 1. Sup. vol. iii. 
 
 In the preceding case both the parties were Scots, 
 but in this, the pursuer, Colonel French, was a 
 Scotsman, and the defender, Henrietta Pilcher, an 
 English woman. In a process of divorce for adul- 
 tery, it was found competent to be tried before the 
 Commissaries of Edinburgh, although the crime 
 was alleged to have been committed by the defender 
 most frequently out of Scotland. The marriage 
 was contracted in Scotland, where the pursuer was 
 born, and had his domicile. 
 
 The pursuer was privately married to the defen- 
 der at Gretna Green, whence they immediately vi- 
 sited his father in Scotland, where they declared 
 themselves married before the Justices of the Peace, 
 and were fined for contracting an irregular mar- 
 riage, and they lived some time together in Scot- 
 land, and thereafter went to India with his regi- 
 ment. The defender returned to Britain in bad 
 health without the pursuer. 
 
 The summons was served on her in London per- 
 sonally, but no appearance was made for her. 
 
 The Commissaries dismissed the action, " in res- 
 pect the defender was not cited within Scotland, 
 nor is in any shape amenable to the courts of this 
 country." 
 
 In a bill of advocation, which the Lord Ordinary 
 ordered to be printed and reported to the Court, the
 
 TIT. I. OF COMPETENT QUESTIONS. 211 
 
 > 
 
 pursuer maintained that the action was competent 
 because the marriage was contracted in Scotland, on 
 the laws of which the parties must have relied for 
 the regulation of all the rights consequent on it, 
 and because he was born in Scotland and domiciled 
 there. Kilk. p. 213, 11th June 1745 ; Dods v. 
 Westcomb, 8th March 1796 ; Pirie v. Lunan. 
 
 The following observations from the bench, show 
 that it was governed nearly upon the same princi- 
 ples with that of Lunan : 
 
 " The case of Lunan is decisive of the present, 
 which is even more favourable for the pursuer 
 from his domicile being in Scotland, from which 
 that of his wife cannot be separated ; but the de- 
 fender should have been cited both at the market- 
 cross, pier, and shore, and at the house of her hus- 
 band. 
 
 " The Lord Ordinary having advised with the 
 Lords, remitted to the Commissaries, with instruc- 
 tions to sustain their jurisdiction." 
 
 6. Wyche and Attorney v. Blount, Fac. 27th June 
 1801. Mor. App. 1. Forum Comp. No. 2. 12022. 
 
 In this case, the jurisdiction of the Commissaries 
 was sustained in a process of divorce for adultery, 
 the summons having been executed on the defender 
 personally when resident with his regiment quar- 
 tered in Scotland, although the marriage had been 
 irregularly celebrated at Gretna Green. The par- 
 ties were English, and lived together only in Eng- 
 land, and the crime was committed there, and an 
 improbative certificate subscribed by the celebrator
 
 212 A DIGEST ON THE LAW OF MARRIAGE, book ii. 
 
 < 
 
 and parties, with a reference to the oath of the de- 
 fender that the certificate was genuine, held compe- 
 tent evidence of the marriage. 
 
 The facts are these : — The parents of the parties 
 being averse to the marriage, they were married at 
 Gretna Green in 1786 ; they immediately returned 
 to England ; their parents were reconciled, and the 
 parties lived openly, and were universally considered 
 as man and wife, and had four children of the mar- 
 riage. In December 1792, the defender deserted 
 the pursuer, and has since been guilty of adultery. 
 
 The defender made no appearance. A proof was 
 taken by the Commissaries by commission in Eng- 
 land, establishing the cohabitation of the parties, and 
 the birth of the children, the desertion and subse- 
 quent conduct of the defender, as libelled. Upon ad- 
 vising the proof, 20th Feb. 1801, "the Commissaries, 
 having considered and compared the libel with the 
 proof, found it not proved either that the marriage 
 of the pursuer or defender, who are not Scottish but 
 English by birth, was celebrated in Scotland, or 
 that they cohabited in Scotland as husband and wife 
 any time after the marriage, or that the defender 
 has any settled or sufficient residence in Scotland, 
 or even that the crime on which the divorce is 
 founded was committed in Scotland. Therefore 
 found, that the action is not competent in Scotland, 
 and ought not to have been brought before this 
 Court, and dismisses this process for want of juris- 
 diction." 
 
 Along with a reclaiming petition against this
 
 TIT. rr. O V C O Af 1' E T E N T Q U E S T [ f ) N S . 213 
 
 mdgment, the pursuer produced the following coarse 
 and clumsy certificate of the marriage : — 
 
 Gretna Green, June 10, 1786. 
 " This is to sertfay to all persons that may be 
 scurned (concerned) that Charles Blount from Salis- 
 bury, and Elizabeth Ann Wychee from the same 
 piece, both comes before me and declares themselves 
 to be both single persons, and is now married to be 
 the way of the church of Scotland, as day and dit 
 abuve mentioned by 
 
 David M'Farson, 
 C. B. Blount, 
 Eltz. Ann Wychee. 
 
 The Commissaries allowed the pursuers to prove 
 that the marriage was celebrated in Scotland, and re- 
 ferred this point to the defender's oath, and that the 
 certificate was genuine. But the Commissaries, " in 
 respect of the particular circumstances of the case, 
 which are fully explained by the interlocutor of 
 20th February last, found the mode of proof offered 
 in this minute incompetent." 
 
 But the Lord Ordinary, upon reporting a bill of 
 advocation to the Court, " remitted to the Commis- 
 saries, with instructions to sustain their jurisdiction 
 in this case, in respect the summons was executed 
 against the defender when resident in Scotland, and 
 possessing a domicile there. Find it competent to 
 refer to the oath of the defender the authenticity of 
 his subscri])tion of the certificate of marriage j)ro- 
 
 s
 
 214 A DIGEST ON TIIK I-AW OF ^NIAllRIAGE^ book ir. 
 
 duced, and that said certificate is genuine ; admit 
 the said references, and grant commission accord- 
 ingly." The defender having failed to depone on 
 the reference, the Commissaries held him as con- 
 fessed, and pronounced decree of divorce. Besides 
 the reason for sustaining the Commissaries' juris- 
 diction, as stated in the judgment, the locus contrac- 
 tus of the parties in Scotland must have had due 
 weight with the Court. 
 
 7. Murray v, Linlay, Fac. 8th March 1805, Mor. 
 App. 1. Forum Compel. No. 5. 
 
 William Lindlay and Harriet Murray were born 
 in England, and were married in Ireland. Soon 
 after their marriage, they came to reside in Scot- 
 land, where they lived several years ; but in 1802 
 repaired to England, where Lindlay obtained a 
 commission in one of the English militia regiments. 
 In the course of the succeeding year, Mrs. Lindlay 
 came to Scotland, and instituted a process of di- 
 vorce, on the head of adultery, against her husband, 
 before the Commissaries of Edinburgh. The cita- 
 tion was given personally to Mr. Lindlay, who hap- 
 pened at that time to be for a few days in Scotland, 
 He intrusted the management of his defence to a 
 solicitor, who gave in defences to the Commissaries, 
 objecting to the relevancy of the libel, without of- 
 fering any declinature of the jurisdiction of the 
 Court. The Commissaries repelled the defences, 
 and allowed the pursuer her oath of calumny. Of 
 which judgment, the defender complained by a bill 
 of advocation, which was refused. 
 
 The defender afterwards L>"ive in a p;'titi(>u to the
 
 TIT. II. OF COMl'iyrKXT QUESTIONS. 21i5 
 
 Commissaries, declining their jurisdiction ; and 
 " the Commissaries having considered the petition, 
 with answers, and particularly observing that no ob- 
 jection was stated to the jurisdiction of the Court 
 until after issue was joined on the merits, refused 
 the petition." A bill of advocation was offered 
 against this interlocutor, which was refused by the 
 Lord Ordinary. 
 
 Upon this, the defender presented a petition to the 
 Court and pleaded : " All civil jurisdiction is found- 
 ed ratione originis, contractus rei sitae domicilii." 
 As both parties were born in England, were mar- 
 ried in Ireland, and have no effects whatever in this 
 country, it is evident the jurisdiction of the Com- 
 missaries of Edinburgh must rest entirely on the 
 forum domicilii. Now the defender's domicile was 
 in England at the time this action was raised, and 
 he had only been a few hours in Scotland sine ani- 
 mo remanendo, when he was served with a citation. 
 It is to no purpose that the alleged acts of adultery 
 are said to have been committed in Scotland, for the 
 locus delicti is of no moment when a prosecution is 
 brought merely ad cicilem effectum. The objec- 
 tion to the jurisdiction of the Commissaries has 
 been sustained, in cases where there were strone^er 
 grounds for holding the parties amenable to the ju- 
 risdictions of this country. Scruton v. Gray, Dec. 
 1, 1772. Diet. vol. iii. p. 239. Brunstane v. Wal- 
 lace, Feb. 9, 1769. Ibid. p. 238. If the Commissary 
 Court had no legal jurisdiction in this action, it is 
 impossil)le that any plea stated by the defender
 
 216 A DIGEST ON THE EAW OF MAKUIAGE. book ii, 
 
 could confer a jurisdiction, A person cannot hy a 
 mere act of his will change his domicile, unless he 
 actually remove to another country ; far less can 
 such a change of domicile be implied to have the 
 effect of prorogating the jurisdiction of a Court. 
 Nor can any consent of parties give effect to an ac- 
 tion which is in itself incompetent. Erskine, B. 1. 
 tit. '2. § 30. 
 
 Answered : The defender had completely aban- 
 doned his residence in his native country, and esta- 
 blished a domicile in Scotland, by residing in it 
 with his family for a number of years. He went 
 to England merely with the view of obtaining a 
 commission : and his living there while following 
 the quarters of his regiment, cannot be inferred as 
 a change of his domicile. Scotland being the last 
 place where he had a fixed domicile, he remained 
 amenable to the Courts of this country until he es- 
 tablished a permanent residence in another ; and 
 still more so, when it is considered that he was per- 
 sonally cited. But even supposing the objection 
 originally well founded, the jvu'isdiction of the 
 Commissaries was prorogated by the defender com- 
 pearing before them, and joining issue on the merits 
 of the cause ; and he is not entitled afterwards, 
 upon perceiving the case likely to be decided against 
 him, to make any objections to the competency of 
 the Court. It is an established maxim, that a par- 
 ty, by proponing peremptory defences, abandons all 
 such as are of a dilatory nature. Voet. B. 2. t. 1. 
 § 81 ; Ersk. B. 1. t. 3. § 29 ; Stair, B. 4. t. 37. §
 
 TIT. 41. OF COiAlPETKNT QUKSTIONS. 217 
 
 12; Hank. vol. ii. p. 4i72; Kuiiies' Law Tracts, 
 Tr. 7th. 
 
 The Court, upon advising the petition, vvitli an- 
 swers, were of opinion, that the jurisdiction had 
 been prorog-ated, and therefore adhered to the inter- 
 locutor of the Lord Ordinary refusing the bill of 
 advocation. 
 
 8. Lindsay v. Tovey, Fac. 17. 682. Remitted on 
 appeal by Tovey, June 18, 1813. 
 
 The facts of this case are as follow : Mr. Lind- 
 say, a Scotsman, entered into the army, and went 
 with his regiment to Gibraltar, where in 1781 he 
 married Miss Tovey, an Englishwoman, and re- 
 mained there till 1784, from which period till 1792 
 they resided together in Scotland, except when Mr. 
 Lindsay was occasionally absent with his regiment. 
 He afterwards went to Ireland, and moved about 
 from place to place with his regiment. 
 
 On 4<th December 1802, the parties executed a 
 deed of separation, by which she accepted of an an- 
 nuity, and was at liberty to live where she pleased, 
 and he obliged himself not to disturb or molest her, 
 or any person or persons in whose house or fiiniily 
 she should reside. 
 
 Lindsay, on 12tli December 1804, raised an ac- 
 tion against his wife upon the head of adultery, 
 which he alleged had been committed before and 
 subsequent to the separation. She then resided at 
 Durham, and was cited at the market-cross, pier, 
 and shore. 
 
 The Commissaries, 5th April 180.5, repelled a 
 preliminary defence, objecting to their jurisdiction
 
 218 A DIGEST ON THE I-AAV OF JMAKUIAGE. ojook ii. 
 
 and the Court of Session, on advising a bill of ad- 
 vocation, (which was reported by Lord Bannatyne) 
 complaining of the judgment, refused the bill. 
 
 In a reclaiming petition for the defender, she 
 maintained generally that all actions must be 
 brought in the forum of the defender, who resided 
 in England, and referred to the case of Brunstane 
 V. Sir Thomas Wallace. 
 
 The pursuer, "who is an heir of entail to a Scots 
 estate and a freehold in Scotland, replied that when 
 a Scotsman marries a foreigner, she becomes entit- 
 led to all the privileges which the subjects of Scot- 
 land may and will enjoy, and will be entitled, if not 
 expressly excluded, to the terce and jus relicti, and 
 of course takes along with them the obligation and 
 responsibility connected with these, and would even 
 be entitled to insist in an action of divorce against 
 her husband in this country, and that the act of 
 voluntary separation may be virtually revoked by 
 executing the present summons of divorce, and that 
 Scotland is the pursuer's forum ratione otiginis. 
 Ersk. B. 1. t. 2. § 17. Hog v. Tennant, 27th 
 June 1700, Mor. 4780. Pierie v. Lunan, 8th 
 March 1768, The Court, on the 27th January 
 1807, adhered to the judgment of the Commissaries, 
 but Tovey having appealed, the following judgment 
 of the House of Peers was pronounced, " Ordered, 
 and adjudged that the cause be remitted back to the 
 Court of Session, to review the interlocutors com- 
 plained of, and to do therein what the Court shall 
 seem just. And it is further ordered that the Court
 
 nr. II. OF COMPETENT QUESTIONS. 219 
 
 do give all necessary directions, as well in the 
 said Court, as to the Commissaries of Edinburgh, 
 for enabling the said Court effectually to carry in- 
 to execution the judgment of the said Court which 
 shall be pronounced after such review." June 18, 
 ISlfi. 
 
 9. M'Kenzie and Children v. M'Kenzie. 8th 
 March 1810. Fac. Mor. 287. 
 
 These parties were natural born subjects in Scot- 
 land. An action of declarator at the wife's in- 
 stance, on the ground of habit and repute, was sus- 
 tained against the husband, domiciled in England, 
 and no regard was paid to a subsequent writing, 
 granted by the woman, importing that the parties 
 did not live together as man and wife. The pur- 
 suer bore a child to the defender in 1795. He 
 lived some time in England and afterwards in Glas- 
 gow, accompanied by her. They lived about ten 
 years together, habit and repute as man and wife, 
 but in 1807, M'Kenzie deserted her and the two 
 children which she bore him, and went to live in 
 Manchester ; she raised an action atrainst him for 
 marriage, legitimacy of her children, and aliment. 
 He objected to the Commissaries jurisdiction, as he 
 was domiciled in England, but they repelled the 
 objection, as did also the Court, holding that where 
 two natural born subjects had contracted a marriage 
 in this country, the husband was amenable to the 
 jurisdiction in a declarator of marriage, although he 
 had gone to reside in England. She had wrote two 
 letters to the defender, subsequent to their living 
 together as habit and repute, renouncing her rights
 
 220 A DIGEST ON THE LAW OF MARRIAGE, book ii. 
 
 as his wife, but the Court found that these letters, 
 which were alleged to be irapetrated from her, could 
 not undo the character they assumed as husband 
 and wife. But the grounds of decision will best 
 appear from the following observations of the emi- 
 nent judges, before whom the cause came to be de- 
 cided. 
 
 Lord Justice Clerk Hope, observed that this was 
 a very peculiar case, and before the Court could 
 determine against the pursuer, it would require 
 most serious consideration. The question was not 
 whether a marriage had been made by habit and 
 repute, but when once made whether the parties 
 could unmarry themselves. For ten years before 
 the date of the writing, they had lived together in 
 \ such a way, that no person could doubt their being 
 man and wife. 
 
 Lord Robertson said, the parties had lived to- 
 gether as man and wife, kept a shop, and the wife 
 sold goods in that character. If there was such a 
 thing as habit and repute, it had here taken place. 
 The children are pursuers, and have an interest 
 that both the parents cannot defeat. 
 
 Lord Newton remarked, that this case had been 
 likened in the proceedings to the case of Cuning- 
 r ham of BalbergJ-ie, 20th February 1810, but he 
 
 considered it different. There was here what he 
 desiderated in that case, viz. a habit and re- 
 pute, which was complete and undoubted. The 
 Commissaries decerned in favour of the pursuers, 
 and the judges sustained their jurisdiction, by re-
 
 TIT. II. OF COMPETENT QUESTIONS. 221 
 
 fusing a bill of advocation, reported on memorials 
 by Lord Cullen. 
 
 10. Mrs. Rowland i\ her husband, 25th October 
 1814. Fac. 
 
 In 1807 the pursuer was married to Daniel Row- 
 land, residing in Gray's Inn, and cohabited together 
 there till August 1814. He deserted her and came 
 to Edinburgh, in the same month of August, and 
 cohabited openly in a hotel there with a woman 
 from England. The action of divorce on the head 
 of adultery was served on him personally, on 5th 
 October 1814. He soon afterwards returned to 
 England. The Commissaries, on the same grounds 
 as in the case of Levit, refused a divorce, but of- 
 fered a separation. The pursuer presented a bill of 
 advocation, which was reported along with Mrs. 
 Levite's, to be afterwards noticed, Mrs. Levite's 
 oath of calumny was printed, and the Court, on ad- 
 vising both cases, remitted to the Commissaries to 
 alter their interlocutor, and to proceed in the di- 
 vorce according to the rules of law. 
 
 11. Elizabeth Utterton v. Fred. Tuish. Fac. 25. 
 October 1811. 
 
 The parties were married in England, in July 
 1780, and cohabited in that kingdom till the begin- 
 ning of the year 1786, when the defender deserted 
 the pursuer, and lived in adultery with another wo- 
 man, both in England and Scotland, and particular- 
 ly at Portobello and Edinburgh, where he lived at 
 bed and board, as husband and wife for more than 
 a period of forty days.
 
 2122 A DIGEST ON THE LAW OF MAllllIAGE. nooK ii. 
 
 In a divorce, a vinculo ?natrimonii, the Commis- 
 saries apprehending collusion between the parties, 
 entered minutely into the previous circumstances 
 of domicile, and the cmimo remanendi of the de- 
 fender, with which they were not satisfied, and 
 after various steps of procedure upon this point, 
 they pronounced this interlocutor. " In respect 
 the pursuer and defender are English, and never 
 cohabited as husband and wife in Scotland, and 
 that there are no sufficient circumstances stated to 
 prove, or render it presumable that the defender 
 has taken up a fixed and permanent residence in 
 this country ; find that the Court has no jurisdic- 
 in the present instance, therefore dismiss the pre- 
 sent action, and decern. 
 
 Of this judgment the pursuer presented a bill 
 of advocation. Lord Meadowbank, Ordinary, pro- 
 nounced this interlocutor : " Having considered the 
 bill, and the proceedings before the Commissaries, 
 and been attended by counsel for the parties, accord- 
 ing to the order of the 9th current, who declared 
 that they could not explain to the Lord Ordinary, 
 from the discussions or deliberations in the Com- 
 missary Court, the grounds of the interlocutor un- 
 der review, further than appears from the terms in 
 which it is conceived, and the counsel for the defen- 
 der having signified that he had not advised his client 
 to litigate in support of that interlocutor, and being, 
 in that manner, left to his own unbiassed considera- 
 tion of what might be said in behalf of the interlo-
 
 TIT. II. OF COMPETENT QUESTIONS. 223 
 
 c-utor ; but, having formed his opinion thereon, re- 
 fuses the bill, and remits to the Commissaries, with 
 this instruction, to find that the relation of husband 
 and wife is ;i relation acknowledged jure gentium : 
 That tlie duties, obligations, and rights to redress 
 wrongs incident to that relation, as recognised by 
 tlie law of Scotland, attach to all married persons 
 living within the territory subject to that law, wher- 
 ever their marriage may have been celebrated, or 
 been followed by cohabitation : That jurisdiction or 
 the right and duty of the courts of this country to 
 administer justice, in such matters, over persons not 
 natural born subjects in Scotland, arises from the 
 person sued being resident within their territory at 
 the time of' their citation and compearance, or being 
 duly domiciled, and being properly cited accordingly 
 at the instance of a person having sufficient interest 
 and title, and proceeding in due form of law ; and 
 that, in this case, the pursuer had condescended suf- 
 ficiently on the defender's residence in Scotland, to 
 enable her to institute her claim in justice against 
 him before the Commissaries, according to the dic- 
 tates of the law of Scotland in the matter libelled ; 
 and, therefore, to recal the interlocutor complained 
 of, to sustain their jurisdiction, and thereafter to 
 proceed in common form as to them may seem just." 
 
 The Lord Ordinary likewise explained the prin- 
 ciples of the above judgment by a note, which will 
 be found in the appendix. 
 
 The Connnissaries, in virtue of the preceding re- 
 mit, altered their judgment; and a proof being led,
 
 *224! A DIGEST ON THE LAW OF MAllRIAGK. «ook ii. 
 
 and the averments of the pursuer being proven, de- 
 cree of divorce, a vinculo matrimonii, was pronounced 
 in usual form. 
 
 12. Mrs. Bell v. Dr. Andrew Bell, Fac. 22d Feb- 
 ruary 1812; Mor. 367. 
 
 The parties here were natives of Scotland ; they 
 had been married in Scotland, and the defender was 
 proprietor of a Scots estate. After their marriage, 
 they went to reside in England, where, differences 
 having arisen between them, they separated, and 
 Mrs. Bell returned to Scotland, prior to the terms 
 of a deed of separation having been agreed upon, 
 by which Mrs. Bell was to be allowed a certain 
 sum yearly while she continued separated from her 
 husband ; but this deed never was executed ; and 
 although Dr. Bell stated his readiness to execute it, 
 in terms of his agreement, it did not appear that 
 the pursuer had received from him any sum for her 
 maintenance since the date of their separation. In 
 these circumstances, Mrs. Bell brought an action 
 against her husband, concluding for L.600, in name 
 of aliment, as well for the time bygone as in future. 
 
 To the competency of this action the defender ob- 
 jected, that, as he, the husband, was domiciled in 
 England, the pursuer's domicile must be held to be 
 there also, and her action ought to have been brought 
 in the English courts. 
 
 The Court overruled this objection, upon the 
 ground that the marriage was contracted in Scot- 
 land, and that the defender was proprietor of a Scots 
 estate.
 
 TIT. ri. OF COMPETENT QUESTION'S. 225 
 
 It was then objected : There is here no legal, but 
 merely a voluntary separation, in which situation it 
 is incompetent to the pursuer to sue for aliment. 
 The Court sustained this objection, and dismissed 
 the action. 
 
 The Lord President Blair, in delivering his opi- 
 nion, said : " There can be no doubt of the jurisdic- 
 tion of the Court in this case. The question arises 
 out of a Scots contract. The parties are Scots, and 
 there is a Scots estate ; the right of the wife cannot 
 be altered by following her husband into another 
 country. But I doubt if we can give an ali- 
 ment where there is no legal separation. Inhere is 
 no conclusion in the summons upon which we can 
 decern. It concludes for aliment during the volun- 
 tary separation of the parties, which the husband 
 may put an end to immediately, by ordering his 
 wife to live with him." 
 
 13. Thomas Stirling Edmonstone v. Mrs. Edmon- 
 stone, 1st June 1816. Fac. 
 
 The pursuer, Mr. Edmonstone, was born and 
 educated in Scotland, and held a small patrimony, 
 secured on an heritable bond, in Scotland. He en- 
 tered into the army, and for some time was on fo- 
 reign service, and returned to Scotland. ^Vhen in 
 the Scots militia in England, he married the defen- 
 der, a sister of the commanding officer, a Scots- 
 woman. The marriajje was celebrated in the Ena- 
 lish form, and the contract, containing a jointure to 
 the lady, was drawn up in the Scots form, and se- 
 cured on au herital)le bond to her husband in Scot-
 
 226 A DIGEST OX THE LAW OF oMAllllIAGE. book n. 
 
 land. They returned to Scotland, and lived together 
 for eight years, but, suspecting her guilty of adul- 
 tery, raised an action against her before the Com- 
 missaries, on that ground. Against this she plead- 
 ed, in defence, that the marriage having been con- 
 tracted in England, where it is indissoluble and in- 
 dissolubility, became part of the contract, so as not 
 to be removed by the subsequent domicile of the 
 parties in Scotland, or by the criminal act being, as 
 alleged, committed there. The Commissaries being 
 equally divided by a rule of their practice, sustained 
 the defence. Against this judgment the pursuer 
 offered a bill of advocation. 
 
 14. Forbes v. Forbes, 1st June 1816. 
 
 This case is of a similar description with the 
 foregoing. 
 
 Mrs. Forbes and her husband were natives of 
 Ireland. Mrs. Forbes vmtil her marriage resided 
 at Limerick, where she formed an acquaintance 
 with Mr. Forbes, then an officer quartered in that 
 town. In May 1794< they were married at Port- 
 patrick in the Scottish form. She addressed her 
 letters to the Continent, when it was alleged he 
 abandoned her society there, and to have come to 
 Scotland about December 1813 or January 1814, 
 along with a female with whom he lived in open 
 adultery. In a process of divorce at Mrs. Forbes' 
 instance, on the head of adultery, the Commissaries 
 being equally divided, gave judgment for the de- 
 fender, finding that though the marriage was per- 
 formed in Scotland, this being a question of status,
 
 TFT. ir. OF COIVrPETEXT QUESTIONS. S27 
 
 must be determined accordin"- to the domicile of the 
 parties at the time of contracting, which was Ire- 
 land, where marriages are indissoluble. Against 
 this judgment Mrs. Forbes presented a bill of ad- 
 vocation. 
 
 15. Mrs. Levit v. her Husband, 1st June ISlCi. 
 
 This case is of a like description with the two 
 preceding. Mrs. Levit and her husband were na- 
 tives of England, and were married in England in 
 1802; they lived together until October 1810, 
 when he deserted her. They were reconciled in 
 March 1812, after a prosecution for conjugal rights. 
 He deserted her again in February 1813, and came 
 to Scotland with a woman with whom he conti- 
 nued to live there in adultery, having sold his house 
 in England, and ceased to have any establishment 
 there. Mrs. Levit raised an action of divorce 
 against him in 1814. The Commissaries found 
 that the parties being English, and married in 
 England, that their permanent domicile being there, 
 the marriage cannot be dissolved in Scotland. 
 
 Mrs. Levit presented a bill of advocation. The 
 Lord Ordinary reported the three last cases to the 
 Second Division of the Court, and as they regarded 
 the general question, they were heard together by 
 appointment in presentia of the whole fifteen judges. 
 No appearance was made for Mr. Forbes or Mr. 
 Lev^it. Memorials were afterwards ordered, in 
 which the parties were particularly directed to at- 
 tend to the following question, proposed by the Se- 
 cond Division to the First Division, and to the per-
 
 228 A DIGEST ON THE LAW OF MARRIAGE, book n. 
 
 manent Lords Ordinary of both Divisions, — " Is it 
 a valid defence against an action of divorce in Scot- 
 land, on account of adultery committed there, that 
 the marriage had been celebrated in England, or 
 that the parties had been domiciled there, when the 
 marriage was celebrated in Scotland ; or will it ma- 
 terially affect the defence, that the pursuers, al- 
 though married in England, were Scotch persons, 
 and continued domiciled there ?" 
 
 The ten judges gave the following opinion : 
 
 The ten judges, to whom the above question has 
 been referred, having maturely considered it sepa- 
 rately, and having also conversed together on the 
 subject, are unanimously of opinion, that it is not 
 a valid defence against an action of divorce in Scot- 
 land, for adultery committed there, that the mar- 
 riage had been celebrated in England. Nor that 
 the parties had been domiciled there when the mar- 
 riage had been celebrated in Scotland. 
 
 And lastly, they are of opinion where the parties 
 are Scots persons, happening to be in England 
 when their marriage was celebrated, but who there- 
 after returned to Scotland, and cohabited, and con- 
 tinued domiciled there, that these circumstances can 
 never aid the defence against an action of divorce 
 in Scotland, for adultery committed there, on 
 the ground that the marriage had been cele- 
 brated in England. On the contrary, they are of 
 opinion, that these circumstances will materially 
 support the plea of the pursuer of the divorce. 
 
 The judgment in these three cases therefore, was
 
 tit.it. of competent questions. 229 
 
 " that an English marriage may be dissolved in 
 Scotland, for adultery committed there, and that 
 the defender in the process of divorce must be 
 domiciled in Scotland, 1st June 1816." 
 
 The learned speeches of the judges in these three 
 cases will be found in the appendix. 
 
 To these cases we beg to add another of an in- 
 teresting nature, though it did not verge from the 
 tribunal of the Commissaries, but, in its conse- 
 quences, of the most distressing and alarming na- 
 ture to natives of England marrying there, coming 
 to Scotland, and committing adultery there, and the 
 adulterer returning and remarrying in England, 
 upon the idea of the previous divorce in Scotland. 
 
 W. M. Lolly had married in England, had come 
 to reside in Scotland, and was divorced by the Com- 
 missary Court at the instance of his wife, for adul- 
 tery committed there. After the divorce, he re- 
 turned to England, and married again, and was 
 thereupon indicted for bigamy at the Lancaster as- 
 sizes in 1812. The defence was, that the previous 
 marriage had been legally dissolved by the sentence 
 of divorce pronounced in Scotland, and that there- 
 fore he was free to marry again. It was answered, 
 that as his first marriage had been contracted in 
 England, it could only be dissolved by the English 
 forms. That although adultery was a good ground 
 of divorce in England, as well as in Scotland, yet 
 the law of England acknowledged no competent 
 authority to dissolve the marriage, and enable the 
 parties to marry again, except Parliament. That 
 
 T
 
 230 A DIGEST ON THE LAW OF MARRIAGE, book. ii. 
 
 thus the first marriage was still an existing one by 
 the law of England, and he had therefore commit- 
 ted bigamy in marrying again. 
 
 Lolly was convicted, the jndge who presided at 
 the trial reserving the point for the opinion of the 
 tweh^e judges. The twelve judges were of opinion, 
 1st, That a marriage contracted in England cannot 
 be dissolved by a sentence of a Scottish, or any oth- 
 er Court, or by any other authority, than that of 
 the British parliament. 2d, That a sentence of di- 
 vorce by the Commissary court of Scotland or any 
 other foreign court, does not entitle the defendant 
 to the benefit of the exception in the statute of 
 bigamy. And Lolly had sentence of transportation 
 for seven years pronounced against him. 
 
 The English "Statute of Bigamy" here referred 
 to, is probably the 1 James L c. ii. which, after 
 making bigamy a capital felony, provides that this 
 act shall not extend to any person or *' persons 
 that are, or shall be at the time of such (second) 
 marriage, divorced by any sentence had, or here- 
 after to be had in the Consistorial court ; or to any 
 person or persons where the fotmer marriage hath 
 been, or thereafter shall be, by sentence in the 
 Ecclesiastical court, declared to be void and of no 
 effect."
 
 231 
 
 BOOK li. 
 
 TIT. III. 
 
 OF INCO^IPETENT CASES. 
 
 The class of cases under this title are few in num- 
 ber, but in their consequences most important, and 
 well deserving of attention, as will be seen from the 
 cases themselves, the most remarkable of which are 
 the following. 
 
 1. Dame Elizabeth Brunstane v. Sir Thomas Wal- 
 lace, 8th February, 1789- Fac. Mor. p. 4784. 
 
 Sir Thomas Wallace, a native of Scotland, and a 
 substitute in an entailed estate, left Scotland when 
 thirty years old, without any intention of returning, 
 and having gone to England, he paid his addresses 
 to, and married the pursuer, a native of Scotland, 
 according to the rules of the church of England. 
 They lived some time in France, from whence Lady 
 AVallace returned to England, and then commenced 
 an action of divorce before the Commissary Court 
 of Scotland, on the ground of adultery. He was 
 cited at the market-cross, pier and shore of Leith, 
 and the Commissaries were in the course of pro- 
 ceeding in the usual way to allow a proof, when a
 
 232 A DIGEST ON THE LAW OF MARRIAGE, book il. 
 
 bill of advocation was preferred for Sir Thomas. 
 Able and lengthened arguments were employed on 
 both sides. For Sir Thomas reference was made 
 to various authorities. Historical law tracts, voce 
 Courts, Kilkerran ; January 1747, Hodgson v. An- 
 derson ; Voet lib. 2. t. 1. § 46. lib. 5. tit. 1. § 96, in 
 fine, Just. Jur. Canon, lib. 2. t. 16. Blackstone's 
 Commentaries, c. 1. c. 15. § 7. as was likewise for 
 the pursuer. Die. voce Forum Cowpetens ; Erskine, 
 book i. tit. 2. § 16, 17, and 19- Id. lib. i. t. 4. § 34 ; 
 15th November 1626 ; Galbraith, 8th December 
 1626 ; Blantyre 2 and 7, June 1760. Hog y. Tenant; 
 
 The question was decided on genuine principles. 
 The majority of the court seemed to be of opinion 
 that there was a Jorum ratioue originis so as tp 
 found a jurisdiction in the Commissaries, but that 
 it was not competent for them, in the circumstances 
 of the case, to pronounce a judgment of divorce be* 
 tween the parties. 
 
 One of the Judges expressed an opinion, that 
 marriage, as regulated by the laws of Christianity, 
 was to be considered as in some degree juris genfitwi, 
 and that where the municipal constitutions of dif- 
 ferent countries in which the Christian religion was 
 acknowledged, were at variance, recourse may be 
 had to the rules laid down in holy writ, by which 
 adultery was declared to be a sufficient cause of 
 divorce. The Lord Ordinary refused the bill of 
 advocation, and a petition reclaiming against this 
 judgment, being followed with answers, was also 
 refused. But upon advising a second reclaiming
 
 TIT. III. OF INCOMPETENT CASES. 233 
 
 petition with aiis;wers, the Lords remitted the 
 cause to the Coiiimissaries, with instructions to dis- 
 miss the action. A reclaiming petition having- been 
 preferred, and answers j^iven in, the Lords adhered 
 to this judgment, 9th February, 1789, by which the 
 jurisdiction of the Commissaries was not sustained. 
 2. Maria Morcomb v. John Laurie M'Lellan, 27th 
 June, 1801, Yn. Mor. App. 1. Forum Competens, 
 No. 3. 
 
 The defender served an apprenticeship as a sur- 
 geon in Dumfries, and attended the medical classes 
 at the University of Edinburgh, and was afterwards 
 a surgeon's mate in tiie navy, but being a valetudi- 
 nary, was appointed surgeon to the Myrmidon re- 
 ceiving ship, stationed at Plymouth. Here he mar- 
 ried the pursuer, an Englishwoman, in 1779. 
 
 After living many years with her in England, 
 she alleged that he deserted her and lived in adul- 
 tery with another person. She instituted an action 
 against him before the Commissaries. He was 
 cited edictally at the market-cross, pier and shore 
 of Leith, and a certificate under the hands of a 
 notary was produced, importing that a copy of the 
 summons had been served on him at Plymouth, 
 where he retained his situation in the ship Myrmi- 
 don, without ever having been in Scotland since his 
 first appointment in the Navy. The defender de- 
 clined the jurisdiction of the Connnissaries, who pro- 
 nounced the following judgment : " Considering 
 that the courts of one country ought not to be con- 
 verted into engines either for eluding the laws of
 
 234 A DIGEST ON THE LAW OF MARRIAGE, bookii. 
 
 another, or determining matters foreign to their 
 territory, and that decreets of divorce pronounced 
 by incompetent courts cannot effectually and se- 
 curely either loose the bonds or dissolve the mar- 
 riages, or fix the status of the parties thereto, but 
 might become causes or snares to involve other per- 
 sons as well as their children in deep distress, and 
 observing it to be admitted in the libel, that the 
 marriage of the pursuer and the defender was cele- 
 brated in England, and that they resided constantly 
 in England since their marriage, and even that the 
 crime on which divorce is here demanded to be 
 decerned was committed in England, Therefore find 
 that the action in Scotland ought not to have been 
 brought before this court, and dismiss the process 
 in all its parts for want of jurisdiction and of power." 
 
 The Lord Ordinary having refused a bill of ad- 
 vocation, complaining of this judgment, the pursuer 
 in a reclaiming petition pleaded in a questio status, 
 like the present, the defender would be answerable 
 to the courts of Scotland even ratione originis. 
 But, in truth, having been constantly in the navy 
 service ever since he left Scotland, he has acquired 
 no other forum, and, consequently, the country in 
 which he was born and educated is still the proper 
 domicile, Kilkerran p. 213, llth June 1745, Dods «;. 
 Westcomb Fieri e, 13th June, 1800, French. The 
 Lords unanimously refused the petition without 
 answers. 
 
 3. Margaret Scruten ?\ John Gray and Attorney, 
 1st December 1772 ; Fac. Diet. vol. iii. p. 239.
 
 TIT. III. OF INCOMPETENT CASES. ii35 
 
 The pursuer alleged that she was married to John 
 Gray while he was attending the College of Glasgow, 
 where he deserted her society. She raised an action 
 of declarator of marriage and adherence. The libel 
 set forth, that, in order the more effectually to es- 
 tablish a jurisdiction, and to secure the defender's 
 effects in this country, an arrestment had been used 
 in the hands of a William Gordon. The summons 
 was served at the market-cross, pier and shore of 
 Leith ; and Gordon declared that Gray had resided 
 with him for eighteen months preceding December 
 1772, and that a few articles remained in his hands 
 belonging to Gray. A certificate was produced, in- 
 structing, that, at the same time the alleged mar- 
 riage was entered into, Gray was only a youth of 
 fifteen years ; and his attorney, Mr. Wilson, main- 
 tained, in defences, that he, being a foreigner, was 
 not amenable to the jurisdiction of this country. 
 The Commissaries repelled the defences declinatory 
 of the jurisdiction of the Court, and allowed the de- 
 fender to give in defences in causa. Of this judg- 
 ment Mr. Gray complained by bill of advocation. 
 The Court ordered memorials, and afterwards a hear- 
 ing in presence. 
 
 The pursuer argued, that there was here ^ forum 
 competens, both ratione contractus and ratione rei 
 sitce, in consequence of the arrestment used in the 
 hands oi Govdon.jurisdictlonesfunchmdfc causa. 
 
 The Court were of opinion, that quoad the com- 
 petency of ^ forum ratione rei sitce^ and the arrests 
 ment adfundandumjurisdictionem, that neither ap^
 
 236 A DIGEST ON THE LAW OF MARRIAGE, book ii. 
 
 plied to this case, where the conclusion is not found- 
 ed on a document of debt, but to declare, in a con- 
 tract the most personal of any, that a man in Ire- 
 land is a married man, and which was only a preli- 
 minary one, in order to pave the way for a demand 
 of debt. That this species of diligence was only 
 applicable to mercantile transactions in the Admi- 
 ralty Court, and that the only remedy for the pur- 
 suer was, by resorting to the defender's proper j*^- 
 rum in Ireland. The Lords, therefore, remitted the 
 cause, with instructions to sustain the defences, de- 
 clining the jurisdiction of the Commissaries, 
 
 4. Forrest v. Funstain, Die. t. Forum Comp. ratio 
 rei sitce. Die. 3, 239, Fac. 20th February 1789 ; 
 Mor. 4,822. 
 
 In the Dictionary it is thus reported : 
 " Mary Forrest, a native of Ireland, brought a 
 declarator of marriage in the Commissary Court of 
 Edinburgh, against Christopher Funstain, an Irish- 
 man, who held the office of master-gunner of Black- 
 ness Castle in Scotland, but had never resided there 
 above a few days at a time, and had, when the ac- 
 tion was brought, been absent many years from 
 Scotland. He had, however, a few articles of fur- 
 niture in his apartment in Blackness Castle, and the 
 citation was given there, as being the defender's do- 
 micile. Urged in defence, that a residence of at 
 least forty days previous to the suit is necessary to 
 fix a domicile. In an advocation, the Lords remit- 
 ted to the Commissaries, with instructions to dis- 
 miss the action." The Court found, that a native
 
 •WT. HI. OF INCOMPETENT CASES. 237 
 
 of Ireland, having a militaiy office in Scotland, with- 
 out actual residence, is not liable to the jurisdiction 
 of the Scottish Courts. 
 
 5. Dame Cunninghame Fairlie v. Sir William 
 Cunninghame Fairlie, Bart. ; Fac. 4th February 
 1813. Halk. Comp. p. 244. 
 
 In an application to the Court of Session, by a 
 wife, for money to enable her to carry on her defence 
 against an action of divorce brought by her husband 
 against her, and carried by the husband to the 
 House of Peers, it is not competent to the Court of 
 Session, but only to the Commissary Court, where 
 the radical action lies. 
 
 6. Gordon v. Pye, 1814 ; Commissary decision. 
 In this case the point of jurisdiction was again 
 
 agitated, and deliberately considered in the Com- 
 missary Court, for the conviction of Lolly, joined 
 to the opinions of the House of Lords, in the appeal 
 Tovey v. Lindsay, rendered it necessary for the 
 Scottish Court to proceed cautiously with each other. 
 The judgment of the Commissary in this case is 
 supposed to be the following : " In respect it ap- 
 pears, from the pursuers libel and condescendence, 
 that the parties are English, and the marriage be- 
 tween them was celebrated in England, and the per- 
 manent domicile and residence of both, as husband 
 and wife, is, and always has been, in that kingdom ; 
 in respect, also, that the temporary residence of the 
 defender, and the alleged con. mission of adultery by 
 him in Scotland, can have no effect to alter the con- 
 dition of the contract between the parties as indis-
 
 238 A DIGEST ON THE LAW OF MARRIAGE, book ii. 
 
 soluble secundem legem loci contractus, and to au- 
 thorize the Court to pronounce sentence of divorce 
 a vinculo matrimonii ; and in respect no other re- 
 medy which this Court might have competent juris- 
 diction to supply, in the circumstances of this par- 
 ticular case, has been sought by the pursuer : Find 
 the present action, as now maintained, incompetent, 
 dismiss the cause, assoilzie the defender from the 
 conclusions of the libel, and decern."
 
 23 
 
 BOOK II. 
 
 TIT. IV. 
 OF FOREIGN AND INTERNATIONAL LAW. 
 
 This general head relates to married persons, or 
 their issue, claiming right in virtue of marriage, 
 regular or irregular, in this or in a foreign country, 
 or entering into marriage contracts within or furth 
 of Scotland, and how far these will affect their legal 
 rights here. 
 
 On this subject Mr. Erskine says, b. i. tit. 1, § 22, 
 " Laws are given as a common rule of life for the 
 whole people of a kingdom or state, and hence they 
 are called communia prcpcepta and coDununes rei 
 puhlicce spon.siones. Nor are they obligatory only 
 upon the natural subjects of the state by birth, but 
 likewise upon those who are merely temporary sub- 
 jects by residence ; for the civil rights, even of fo- 
 reigners, must be determined by tlie laws of that 
 country where they reside for the time." 
 
 Again, treating of civil jurisdiction, b. i. tit. 2, 
 § 16, he says, " Since no judge can pronounce sen- 
 tence on persons or subjects without his territory, 
 civil jurisdiction cannot be founded unless the de-
 
 240 A DIGEST ON THE I,AW OF MAllRIAGE. book ii. 
 
 fender either, l6'^, reside within the judge's terri- 
 tory, or, ^dly, be possessed of some estate or sub- 
 ject within it. In the first case, the judge's juris- 
 diction is said to be founded ratione domicilii. A 
 domicile is the dwelling-place which a man chooses 
 for a fixed abode for himself and his family." — "Where 
 one has resided with his family for forty days im- 
 mediately preceding his citation, is to be deemed to 
 be his domicile as to the question of jurisdiction." 
 
 Again, § 17, '* Civil jurisdiction is founded, 2dly, 
 ratione rei sifce, if the subject claimed by the pur- 
 suer lies within the territory, whether the defender 
 resides within it or not. November 28, 1635, Wil- 
 liamson." Again, ^ 18, " Where the party to be 
 sued resides in another kingdom, and hath an estate 
 in this, the Session is the only competent Court in 
 questions coYicerning such estate, since that Court 
 is the commune Jorum to all who reside abroad," 
 Again, ^ 19, " If the debtor be a native of 
 Scotland, it would seem that he is to be deemed a 
 Scotsman, though he should have gone abroad am- 
 mo remaneudi ; and that, therefore, action may be 
 pursued directly against him ratione originis, even 
 upon moveable subjects, without the aid of a pre- 
 vious arrestment." And, at § 20, he states, " Civil 
 jurisdiction is also founded ratione contractus^ if 
 the defender had his domicile within the judge's 
 territory at the time of entering into the contract 
 sued upon, though, he should not have his domicile 
 there when the action is brought against him. But 
 it is necessary, in order to establish jurisdiction in 
 
 4
 
 TIT. IV. OF FOREIGN AND INTERNATIONAL LAW. 241 
 
 this manner, that the defender be actually within 
 the judge's territory, and be cited by a warrant iS' 
 suing from his court, or, at least, that he have ef- 
 fects lying there, 1. 19, pr. § 1, 2, De judic. ; for ju- 
 risdiction cannot have the least operation when both 
 the person and the estate of the defender are with- 
 drawn from the judge's power. This manner of 
 founding jurisdiction was, however, sustained by 
 our Supreme Court, in an action of declarator of 
 marriage brought by a wife against her husband, a 
 native of England, who, after he had married the 
 pursuer in this country, and had children by her, 
 abandoned his family, and retired into England, 
 though neither his person nor effects were subject 
 to the judge's cognizance. But, in this singular 
 case, the defender, who was called by an edictal 
 citation merely for the sake of form, was not truly 
 considered as a party ; both the pursuer and her 
 child had an obvious interest to get their legal state 
 ascertained in that country, to which they belonged 
 originally, and where they were constantly to re- 
 side ; and though she had known the place of her 
 husband's residence, she could not be compelled to 
 sue him in a kingdom where, perhaps, the so- 
 lemnities essential to marriage differed from those 
 which were received in Scotland. June 11, 1745, 
 Dodds." 
 
 Again, Erskine, b. iii. tit. 7, § 48, where the au- 
 thor treats of the lex loci coniracius^ or the law of 
 the country where the debt is contracted, or the 
 contract entered into, and has reference to prcscri})-
 
 24>2 A DIGEST ON THE LAW OF MARRIAGE, book ii. 
 
 tion of claims due to foreigners and demanded in 
 this country, he observes, " Civilians differ upon 
 this point. Some hold that the law of the country 
 where the ground of debt and of the action compe- 
 tent upon, had its rise, that is, the lea; loci contrac- 
 tus, ought to be regarded ; but others maintain, 
 with greater probability, that the question is to be 
 regulated by the law of the place where the action 
 itself is instituted against the debtor, or, in other 
 words, by the law of the defender's present domi- 
 cile, because debtors can be sued before those Courts 
 only to whose jurisdiction they are subjected, and 
 all courts must judge by their own municipal 
 laws." 
 
 In general it is laid down by our writers, that in 
 questions of status the lex loci of the country must 
 necessarily determine the law of that country. 
 
 Huber says, " Qualitates personales certo loco 
 alicui jure impressas ubique circuinferri et personam 
 comitari cum hoc effectu, ut ubivis locorum eo jure 
 quo tales personae alibi gaudent, vel subject! sunt 
 ponantur et subjiciantur.'* Huberi Prselect. pars 
 2d, Lib. 1st, tit. 3. De Conflictu Legum, § 12. 
 
 Argentaeus lays it down, " Cum enim ab uno 
 certoque loco statum hominis legem accipere neces- 
 se esset, quod absurdum sit, ut in quot loca quis 
 iter faciens aut navigans delatus fuerit, totidem vi- 
 cibus ille statum mutaret aut conditionem, et uno 
 eodemque tempore hie sui juris ille alieni futuris 
 sit." 
 
 Voet. adopts the same principle, R. 1, tit. 4. §
 
 TIT. IV. OF FOREIGN AND INTERNATIONAL LAW. 243 
 
 19. " Sed ut haec quisque potest expressa volun- 
 tate, ita et, quominus a talium statutorum disposi- 
 tione per tacitam praesumtamque voluiitatem rece- 
 dat, nihil vetat. Ciimque quilibet iiovisse praesu- 
 matur, aut saltern scire facile possit, domicilii sui 
 jura, non item leges omnium regionum, per quas 
 forte locupletioris alicujus dispersa inveniuntur im- 
 mobilia, consequens est ut et pra^sumamus, unum- 
 quemque contrahentem circa res suas in dubio vo- 
 luisse id agere, et inducere, ac constituere, quod 
 dictat nota ipsi domicilii lex, eo quod, si aliud volu- 
 isset in contrahendo potuisset aliud nominatim pa- 
 cisci. Unde vulgatum iliud profluxit, quod quisque 
 in dubio conseatur se confirmare voluisse in contra- 
 hendo et adaptasse sui domicilii statutis : quod et 
 nititur juri Romano: quo obtinuit, in dubio videri 
 contractum secundum morem et jus regionis, in qua 
 contractum est, eoque fundamento nititur quod bo- 
 norum communio, quae in loco domicilii contrahen- 
 tium nuptias ex statuto viget, ad omnia bona sese 
 porrigat, etiam in iis sita locis, ubi statutaria bono- 
 rum omnium communio ignota est ; quodque vice 
 versa ea non obtinet, ubi matrimonium ineuntis 
 domicilium fovent in loco, ex cujus statuo sola ac 
 qua^stuum communio recepta est, licet conjuges 
 bona possideant illic sita, ubi universalis communio 
 lege stabilita est, ut latins dicetur, tit. de ritu nup- 
 tiarum." 
 
 The like principle is recognised by the law of 
 Scotland. Mr. Erskine, B. 3. 1. 2. ^ 40, says, 
 " All personal obligations or contracts, entered into
 
 244 A DIGEST ON THE LAW OP MARRIAGE, book n. 
 
 according to the law of the place where they are 
 signed, or as it is expressed in the Roman law. 
 Secundum legem dom'icilu vel loci contractus, are 
 deemed as effectual when they come to receive exe- 
 cution in Scotland as if they had been p-rfected in 
 the Scotch form. Stair, July 5, 1763 ; Master of 
 Salton Die. p. 4431 ; Kames, 23 ; Junguet la pine, 
 Feb. 14, 1721 ; Die. p. 4451. 
 
 Upon these principles and others, it appears that 
 the following decisions have been pronounced. 
 
 1. Forbes v. Countess of Strathmore, 27th Feb. 
 1750. Elchies Proof, No. 9. 
 
 George Forbes, who had been my lady's livery 
 servant, sued a process of adherence against her, 
 and libelled actual marriage, 2d August 1745, liv- 
 ing as man and wife till November 1745 in Scot- 
 land, when, finding herself with child, they took 
 shipping together for Holland, and lived there as 
 man and wife, and she brought forth a daughter 
 who was publicly baptized. Her coming home to 
 sound her friends' inclination, but leaving him, 
 who durst not come home because he had been seen 
 in the late rebellion, but gave him credit for L.IOOO 
 to trade with, and thereafter employing people to 
 treat with him to pass from the marriage for a sum 
 of monev ; but he owned he was doubtful of being 
 able to prove the actual marriage, and either -svould 
 not or could not name the celebrator, who he said 
 was provided by the lady. The Commissaries al- 
 lowed him to prove the actual marriage, and before 
 answer, to prove all facts and circumstances tending
 
 TIT. IV. OF FOREIGN AND INTERNATIONAL LAW. 245 
 
 to make out the cohabitation as husband and wife 
 in Scotland, but superseding the proof of cohabita- 
 tion in Holland till the other proof be concluded. 
 Both parties presented bills of advocation, the lady 
 for allowing him any proof at all, because he was 
 doubtful of bringing a direct proof of the actual ce- 
 lebration ; Forbes, on the other hand, for super- 
 seding the proof of cohabitation in Holland. None 
 of us made any difficulty in refusing my Lady's 
 bill, but we differed as to the other. 
 
 The chief argument for the interlocutor was, that 
 cohabitation in Holland, even as man and wife, 
 does not infer marriage without proclamation of 
 banns, or rather, as the President observed, without 
 appearing before the Burgo Master, and registering 
 their names. On the other hand, the President ob- 
 served two cases in the Court, one of Hamilton of 
 Grange, which had been brought here in several 
 different shapes, first by repeated advocations from 
 the Commissaries, afterwards by suspension, and 
 also by reduction, in which at last he was himself 
 one of the counsel where the question occurred, and 
 was fully argued, and a proof followed of cohabita- 
 tion in England ; and in a late case of Lord bem- 
 ple, the Court refused a })roof of cohabitation at 
 Gibraltar, only because they would not condescend 
 on the witnesses. That though nothing could have 
 the civil effect of marriage in Scotland but celebra- 
 tion, secundum legem loci, yet consensus et copula 
 even in Scotland would make a good marriage in 
 Scotland, and it was not an agreed point whether 
 
 u
 
 246 A DIGEST ON THE EAW OF MARRIAGE, book a. 
 
 cohabitation in Holland would not have the same 
 effect, but that was not here the question, but the 
 proving a marriage entered into in Scotland, when 
 subsequent cohabitation in Holland would have 
 a strong effect, — that it did not signify whether 
 the pursuer knew or did not know who was the ce- 
 lebrator ; yea, though it had been another footman, 
 the consensus de praesenti, and the subsequent co- 
 pula would make a marriage. I was of the same 
 opinion, and observed the danger as well as the ex- 
 pense of dividing the proof without necessity. The 
 inconveniency insisted on of exposing characters did 
 not move me after the process had gone thus far. 
 And as to the last, that as for the most part the ce- 
 lebrator is provided by the husband, the poor wo- 
 man very seldom knows, in clandestine marriages, 
 whether he is a minister or not. The Lords re- 
 mitted, with instructions to the Commissaries to 
 allow the pursuer to prove all facts and circum- 
 stances of the cohabitation in Holland at the same 
 time with the proof already allowed. By the law of 
 Holland, cohabitation as man and wife makes a 
 marriage as effectually as if formally celebrated ; 
 and it is presumed, that upon this principle, and 
 upon this principle alone, that the Court, in this 
 case, allowed a proof of habit and repute in Hol- 
 land ; and there can be no doubt that the same prin- 
 ciple would have been recognised in the case of 
 M'Culloch V. M'CuUoch, if cohabitation as man and 
 wife would have established marriage in the Isle of 
 Man, for there the parties not only cohabited as
 
 TIT. IV. OF FOREIGN AND INTERNATIONAL LAW. 247 
 
 man and wife in that island, but the man acknow- 
 ledged a child of the connexion to be his, and he 
 himself obtained its baptism by the clergyman of 
 the bounds. 
 
 2. M'Culloch V. M*Culloch of Auchenguel, Fac. 
 10th February, 1759. Mor. 4591. 
 
 In this case, it was expressly found in the House 
 of Lords, that cohabitation in a foreign country 
 (Isle of Man) as husband and wife was insufficient 
 to constitute marriage in Scotland. The reason of 
 this is, because by the laws of the Isle of Man ha- 
 bit and repute does not constitute marriage, and 
 that such cohabitation should take place in this 
 country where the law exists. 
 
 In this process of declarator of marriage, the chief 
 ground was habit and repute ; the general import 
 of the evidence was, that the pursuer was a person 
 of good character, and nearly related to the defend- 
 er. That the parties resided in the same house at 
 Lady Ardwall's, the defender's sister, and the pur- 
 suer was known on several occasions in the night- 
 tj.Tie to have gone from her own aj)artment and to 
 to have slept with tlie defender. That on discovery 
 that she was with child, she accompanied the de- 
 fender to the Isle of Man, and was there delivered 
 of a child. That he procured the child to be bap- 
 tised in the Isle of Man by the parish minister, and 
 got its name entered in the parish register as a law- 
 ful child. That he cohabited with her in the Isle 
 of Man, and after their return to Scotland ; but the 
 Commissaries " found the facts, circumstances and
 
 248 A DIGEST ON THE LAW OF MARRIAGE, book ii- 
 
 qualifications not sufficient to infer marriage, and 
 therefore assoilzied the defender." 
 
 In a bill of advocation for the pursuer, it was 
 inter alia contended that the Commissaries' judg- 
 ment proceeded from an opinion, that no cohabita- 
 tion as husband and wife, however strongly sup- 
 ported by the acknowledgment of the parties that 
 they were married, was sufficient to establish a mar- 
 riage by the law of Scotland, if that cohabitation 
 happened in a foreign country, by the laws of which, 
 cohabitation alone was not sufficient to constitute a 
 marriage. That this point in law had been over- 
 ruled in a late noted case, George Forbes against 
 the Countess of Strath more, where the marriage 
 was chiefly supported by a proof of cohabitation 
 and acknowledgment during the residence of the 
 parties in Scotland. 
 
 To this argument it was answered — Cohabitation 
 as man and wife, by the law of Scotland, does esta- 
 blish a marriage, but such cohabitation requires the 
 open and repeated acknowledgment of the parties, 
 and must appear to be the result of deliberate i;<- 
 tention to avow each other as man and wife. The 
 writers on the civil law require that it should sub- 
 sist for ten years ; and Craig and Lord Stair require 
 •that it should subsist for a considerable time^ but 
 none of these requisites occur in the present case. 
 That it appears from Sir George M'Kenzie's obser- 
 vations upon the act 77, Pari. 1073, that the proof 
 arising from cohabitation is capable of being redar- 
 gued by a contrary proof, and here there is not only
 
 TIT. IV. OF FOREIGN AND INTERNATIONAL LAW. ^49 
 
 110 proof of an actual marriage, but the strongest 
 presumptions to the contrary. The civil law requires 
 that cohabitation should be open, 1. 9, et 22, Cod. 
 de nuptiis, but here it was clandestine and conceal- 
 ed in the Isle of Man, and the legal import and ef- 
 fect of a man's actions must be judged of according 
 to the law of the country where he is residing at 
 the time. 
 
 The Lords remitted the cause to the Commissa- 
 ries, with instructions to find the marriage proven. 
 But on an appeal, the House of Lords reversed 
 the judgment, and returned to that of the Commis- 
 saries before quoted, finding facts, circumstances, 
 and qualifications not relevant to infer marriage, 
 and therefore assoilzied the defender. 
 
 3. William Sheddon v. Patrick, Fac. 1st July 
 1803. App, 1 Foreign, No. 6. 
 
 In this case the Court found, " that one whose 
 parents were afterwards married in a country where 
 legitimation per subsequens matrlmonium is not re- 
 cognised, does not succeed to a landed estate in this 
 country ab intestato as a lawful child. 
 
 William Sheddon, of the city of York in Ameri- 
 ca, entered into a regular marriage, (7th Novem. 
 1798,) according to the law of America, with a wo- 
 man who had privately born to him two children, 
 William and Jean. He died a few days afterwards, 
 having executed a settlement of his American pro- 
 perty in favour of his children, without taking any 
 notice of his estate of Rigwood in Argyleshire, to 
 which, some time before, he had succeeded his fa-
 
 250 A DIGEST ON THE LAW OF MARRIAGE, book ii. 
 
 ther. His nephew. Dr. Robert Patrick, served 
 heir in special to his uncle in the lands of Rigwood, 
 upon the footing, that by the laws of America, the 
 marriage had not the effect of legitimising children 
 antecedently born. A reduction of the service was 
 brought by a factor loco tutoris, appointed by Wil- 
 liam Sheddon, who, in support of his legal right as 
 legitimate son. 
 
 Pleaded, that marriage, when celebrated accord- 
 ing to the law of the country where it is contracted, 
 is valid and effectual all the world over. Ersk. 
 b. iii. tit. 2, § 40. Kinloch v. Fullarton and Co. 
 10th July 1739, Clerk, Home, Wood, v. Grainger, 
 24th June 1749. That by the law of Scotland, 
 when a man marries the mother of a child born 
 before marriage, this legitimates the child, and 
 confers upon him all the rights and privileges 
 which he would have inherited if his father had 
 been privately married. This rule existed in the 
 civil law, and prevailed in every country where 
 that law was received. Voet. lib. xxv. tit. 7, § 6. 
 
 It was answered, that the status, or legitimacy 
 of the child, must be decided by the law of Ameri- 
 ca, where the parents were domiciled, where he 
 was born, and where the marriage was entered in- 
 to. By that law marriage has not the effect of le- 
 gitimating children antecedently born. And the 
 preceding case of M'CuUoch v. M'Culloch was re- 
 ferred to. 
 
 The question was reported to the Court by the
 
 TIT. IV. OF FOREIGN AND INTERNATIONAL LAW. 251 
 
 Lord Ordinary, upon informations, upon advising 
 of which, and after a hearing in presence. 
 
 The Court repelled the reasons of reduction, 
 with one dissentient voice, by which the pursuer 
 lost his status and plea. 
 
 4. Rebecca Hogg v. Thomas Hogg, Fac. l6th 
 June, 1795. Mor. p. 4628. 
 
 It was here found that the executors of a wife 
 have no legal claim to the moveable effects of the 
 husband, when otherwise provided by contract of 
 marriage entered into in England. 
 
 This action was raised at the instance of Rebecca 
 Hogg, one of the daughters of her late father, Roger 
 Hogg of Newliston in Scotland, against Thomas 
 Hogg, his general disponee, in which, inter alia, she, 
 as one of the executors of her mother, claimed a 
 share of the goods falling under the jus 7'elicta at 
 the dissolution of the marriage. 
 
 The following interlocutor of the Lord Dreghorn 
 Ordinary, and the opinion of the majority of the 
 Court at advising, appear to be sufficiently illustra- 
 tive of the case. 
 
 The Lord Ordinary having considered the con- 
 tract of marriage by which Mrs. Hog was " pro- 
 vided only to an annuity out of tenements to be 
 purchased with a part of her own fortune, but had 
 no provision made to her out of her husband's 
 estate, found, that the claim of Mrs. Hogg's repre- 
 sentatives is not excluded by her contract of mar- 
 riage with her husband, &c. ; but found, that when 
 parties marry in one country, and afterwards re-
 
 252 A DIGEST ON THE LAW OF MARRIAGE, bookii. 
 
 move to another, in which the legal rights of mar- 
 ried persons are different, the change of domicile 
 ought not to operate any change on any of the 
 rights pre-established in them in the country in 
 which they were married, and that all those rights 
 ought to be preserved and enforced by the law of 
 the country to which they have removed, unless 
 they be incompatible with the religion and mo- 
 rality of that country, and therefore repelled the 
 claim." 
 
 Both parties reclaimed, and a hearing was order- 
 ed ; when the cause was advised a diversity of opi- 
 nion took place, but a majority of the Court thought 
 that there was no occasion to determine what might 
 be the effect of a change of domicile where there 
 Avas no contract of jnarriage. The question here 
 is, (it was observed,) what was the understanding 
 of parties in framing the marriage articles ? Both 
 were domiciled in England, where the rights of 
 husband and wife are accurately defined ; the mar- 
 riage articles were meant to fix the amount of the 
 wife's claim on the personal estate of her husband, 
 and there could be no view to other claims, which 
 were not there provided for, and which probably 
 were unknown to the parties and their men of busi- 
 ness. The marriage articles, indeed, contain what, 
 in the circumstances of the parties at the time, was 
 a very rational provision for Mrs. Hogg. The 
 Lords repelled the claim. A reclaiming petition 
 was (7th July) refused, without answers. 
 
 1'he question was appealed, and the following
 
 TIT. IV. OF FOREIGN AND INTERNATIONAL LAW. 253 
 
 judgment given. Find, 1*^, that Mrs. Lashley*s 
 claim for the share of her father's moveable pro- 
 perty at the time of her mother's death, which is 
 known in the law of Scotland by the name of jus 
 relictce^ is not done away, either by her father's 
 contract of marriage, or by the circumstance of the 
 marriage being consummated in England, her fa- 
 ther havinsc been domiciled in Scotland at the time 
 of her mother's death. 2<^/, That the share of the 
 Bank of Scothmd stock transferred by Roger the 
 father to his son Thomas, for the purpose of pur- 
 chasing lands and such other shares by the divi- 
 dends, of which Roger continued to profit to the 
 time of his death, are subject to the appellant's 
 claim of legitim, to ascertain the extent of which, a 
 remit is made to the Court of Session. And, 3fl^, 
 the cross appeal, which was not presented in due 
 time, is dismissed. In every other respect the va- 
 rious judgments of the Court of Session are affirm- 
 ed. 
 
 5. Lady Findlater v. Findlater and Curator, 
 Fac. 8th Feb. 1814. 
 
 Here it was found, that provisions in a contract 
 of marriage in a foreign country bar a widow from 
 claiming legal provisions in Scotland. 
 
 It appears, that, in an ante-nuptial contract of 
 marriage in a foreign country, Lady Findlater hav- 
 ing accepted of a certain provision in lieu of her legal 
 provisions under the marriage, is barred by that 
 contract, though drawn in a foreign form, from
 
 254 A DIGEST ON THE LAW OP" MARRIAGE, book n. 
 
 claiming a locality, terce, or aliment out of her hus- 
 band's estate situated in Scotland. 
 
 The Earl of Findlater was married at Brussels, 
 in the year 1776, to Christiana Teressa Josepha, the 
 daughter of Count Murray, where, by contract of 
 marriage, she was provided with 700 louis-d'ors per 
 annum, in case of her being left a widow ; and her 
 ladyship renounced every right which she might 
 have had over the funds of her husband. 
 
 In 1781, they separated ; and, by contract of se- 
 paration, the Earl became bound to giv^e her L.800 
 per annum. 
 
 Lady Findlater, not satisfied with the provision 
 settled on her by her contract of marriage, raised 
 an action against the heir and his curator-at-law, in 
 which she claimed, 1st, a jointure, by way of locality, 
 out of the entailed lands, to the extent authorized 
 by the entail ; 2d, the terce of the unentailed lands ; 
 and, 3dly, a supplementary provision, by way of 
 aliment. 
 
 The defence set up in substance was, that, by 
 contract of marriage, the right of Lady Findlater 
 over the estate of the Earl, her husband, was ex- 
 pressly limited to 700 louis-d'ors per annum, and 
 all other claims on her part were removed ; conse- 
 quently she was neither entitled to locality, terce, 
 nor any other provisions beyond that claim. 
 
 The Lord Ordinary first ordered memorials, and, 
 on advising with their Lordships, ordained the case 
 to be stated in informations to the whole Court.
 
 TIT. IV. OF FOREIGN AND INTERNATIONAL LAW. 255 
 
 As the arguments on both sides are tedious, and 
 as the grounds of the decision will be discovered 
 when the judgment of the Court was pronounced, 
 we shall confine ourselves to it. 
 
 With the exception of one Judge, the Court 
 thought that the contract was sufficiently explicit, 
 so as to exclude the terce and legal provisions, and 
 it mattered not that that contract was drawn in a 
 foreign country. It was drawn according to the 
 lex loci. There was no case on record v/here ali- 
 ment had been given " by the Court where there 
 was an ante-nuptial contract ; such a deed settled 
 universally the rights of parties, and it was danger- 
 ous for the Court to go against it." 
 
 On these grounds, the Lords assoilzied the de- 
 fenders from the claim of locality, terce, and ali- 
 ment. 
 
 Although the following case was tried at York 
 on 4th April 1825, yet, as it countenances the inter- 
 national law, the status, and lex loci, we deem it 
 necessary to give it a place here : 
 
 6. Doe, dem. Birtwhistle, v. Vardill. 
 
 This cause, which involves property to the amount 
 of L.1200 or L.1400 a year, was tried before a spe- 
 cial jury. 
 
 Mr. Kaye opened the pleadings, and stated that 
 this was an action of ejectment, brought by John 
 Birtwhistle, on the demise of Alexander Birtwhistle, 
 «?. Agnes Vardill. 
 
 Mr. Williams stated the plaintift^'s case. This 
 was a cause, he said, of great importance to the par-
 
 256 A DIGEST ON THE LAW OF MARRIAGE, book ii. 
 
 ties, from the amount of property involved, and also 
 a nice question of the international law between 
 England and Scotland. If, however, his view of 
 the case was correct, the second question would not 
 come under the consideration of the jury. The 
 plaintiff, who was probably known to some of the 
 jurors, was John Birtwhistle, Esq., a young gen- 
 tleman residing at Skepton, and the defendant was 
 Mrs. Vardill, his aunt. The grandfather of the 
 plaintiff had three sons, William, and Robert, who 
 died without issue, and Alexander, the plaintifi's 
 father, and one daughter, the present defendant. 
 Mr. Alexander Birtwhistle, when at the age of 
 twenty-two, quitted this country, and became do- 
 miciled in Scotland, where he carried on business 
 extensively, held several estates, and lived till 1810, 
 when he died, and was brought for burial to Skep- 
 ton. Mary Purdie, the mother of the plaintiff, was 
 the daughter of an Irish gentleman, who, becoming- 
 involved in his circumstances, took his family to 
 Scotland, where his son entered into the service of 
 Mr. Alexander Birtwhistle, and became his over- 
 looker. This gentleman, seeing his overlooker's 
 sister, who was a young lady of great beauty, be- 
 came enamoured of her ; and, as she steadily resist- 
 ed his advances on any dishonourable terms, whilst 
 he did not dare to marry her publicly, owing to the 
 objections of his sister-in-law, Mrs. Thomas Birt- 
 whistle, who kept his house, and intended to leave 
 him her property, he married Miss Purdie private- 
 ly. This marriage took place in the presence of his
 
 TIT. IV. OF FOREIGN AND INTERNATIONAL J. AW. 257 
 
 chief clerk, Denison, and a friend named Thomson, 
 on the 12th November 1795. These witnesses were 
 dead ; but Mrs. Birtwhistle would be called, and 
 would state to them the facts. Mrs. Thomas Birt- 
 whistle died in 1803 or 1804; and, in 1805, Mr. 
 Alexander Birtwhistle publicly married Mary Purdie; 
 and in the deed of marriage it was distinctly asserted, 
 that the parties had been " privately and irregular- 
 ly married on the 12th November 1795." Mrs. 
 Birtwhistle lived at a separate establishment kept 
 by Mr. Birtwhistle, and as the mistress of the house. 
 She afterwards lived at Balmay, in a style of splen> 
 dour wholly inconsistent with the idea of her being 
 a mere mistress. It would be shown, that Mr. 
 Alexander Birtwhistle had stated his marriage to 
 many different persons. Now, if they should even 
 fail in this proof, it was the fact, that a subsequent 
 marriage in Scotland, according to the Scotch law, 
 legitimized children born previous to the marriage ; 
 and, if this was the law of Scotland, a child thus 
 legitimized there would be held legitimate all over 
 the world. He quoted Iluber, who lays down the 
 principle, that the rights and qualities of persons 
 are held the same in all countries as they are legal- 
 ly recognised in their own country. He then, after 
 stating his confidence in the strength of his cause, 
 sat down. 
 
 Alexander Craig, Esq. examined by Mr. Tiudall. 
 — Is a justice of the peace, near Gatehouse, in Scot- 
 land. Became acquainted with Mr. Alexander Birt- 
 whistle in 1795, and intimate with him in 1801.
 
 S58 A DIGEST ON THE LAW OF MARRIAGE, book ii. 
 
 Remembered the public marriage in May 1805. His 
 wife had resided in his house before. Heard him 
 say, the day after the marriage, and many other 
 times, that he had been privately married some time 
 before. He had an establishment at Balmay. 
 
 Cross-examined by Mr. Scarlett. — Mr. Alexander 
 Birtwhistle resided at Gatehouse, and went over 
 occasionally to Balmay. Mrs. Thomas Eirtwhistle 
 died in the spring 1803. Never saw Mrs. Alexan- 
 der Birtwhistle till she came to Gatehouse, nine 
 months after the death of Mrs. Thomas ; before that 
 he understood she was his mistress. Mr. Alexander 
 Birtwhistle treated her before the public marriage 
 with the same respect and consideration as if she 
 had been his wife ; and witness therefore did so too, 
 but never heard him call her so before the public 
 marriage. Mr. Alexander Birtwhistle told witness 
 he had been privately married before 1800. 
 
 Mr. Blackie, examined by Mr. Kaye. — Is a writer 
 to the signet in Scotland. He produced a copy of 
 the deed of marriage between Mr. and Mrs. Birt- 
 whistle, from the Register-office in Edinburgh. A 
 copy of any deed from the Register-office is always 
 considered as legal evidence in Scotland ; the deed 
 itself is never sent from the Register-office ; he had 
 applied to the Court of Session in Scotland for leave 
 to obtain the original deed. 
 
 Cross-examined by Mr. Scarlett. — That deed was 
 registered in 1823. 
 
 Mr. Scarlett objected to the reception of this do-
 
 TIT. IV. OF FOREIGN AND INTERNATIONAL LAW. 259 
 
 curnent, on the ground that the original deed was 
 not produced. 
 
 Mr. Brougham supported the objection, and 
 urged, that, if a copy was sufficient for legal evi- 
 dence, any person might make a forged deed, get it 
 registered for Is., and bring a copy from the Regis- 
 ter-office, to support any purpose he might have in 
 view. 
 
 The Judge decided that the copy could not be ad- 
 duced as evidence, seeing that they ought to have 
 had the subscribing witness to the deed brought to 
 a test that he had signed it, had since seen it in the 
 Register-office, and saw that the document now pro- 
 duced was a true copy. 
 
 Mrs. Mary Birtwhistle, examined by Mr. Wil- 
 liams. — Is forty-five years old. Went from Ireland 
 to Scotland before she could recollect. Her father 
 was a farmer, reduced in his circumstances. They 
 went to Port- Patrick, when one of lier brothers went 
 into the service of Mr. Alexander Birtwhistle of 
 Gatehouse, at sixteen years of age. She went over 
 to Gatehouse, having hitherto been employed in 
 needlework. Her father went to live there, and his 
 house was exactly opposite Mr. Alexander Birt- 
 whistle's, who became enamoured of her, and made 
 her proposals of a private marriage, through Mr. 
 Denison and Mr. 71iompson the magistrate, ex- 
 plaining that he was j)revented from marrying 
 her publicly by the opposition of his sister-in-law, 
 whose property was to be his as a bachelor. She 
 reluctantly consented; and on the 12th November
 
 260 A DIGEST ON THE LAW OF MAlllllAGE. book ii. 
 
 1795, ill the presence of those two gentlemen, he 
 took her by the hand, and said, " Gentlemen, this 
 is my wife henceforward ;" and she said, " I ac- 
 knowledge Alexander Birtwhistle as ray husband 
 from this time." For two years after this period 
 she lived in her father's house, where Mr. Birt- 
 whistle visited her ; and during that time she had 
 a daughter. After this, she went to live at a house 
 of his at Netherlaw, where she was the mistress of 
 the establishment, and where her son, the plaintiff, 
 was born, on the 15th of May 1799- Two or three 
 years after, went to Mr. Birtwhistle's house at Bal- 
 may ; he frequently visited her, and always treated 
 her with the same attention and respect as he did 
 afterwards when she was publicly married to him. 
 The public marriage took place at Gateside in 1805. 
 Mr. Birtwhistle always treated the children as his 
 lawful children ; he called them Eliza and John. 
 
 Cross-examined by Mr. Scarlett. — Her father was 
 a mason, her mother spun, and she herself took in 
 needlework. Her father had not an entire house, 
 but only a room and a closet ; it was in that closet 
 she saw Mr. Birtwhistle. She knew a woman called 
 Catharine Magieock, who had a room with a bed 
 in it. Has frequently met Mr. Birtwhistle in that 
 room, but always in Mrs. Magieock's presence : this 
 was not, to her knowledge, a house of bad fame. 
 She continued to take in needlework, and Mr. Birt- 
 whistle made her a small allowance. Her daughter 
 was born at Gatehouse. When she was pregnant 
 
 with the boy, she removed to Netherlaw, where the 
 
 5
 
 TIT. IV. OF FOIlEiaN AND INTEHNATIONAL LAW. 231 
 
 house was in proper repair to receive her ; and she 
 had a feather-bed, not a chaff- bed. She never did 
 the work of a servant there, nor mowed ; nor did 
 she ever ask Mr. Birtwhistle to give her a few lines 
 of marriage, or tell any person that she was in an 
 extremely dependent situation. The marriage was 
 consummated in a room of Mr. Denison's, in the 
 factory, not a bed-room, in the afternoon. Never 
 received a man of the name of Ruston, a butcher, at 
 Netherlaw, and represent him as a relation from 
 Ireland. Had no reason to believe that Mr. Alex- 
 ander Birtwhistle lived with Mrs. Thomas Birt- 
 whistle in illicit union, and never said so. Mr. Birt- 
 whistle generally called witness, Mary, or Mary 
 Purdie, before the public marriage. Mrs. Thomas 
 Birtwhistle died in the early part of 180.^. Never 
 said that she was married by Mr. Stewart, a magis- 
 trate. Mr. Birtwhistle sio-ned the document on their 
 public marriage; she signed it also, but, as she could 
 not then write, Mr. Birtwhistle held her hand ; she 
 can now write so far as to sign her name, but ob- 
 jects to do so on the present occasion. Only one of 
 the four witnesses of the public marriage is living, 
 Mr. Nevin, Knows a person named Cairns, but 
 never told him that Mr. liirtwhistle objected to 
 marry her on account of his sister-in-law, and said 
 he thouiiht the former marriaije of no ininortance. 
 Has now come from Gatehouse. 
 
 Agnes Shearer, cousin to Mr. Alexander Birt- 
 whistle, said, that, in May 1805, Mr. Alexander 
 Birtwhistle, in the presence of several other persons, 
 
 X
 
 262 A DIGEST ON THE LAW OF MARllIAGE. book ii. 
 
 said to witness, " This is your cousin; wonders will 
 never cease." At dinner, Mrs. Birtwliistle sat at the 
 head of the table, being handed to that place by Mr. 
 Birtwhistle, who said she had been his wife for nine 
 years. 
 
 John Brown, Esq., examined by Mr. Kaye. — 
 Went to live at Gatehouse in 1802, where he knew 
 Mr. Alexander Birtwhistle. In 1809, met Mr. and 
 Mrs. Birtwhistle at Castle Douglas, when Mr. Birt- 
 whistle told witness he had been privately married 
 some time before his public marriage. Had heard 
 him say, in 1807, that he had gained many thousand 
 pounds by concealing his marriage. 
 
 John Brown of Melton, Samuel Carson, Robert 
 Garrway, William M'Cartney, and Mrs. M'Bride 
 gave evidence to the same effect. 
 
 J. A. Murray, examined by Mr. Williams, has 
 been an advocate at the Scotch bar since 1800. " If 
 a marriage takes place in Scotland after children 
 are born, I understand children born before that 
 marriage to be equally legitimate by the law of 
 Scotland with children born after it." " I under- 
 stand admissions of marriage are frequently admit- 
 ted in our Courts as evidence that a marriage has 
 taken place, as some proof." Witness, on his cross- 
 examination said, that to prove a marriage in Scot- 
 land required two witnesses, or one witness sup- 
 ported by circumstances. In answer to a question 
 from the judge, he said the testimony of the wo- 
 man, confirmed by an acknowledgment of the hus- 
 band, would be sufficient proof, in some cases the
 
 Tit. IV. OF FOREIGN AND INTERNATIONAL LAW. 263 
 
 acknowledg-ment of the husband alone was suffi- 
 cient. 
 
 The will of Alexander Birtwhistle was read, in 
 which he gives to his son John all his lands in 
 Scotland ; he calls his wife Mrs. Mary Purdie, 
 otherwise Birtwhistle, and leaves her L.200 a-year. 
 
 It was admitted that the plaintiff was heir-at-law 
 in possession of the Scots estates. 
 
 Mr. Williams, that is my case. 
 
 Mr. Scarlett believed the c|iiestion of law in this 
 case to be, whether a man who is the lawful heir 
 to an estate in another country will be heir to es- 
 tates in England, if he should have been born un- 
 der circumstances that would render him a bastard 
 according to the English law. But the question of 
 fact, with which alone the Jury had to do was, whe- 
 ther a marriage had taken place prior to 180.5; he 
 then commented on the evidence at considerable 
 length, and contended that the evidence of the pre- 
 vious marriage was unsupported by any credible 
 testimony. The circumstances they were called 
 upon to believe were, that the daughter of an Irish 
 labourer, who could not either read or write, all the 
 members of whose family worked for their subsist- 
 ence, and who lived in a kitchen with a single closet, 
 resisted even the honourable advances of a young 
 man of the most handsome fortune, and needed to 
 be pressed to it by a respectable magistrate ; yet, 
 when once the marriage had taken place, it was 
 consummated after dinner in a room in the factory 
 where there was no bed, and the intercourse car-
 
 264) A DIGEST ON THE LAW OF MARRIAGE, book n 
 
 ried on in a convenient room of Catharine Magi- 
 cock's dram-shop, unless there were some green 
 fields around Gatehouse which served for the scene 
 for their nuptial rights ! Such a story was surely 
 contemptible and ridiculous. He declared that the 
 case made out was so miserably weak, that he wish- 
 ed the jury, on looking at it would stop him, and 
 say it was unnecessary for him to enter into the 
 body of evidence he had to destroy. 
 
 Judge Bayley said, he certainly had a strong im- 
 pression on the subject, but Mr. Scarlett must not, 
 on that account, refrain from going on with his 
 proofs. 
 
 Mr. Scarlett repeated his earnest wish for the 
 sake of the public, that he may be spared the pro- 
 duction of his witnesses, and concluded, after seve- 
 ral pauses, by saying, that he would take it upon 
 himself to rest the defender's cause upon the plain- 
 tiff's own evidence. 
 
 Mr. Justice Bayley shortly charged the Jury, 
 who, after deliberating for about two minutes, 
 found a verdict for the defendant. 
 
 It was stated by his Lordship, that this was to 
 be considered subject to a verdict for the plaintiff, if 
 the Judges decided in his favour on the question of 
 law, relative to the effect of the public marriage in 
 legitimizing the children born before marriage. A 
 special verdict was entered into accordingly. 
 
 7. Madame Sassen v. Sir James Campbell of 
 Arkinglass, 9th July 1823, 20th Nov. 1829. Fac. 
 
 The defender is a native of Scotland, but for
 
 TIT, 
 
 IV. OF FOREIGN AND INTERNATIONAL LAW. 265 
 
 thirty years had constantly resided abroad ; is now 
 past eighty years of age. 
 
 In 1804 he became acquainted with the pursuer 
 in Paris, and from that period the pursuer cohabit- 
 ed with the defender in France and other parts of 
 the continent, down to the year 1815, though later- 
 terly not without some occasional separations. 
 
 In France and some other parts of the continent, 
 it is very common for a man's mistress to assume 
 his own name as his wife, and this was done in the 
 present instance. 
 
 It turned out that this woman, the pursuer, had 
 from her earliest years lived in a state of prostitu- 
 tion. She was brought to England by a merchant, 
 with whom she lived as his mistress, and after va- 
 rious connexions of the same kind, she returned with 
 a family to the continent as a servant, who lived at 
 the Hotel de prine a Gallis. It has even been al- 
 lesred that she lived in a common brothel in Rue 
 inont Blanc, kept by a woman named Ossel, and 
 was registered in the books of police, as is the cus- 
 tom on the continent. She was taken into the de- 
 fender's house in the character of a servant, and af- 
 terwards lived with him as his mistress, but no 
 marriage ceremony between them was ever contem- 
 plated or performed. 
 
 As this lady had improperly assumed the charac- 
 ter of the wife of the defender, she was called upon 
 in December 18 J 5 to show evidence that she was 
 his wife, or to put an end to her false reports as 
 such. She even pretended that she was married to
 
 266 A DIGEST ON THE LAW OF MARRIAGE, book ii*. . 
 
 the defender by a protestant minister at St. Ger- 
 mains an laye, and in evidence of which she pro- 
 duced a little square piece of ragged paper, bearing 
 to be signed by the clergyman and two witnesses ; 
 but on investigation, it turned out that all was a 
 falsehood, and that no such clergyman could be dis- 
 covered — the result was, that she was ordered to 
 cease assuming in future the name and title of 
 spouse of Sir James Callander Campbell, &c. 
 
 It does ajjpear that the defender, notwithstand- 
 ing, had wrote letters to her, and granted a power 
 of attorney to her to draw his rents in Scotland, in 
 which he called her his beloved wife, and such 
 other terms were employed to lead a stranger to 
 suppose that she was the wife of the defender ; and 
 accordingly, when she came to Scotland with the 
 power of attorney in her pocket, she was treated by 
 the defender's friends as his wife. But upon dis- 
 covering the history of the pursuer, and that in 
 truth she never was married to the defender, her 
 relations withdrew their countenance from her. 
 She however assumed a strong position, nothing 
 short of raising a process in the Commissary Court 
 against the defender, for adherence and aliment. 
 The summons states, " That in the month of May 
 1804, the pursuer was married to the said Sir 
 James Callander, otherwise Campbell, and now de- 
 signing himself Sir James Campbell of Arking- 
 glass at St. Germain an laye, near Paris ; and 
 thereafter they lived and cohabited together as 
 husband and wife, and there were several children
 
 •fiT.iv, OF FOREIGN AND INTERNATIONAL LAW. 267 
 
 born of their marriage, one of whom is still in 
 life.'* The pursuer then proceeds to state, "that 
 the defender had deserted the pursuer," and it con- 
 cludes, " Therefore, the pursuer, Madame Lina 
 Talline Sassen, otherwise Callander or Campbell, 
 ought to have our sentence and decreet, decerning 
 and ordaining the said James Callander, otherwise 
 James Campbell, now designing himself Sir James 
 Campbell of Arkinglass, defender, to adhere to, and 
 cohabit with, treat, and entertain the pursuer in all 
 respects as his wife, and to discharge all the duties 
 incumbent on him as her husband ; and in case of 
 his non-adherence, decerning and ordaining him to 
 pay to the pursuer the sum of L.300 sterling yearly 
 of aliment, and that in advance, at two terms in 
 the year, Whitsunday and Martinmas, beginning 
 the first term's payment as at Whitsunday I8I6, 
 and the next terms payment at Martinmas last." 
 
 In the defences given in. Sir James denied the 
 whole assertions of the pursuer. 
 
 Not being satisfied with her summons, she amend- 
 ed the libel, 1*^, in the following addition to the 
 narrative, "owned and acknowledged themselves, 
 both verbally and in writing, to be such, and were 
 habit and repute married persons, husband and 
 wife of each other, by their friends, neighbours, and 
 acquaintances ;" and the new conclusion of the libel 
 is as follows, " Finding and declaring that she and 
 the said James Callander, otherwise James Camp- 
 bell, now designing himself Sir James Campbell of 
 Arkinglass, are lawful married persons, husband
 
 268 A DIGEST ON THE LAW OF MAKIUAGE. book n. 
 
 and wife of each other, and that the child procreat- 
 ed of the marriage is a lawful child." 
 
 The Commissaries, on the 9th March 1821, by a 
 long interlocutor, found that there was here no 
 marriage, but found her entitled to L.300 of an- 
 nuity per annum, with expenses of process. 
 
 The defender complained of this judgment, chief- 
 ly upon the ground, that there was not even prima 
 J'acice evidence of marriage, but the contrary. The 
 Court of Session, notwithstanding, by their interlo- 
 cutors of 11th Dec. 1818, 18th Dec. same year, 
 and 20th January 1819, adhered to the Commissa- 
 ries' judgment, and found the defender liable in 
 additional expenses. 
 
 And the Lords, after very full pleadings and 
 writings hinc inde seriatim^ and in substance found, 
 there was here no marriage, but in the mean time 
 pronounced the following interlocutor : 9th July 
 1823, " The Lord Ordinary having again consi- 
 dered this bill, with answers and memorials, and 
 advised with the Lords of the First Division, be- 
 fore whom counsel were fully heard for both par- 
 ties, sists procedure until a supplementary action, 
 relative to the claim of damages or aliment, shall be 
 raised by the pursuer before the Commissaries, to 
 be brought oh contingentiam into this court." And, 
 accordingly, she brought a supplementary summons, 
 in which she stated, that although she should fail 
 in establishing a marriage, or that she had been 
 fraudulently induced to believe that she was mar- 
 ried at the commencement of their connexion, yet.
 
 TIT. IV. OF FOREIGN AND INTERNATIONAL LAW. 269 
 
 that the defender, by his subsequent conduct, had 
 led her to believe that she was lawfully married ac- 
 cording to the law of Scotland, and concluded for 
 damages or aliment on that ground. The Court, 
 on the 22d June 1824, after a hearing in presence, 
 remitted to the Commissaries, with instructions to 
 adhere to their interlocutor in so far as it had 
 found " that the evidence adduced in behalf of the 
 pursuer is not relevant to infer marriage betwixt 
 the parties, and also in so far as it finds the de- 
 fender liable in aliment to the pursuer, but to alter 
 the same in so far as to find the pursuer entitled to 
 an aliment of L.200 per annum only, payable to 
 her quarterly, during all the days of her life." 
 
 The judges were unanimovisly of opinion that it 
 was impossible to constitute a marriage under the 
 circumstances of this case ; but they considered the 
 documentary evidence to be sufficient to entitle the 
 pursuer to an aliment on the ground stated in her 
 supplementary summons ; and they disregarded aa 
 offer of proof that she had been a prostitute when 
 the defender began to associate with her. 
 
 The pursuer's authorities, (1.) Dairy m pie's case 
 19, 57; Swineburne, 162, 5; Voet. 1, 73; (2.) 1 
 Bank. 5, 51 ; Campbell, July 28th, 1747, (10,456.) 
 
 Defender's authorities, (1.) M'Innes, Dec. 20th, 
 1781, (12683,) Taylor, Feb. I6tli, 1786, (12,687,) 
 Maclauchlan, Dec. 6tli, 1796, (12,693.) 
 
 The defender api)ealed the judgment of the 
 Commissaries and of the Court to the House of 
 Peers, upon the following among other grounds.
 
 270 A DIGEST ON THE LAAV OF MAIIUIAGE. book ii.. 
 
 Firsts Because the chief documents founded on by 
 the pursuer are forged. '2.(1, Because she has not 
 established any marriage, either by a clergyman or 
 by habit and repute. 3f//y, Because she was a 
 woman of bad fame, and she imposed upon the de- 
 fender by assuming his name without any legiti- 
 mate right or title. And lastJij, because- she has 
 not averred any relevant ground of action, to en- 
 title her to marriage, far less to aliment. 
 
 On the reversal, by the House of Lords, of the 
 judgment of the First Division of the Court, Sir 
 James raised an action against Madame Sassen for 
 repetition of the sums of aliment awarded, and for 
 which execution pending appeal had been granted 
 by the Court without caution. This action having 
 come before Lord Mackenzie, his Lordship decerned 
 asrainst Madame Sassen. She was advised to re- 
 claim, on the ground that the House of Lords not 
 having ordered repetition, it was incompetent to 
 decern for it in a separate action. In consequence 
 of her poverty, however, she was unable to have 
 the record printed in sufficient time to present a 
 perfect note within the reclaiming days, and the in- 
 terlocutor, in consequence, became final. Sir James 
 extracted the decree, and charged Madame Sassen ; 
 but he stated that his only object was to defend 
 himself against diligence raised by her on a verdict 
 in the Jury Court, for damages to a much smaller 
 amount than the sum contained in his decree. 
 Madame Sassen having presented a bill of suspen- 
 sion, on the ground of the alleged incompetency of
 
 TIT. IV. OF FOREIGN AND INTERNATIONAL LAW. 271 
 
 the decree, and that she shortly expected a verdict 
 in another action depending in the Jury Court, 
 Lord Moncrieff refused the bill in respect of no re- 
 duction of the decree raised, and no verdict in the 
 counter action as yet obtained. A second bill hav- 
 ving been refused by Lord Cringletie, Madame 
 Sassen reclaimed, but the Court adhered. 
 
 8. Munro or Rose v. George Ross, Fac. May loth, 
 
 1827. 
 
 A native of Scotland having a landed estate there, 
 but principally residing in England, contracting a 
 marriage in Scotland with a woman who had pre- 
 viously born a child to him in England, legitimation 
 pe?' subsequens matr'imonium takes place, to the ef- 
 fect of enabling such child to succeed as heir to 
 his father in a landed estate in Scotland, but the 
 judgment was reversed in the House of Peers. 
 
 The question was brought into the Court of Ses- 
 sion by a bill of advocation, presented by Mrs. 
 Catharine Monro or Rose, a substitute heir of en- 
 tail of the estate of Cromarty, against an interlocu- 
 tor of the Commissaries, whereby they had assoil- 
 zied the defender in an action of declarator of bas- 
 tardy at her instance against George Ross, claim- 
 ing to be the lawful son of the deceased Alexander 
 Ross of Cromarty, and as such lieir to that estate, 
 Tlie facts out of which the question arose stand as 
 follows. 
 
 Alexander Gray, afterwards Ross, father of tlie 
 defender, was born and educated in Scotland. lie 
 was subsequently invited to London, by George
 
 272 A DIGEST ON THE LAW OF MARRIAGE, book ii. 
 
 Ross of Cromarty, his half uncle, an eminent army 
 agent, whom he succeeded in business in the year 
 1780. Upon George Ross's death in 1786, a deed 
 of entail was found, under which the defender's fa- 
 ther, Alexander Gray was called to the succession 
 of the estate of Cromarty, in consequence of which 
 he assumed the name of Ross. He also succeeded 
 to a paternal estate called Overskiho. He was en- 
 rolled as a freeholder in two Scottish counties ; and 
 he was in the custom, during his life, of making oc- 
 casional visits in Scotland, with a view both to 
 pleasure and the business of his estate, and he occa- 
 sionally voted as a freeholder at Scotch elections. 
 After the death of his first wife, Mr. Ross cohabit- 
 ed in London with Elizabeth Woodman, an un- 
 married Englishwoman ; and of that connexion 
 the defender was born, in 1811. 
 
 Having resolved to enter into marriage with Miss 
 Woodman, with the view of legitimating the de- 
 fender, Mr. Ross proceeded with her and the de- 
 fender, to Scotland. They arrived at Newhaven 
 on the 25th of May 1815, and were regularly mar- 
 ried by the Rev. Dr. Ireland, upon the 10th of June 
 thereafter. AH three remained in Scotland until 
 about the 28th of August following, having spent 
 a considerable part of the time at the estate of Cro- 
 marty, where Mr. Ross presented the defender to 
 his friends as his lawful son. From the date of 
 this marriaare till the death of Mr. Ross, in 1820, 
 the defender's father and mother cohabited in Lon-
 
 TIT. IV. OF FOREIGN AND INTERNATIONAL LAW. 2T3 
 
 don as married persons, and the defender was pub- 
 licly acknowledged as their lawful son. 
 
 A question was stirred by the pursuer, relative 
 to the defender's filiation, which however was 
 established by proof, and this point did not enter 
 into the decision. The point of law was consider- 
 ed new, and so important that a solemn hearing in 
 presence took place. 
 
 The argument of the pursuer substantially a- 
 mounted to this, that the defender's parents being 
 both domiciled in England at his birth, the law of 
 their domicile, which rejected legitimation by sub- 
 sequent marriage, must regulate his status ; that 
 the defender was consequently an English bastard ; 
 and were the Scotch law of legitimation to be ap- 
 plied to him, a conjiictus legiim would arise, pro- 
 ductive of obvious inconveniences, and completely 
 adverse to that comitas which ought to prevail where 
 the laws of two countries come into contact ; that 
 to avoid such collision, the law of the permanent 
 domicile, where a party has a fixed residence, and 
 by which succession in moveables would be deter- 
 mined, was usually aj)plied in questions of interna- 
 tional law ; that England being in this case that 
 permanent domicile, the law of England was tliat 
 which should determine the defender's status in 
 preference to any other ; and the bastardy which 
 the English law impressed upon a child born out of 
 matrimony, was indelible by a subsequent mar- 
 riage. It was denied, that the circumstance of a 
 land estate in Scotland depending upon the result
 
 274 A DIGEST ON THE LAW OF MAllRIAGE. book Ii. 
 
 of this question, ought to have any influence up- 
 on the decision. That was a mere accident or con- 
 sequence. The defender, though a claimant for the 
 estate, could only claim it through the medium of 
 legitimacy, which is a question of personal status, 
 to be tried and determined between the conflictino- 
 rules of the two countries, upon the principles of 
 the J us genfinm. 
 
 If the possession of an estate in Scotland were to 
 affect the decision, that being a matter which could 
 not be taken into consideration elsewhere, v/ould 
 lead to the inadmissible consequence, that the de- 
 fender might be a bastard in England and legiti- 
 mate in Scotland, contrary to the principle, " Qua- 
 lifaies personates certo loco alicui jure impressas, 
 iihiqne circumferri et personam comitari.'^ (Hu- 
 beri prselect. pars 2d, Lib. i. tit. 3. De conflictu 
 legum, § 12 ; also Burgundius de statutis Voet. 
 De statutis Hertii commentationes sect, de colli- 
 sione legum Hofacker Prin. Jur. cir. T. de statutis. 
 Merlin Puissance Paterneile, § 7, tom. 10.) It was 
 impossible, therefore, that the lex rei sitce could 
 have any influence in a question of personal status. 
 Neither was it important that Scotland was here 
 the Jorum contractus. Even in Scotland legitima- 
 tion was not a necessary consequence of matri- 
 7}ioniu7nsuhsequenSy being prevented by the existence 
 of a mid impediment. According to the jus gen- 
 t'mm, although a contract is valid if entered into with 
 all the solemnities required by the law of the locus 
 contractus^ this does not infer the adoption of all the
 
 TIT. IV. OF FOREIGN AND IXTERNATIONAI.LAW. 275 
 
 consequences which that law may attach to third 
 parties, or even to the parties themselves. In such 
 a case, it is the law of the domicile which regulates 
 their patrimonial interests and those of their chil- 
 dren. There was here, too, a collusion between the 
 ])arties, to defeat the law of their proper domicile 
 by celebrating- the marriage in Scotland, which could 
 not be supported by the Jus gentium. (Voet. de Sta- 
 tutis, Pothier contume d'Orleans, cap. i. § 1. ]\Ior- 
 combe v. M'Lelland, 27th June 1801, Fac. Coll.) 
 The lex rel sitce and the lex loci contractus bein."- 
 thus both incompetent to affect this question, the 
 lex domicilii alone remained to determine it ; and 
 this principle had accordingly been very generally 
 applied in such questions. (Muller, Forum Con- 
 tractus, § 23 ; Hertius, 84G, p.^143 ; Voorda, c. iii. 
 p. 85.) Such decisions as came nearest to the point 
 were hostile to the defender. In that of Christophe 
 de Conti, (Journal des Audienees, No. 3, 21st June 
 1688,) a child born illegitimate in France, of French 
 parents, was legitimated by a subsequent marriage 
 in England, the parties never having transferred 
 their permanent domicile to England. Here, there- 
 fore, the lex domicilii had alone ruled the lea:al con- 
 sequences of the marriage. In the case of Shedden 
 V. Patrick, a child born illegitimate in America, of 
 American parents, incapable of being made legiti- 
 mate by the laws of that country, failed in making 
 out his claim to a Scotch estate in a question tried 
 in this country. In the late case of Strath more, al- 
 though the marriage took place in England, that
 
 27Q A DIGEST OX THE LAW OF MARRIAGE, book ii. 
 
 was not considered decisive ; but, on the contrary^ 
 the chief discussion related to the domicile of Lord 
 Strathinore, which, under all the circumstances, was 
 held to be in England. In point of expediency, le- 
 gitimation by subsequent marriage ought to be re- 
 strictively applied, because it tended to immorality. 
 For the defender it was pleaded, that his father 
 was born and educated a Scotchman, and, by his 
 property and other circumstances, kept up a con- 
 stant connexion with his native country, even while 
 residing in England ; and he was always subject to 
 the jurisdiction of Scotch courts. That, therefore, 
 he never lost the privileges which the law of his na- 
 tive country bestowed, of legitimating his offspring 
 by a subsequent marriage ; and this privilege was 
 accordingly claimed by the father and mother com- 
 ing to Scotland, and going through the solemnity of 
 marriage there ; that the question here substantially 
 related to a Scotch estate, and the pursuer's title 
 was a Scotch entail ; and that, in all questions re- 
 lative to land, the /<?.r rei sitce invariably ruled the 
 decision. Nor could the lex ret sit<s be for a mo- 
 ment lost sight of ; for, without it, the case became 
 incompetent in any Scotch court. There was no 
 conjiictiis legum in tliis case ; because the power of 
 legitimation was a privilege conferred by the law of 
 Scotland on its own subjects, which might be claimed 
 by a parent quandocuuque, and the law made no 
 distinction as to the place where the child was born. 
 There was no fraud or collusion against the law of 
 their domicile, but a just and rational exercise of
 
 TIT. IV. OF FOREIGN AND INTERNATIONAL LAW. 277 
 
 the privileges which the law of Alexander Ross's 
 native country conferred upon him. The cases cited 
 are not in point. That of Conti was decided fa- 
 vourably to the legitimation. In the cases of Shed- 
 den and Strathmore, the parents never were toge- 
 ther in Scotland, nor even the children, during the 
 joint lives of the parties. Lord Strathmore was 
 born in England, and his peerage was a British 
 peerage. No immoral conse([uences were produced 
 by the law of legitimation ; on the contrary, it held 
 out an inducement to exchange a state of concubin- 
 age for one of lawful wedlock, and afforded the only 
 way of making reparation to the unfortunate chil- 
 dren. 
 
 'J'he opinions of the First Division and perma- 
 nent Lords Ordinary having been obtained in writ- 
 ing, the Second Division delivered their opinions. 
 Ul)on the whole, the opinions stood thus : That the 
 defender was legitimate, Lords Justice Clerk, Glen- 
 lee, Pitmilly, Alloway, Mackenzie, Medwyn, Craigie, 
 Meadowbank, Gillies, and Balgray ; that the defen- 
 der was illegitiinate, Lords President, Cringletie, 
 and Eldin. 
 
 The bill of advocation was accordingly refused, 
 with expenses ; but the case was apj)ealed to the 
 House of Peers, and the judgment of the Courts 
 below reversed. 
 
 In the House of Lords, on Friday, the I6th July, 
 1830, judgment was given, reversing the above de- 
 cision of the Court of Session, when the learned and 
 noble Lords delivered the following opinions. 
 
 Y
 
 278 A DIGEST ON THE LAW OF MARRIAGE, book it. 
 
 Earl of Eldon. — "My Lords, The cause which 
 stands next for judgment is that which has been 
 called the legitimation cause. It is not my inten- 
 tion to trouble your Lordships with more than a 
 very few words upon that case. It is merely to 
 state, that the points which have been raised in the 
 discussion of this case have not escaped my atten- 
 tion, and that I do not give an opinion upon it 
 without maturely considering the cases which have 
 been previously decided. I have looked through 
 all the judgments in the Consistorial Court, and 
 the judgment of the learned judges in the Court of 
 Session, in order to correct the opinion I had form- 
 ed upon those former cases, and which I had thought 
 it right and consistent with my duty to express. 
 I have listened with the utmost attention, also, to 
 that which was stated at your Lordships' bar, and 
 the result I have come to is, that it is not pos- 
 sible for me to find that that individual was legi- 
 timate ; if I am right in that, the judgment must be 
 reversed.*' 
 
 Lord Chancellor (Lyndhurst.) — " My Lords, In 
 this case I will state to your Lordships, in a word, 
 what are the facts of the case. A person of the 
 name of Ross, who was a Scotchman by birth, 
 came to England in early life, and resided in Eng- 
 land, where he carried on business for fifty years, 
 domiciled in London, where that business was car- 
 ried on. He formed a connexion, I think, about 
 the year 1811, with a woman with whom he co- 
 
 ml 
 
 habited. By that woman he had a child ; five
 
 TIT. IV. OF FOREIGN AND INTKRNATIONAL LAW. 279 
 
 years afterwards, while he was still domiciled in 
 London, he went to Scotland with the child, and 
 with the woman, for the pur[)ose of being married. 
 He did not go to Scotlanci for the purpose of re- 
 maining in Scotland, but obviously auinio rever- 
 tendi. He was married in Scotland, remained in 
 that country a few weeks, returned to London to 
 his former domicile, remained there during the con- 
 tinuance of his life, and died in London. 
 
 "The question is, under these circumstances, whe- 
 ther, by the law of Scotland, the child has become 
 legitimate by the marriage of its parents under the 
 circumstances I have stated ? Now, my Lords, 
 there was a principle stated at the bar, upon which, 
 however, I should be unwilling to decide this 
 case, but which I will state to your Lordsliips, that 
 by the law of Scotland, where persons cohabit to- 
 gether unmarried, and a child is born, and they af- 
 terwards marry, with certain exceptions, it is consi- 
 dered that a contract of marriage was formed pre- 
 vious to the conception of the child. It was con- 
 tended at the bar, as it had been contended in the 
 Court below, that that did not apply to a case of 
 this description, for that no such contract could 
 constitute a marriage in this country — that nothing 
 could constitute a marriage except the ceremony of 
 marriage in facie ecdesiw — and tiiat, therefore, if 
 such be the principle of legitimation per suhbequeiis 
 matrimonium relied upon, the individual cannot be 
 legitimate in this case. My Lords, attending to 
 the whole of the argument, I consider the law of
 
 280 A DIGEST ON THE LAW OF MARRIAGE, book ii. 
 
 Scotland, in this respect, fit patter for considera- 
 tion in other cases ; but I do not wish to dispose 
 of the case upon that principle. 
 
 My Lords, this brings me, then, to the cases to 
 which my noble and learned friend has alluded— 
 the case of Shedden v. Patrick, and that, with one 
 exception, was similar to the present. A nati\^e of 
 Scotland went to America, where he was domi- 
 ciled ; he lived there for more than twenty years — 
 he lived with a woman by whom he had a child, 
 and he afterwards married her in America. His 
 father had a landed estate in Scotland, and the 
 child, born previously to the ceremony of marriage, 
 claimed as his heir. M}'^ Lords, when that case came 
 before the Oourt in Scotland, it was considered by 
 the learned judges in that Court, as necessary, in 
 the first instance, to determine as a distinct ques- 
 tion, the question of legitimacy, and the question 
 of status. My noble and learned friend has had 
 the kindness to hand me a manuscript copy of the 
 opinions of the judges of that court at the time 
 when that case was decided. The fifteen judges of 
 the Court were unanimous in their judgment, with 
 the exception of only one, who expresses his dis- 
 sent, however, with great doubt and great diffi- 
 dence, and they decided in that case in the manner 
 I have stated, distinctly and clearly against the le- 
 gitimacy. Now, my Lords, referring to the judg- 
 ment of some of those learned judges, I should in- 
 fer that they came to a conclusion upon the ground 
 I am about to state — that by the law of the country
 
 HT.iv. OF FOREIGN AND INTERNATIONAL LAW. 281 
 
 where the child was born, it was not only illegiti- 
 mate, as is found, but that by the law of that 
 country the illegitimacy was indelible, and there- 
 fore, a subsequent marriage could not have the ef- 
 fect of rendering the child legitimate. A distinc- 
 tion might possibly be made between a marriage 
 in Scotland and a marriage in America ; but I do 
 not enter into that distinction, for this reason, that 
 if a marriage be celebrated according to the law 
 and usage of the country in which it takes place, 
 and according to that it is complete — it is complete 
 every where. Therefore, I do not see very dis- 
 tinctly why marriage in Scotland should have great- 
 er effect than would be attributable to a marriage 
 in America, with respect to a child who had been 
 previously born. It appears to me, therefore, un- 
 necessary to go into that point : it is sufficient that 
 the child being born in a country where the legiti- 
 macy is indelible, that, in any country whatever, 
 would have the effect of rendering thai, child illegi- 
 timate. I collect that opinion to have been ex- 
 pressed by some of the learned judges in the case of 
 Shedden i\ Patrick. 
 
 *•' I collect this also from tlie judgment of Lord 
 Redesdale in the judgment in the case of the Strath- 
 more Peerage, where the noble and learned Lord 
 commented upon the case of Shedden v. Patrick ; 
 and I believe that at the time when Shedden v. Pa- 
 trick was decided in this House, that noble and 
 learned Lord was a member of it. However, these 
 iUre the observations the noble and learned Lord
 
 282 A DIGEST ON THE LAW OF MARRIAGE. book n. 
 
 makes : * I do not enter into the question, whether, 
 if this marriage had been celebrated in Scotland, it 
 might have had the effect of legitimating the child, 
 because I think it is not necessary ;' — I agree with 
 the noble and learned Lord, 1 do not think it ne- 
 cessary — ' but I must say that I cannot conceive 
 how it could have that effect.' The opinion of that 
 noble and learned Lord is quite obvious from what 
 I have stated, and a subsequent passage, in which 
 he considered the position of the child at the time 
 of its birth, and the character stamped upon it at 
 the time of its birth, as deciding the case. He af- 
 terwards says, ' So I apprehend that this child was 
 born illegitimate, according to the law of the coun- 
 try in which he was born — according to the condi- 
 tion of his mother, of whom he was born — and ac- 
 cording to the state of his father, who was at the 
 time a person unquestionably domiciled in England.' 
 Taking the whole of the judgment of the noble 
 Lord together, I should conclude that he was of 
 opinion, that if the child was illegitimate at the time 
 of its birth, and according to the law of the country 
 where it was born, that character was stamped up- 
 on it indelibly. No subsequent marriage could ren- 
 der him legitimate. But it is not necessary to de- 
 cide that question, for this reason : These parties 
 were domiciled in England, the child was born in 
 England ; the marriage did not take place indeed 
 in England, but the parties went to Scotland for 
 the purpose expressly of being married ; and, hav- 
 ing been married, they returned to England, to the
 
 TIT. IT. OF FOREIGN AND INTERNATIONAL LAW. 283 
 
 place of their former domicile. I wish, agreeably 
 to that which has been stated by my noble and 
 learned friend, that this case should be decided with 
 reference to this state of facts, without entering up- 
 on those other questions which the case may raise. 
 I am of opinion, upon that ground, that the judg- 
 ment of the Court below should be reversed." 
 
 Earl of Eldon. — " My Lords, the learned Lord's 
 conclusion appears to me to be perfectly correct, 
 that it is your Lordships' duty to reverse this judg- 
 ment, under the circumstances of this case. I will 
 just take this opportunity of saying, that I have 
 given the greatest consideration to that which has 
 been expressed in the judgments of your Lordships' 
 House, and that stated at the bar of the House by 
 the counsel, and to the decisions in Scotland with 
 respect to matters of divorce, with reference to 
 which I shall say no more at present than this, that 
 I pledge myself to give the best assistance in my 
 power to your Lordships, if I live till the next ses- 
 sion of Parliament, in endeavouring to settle what 
 the law is upon that subject. Your Lordships know 
 the Judges of the Consistorial Courts have differed 
 with the Court of Session with respect to this very 
 important point. It will be in the recollection of 
 some of your Lordships, that, some few years ago, 
 a person who was divorced in one of the Courts in 
 Scotland formed the opinion that he might marry 
 again. He did marry again. He had been origin- 
 ally married in England. He was conA'icted of bi- 
 gamy, and the twelve Judges assembled to consider
 
 284 A DIGEST ON THE EAW OF WAllRIAGE. book ii. 
 
 the effect of his conviction, which was a conviction 
 on the Northern Circuit. The twelve Judges found, 
 that the marriage having occurred in England, the 
 divorce e vinculo matrimonii could not take pUlce 
 but by an English act of Parliament. Whether 
 that is right or wrong, I will not stop to discuss ; 
 but I must say, that the subjects of England and 
 Scotland should not be left in such a state of the 
 law, subject to such a difference of opinion between 
 the Judges in England and the Judges in Scotland. 
 The mention of the case brings to my mind, that 
 holding the Great Seal at the time, it did appear to 
 me to be a case in which some degree of mercy, on 
 account of those decisions in Scotland, ought to be 
 extended to that individual ; and it was so extend- 
 ed. But I must take the liberty of saying, that the 
 law of Scotland and the law of England ought not 
 both to i-emain as they now are, on such a question ; 
 and I will myself, if no other noble Lord undertakes 
 it, introduce into your Lordships' House some mea- 
 sure for the purpose of disencumbering the subjects 
 of both parts of the kingdom of certain contradic- 
 tions which are so extremely inconvenient as these 
 are ; and I should hope your Lordships would feel 
 the matter to be extremely worthy of your atten- 
 tion." 
 
 Lord Wynford. — " My Lords, with respect to the 
 case to which my noble and learned friend refers, 
 it was as much considered as any case which ever 
 came under the consideration of the learned Judges. 
 It was argued by some of the most able men at the
 
 TIT. IV. OF FOREIGN AND INTEllNATIONALLAAV. 285 
 
 bar ; but the Judges were so clear in their opinion 
 of the law, that they ordered the man to be trans- 
 ported. Mercy was shown to that man afterwards, 
 on the grounds to which reference has been made, 
 and never in a more proper case ; but the Judges 
 did consider, at the time of the second marriage the 
 first marriage was subsisting, and had never been 
 dissolved. 
 
 My Lords, in respect of the present case, I will 
 merely say that I entirely concur in every reason 
 which has fallen from my noble and learned friends. 
 This is a case depending entirely on the character 
 of the party. The character of the party is a prin- 
 ciple referable to the law of the country to which 
 the individual belongs, and bastardy is in this coun- 
 try of an indelible character. I have referred to 
 foreign writers upon this subject, particularly the 
 Dutch writers of the greatest authority ; and I find 
 that the principle, as laid down by them, is in ac- 
 cordance with those laid down by our own writers, 
 and, there is a case in which the point has been de- 
 cided. 
 
 Lord Cliancellor. — My Lords, I find, in confirma- 
 tion of the principle I have just alluded to, the very 
 case my noble and learned friend has mentioned 
 — the case of De Conti, decided in France in the 
 year 1668. That was the converse of this princi- 
 ple that establishes, that where a child is born in 
 a country where he would become legitimate by a 
 subsequent marriage, he becomes so, although the 
 marriage has taken phice in a country in which a
 
 286 A DIGEST ON THE LAW OF MARRIAGE, book ii. 
 
 different law prevails, and where a subsequent mar- 
 riage would not have the effect of rendering him 
 legitimate. That child was horn in France, where 
 that law has effect. The parents afterwards came 
 over to England, and were married in England. 
 There the French Court decided, that the effect of 
 the marriage in England, although that law does 
 not prevail in England, was to render the child le- 
 gitimate in France, which is a complete confirma- 
 tion of the principle. 
 
 My Lords, I take this occasion of saying, and I 
 am happy to have the occasion of saying, that I have 
 read through from beginning to end the judgments 
 of the Judges in the Commissary Court ; and I think 
 it my duty to say, especially after what has passed 
 within the last few days, that those judgments dis- 
 play so mvicli industry, so much intelligence, and 
 so much knowledge of the subject of that law over 
 which they preside, as to do those learned Judges 
 very great credit, and to show that they are persons 
 of considerable knowledge, and abundantly qualifi- 
 ed to discharge the duties of the situation they 
 hold. 
 
 " Earl of Eldon. — My Lords, in cases of this 
 sort, it is of importance, in appreciating the weight 
 that belongs to the opinions of learned persons, to 
 consider what is the question to which it is to apply 
 itself. I take upon myself to assure your Lordships, 
 that my Lord Redesdale would have discussed the 
 question which the noble and learned Lord has 
 adverted to, and would hcive had no dKKcultv in ex-
 
 TIT. IV. OF FOREIGN AND INTERNATIONAL LAW. 287 
 
 pressing his very decided opinion upon the other 
 branches of the subject, if he had felt that that opi- 
 nion was called for, in order to decide the particu- 
 lar question raised in that case." 
 
 9. The case of Bempde v. Johnstone, decided in 
 the Court of Chancery, 12th June 1796, in relation to 
 the domicile of the Marquis of Annandale, which 
 was found to be in England. 
 
 The report bears, " he was born in 1720, at his fa- 
 ther's house in London. He continued there till he 
 was sent to Eton, where he remained till 1734, except 
 in the vacation, when he visited his mother in Lon- 
 don. Leaving Eton, he went abroad, and continu- 
 ed abroad, in different places, till 1738, when he re- 
 turned to London, whence, in a few days, he went 
 to Scotland. He continued there a little more than 
 a month, then returned to London, remained there 
 about two months, and then went abroad. He con- 
 tinued abroad, in different places, till December 1739, 
 when he returned to England, and he remained in 
 London till April 1740. Then he went to Scot- 
 land. The beginning of October he returned to 
 England. In May 1741, he again went to Scot- 
 land. He returned to England about the middle 
 of July; and, in January 1742 he went abroad. 
 In November he returned to England, and remain- 
 ed there till December 1743, except that he was in 
 Paris a fortnight or three weeks in that year. In 
 December 1743 he went abroad. In the middle of 
 April 1744 he returned to England, and remained 
 there till his death. In 1747 a commission of lu-
 
 2S8 A DIGEST ON THE LAW OF MARRIAGE, book ii. 
 
 iiacy issued against him ; and he was found a luna- 
 tic from December 1744. He lived in lodgings and 
 ready furnished houses, on account of his narrow 
 income. 
 
 In giving judgment in this case, the Lord Chan- 
 cellor observed, " that, as to his residence in Scot- 
 land, he never was there at any period with a fixed 
 purpose of remaining. Its existence was purely a 
 purpose of either visit or business, and both circum- 
 scribed and defined in their time. Wherever he 
 had a place of residence that could not be referred 
 to an occasional or temporary purpose, that is found 
 in England, and no where else. I am not clear 
 that the period of his lunacy is totally to be discard- 
 ed, but I will take him to have died then. For the 
 greater part of that period previous to that which 
 he fixed in this country, and fixed by all those ties 
 that describe a settled residence, distinguish it 
 from that which is temporary and occasional." Af- 
 terwards, " if you show that the place of his resi- 
 dence is the seat of his fortune : if the place of his 
 birth, upon which I lay the least stress ; but if the 
 place of his education, where he acquired all his 
 early habits, friends and connexions, and all the 
 links that attach him to society are found there ; if 
 you add to that, that he had no other fixed resi- 
 dence upon an establishment of his own, you an- 
 swer the question, which would be, where does he 
 reside? In London. Is that his domicile? It is. 
 Unless j^ou show that it is not the place where he 
 would be, if there was no particular circumstance
 
 TIT. IV. OF FOREIGN AND INTERNATIONAL I-.^W. 289 
 
 to determine his position in some other place at that 
 period. In this case, every thing leads me to con- 
 clude, that the place wliere Lord Annandale is found 
 is the place where he would be, no occasion taking 
 him to any other place. When that is fixed, and 
 you have found all the circumstances that give 
 a character of permanency to that place, where he 
 really is, it is in vain to inquire where was his la- 
 ther's domicile." 
 
 10. The case of Sommerville v. Lord Sommerville, 
 decided in Chancery in 1801, finds that his domicile 
 was in Scotland. 
 
 The report runs in these terms. 
 
 The late Lord Sommerville was born on the 22d 
 June 1727, in Scotland, either at Sommerville House, 
 or at Goodtrees, an old mansion in the neighbour- 
 liood, rented by his father while the house was re- 
 building. He remained there till the age of nine or 
 ten years, in the course of which period he was at 
 school at Dalkeith, and afterwards at Edinburgh. 
 At the asre of nine or ten he was sent into England, 
 to Mr. Sommerville in Gloucestershire. He was at 
 school there for some time. Afterwards, in June 
 1742, he went to Westminster Scliool, which he 
 quitted at Christmas 174rj. He tiien went to Caen 
 in Normandy, for the purpose of education, where 
 he resided till the age of eighteen. Upon the break- 
 ins: out of the rebellion in Scotland in 1745, he was 
 sent for by his father, joined the royal army as a 
 volunteer, and continued in the army till 17C.'i. 
 He then went to Scotland, then went abroad ; and 
 
 4
 
 290 A DIGEST ON THE LAW OF MAERIAGE. book n. 
 
 in 1765, on account of his father's illness and 
 death, returned to Scotland, where he remained 
 about six months. "From 1766, there was no 
 evidence as to the actual residence till 1778 or 
 1779, farther than that he passed the winter in 
 London, and the summer at Sommerville House. 
 In 1779 he took a lease of a house in Henrietta 
 Street, Cavendish Square, for twenty-one years, 
 determinable at the end of seven or fourteen years, 
 at a rent of L.84 a-year. He continued to occupy 
 this house as his winter residence, till his death, 
 going every year to Sommerville House for the 
 summer, and dividing the year nearly equally be- 
 twixt them. About ten years before his death he 
 was elected one of the sixteen peers, and he attend- 
 ed his Parliamentary duties every winter. In 
 Scotland Lord Sommerville's establishment and style 
 of living were suitable to his rank and fortune. 
 In London he had only one or two female servants, 
 and but two men servants from Scotland, taking 
 them back with him, and using job horses occa- 
 sionally. His manner of living here was very pri- 
 vate ; seeing no company, dining usually at a club, 
 and keeping his servants on board wages. The 
 house was out of repair, and furnished upon a very 
 limited scale. To some of his friends he declared 
 repeatedly, that he considered his residence in Lon- 
 don only a lodging house and temporary residence 
 during the sitting of Parliament, and spoke of 
 Scotland as his residence and home, v/here he was
 
 TIT. IV. OF FOREIGN AND 1 NTERNATIONAL LAW. 291 
 
 born, with the warmth of a native ;" and he died in 
 London in April 179S. 
 
 "^J'he Master of the Rolls, who decided the case, 
 observed, that " Here the question is, which of two 
 acknowledged domiciles shall preponderate ?" and 
 again, " upon nice distinctions I think it might be 
 proved, that the principal domicile must be consi- 
 dered as in Scotland." And in concluding he 
 states, " The domicile of origin is that arising from 
 a nian's birth and connexions. To ap])ly these 
 rules to this case, it cannot be disputed, that Lord 
 Sommerville's father was a Scotsman. He married 
 an English lady, returned to Scotland, repaired his 
 family house, occupying another in the neighbour- 
 liood in the mean time ; and he had apartments in 
 Holyroodhouse. For the first of his life, after his 
 marriage, he seems to have made Scotland almost his 
 sole residence; nor was it contended, that during that 
 period he had acquired any other. The father be- 
 ing then, without doubt, a Scotchman, the son was 
 born, and at the age of nine or ten years, was sent 
 into England for education, and from thence to 
 Caen in Normandy. The case then comes to this : 
 a Scotchman by birth and extraction, domiciled in 
 Scotland, takes a house in London, lives there half 
 the year, having an establishment at his family estate 
 in Scotland, and money in the funds, and happens 
 to die in England. I have no dilficulty in pro- 
 nouncing, that he never ceased to be a Scotchman ; 
 his original domicile continued.*' 
 
 11. John Bowes, an infant, claiming the honours
 
 292 A DIGEST ON THE LAW 01^ MAllRIAGE. book ii. 
 
 and dignities of Strathmore, v. the Right Honour- 
 able Thomas Bowes, was found to be illegitimate. 
 
 The facts of the case tried before the Lords' 
 Committees for privileges, June 21st, 1821, as stat- 
 ed in the case of John Bowes, an infant, claiming 
 the titles, honours, and dignities of the Earl of 
 Strathmore and Kinghorn, Viscount Loyn and Glam- 
 mis, &c. as lawful son of the late John Bowes, 
 Earl of Strathmore and Kinghorn, v. the Right 
 Honourable Thomas Bowes, claiming to be Earl of 
 Strathmore, are the following, — 
 
 The claimant was born in the parish of Saint 
 Luke, Chelsea, on the 19th of June, 1811, his mo- 
 ther being Mary Millner, now Countess of Strath- 
 more. 
 
 He was baptized in the same parish, on the 29th 
 
 June, 1811. 
 
 From the time of the claimant's birth, he was ac- 
 knowledged by the Earl of Strathmore as his son ; 
 the Earl was present at his baptism, and gave the 
 claimant his own name, John Bowes. 
 
 On the 5th of July, in the said year 1811, the 
 said Earl of Strathmore executed a codicil to his last 
 will and testament, bequeathing to James Farrier, 
 James Dundas, and James Steadman, Esqs. the 
 trustees and executors of his said will, the sum of 
 L. 10,000, in trust for the claimant, who is thus de- 
 scribed in the said codicil ; " An infant child, who is 
 my son, or reputed born, by Mary Millner, now re- 
 siding at No. 13, South Street, Chelsea, in the 
 county of Middlesex ; and which infant child was 
 
 1
 
 TIT. IV. OF FOREIGN AND INTERNATIONAL LAW. 293 
 
 boriJ on the 19th day of June now last past, and 
 baptized in the parisli of Chelsea, on the 29th day 
 of the same month of June, by the name of John 
 Bowes, son of John and Mary Milhier." On the 
 margin of the said codicil, is a note in the hand- 
 writing of the said Earl, in the following words : 
 Nota Bene, — I find, since the e'xecution of this 
 codicil, that my infant child, for whose benefit this 
 bequest of L. 10,000 is by me intended, is registered 
 as having been baptized by the name of John 
 Bowes, son of John ]\lillner and Mary." This 
 codicil was afterwards cancelled as a testamentary 
 instrument. 
 
 The claimant remained in the neighbourhood of 
 London, nnder the superintendence of his father, 
 till he was about the age of twelve months ; he was 
 then, by his mother, carried to the Earl's house at 
 Wenunergill, in the county of York ; he remained 
 there till about two years of age, when he was 
 taken to the Earl's residence at Streatlani Castle, 
 and he remained th.ere, under the care of his father 
 and mother, till May 1817. At that period he was 
 brouirht to London to the Earl's house in Conduit 
 Street ; and he remained there till, in the following 
 month, he was placed by the Earl, for his educa- 
 tion, with the Rev. AVilliani (ioodenough, then of 
 Ealing in the county of Middlesex, now of Mare- 
 ham in the county of Lincoln, clerk. 
 
 During the whole of this jieriod the Earl acknow- 
 ledged the claimant as his son, and treated him with 
 
 paternal tenderness and a (feet ion. 
 
 z
 
 294 A DIGEST ON THE LAW OF MARllIAGE. book lu 
 
 In July 1817 the Earl executed a will, by which 
 he devised his whole estates in England, of very 
 great value, to the claimant's mother, (by her then 
 name of Mary Milkier,) and to Henry Jadis, James 
 Blackburn, James Farrer, James Dundas, and James 
 Farrer Steadman, Esquires, in trust for a term of 
 1000 years, for the use of the claimant, by the name 
 and description of " my son, or reputed son, who 
 was baptized in the parish of Chelseaj on or about 
 the 29th day of June 1811, by the name of John 
 Bowes, and is now called or known by the name of 
 John Bowes, and has lately been placed by me at 
 the school of the Rev. William Goodenough of Eal- 
 ing, in the county of Middlesex, clerk," for life, and 
 his sons successively, in tail male, with other re- 
 mainders over. 
 
 On the 1st of July 1820, the Earl being then re- 
 sident in Conduit Street, London, and in a danger- 
 ous state of health, gave directions that a licence 
 might be procured for solemnizing a marriage be- 
 tween himself and the claimant's mother, which 
 was accordingly procured in the usual form, the 
 Earl having been for that purpose attended by a 
 surrogat. 
 
 On the following day, the intermarriage between 
 the claimant's parents was duly solemnized in the 
 parish church of St. George, Hanover Square, by 
 the Rev. Robert Hogson, doctor in divinity, dean 
 of Carlisle. 
 
 On the same day, with the Earl's assent, a letter 
 was written to the Rev. William Goodenough, at
 
 TIT. IV. OF FOREIGN AND INTERNATIONAL LAW. 295 
 
 Marc'hain, mentioning Lis marriage; that the claim- 
 ant thereby became, by the law of Scotland, Lord 
 Glammis, and requesting that he might be designat- 
 ed by that title in future. 
 
 On the morning of the following day, the Earl 
 republished the before-mentioned will of his Eng- 
 lish estates, with various codicils. 
 
 In the afternoon of the same day, the Earl ex- 
 pired. 
 
 The Lord Chancellor Eldon, in delivering his 
 opinion upon this interesting case, said, — " The il- 
 legitimacy of this child appears to me to be made 
 out by the circumstances which I shall shortly state. 
 I mean the birth of his father in England. The 
 fact that his father was not, as his ancestors were, 
 (provided he was legitimate, I should call them his 
 ancestors,) a mere Scotch peer, but that he was, as 
 Earl of Strathmore, British, — that he was, as Baron 
 Bowes, a British peer ; that the mother was an 
 Englishwoman ; I do not recollect that she had 
 ever been in Scotland at all ; if she had ever been 
 in Scotland at all, it has escaped my recollection ; 
 that the marriage was in England ; that the domi- 
 cile of Baron Bowes was principally in England ; 
 that her domicile was certainly altogether in Eng- 
 land ; and, under the circumstances, it does not ap- 
 pear to me, attending to the principle which this 
 Plouse meant to maintain in Shedden v. Patrick, 
 that, without deciding at all what would be the con- 
 sequences of a person married in Scotland before the 
 Union, or persons removed from Scotland, domiciled
 
 296 A DIGEST ON THE LAW OF MARRIAGE, book }i. 
 
 elsewhere, and going to Scotland, and obtaining a 
 domicile, and marrying in Scotland ; without deter- 
 mining those points at all, but recollecting the state 
 and condition of these parties, and the fact that the 
 father was a British peer, and looking to the effect 
 -of the Act of Union, I am bound to tender to your 
 Lordships my opinion, I am sorry so to state, that 
 this child is not a legitimate child." 
 
 Lord Redesdale observed, — " My Lords, the child 
 that was born of Lady Strathmore, as she now is, 
 and whom my Lord Strathmore acknowledges to be 
 his child, was unquestionably born under circum- 
 stances which constituted him a person born out of 
 lawful marriage. He was born in England, of an 
 Englishwoman, who never had before been in Scot- 
 land, and, I understand, never since was in Scot- 
 land. The law, therefore, that attached to him up- 
 on his birth, was the law of England ; and, if his 
 mother, or his supposed father, had died within a 
 few years after, unquestionably he was an illegiti- 
 mate child, born in England, subject to the law of 
 England^ and having no character whatsoever but 
 that which had been obtained from his mother. But 
 it is said that the subsequent marriage of his father 
 shall have the effect, on account of the connexion 
 which that father had with the district of Scotland, 
 of making him the legitimate of the dignity of Earl 
 of Strathmore ; though, my Lords, if it is to have 
 that effect, it must have the effect of controlling the 
 law of England ; it must repeal the law of England 
 for so much : and I apprehend that you cannot con-,
 
 TIT. IV. OF FOREIGN ANDINTERXATIONAL LAW. 2i)7 
 
 strue the provision in the article of Union to 
 have any such effect ; you cannot misconstrue the 
 provision in the articles of Union with respect 
 to the law of Scotland, to extend beyond the lo- 
 cal district of Scotland ; you cannot construe it to 
 have the effect, with reference to a person upon 
 whom, at his birth, the law of England attached, 
 who was a natural born subject of the realm, only 
 because he was born in England, and who, in that 
 character, was liable in all the consequences arising 
 from the illegitimacy of his birth in England, be- 
 cause his father possessed a peerage, which is still 
 called, for certain purposes, a peerage of Scotland ; 
 that, therefore, his state is to be governed by the 
 law of Scotland, I do conceive that that would be, 
 in effect, to repeal the law of England, and that 
 there is nothing whatever in the Act of Union which 
 can possibly give such effect to Scotch law. 
 
 " My Lords, I think the case which has been 
 mentioned as decided in France is strongly in point 
 upon the subject ; for on what ground was the 
 French case decided ? The ground on which it was 
 decided was this, that the child was born in France, 
 — born, therefore, subject to the laws of France, — 
 and that the retrospective effect was consistent with 
 the law of France — that he had gained, at the in- 
 stant of his birth, the capacity of a child born in 
 France; whereas this child at his birth had no such 
 capacity, in reference to Scotland : he was born in 
 a country where, according to the law of that coun- 
 try, he was incapable of being legitimated. It seems 
 to me, therefore, that, if your Lordships were to
 
 298 A DIGEST ON THE LAW OF MAllRIAGE. bookii. 
 
 hold this subsequent marriage of the Earl of Strath- 
 more with the mother of the child to have the effect 
 of legitimating the child, the consequence would be, 
 you would abrogate the law of England, in so far 
 as that is certainly not within the meaning of the 
 articles of Union. 
 
 " My Lords, I do not enter into the question, 
 whether, if this marriage had been celebrated in 
 Scotland, it might have had the effect of legitimating 
 the child, because I think it is not necessary ; but I 
 must say, that I cannot conceive how it could have 
 that effect. In the case of Shedden v. Patrick, it 
 was determined, that a child illegitimate in the Unit- 
 ed States of America was not capable of inheriting 
 in Scotland. It has been stated, that that was de- 
 cided upon the ground that he was born an alien. 
 Why was he born an alien ? Because the law of 
 America touched him at his birth, and the retrospec- 
 tive effect of the law of Scotland could not alter the 
 character which, at his birth, attached upon him. 
 My Lords, I apprehend that this is the true ground 
 of the decision, — he was an alien, and that character 
 could not be altered by the retrospective character 
 of the law of Scotland. So I apprehend that this 
 child was born illegitimate according to the law of 
 the country in which he was born, according to the 
 state of his father, who was at the time a person 
 unquestionably domiciled in England. 
 
 *' My Lords, if we were to enter into the consi- 
 deration of the effect of a subsequent marriage, be- 
 cause it was solemnized in this country, I am afraid 
 we must 2:0 a sfreat deal farther than I think it ne-
 
 TIT. IV. OF FOREIGN AND INTERNATIONAL LAW. 299 
 
 cessary to go in this case. The law of Scotland ad- 
 mits an acknowledgment of marriage as equivalent 
 to the actual form of marriage ; the ceremony of 
 marriage is not necessary for the purpose, according 
 to the law of Scotland ; but I apprehend it never 
 can be allowed that that sort of acknowledgment, 
 except in Scotland, could have that effect. I pre- 
 sume, that, unless the acknowledgment was in Scot- 
 land, it could not be deemed to have the effect of 
 legitimating a child not born in Scotland ; so that, 
 imder these circumstances, he could, by the law of 
 the country in which he was born, become a legiti- 
 mate child. The acknowledgment of a marriage, 
 we are told, would, in Scotland, have the legitimat- 
 ing effect. When or where that marriage was so- 
 lemnized in a case of mere acknowledgment, need 
 not be declared ; it is sufficient, by the law of Scot- 
 land, simply to declare that this person describing 
 is the wife of the person who makes that acknow- 
 ledgment, and that has the effect of giving to his 
 wife, and to the supposed issue, the legal character 
 of a wife and legitimate child, by the retrospective 
 effect which that marriage has." 
 
 The judgnjent therefore was, finding the said 
 John Bowes illegitimate, and that the Right Hon. 
 Thomas Bowes, the brother of the late John Earl 
 of Strathmore, hath made out his claim to the titles, 
 honours, and dignities of the Earl of Strathmore, 
 as will more ani])ly appear from the words of the 
 adjudged findings of the judgment itself, — Resolved 
 and adjudged, that the petitioner, John Bowes, is
 
 500 A DIGEST ON THE I- AW OF MARRIAGE, book It. 
 
 not entitled to the titles, honours, and dignities of 
 JEarl of Strathinore and Kinghorn, Viscount Lyon, 
 Lord Glamniis, Tannadyce, Sidlaw, and Stratli- 
 dightie, claimed by the said petitioner. 
 
 Resolved and adjudged, that the petitioner, the 
 Right Hon. Thomas Bowes, hath made out his 
 claim to the titles, honours, and dignities of Earl of 
 Strathmore and Kinghorn, Viscount Lyon, Lord 
 Glanjmis, Tannadyce, Sidlaw, and Strathdightie, 
 claimed by the said petitioner. 
 
 Resolved and adjudged, that the petitioner, Jolni 
 Bowes, is not entitled to the title, honour, and dig- 
 nity of Baron Bowes, claimed by the said petitioner. 
 
 12. In the case Gordon i\ Gordon, decidedin Chan- 
 cery, 1S17, the father of the parties, by birth a 
 Scotsman, went, as an engineer in the service, to 
 America, in the year 1754, and there formed a con- 
 nexion with an American female. In 1759, a son 
 was born, and, in 1761, another son, the plaintiff in 
 the cause. In 17(J3, he purchased an estate in Penn- 
 sylvania, and in that year he married the mother, 
 and after that marriage the defendant was born. 
 The father died in 1787, and the eldest son died in 
 the same year. There were also estates in the island 
 of Grenada. In 1790, an agreement was come to 
 between the plaintiff and defendant, by which the 
 latter agreed to relinquish his right as heir-at-law 
 to his father ; and upon that agreement the suit 
 arose, the plaintiff having afterwards filed his bill 
 to set it aside, on the ground of an alleged private 
 marriage before the birth of the first son. The
 
 TIT. IV. OF FOREIGN AND INTERNATIONAL LAW. 301 
 
 Lord Chancellor Eldoii introduced his judgment in 
 the following words : " This is a very important 
 case ; and, if I understand it, it is thus represented. 
 Many years ago, the plaintiff and defendant in this 
 suit, both of them the sons of the same lady and 
 gentleman, understood themselves to stand in this 
 sort of situation to that lady and gentleman, namely, 
 that the plaintiff was the illegitimate son of those 
 two persons, and that the defendant was the legiti- 
 mate son of the same persons. They were Scottish 
 l)eople originally, but, the marriage having been in 
 America, that marriage, by a decision in the House 
 of Lords, would not give legitimacy to children that 
 were born before marriage, whatever might have 
 been the case of Scotch people married in Scotland. 
 So, understanding themselves as being related to 
 their father and mother, they accordingly came to 
 an agreement with respect to the enjoyment of their 
 property." 
 
 13. In the Ciise Henri de Conti Ecuyer, Sieur de 
 Quesnoy, rej)orted in the Journal dcs Audiences die 
 Parlement de Paris, in the year 1668. He had 
 formed a connexion with Jeanne Peronne Dumay, 
 the fruit of which was a son boi-n in France. The 
 j)arties went to England, which clearly appears from 
 the report to have been the place of their domicile, 
 as the father is only stated to have made several 
 journeys to France. After a residence of several 
 years the father died, having married the mother in 
 England some time before his death ; and the ques- 
 tion arose, whether the son could succeed to his
 
 «!• 
 
 302 A DIGEST ON THE LAW OF MARRIAGE, bookii. 
 
 father's possessions in France ? The argument 
 used by the competitor was — 1st, That legitimation 
 per suhsequens mntrlmomum was not excluded by 
 the law of England ; and, 2dly, that even if it were, 
 the illegitimacy by the law of England could not 
 affect the party's capacity to take a succession in 
 France. It was upon this last ground that the de- 
 cision went, as appears from the statement of the 
 conclusions of I'Avocat general de Bignon, upon 
 which this judgment was pronounced, 21st July 
 1()68. " Monsieur I'Avocate-general Bignon eta- 
 biit la verite de la naissance de Christophe de Conty 
 et la validite du marriage ; qu'en Angleterre il 
 n'y avait point de legitimation jwr suhsequens ma- 
 trimouium, il etablit meme que la legitimation etoit 
 une acte personalissime, neanmoins que s'agissant 
 de la succession d'un Francois et de bien de France, 
 le fils y pouvoit succeder." 
 
 The principle of this decision was adopted as the 
 law of France. According to Le Brun, Traites 
 de Succession ed. 1714, p. 21. " L'on a juge 
 neanmoins qu'un marriage celebre en Angleterre 
 ou la legitimation et suhsequens matrimonium, 
 n'a point lieu ne laissoit pas de legitimer des en- 
 fans ney en France, et c'est la decision de I'arret 
 d' audiences du 21 Juin 1668. Mais c'est quil n'y 
 avoit pas de vice dans le marriage, qui est un con- 
 trat de droits de gens, et qu'il ne s'agissoit que de 
 son efFet a I'egard d'un naturel Francois, et pour de 
 biens de France." 
 
 According to these authorities, it appears to have
 
 TIT. IV. OF FOREIGN AND INTERNATIONAL LAVT. 303 
 
 been established in France, that the status of a 
 party, notwithstanding the residence and marriage 
 of his parents in England, where legitimation *' pe?' 
 suhsequcns matrimon'mnf is not allowed, depended 
 upon the law of France, where the contrary rule 
 obtains ; and that a person might consequently be 
 legitimate in France, and might succeed to honours 
 and lauds there, while he was illegitimate in Eng- 
 land. 
 
 We close this very interesting title, without ar- 
 gument, or observation, by quoting the doctrine on 
 this subject of the enlightened and learned Lord 
 Kames and Mr. Erskine. 
 
 Lord Kames, in his principles of Equity, B. 
 iii. c. 8. \ 1. under the head of covenants and 
 marriages celebrated abroad, after observing that a 
 foreign marriage, if celebrated according to the law of 
 the country where it occurred, would be effectual in 
 Scotland, says, " according to the doctrine here laid 
 down, a child ought with us to be held legitimate 
 by a subsequent marriage, provided the marriage 
 ceremony was performed in a country where such 
 is the law, because marriage in such a country must 
 import the will of the father to legitimate his bas- 
 tard child ; but we cannot justly give the same ef- 
 fect to a marriage celebrated in a country where 
 the marriage, as in England, has not the effect of 
 legitimation ; the reason is, that the marriage in 
 that country is not a proof of the father's will to 
 legitimate. 
 
 Mr. Erskine, on the subject of legitimation of 
 bastards, B. 1 . Tit. vi. § 52. observes, 'Migitimated chil-
 
 304< A DIGEST ON THE LAW OF MARRIAGE, bookie 
 
 dren are those who were born bastards, but have 
 afterwards been made lawful. By the Roman law, 
 children were thus legitimated, either by letters of 
 legitimation from the sovereign at the desire of their 
 natural father, who had no issue lawful, Nov. 89. 
 c. 9. of which afterwards, B. 3. t. 10. or by the 
 subsequent inter-marriage of the mother of the child 
 with him by whom it was procreated. This last 
 kind, though it was not received by our most an- 
 cient customs, Reg. Maj. 1. 2. c. 51. ^ 2. 3. ; cr. lib. 
 2. dieg. 18. § 8. has been adopted into our law for 
 some centuries past, and entitles the children so le- 
 gitimated to all the rights of lawful children ; and* 
 consequently, if they be sons, they exclude, by their 
 right of primogeniture, the sons procreated after 
 the marriage from the succession of the father's he- 
 ritage, though these sons were lawful children from 
 the birth. The subsequent marriage, by which this 
 sort of legitimation is effected, is by a fiction of the 
 law considered to have been contracted when the 
 child legitimated was begotten ; and consequently 
 no children can be thus legitimated, but those who 
 are procreated of a mother whom the father at the 
 time of the procreation might have lawfully marri- 
 ed ; if, therefore, either the father or the mother of 
 the child were at that period married to another, 
 such child is incapable of legitimation. It is a hard 
 doctrine, which is maintained by Voet. Comment, 
 tit. De concub. § 11. that legitimation by a subse- 
 quent marriage has full effect, even to the prejudice 
 of the children of a marriage intervening, betwixt
 
 TIT. IV. OF FOREIGN AND INTERNATIONAL LAW. 305 
 
 the procreation of the bastard and the subsequent 
 marriage by which that bastard was legitimated. 
 Put the case, that a person, after the death of his 
 wife, who left behind her a lawful son of the mar- 
 riage, intermarries with a woman hy whom he had 
 a bastard son prior to his first marriage : the bas- 
 tard being thus legitimated, excludes, according to 
 this opinion, by his right of primogeniture, not only 
 his brothers by the full blood procreated after the 
 marriage of their parents, but the son of the father's 
 first wife ; who, though he was indubitably at 
 his birth his father's only lawful son, is neverthe- 
 less by this last marriage, without the least fault 
 imputable to him, deprived of the right arising 
 from his primogeniture, by an act of his father to 
 which he never consented. But the contrary opi- 
 nion is more agreeable to the analogy at least of the 
 Roman law, d. Nov. 89. c. 9. ; and it would seem 
 that that kind of legitimation is sufficiently favour- 
 ed, when it puts the bastard in the same condition, 
 in a question with his brothers by the full blood, as 
 if the father had been actually married to their com- 
 mon mother at the time of his procreation, though 
 it should not have effects with regard to third par- 
 ties, which tend so much to weaken, and must some- 
 times render quite elusory, the stipulations by which 
 brides secure their own and their children's rights 
 in marriage contracts.
 
 306 
 
 BOOK III. 
 
 TIT. I. 
 OF MARRIAGE IN FACIE ECCLESIiE NOT FOUND. 
 
 In the first book, title 4th, we have given not 
 only a history of our marriage law, and the autho- 
 rities upon which it is grounded, but entered 
 minutely into the forms observed in the per- 
 formance of that ceremony, and moreover noticed 
 the various acts of our church in reference there- 
 to ; and having done so, it would seem super- 
 fluous to repeat in any measure the important points 
 therein noticed, and we now proceed under this book 
 to mark in their order such cases as have been 
 tried and not found to be lawful marriages, although 
 performed in facie ecclesice ; proclamation of banns, 
 and the effects resulting therefrom ; next those cases 
 where antenuptial contractsof marriage were entered 
 into but found effectual, although not signed by both 
 parties, in respect of the subsequent marriages ; then 
 the various ways in which marriage may be esta- 
 blished, viz. by habit and repute — written declara- 
 tions de presenti — verbal declarations de presenti — 
 promise and subsequent copula — written declara-
 
 TIT. I. OF PllOBATIO rilOUT DE JURE. 16'3 
 
 far as we know, has not again been brought for- 
 ward. 
 
 12. An alleged paramour in adultery cannot be ad- 
 mitted to prove bis own and the defender's inno- 
 cence. This was found in the case of Marshall v, 
 Anderson, June 26, 1798, Fac. The judgment of 
 the Court of Session runs in these terms, *' In a 
 process of divorce brought by a husband upon the 
 head of adultery, the alleged adulterer is not a com- 
 petent witness for the defender with regard to the 
 witness's own criminality." But this judgment 
 was reversed upon appeal. And since that period 
 much less jealousy has been observed in situations 
 of this kind. " Thus an action upon a letter of 
 guarantee, where the defence was that it had been 
 forged by the principal debtor, his sister and his 
 natural son were admitted as witnesses for the pur- 
 suer, to prove its authenticity, notwithstanding the 
 interest in point of character which the principal 
 debtor had in the question." Tait's Law of Evi- 
 dence, p. 372. Macdowali v. Kelly, November 15, 
 1806, Fac. Mor. «;oc<? witness, App. p. 2. In this 
 case it was observed on the bench, " The decision 
 in the House of Lords in the case of Hay Marshall 
 has put an end to tlie objection of meiiis 'perjurl'i, 
 and the objection of relation does not apply to the 
 present case, where the witnesses are not related to 
 either of the parties, but to a third person." 
 
 13. In the law of England, indeed, the objection of 
 relationship, excepting always that of husband and 
 ■wife, is never sustained a<rainst the admissibilitv of
 
 164 A DIGEST ON THE LAW OF ]\[ARllIAGE. ijook. n. 
 
 the witness, as it is deemed sufficient that the judge 
 take it into consideration in weighing his credibili- 
 ty. The canon and civil codes more nearly resem- 
 ble our own law, as they exclude relations in the 
 general case, but admit them in matters of an occult 
 or domestic nature. Two eminent Continental 
 lawyers are entitled to consideration. Sanchez, in 
 his disputations de 3Iatrimonio, lays down the 
 principle very broadly with reference to the identi- 
 cal case of clandestine marriages. Lib. .3, De con- 
 sensu clandestine, Disp. 41. § 5, " Ad matrimonii 
 valorem sufficeri quoscunque testes habentes rationis 
 usum, nee desiderari ut habeant qualitates jure re- 
 quisitas ut in aliis Negotiis habiles ac legitirai tes- 
 tes censeantur. Quare sufficit licet sint infames, 
 excommunicati, parentes, consanguinei, servi, fami- 
 liares, faeminae, imo et infideles." For this doctrine 
 he assigns various reasons, " Quia quamvis alias 
 testes sint illegitimi et inhabiles faciunt sufficien- 
 tem fidem nee repelluntur, quando sunt. Instru- 
 mentarii hoc est appositi instrumento ex communi 
 contrahentium consensu sed testes in matrimonio 
 adhibentur communi consensu contrahentium ; Ergo 
 sufficiunt quicunque. 
 
 14. According to this illustration of Sanchez, 
 a written declaration of marriage was produ- 
 ced, the date of which might undoubtedly be 
 competently proved by the brother and sister, 
 had they attested it as instrumentary witnesses. 
 The same learned canonist proceeds to assign 
 other reasons for relaxing the rules of evidence
 
 Tit I. MARRGE. IN FACIE ECCLESI^ ANNULL'D. 307' 
 
 tions cum cojnda, per sequens matrimoniuyn ; — by 
 oaths on reference; — by judicial declarations ; — pro- 
 mise defiituro, without a copula ; — and written de- 
 clarations, held not to constitute marriage. 
 
 But before proceeding to state the cases in facie ec- 
 clesim annulled by the Court, it may be necessary 
 to premise, that in a preceding part of this work, 
 book i. tit. ii. we have brought under consideration 
 the marriageable years of both sexes, viz. that by 
 the law of many countries, the habitus corpoi^is in 
 men is fourteen years, and women are held to be 
 viri potentes at the age of twelve, when they 
 are presumed capable of consent, and able to per- 
 form the duties of marriage.^ And we now 
 proceed to notice the doctrine of our marriage law 
 from our institutional writers, all of whom asrree 
 that a free and unconstrained consent is indispen- 
 sable to marriage ; and we know that the Court of 
 Session, ever guardians to the unprotected, will not 
 allow designing men to impose upon females, even 
 although they exceed the years of pupilarity; for 
 where gross fraud and imposition is employed, no7i 
 Deum seel diaholum esse auctorem conjunctionis. 
 
 Sir George Mackenzie, b. i. tit. vi. § 1, 2, 3, says, 
 " Marriage is defined to be the conjunction of man 
 and wife, vowing to live inseparably together till 
 death. By conjunction here, consent is understood : 
 
 1 In Prideaux's life of Maliomct, we are told that he married one 
 of his wives at five, and consummated at eight. And Montesquieu in- 
 forms, that in India and the hotter parts of Arabia, the marriageable 
 age is eight. 
 
 2 A
 
 308 A DIGEST ON THE LAW OF MAURI AGE. book iu. 
 
 ?iam consethstis^ non coitus facit watrimonium. Con- 
 sent is either de futuro, or de j)rtusenti. Consent 
 de fnturo is a ])romise to solemnize the mar- 
 riage, which in law is called sponsalla, and this is 
 not marriage, for either party may resile, rehtis in- 
 fegrh; notwithstanding the intervening promise, 
 or espousals. Consent de 2yi'<^se7di, is that in which 
 marriage does consist, and therefore it necessarily 
 follows that none can marry, except those who are 
 capable to consent." He proceeds to notice, " that 
 none can marry who have not obtained the use of 
 reason, and that the law in decency requires the con- 
 sent of parents, though a marriage without it is 
 valid, if the persons married be capaUe of consent- 
 ing." Then he mentions the degrees of those who 
 are forbidden in consanguinity and affinity, Levit. 
 chap, xviii. K. James VI. Par. 1. act 1. and he no- 
 tices the modes of contracting marriage, namely, 
 " either regular and solemn, or clandestine. The 
 regular way of marriage is by having their names 
 proclaimed in the church three several times, which 
 we call proclamation of banns ; without which, or 
 a dispensation from the bishop, the marriage is 
 called a clandestine marriage, and the parties are 
 fineable for it," &c. Hence, from this eminent 
 writer's definition and doctrine of marriage, we may 
 infer, that a present true consent is necessary to 
 marriage ; and in reference to age and circum- 
 stances, that the persons giving it are capable of 
 consenting, and that fraud and deception can make 
 no part of a true and deliberate consent, having 
 principle and freedom for its basis.
 
 TIT. I. MARRGE. IN FACIE ECCLESI^. AN:fsnJLL'D. 309 
 
 On this subject, Lord Stair (t. iv. a 1.) says, 
 " Though marriage seem to be a voluntary contract 
 hij engagement^ because the application of it is and 
 ought to be of the most free consent," &c. Again, 
 " It is not ecerij conaent to the marriage state that 
 makes matrimony, but a consent de praeficnt'i^ and 
 not a promise de J'utiiro matrimonio, for this pro^ 
 mise is only the espousals which are premised 
 to marriage ; and that so solemn an act might be 
 wiihdue deliberation. And therefore, though as other 
 promises and pactions espousals are naturally obli- 
 gatory and effectual also by the canon law, yet by 
 the civil law there is place for either party to 
 repent and renounce espousals, which is also the cus^ 
 tom of this nation, for m.arriage uses not to be 
 pursued before solemnization, rebus integris, so that 
 the matter itself consists not in the promise, but 
 in the present consent, whereby they accept each 
 other as husband and wife, whether that be by 
 words, expressly, or tacitly by mutual cohabitation 
 or acknowledgment, or by natural commixion, 
 where there hath been a promise or espousals pre- 
 ceding, for therein is presumed the conjugal consent 
 de praesentiJ" His Lordship further says, " The 
 public solemnity is a matter of order justly intro- 
 duced by positive law for the certainty of so impor- 
 tant a contract, but not essential to marriage. Hence 
 arises only the distinction of public and solemn, and 
 private or clandestine marriages ; and though the 
 contraveners may be justly punished, (as in some na- 
 tions, by the exclusion of the issue of such mar- 
 riages from succession,) yet the marriage cannot be
 
 310 A DIGEST ON THE LAW OF MArvllIAGF.. book hi. 
 
 declared void and animlled, and such exclusions 
 seem very unequal against the innocent children." 
 And the same author says, " that fraud is excepted 
 in all human actions." Upon this eminent writer's 
 doctrine, we may just observe in his own words, 
 that marriage must be effected by the most Jree 
 consent, and with the most due consideration, and 
 that fraud is excepted in all human actions. 
 
 Bankton, after stating that marriage is the foun- 
 dation of the human race and society, which com- 
 menced in the state of innocence, that it well de- 
 serves the first place among natural obligations, and 
 that it is founded in nature and the divine law, and 
 cannot be dissolved by the consent of parties, ob- 
 serves, (B. 1, tit. 5, § 2,) that " Marriage, which in 
 the canon law is termed sponsaUa de jtraesenti, re- 
 quires words importing a present consent to that 
 state. It is the conjunction of man and woman in 
 a constant and perpetual society of life. Marriage 
 is perfected by sole consent, for cojnda, or carnal 
 knowledge, is only the consummation of it." Again, 
 " it is either solemn or clandestine. A solemn 
 marriage is that which is celebrated by a minister 
 of the established church, or one having the benefit 
 of the toleration act, after due proclamation of 
 banns. The act 10, Ann 5, 6, permits all secta- 
 rians in Scotland to meet for religious purposes, in 
 any place they think proper, a parish church or 
 chapel excepted ; and imposes a fine of L.lOO upon 
 those who disturb them, and allows Episcopal 
 clergy in Scotland to pei'form the ceremony of mar-
 
 TIT. I. MARRGE. IN FACIE ECCLESI^ ANNULL'D.311 
 
 riage. Again, at tit. 5. " This ought to be 
 done three several Sundays, in the churches where 
 the parties frequent divine service ; but if they be- 
 long to an Episcopal meeting, it must be done in 
 their congregation, and likewise in the parish church 
 where they reside ; and in case the minister of the 
 church neglects or refuses to publish the banns, it 
 is declared sufficient if done in the Episcopal con- 
 gregation alone. When the parties reside in differ- 
 ent parishes, the banns must be published in both 
 parishes." 
 
 He adds, *' But the public solemnity is only a 
 matter of order, and not essential to marriage ; and 
 therefore, by our law, not only a marriage solemn- 
 ized by any minister or priest is good, but likewise 
 cohabitation as man and wife sufficiently ascertains 
 the marriage, if not called in question during their 
 joint lives." Hence, we may justly infer from this 
 learned author, that marriage is perfected solely by 
 free unfettered consent, or, that which implies con- 
 sent, cohabitation as man and wife, not called in 
 question during the joint lives of the parties. 
 
 To the like purpose Mr. Erskine (B. 1. tit. 6. 
 § 3.) lays it down, that " marriage is seldom con- 
 tracted without previous espousals, or a promise of 
 marriage, called by the Romans, sponsalia, or stipu- 
 latio sponsaUa, but these are quite distinct from 
 the marriage itself, which requires present consent. 
 The written antenuptial contracts, therefore, in use 
 with us do not constitute marriage j;er se, though 
 there still seems to import a consent dc jyruescntihx
 
 312 A DIGEST ON THE LAW OF MAIIRIAGE. bookiii. 
 
 the following words, * we take one another for our 
 lawful spouses.* Yet the obligation which is imme- 
 diately subjoined, to solemnize the marriage in the 
 face of the church, shows that the parties do not 
 hold the contract jjerfected till that ceremony is 
 performed." Again, " By the custom of Scotland 
 'all promises of marriage, whether more private or 
 more solemn, contained in written contracts, may, 
 in the general case, be resiled from, which proceeds 
 from our close adherence to the rule, matrimonia 
 dehent esse libera, and from the consideration of the 
 fatal consequences which often attend forced mar- 
 riages." Again, the same respectable and learned 
 author lays it down, B. 3, tit. 1, § 16, that where 
 there is fraud or dole there can be no marriage. 
 
 Baron David Hume, so well known for his learn- 
 ied commentary as our highest authority on crimi- 
 nal law, and who, for so many years, filled, with so 
 much distinction, the Scottish law chair in our 
 Edinburgh University, in his answers to the inter- 
 rogations addressed to him for the information of 
 the Court in England, in the Ualrymple case, lays 
 down our law on the same head in the following 
 terms, " In Scotland marriage is considered as an 
 ordinary civil contract, which is completed by the 
 interposition of the consent of the parties, provided 
 this take place unequivocally, seriously, and delibe- 
 rately, and with a genuine purpose immediately to 
 establish the relation of husband and wife, and not 
 to engage only, or betroth themselves to marry ajt 
 some future time, A marriage may thus eft'ectual-
 
 TiT.i. MAUllCJE. INFACIE ECCLESl^E ANNULL'D. fi I 3 
 
 ]y be made in Scotland without the form of celebra- 
 tion by a clergyman, and without the use of any 
 precise ceremony or solemnity, even of a civil na- 
 ture, and in any way wherein the explicit and ma- 
 ture consent of parties is gravely exchanged. As 
 to the evidence of the proper matrimonial consent 
 having passed between the parties, the practice of 
 the law of Scotland is not limited by strict or scru- 
 pulous rules, but allows the fact to be vouched or 
 inferred by sundry modes of evidence, by public co- 
 habitation under the character, or as it is termed, 
 the habit and repute of man and wife, by writings 
 of mutual acceptance as spouses de praesetiti, by 
 mutual written declarations or acknowledgments of 
 marriage, by a series of letters, such as, in their 
 contents and modes of address and subscrij)tion, 
 either express or virtually imply an acknowledg- 
 ment of marriage ; by verbal declaration, also, be- 
 fore a magistrate, or made on some serious and 
 suitable occasion, before creditable witnesses, called 
 by the parties for that purpose.'* 
 
 In the true sense, then, of these eminent writers, 
 it must be held, that marriage has for its basis a 
 free and deliberate consent, and cjinnot be brought 
 about by force, fraud, and deceit ; and in the words 
 of Mr. Erskine, it must be conformable to the rule, 
 matrimouia dehent esse Uhera, from tlie consider- 
 ation of the fatal consequences which (t/ten attend 
 forced marriages. 
 
 In further confirmation of our doctrine, that mar- 
 riage nuist be free and unconstrained, we will next
 
 314 A DIGEST ON THE LAW OF MARRIAGE, book hi. 
 
 attend to some important decisions of our Supreme 
 Court, and particularly to those of Gumming v. 
 Nevin, Cameron v. Malcolm, and Allan v, Young. 
 In all of these it is remarkable, that although they 
 were celebrated hy ministers of our estahlished 
 church, they were, notwithstanding, set aside, on the 
 ground of undue itijluence and Jraud, practised up- 
 on young ladies by designing men. 
 
 And to these we shall add the noted case of the 
 Lord Advocate v. Robert Macgregor, distinguished 
 in history by Sir Walter Scott, our celebrated Scot- 
 tish bard. 
 
 The first is the oldest, and perhaps the most 
 diabolical of the rest ; and for an example, the mar- 
 riage was annulled, and the man was sentenced to 
 stand at the pillory, with his ear nailed to the tron. 
 (The tron, in those days, was a stone pillar, situat- 
 ed in the most public place of a town, where attro- 
 cious crimes were more particularly marked, by ex- 
 posure of the perpetrator with an iron chain about 
 his neck, and then banished.) As the report of the 
 case given by the learned Lord Fountainhall is 
 short, we shall introduce it verbatim. 
 
 1. Miss Cumming v. Nevin, March 6, 1688 ; 
 Fountainhall. 
 
 " One Nevin, a musician in Inverness, is pursued 
 for deceiving one of his scholars, a lass of twelve 
 years old, called Cumming, a minister's daughter, 
 and marrying her, and getting a country minister 
 to do it, by suborning one to call himself her bro- 
 ther, and to assert to the minister that he consent- 
 ed. This being an abominable imposture and theft,
 
 TIT. I. MARRGE. IN FACIE ECCLESI^ ANNULL'D. 315 
 
 and a perfidious treachery, having a complication of 
 villaiiies in it, he was sentenced, for an example, to 
 stand at the pillory, with his ear nailed to the tron, 
 and then to be banished, which was done. The 
 Privy Council also declared the marriage to be void 
 and null ah initio, as procured by fraud, without 
 sending them to the Commissary Court ; and fur- 
 ther declared the maid's reputation to he untainted 
 hy the fact. 
 
 So flagitious was this crime considered, that, ac- 
 cording to the note subjoined to the report, it ap- 
 pears that the Pope of Rome, perhaps in reference 
 to it, passed a bull or edict, discharging any man 
 to teach music, or other arts, to women in Rome. 
 The words are, " The present Pope Innocent II. 
 has made a very just rule, discharging any man to 
 teach nmsic, or other arts, to women in Rome, and 
 allows them to be taught only by some of their own 
 sex." 
 
 2. The next case is that of Cameron v. Miss MaU 
 cohn, June 29, 1756, Mor. 12,680, reported by Lord 
 Kames, where it will be found, that our Court of 
 Session, ever guardians of minors, will not allow de- 
 signing men to impose upon females, even although 
 they exceed pupillarit}^ 
 
 The parties were extremely young. The young 
 man had just turned fourteen years, and the 
 girl was not much more than twelve. A plot 
 was set agoing, and carried into effect, by the 
 father of the young man, to marry the girl, who 
 liad a large fortune, to his son, although it turned 
 out that he had very little acquaintance with her,
 
 316 A DIGEST ON THE LAW OF MARllIAGE. book hi. 
 
 and that the whole was a gross imposition on the 
 part of the father, who went the unjustifiable length 
 to bribe a woman to swear to an antecedent court- 
 ship, which is demonstrative evidence that there 
 was a defect in the celebration of the marriase. 
 
 The case being brief, we present it verbatim. 
 
 " Cameron of Kinnard, living in the neighbour- 
 hood of Mrs. Malcora, widow of James Malcom, 
 merchant, cast his eyes upon her daughter, Miss 
 Malcom, a considerable fortune, as an advantageous 
 marriage for his son. The two families set out to- 
 gether from Fife, in order to pass the winter in 
 Edinburgh. Upon their landing at Leith, Mrs. 
 Malcom and her dauc^hter were invited to the house 
 of Mrs. Cusins, Kinnard's mother-in-law. They 
 supped there ; and after supper, without any pre- 
 vious concert, a minister was brought in by Mr. 
 Cameron, in order to marry his son to Miss Mal- 
 coin, at that time just turned twelve years of age. 
 The mother, for what reason was not known by the 
 witnesses, left the room ; the ceremony went on, 
 and was completed ; and the marriage-lines were 
 subscribed by Miss Malcom as well as by young 
 Cameron. After this the mother returned, and, a 
 bedding being proposed, she struck out ; whether 
 dissatisfied at what had been done, or thinking her 
 daughter too young, is uncertain. This occasioned 
 a sort of squabble among them. The mother and 
 daughter went home in a sort of pet, and from that 
 time refused to stand by the marriage. The Com- 
 missaries, upon a declarator of marriage brought
 
 TIT, 
 
 I. MARRGE. IN FACIE ECCLESI^ ANNULL'D. 317 
 
 before them, found t?ie marriage proven. This oc- 
 casioned an advocation on the part of Miss Malcolm, 
 in which the Court of Session were of a different 
 opinion. They remitted to the Commissaries to as- 
 soilzie from the declarator of marriage, and to find 
 Cameron, the pursuer, liable in expenses. This was 
 an extreme nice case. That the ceremony of mar- 
 riage was performed, is certain ; nor was any force 
 proved, or even alleged, sufficient to render the ce- 
 remony ineffectual ; and, if there was a marriage, 
 however irregular and improper, it was not in the 
 power of any Court to give redress. The Court, 
 however, moved with indignation at so gross a 
 wrong, gave the above-mentioned judgment, upon 
 sentiment rather than upon principle. The only 
 legal footing it can stand on seems to be what fol- 
 lows : A girl of twelve years of age is, no doubt, 
 capable of marriage ; but then a girl of that age is 
 extremely susceptible of undue influence, and to be 
 unjustly trepanned ; a marriage of this circumstance 
 requires more accurate evidence of consent than is 
 necessary between adult persons. The present case 
 is similar to that of a testament on death-bed. A 
 bare subscription in liege potcstie is sufficient, but 
 i7i extremis a proof is required of orders given by 
 the testator to write the testament, or at least that 
 it was read over by him before subscription. In the 
 present case, the parties went to Cusin's house, with- 
 out any design of marriage ; 2d, the mother not 
 present at the celebration ; 3d, a squabble tlie mo- 
 ment the ceremony was over, and some evidence ot
 
 318 A DIGEST ON THE LAW OF MARllIAGE. book hi. 
 
 repentance on both sides ; 4th, proved upon old Ca- 
 meron, that he endeavoured to bribe one Mally Hay 
 to swear an antecedent courtship, which presumes 
 he was conscious of some defect in the celebra- 
 tion of the marriage. These circumstances laid 
 together, may justly infer a suspicion that matters 
 were not carried on so as to make an effectual mar- 
 riage, and therefore, in a case of this extraordinary 
 kind, the Court, I think, took the safest to refuse 
 to give their sanction to this marriage." 
 
 The next case to which we would arrest atten- 
 tion has a near resemblance to that of Cummins v. 
 Nevin. In both cases the men were teachers of 
 youth, and the girls taught by them were under 
 their influence. 
 
 S, William Allan v. Ann Young, decided in 
 1773-4, not collected ; but we are fortunately pos- 
 sessed of a printed paper in the cause, drawn by an 
 able lawyer, afterwards an enlightened judge, from 
 which we are enabled to give the following brief 
 state of it : 
 
 The question originated in the Commissary Court, 
 at the suit of Allan, a teacher of languages in Edin- 
 burgh, against Ann Young, a girl just turned twelve 
 years of age, who had a considerable fortune. Allan 
 had contrived to gain such an influence over the 
 mind of the girl, who was one of the children at 
 school, as to persuade her to go through the cere- 
 mony of marriage, and to assert that she was fifteen 
 years of age. There was produced, under the hands 
 of the session-clerk, a regular certificate of procla- 
 
 4
 
 TIT. 1. MARRGE. IN FACIE ECCLESIyE ANNULL'D. 319 
 
 mation of banns ; and the Rev. Mr. James Brown, 
 a pious divine, and one of the ministers of the city 
 of Edinburgh, performed the ceremony of marriage, 
 after conversing se})arately with the parties, and ex- 
 plaining the nature of the ceremony which was about 
 to be performed. After performance of the cere- 
 mony, an attempt was made to consummate the 
 marriage, but it was prevented ; and the instant it 
 was discovered, the girl was taken home by her mo- 
 ther. But Allan had the effrontery to bring a de- 
 clarator of marriage before the Commissaries, for 
 establishing his alleged right of husband. In this, 
 however, he proved unsuccessful, both by the Com- 
 missaries and the Court of Session, on the grounds, 
 inter alia, of the extreme youth of the girl, and the 
 deception, undue influence, and fraud which had 
 been practised by Allan to obtain her consent. 
 
 4. In farther vindication of the same doctrine, we 
 may with much propriety notice the trial and sub- 
 sequent final punishment of Robert Macgregor, the 
 son of the well known Rob Roy. 
 
 He was indicted before the High Court of Jus- 
 ticiary at Edinburgh, on the 24th December 
 1753, for the crimes of hamesucken, ravishing, 
 forcible abduction, and the carrying away of 
 Jean Key, aged 19, daughter and sole heiress 
 of the deceased James Key, portioner of Edin- 
 belly, and relict of John Wright of Easter Glenns, 
 with whom she had been married only about 
 two months, and other crimes at length men- 
 tioned in the indictment, raised ajrainst hijn on the
 
 320 A DIGEST ON THE LAW OF MARRIAGE, book nr. 
 
 6th August preceding. He underwent a fair trial, 
 and although Jean Key declared, when examined 
 by Henry Home, Esq. thereafter Lord Kames, that 
 however matters had been carried on, she was now 
 absolutely reconciled to her husband, loved him, 
 and was thoroughly satisfied with her present situ- 
 ation ; yet the Court would not pass from the high- 
 est punishment of the law ; and the son of Rob Roy 
 suffered a capital punishment at the Grassmarket of 
 Edinburgh, on the 6th February 1754, having pub- 
 licly acknowledged his crimes. Vide the trials of 
 James, Duncan, and Robert Macgregor, three sons 
 of Rob Roy, printed at Edinburgh in 1818. 
 
 Under the preceding title we regret to have 
 omitted the noted case of M'Gregor v. Mary Black 
 M'Niell, and Jolly et e contra^ where the first mar- 
 riage of M'Gregor v. M'Niell, in facie ecclesice was 
 annulled, and the second, of Jolly v. M'Niell in 
 facie eccUsice, was sustained in the House of Peers. 
 But we shall give it under another title, namely. 
 Competition of Husbands for Wives.
 
 321 
 
 BOOK III. 
 TIT. II. 
 
 OF PROCI-AMATION OF BANNS AND RESULTS. 
 
 It must be of no vslight consequence to know with 
 accuracy at what period women come under the cu- 
 ratory of their husbands, previous to their actual 
 marriage. This is a point in the ancient and con- 
 suetudinary law of this country, apparently intro- 
 duced not by any old statute, but simply from the 
 reasonableness and propriety of the rule, that a 
 husband's curatory is held to extend not merely to 
 the date of the marriage, but to draw back for a 
 certain previous time, which is generally understood 
 to be at the proclamation of banns. This period 
 seems to be selected, because the intended marriage 
 is from thenceforth to be presumed to be known to 
 the Av^orld. 
 
 Hence contractions by a bride, with all and sun- 
 dry of the lieges, after the j)roclamation of banns, 
 v/hether known to the creditors individually or 
 not, are null and void, in so far as the female is 
 concerned, although they form good obligations 
 against the future husband. But by the same rule, 
 and on far stronger considerations of propriety and 
 justice, must a contraction be void, wlien obtained
 
 332 A DIGEST ON THE LAW OF MARRIAGE, book hi. 
 
 by a party from a woman whom he specially knows 
 to be under an obligation to marry another, and 
 when the obligation is a mere guarantee for an old 
 debt of the future husband. 
 
 The pi'inciple is expounded by Mr. Erskine, b. i. 
 tit. vi. § 22. " The rule," (says this learned wri- 
 ter), " that wives are under the curatory of their 
 husbands, is applicable even to brides : for though 
 a bride be truly sni juris, while she continues un- 
 married, yet, on her actual marriage, the husband's 
 curatorial powers draw back to the time of pro- 
 claiming the banns, after which the bride is disa- 
 bled from contracting debts, or granting deeds, not 
 only to the prejudice of her future husband, but her 
 own ; she cannot, therefore, after the proclaiming 
 of banns is begun, contract any debt, which will be 
 effectual either against herself, or the bridegroom ; 
 nor can she dispose of any part of her estate, in do- 
 nation, or even as a provision to her children of a 
 former marriage, without his consent, Dirl. 13 ; 
 though he cannot properly be said to suffer preju- 
 dice by such provision or donation, since he is 
 brought under no obligation to pay, and only loses 
 the hope of what might have otherwise been his 
 upon marriage. Yet it is not sufficient for this 
 purpose, that the banns have been published at the 
 bridegroom's parish church ; for no notification, by 
 publishing banns, can interpel a person from con- 
 tracting with any woman, unless it be made within 
 the parish church where she herself dwells. Be- 
 sides, banns ought to be published in the specific
 
 TIT. II. OF PROCLAMATION OF BANNS. fJ23 
 
 terms of law; the law refers to the order of the 
 church, 1651, cap. 34. and the church has required 
 their publication in the parish churches, both of the 
 bridegroom and of the bride. Supra, § 10, July 8, 
 1623, Macdougal. But if the person contracting 
 with the bride knew, before executing the deed, 
 that her banns were proclaimed in a church, though 
 not that of her own parish, such private knowledge 
 is, in the judgment of the law, accounted an inter- 
 pellation with respect to him." 
 
 Here it is clearly laid down, as well as by all the 
 other institutional writers, that after the proclama- 
 tion of banns, the bride can do no act, either to the 
 prejudice of herself, or that of her promised hus- 
 band. But the proclamation of banns is by no 
 means an established requisite. The knowledge of 
 the relative situation of the parties is sufficient to 
 put any contracting party in mala fide in transact- 
 ing with the bride, even although the obligation 
 come under was an onerous obligation. If the 
 parties have come under an obligation of marriage, 
 that agreement of marriage is tantamount to the 
 proclamation of banns, and more especially when 
 such obligation is formally constituted by a regular 
 written instrument. 
 
 This is no new doctrine, but it is derived from 
 old and established authority, and so it was found 
 in the case of Auchinleck v. Gillespie, 18th Decern. 
 1667, reported in the Dictionary, v. i. p. 441. Here 
 there was no proclamation of banns, neither had 
 there been a written contract ; but the obligation to 
 
 2 E
 
 324 A DIGEST ON THE LAW OF MARRIAGE, book in. 
 
 many was recited in a tack granted to Gillespie, 
 not by Auchinleck the pursuer, but by his elder 
 brother, in contemplation of his marriage with Mary 
 Williamson. After coming under the agreement of 
 marriage, Mary Williamson assigned to her second 
 son by a former marriage, certain lands in which 
 she had a liferent. Her marriage with Gillespie 
 did not take place for some months thereafter. 
 John Auchinleck, as assignee of his mother, after- 
 wards pursued Gillespie under his mother's assig- 
 nation ; but the Lords, though there were neither 
 proclamation of banns, nor contract of marriage 
 between the parties, sustained the defences, and 
 dismissed the action, holding the tack to Gillespie 
 as sufficient evidence of the aoreement of the mar- 
 riage betwixt the parties. In short, she is her own 
 mistress before the proclamation of banns : her 
 husband's powers draw back to that period ; but 
 after proclamation of banns her powers cease, and 
 she is in the same state as if actually married. 
 
 On these grounds and principles, we proceed 
 very briefly to quote the decisions as applicable to 
 the proclamation of banns, although many of them 
 are of ancient dates, but derived from high autho^ 
 rities. 
 
 1. Sioyne v. Sioyne, 7th June 1605, Hadd. Die. 
 vol. i. p. 404. 
 
 After proclamation of banns the bride can grant 
 no gratuitous deed to the prejudice of her future 
 husband. 
 
 2. And to the same purpose the decision in the 
 case of Fletcher v. noticed by Auchinleck,
 
 TIT. II. OF PROCI-AMATION OF BANNS. 325 
 
 was pronounced, 5th July 1611, Die. vol. i. p. 404, 
 Mor. 6029. 
 
 3. M'Dugall V. Aitken, 8th July 1623, Die. p. 
 404. Durie, 70. Mor. 6027. 
 
 Janet Stewart, reliet of James Stewart, called of 
 Jerusalem, by her bond given to John Aitken, lit- 
 ster in Edinburgh, as cautioner for his father, is 
 bound to pay, as cautioner foresaid, the sum of 500 
 merks ; this bond is desired to be reduced, at the in- 
 stance of Andrew M'Dugall, her second spouse, up- 
 on this reason, because the same was made by her 
 after she was contracted in marriage with the said 
 Andrew, and after the bonds of marriage were pro- 
 claimed in the paroch church of Inch, in the west 
 country, which the said Andrew, the pursuer, his 
 paroch church, so that, after that cont^jact and pro- 
 clamation, she could do no deed that might prejudge 
 her or the pursuer, now her husband, with whom 
 she was then contracted, without his consent. The 
 Lords found this reason not a relevant cause, which 
 could take away the bond, or prejudge the creditor 
 of his lawful debt, seeing the bond controverted was 
 made in the town of Edinburgh, where it was al- 
 leged by the defender that tlie said Janet Stewart 
 dwelt and remained at the making thereof, and a 
 year before ; and her private contract of marriage 
 could not prejudge the defender, who knew not the 
 same ; neither ought the proclamation of the bonds 
 of marriage, albeit made before the obligation li- 
 belled, to prejudge him, being made only at the pa- 
 rish^church of the Inch, and not within the church
 
 326 A DIGEST ON THE LAW OF MARRIAGE, book ih. 
 
 of Edinburgh, where both she and the defender 
 then dwelt. Likeas, the defender offered to prove, 
 that the said Janet, by the space of a month after 
 the date of the bond, gave up her bonds of marriage 
 with the said pursuer, to be proclaimed within the 
 church of Edinburgh. This allegiance was found 
 relevant, and admitted by the Lords for eliding of 
 the foresaid reason. 
 
 4. Scott V. Brown, 29th Jan. 1633. Die. v. i. 
 p. 404. Durie, Auchinleck, fol. Die. 104. 
 
 Mor. 6030. 
 
 In a pursuit against one Scott and her husband 
 for his interest, for payment of L. 100, contained in 
 a bond given by her in her widowhood. The hus- 
 band alleging the bond to be null because it was 
 given by this defender, now his wife, (albeit then 
 being a widow,) yet it was granted after her bonds 
 of marriage with this defender, the second husband, 
 were proclaimed publicly in the parish church, and 
 marriage was completed after the said proclama- 
 tions were ended immediately, so that she could do 
 no deed after that proclamation, which might 
 oblige her husband. This allegeance was found re- 
 levant, and received summarily against the bond, 
 without necessity of reduction. 
 
 5. Lady Bute and Husband v. her Son, 5th Jan. 
 1666. Gilmour, Stair, Die. v. ii. p. 405. Mor. 
 6030. 
 
 Dame Grissel Campbell, relict of the Sheriff of 
 Bute, after she was contracted in marriage with Mr. 
 Archibald Grahame, now her second husband, and
 
 (IT. II. OF PROCLAMATION OF BANNS. 327 
 
 after she was proclaimed with him in the parish 
 kirk, granted a renunciation of a part of her life- 
 rent lands in favour of her son, this Sheriff, (the 
 rest unrenounced being but very mean,) whereof 
 she, with consent of her husband, intents reduction, 
 upon this reason, that she could do no deed after 
 she was contracted and proclaimed, without her 
 husband's consent, no more than if she had done it 
 at the time of the marriage, — which the Lords 
 found relevant, notwithstanding of any thing al- 
 leged to the contrary, and specially, that her hus- 
 band, before the solemnization of the marriage, 
 knew of the granting of the renunciation, and said 
 nor did nothing against the same. 
 
 6. Gillespie v. Auchinleck, 18th Dec. 1667. Stair, 
 Dirl. Die. v. i. p. 405. Mor. 1633. 
 
 A widow lady having a jointure, entered into a 
 treaty of marriage with a second husband, and 
 among other articles, it was settled, that the eldest 
 son, who was burdened with a liferent, should 
 grant a tack to the intended husband, of the life- 
 rented lands, to endure for a year after the mother's 
 decease, in case of the man's survivance ; at the 
 same time, she privately disponed her liferent in 
 favours of her second son ; and the marriage hav- 
 ing taken effect without any formal contract or 
 proclamation of banns, the Lords were of opinion, 
 — That this latent disposition was a gross fraud 
 upon the wife's part, seeing the marriage was enter- 
 ed^into with the declared view of the jointure, in 
 so much, that a provision was made for the hus-
 
 328 A DIGEST ON THE LAW OF MAURIAGE. book ill. 
 
 band's enjoying the jointure for a year after her 
 decease. It likewise occurred, that a gratuitous as- 
 signation not intimated, could not prejudice the 
 husband, whose J71S mariti being a public right, re- 
 quires no intimation. 
 
 7. Grant and Gilchrist v. Pringle, March 1682, 
 Home, vol. i. p. 404. Mor. 6032. 
 
 A gratuitous bond, made by a woman after she 
 was contracted, and the banns proclaimed, in her 
 future spouse, his parish church, was sustained, be- 
 cause the bond was given six weeks before she 
 gave up her name to be proclaimed in the parish 
 where she had dwelt a year before. 
 
 8. M'Lellan v. M'Lellan and Mitchell, 3d July 
 1622, Hadd. Durie, Die. v. i. 404. Mor. 6028. 
 
 In a process of reduction at the instance of the 
 husband and wife, of a gratuitous disposition grant- 
 ed by the wife, the Lords sustained the reasons of 
 reduction. That the disposition was granted after 
 the parties were twice proclaimed in the church of 
 Leith, the parish church where the husband dwelt, 
 though the wife had her domicile in the Canongate, 
 the receivers of the disposition having de recenti, 
 been communers in the treaty of marriage between 
 the parties, and found it not relevant to elide the 
 same. That the wife, at granting the disposition, told 
 the treaty was broke up, the marriage having fol- 
 lowed quickly after. 
 
 9. Beveridge v. Bayne, &c. 26th June 1765, 
 
 Fac. No. 19. Mor. p. 8914. 
 
 3
 
 TIT. II. OF PROCLAMATION OF BANNS. 329 
 
 Kirk beadles are entitled to their customary dues 
 at proclamation and baptisms even from dissenters. 
 
 The kirk-session of Dunfermline, by an act 23d 
 January 1681, ordained, *' that whosoever in that 
 parish should give up their names to be proclaimed 
 for marriage should give half a dollar to the poor 
 before their proclamation." This act was renewed 
 8th November 1719, upon a narrative that the cus- 
 tom of paying the above sum was much worn out. 
 
 The pursuer, authorized by the kirk-session, 
 brought an action before the Sheriff, against the de- 
 fenders, all dissenters of different denominations, 
 and mostly seceders, for payment of this sum, found- 
 ing his claim upon the acts of the kirk-session and 
 use of payment. As to the last, the Sheriff allow- 
 ed a proof to both parties. The pursuer limited 
 his to the period from 1718 to 1738, L e. from the 
 date of the last act of the kirk-session to the seces- 
 sion. It appeared from the proof, that the use of 
 payment had been pretty general, though not uni- 
 versal ; that the kirk-session, on account of the re- 
 luctance of the parishoners, had resolved to accept 
 what they would voluntarily give ; that numbers 
 had paid less than the half dollar, and many, though 
 people of substance had paid nothing. 
 
 The Sheriff having given judgment for the pur- 
 suer, the cause was brought into this Court by ad- 
 vocation, and after a hearing was taken to report. 
 
 The pursuer contended, that by common and 
 universal custom over Scotland, small sums, in some 
 parishes more, in some less, were paid to the kirk-
 
 330 A DIGEST ON THE LAW OF MARRIAGE, book m. 
 
 session, for behoof of the poor, on occasion of pro- 
 clamation of banns for marriage ; that the exaction 
 of such sums had been authorized by a decree of 
 this Court, 1746, in a case between the kirk-session 
 and seceders in the parish of Falkirk, of which, as 
 it is not in any printed collection of the decisions, 
 proof was produced in process. The sum here de- 
 manded is very moderate, but one-half of what was 
 found due in the case of Falkirk. 
 
 Answered for the defenders — this imposition is 
 illegal, irrational, and impolitic. Illegal, for kirk- 
 sessions have no power to impose taxes of any kind ; 
 irratiofialy being a constrained charity ; impolitic, 
 being a tax upon the marriages of the poor ; that 
 being the case, it cannot be sanctified by use of 
 payment for any length of time. Besides, the plea of 
 immemorial use is excluded by the act of the kirk- 
 session 1719, as well as by the parole evidence : that 
 of Falkirk is but a single case, and differenced from 
 this, in that immemorial usage was there proved. The 
 pursuer's claim cannot be supported from the small- 
 ness of the sum ; because, if the kirk-session may 
 impose half a dollar, there appears nothing to hin- 
 der them from increasing the imposition to what 
 sum they please. 
 
 The Lords sustained the defences. The pursu- 
 er's libel also concluded for payment of certain dues 
 ^ to the kirk-beadles on occasion of marriages and 
 baptisms, founding this claim likewise upon an act 
 of the kirk-session, and immemorial usage. 
 
 Argued for the defenders : These dues are only 
 
 \
 
 TIT. II. OF PROCLAMATION OF BANNS. 331 
 
 paid as a recompense for the beadle's trouble in at- 
 tending at marriages, when solemnized by the pa- 
 rish minister, and for setting water, furnishing clean 
 towels, &c. at baptisms when administered in the 
 parish church ; and, as the beadles are not put to 
 this trouble by the defenders, they have no claim 
 for the recompense. The act of the kirk-session is 
 no good foundation for this claim : for the session 
 have no power to impose taxes, neither can the 
 pursuers derive any aid from common usage in this 
 case ; on the contrary, that is in favour of the de- 
 fenders, as hitherto these dues have been consider- 
 ed only as a recompense, and never exacted but 
 when the service was performed. They have never 
 been exacted from any species of dissenters through 
 the kingdom ; and, even when a person of the esta- 
 blished persuasion had occasion to apply to the mi- 
 nister of a neighbouring parish for marriage or bap- 
 tism, it was the beadle of that parish who got the 
 dues, and not the beadle of the parish where the 
 person resided. 
 
 Answered for the pursuer : Kirk-sessions are a 
 part of the church government expressly authorized 
 by law. As such, they are entitled to have their 
 proper officers, and to ordain for these such dues 
 and perquisites as may seem reasonable, in their re- 
 spective parishes. 
 
 Whether the defenders are entitled to the benefit 
 of the toleration may be questioned. But, suppos- 
 ing they are, the law certainly never meant to to- 
 lerate them in withholding of those small dues ne-
 
 332 A DIGEST ON THE LAW OF MARRIAGE, book iif. 
 
 cessary for their preservation of order, or the pay- 
 ment of those officers which the constitution of the 
 church, as by law established, has found expedient 
 and necessary. 
 
 This point was also struggled by the seceders of 
 Falkirk, in the case above mentioned, and deter- 
 mined against them. 
 
 The Lords found the beadles entitled to the dues 
 claimed by them.
 
 333 
 
 BOOK III. 
 
 TIT. III. 
 OF ANTENUPTIAL CONTRACTS OF MARRIAGE. 
 
 Having, in the preface to the preceding title of 
 Proclamation of Banns, stated the legal effects re- 
 sulting therefrom, and adverted to the authority of 
 Erskine, b. i. tit. 6, § 22, we deem it unnecessary 
 under this head to do little more than refer to the 
 passage of the same author for an illustration of 
 this title. 
 
 On this subject Stair observes, tit. iv. § 13, " So also 
 a contract of marriage was found valid against the hus- 
 band's heir, though the marriage was never solemniz- 
 ed in kirk nor congregation. Hope, tit. Husband, &c. ; 
 William Barclay contra Anno. Napier. The like found 
 to exclude the bastardy of the children, by the fa- 
 ther and mother's being reputed married, and keep- 
 ing house and society together, for several years ; 
 Nicolsoti, cle Agnoscendis Uberis, Brok contra 
 
 ; but the contrair was found where it was 
 positively proven that the defunct had another wife ; 
 ibid., Archibald Cliirnside contra Isobel Grieve and 
 John Williamson. So likewise, in the former case,
 
 334 A DIGEST ON TFIE LAW OF MARRIAGE, book iii. 
 
 a contract of marriage was found valid, and the 
 man thereby obliged to solemnize the marriage, 
 seeing he had procreate children with the woman, 
 and by his missives had acknowleged he had mar- 
 ried her, though by a contract posterior to the con- 
 tract of marriage, she had renounced the same, 
 Nicol de sponscdibus, Barclay v. Janet Kelly ; But 
 where a man by his write had acknowleged, that 
 such a child was got under promise of marriage, 
 and promised to solemnize the same, yet the Lords, 
 on the man's allegeance that the woman had borne a 
 child to another, and her answer that it behoved to 
 be presumed his, would not sustain that presump- 
 tion, without instructing their conversing together, 
 medio tempore^ January 31st, 1665, Christian Bar- 
 clay V. George Baptie. It was also found lately 
 relevant for validating a contract of marriage, six- 
 teen years cohabitation and being repute man and 
 wife, Elizabeth Grierson v. Laird of Craigdarroch. 
 
 Dirleton, under the word sponsalia^ states the 
 following question ; " If after a solemn contract of 
 marriage one of the parties marry otherwise, will 
 that marriage be lawful, even though after banns 
 upon the said contract of marriage ? Answer, con- 
 tracts of marriage and sponscdia inducunt jus ad 
 renh as in other personal contracts, and dispositions 
 anent lands ; but not in re sine traditione ; which in 
 marriage is only when sequitur henedictio in facie 
 ecclessice or concuhitus. — If sponscdia be consum- 
 mate and purified per copidam, and a pursuit being 
 intented for solemnizing the marriage and declaring
 
 TIT. III. OF ANTENUPTIAI. CONTRACTS. 33.5 
 
 the issue lawful, the defender die in the interim, 
 may the pursuit be transferred in favours of the 
 wife and children, ad hiuic effectum at least, that 
 she may \\^\q jus relictce, and they be heirs and ex- 
 ecutors of their father? I^adem est qucest'to as to 
 promise and copula." 
 
 And Sir James Stewart also, in his answers, says 
 *' After a solemn contract of marriage, and a pro- 
 clamation likewise, parties maij resile. And actual 
 marriage is only when celehrate per verha de prae- 
 senti, or when concuhitus follows. 
 
 When spo)isalia or promise of marriage is con- 
 sunnnate per copulam, and a pursuit intended for 
 solemnizing and declaring the issue lawful, though 
 the defender die, the i)ursuit may be transferred in 
 favours of the relict and children to have that mar- 
 riage declared ; and to sustain their rights." 
 
 1. Campbell v. Campbell, 15th December, 1664. 
 Gilmour, p. 87 — and Newbyth Mor. 5684. 
 
 By contract of marriage betwixt Alexander Camp- 
 bell and James Campbell, the deceased Alexander 
 as principal, and certain persons as cautioners for 
 him, are obliged to pay to the said Janet yearly the 
 sum of 80 lib., whereupon she intents action against 
 the cautioners for payment. It was alleged that 
 the contract quoad the cautioners is null, being 
 only subscribed by one Notar. Ansicered^ that 
 marriage having followed, it homologates the con- 
 tracts, and sui)plies the defect of two Notars. lie- 
 plied, that the subsequent marriage might supply 
 the defect of a necessar solemnity, quoad the prin-
 
 \^ 
 
 336 A DIGEST ON THE LAW OF MARRIAGE, bookiii. 
 
 cipal party contractor, but not quoad the cautioner, 
 and for this some old practiques were alleged. 
 
 2. Graham and Erskiue v. Bul^'n, 2d January 
 1685. Fount. 1. 328. Mor. 8472. 
 
 " A tenant of my Lord Panmuir's enters into a 
 
 contract of marriage with a woman called under 
 
 a penalty, and afterwards he deserts the bargain and 
 refuses to accomplish it ; she pursues him for 200 
 merks of penalty at least for damage and interest, 
 in so far as she was put to expense in entertaining 
 his friends and taking off bridal clothes, &c — The 
 Lords, though they found matrimonia debent esse 
 libera^ and that there is a locus poenitentiae ; yet 
 under that pretence one ought not to be damnified, 
 therefore they admitted her expense to probation ; 
 and she having proven that she was put to L.80 
 Scots, of charges eo nomine ; the Lords, at the ad- 
 vising for that expense, and for her loss of the 
 market, modified L.lOO against him, in regard 
 especially that he could give no rational ground 
 why he gave over the bargain. This decision seems 
 equitable, though it be new." 
 
 3. Craig v. Sinclair, l6th Dec. 1628. Durie 409. 
 Kames . Spottis. 203-20 i. Mor. 10,034. 
 
 Lord Durie reports it thus, " One Margaret 
 Craig having obtained a decree before the Commis- 
 saries of Edinburgh, against Oliver Sinclair, decern- 
 ing him to take her to be his lawful wife, and to com- 
 plete the band of marriage with her before the face 
 of holy kirk, after which sentence he gives bond to 
 her to solemnize the said marriage betwixt and a 
 certain day, and in case of failure, decerning him to
 
 TIT. III. OF ANTENUPTIAL CONTRACTS. 337 
 
 pay to her 500 merks ; which bond being register- 
 ed, she thereupon arrested certain monies, owing 
 by the Lady Lothian to him, and thereupon pur- 
 sues, to make the same forthcoming, — which action 
 was sustained for payment of the sum adjected in 
 the bond, for a penalty after the expiring of the 
 day prescribed by the bond, and to make the sums 
 arrested forthcoming therefor, notwithstanding that 
 it was alleged, that it was evident by the decreets 
 and writs produced, that the said Oliver was the 
 pursuer's husband, and so she cannot have action 
 against her own husband. And next it was al- 
 leged, that no declarator was obtained upon the 
 failure. 3r%, It was alleged, that pains adjected 
 for fulfilling marriage are not allowed in law, quia 
 matrimonia debent esse //Z>^y«, which allegeances were 
 all repelled, and the action sustained at the wo- 
 man's instance, without declarator, seeing it was 
 not sustained that they were married ; and the ac- 
 tion was allowed and sustained, for payment of the 
 sum adjected in case of failure, because, whenever 
 he should complete the marriage the sum would re- 
 turn to himself. 
 
 4. William Young in Alloa v. Margaret Irvine, 
 and John Anderson, her husband, 2 1st January 
 1715. Bruce, 35. Mor. 8473. 
 
 A contract of marriage, in common form, having 
 past betwixt the said parties, (the woman being in 
 familia of her father) and a penalty of L.lOO Scots 
 adjected thereto ; the woman nevertheless marries 
 another person, whereupon the man insists for the 
 penalty against her and her husband.
 
 338 A DIGEST ON THE LAW OF MARRIAGE, bookiw. 
 
 Answered^ That this contract imported no more 
 but a resolution which r^ Integra may be receded 
 from ; specially since matrimonia dehent esse libera, 
 ^do, She being a child in familia, the contract 
 was contra honos mores, Stio, No diligence is com- 
 petent here for implementing the principal contract, 
 far less then for the penalty, since accessorium se- 
 quitur suum j)rlncipale. 
 
 Replied, l7no, That the contract was an actual 
 obligation to solemnize, and the penalty comes in 
 place of performance, to which the pursuer has right 
 nomine damniy and yiemini admittendum est concilium 
 mutare in alterius j^rejudicium. 9,do, The contract 
 bears, that she is obliged to marry with consent 
 of her parents. 3^/o, In the like case, Margaret 
 Jamison contra Robert Sheriff. The Lords decern- 
 ed for the penalty. 
 
 JDupUed, That since res is still integra, no pe- 
 nalty in such a case can be insisted for ; since that 
 were to act injraudem legis. 2dOf As to the deci- 
 sion founded on, there was no decision as to the 
 contract itself, but only as to the designation of the 
 writer and witnesses, as is evident from Forbes's 
 collections. 
 
 The Lords found the answers and duply relevant 
 to elide the libel and reply ; and therefore assoilzied 
 the defenders. 
 
 5. Wemyss v. Wemyss, 16th Nov. 1768. Fac. 
 Mor. p. 9174. 
 
 A woman by marrying validates a marriage con- 
 tract signed by the father and husband only.
 
 TIT. m. OF ANTENUrXIAL COXTIIACTS. 339 
 
 III 1730, James Wemyss, tenant in Bogie, inter- 
 married with Elizabeth Tod, daughter of James 
 Tod, tenant in Gilstane. The contract of marriage 
 proceeds upon the recital of its being " concorded, 
 agreed, and matriinonally contracted between the 
 parties following, viz. James Wemyss, tenant in 
 Bogie, on the one [)art, and Elizabeth Tod, lawful 
 daughter to James Tod, tenant in Gilstane, with the 
 special advice and consent of her said father, and the 
 said James Tod, as taking full burden in and upon 
 him for his said daughter, on the other part." 
 
 By this contract, James Wemyss binds and obliges 
 himself to have in readiness, of his own proper 
 means, the sum of 2000 merks, which, with the 
 further sum of 1000 merks of tocher, received with 
 his said spouse, he obliges himself to employ on 
 land or good security, and to take the rights and 
 securities thereof to himself and Elizabeth Tod, 
 his promised sj)()use, and the longest liver of them 
 two in conjunct fee and liferent, and the heirs and 
 l)airns to be procreated of the marriage in fee, and 
 whatever lands, goods, and gear should happen to 
 be conquest and acquired during the marriage, 
 James Wemyss bound himself to provide and secure 
 the same to himself in liferent, and to the bairns of 
 the marriage in fee ; he farther obliged himself, his 
 heirs, Sec. in case of his wife's surviving him, to 
 pay her 1000 merks, at the first term of Whitsun- 
 day or Martinmas after the dissolution of the mar- 
 riage, and an early annualrent corresponding to the 
 
 2 c
 
 340 A DIGEST ON THE LAW OF MARRIAGE. BOOKiii. 
 
 principal sum of 500 merks, with the half of the 
 household plenishing, if no children, and one-third 
 thereof in case of children. On the other part, 
 James Tod, the bride's father, binds himself, his 
 heirs, &c. to pay to James Wemyss 1000 merks of 
 tocher. 
 
 The contract was signed by James Wemyss, the 
 husband, and by James Tod, the bride's father, but 
 not by Elizabeth Tod, the bride. 
 
 In 1766, the marriage dissolved by the death of 
 James Wemyss, the husband, when there existed 
 David the eldest son, and a number of other children. 
 During the standing of the marriage, James Wemyss 
 purchased the lands of Lathallen, the rights of 
 which he took to himself, in liferent, and David, 
 his eldest son in fee. He left besides a consider- 
 able sum of money, a good deal of moveable effects, 
 and the tack of the lands of Cassingray, for a con- 
 siderable number of years to run, and for which a 
 grassum had been paid. 
 
 James Wemyss made no settlement of his affairs ; 
 and, soon after his death, the widow and some of the 
 younger children brought an action against David, 
 the eldest son, who had intromitted with the ef- 
 fects. 
 
 Elizabeth Tod, the widow, insisted, that, as she 
 had ?iot signed the contract of marriage, she could 
 not be bound thereby,. and was entitled to a terce of 
 the lands of Lathallen, and a third of the move- 
 ables.
 
 TIT. III. OF ANTENUPTIAL CONTRACTS. 341 
 
 The younger children founded on the provision 
 in the contract of marriage, by which James Wemyss 
 was bound to secure the heirs and bairns of the 
 marriage in tlie sum of 3000 merks, and also the 
 haill conquest, during the standing of the mar- 
 riage. 
 
 It was, on the other hand, contended for David, 
 the eldest son, that supposing the contract of mar- 
 riage not binding, tlie widow could not claim a 
 terce out of the lands of Lathallen, the disposition 
 to these lands being taken to him in fee, and his fa- 
 ther only in liferent. 
 
 And to the dahn of the younger children he an- 
 swered, that the marriage contract never having 
 been signed by the wife, it was an incomplete deed, 
 and not binding on any of the parties contracting, 
 and, therefore, the succession fell to be regulated in 
 the same manner, as if the marriage contract had 
 never been executed. 
 
 The Lord St^i$eld, Ordinary, found, " l^hat V 
 James Wemyss' contract of marriage, not being 
 signed by the wife, is an inconij)lete deed, not bind- 
 ing uj)on any of the parties ; and, therefore, that 
 the wife and children of the said James AV^emyss 
 can only claim their legal provisions : That the 
 widow is entitled to a terce of the lands of Lathallen, 
 purchased by him, and to a third of the free move- 
 ables belonging to the defunct, at the time of his 
 death : That the younger children, who are par- 
 ties in this ^)rocess, have a right to their propor-
 
 .S42 A DIGEST OM THE LAW OE rMAUllTAGE. book in. 
 
 tional share of two-thirds of the defunct's free move- 
 ables." 
 
 The eldest son and younger children severally re- 
 claimed to the Court against the Lord Ordinary's 
 interlocutor. 
 
 Pleaded for David Wemyss, the eldest son : The 
 rule of law is, that a widow has right only to a 
 terce of the lands in which her husband died infeft ; 
 so it is laid down by our lawyers, and established 
 by the judgments of the Court; Caruthers, 29th Ja- 
 nuary I70G. And there is but one exception to 
 this rule, that is, if tlie husband fraudulently abstains 
 from tjjking infeftfnent, merely to disappoint his 
 wife's claim, in sucli case, the law will hold him in- 
 feft. In the present case, the husband never was 
 infeft, nor is there any reason to suspect that he 
 meant any injustice to his wife. 
 
 Answered for the widow : The spirit of the law 
 is, that a widow shall have a terce of the lands of 
 which her husband died pro])rietor, whether infeft 
 or not. In this case, though the son is infeft in 
 fee, the liferent is reserved for the husband, with 
 j)ower to alter the deed, or burden the subject ; 
 and, in support of this doctrine, sundry authorities 
 were referred to. 
 
 Pleaded for the younger children, against the 
 Lord Ordinary's interlocutor : Where there are but 
 two parties to a contract, if the contract is not exe- 
 cuted by both, it caimot constitute an obligation 
 upon either. The essence of every contract is the 
 duorum vel plurium in idem placitum consensus, so
 
 TtT. m. OF AXTEKUPTIAL CONTKACTS. 343 
 
 that, if either do not concur in executing, the con- 
 tract can bind neither. But, if there are three or 
 more parties to a contract, who are all reciprocally 
 but separately bound to one another, the contract, 
 though incomplete between the two parties, will 
 still subsist as to the others. In this case James Tod, 
 the father of the bride, became bound to pay 1000 
 merks of tocher with his daughter, and this obliga- 
 tion he fulfilled, by paying the 1000 merks ; so that, 
 quoad him, the contract received full implement ; 
 and, after receiving this paym.ent, the husband 
 could not refuse implement of what was prestable 
 upon his part, to James Tod, for behoof of the chil- 
 rh'en for whom he contracted. The obligation to 
 the children is not connected with that to his wife j 
 and she, by neglecting or refusing to sign the con- 
 tract, cannot defeat the children's claim in this 
 case, where the husband has received payment of 
 the portion from the father, who was the party con- 
 tracting for behoof of the children. 
 
 Answered for David the eldest son, mutual con- 
 tracts must be good to all parties, or neither can be 
 bound. And this i)rinciple has been carried so far, that 
 where the contract was duly executed, and both par- 
 ties fixed, if one of them become luiable to perform, 
 the other will be free, and the contract at an end. 
 In this case the contracting parties are, the husband 
 on the one side, and the wife, with consent of her 
 father, on the otlier ; the wife is the principal con- 
 tracting party, and not having signed the contract.
 
 344 A DIG F.ST ON THE LAW OF MARRIAGE, book iir. 
 
 is not bound ; the consequence of which must be, 
 the contract must fall to the ground. Where there 
 are three or more separately bound in one contract, 
 to each other, and the one cannot qualify any inte- 
 rest that he has in another's signing, who has not 
 done so, it may be true, that the contract as to 
 those that signed would subsist, because there the 
 obligations fall to be considered, not as one mutual 
 contract, but as separate distinct agreements, though 
 contained in one writing ; but, if the parties can 
 qualify an interest in the persons signing, who re- 
 fuses to perform, the contract must fall as to the 
 whole. If, in this case, the husband could qualify 
 no interest in the wife's subscribing, it might afford 
 some handle for the other party's plea ; but, it is 
 evident, the husband had a direct interest in the 
 wife's signing. Where the husband settles the 
 conquest on the children of the marriage, and the 
 wife gives up her legal claims of terce andjus relic- 
 tee, it must be understood, was the inductive cause of 
 settling the conquest on the children ; and there- 
 fore, if she refuse to sign the contract, the husband, 
 or his heir, cannot be bound to implement the obli- 
 gations he came under, in the belief that the wife 
 was to accept of the conventional provisions stipu- 
 lated by the contract in place of her legal claims. 
 
 The following interlocutor was pronounced on 
 both petitions, when advised, with answers. 
 
 " The Lords find the contract of marriao-e be- 
 twixt James Wemyss and Elizabeth Tod, in respect
 
 TIT. III. OF ANTENUPTIAL CONTRACTS. 345 
 
 of the subsequent marriage betwixt them subsisting 
 and obligatory upon all parties, viz. upon David 
 Wemyss, upon the widow, and upon the younger 
 children." 
 
 And refused, without answers, a petition for the 
 widow, and another for David the eldest son, re- 
 claiming against said interlocutor.
 
 348 
 
 BOOK III, 
 
 TIT. IV. 
 
 OF IRREGULAR MARRIAGES. 
 
 In a former part of this work we adverted to 
 irregular, or clandestine marriage, in opposition 
 to marriage in facie ecclesice^ and we marked the 
 distinction between both. The first we have de- 
 signated to be private, -udiile the other is public, 
 by proclamation of banns and celebration by a mi- 
 nister of the gospel ; and pains and penalties are im- 
 posed upon persons concerned in clandestine mar- 
 riages ; while those in regular marriages, according 
 to the rules of the church, are not subjected to any 
 penalty, blame or censure. And, in allusion to the 
 general acceptance of the term, clandestine , given 
 to this mode of marriage by our law, we observed, 
 that the learned Lord Stowell, (Sir William Scott) 
 in delivering his judgment in the noted question, 
 Gordon v. Dalrymple, l6th July 1811, elegantly re- 
 marks, " the marriage, which is pleaded to be con- 
 stituted by virtue of some or all of the facts, of which 
 I have just given the outline, and to which I shall
 
 TIT. IV. OF ll'.P.F.Gl'I-Ali MAIUMACtF.S. "47 
 
 liave occasion more particularly to advert in the 
 course of my judgment, has been in the argument 
 described as a c/an(!e,siinc and irregular marriage. 
 It is certainly a private transaction between the in- 
 dividuals ; but it does not of course follow that it is 
 to be considered as a clandestine transaction in any 
 ignominious meaning of the word ; for it may be, 
 that the law of the country in which the transac- 
 tion took place may contemplate private marriage 
 with as much countenance and favour as it does the 
 most public. It depends likewise upon the law of 
 the country, whether it is justly to be styled an 
 irregular marriage. In some countries only one form 
 of contracting marriage is acknov/ledged as in our 
 own (England) with the exception of particular in- 
 dulgences to persons of certain religious persuasions ; 
 saving those exceptions, all marriages not celebrat- 
 ed according to the prescribed form are mere nulli- 
 ties. There is, and can be, no such thing in the 
 country as an irregular marriage. In some other 
 countries, all modes of exchanging consent being 
 equally legal, all marriages are on that account 
 equally regular. In other countries, a form is re- 
 commended and sanctioned, but with a toleration 
 and acknowledgment of other more private modes 
 of effecting the same purpose, though under some 
 discountenance of the law, on account of the non- 
 conformity to the order that is established." 
 
 But waving these technicaliti 's, we proceed wilii 
 our subject as if none such had been stated.
 
 348 A DIfJEST ON THE LAW OF MARRIAGE, book hi. 
 
 OF HABIT AND REPUTE. 
 
 In order to infer marriage from cohabitation, the 
 parties must live together, and be openly and avow- 
 edly habit and repute man and wife, without which 
 there can be no room for the plea of cohabitation 
 as the foundation of a declarator of marriage. 
 
 By act of parliament 1503, c. 77. habit and re- 
 pute validates the marriage, and gives the wife 
 right to her terce, and it cannot be excluded, if she 
 was reputed lawful wife, and not questioned during 
 the husband's life. 
 
 This is clearly laid down by every lawyer who 
 has wrote on the subject. 
 
 Sir George Mackenzie, in his observations upon 
 the act 1503, p. 114, says, " If the marriage M'as 
 not quarrelled })y a process in the husband's time as 
 unlawful, the wife will have right to her terce 
 without the necessity of proving a lawful marriage, 
 and will possess her terce until the marriage be 
 found tohav^e been unlawful ; for in the common law 
 and ours an unquarrelled cohabitation is a valid 
 probation of the marriage in libera, 24. de rit. 
 recep. Yet it cedes to a contrary probation as all 
 presuniptiones juris d o, " 
 
 Lord President Stair, t. 4. ^ 26. says, " ^y our 
 custom cohabitation, and being commonly repute 
 man and wife, valifJates the marriage, and gives the 
 wife right to her terce, who cannot be excluded 
 therefrom, if she were reputed lawful wife, and not
 
 TIT. IV. OF HABIT AXD IJF.PUTF,. :3-J-9 
 
 questioned during the luushand's life till the con- 
 trary be dearly discovered, Pari. 1503, c. 77. So 
 a contract of marriage was found valid against 
 the husband's heir, though the marriage never was 
 solemnized in kirk nor congregation, Hope, hus- 
 band and wife, Barclay v. Napier, so likewise in the 
 same case, Nicholson, de nuptiis, where a contract 
 of marriage was found valid, and the man thereby 
 obliged to solemnize the marriage, and by his mis- 
 sives had acknowledged he had married her, though 
 by a contract posterior to the contract of marriage 
 she had renounced the same." 
 
 Lord Bankton, b. 4. t. 45. ^ 47- confirms the 
 above doctrine, " One's openly cohahiting icith a 
 woman as his ivife^ is good to constitute a marriage 
 by the civil law, which holds precisely with us, and in 
 this case, the opinion of the neighbourhood is of im- 
 portance, viz. whether the parties lived together in 
 a criminal intercourse, or as reputed man and wife." 
 At § 49. he expresses himself in still more clear 
 and distinct terms on the supj)osition of an ante- 
 nuptial contract of marriage being entered into, 
 and a subsequent cohabitation, " There is no doubt, 
 but if there was a preceding contract of marriage 
 competently proved, the cohabitation subsequent to 
 it, though clandestine, would infer a marriage by 
 our law, as I took notice above, and which was 
 likewise conform to the civil law, but such private 
 intercourse \vill not be deemed to infer marriage 
 upon tile man's subsequent declaration, that he was 
 married to the woman on his owning her for his
 
 f)50 A DIGEST ON THE I.AW OF MARRIAGE, book m. 
 
 wife, for that cannot legitimate the former criminal 
 conversations, but an actual marriage, or promise 
 of marriage, behoved to be proved preceding such 
 correspondence, or open conjugal cohabitation must 
 have followed in order to make the woman a lawful 
 wife, or legitimate the children." 
 
 In like manner, Mr. Erskine, after mentioning 
 that marriage is truly a contract, and requires the 
 consent of parties, maintains, B. i. tit. 6. ^ 6. 
 " That where marriage may be also entered into 
 where the consent is not expressed, but is discover- 
 ed rebus ipsis etfacth. In this way it is presum- 
 ed or inferred from cohabitation, or the parties liv- 
 ing together at bed and board, joined to their being 
 habit, or held and reputed man and wife, cohabita- 
 tion therefore does not by itself establish this pre- 
 sumption, for a man and woman may thus cohabit 
 to gratify their unlawful desires, without any inten- 
 tion of being bound by marriage." " This legal 
 presumption is grounded, not only on the nature of 
 things, but on statute 1503, c. 77. which provides, 
 that a woman who has been reputed the wife of a 
 man till his death, shall be entitled to enjoy the 
 terce as his widow, //// it he proved that she iims not 
 his lawful wife. Hence it may be observed, that 
 the presumption of habit and repute is not so strong 
 an evidence of marriage as to exclude a contrary 
 proof. It only throws the burden of it on him who 
 denies the marriage." 
 
 The ceremony of a regular marriage may be per- 
 formed by a minister before two witnesses, but co-
 
 viT. IV. OF HABIT AND llEPUTE. .'J51 
 
 habitation as man and wife may be established or 
 interred, J u?'is et de jure^ without any express de- 
 claration, rehus ipsis etfactis. 
 
 Upon these liberal and well grounded principles, 
 and others, the following decisions have been pro- 
 nounced. 
 
 1. Barclay v. Anna Napier, 5th July 1611, Stair, 
 t. 4, 31. Act 1503, c. 77. Forbes, Die. 2,267. 
 Elchies, proof. No. 9. 
 
 The Court sustained a relict's process upon her 
 contract of marriage, and on the general ground of 
 habit and repute licet matrimonkun nunqiiain faerat 
 in facie ecclesice celehratiim. Vide this case, under 
 the head Scripto vel juramento. 
 
 2. Forbes v. Countess of Strathmore, 27th Feb, 
 1750, Elchies proof. No. 9. 
 
 In this case a process of adherence was insisted 
 in before the Commissaries, who allowed a proof of 
 facts and circumstances tending to make out coha- 
 bitation as husband and wife in Scotland, but super- 
 seding the proof of cohabitation in Holland, till the 
 other proof was concluded. The Court of Session, 
 however, on advising a bill of advocation and plead- 
 ings, allowed a proof of habit in Holland, on the 
 ground that cohabitation in Holland makes a mar- 
 riage. See this case fully stated, p. 244, under the 
 title of Foreign and International Law. 
 
 3. M'Culloch r. M'CuUoch, 10th Feb. 1759, 
 Fac. 
 
 This was a question of cohabitation in a foreign 
 country, (Isle of Man) as husband and wife. The
 
 352 A DIGEST ON THE LAW OF MARUIAGE. hook. iii. 
 
 Commissaries found the facts, circumstances, and 
 qualifications, not sufficient to infer marriage. The 
 Court of Session, however, remitted the cause to the 
 Commissaries, with instructions to find the marriage 
 proven ; but on appeal the House of Lords reversed 
 the judgment, and returned to that of the Commis- 
 saries, upon the ground, that cohabitation in a fo- 
 reign country did not establish marriage. This 
 case is fully stated under the title of Foreign and 
 International Law, p. 247. 
 
 4t. Sommervil v, L. Halcro, 7th July 1626, Burie 
 Die. 2,262. Mor. 12,635. 
 
 Lord Durie briefly reports this case : " A decla- 
 rator being sought by Alexander Sommerville of 
 the bastardy of one Sommervil v. L. Halcro, as 
 debtor to the bastard ; the Lords found the ex- 
 ception relevant, viz. That the father and mother 
 of the alleged bastard cohabited together by the 
 space of ten years, as married folks, and were re- 
 pute to be married folks. Which exception was 
 sustained, notwithstanding of a rej)ly, bearing, 
 that the person whose bastardy he sought was 
 repute and esteemed, by all the persons in the 
 whole country where the parents of the said bas- 
 tard, and also himself, dwelt, and conversed, a bas- 
 tard, which being pro Jisco, he ought to be pre- 
 ferred. This reply was repelled, and the exception 
 sustained." 
 
 In the Dictionary it is thus reported : In a de- 
 clarator of bastardy this exception found relevant, 
 that the father and mother of the alleged bastard 
 did cohabit too-ether fui- ten years, as a married
 
 TIT. IV. OF HABIT AND llEPUTE. 353 
 
 couple, and were reputed to be so, notwithstanding 
 of a reply, that the defunct, whose bastardy was 
 sought, was universally habit and repute a bastard. 
 The like was found, Swinton v. Kaills, Stair, 15th 
 Jan. 1676. 
 
 5, Grierson v. Laird of Craigdarroch, Stair, t. 4. 
 Corig. oblig. p. 31. 1661. 
 
 Stair very briefly states this case. 
 
 " It was lately found relevant for validating a 
 contract of marriage, sixteen years' cohabitation, 
 and being repute man and wife.'* 
 
 Although this and the case of Sommerville just 
 quoted, and that of Crawford's trustee against Hart, 
 after noticed, bear respectively the periods of coha- 
 bitation of ten, sixteen, and thirty years, neither 
 the act of Parliament, 1503, nor any of our deci- 
 sions, so far as we can discover, find it necessary 
 that the parties cohabit as man and wife for any 
 determinate period ; but we presume to mention, 
 that a more limited cohabitation as man and wife, 
 and a lawful child begotten, may be thought neces- 
 sary to fix the status of the child, and the legal 
 rights of the widow. 
 
 6. Rebecca Dods v. Westcomb, an Englishman, 
 Kilk. 11th June 1745. 
 
 In this case the defender resisted the law of ha- 
 bit and repute, as he was an Englishman, and al- 
 leged, that he was ignorant that by the laws of 
 Scotland habit and repute constituted a marriage 
 there ; but this plea of incompetency was repelled, 
 as will be seen from the report of the case under the
 
 .'i54 A DIGEST ON THE LAW OF MARRIAGE, book ni. 
 
 head of Competent Questions, and a proof of habit 
 and repute being led, decreet of declarator of mar- 
 riage was pronounced. 
 
 But habit and repute in other countries, where 
 marriage is not recognised by that modus, has not 
 the effect to establish marriage in this country, as 
 was determined in the highest tribunal, the Flouse 
 of Peers, in the case of M'Culloch v. M'Culloch, 
 10th Feb. 1759, treated of in this work, under the 
 title of Foreign and International Law, p. 247,and to 
 which reference is therefore made ; but the principle 
 of this decision does not in any shape vary the law 
 of habit and repute ; on the contrary, it rather 
 strengthens and confirms it. 
 
 7. M'Gregor and Campbell v. Campbell, Fac. 
 6th Dec. 170(). 
 
 The circumstances of this case are these : Lieu- 
 tenant Duncan Campbell died in Jan. 179L In 
 May 1790, the pursuer, who had lived at his house 
 at Dundrum for some years, as his housekeeper, 
 was delivered of a child, which he had acknow- 
 ledged to be his previous to his death. 
 
 An action of declarator of marriage and legiti- 
 macy was brought before the Commissaries of Ed- 
 inburgh, in the names of Katharine M'Gregor and 
 her chikl. Coiin against Miss Colin Campbell, the 
 sister and representative of Lieutenant Campbell. 
 A proof was allowed, and the Commissaries assoil- 
 zied from the conclusions of marriage and legitima- 
 cy, reserving to the pursuers to insist against the 
 representative of Duncan Campbell for a reasonable
 
 TIT. lY. OF HABIT AND REPUTE. 355 
 
 aliment to his son, the pursuer, Colin Campbell, as 
 accords, but finding no expenses due. 
 
 Upon bringing this judgment under review, the 
 pursuer 
 
 Pleaded : It was proved, that after the year 1790, 
 when Campbell and Catharine M'Gregor took a 
 journey to Kinghorn, that on their return to Dun- 
 drum, it was the belief of many of the country that 
 they were married, as they then openly cohabited 
 as man and wife, were visited as such by several 
 persons, particularly a brother officer and his wife, 
 to whom she was introduced, and by whom she was 
 received as Mrs. Campbell ; and besides being ac- 
 knowledged by him at various times as his lawful 
 wife, on one occasion he took God to witness that 
 she was so. 
 
 Answered : In constituting marriage by coha- 
 bitation, and habit and repute, the common rules of 
 law in all mutual contracts must have effect, and 
 the consent must not only be mutual but formal 
 and deliberate. The behaviour and expressions of 
 Campbell could only be meant as some sort of ex- 
 cuse to the world for the familitirity in which he 
 lived with the pursuer, which would otherwise have 
 deprived him of the society of the neiglibourhood, 
 while some of these expressions are proved to have 
 been uttered in jest, or when he was in liquor. 
 The pursuer's conduct proves that she never con- 
 ceived for a single moment during his life, that the 
 expressions made use of entitled her to the character 
 
 of his lawful wife. — She never required to be treat- 
 
 2d
 
 356 A DIGEST ON THE LAW OF MARRIAGE, bookiii. 
 
 ed by the other servants, or her acquaintances, with 
 respect becoming that situation : she demanded 
 wages and livery, meat as a servant to the period of 
 Campbell's decease, and when called before the 
 kirk-session of Comrie, she did not claim the cha- 
 racter of widow and lawful mother of the child. — 
 Observed from the bench. — The case of M'Innes v. 
 Moore, 20th Dec. 1781, carried the doctrine of ac- 
 knowledgment too far, inasmuch as there it was 
 extorted by fraud on the part of the woman, as she 
 said it was intended merely to protect her from the 
 rage of her relations. But here the repeated ac- 
 knowledgments, which were so solemn that they 
 induced those to whom they were made to visit the 
 woman as a married person, seem sufficient to con- 
 stitute a marriage, and ought not to be got the bet- 
 ter of by circumstances which could not annul a 
 marriage actually celebrated > 
 
 The majority of the Court, however, were of opi- 
 nion, that the circumstances arising from the pur- 
 suer's own conduct afforded sufficient indication of 
 the intention of the parties. 
 
 The Lords refused the bill of advocation. 
 
 8. Napier v. Napier, 13th June 1800, 1801, not 
 reported. 
 
 In this case, had not the first alleged marriage by 
 habit and repute been of rather an ambiguous and 
 doubtful nature, there can be little doubt that the 
 second subsequent marriage in facie ecclesice would 
 not have obtained a preference. The cohabitation 
 vras between a soldier and a woman who followed
 
 TIT. IV. OF HABIT AND REPUTE. 357 
 
 the regiment, and which had ceased for five or six 
 years before the second marriage took place. That, 
 for the period of twenty years, that the second wife 
 lived, (in which period she bore no children,) no 
 claim was made by the first wife, though dwelling 
 in the same town with the couple ; and the question 
 of testimony was only brought forward at last at 
 the instance of a child, after the death of both wo- 
 men. That, in these circumstances, there seemed 
 to be strong presumptive grounds of evidence against 
 the first alleged marriage, and, on that footing, the 
 case was finally decided against the claimant, though 
 the first interlocutor went the other way, and bas- 
 tardized the whole children of the second marriage. 
 
 9. Crawford's Trustee v. Hart, relict ; Fac. 30th 
 January 1802. Mor. 12,698. 
 
 Although this question did not originate in the 
 Commissary Court, but in the Court of Session, by 
 the claimant demanding her legal provisions of a 
 widow, it well deserves a place here, especially as 
 the Court entertained her claims of terce and Jus 
 relictce. 
 
 'i'hese parties had cohabited together for about 
 thirty years, and of the concubitus several children 
 were boi'n. They went before a justice of peace, 
 and " both publicly acknowledged themselves to be 
 married persons, and to have been irregularly and 
 clandestinely married, but refused to declare the ce- 
 lebration thereof or the witnesses present thereat." 
 
 William Crawford disponed his estate to trustees, 
 making provisions to his wife and two children,
 
 358 A DIGEST ON THE LAW OF MARRIAGE, book in. 
 
 Peter Crawford, and Marjory, the wife of James 
 Reid, as well as legacies to his five sisters. He died 
 ten months after the acknowledgment of the mar- 
 riage. 
 
 The widow and children were dissatisfied with 
 the provisions left to them by the trust-deed, raised 
 a multiplepoinding for determining these respec- 
 tive claims. It being objected, that, as the mar- 
 riage had not been declared a year and day before 
 Crawford's death, and there had been no child born 
 since, the widow could be entitled to nothing except 
 what was contained in the trust-deed. 
 
 Memorials were ordered, and, after a variety of 
 procedure, the Lord Stonefield, 17th July 1801, 
 found " Mrs. Crawford, the widow, entitled to her 
 terce and jus relictce ; and the trustees of Peter 
 Crawford and Mrs. Reid entitled to their legitim ; 
 and prefers them to their respective rights and in- 
 terests to the funds in the hands of the raisers of 
 the multiplepoinding, and decerns." 
 
 In a reclaiming petition for the trustees, so far as 
 concerned, the widow, it was, inter alia, maintained, 
 that, by the Roman law, as well as by ours, the 
 subsequent marriage of the parties, if there be no 
 medium impedimentmn, has the effect of legitimat- 
 ing the children ; and, with regard to them, the 
 marriage is held, in every question of succession, to 
 have preceded the connexion to which they owe 
 their birth ; 79, c. 8 ; Col. 7. t. 1 ; Craig, 
 
 lib. % tit. 18, § 12 and 13, 25th March 1682. But 
 the admission of the same fiction in favour of pa-
 
 TIT. IV. OF IIABIT AND REPUTE. 359 
 
 rents did not apply, and seems unauthorized, Fount. 
 p. 181 of vol. i. ; and that, de facto, the marriage 
 here had neither subsisted a year and day, nor has 
 there been a child born of it, and that no authority 
 had yet given a woman, in such a situation, right 
 to the provisions of a widow. 
 
 But, the answer to this argument being sound, 
 and consonant with the judgment of the Court, we 
 have deemed it necessary to quote it : 
 
 Answered : " The presumption certainly is, that 
 the marriage subsisted for more than a year and 
 day ; the parties, ten months before Crawford's 
 death, acknowledged themselves to have been mar- 
 ried of a lyrior date ; and the petition of the procu- 
 rator-fiscal, in consequence of which they appeared, 
 sets forth, that this took place some considerable 
 time ago. This was presented in concurrence with 
 Crawford. But, at all events, the wife must be en- 
 titled to her legal provisions, as the marriage was 
 not dissolved without lawful children. The fiction 
 of law is, that the marriage was contracted when 
 the child legitimated was begotten ; Erskine, b. i. 
 t. 6, § 52. This must operate as much in favour of 
 the mother as of the children ; indeed, the legitima- 
 tion of the children depends upon this very presump- 
 tion, that she was a lawful wife at the time of their 
 birth, which limits the case of legitimation by a sub- 
 sequent marriage to those where the parties might 
 have been married at the time. Were it otherwise, 
 where there is confessedly a widow and children, the 
 goods in communion would suffer a biparte instead
 
 360 A DIGEST ON THE LAW OF MARRIAGE, book ui. 
 
 of a triparte division. Anderson v, Wishart, 23d 
 February 1714, Diet. v. ii. p. 267, is a narrower 
 case than the present ; there were there no children, 
 the proof of prior marriage was extremely weak, yet 
 she was found entitled to the terce." 
 
 Upon the principle that Hart was the mother of 
 lawful children at the time of her husband's death, 
 the Court adhered to the Lord Ordinary's interlo- 
 cutor. 
 
 10. Cunninghams «;. Cunningham, 20th Feb. 1810. 
 Fac. 
 
 This decision, finding a marriage, was reversed 
 in the House of Lords, July 20th, 1814 ; Dow's Ap- 
 peal Cases, 2,482. 
 
 This declarator of marriage resolved into three 
 grounds, 1st, actual celebration ; 2^/, acknowledg- 
 ments, written and parole ; and Sd, cohabitation as 
 husband and wife. The two first grounds failed, 
 and there was but a slight proof of the third. 
 
 In this very interesting case the parties were al- 
 leged to have been married by an Episcopal clergy- 
 man in Edinburgh, and the lines of their marriage 
 were delivered to Margaret Hutchison, the woman 
 to whom the late Mr. Cunningham of Balbougie, 
 advocate, was alleged to have been married ; but 
 being lost, and no registration of them kept, the 
 pursuers, the daughters of the connexion, after the 
 woman's death, had chiefly recourse to the plea of 
 habit and repute. Some nice points were agitated, 
 but the case was so much involved in specialities, 
 as to render it an unfit subject for reporting. But 
 as it excited considerable interest, the very able pa-
 
 TIT. IV. OF HABIT AND REPUTE. 36l 
 
 pers will be found bound up along with the case of 
 M'Kenzie and children v. William M'Kenzie, decid- 
 ed 8th March 1810. 
 
 The facts of the case, so far as it appears neces- 
 sary to be known, are : — 
 
 While John Cunningham, eldest son of John 
 Cunningham of Balbougie, was provost of the burgh 
 of Inverkeithing, in the year 1758, he hired Agnes 
 Hutchison as a servant. In 1759 she bore him a 
 child, and they were both rebuked, she publicly and 
 he privately, by order of the Kirk Session. This 
 judicatory required of her to produce a testimonial 
 of her being absolved from fornication, which she 
 had been guilty of in Edinburgh ; and she was at 
 length compelled to quit Cunningham's service. Cun- 
 ningham, at this time, would not confess the child 
 was his, stating, *' that he had some doubts about 
 that." This connexion, in its commencement, was 
 therefore clearly illicit. 
 
 In 1760, Cunningham's affairs having become 
 embarrassed, he went to live within the precincts 
 of the Abbey, where he was joined by Agnes Hut- 
 chison. Some time after, with a view to take the 
 benefit of the cess'io honorum, he went into gaol, 
 where he was attended by Agnes Hutchison, and 
 there the parties lived together : at one period in 
 the Canongate, and at another period in the Cow- 
 gate till 1768, when Cunningham's father died, and 
 then they went to Balbougie, where they lived till 
 1770, when Agnes Hutchison, being in ill health, 
 either for medical advice, or to be near her rela- 
 tions, or for both purposes, was sent to Edinburgh,
 
 362 A DIGEST ON THE LAW OF MARRIAGE, book in- 
 
 where she died, and was buried in the Canongate 
 church-yard as an unmarried woman, with very 
 little ceremony, Cunningham having sent his bailiff 
 or cowfeeder to take charge of the funeral. The 
 pursuers were children of Cunningham by this 
 Agnes Hutchison, after whose death Cunningham 
 took another woman to live with him, under the 
 name of his housekeeper, a Mrs. Gibson, whom he 
 afterwards married. 
 
 The estate of Balbougie had been entailed by 
 Cunningham's father, upon his sons and their issue 
 male, in the usual order ; and failing issue male, 
 then on their issue female, in their usual order. 
 The issue male having failed, Cunningham being 
 desirous that his own daughters should succeed 
 in preference to his brother's daughters, resolved to 
 attempt to prove a marriage between himself and 
 Agnes Hutchison ; and the pursuers, under his di- 
 rection, in 1790, raised an action of legitimation 
 before the Commissaries of Edinburgh. After 
 some previous procedure, a proof of the marriage 
 was allowed. 
 
 The marriage was attempted to be made out in 
 three ways, — by actual celebration, — by cohabita- 
 tion as husband and wije, and by acknowledgments, 
 parole and written. To prove a celebration a wit- 
 ness was produced, who stated, that Cunningham 
 came to his house sometime in 1770, with an Epis- 
 copal clergyman of the name of Murray, who made 
 out a certificate of marriage, which witness signed ; 
 but Agnes Hutchison was not present. The cer-
 
 TIT. IV. OF HABIT AND llEPUTE. 36S 
 
 tijficate was then called for, but was not produced 
 till about ten years after, when the witnesses were 
 dead, and then it was impeached as a forgery. In 
 a supplementary action against Cunningham him- 
 self, by his daughters, raised in 1798, his declara- 
 tion was taken, and he stated a celebration in the 
 Abbey, but this was not relied upon. A great 
 number of witnesses were examined, respecting the 
 alleged marriage by cohabitation and acknowledg- 
 ment, during the residence of the parties in the Ab- 
 bey, the Canongate, Cowgate, and at Balbougie. 
 The evidence of reputation, or habit and repute, as 
 to the character in which the parties cohabited, was 
 contradictory. Several acknowledgments by Cun- 
 ningham were proved ; but the question was, whe- 
 ther they were mutual, and whether not made for a 
 particular purpose. 
 
 With respect to the law on the subject, both par- 
 ties appeared to be agreed, that marriage was 
 constituted only by mutual consent, and that regu- 
 lar celebration was conclusive evidence of that con- 
 sent ; but as to irregular marriages, the defenders 
 maintained, that the evidence in support of them 
 might be rebutted by other evidence ; and that the 
 conduct of the parties, and the opinion of the world 
 as to the character in which they cohabited, during 
 the whole period in which they lived together, was 
 to be taken into consideration. 
 
 For the pursuers it was contended, that when 
 once cohabitation as husband and wife, or distinct 
 acknowledgment was proved, they were entitled to
 
 364 A DIGEST ON THE LAW OF MAKRIAGE. book hi. 
 
 stop, and say that the marriage was completely es- 
 tablished ; and that no subsequent declarations, or 
 even the oaths of the parties themselves, or of other 
 persons, could avail against it, any more than against 
 a regular celebration. 
 
 The Commissaries, and afterwards the Court of 
 Session, (2d Dec.) by the casting vote of the then 
 Lord Justice Clerk, (Hope) found facts and circum- 
 stances proven sufficient to infer marriage ; but 
 from this judgment an appeal was taken. 
 
 The following grounds and principles of the 
 House of Peers, recalling the judgment of the 
 Court of Session, will be read with peculiar in- 
 terest. 
 
 A man and woman, after a known illicit connex- 
 ion, cohabit together in such a way as to create a 
 repute, though a divided one, of their being marri- 
 ed persons, and the man, in order to get lodgings in 
 the houses of persons of respectability, and to save 
 the woman from rude treatment by one of his com- 
 panions when drunk, acknowledges that the wo- 
 man is his wife. Held by the House of Lords, re- 
 versing a decision of the Court of Session, that the 
 facts and circumstances were not sufficient to infer 
 marriage. 
 
 Certificate of celebration not sufficient to prove 
 the marriage, one of the witnesses who signed the 
 certificate, having sworn that the woman was not 
 present when the marriage was stated in the certifi- 
 cate to have been celebrated. 
 
 Lord Eldon, that in cases of cohabitation, pre-
 
 TIT. IV. OF HABIT AND REPUTE. 365 
 
 scription is in favour of its legality — secus^ if the 
 connexion is known to have been in its origin, 
 illicit. 
 
 Lord Redesdale, that repute, to raise presump- 
 tion of marriage, may be founded on general, not 
 singular opinion, and that a divided repute is, on 
 such a subject, no evidence at all. 
 
 The ultimate decision of the House above, 20th 
 July 1814, was, " The Lords find, that the facts and 
 circumstances and qualifications proven, are not suf- 
 ficient to infer a marriage between the deceased 
 John Cunningham of Balbougie, advocate, and Ag- 
 nes Hutchison ; and that the pursuers are not their 
 legitimate children ; and it is thereby ordered and 
 adjudged that the interlocutors complained of be 
 reversed, so far as they are inconsistent with this 
 finding ; and it is farther ordered, that the cause be 
 remitted back to the Court of Session, to do, and to 
 direct the Commissaries to do therein, what is just 
 and consistent with this finding." On this very 
 important case Lord Chancellor Eldon delivered a 
 luminous speech, which will be found in the ap- 
 pendix. 
 
 IL M'Kenzie and Children v. M'Kenzie, 8th 
 March 1810. 
 
 This case deserves particular notice, because it 
 is purely a case of habit and repute, and could 
 not be resiled from, even with the woman's con- 
 sent in writing, which she had granted, with 
 concurrence of her husband, renouncina* all claims 
 which she had against him, and especially renounc-
 
 366 A DIGEST ON THE LAW OF MARRIAGE, book hi. 
 
 ing all claim which her children had against him, 
 and being of recent date, is entitled to the highest 
 regard. But, as it is stated under the title of Com- 
 petent Questions, p. 219, it is unnecessary to recapi- 
 tulate it here, unless by briefly mentioning, that for 
 the period of ten years, the parties lived together in 
 Glasgow as man and wife, and in such a way as no 
 person could doubt their being man and wife — they 
 had a shop, and the wife sold goods in that charac- 
 ter, and multo majus had two children of the con- 
 nexion. It bore some resemblance to the preceding 
 case of Cunninghams v. Cunningham, grounded on 
 habit and repute ; but M'Kenzie's cohabitation 
 was uniform for the period of ten years, while that 
 of Cunningham's, though alleged to exist for a 
 much longer time, was rather of a loose and clan- 
 destine description, and void of openly and avowed- 
 ly habit and repute man and wife for any period 
 whatever. 
 
 As stated above, Mrs. M'Kenzie, with consent of 
 her husband, discharged the marriage by two seve- 
 ral documents, but the Court disregarded it in toto. 
 And surely the Court did right, for we know, 
 though marriage be a contract, which is perfected 
 by the consent of parties, it cannot be dissolved by 
 a contrary consent, for the character of perpetuity 
 seems to have been impressed on it by God himself, 
 in its first institution, when he declared the two 
 common parents of all mankind to be one flesh. 
 Gen. ii. 22. et seq. which was afterwards confirmed 
 by our Saviour's injunction, that no man should 
 
 /
 
 TIT. IV. OF HABIT AND REPUTE. 367 
 
 put asunder whom God hath joined, Matth. xix. 6. 
 But it is likewise adverse to the rules, not only of 
 our holy religion, but of right reason and of sound 
 policy, for married persons, if they shall be left at 
 full liberty to break off from their first engagements, 
 may be too apt, on the slightest disgust, to look out 
 for more agreeable companions ; and thus the natu- 
 ral ties between parents and their first issue must 
 be quickly slackened, if not totally dissolved, and the 
 education of children miserably neglected. For 
 these reasons marriage cannot, by the usage of Scot- 
 land, be dissolved till death, except by divorce pro- 
 ceeding either upon the head of adultery, Matth. 
 xix. 8, 9 ; Mark x. 11 j or of wilful desertion, 
 1 Cor. vii. 15. 
 
 12. Jean Campbell and daughter v. Magdaiane 
 Cochrane or Kennedy, et e contra, 28th July 1747; 
 Falc. 204 ; Mor. 10,456. 
 
 Captain John Campbell of Carrick, on the 9th 
 Decem. 1725, was, without proclamation of banns, 
 married to Jean Campbell, by a clergyman ; and a 
 certificate of marriage was granted, signed by the 
 clergyman and by two witnesses. And as this 
 marriage was private, and in so far irregular, John 
 Campbell the husband, and afterwards, Jean Camp- 
 bell, his wife, appeared before the Ecclesiastical 
 Court, to answer for the irregularity, when they 
 were severally rebuked for the said irregularity, 
 and did severally enact themselves to adhere in all 
 time coming, and to be faithful and kind, one to 
 another ; by all which the habes of the irregularity 
 were done away. After this they publicly resided
 
 368 A DIGEST ON THE LAW OF MARRIAGE, book iii. 
 
 together as husband and wife, for twenty years, 
 and were held and reputed as such ; and the other 
 pursuer, Jean Campbell the younger, was the issue 
 of that marriage, and was held and reputed as the 
 lawful issue thereof. After the death of John 
 Campbell the husband, (who was killed at the 
 battle of Fontenoy,) Magdalane Cochrane obtain- 
 ed letters of administration in England, as his wi- 
 dow, with a view of obtaining the pension due as 
 to an officer's widow. 
 
 Jean Campbell and her daughter raised an action 
 before the Commissaries of Edinburgh, to have it 
 found and declared that she was the lawful widow, 
 and the other the lawful child of John Campbell. 
 In that action no appearance was made for Magda- 
 lane Cochrane, a proof was allowed, and it came 
 out in evidence, not only that no claim was ever 
 openly urged by Magdalane Cochrane, during the 
 lifetime of John Campbell, but that, on more than 
 one occasion, she, Magdalane Cochrane, had been 
 in company with Jean Campbell and others, and 
 heard and seen her, Jean, treated and addressed as 
 the wife of John Campbell, while she suffered her- 
 self to be treated and addressed as the widow of 
 one Kennedy, a former husband. 
 
 After this proof was led, Magdalane Cochrane 
 brought a cross action of declarator, in which she 
 founded upon an alleged holograph acknowledg- 
 ment by John Campbell, dated 3d July 1724, bear- 
 ing, that he was solemnly and lawfully married to 
 Magdalane Cochrane, but without mentioning the 
 date of such marriage ; and this pretended marriage
 
 TIT. IV. OF HABIT AND REPUTE. 369 
 
 having been, as alleged, prior to that of Jean Camp- 
 bell, concluding, inter alia, to have it found and de- 
 clared, that Captain John Campbell and Mrs. Jean 
 Campbell were never lawfully married together, 
 and that it is false, and groundless, and injurious to 
 her, to allege any such thing, &c. Both parties 
 were assisted by most able council. 
 
 It was pleaded for Mrs. Campbell, that a formal 
 marriage, followed by open and public cohabitation, 
 habit and repute, was not, after subsisting for twenty 
 years, to be set aside, and the children bastardized 
 by any alleged secret and latent marriage, though 
 said to have been prior in date ; and that therefore 
 no proof should be allowed of any such irregular and 
 alleged prior clandestine marriage, especially after 
 the death of the alleged husband, who alone could 
 be able effectually to traverse such proof. And fur- 
 ther, that Magdalane Cochrane, by allowing the mar- 
 riage to subsist openly for twenty years, nay, to suffer 
 Jean Campbell, without contradiction, to be treated 
 as the lawful wife, in her own presence, was now 
 barred personali exemjitione, from leading any 
 proof to the contrary. 
 
 These pleas were undoubtedly invincible, on the 
 supposition, that what was alleged to have passed 
 between John Campbell and Magdalane Cochrane, 
 (there being no issue from their alleged connexion,) 
 only inferred an obligation to marry, without actu- 
 ally constituting marriage between the parties. One 
 of the pleas was urged in the following words, " A 
 promise of marriage cum copula has this effect, to 
 oblige the refractory i)arty, by a process at law to
 
 370 A DIGEST ON THE LAW OF MARRIAGE, book ill. 
 
 fulfil ; but if, before sentence is pronounced, the re- 
 fractory party be publicly married to another person, 
 the marriage is good, and cannot be avoided by the 
 allegeances of the antecedent promise and copula with 
 another.*' But this, and all other pleas in bar, urged 
 to exclude Magdalane Cochrane from leading a proof 
 to the effect, if she succeeded in that proof, of de- 
 priving Jean Campbell of the status she had openly 
 acquired and publicly enjoyed, during twenty years, 
 was repelled by the Commissaries, who, by their 
 interlocutor, 23d June 1747, " Before answer, al- 
 lowed the said Mrs. Magdalane Cochrane a proof 
 of her libel, and of all facts and circumstances tend- 
 ing to infer the marriage libelled.*' Of this inter- 
 locutor Jean Campbell complained, by bill of advo- 
 cation, to the Court of Session. Her bill of advoca- 
 tion was refused by Lord Arniston, 7th July 1747. 
 She then presented a petition against that interlo- 
 cutor of Lord Arniston, praying the Court, "in con- 
 sideration of the particular circumstances of this 
 case, to find that Mrs. Magdalane Cochrane is bar- 
 red personali exceptione from insisting in this de- 
 clarator of her pretended marriage." The Court of 
 Session were of a different opinion from the Com- 
 missaries, for they, by their interlocutor, 29th July 
 1747, remitted the cause to the Commissaries, with 
 this instruction, to find that Mrs. Kennedy was 
 barred personali exceptione from being admitted 
 to prove that she was married to Mr. Campbell of 
 Carrick, before he was married to Mrs. Jean Camp- 
 bell ; and this remit was applied by the Commis-
 
 TIT. IV. OF HABIT AND REPUTE. 371 
 
 saries. Mrs. Kennedy entered her appeal to the 
 House of Lords, complaining of this interlocutor of 
 the appellant's counsel having been heard on the 
 6th Feb. 1748 ; their Lordships (the counsel for 
 the respondents being likewise heard, and consent- 
 ing thereto,) reversed the interlocutor of the Court 
 of Session, and returned to that of the Commis- 
 saries, allowing a proof, thereby virtually finding, 
 that no degree of concealment of a marriage by 
 both parties, and no silence, or even acquiescence 
 of the woman, in a posterior public and open mar- 
 riage of the man with another woman, could bar 
 her, at any after period, even after the death of the 
 alleged husband, from asserting her own individual 
 rights as widow, (there being no issue of her own 
 connexion) even to the effect of annulling a poste- 
 rior public marriage, and depriving the widow of 
 such public marriage, and of her status and place in 
 society as such. 
 
 Mrs. Magdalane Cochrane (or Kennedy) after- 
 wards failed to prove her marriage with Captain 
 Campbell, and therefore, Mrs. Jean Campbell was 
 assoilzied from Magdalane Cochrane's declarator, 
 and finally prevailed in her own. \\\\t this went 
 upon the point of fact alone, and noways touches 
 the point of law. 
 
 2! E
 
 373 
 
 BOOK III. 
 
 TIT. V. 
 OF WRITTEN DECLARATION DE PR^SENTI. 
 
 On this head various authorities have been quoted, 
 particularly those of Stair, M*Kenzie, and Bankton. 
 Mr. Erskine, (b. i. tit. 6, ^ 6,) after mentioning that 
 the consent essential to marriage is either express 
 or tacit, adds, — " Marriage may be also, without 
 doubt, perfected by the consent of parties declared 
 by writing, provided the writing be so conceived as 
 necessarily to import their present consent." 
 
 And we therefore proceed to notice the decided 
 cases themselves. 
 
 1. Christian Baptie v. George Barclay ; Stair, i, 
 261 ; Gilmore, 99 ; Die. Locus Poenitentia ; Mor. 
 8413 ; 31st January 1665. 
 
 The pursuer founded upon a ticket or letter, writ- 
 ten by the defender, acknowledging that she had 
 born a child to him under promise of marriage, and 
 in which she obtained a declarator of adherence be- 
 fore the Commissaries.
 
 TIT. V. WRITTEN DECLAIIATTON DE PR^SENTI. 37^ 
 
 , Barclay advocated the Commissaries' decree, al- 
 leging that the woman Barclay had carnal dealings 
 with some other person, and to whom she had bore 
 a child since she had a child to Barclay, and in which 
 the Lords fonnd, that she was bound to prove that 
 Barclay was the father of the second child. Vide 
 this case under the head of Proof Parole, p. 171. 
 
 2. Anderson v. Wishart ; Forbes, Die. vol. ii. tit. 
 Proof, p. 267 ; 23d February 1714. 
 
 This question originated in the Court of Session, 
 at the instance of a widow against the defunct's re- 
 l)resentatives, for payment of her legal provisions. 
 The Court found ** it sufficient to entitle a woman 
 to her terce of a deceased man's lands, that the de- 
 funct had owned his being married to her in liis let- 
 ter to a third party, and left and bequeathed a cer- 
 tain sum by testament to her, therein designed his 
 spouse, the letter and testament being holograph, 
 wanting place, date, and witnesses." 
 
 3. Jean Ballantine /.'. Wallace, not collected, but 
 supposed to liave been decided about the year 1771. 
 
 Robert \Vanace, about a month before his death, 
 and when upon death-bed, solemnly acknowledged 
 before the minister and elders of the parisli, that he 
 was married to Jean Ballantine, who liad lono- acted 
 in the capacity, first of a menial, and then of an 
 upper servant, in his aunt's house, where she had 
 resided for a considerable time ; and there seemed 
 to be evidence of his having declared the marriage 
 to have subsisted for several years, 
 
 II was notorious that Wallace and Jean Ballan-
 
 374) A DIGEST ON THE LAW OF MARRIAGE, book hi- 
 
 tine had long lived upon a very intimate footing, 
 but no children had existed from their connexion. 
 
 After the death of Wallace, Jean Ballantine, as 
 his widow, claimed her legal rights. She founded 
 upon a marriage having subsisted for many years 
 previous to the declaration emitted a month before 
 her husband's death ; and the question was, whe- 
 ther their former connexion was to be attributed to 
 concubinage or marriage ? 
 
 The Commissaries allowed a proof, in the course 
 of which it seemed to be clearly established, that a 
 written declaration holograph of Wallace, but with- 
 out a date, bearing that a marriage had subsisted 
 between the parties from a particular distant period 
 condescended on, had been put into the hands of 
 Jean Ballantine some years previous to Wallace's 
 death, and that, for a considerable time after this 
 declaration was in her possession, they had made 
 use of one bed. 
 
 The Commissaries found, that the marriage had 
 subsisted for some years ; and, a bill of advocation 
 having been presented, the Court adhered to that 
 judgment. 
 
 4. Elizabeth Ritchie v. James Wallace, 13th June 
 1792, but not reported. 
 
 The circumstances of this case are briefly these : 
 
 Elizabeth Ritchie became pregnant to the defend- 
 er, who gave her an acknowledgment, in his hand- 
 writing, in these terms : 
 
 " Januanj 1785. 
 
 " I, James Wallace, son to John Wallace of ^Val-
 
 TIT. V. WRITTEN DECLARATION DE TR.^SENTI. 37.5 
 
 lace Grove, do hereby acknowledge, that you, Eli- 
 zabeth Ritchie, daughter to Alexander Ritchie iu 
 Dumbray, is my lawful wife, and will solemnize the 
 marriage regularly between us, in the terms of the 
 rules of the church, as soon as convenient for us. 
 And I am your loving husband, 
 
 (Signed) '* James Wallace. 
 
 *' Addressed to Elizabeth Ritchie. 
 
 " Witness (signed) Janet Telfer." 
 
 In a process of declarator of marriage, Wallace 
 denied ever having written this acknowledgment ; 
 but it appeared, from various circumstances, to be 
 genuine. Elizabeth Ritchie founded upon it as a de- 
 claration de privsenti constitutiug a marriage, which 
 conclusion in law Wallace disputed ; but the Court, 
 by a majority of six Judges to three, sustained the 
 sentence of the Commissaries, which had found the 
 letter libelled on relevant to infer marriage between 
 the parties. 
 
 5. Helen Inglis v. Alexander Robertson, March 
 3, 1786; Fac. 9, Ap. 17; Mor. 12689. Affirmed 
 in House of Lords, February 14, 1787. 
 
 The pursuer instituted a declarator of marriage 
 before the Commissaries, against Alexander Robert- 
 son, upon the footing that he had taken her from 
 her service, put her to school, and maintained her 
 during an intercourse that subsisted for fourteen 
 years. He addressed letters to her under the ap- 
 pellation of his dear wife, gave her presents, her 
 health was drank to as his wife, to which he assent- 
 ed. The report, after mentioning the intercourse.
 
 376 A DIGEST ON THE LAAV OF MARRIAGE, book m. 
 
 states, — " In that time he addressed many letters to 
 her, under the appellation of his dear wife, subscrib- 
 ing himself her loving husband ; made her presents 
 of a gold watch, gold rings, his father and mother's 
 miniatures, pictures, and other such-like articles ; 
 was frequently seen to behave towards her with the 
 affectionate and respectful manner of a husband ; 
 and on one occasion, when in company with him, she 
 was drank as his wife : he seemed to assent to that 
 part of the address." 
 
 On the other hand, there was no proof as to ha- 
 bit and repute, and she had even declared that she 
 had no carnal connexion with him, and, in particu- 
 lar, she did so to a clergyman previously to her 
 being admitted to the sacrament. 
 
 The Commissaries, in the declarator which was 
 instituted by Helen Inglis, upon Robertson's enter- 
 ing into another marriage, and in defence he did not 
 deny concubitus, " found facts, circumstances, and 
 qualifications proved to infer marriage between the 
 pursuer and defender." 
 
 The Lord Ordinary took the cause to report upon 
 a bill of advocation for Robertson, when it was ob- 
 served from the Bench, — " The defect of proof and 
 cohabitation in this case proceeds, in some measure, 
 from the witnesses ascribing the intercourse between 
 the parties to a cause suggested by the disparity of 
 their rank. That defect is, therefore, to be supplied 
 by other circumstances, such as, the so frequently 
 writing letters by the defender to the pursuer, his 
 making presents to her of valuable family articles.
 
 TIT. V. WRITTEN DECLARATION DE PRiESENTI. 377 
 
 and his assent to the address made to her on the oc- 
 casion mentioned above." 
 
 The Court considered the cause as attended with 
 considerable difficulty, but, in general, the letters 
 seemed to be viewed as furnishing evidence of the 
 marriage. 
 
 The Lords refused the bill of advocation. 
 
 Robertson being dissatisfied with these judgments 
 of the Commissaries and the Lords of Session, car- 
 ried the case to the House of Peers, on appeal ; but 
 there it met with the same fate, for the appeal was 
 dismissed, and the interlocutors complained of af- 
 firmed, February 14, 1787. 
 
 6. Sibilla Aitkenson v. John Brown, 6th July 
 1787, not reported. 
 
 Here a written acknowledgment was found to es- 
 tablish a marriage. 
 
 We regret exceedingly that we are unable to give 
 even an outline of this rather recent case. It has 
 not been reported, nor can we discover any paper 
 relating to it. 
 
 7. Agnes Cochrane and daughter v. Andrew 
 Cochrane, Fac. 15th May 1804, Ap. 1, Mor. 
 
 This was a declarator of marriage and legitimacy, 
 and rested chiefly upon the defender's letter to the 
 pursuer, and his oath on reference before the Com- 
 missaries. The letter runs in these terms : — 
 " My Dear, 
 
 *' As a full proof and testimony of my regard and 
 aflfection for you, I hereby agree and bind myself 
 to be a real husband in all the sense of the word ;
 
 378 A DIGEST ON THE LAW OF MARRIAGE, book in. 
 
 and expects only the common ceremony of the out- 
 ward rule of marriage. And as a farther evi- 
 dence of my love and affection for you, and of 
 my sincerity in marriage, I do hereby bind and 
 oblige myself to accept of you as my lawful wife ; 
 and is willing and ready, at any time, to accept of 
 the common right here put in execution in a public 
 manner ; or if that cannot be conveniently done, 
 suiting to all parties, I am agreeable to accept, to 
 any measure you think proper, yourself, so as we 
 may be united together in marriage. To this I sign 
 my name as your real husband, agreeably to what 
 is already said above, and may nothing but death it- 
 self part us." 
 
 The Commissaries, 14th July 1802, pronounced 
 an interlocutor, finding that the defender and the 
 pursuer, Margaret Cochrane, are married persons, 
 husband and wife of each other, and that the pur- 
 suer, Agnes Cochrane, is her lawful child. 
 
 The defender being dissatisfied with this judg- 
 ment, presented a bill of advocation, on advising 
 which, with answers, replies, &c. the Lord Ordi- 
 nary pronounced the following interlocutor, 1st Dec. 
 1803, "The Lord Ordinary having considered this 
 bill, with the answers thereto, replies, and Commis- 
 sary Court process produced, and being of opinion 
 that the oath of the complainer, emitted by him on 
 the reference of the respondent, (whatever may 
 have been the previous words of the letter, the con- 
 tents of which are engrossed in the libel, are only 
 given according to the meaning and recollection of
 
 TiT.v. WlllTTKN DECLARATION DE rR/ESENTT. o79 
 
 the pursuer,) sufficiently establishes, that it was, at 
 the time, meant and understood by both parties, to 
 constitute a marriage de prae.senti, and bind them 
 as husband and wife, to each other ; and that its 
 effect, in that respect, is nowise taken off by any 
 thing therein stated, as to the circumstances which 
 have led to his granting it, or the views under 
 which he alleges it was afterwards delivered up to 
 her, and therefore, that it has been justly held as 
 entitling the pursuer to obtain the judgment de- 
 cerning in the declarator of marriage and adherence, 
 refuses the bill." 
 
 The defender petitioned the Court against this 
 judgment, which being refused, he presented a 
 second petition, in which he pleaded, that a promise 
 of marriage at some future time neither constituted 
 a marriage, nor aiforded action for declaring mar- 
 riage in a court of law, although it may subject the 
 party who unreasonably resiles, in damages. That 
 the writing imported nothing but a promise defu- 
 turOy and contains no consent dc praesenti.'* And 
 in support of this doctrine the defender referred to 
 the decided cases of M'Innes v. More, Taylor v. 
 Kells, and M'Lauchlan v. Dobson. 
 
 On the other hand, the pursuer contended, the 
 letter and oath constituted a de pracsinitl marriage, 
 and reference was made to Stair, 13. i. tit. 4, ^ (j. 
 Bank. B. i. tit. 5, § 24, and Ersk. B. i. tit. 6, § 5 ; 
 and also to the case of Inglis v. Robertson, as fur- 
 nishing a strong instance of a ^/c' ^j/y/cax'w// marriage
 
 380 A DIGEST ON THE LAW OF MARRIAGE, book hi, 
 
 founded upon a written acknowledgment, and af- 
 firmed in the House of Peers, 15th May 1804. 
 
 The Lords, in general, held, that a written ac- 
 knowledgment de praesentl was sufficient to con- 
 stitute marriage ; and on advising the reclaiming 
 petition for the defender, with answers, they ad^ 
 hered to their former interlocutor, confirming the 
 Commissaries' judgment, finding the marriage es- 
 tablished. 
 
 8. Gordon v. Dalrymple, decided by the Right Hon. 
 Lord Stov/ell, (formerly Sir William Scott) Nov. 
 1811, when his Lordship delivered the following 
 luminous and enlightened speech. 
 
 In March or April, 1804, Mr. John William 
 Henry Dalrymple, then nineteen years of age, ac- 
 companied the fifth regiment of dragoon guards, in 
 which he was a cornet, to the neighbourhood of 
 Edinburgh. Mr. Dalrymple is of Scotch extrac- 
 tion, but from his earliest years he had been brought 
 up in England. At Edinburgh he, shortly after 
 his arrival, became acquainted with Miss Joanna 
 Gordon, the daughter of a gentleman in a respec- 
 table situation in life ; and in consequence of a 
 mutual attachment, he visited her frequently at her 
 father's house in Edinburgh, and at Braid, his seat 
 in the country. In a paper without a date, Mr. 
 Dalrymple promises to marry Miss Gordon as soon 
 as it is in his power. 
 
 This paper is subscribed by both their names, 
 and indorsed, " A Sacred Promise." Another pa- 
 per, dated on the 28th of May 1804, contains these
 
 TIT. V. WRITTEN DECLARATION DE PR^SENTI. 381 
 
 words " I hereby declare Joanna Gordon is my 
 lawful wife ; and I hereby acknowledge John Wil- 
 liam Henry Ualrymple as my lawful husband." 
 Another paper contains a reiterated declaration on 
 the part of Mr. Dalrymple, accompanied with a 
 promise, that he will acknowledge Miss Gordon 
 as his lawful wife, the moment he has it in his 
 power.*' In this paper she makes no repeated de- 
 claration, but ])romises " that nothing but the great- 
 est necessity (necessity which her situation alone 
 can justify) shall ever force her to declare this mar- 
 riage." It is signed by him and by her, describing 
 herself J. Gordon, now J. Dalrymple, and is dated 
 July 11, 1804 ; and both these two last papers are 
 enclosed in an envelope, inscribed, " sacred promises 
 and engagements." It appears that Mr. Dalrymple 
 had strong reasons for supposing that his father 
 would disapprove of this connexion. He wrote 
 many letters to her, conceived in terms of the most 
 warm and devoted affection, in which he applied to 
 himself and her the terms of husband and wife ; and 
 they were in the habit of having clandestine noctur- 
 nal interviews, both at Edinburgh and Braid, to 
 which frequent allusions are made in those letters. 
 One of the most remarkable of these interviews 
 took place at Edinburgh, on the 6tli of July 1804, 
 when it was j)roved he remained with her the whole 
 of the night. In one of the letters, which has the 
 Edinburgh postmark, 27th May 1804,he insists that 
 slie shall draw upon him for any money she may 
 stand in need of, "for it is her right," and '-in
 
 382 A DIGEST ON THE LAW OF MARRIAGE, book in. 
 
 accepting of it, she will prove her acknowledg- 
 ment of it." Her sister he calls his sister. In 
 another letter, which has the post-mark of May 30, 
 he says, " You are my wife. To retract is impos- 
 sible, and ever shall be. I have proved my legal 
 right to protect you, which I have most fully estab- 
 lished ; nothing in this world shall break these ties." 
 Another letter has these expressions : " Remember, 
 you are mine. That God Almighty may preserve 
 my wife, is the prayer of her husband." At another 
 time he writes : " It grieves me to suffer you five 
 minutes from your husband. Nothing can change 
 my sentiments, independent even of those sacred ties 
 which unite us ; nothing ever can or should (if it 
 were possible) annul them. Put that confidence in 
 me which your duty requires. That God may ever 
 preserve my wife, and inspire her with the purest 
 love for her husband, is the first wish of her ador- 
 ing." He continues to write letters of a passionate 
 and even conjugal import, to pay nocturnal and 
 clandestine visits during the whole of his stay in 
 Scotland, but there was no cohabitation of a more 
 visible nature, nor any habit and repute, as far as 
 appears, but what existed in the surmises of the 
 servants and of the sisters. His father, alarmed by 
 the report of what was going on, removed him to 
 England about the 26th of July 180 4, where he 
 continued till 1805, when he sailed for Malta. His 
 last letter, written to her on the eve of his depar- 
 ture, reinforces his injunctions of secrecy, and con- 
 jures her to withhold all credit from any reports of 
 
 4
 
 TiT.v. WRITTEN DECLARATION DE Pll^SENTI. 383 
 
 the transfer of his affections to another. He conti- 
 nued abroad till May 1808, with the exception of a 
 month or two in the autumn of 1806, when he re- 
 turned for purposes not connected with this trial. 
 He then first disclosed to a friend, Mr. Hawkins, 
 the alteration of his affection, and commissioned 
 him to intercept all letters from Miss Gordon, ad- 
 dressed either to himself or General Dalrymple his 
 father. In consequence of the steps taken by Mr. 
 Hawkins, a correspondence ensued between him and 
 Miss Gordon, who, on the death of the General, in 
 spring 1807, asserted her marriage right, and fur- 
 nished him with copies of liei" marriage lines, but 
 took no legal steps to enforce her claim. On Mr. 
 Dairy mple's return, in May 1808, Mr. Hawkins 
 communicated to him what had passed between him- 
 self and the lady, and dissuaded him from embark- 
 ing in any new matrimonial connexion ; but, within 
 a very few days afterwards, Mr. Dalrymple mar- 
 ried Miss Laura Manners, in the most formal and 
 regular manner. On receiving intelligence of this, 
 the action against Mr. Dalrymple was immediately 
 commenced. 
 
 By the law of England, the validity of a mar- 
 riage must be tried with reference to the law of the 
 country where the marriage rights had their origin, 
 and consequently this question came to be judged 
 by the priiicijdes of the law of Scotland, the law 
 learning of which country was copiously transmitted 
 to the Court. According to the judgment of all the 
 learned gentlemen who were examined, the law of
 
 384 A DIGEST ON THE LAW OF MARUTAGE. BOOKiir. 
 
 Scotland binds Mr. Dalrymple, though a minor, a 
 soldier, and a foreigner, as effectually as it would 
 do had he been an adult, living in a civil capacity, 
 and with an established domicile in that country. 
 
 By the canon law, although marriage was reve- 
 renced as a sacrament, yet, when the natural and 
 civil contract was formed, it had then the full es- 
 sence of matrimony, without the intervention of the 
 priest ; and the consent of two parties, expressed in 
 words of present mutual acceptance, constituted an 
 actual and legal m.arriage, technically known by the 
 name of sponsalla per verba de prcesenti ; while 
 engagements for a fttture marriage, termed sponsa- 
 lia per verba defiituro^ required a subsequent copu- 
 la to have effect. The doctrine of the common law 
 respecting marriage continued to prevail in England 
 till the Marriage Act, 26th Geo. II. cap. 33, and in 
 Scotland continued to be the basis of the matrimo- 
 nial law to this day. Several regulations in that 
 country, both ecclesiastical and civil, canons and 
 statutes, have prescribed modes of celebrating mar- 
 riage ; but, though solemnization by a clergyman 
 is prescribed, other marriages have always been held 
 legal and valid, and the regulations are not penally 
 enforced by any sense of reputation or obligation 
 imposed by general practice. The question remains 
 to be examined, how far actual consummation is re- 
 quired, by the law of Scotland, in marriages which 
 are to be deemed irregular. The main inquiry comes 
 to be limited to two questions, — Whether, by the 
 law of Scotland, a present declaration constitutes or
 
 TIT. V. WRITTEN DECLARATION DE PR^.SENTI. 385 
 
 evidences a marriage settlement without a copula f 
 and, 2dly, Whether, if it does not, the present evi- 
 dence supplies sufficient proof, that such a requisite 
 has been complied with ? 
 
 The determination of the first question must be 
 taken from the authorities of that country, premis- 
 ing, that in all instances where it is not proved that 
 the law of Scotland has resiled from the common 
 law, the fair presumption is, that it continued the 
 same. 
 
 The evidence of opinions on this point stands 
 thus : Messrs. Erskine, Craigie, Hamilton, Hume, 
 and Ramsay are all clear and decided in their opi- 
 nions, that a declaration ^9^r verba de prcBsenti^ with- 
 out a copula, does, by the law of Scotland, constitute 
 a valid marriage. To these authorities must be 
 added the opinions of the learned persons examined 
 on the case Beamish v. Beamish, a case of Scotch 
 marriage of an Englishman with a Scotchwoman, 
 in 1788, in which the Court of Arches, to which it 
 was appealed on the law information obtained from 
 the learned Advocate of Scotland, pronounced for 
 the validity of the marriage. Mr. John Millar, pro- 
 fessor of law at Glasgow there, said, " that, by the 
 law of Scotland, the ceremony of being married by 
 a clergyman was not necessary to constitute a valid 
 marriage." The deliberate consent of parties en- 
 tering into an agreement to take one another for 
 husband and wife, was sufficient to constitute a le- 
 gal marriage, as valid in every respect as that which 
 is celebrated in the presence of a clergyman. Con-
 
 iiS6 A DIGEST ON THE LAW OF MARRIAGE, book. in. 
 
 sent must be expressed or understood to be given 
 2)er vet^ba de iwaesenti, for a consent de futuro, that 
 is, a promise of marriage, does not constitute actual 
 marriage, ^y the Scotch law the deliberate consent 
 of parties constitute marriage. Mr. John Orr said, 
 " By the law of Scotland a solemn acknowledgment 
 of a marriage having happened between the parties, 
 whether verbally or in writing, is sufficient to con- 
 stitute a marriage, whether expressed in verbis de 
 praesent'i., or an acknowledgment that the marriage 
 took place at a former period. A promise, followed 
 by a copula, would constitute a valid marriage ; and 
 a written instrument, containing not a consent de 
 'praesenti, but only stating that the parties were 
 married at a certain time, or even a solemn verbal 
 acknowledgment to that effect, although an actual 
 marriage had taken place, is sufficient to constitute 
 a marriage by the law of Scotland." Mr. Hume 
 said, marriage is constituted by consent of parties, 
 to take or stand to each other in the relation of 
 husband and wife. The mode or form of consent 
 is not material, but it must be de praesenti. Mr. 
 Erskine and Mr. Robertson agreed in saying, '* that 
 a deliberate acknowledgment of the parties that 
 they were married, though not containing a con- 
 tract per verba de praesenti, is sufficient evidence 
 of a marriage, without the necessity of proving the 
 actual celebration." Mr. Clerk, Mr. Gillies, Mr. 
 Cathcart, examined on the part of Mr. Dalrymple, 
 are equally clear in their opinion on the other side 
 fif the ([uestion. Mr. Wwy inclines to think a copu- 
 
 I
 
 TIT. V. WRITTEN DECLARATIONS DE PR^SENTI. 387 
 
 la necessary, " Although well aware that a difFer- 
 ent opinion prevails amongst lawyers on this point.'* 
 Sir Hay Campbell's opinion is ambiguous. In the 
 former part of his deposition he says, " that by the 
 general principles of the law of Scotland, marriage 
 is perfected by the mutual consent of parties ac- 
 cepting each other as husband and wife ;" but in a 
 latter part he lays it down, that this acknowledg- 
 ment ^;er verba de praesentl, must be attended with 
 personal intercourse, prior or subsequent, without 
 which intercourse " they would resolve into mere 
 stipulatio sponsalia, where the words are cle prae- 
 senti, but the effect future. There is the greater 
 difficulty in ascertaining the decided judgment of 
 this very eminent person, as, in an opinion of his 
 given into the English Court of Chancery, in the 
 case of Thomasson and Grierson, August 18th 1781, 
 a present contract is stated to be sufficient to vali- 
 date a marriage, without any mention of a copula, 
 antecedent or subsequent. There is the opinion, 
 also of a person whose death is justly lamented as 
 one of the greatest misfortunes that have recent- 
 ly visited that country — the late Lord President 
 Blair, upon whose deliberate advice and judgment 
 the action against Mr. Dalrymple was brought. 
 Much the greater number of learned persons recog- 
 nise a rule consonant to that which, in ancient 
 times, governed the subject universally ; and there- 
 fore, it appears not to be proved, as far as the 
 
 weight of opinion goes, that the law of Scotland 
 
 '^ 1,'
 
 388 A DIGEST ON THE LAW OF MARRIAGE, book ill. 
 
 has innovated upon the ancient general rule of the 
 marriage law of Europe. 
 
 With respect to the contract, the language is 
 clear and unambiguous in the expression of intent. 
 No other intention is assigned, and whatever doubts 
 Mr. Dalrymple might entertain of the validity of the 
 measure, if he felt no doubt of his own meaning, if it 
 was his intention to bind himself so far as by law 
 he could., that is enough to sustain the contract, — 
 for it is not his iminformed opinion of law, but his 
 real intention that is to be regarded. The declara- 
 tions, therefore, not being impeached by any of those 
 ill qualifications, by which, in the law of Scotland, 
 a contradictor is permitted to redargue and over- 
 come the presumption arising from the production 
 of such instruments, they become, in this shape of 
 the matter, praesumiitio juris et de jure, that 
 found an instant conclusion of marriage. 
 
 Supposing, however, this principal position 
 wrong, it is necessary to proceed, in the next place, 
 to inquire what proof there is of conjugal inter- 
 course having taken place between the parties. In 
 the first place, it is most strongly to be inferred 
 from one of the papers, that some intercourse of a 
 conjugal nature, passed between them. Miss Gordon 
 says, " I hereby promise that nothing but the great- 
 est necessity (necessity which situation alone 
 can justify) shall ever force me to declare this mar- 
 riage." This evidently refers to the consequences 
 which might follow from such an intercourse. Mr. 
 Dalrymple denies that any intercourse took place
 
 TiT.v. WRITTEN DECLARATIONS DE PRiESENTI. 389 
 
 after the date of the written declaration. Takins:, 
 then, into consideration, these depositions of Ihe 
 parties, — his desire to have the enjoyment of her 
 person, on the one hand, and her solicitude to ob- 
 tain a marriage, on the other, which, after the de- 
 livery of such sentiments, she knew might be ho- 
 nourably obtained, by the mere surrender of her 
 person, what is the probable consequence ? In this 
 part of the island the same circumstance would not 
 induce the probability of a private surrender, but in 
 Scotland the case is very different, because, in that 
 country, the woman, after such declarations passed, 
 carries her virgin honours to the private nuptial 
 bed, with as much purity of mind and person, and 
 with as little loss of reputation, as if the matter was 
 graced with all the sanctities of religion. A most 
 forcible presumption therefore arises, that parties 
 so situated would, for the purpose of a secret mar- 
 riage, resort to such a mode of effecting it, if op- 
 portunities offered. It appears, from the evidence, 
 that the conviction lasted during the whole of Mr. 
 Dalrymple's stay in Scotland, both by letters, and 
 by frequent nocturnal private visits, at Edinburgh 
 and Braid. Grizel Lyall, who occasionally waited 
 on Miss Gordon, says, that by her orders, she fre- 
 quently, in Edinburgh, "let Captain Dalrymple in- 
 to the house, about nine, ten, or eleven o'clock at 
 night, without his ever ringing the bell or using 
 the knocker ; that the first time he came in this 
 way, she showed him up stairs, to the dressing room 
 of the young lady's bed-room, where Miss Gordon
 
 390 A DIGEST ON THE LAW OF MAIIRIAGE. book iir. 
 
 then was ; but that afterwards, upon her opening 
 the door, he went straight up stairs, without speak- 
 ing or being shown up. " On the evening preced- 
 ing the king's fast day, the 7th June, Mr. Gordon's 
 family went to Braid, but Miss Gordon remained in 
 town, as also Lyall, Mr. Robertson the butler, and 
 one or two more of the servants. Lyall states, " that 
 she recollects admitting Captain Dalrymple that 
 evening, as she thinks, sometime between ten and 
 twelve o'clock, and he went up stairs to Miss Gor- 
 don without speaking, that on the next morning 
 she went up stairs to Miss Gordon's bed-room about 
 nine o'clock, and informed her of the hour ; and hav- 
 ing immediately gone down stairs, Miss Gordon rung 
 the bell some time after, and on the deponent going 
 up to her, she met her, either at the bed-room door, 
 or at the top of the stairs, and desired her to look 
 if the street door was locked or unlocked, and the 
 deponent having examined, informed her that it 
 was unlocked, and immediately after went into the 
 dressing-room, and after being a very short time in 
 it, she heard the street door shut with more than 
 ordinary force, which having attracted her notice, 
 she opened the window of the dressing-room, which 
 is to the street, and on looking out, she observed 
 Captain Dalrymple walking eastwards from Mr. 
 Gordon's house, and from this she suspected that 
 Captain Dalrymple was the person who had gone 
 out of the house just before." Robertson confirms 
 this account ; he says, " that on the 7th of June, 
 which was the king's fast, as he was emploj^ed about 
 
 4
 
 TIT, V. WRITTEN DECLARATIONS DE PU^SENTI. 391 
 
 ten o'clock in the morning in laying up some china 
 in his pantry, which is immediately off the lobby, 
 he observed Captain Dalrymple coming down stairs, 
 and passing through the lobby to the front door, 
 unlock it, and go out and shut the door after him.'* 
 Lyal depones to showing Captain Dalrymple up 
 stairs at Braid on 7th June, between ten and twelve 
 at niglit, when they were met by Miss Gordon at 
 tlie door of her bed-chamber, when they two went 
 into the bed-chamber, and she returned down stairs, 
 and did not know when Captain Dalrymple went 
 away. Three other witnesses, Robertson and the 
 two gardeners, all prove that Mr. Dalrymple was 
 seen going into the house in the night, or coming 
 out of it in the morning. A witness of the name of 
 Brown, Mr. Dahyniple's own servant, says, " that 
 he dc^es not believe that Mr. Dalrymple did, on the 
 night of the 18th July, go back to and remain in 
 the said Mr. Gordon's country-house." The wit- 
 ness, Lyal, upon her cross-examination, indeed says, 
 " she does not think they could have been in bed 
 together, as far as she could judge," but what means 
 she took to inform her judgment does not appear ; 
 and she is an unmarried woman, and might be mis- 
 taken with respect to appearances. But the ques- 
 tion is not VA hat inference Lyal draws, but what in- 
 ference tiie Court ought to draw upon the fact prov- 
 ed by her evidence, that Mr. Dalrymple passed the 
 whole night in Miss Gordon's room under all the 
 circumstances described, with passions, motives, and 
 opportunities, all concurring between persons con-
 
 392 A DIGEST ON THE LAW OF MARRIAGE, book iii. 
 
 nected by ties of so sacred a nature. The letters, 
 too, certainly abound with expressions referring to 
 such an intercourse. — " My dearest sweet wife, you 
 are, I dare say, happy at Queensferry, while your 
 poor husband is in this most horrible place, tired to 
 death, thinking only on what he felt last night, for 
 the height of human happiness was his" In an- 
 other letter he says, " Put off the journey to Braid, 
 if possible, till next week, as the town suits so much 
 better for all parties. I must consult L. on that 
 point to-morrow, as I well know a-propos plans 
 come into her pretty head, there appears to be only 
 one difficulty, which is, where to meet, as there is 
 only one room, but we must obviate that if possible.' 
 In the next letter he says, " But I will be with you 
 at eleven o'clock to-morrow night — meet as usual. 
 P. S. Arrange every thing with L. about the other 
 room." Miss Gordon swears positively that inter- 
 course passed between them subsequently to the 
 written declaration, or acknowledgment of marriage, 
 and Mr. Dalrymple swears as confidently that it 
 did not so take place ! but he admits that it did, on 
 some one night of the month of May, prior to the 
 signature of the first paper indorsed " Sacred pro- 
 mise," the date of which she does not sign. It cer- 
 tainly does often happen that men are satiated by en- 
 joyment ; but it is a thing quite incredible, that a 
 man so satiated and clogged should afterwards bind 
 himself by voluntary engagements to the very 
 same party who had worn out his attachment. If 
 the consummation then is proved, as it is fully, then,
 
 TIT. V. WRITTEN DECLARATION'S DE PR^SENTI. 393 
 
 according to |he common consent of all legal specu- 
 lation on the subject, there is an end of all doubt in 
 the case, unless something has since occurred to de- 
 prive the party of the benefit of a judicial declara- 
 tion of her marriage. 
 
 The first marriage, if it be a marriage upheld by 
 the law of the countrv, can have no competition in 
 any second marriage, for there can be no second 
 marriage, of living parties in any country which 
 disallows polygamy. There may be a ceremony, but 
 it is a mere nullity. 
 
 It has been said that by the law of Scotland, if 
 the wife of the first marriage chooses to lie by and 
 suffer another woman to be trepanned into a mar- 
 riage, she may be barred jyersonali exceptione, from 
 asserting her own marriage, but this principle never 
 found its way into the law of England ; and there 
 is no proof, upon the exhibition of Scots law, fur- 
 nished to the Court, that such a principle was ever 
 admitted authoritatively. Supposing, however, the 
 law to be othervvise, this marriage was to remain a 
 profound secret till he should think proper to make 
 a disclosure. On the death of General Dalrymple, 
 Miss Gordon instantly asserted to Mr. Hawkins 
 her marriage ; Mr. Hawkins having, in the end, no 
 doubt of the marriage, cautioned Mr. Dalrymple in 
 the most- anxious manner against marrying Miss 
 Manners, and described the mischief which miaht 
 result from it. On the 2d of June, Mr. Dal- 
 rymple was married to Miss IManners before it was 
 possible that Miss Gordon could know the fact of 
 his arrival in England, and upon her knowledge of
 
 394 A DIGEST ON THE LAW OF MARRIAGE, book m. 
 
 the marriage, she immediately proceeded to call in 
 the aid of the law. What could a woman, with 
 propriety, have done more to establish her marriage 
 rights ? Mr. Dalrymple was all the time abroad, 
 and the place of his residence perfectly vmknown to 
 her — no process could operate upon him from the 
 Courts, either of England or Scotland, nor was he 
 amenable to the law of either country, and if an 
 innocent lady has been betrayed into a marriage, 
 which conveys to her neither the character nor 
 rights of a wife, the conduct of Miss Gordon is 
 chargeable, neither morally nor legally, with having 
 contributed to so disastrous an event. 
 
 The sentence of the law therefore is, ** That 
 Miss Gordon is the legal wife of John William 
 Henry Dalrymple, Esq., and that he in obedience to 
 the law is bound to receive her home in that cha- 
 racter, and to treat her with conjugal affection." 
 
 9. Jean Laing v. George Reid of Ratho-bank, 
 where a marriage was found, 20th November 1819- 
 — Affirmed in the House of Peers, 14th May 1823. 
 
 This case has a strong affinity to the preceding, 
 perhaps much more than any other, as will appear 
 from the facts to be noticed in detail. 
 
 The father of Jean Laing was for some time em- 
 ployed in the service of the defender, and some years 
 ago died in that service. For a considerable time 
 the pursuer resided in the neighbourhood of Ratho- 
 bank, and very early distinguished by the atten- 
 tions of the defender. Even when at school, the 
 defender made love to her, and their correspond- 
 ence commenced in the vear 1802. Soon afterwards 
 
 f
 
 riT.v. WRITTEN DECLAKATIOXS DE PR.ESENTI. 395 
 
 she was engaged as a servant in the house of the 
 defender, whose mother and sisters then lived in 
 family with him, and in the year 1803 he talked 
 to her of love and marriage. His attention to 
 her was such that it caught the notice of his house, 
 and obliged her to leave the service and engage her- 
 self as a servant with Mr. M'Knight of Ratho, in 
 the immediate neighbourhood, with whom she re- 
 mained for six months, in the course of which the 
 defender kept uj) his communication with her both 
 by letters and private meetings. Upon leaving Mr. 
 M'Knight, the pursuer went to her father's house, 
 where she remained for six months, and during 
 this period they had frequent meetings, and walked 
 and conversed for hours together. They carried 
 on a written correspondence by secretly sending 
 cards to each other, and sometimes concealing thes'^ 
 in particular places previously fixed on by them. 
 In one of the letters he says, " Let me know if all 
 went right with you at hojne, and if there was no 
 suspicion on our last meeting. I thought you 
 was going to baulk me last Sunday afternoon." 
 Again, " I expect to have the pleasure of seeing 
 you, according to promise, on Thursday next, at 
 nine o'clock, at tlie same place we met before. 
 There will be a little moon, but probably the clouds 
 will darken its rays, and it will not be bright — 
 come at all events. I u ill wait two hours for you." 
 The manner in which their correspondence was car- 
 ried on is shown by the following passages in his 
 letters to her. " Will vou have the kindness to
 
 396 A DIGEST ON THE LAW OF MARRIAGE, book in. 
 
 answer me this as soon as you can, and lay it helow 
 this stone. I expect the pleasure of an answer im- 
 mediately, if possible, to this, and I will write you 
 again on Saturday next, and lay it helow the same 
 stone, and request your attention to it.'* In an- 
 other letter written to the pursuer while in Edin- 
 burgh, he refers to their correspondence in the fol- 
 lowing terms : " My situation recalled to my re- 
 membrance yours, when I once thought I had lost 
 you. Twice a-day did I for a whole fortnight visit 
 iJie lonely stone, where we agreed to carry on our 
 correspondence, and as often was I saluted by my 
 own unopened letters." From another letter it 
 would appear that a tree was often the receptacle of 
 their letters. " You will hear again from me on 
 Monday, hut I will put the card at the tree east at 
 the planting where before. Farewell, ray dear." 
 
 Such were the means to which the parties resort- 
 ed for the purpose of keeping up their communica- 
 tions, at this time, when their courtship was going 
 on, and according to our law, ended in marriage. 
 
 That their intercourse might be concealed from 
 Mr. Reid's family, while he thought it necessary to 
 do so, it was agreed upon that she should take a 
 service in Edinfjurgh, by which means the defender 
 could have an opportunity of seeing her every 
 week, when he came to town, without any danger 
 of discovery. Accordingly, at Martinmas 1808, 
 the pursuer engaged with Mrs. Watson, in Hope 
 Street, Edinburgh, but before leaving the coun- 
 tr)^, six miles from town, Mr. Reid being anxious
 
 TIT. V. WIRTTEN DECLAKATIOXS DE miESENTI. 397 
 
 to secure her irrevocably to himself, he entreat- 
 ed and insisted that she should exchanae with 
 him a mutual declaration of marriage. For this 
 purpose the defender, in one of his letters, sent to 
 the pursuer a copy of the acknowledgment he pro- 
 posed to write, and at length, on the 18th October 
 1808, he delivered to her a holograph declaration 
 in the following terms : " I hereby engage to be a 
 true, a faithful, a kind and affectionate husband to 
 you, on conditions you are the same to me ; and 1 
 farther engage to show this to no person, and to 
 make it known to nobody whatever without your 
 consent. (Signed) George Reid." 
 
 A holograph letter to the same effect was given 
 to the pursuer by the defender, upon receiving the 
 above acknowledgment, as admittt^d by the defender 
 upon oath, in the process of declarator of marriage 
 after mentioned. "Interrogated if be received from the 
 pursuer an acknowledgment of marriage in the year 
 1808? Depones and answers, I did ; I received a 
 note of that description. Interrogated if he has it 
 now, or v/hat he has done with it? depones and 
 answers, I destroyed it at that time or soon after." 
 
 It is proper to mention, that at the time these 
 documents were exchanged the defender took the 
 pursuer by the hand, and calling God to witness that 
 they were married j)ersons, solenmly declared, that 
 he would, while sun and moon endured, acknow- 
 lege the pursuer as his wife. 
 
 Mr. Reid, in the entire belief that he and the 
 pursuer were married persons, requested that the
 
 398 A DIGEST ON THE LAW OF MAIIRIAGE. book ih. 
 
 inarriage should be consummated, as she was in a 
 few days afterwards to leave the country, and, ac- 
 cordingly, on the 4th November, he had conjugal 
 connexion with the pursuer in a house upon his pro- 
 perty which had not then been inhabited, although 
 it was partly furnished. 
 
 At Martinmas 1808, she entered into the service 
 of Mrs. Watson, where she remained for one year 
 and a half. During this time Mr. Reid showed the 
 utmost attention to the pursuer, calling upon her 
 every week he was in town, writing to her often two 
 or three times in the course of as many days, and 
 sometimes calling her his dear wife. Of these visits 
 there is abundant evidence, written and parole. 
 Among the numerous letters that had been produced, 
 above 200, there are nearly threescore pointing out the 
 time and the place where their meetings were to be 
 held, and during this voluminous correspondence, al- 
 though there are many injunctions as to secrecy, 
 yet there is not a single expression inconsistent with 
 the situation of the parties as husband and wife. 
 Much ardour of amorous affection is expressed ; but 
 the sanctity of the married state is never forgotten 
 for an instant ; and the defender never treats with 
 levity the woman whom he has recognised as his 
 wife. During a severe illness with which she was 
 aifected at this time, occasioned by her being ex- 
 posed to cold in her frequent nightly walks with 
 the defender, he sent frequent messages, and made 
 the most anxious inquiries both verbal and in writ- 
 ing, concerning her health, and while the pursuer
 
 TIT. V. AVllITTEN DECLARATIONS DE PR^SENTI. 399 
 
 M^as in this state, and unable to return answers to 
 his letters, they were answered by Miss Lees, a 
 young lady then residing with Mrs. Watson. He 
 himself states this in one of his letters, " I wrote 
 you when you had gone out, enclosing a letter to 
 Miss Lees, thanking her imrticidarhj for her hind- 
 ness and attentmi to you. Among other things I 
 compared her to a guardian angel sent down from 
 above to cheer and comfort you, while a fiend had 
 been let loose from below to torment and embitter 
 your sorrows. Tlie letters were returned to me 
 unopened. You must just thank Miss Lees and 
 Rachael for their kindness yourself. You hav^e reason 
 to be most grateful.'' But this was not all ; he 
 wrote to Miss Lees, as deponed to by that lady, 
 making " particular inquiries after her health, and 
 desired, if she could be moved, a carriage should be 
 got to send her to her mother's at Ratho, and that 
 every thing should be got to make her comfortable, 
 such as doctors, &c., and that he would defray all 
 the expenses ; and the deponent adds, that at this 
 time the pursuer was very ill and confined to bed." 
 The pursuer intended to have left Mrs. Watson's 
 at the end of the year, being the time which Mr. 
 Reid had formerly fixed as the period at which he 
 would avow his marriage, but some fainily arrange- 
 ments prevented her removal, and he accordingly 
 begged the pursuer to remain other six months with 
 Mrs. Watson. This is proved by the following let- 
 ter : " My wish is certainly to let you remain an 
 .short a time as jw.ssib/ey therefore if ijoit can ar-
 
 400 A DIGEST ON THE LAW OF MAlllllAGE. bookiii. 
 
 range mattei's so as to remain in your present place 
 for half a year, it would he most gratifying to me. 
 I think you say you would rather remain where you 
 are, as go where we would unavoidably be kept at 
 a distance from each other, from which I infer you 
 would consent to remain in your present situation. 
 Let me then entreat of you to contrive to make it 
 convenient to remain." 
 
 Still, however, he deferred avowing his marriage, 
 and to take her home to his own house, and he 
 prevailed on her to go to the service of Mr. Carfrae 
 in York Place. Mr. Carfrae's family removed to 
 Queeosferry, where they remained till the end of 
 September 1810, and while there he visited her 
 more than once, and were often together for hours. 
 Their correspondence here was kept up, and they 
 generally wrote to each other once a-week, and 
 after Mr. Carfrae's return to town he corresponded 
 and visited her there also. About this time her 
 father died, and then she went and lived with her 
 mother for some time, and afterwards entered to 
 the service of Mrs. Kerr of Woodburn, near Dal- 
 keith, where he saw her and had correspondence by 
 letters. 
 
 At Martinmas 1811, the pursuer went in to the 
 service of Mrs. Congleton, Castle Street, with whom 
 she remained for two years, the first year chief- 
 ly in Castle Street, and the other at West Grange, 
 where the defender on one occasion remained with 
 the pursuer all night. She left Mrs. Congleton, upon 
 Mr. Reid having complained that he could not see
 
 TIT. V. WRITTEN DECLARATIONS DE PRESENT!. 401 
 
 ber as often as he could wish, and at his request, 
 therefore, she entered at Martinmas 1813, into the 
 service of Mr. Robert Gillies, Advocate, Great King 
 Street. 
 
 Before engaging with Mr. Gillies, the pur- 
 suer Insisted upon Mr. Reid taking her home, and 
 acknowledging her publicly as his wife, according 
 to his engagement, but this he said he could not do 
 at that time, as he was unable to pay off his sisters' 
 portions, before he could remove them from his 
 house, to make way for the pursuer. He, how- 
 ever, promised to take her home in twelve months 
 thereafter. The same intercourse continued after 
 the pursuer entered into the service of Mr. Gillies, 
 and they continued to see one another frequently, 
 and to carry on their correspondence, but latterly 
 Mr. Reid's visits and letters were not so frequent 
 as before. 
 
 Upon being reminded of his promise to take the 
 pursuer home, Mr. Reid renewed his assurance that 
 he would soon do so, and in October 1815, he again 
 remained with the pursuer all night, as is proved 
 by the defender's declaration, and he then told the 
 pursuer h^- would settle every thing to her wish on 
 the week of Ilallow-Fair ; but instead of performing 
 his promise, he became less attentive, and always 
 found some excuse for not fulfilling it. At the end 
 of sunmier 1816, he desired the pursuer to give up 
 her place, and said that he would take her publicly 
 home as his wife. The pursuer wrote him that
 
 402 A DIGEST ON THE LAW OF HIARUIAGE. book hi. 
 
 she had given up her place, and Mr. Reid came to 
 town at the appointed time. He then made new 
 excuses and new appointments, but when the time 
 arrived still put off. 
 
 But his strong love and attachment to her, which 
 had lasted for many years, are expressed in the 
 most unequivocal manner by repeated letters, in 
 effect admitting conjugal intercourse with her 
 during their nocturnal visits, and designating him- 
 self to be her husband, and calling her his wife, and 
 of which letters the following are examjjles : — 
 
 *' Saturday. 
 
 " My Lovely Creature, 
 
 " I expect you will be uncommonly attentive 
 to me to-morrow and I will be no less to you. 
 
 " I never admired you half so much as I did this 
 week ; you are improving (if it is possible) amaz- 
 ingly. 
 
 " I expect to have the pleasure of seeing you, ac- 
 cording to promise, on Thursday next at nine 
 o'clock, at the same place we met before ; there will 
 be but little moon, but probably the clouds will 
 darken its rays, and it will not be brigh/^. Come 
 at all events. I will wait two hours for you, I 
 will bring no horse, not to give suspicion. 
 
 ") Accept a few beautiful apples, like yourself, 
 picled hy your lover on purpose. 
 
 " Farewell my ever dear angel; I expect to hear 
 from you to-morrow at farthest. 
 
 >j
 
 TiTv. WRITTEN DECLARATIONS DE PR^ESENTI. 403 
 
 " Tuesday Morning. 
 
 " My ever kind and delicious Creature, 
 
 " The sensations you awakened in my 
 breast by your sweet attention to me last night, when 
 I came west on purpose to see you on my return 
 from town, are not to be described. 
 
 " Write me to-morrow, I entreat you, a kind and 
 soothing letter, it is the only balsam I get to my 
 wounded spirit. 
 
 " Remember Thursday next ; come rather before 
 nine to the house. / will he sure to attend my 
 sweet charmer, lleceive a few apples, and accept 
 of the small handkerchief they come in for my 
 sake. 
 
 " I will bring you something sweet from town 
 soon. Adieu, mij ever sweet and adorable angel" 
 
 " Monday 31orning. 
 " My Dearest Angel, 
 
 "I am not a little surprised, indeed, 
 
 that you have not answered ray note, nor taken 
 
 the smallest notice of me for these some weeks 
 
 past. What ! do you mean to force me to look out 
 
 for another^ and imrt imth the dearest ohject of my 
 affections f No, surely ; the very thoughts of it 
 makes me miserable and forlorn. I am sure / am 
 
 faithful and steady to you, and you can have no 
 cause for such behaviour. I am afraid you are 
 turning indilFerent about me, otherwise you would 
 show me more kindness. 
 
 2 G
 
 404 A DIGEST ON THE LAW OF MARRIAGE. booK Hi. 
 
 " Farewell, my saucy, yet dear, sweet, lovely, 
 angelic creature, my heart is with you. 
 
 " Receive some fruit^ow your garden, I have 
 a strange story to tell you. Adieu." 
 
 " Friday Morning, 
 " My heart is sore, I long to speak with you ; 
 I saw you yesterday keep your eyes fixed on the 
 seats south of you. I thought it was not the eye 
 of curiosity, but the eye of love, and that you had 
 found out some new object of affection, and that I 
 was forgotten, I was much distressed, and inca- 
 pable of paying you my usual attention. I saw 
 you beheld it, for you was sullen in the afternoon, 
 and was not so kind as usual. You know I can- 
 not suffer any division in your affection ; and I 
 beg you will explain to me what you was looking 
 so earnestly at ; for if you are capable of admiring 
 any other person, farewell my happiness. 
 
 " Langhouse, Tuesday Evenings 
 '^Sd January, 1804. 
 *' My Sweet and Amiable Jean, 
 
 " I have the satisfaction to think that ever 
 since I was engaged to you, and even ever since 1 
 first fell in love with you, which is now a long time 
 indeed, I can defy even malice itself to say that I 
 have been unfaithful. On the contrary, I am, and 
 have continued most true and honourable to you ; 
 it is the sweet comforter of my days to think of
 
 I 
 
 TIT. V. WRITTEN DECLARATIONS DE PRiESENTI. 405 
 
 you, and the many pleasing though sometimes 
 melancholy scenes that have passed between us. 
 
 " Saturday JSIorning. 
 
 " My Dear Sweet Delightful Creature, 
 
 " If it were possible I am ten thousand 
 times more attached to you than ever. / ash your 
 pardon if I did any thing to offend your feelings 
 the last night. You well know, thai I feel doubly 
 any thing that hurts you ; your goodness, your 
 sweetness, has raised you much higher indeed in 
 my estimation. I hope you will give me a douhle 
 display of your attachment to me to-morrow^ and I 
 certainly shall do the same to you" 
 
 " The person you love adores you, and is faith- 
 ful to you, and cannot exist without you, would 
 sacrifice his life and fortune for you. And I have 
 the same cause to rejoice as the lass I love I know 
 also loves me dearly. 
 
 " Let us therefore be happy; better times will 
 come ; and I said before, brighter suns and happier 
 days will yet dawn on us, and nothing on earth 
 can separate me or my affections from you. While 
 this mortal fabric of mine continues to be ani- 
 mated by the genial warmth of existence, as 
 long as my affections hold their seat, you shall 
 possess the most exalted place in my heart. Your 
 image is daily present to my view, and it haunts 
 my imagination during my sleep. I expect to 
 hear from you to-morrow ; I do not care how 
 you write, if it come from you, it is quite enough 
 to me.
 
 406 A DIGEST ON THE LAW OF MARRIAGE, book hi. 
 
 " Farewell, my dearly beloved. Accept a few 
 apples, &c. from your garden. Remember your 
 husband. I will write you again on Thursday. 
 
 " You know well I cannot for one moment suffer 
 the smallest division in your affections, and if you 
 are struck in any other quarter, and only making 
 a pretence to me, I beg you will be so candid as 
 say so, and I will know how to act. I shall not 
 ask you to give it up, but indulge it as much as 
 you please, if it is your taste, only I will judge for 
 myself. 
 
 '* / need not tell you of the sacrifices I have 
 made for you, how I have deserted every other 
 consideration, and attached myself to you ; they are 
 well hnown to you. 
 
 " I cannot so much as dream, what was your 
 meaning, for the moment my eyes were off you, 
 you directed them most artfully and feelingly to 
 the place already mentioned, and took them off as 
 artfully when I looked at you again. / am almost 
 mad. I cannot say farewell." 
 
 In conclusion of a letter he says " Meantime, my 
 dearest wife, I remain your unalterable, G. R. 
 
 At last, in 1816, she became desirous to have 
 their marriage solemnized ; and he having express- 
 ed a wish to have it still kept secret, she wrote 
 to him this letter, " As you have considered me 
 your wife, I agree to a private solemnizing our 
 marriage on Wednesday fortnight j and I consent 
 1o keep this agreement secret till a reasonable time, 
 which I expect you to liinit when you write on
 
 TIT. V. WRITTEN DECLARATIONS DE PR^ESENTI. 407 
 
 Wednesday. I remain your affectionate wife. 
 (Signed) Jean Laing." 
 
 " If these lines do not meet your consent, I can 
 give no other ; I have no occasion to bind myself to 
 a new misery. It is my earnest wish to look into 
 your interest as much as my own ; and if it is to 
 serve you any advantage for me to stay in my place 
 for a short time, I am agreeable ; but you must 
 fix a time, for you may never find it convenient. I 
 hope you will com forward on honour on Wednes- 
 day fortnight ; if not, you need not plead another 
 excuse, for I am in no ways interested which way 
 it goes ; but at that time it will be settled." 
 
 In defence against the action raised before the 
 Commissaries, concluding, inter aliUy for marriage, 
 Mr. Reid pleaded, 1. That there was no proof of a 
 de 'prcEsenti consent to marriage ; but that the mu- 
 tual declarations and correspondence amounted only 
 to a promise of marriage de futuro ; and, 2. That 
 he denied there had been any copula consequent up- 
 on that promise. 
 
 The Commissaries appointed Mr. Reid to be ju- 
 dicially examined, and thereafter appointed the pur- 
 suer to give in a condescendence of what she aver- 
 red as to a copula having taken place. She accord- 
 ingly stated, that, one night in November 1808, 
 Mr. Reid had connexion with her in a house be- 
 longing to himself at Ratho. As to this, he admit- 
 ted, in his declaration, that they had gone together 
 into that house, which was not finished, and not in- 
 habited — that there was no light in it — that they
 
 408 A DIGEST ON THE LA^\ OF MARRIAGE, book in. 
 
 remained together an hour, or an hour and a half ; 
 but stated, that the only freedom which he took 
 with her was kissing, and that kind of thing. She 
 further alleged, that he had connexion with her 
 when she was residing in Hope Street. And ac- 
 cordingly two witnesses deponed, that he was in 
 the practice of visiting her often in the evenings, 
 remaining with her the greater part of the night ; 
 and that, on one occasion in particular, the bed, 
 which was in the room where they were, had the 
 appearance of having been slept in by two persons. 
 She also averred that the same thing had occurred 
 in the houses in which she was subsequently a ser- 
 vant ; and he admitted, in his declaration, that, on 
 one occasion, " he slept in bed there that night, and 
 the pursuer was for some time with him in his bed- 
 room, and sat with him on the front of the bed for some 
 time,^ but they did not lie down together, and she 
 went away to her own bed before the declarant lay 
 down ;" and that there was no other person in the 
 house. 
 
 The Commissaries decerned and declared in terms 
 of the libel ; and Mr. Reid having thereupon pre- 
 sented a bill of advocation, the Lord Ordinary, af- 
 ter advising with the court, refused it ; and to this 
 judgment their Lordships adhered on the 26th of 
 June and 20th November 1819. 
 
 Against these judgments Mr. Reid appealed, and 
 contended, 1.?/, That, in order to constitute marri- 
 age, there must be an actual de pr(ssenti consent 
 immediately to enter into the marriage state, and
 
 TIT. 
 
 V. WRITTEN DECLARATIONS DE PR^SENTI. 409 
 
 from that moment to become husband and wife : — 
 that if the expressions which are employed have re- 
 ference to the future, then the document in which 
 they are contained will amount merely to a promise 
 of marriage ; and that even although these expres- 
 sions bear that a de prcBsenti consent has been giv- 
 en, yet, unless uttered m facie ecdesicB, their mean- 
 ing may be controlled by other expressions, or by 
 the circumstances under which they were uttered, 
 or written, and by the accompanying acts and deeds 
 of the parties : — that, according to these principles, 
 the declaration founded on was a mere promise, be- 
 cause it was prospective, bearing merely a promise 
 " to be a true, faithful, and affectionate husband," 
 upon the condition that she would promise to be a 
 faithful wife to him : — that besides, there was no 
 stipulation that this promise should not be made 
 known to any one till a future period, thereby indi. 
 eating that there was to be a future public matri- 
 monial consent ; so that the declaration could no 
 more constitute marriage than an antenuptial con- 
 tract, which invariably expressed a de prccsenti 
 consent, but was not held to infer marriage, as it 
 was the intention to solemnize it publicly : — that, 
 supposing the words were capable of a de prccsenti 
 interpretation, still they ought to be controlled by 
 the terms of the subsequent correspondence, which 
 was expressed more in the language of high-flown 
 and enthusiastic courtship than in that which is the 
 usual style of correspondence between man and 
 wife; and that accordingly her letter of 1816 was
 
 410 A DIGEST ON THE LAW OF MARRIAGE, book in. 
 
 quite inconsistent with the idea of a marriage hav- 
 ing actually taken place : and, 
 
 2d, That the evidence which had been produced 
 of sexual intercourse was quite insufficient, and that 
 it was contradicted by her own conduct ; for she ne- 
 ver pretended, throughout the whole correspon- 
 dence, that she had any claim upon him as a hus- 
 band, arising from such circumstances. 
 To this it was answered, 
 
 1st, That the terms of the declaration were, in 
 themselves, sufficiently explicit to establish a de 
 2ircBsenti consent ; and if any doubt existed, it was 
 removed by the subsequent correspondence, in 
 which he called her his " dearest wife," and sub- 
 scribed himself as her " affectionate husband ;" and 
 2d, That as it was unquestionably a promise, 
 and there was conclusive evidence of subsequent 
 connexion between them, a valid and binding marri- 
 age had been established. 
 
 The House of Lords, 14th May 1823, "ordered and 
 adjudged that the said petition and appeal be, and is 
 hereby dismissed this House, and that the said interlo- 
 cutors therein complained of be, and the same are here- 
 by affirmed : and it is further ordered, that the appel- 
 lant do pay, or cause to be paid, to the respondent 
 the sum of L.SijO for her costs in respect of the 
 said appeal." 
 
 Here we feel ourselves called upon to quote the 
 speech of the eminent Lord Chancellor Eldon, 
 when judgment was pronounced, affirming the deci- 
 sions of the courts below, in these terms.
 
 TIT. V. WRITTEN DECLARATIONS DE PRiESENTI. 411 
 
 Lord Chancellor. — My Lords, the only question 
 in this case is, whether this judgment should be 
 affirmed ? After hearing the very able argument of 
 the learned counsel for the appellant, the rule of 
 the House would dispense with my troubling your 
 Lordships at all, because I am perfectly clear that 
 the decision which has been first given in the Con- 
 sistory Court in Scotland, and which has been twice 
 affirmed by the judges of the Court of Session in 
 Edinburgh ; the learned persons forming the Con- 
 sistory Court in Scotland, and the learned judges of 
 the Court of Session, being probably much better 
 judges in this matter than I am, is well founded, 
 and ought to be affirmed. 
 
 My Lords, the case has been very justly stated 
 to be such as, if the copula did not take place, pro- 
 bably never occurred in this world before ; and I 
 am persuaded I am pretty well founded in saying, 
 that such a case, upon such a supposition, will never 
 probably occur in this world again. I am not, 
 therefore, much afraid of making a precedent. My 
 Lords, I agree perfectly with what has been stated, 
 that we do not sit here as a Court to observe upon 
 the moral or immoral conduct of any man ; but, in 
 discussing what we are to do in the matter of costs 
 in the cause, we must look to what a])pears to have 
 taken place, collecting what has taken place from 
 the proceedings in the cause, and looking at the 
 lionesty and integrity with which the defence has 
 been made. 
 
 Now, my Lords, the summons in this case is one
 
 1 
 
 412 A DIGEST ON THE LAW OF MARRIAGE, book m. 
 
 which appears to me, I confess, to have enough of 
 allegation in it. I need not read it to your Lord- 
 ships ; but it states generally that Mr. Reid (who 
 has been represented, I think, at the bar, at the 
 period when this courtship, or whatever you may 
 call it, first began, as nearer forty years than thirty, 
 this girl being at that time about eighteen or nine- 
 teen,) made his visits, as the summons says, to the 
 pursuer, professing the most sincere love, esteem, 
 and regard for her, (and, to be sure, if you are to 
 judge from his letters, there are love, esteem, and 
 regard for her strongly expressed, though, I am 
 afraid, not very sincerely expressed,) and his pur- 
 pose and intention of marrying her, which he fre- 
 quently repeated, and thereby so far gained the pur- 
 suer's affections, that she consented to intermarry 
 with him, but that he was desirous that it should 
 not be a public marriage ; that the parties then so- 
 lemnly agreed to accept each other as husband and 
 wife, and owned and acknowledged each other as 
 such in the course of the written correspondence 
 which passed between them ; that he insisted upon 
 the pursuer's exchanging with him lines or written 
 declarations of their marriage ; and accordingly, 
 upon the 18th of October 1808, they did inter- 
 change lines or written declarations of marriage ; 
 and the acknowledgment or declaration which he 
 delivered to the pursuer is in these words, I will 
 read them to your Lordships : " I hereby engage 
 to be a true, a faithful, a kind, and an affectionate 
 husband to you, on conditions you are the same to 
 
 i
 
 TIT. V. WRITTEN DECLARATIONS DE PR^SENTI. 413 
 
 me ;" that is, if you are a faithful and affectionate 
 wife, we are to suppose under the same conditions : 
 " And I further engage to show this to no person, 
 and to make it known to nobody whatsoever, with- 
 out your consent." This is signed " George Reid," 
 and is dated the 18th of October 1808. I will call 
 your Lordships' attention to what is said about 
 that date in another part of the proceedings. The 
 summons then proceeds to state that they conducted 
 themselves as man and wife, and the defender often- 
 times solemnly avowed and repeated to the pursuer 
 the declaration contained in the holograph acknow- 
 ledgment or declaration, not only verbally, but also 
 in the course of a correspondence by letters which 
 passed between the parties, and as far as was con- 
 sistent with the plan of secrecy laid down by him, 
 cohabited with her, and so on. Then there is the 
 usual prayer of such a summons. 
 
 Now, your Lordships will find that it is an ad- 
 mitted fact, that this gentleman did deliver to her a 
 paper in the words which I have read, and it has 
 the signature, as I understand, unquestionably of 
 Mr. George Reid. The date, your Lordships will 
 find, from what I have to state hereafter, was pro- 
 bably affixed to this paper, not by him, but was, 
 with a view which he seems to acknowledge, with- 
 held from the paper. The summons does not con- 
 tain the statement of what was given by the woman 
 to him, but we collect something from his examina- 
 tion as a haver, which examination, I take it, was 
 made on the 28th November 1817, and in which,
 
 414 A DIGEST ON THE LAW OF MARRIAGE, book iir, 
 
 your Lordships will recollect, it did appear that 
 when this woman wrote these letters to him, when 
 she began to insist upon having their marriage pub- 
 licly acknowledged or publicly celebrated, she then 
 wrote to him subscribing herself as being his affec- 
 tionate wife ; and it appears from the examination 
 which I now have in my hand, that, from some of 
 the letters in which she so subscribed herself, he 
 had taken the pains to withdraw the subscription 
 " your affectionate wife," and let it be recollected, 
 now that it occurs to me to mention it, that, from 
 the beginning to the end, the evidence seems to me 
 to make it out most clearly that this person (in 
 whatever character as to the present or the future 
 he held himself out to her,) meant to deceive and 
 delude her mind ; now and then, however, slipping 
 out something, (for the most cautious man may 
 fail into a mistake of that kind ;) for it is quite 
 evident that he meant there should be no suf- 
 ficient evidence of a marriage, or even of a pro- 
 mise of marriage, that should be binding upon 
 him, and that accounts very much for the manner in 
 which he has written two hundred letters. It is in 
 evidence that two hundred letters were written, 
 those which he received were carefully put up, so 
 that nobody could see them, and a person taking 
 that care of the letters written to him would not be 
 very likely to write letters promptly and plainly 
 avowing the situation of these parties. But, my 
 Lords, he says he received at the same time — that 
 is, in the year 1808 — from the pursuer an acknow-
 
 TiT.v. WRITTEN DECLARATIONS DE TliiESENTI. 415 
 
 ledgment of marriage. The words " acknowledg- 
 ment of marriage" may certainly be taken in two 
 senses — either acknowledgment that a marriage 
 had actually been made, or acknowledgment that 
 there was a promise of marriage ; and you must 
 put a construction upon that, taking it together 
 with that which can be stated to be evidence how 
 the fact stood the one way or the other. This he 
 states he destroyed at that time, or soon after. 
 When I say it is to be taken the one way or the 
 other, as the facts may enable us to decide, let it 
 be remembered that it ought to be taken most 
 strongly against him, if the paper which he gave 
 to her will bear the construction that there was an 
 acknowledgment of actual marriage. Your Lord- 
 ships see, therefore, with respect to the paper the 
 girl handed over to him, he took care immediately 
 to destroy it. You will see by and by how he rea- 
 sons with respect to the paper which he gave to 
 her ; but, before I come to that part of the case, 
 give me leave to state, what he says in his defences. 
 He says in his defences, that he never paid his ad- 
 dresses to the pursuer by way of marriage. " It 
 is stated," he says " in the summons, that the de- 
 fender paid his addresses to the pursuer with the 
 view of marriage, and that she consented thereto, 
 and that the parties accepted each other as husband 
 and wife. There is no foundation for this allega- 
 tion ; the defender never paid his addresses to the 
 pursuer with the view of marriage.'* — Now, if the 
 defender gave this acknowledgment and dedara-
 
 416 A DIGEST ON THE LAW OF MARRIAGE, book in. 
 
 tion — whether it is an acknowledgment and decla- 
 ration of present marriage, or acknowledgment and 
 declaration of future marriage — it is at least an ac- 
 knowledgment and declaration that was to lead her 
 to think that he did pay his addresses to her with 
 a view of marriage. But taking him to speak that 
 which is the truth, if he did not pay his addresses 
 to her with a view of marriage, with what view, I 
 would ask, did he pay his addresses to her ? That 
 he did pay his addresses to her, and did pay his 
 addresses with a warmth and affection of lanffuasre 
 that has hardly ever been paralleled, nobody can 
 dispute. Had he no object in paying his addresses 
 to her ? If he says his object was not marrying 
 when he paid his addresses to her, and if he did in 
 point of fact pay his addresses to her, what conclu- 
 sion are we to come from the evidence with respect 
 to his intent, but that very view with which these 
 interlocutors appealed from have fixed him ? 
 
 My Lords, if you look to the circumstances un- 
 der which the girl received this paper, you will see 
 that it appears she had at that time recovered from 
 an indisposition, and that he states himself to be 
 much obliged by the confidence she had reposed in 
 him, and that it should be his constant study and 
 care to do every thing in his power to make her 
 happy ; and then he says, " On the other side I 
 send you a copy of what I intend to write you, to 
 see if it meets your approbation. You will observe 
 I have added to it a clause, by which both parties 
 are bound not to show it, nor tell it, without the 
 
 3
 
 TIT. V. WRITTEN DECLARATIONS DE rR.li:SENTI. 417 
 
 consent of the other, to which I hope you have 
 no objection." Then the copy is in ijysissimis 
 verbis the same with that engagement I have 
 read. He gets in return from her a declaration 
 which is called a contract of marriage, and which, 
 according to his own account, he tcikes care imme- 
 diately to destroy. 
 
 Then, when he comes to make his judicial decla- 
 ration, let us see what he says he meant by deliver- 
 ing to her this acknowledgment and declaration 
 from himself. When interrogated whether he ever 
 said to the respondent that he considered her as his 
 wife ? he says, " He may have done so in jest, but 
 never said so to her seriously ;" and the writing 
 which I have before read to your Lordships being 
 shown to him, he said, " 71iat writing is mine ex- 
 cepting the date, and I gave it to her, but, as I 
 think, not upon the 1st of October; the date, I 
 think, has been put to this writing afterwards, and 
 is not the right date. I did not conceive it to be 
 binding, as it was neither addressed nor dated." So 
 that, upon that occasion, this gentleman received a 
 declaration from her, which she certainly meant to 
 have some operation either as an acknowledgment 
 of marriage, or as a promise that there should be a 
 future marriage. With a view to withdraw that 
 evidence from the observation of human eyes, he 
 destroys it ; and with respect to that which he 
 penned himself, as that which she is to rely upon, 
 he takes care it shall be addressed to nobody, and 
 that it shall not be dated ; and therefore he places
 
 418 A DIGEST ON THE LAW OF MAUEIAGE. book m. 
 
 in her hands that which she was to think was an 
 available instrument for either then creating, or in 
 future creating the relation of husband and wife, 
 but neither addressing it nor dating it ; and he 
 then says, " As it was not addressed nor dated, I 
 thought it would not be obligatory at all, nor of 
 any use at all, no more than if I had never put it 
 in her hands at all." 
 
 My Lords, under these circumstances — putting 
 now out of the question the relation of husband 
 and wife — saying, however, that I confess I go a good 
 way, if not the full length, with some of the learn- 
 ed judges who consider this a promise de j^raesenti^ 
 but thinking it not necessary in this case to deter- 
 mine whether it is a promise lie praesenti or not, 
 and coming to a conclusion which is inevitable up- 
 on this evidence, that if there was a promise of a 
 future marriage, there has been that copula accord- 
 ins: to which the law of Scotland will constitute a 
 perfect marriage. In expressing that opinion we 
 are to consider how the persons came together, and 
 for what purpose he came together with her. 
 That he paid his addresses to her, anybody who 
 looks at these love-letters which I hold in my hand 
 will find to be clearly made out. I believe there 
 were two or three hundred of them. It might be 
 very useful perhaps, if this house were attended 
 by ladies, to distribute them among them, that 
 they might be put upon their guard against 
 such insinuating addresses made to them. They
 
 TiT.v. WRITTEN DECLARATIONS DE PR^SENTI. 419 
 
 might have been of some use perhaps last night.* 
 He paid his addresses to her, giving her a paper 
 which she was to look upon as an engagement to 
 marry ; but he says he made no promise to marry 
 her at all. Then, in God's name, for what purpose 
 did he make his addresses to her for six, seven, or 
 eight years ? Your Lordships find him meeting 
 her in all secret places, taking her to plantations, 
 (indeed, the only answer that has been made to 
 that is, that a plantation in Scotland is a thing that 
 will hardly cover concubitus,) taking her to groves 
 — taking "her to empty houses — staying with her all 
 night in empty houses — taking her into a laundry 
 where is a bed, he going to bed at night, she, as he 
 admits, sitting on the bed all night. And your 
 Lordships will find in the different letters that are 
 printed, repeated statements that he had been with 
 her all night — repeated applications that she might 
 be with him all night ; and yet this gentleman is 
 supposed, under these circumstances, to be so virtu- 
 ous, and so Platonic a lover, as to express in his 
 letters that he had passed with her the most trans- 
 porting night he had ever passed with her in his 
 life, while we are called upon to believe that no- 
 thing in the world had passed but the interesting 
 conversation of this young woman with a man who 
 never meant to marry her. 
 
 I should like, by the way, to intimate to my ex- 
 cellent friend Dr. Lushington, that he should put 
 
 * Several ladies had been in tlie lumse the preceding evejiiu^', a 
 the debate upuii a inotiou of Earl Grey. 
 
 2 H
 
 420 A DIGEST ON THE LAW OF MAlilllAGE. book hi. 
 
 into the book called De Matr'wionio, this case, by 
 way of exception to all his doctrines ; for he states, 
 that if you have the tempus, the locus, and the kiss- 
 ing, and all those sort of things, you must therefore, 
 presume that there was sexual intercourse. Now 
 it seems that a man may go on for eight years, 
 promising, though he does not mean to marry the 
 woman — paying his addresses to her in the warmest 
 possible language — stating himself that he would 
 be her husband — making her believe that she was 
 to be his wife — statins; that he is her husband — 
 stating that she is his wife — meeting her — sitting 
 up with her all night, (not indeed, sitting up with 
 her all night, but according to his own acknow- 
 ledgment, he lying in bed, and she sitting on the 
 side of the bed by him,) and this in houses where 
 there were no persons but themselves, except in the 
 instances spoken to by a lady of the name of For- 
 rester, and the other of the name of Leys ; and then 
 Mr. Wetherell says, and that is really the only 
 thing that he can say in a case of this sort, and 
 there is no case in which he cannot say as much as 
 anybody, and as ably, every thing he can say about 
 that is, that he does not believe this lady. 
 
 My Lords, you must take all the evidence to- 
 gether in such a case as this. You must look at 
 the purposes for which they came together, accord- 
 ing to the man's own acknowledgment. You must 
 take the whole history of the transactions during 
 the eight years ; and if Mrs. Forrester and Miss 
 Leys speak to that, which I protest I think no man
 
 TIT. V. WllITTEN DECLARATIONS DE PR^SEXTl. 421 
 
 could doubt to have taken place, if there had been 
 no such evidence, the transactions connected with 
 their evidence give a credibility" to the testimony ; 
 whilst at the same time, their testimonv intro- 
 duces the considerations that are to be drawn from 
 all the rest of the evidence, in such a manner that 
 I think no man living can doubt that there must 
 have been in this case a copula. 
 
 My Lords, it has been stated by Mr. Moncrieff, 
 in a very able argument, that it is as well known 
 in Scotland as possible what makes a marriage. I 
 really think, however, there ought to be a sort of 
 proclamation stuck up somewhere when an English- 
 man goes into Scotland. In all probability this 
 girl did not know that a copula would make a 
 marriage. If she had so much knowledge of the 
 law of Scotland, if her head was full of all that 
 learning which is to be found in Morison's Diction- 
 ary, page — I do not know how many hundred, or 
 how many thousands — if she meant to be his wife, 
 and he was constantly telling her she should be his 
 wife, it was the most likely thing in the world that 
 it should take place, that the promise should be car^ 
 ried into effect. How it could be supposed that he 
 would all this time resist the charms of this person, 
 who was, according to him, the most charming in- 
 dividual who ever walked upon the face of the 
 earth, it is exceedingly difficult for an Englishman 
 to conceive. Whether in Scotland there is or is not 
 that frigidity which Mr. AVetherell supposed to ex- 
 ist, when he could not be induced to believe whe-
 
 422 A DIGEST ON THE LAW OF MARRIAGE, book iii. 
 
 ther or not there was a consummation of this busi- 
 ness, I do not pretend to say ; but I am sure that if 
 your Lordships were not to pronounce in this case 
 that there has been sexual intercourse, you ought 
 immediately to undo by act of parliament, all the 
 divorce bills you have passed, (for I protest I think 
 this case the strongest case I have met with,) and 
 to take care never to pass another in future. 
 
 My Lords, the nature of the defence, and the 
 whole conduct of the defender taken together, are 
 such that as the Courts below, the Consistory Court 
 in the first instance, and the Court of Session in the 
 second, have given expenses, though I do not look 
 to their example as affording a rule on which we 
 should proceed, because I observe they give ex- 
 penses more regularly and uniformly than we do, 
 yet I do think this is a case in which this man's 
 wife, for such I take her to be, should be at no ex- 
 pense whatever ; and therefore I am of opinion she 
 should have the largest which the standing orders, 
 of this House will allow. Upon the whole, I am 
 of opinion that the judgments should be affirmed, 
 the respondent having her costs and expenses, as far 
 as the standing orders of this House will permit, 
 or as much out of the sum which the standing or- 
 ders of the House will allow, as Mill be sufficient 
 to pay all her expenses ; and unless any of your 
 Lordships happen to differ from me in the conclu- 
 sions I have come to, I shall move that that be the 
 judgment of the House,
 
 TiT.v. WRITTEN DECLARATIONS DE PRyESEKTI. 423 
 
 In the preceding speech of the learned Lord El- 
 don, it appears that the many letters of an appa- 
 rently most endearing, most affectionate, and even 
 of a romantic nature, which Mr. Reid addressed 
 to the pursuer for a series of years, had not only 
 attracted the attention of the fair sex in the metro- 
 polis, but of the Lord Chancellor himself ; there- 
 fore, and, as in the preceding case we have quoted 
 only a few of those letters, we subjoin some more 
 of them, for the amusement, and perhaps instruc- 
 tion of our readers. 
 
 (t 
 
 Langhouse, Tuesday Evening, SdJan. 
 
 " My dear, sweet, and amiable Jane, — I went to 
 the English Chapel in York Place on Sunday, and 
 heard the most heavenly music I ever witnessed on 
 earth. I was much impressed with the grandeur 
 and sublimity of the worship, and thought if I had 
 only you sitting with me / could desire no greater 
 happiness in the worlds 
 
 " Thursday Morning, 
 
 " Night had withdrawn her sable curtain, and 
 gloom had descended from the throne of nature when 
 I parted with my love ; the stillness and magnifi- 
 cence of the scene, the silent Abbeys, the spires ap- 
 pearing between me and the horizon, filled ray mind 
 with the most sublime ideas. I only wanted the 
 company of the dear object of my affection to make 
 me completely happy."
 
 424 A DIGEST ON THE LAW OF MARIITAGE. book hi. 
 
 <( 
 
 Langhouse, TVednesday, November 30. 
 
 " As the hart panteth after the water brooks in a 
 desert land, so panteth my heart after thee, O my 
 beloved ! 
 
 " I sit down with mingled emotions of delight and 
 sorrow to unbosom myself to my love, and to pour 
 forth the anguish of my soul, torn with the most 
 violent sensations of love, heightened by the thoughts 
 of the darling object of all my wishes ; torn from 
 my embraces, and placed at a cruel distance from 
 my view ; sometimes perplexed with the idea, that, 
 removed from my protection she may be exposed to 
 the rude attacks and insults of other men, and sepa- 
 rate from all the endearments which would result 
 from the exercise of mutual affection between two 
 congenial souls, framed and moulded by nature to 
 make each other happy. But to descend from this 
 loll) strain, which nothing but a heart burning with 
 love, and fired with the warmest emotions of admi- 
 ration and love, could inspire, borne on the wings 
 of affection, I left the haunts of jollity and amuse- 
 ment, hastened to my dear, she received and wel- 
 comed me with the fervent glows of affection ; my 
 heart beat, and my feelings were touched with rap- 
 ture and exultation. Such was our last meeting, 
 which shall for ever be imprinted on the tablets of 
 my heart, where dwells, stamped in golden letters, 
 the name of my beloved. 1 wish to settle some 
 points with you, on which my future ^.eace of mind 
 depends.'* 
 
 I
 
 TIT V. WRITTEN DECLARATIONS DE TRiESENTI. 425 
 
 " Langhouse, Thursday Morning. 
 
 *' My ever sweet and charming dear — I hope 
 you are now quite recovered from your headach, and 
 in good spirits. The thought of having offended 
 the person whom I love so dearly, grieves me not a 
 little, and has drawn tears from mine eyes. I again 
 ask your pardon, and am sure you will forgive me, 
 when I tell you that I would sooner tear the flesh 
 from my own bones than hurt you ; but sometimes 
 you know my over fondness for you makes me be- 
 have foolishly ; however, although I did so, I am 
 conscious that I have a heart incapable of a wrong 
 thought of you, a mind sensible and proud of its 
 steadiness and unceasing regard for you, and a life 
 ready to be sacrificed to protect you. I had a long 
 dream about you last night. I thought I came in- 
 to your father's house, and found you there lying 
 in bed very ill ; my heart bled for you, and tlie an- 
 guish I suffered in my dream was indescribable. 
 
 " I am going to lodge all the spare money I have 
 this winter, with you. I know it will be in good 
 hands, and that you will tcike good care of it for 
 me. 
 
 " P. S. How my heart bled last night at parting ; 
 your walk and figure behind always kills me. I 
 think 1 see an image before me which I cannot re- 
 sist, and which I think in unison with my own 
 soul. Many are the strange and animating sensa- 
 tions which arise in my breast on looking on your 
 captivating figure."
 
 426 A DIGEST ON THE LAW OF MARRIAGE, book, ni 
 
 " L. H. Tuesdmj Eveiiing. 
 
 " M^ dear sweet Jane — I saw you again from 
 my window this morning passing away in the cart ; 
 fain indeed would 1 have stopt you and kept you 
 with me for ever. I looked from the window, and 
 well I thought I might do so, for many a long look 
 you have given me from windows, which shall ne- 
 ver be forgotten for your sake. I need not say, I 
 hope you was faithful to me, and did not go to any 
 of their dirty dances ; that surely was impossible ; 
 but I am not quite so clear about your Edinburgh 
 dances and scenes ; but surely I may believe you, 
 you never deceived me yet. Yes, I think the scene 
 will be darkened, and the moon will cease to give 
 her light when you forsake me ; at least, I may say, 
 that both these orbs will cease to shine on me ; the 
 sun himself grow dim with age, and nature sink in 
 years when that event takes place. But no, it can- 
 not, it will not he /" 
 
 « 
 
 Wednesday Mornwg. 
 
 " My dearest Jane — After spending one of the 
 most transporting nights of my life, I drove home 
 in the most pleasant manner imaginable, the cocks 
 were crowing, and already the distant hills were 
 tinged by the glare of the morning dawn. I was 
 dreaming of the many dear and tender scenes that 
 passed between us when you was in the country ;
 
 TIT. Yi WRITTEN DECLARATIONS DE PRtESENTI. 427 
 
 they can never be obliterated from my mind. Re 
 ceive on the other side, copy of the song, " Bay o' 
 Biscay O," be sure and have it ready to sing to me 
 next weelv. Meantime, believe me, your most sincere 
 and ardent. Farewell my beloved." 
 
 After all that has passed between these parties in 
 this conflicting case, it may be gratifying to the 
 public to be informed that they are living together 
 as man and wife, and in the most happy circum- 
 stances. 
 
 10. Marion Callander i\ Alexander Bovd, de- 
 cided in 1802, but not reported. 
 
 7^his was a declaration of a marriage, founded 
 solely upon a written declaration in these terms, 
 " I do here take you, Marion Callander, for my 
 lawful wife, and to be a dutiful and loving husband 
 until death, Alexander Boyd." This M^as not at- 
 tested by any witnesses ; and the defender in his 
 declaration, denied that it v/as of his hand-writing, 
 and denied that he had received any corresponding 
 declaration from the pursuer ; and he further de- 
 nied, that there had been any consummation be- 
 tween the parties. The defender also produced a 
 letter by the pursuer, two years after the date of 
 the acknowledgment, importing that she did not 
 then consider him as her husband. 
 
 The Court, however, being satisfied that the ac- 
 knowledgment was of the hand- writing of the de- 
 fender, and without thinking it necessary absolute- 
 ly to settle wliether there had been any consumma- 
 tion or not, declared the marriage.
 
 428 A DIGEST ON THE LAW OF MARRIAGE, book iir. 
 
 11. Elizabeth Richardson v. John Irvine, decid- 
 ed 3d August 1785, not reported, but stated by the 
 learned Baron Hume (formerly Professor of Scots 
 law in the University of Edinburgh) in the course 
 of his Lectures, that the Court found that an ex- 
 plicit written declaration de jiraesenti established a 
 marriage. 
 
 12. Wychee and Attorney v. Blount, Fac. 27th 
 June 1801, Mor. App. 1, Forum Comp. No. 2. 
 12022. 
 
 This case, which has been already noticed under 
 the title of competent questions, p. 213, and the 
 competency sustained, we are relieved from stating 
 the particulars, and therefore confine ourselves to a 
 brief summary of it. 
 
 The parties being English, fled from England to 
 Gretna Green to be married, and accordingly the 
 notorious celebrator, David M'Farson, declared 
 them to be married persons, as will appear from 
 the following coarse certificate and declaration 
 signed by him and the parties themselves. 
 
 Gretna Green, June 10th, 17S6. "This is to 
 sertfay to all persons that may be scurned, (concern- 
 ed) that Charles Blount from Salisbury, and Eliza- 
 beth Ann Wychee from the same place, both 
 comes before me and declares themselves to be 
 both single persons, and is now married to be the 
 way of the Church of Scotland, as day and dit abuve 
 mentioned, by David M'Farson, C. B. Blount, 
 Elizabeth Ann Wychee."
 
 * 
 
 TIT. V. WRITTEN DECLARATIONS DE PRJESENTI. 429 
 
 The Commissaries allowed the pursuer to prove 
 that the marriage was celebrated in Scotland, and 
 referred this point to the defenders' oath, and that 
 the certificate was genuine ; the Commissaries how- 
 ever, in respect of the particular circumstances of 
 the case, found the mode of proof offered incom- 
 petent. 
 
 But the Court of Session, on advising a bill of 
 advocation, remitted to the Commissaries to sustain 
 their jurisdiction, and " Find it competent to refer 
 to the oath of the defender the authenticity of his 
 subscription to the certificate of the marriage pro- 
 duced, and that said certificate is genuine, admit 
 the said reference, and grant commission accord- 
 ingly." 
 
 The defender having failed to depone on the re- 
 ference, the Commissaries held him as confessed, 
 and pronounced decreet of divorce. 
 
 The public will be surprised beyond measure, to 
 be informed, that not many years after the English 
 marriage act of Geo. II. cap. Sii, in 1754, of which 
 we have given an account in this work elsewhere, 
 the marriages at Gretna, including Coldstream, 
 the Chain Pier, Lamberton Toll, Annan, Berwick 
 and other places along the Tweed, have been aver- 
 aged at from six to seven hundred per annum, (in 
 which number we include the late Lord Chancellor 
 Erskine) of which the author has received authentic 
 information; but to the honour of our country, the 
 number in Scotland on the borders does not exceed 
 thirty annual I)'-.
 
 430 A DIGEST ON THE LAW OF MAIIRIAGE. book m. 
 
 Here we will be excused for barely suggesting 
 a remedy against so great an existing evil. 
 
 In Scotland, no person can acquire a domicile, 
 unless by a residence of forty days, without which, 
 parties desiring marriage cannot obtain proclama- 
 tion of banns, and marriage by a clergyman. Now, 
 in reference to this rule, we would humbly suggest 
 that before our English neighbours can obtain 
 marriage in Scotland, they ought to acquire the 
 like domicile of forty days, by which the irregular 
 marriages on the borders would in a great measure 
 be prevented, as we know well that these marriages 
 are generally hastily gone into in the spur of the 
 moment, and besides, such prevention would have 
 a tendency to remove many serious grievances and 
 just complaints, particularly from the aristocracy of 
 England.
 
 431 
 
 BOOK III. 
 
 TIT. VI. 
 
 VERBAL DECLARATIONS DE PRAESENTI 
 ESTABLISH MARRIAGE. 
 
 That a declaration oi pi'esent consent is sufficient 
 to constitute marriage, and that the same may be 
 proved by imrole evidence^ will appear from our 
 institutional writers and the decisions of our Su- 
 preme Court. 
 
 Sir Geo. M'Kenzie says, B. I. tit vi. \ 3. *' That 
 consent de ^jrttc'^t'w/i is that in which marriage 
 doth consist. Consent defuturo is a promise ; this 
 is not marriage, for either party may resile, rebus 
 integrisj* 
 
 Lord Stair, B. I. tit. iv. observes " That the mar- 
 riage itself consists not in the promise but in the 
 present consent, whereby they accept each other as 
 husband and wife ; whether that be by words ex- 
 pressly , or tacitly by marital cohabitation, or ac- 
 knowledgment ; or by natural commixion, where 
 there hath been a promise or espousals preceding,
 
 432 A DIGEST ON THE LAV\^ OF MARRIAGE, bookiii. 
 
 for therein is presumed a conjugal consent de 
 praesentir 
 
 Lord Bankton, B. I. tit. v. § 2. on this subject 
 briefly remarks, " Spousals frequently precede mar- 
 riage, and is a promise or contract of marriage 
 to be thereafter solemnized. These among the 
 Romans were by way of sponsion or stipulation, 
 whence they had the name of sponsalia, or spousals ; 
 but now consent atone is sufficient, which common- 
 ly with us is perfected into a contract of marriage 
 
 in writmg 
 
 5» 
 
 And Mr. Erskine, B. I. tit. iv. § 5. says, " The 
 consent essential to marriage, is either express or 
 tacit. Express consent in regular marriages, is 
 signified by a solemn verbal vow of the parties accept- 
 ing each other for their lawful spouses, uttered before 
 a clergyman, who thereupon declares them married 
 persons. But it is not essential to marriage that it 
 be celebrated by a clergyman. The consent of 
 parties may be expressed before a civil magistrate, 
 or even before witnesses; for it is the consent of 
 parties which constitutes marriage," and he refers 
 to the case of Young v. Arrot, just to be given, that 
 verbal declarations de praesentl establish marriage. 
 
 1. Elizabeth Young v. Dr. Arrot, 12th December 
 1738, Elchies— Proof No. 4. 
 
 A marriage was sustained against the hus- 
 band chiefly on his owning it to the midwife 
 whom he had called to assist his wife in the 
 birth, and to the minister whom he had desired to 
 baptize the child, without any actual proof either
 
 TIT V. WRITTEN DECLARATIONS DE TRvESENTI. 433 
 
 of the marriage, or of the parties cohabiting to- 
 gether as married persons. 
 
 Or, in tlie words of Lord Elchies, " Marriage 
 may be proved without proving the actual cele- 
 bration or habit and repute in the sense of the 
 law, by proving cohabitation, and the man deli- 
 berately and solemnly owning the marriage, and 
 especially where there has been a child procreat- 
 ed. But a sister and aunt would be good witnes- 
 ses for proving celebration, yet some doubted whe- 
 ther they were habile to prove tliese other facts : 
 but because of other witnesses referring to them, 
 and other circumstances, they were admitted cum 
 nota."" 
 
 2. Ballantine v. Wallace, decided about the year 
 1773, not collected. 
 
 Here it was found that a verbal declaration by a 
 man soon before death, to the minister and elders 
 of his parish, that a woman was his wife, who had 
 borne children to him, and their living together as 
 man and wife for years, constituted a marriage. 
 
 3. David M'Kay v. Peggy Ferguson, 2d August 
 1781-2, not collected. 
 
 Peggy Ferguson, a farmer's daughter, had, while 
 a very young girl, been left by her father a consider- 
 able sum of money, which, together with her good 
 looks, gave her tutors reasonable expectation that 
 she would obtain a very advantageous and credit- 
 able marriage; she herself was attached to M'Kay, 
 a schoolmaster, and concurred with him in giving 
 up their names for proclamation of banns, at ]\Iay-
 
 434 A DIGEST ON THE LAW OF MARllIAGE. book iii. 
 
 bole, where they both resided ; her tutors having got 
 notice of this, carried her to Irvine, where they pre- 
 vailed on her to write a letter countermanding the 
 banns. 
 
 M'Kay, however, followed her to Irvine, and 
 having got her into a neighbouring house, they in 
 the presence of witnesses, declared before God and 
 man, that they took each other for man and wife, 
 and they accordingly undressed and went to bed, 
 where they remained nudus cum nuda, with the 
 door looked for some time ; before dinner she went 
 back to her tutors, nor was it alleged that there was 
 any subsequent connexion between them. As it was 
 an admitted fact, that no other celebration or cere- 
 mony had ever taken place, the tutors instigated the 
 girl to contest the validity of the marriage ; it was 
 asserted that no copula had intervened, which she 
 offered in the most explicit terms to swear to ; in- 
 deed, the proof that was led gave a good deal of 
 countenance to the assertion, for two or three of 
 M'Kay's confidents deponed that he told them 
 in conversation, he never had carnal knowledge 
 of the young M^oman. Notwithstanding of which, 
 and without entering at all into that consideration, 
 the Commissaries, on the 4th January, 1786, found 
 facts, circumstances, and qualifications proven, suf- 
 ficient to infer a marriage between the parties. And 
 the Court of Session, on advising a bill of advoca- 
 tion, were unanimously of opinion, that the solemn 
 acknowledgement and the consent of the parties 
 were sufficient to constitute a marriage by the law 
 
 i
 
 TIT. VI. VERBAI- DECLAIIATIONS DE PJl^^SENTI. 4.^5 
 
 of Scotland. From this case, it appears that the 
 marriage rested for its support, not upon written de- 
 clarations of any kind, but upon direct evidence both 
 of a conseyisus de praesenti and conciihituSy the coJi- 
 seJisus being proved by the parties having verbally 
 taken one another for man and wife in presence of wit- 
 nesses, and the concubltus immediately thereafter, 
 being clearly proved by their having gone to bed 
 together in the sight of several persons. 
 
 4, Crawfurd's 7>ustees v. Hart, relict, 20th 
 January, 1802. Fac. Mor. 12,698. 
 
 These parties had cohabited together for about 
 thirty years, and of the concuh'itus several children 
 were born ; — they both went before a Justice of the 
 Peace, and " both publicly acknowledged them- 
 selves to be married persons, and to have been ir- 
 regularly and clandestinely married, but refused to 
 declare the celebration thereof, or the witnesses pre- 
 sent thereat." 
 
 This question was of a civil nature on the part 
 of the widow ; the Court of Session, where it ori- 
 ginated, found her entitled to her terce, and jus 
 relictcB. But see this case particularly stated un- 
 der the general head of habit and repute, p. 357. 
 
 5. Margaret Aitken v. Topham, an Englishman, 
 not collected. 
 
 In this case, Topham had, on several occasions, 
 acknowledged Margaret Aitken to be his wile ; he 
 did not deny this, but his defence was, that he was 
 ignorant that such acknowledgment, by the law of 
 Scotland, made a marriage, and that on the occasion 
 
 2 I
 
 436 A DIGEST ON THE LAW OF MARUIAGE. book iii. 
 
 when he called her his wife, he did so, merely as a 
 cover, was overruled. No decision was pronounced, 
 it having been discovered that Margaret Aitken 
 was married before her connexion with Topham. 
 
 6. Elizabeth Walker and children v, M'Adam, 
 14th March, 1807. Fac. Mor. Ap. l.No. 4. and House 
 of Peers, 24th May 1823. The Commissaries, the 
 Court of Session, and the House of Peers found a mar- 
 riage and the legitimation of their children, on the 
 ground of verbal and mutual declarations cle praesenti. 
 The pursuer, the daughter of a farmer, came to 
 reside with Quinton M'Adam, Esq. of Craigingiilan, 
 as his mistress, and received from him an annuity 
 of L.60 per annum. In that character they lived 
 for several years, and she bore two children to him. 
 On the 22d March, 1805, Mr. M'Adam was 
 found lying dead at the top of a stair-case in his 
 house of Berbeth. His death was occasioned by a 
 pistol, the discharge of which had been heard a 
 short time before, and which remained grasped in 
 his hand with the muzzle inserted in his mouth. 
 
 After his death, his cousin, Alexander M'Adam, 
 who in the event of Mr. M'Adam's death, without 
 lawful issue, was his next heir of tailzie and provi- 
 sion, took the necessary steps to make up his titles 
 in that character. At the same time an action of 
 declarator of marriage and legitimacy M^as institut- 
 ed before the Commissaries by Elizabeth Walker, 
 and her children, to have it found that she was the 
 wife, and that they were the lawful children of 
 Quinton M'Adam, having been publicly acknowledg- 
 ed by him as such, in the presence of several wit-
 
 TIT. VI. VERBAL DECLARATIONS DE PRyESENTI. 437 
 
 nesses, on the forenoon of that day on which he 
 died. 
 
 In defence, it was stated, that no competent evi- 
 dence could be brought to prove the marriage ; se- 
 cond, that although the parole evidence of this fact 
 might have been competent against Mr. M'Adam 
 himself, if he had been alive ; yet, as no marriage 
 was actually celebrated, and no claim of marriage 
 was made against him during his life, the proof 
 offered was not relevant in a question with his heir; 
 and lastly, that Mr. M'Adam was insane at the 
 time he made this declaration. A proof was al- 
 lowed by the Commissaries, when circumstances 
 were established favourable for the pursuer, the 
 import of which may be seen by looking into the 
 case itself. 
 
 The Commissaries' judgment finding a mar- 
 riage is particular and satisfactory. April, lb', 
 1806 — '* The Commissaries having resumed consi- 
 deration of this cause, with the productions and 
 proof for both parties, and whole process, find it 
 proven by real evidence, that some years prior to 
 the year 1805, the late Quinton M*Adam had form- 
 ed a resolution of making the pursuer, Elizabeth 
 Walker, his wife, and legitimating the children 
 which she had borne to him, at some future period ; 
 Find it clearly proven, that on the forenoon of the 
 22d March, 180,5, Mr. M'Adam carried this pur- 
 pose into execution by joining his hands with those 
 of the pursuer, and declaring her to be his wife, 
 and her children his lawful children, in presence of 
 several persons whom he had called up to his dining
 
 438 A DIGEST ON THE LAW OF MARRIAGE, book iii. 
 
 room to be witnesses to this declaration. Find that 
 this declaration was made in the most solemn, seri- 
 ous, and deliberate manner, that the late Mr. M'A- 
 dam was in his perfect and sound mind, that the 
 deportment of the pursuer clearly indicated her ap- 
 probation of what Mr. M'Adam had done ; that on 
 this occasion, Mr. M'Adam and the pursuer mutu- 
 ally accepted of each other as husband and wife : 
 Find these facts relevant to infer marriage be- 
 tween the late Mr. M'Adam and the pursuer : 
 That by this declaration the status of the pursuer as 
 his wife, and her children as his lawful children, 
 was fixed and could not be affected by any subse- 
 quent act of Mr. M'Adam, Find the condescend- 
 ence on which the defence was founded not proven, 
 and repel the defence, and decern in the conclusions 
 of marriage and legitimacy in terms of the libel." 
 
 From the facts of the case and this interlocutor, 
 it appears that for a considerable time back the late 
 Mr. M'Adam had formed the resolution of making 
 the pursuer his wife, and legitimizing his children 
 which she bore to him ; that he was in a sound state of 
 mind when he joined hands with the pursuer and de- 
 clared her to be his wife, and her children his lawful 
 children, in his own house, in the presence of witnes- 
 ses whom he had selected for the express and only pur- 
 pose of witnessing the ceremony of the marriage. 
 
 Alexander M'Adam presented a bill of advoca- 
 tion against the Commissaries' judgment, and the 
 Lord Ordinary took the case to report on memo- 
 rials. It appeared to the Court that there was 
 here a clear and deliberate consent de 'praesenti, to 
 
 I
 
 TIT. VI. VEllBAL DECLARATIONS DE PR^SENTI. 439 
 
 take each for man and wife, and that there was no 
 foundation for the allegation of insanity of Mr. 
 M'Adarn at the time of the declaration of the marriage. 
 
 The Lords, by a considerable majority, remitted 
 to the Lord Ordinary to refuse the bill, and 
 upon advising a reclaiming petition with answers, 
 adhered. 
 
 This judgment was carried to the House of Lords 
 by appeal, but that Right Honourable House dis- 
 missed the appeal and affirmed the interlocutor 
 complained of, as will be seen from this judgment — 
 24th Mav 1813—" The Lords find that it is proved 
 
 ■r A. 
 
 by competent evidence, that Quinton M'Adarn and 
 the pursuer did, on the 22d March 1805, contract 
 matrimony and became husband and wife, by de- 
 clarations and acts made and done before several 
 witnesses for such purpose, and that it is also 
 proved that the said Quinton M'Adarn was at the 
 time of such declarations made, and acts done, of 
 competent mind and understanding to contract 
 marriage, and, therefore, it is ordered and adjudged 
 that the appeal be dismissed, and the interlocutors 
 complained of affirmed." 
 
 In the same question the Court, 8th March 1806, 
 found, that in a proof of insanity, alleged against 
 Quinton M'Adam, it is not competent to examine 
 witnesses with regard to the insanity of the rela- 
 tions of the party alleged to be insane : and, that 
 the plea of insanity was not made out by the evi- 
 dence, but the contrary. 
 
 Moreover, in this very interesting question, we 
 conceive it proper to subjoin the very luminous
 
 440 A DIGEST ON THE LAW OF MARRIAGE, book hi. 
 
 speech, delivered by the great Lord Chancellor El- 
 don, at pronouncing judgment : 
 
 " In a case of such importance, it would have 
 been proper to have taken farther time for consi- 
 deration, if the only source of their information 
 upon the subject had been the argument at the bar, 
 relevant and able as that argument was on both 
 sides. They were, however, assisted, among other 
 documents, by a paper* drawn by Mr. Clerk ; which, 
 in point both of composition and learning, was one 
 of the best that ever had been prepared by any 
 lawyer ; and which would do him the highest 
 credit as long as that paper should be remembered. 
 In the discussion in the Courts below, in this 
 country too, a marked distinction had always been 
 made between the promise de J'uturo and contract 
 de prceseiiti ; as would be noticed when he came to 
 consider the validity of the marriage in that view. 
 
 " The first question here was. Whether Mr. 
 M'Adam was of sound mind at the time when he 
 entered into the contract ? If not that contract 
 would not be valid : his opinion, however, was, 
 that on the 22d March, 1805, Mr. M'Adam was 
 of perfectly sufficient soundness of mind to form a 
 valid contract ; and this would dispense with the 
 consideration of the other very delicate point, 
 whether the evidence to show hereditarij insanity 
 in the blood ought to have been received in a case 
 of this nature, the true question was 7iot, Whether 
 
 " The ])apei here alluded to is the Appeal Case for the Apel- 
 lant, drawn by Mr. Clerk, now Lord Eldin, and may be seen among 
 the Appeal Cases bound up in the Advocates' Library.
 
 TIT. VI. VERBAL DECLARATIONS DE Pll^SENTI. 441 
 
 he had ever been insane before, or from what cause ? 
 but, whether he was of sufficiently sound mind to con- 
 tract on the 22r/ of March 1805 ? It was of no con- 
 sequence in what state he had been at any other 
 time. If then they should affirm the judgment of 
 the Court below, on the other ground, there would 
 be no occasion to pronounce any opinion upon the 
 very delicate question to which he had adverted. 
 
 " It was impossible, however, speaking as a man 
 and as a lawyer, to deny, that if Mr. M'Adam was 
 insane in 1803, that the similarity between the 
 state of his mind at that time, and on the 22d of 
 March 1805, had been so marked as to render it 
 probable that it was a recurrence of the same ma- 
 lady ; it was impossible, he said, to deny, that this 
 circumstance ought to be attended to in judging 
 whether Mr. M'Adam was reallv insane on the 22d 
 Marcli 1805. But if they had satisfactory evidence 
 of his sanity at the time of the contract, then the 
 antecedent state of his mind, and the causes of it, 
 might be laid totally out of view. 
 
 " Now, their Lordships knew what the law of 
 England was upon this point, and he was not 
 aware that, in this respect, the law of Scotland was 
 different. A man might marry as well as form any 
 other contract, if he was sane at the time. I'he 
 legislature, with a view to prevent the marrying of 
 lunatics during their lucid intervals, had enacted, 
 that a commission of lunacy would avoid such mar- 
 riages. This was conclusive that other contracts 
 might be formed during their ludd intervals ; and 
 that the law did not avoid marriages, unless con-
 
 442 A DIGEST ON THE LAW OF MARRIAGE, book in. 
 
 tracted during the course of the time that the 
 lunacy had been found to exist. The usual way 
 was to direct an issue to try whether the party was 
 of sound mind at the time of the contract, and if 
 he was, it was of no consequence in what state he 
 might have been either hejhre or after. He was 
 unwilling to mention names in such cases ; but a 
 case had lately occurred, where a young lady at 
 Hampstead had been insane, and her father thought 
 it would be of advantage to her if she were married. 
 She was accordingly married during a lucid interval. 
 He himself had examined her, and found that she was 
 affected, even then, with a certain degree of morbid 
 feeling ; and it appeared in evidence, that, without 
 any apparent foundation for the notion, she always 
 believed that somebody had iioisoned her. As she 
 was a ward of the Court, and no commission of lu- 
 nacy existed, he had directed an issue to try whe- 
 ther she was of sound mind at the time of the mar- 
 riage, and it was found that she was of sound mind. 
 He recollected having been concerned, many years 
 ago, in a cause where a gentleman who had been 
 some time insane, and who had been confined till 
 the hour of his death in one of those houses, (mad- 
 houses) of the better sort, at Richmond, had made 
 a will while so confined. The question was, whe- 
 ther he was of sound mind at the time of making 
 this testament ? It was a will of large contents, 
 proportioning the different provisions with the most 
 prudent and /proper care, with a due regard to what 
 he had previously .^one for the objects of his boun- 
 ty, and in every lespect pursiiant to what he had
 
 TIT. VI. VERBAL DECLARATIONS DE PR^SF.NTI. 443 
 
 declared before his malady, he intended to have 
 done. It was held that he was of sound mind at 
 the time. He mentioned this the rather on account 
 of its similarity to the case now under considera- 
 tion, in one important particular, viz. that the act 
 done was pursuant to a previous declaration of in- 
 tention. The act of marriage, on the 22d of March 
 1805 was in this way connected with the letters of 
 1800. 
 
 He agreed that it was not a proper mode of pro- 
 ceeding, merely to state facts, in such a case as this, 
 to medical men, and take their opinion upon these 
 facts, and then leave it to the Court to judge upon 
 these facts and opinions, without any personal exa- 
 mination of the party by these medical men. But 
 he admitted that it was fair to consider whether, at 
 the time of the marriage, Mr. M'Adam did not in- 
 tend to commit the act of suicide. If it were prov- 
 ed that he was at the moment under the influence 
 oi thai morhid feeling, it might be a circumstance 
 of considerable weight. 
 
 With respect to the evidence here adduced, there 
 was no doubt but an unsound state of mind might 
 manifest itself by an accompanying ill state of 
 health. But if it was admitted that the mind was 
 in a sound state before, then they were to look at 
 the state of bodily health; not as in itself an evidence 
 of mental derangement, but with a view to ascertain 
 what effect it had on the state of the mind. Then, 
 after looking at the evidenceof \\'oodburn, the factor. 
 Hawthorn, the sur<>'con, and a number of other most
 
 444 A DIGEST ON THE LAW OF MARRIAGE, book hi. 
 
 respectable witnesses, who had the very best oppor- 
 tunities of observation, who declared that he was in 
 a perfectly sound state of mind, it would be taking 
 a liberty which man ought not to take with man, 
 to say that Mr. M'Adam, at the time of the mar- 
 riage, was not competent to contract. Under these 
 circumstances, it belonged to God alone^ who knew 
 the heart, to decide whether Mr. M'Adam, at the 
 moment of contracting, entertained the purpose of 
 suicide. It ought not to be decided by any declara- 
 tion of theirs. He did not think, therefore, that the 
 judgment of the Court below should be touched on 
 that ground. 
 
 " He had said so much upon that head, on account 
 of the opinion given by one who had been presi- 
 dent of the Court of Session, now alive, (Hay Camp- 
 bell,) who had said, that he did not conceive that 
 Mr. M'Adam was of sufficiently sound mind to con- 
 tract at the time of this marriage ; and that, at any 
 rate, he conceived the object of Mr. M'Adam to have 
 been, not to make Miss Walker his wife, but his 
 widow. How it was possible for him to make her 
 his widow without making her his wife, could not 
 very easily be conceived. 
 
 "As to the other question, it was of so much im- 
 portance, that it was a great satisfaction to have 
 heard all that they were ever likely to hear upon it ; 
 for, though they could not have the opinions of pro- 
 fessional men at the bar of that House upon an ap- 
 peal, yet such opinions were to be found in the 
 proceedings of the Consistory Court of this country. 
 
 4
 
 TIT. VI. VERBAL DECLARATIONS UE PR^SENTL 445 
 
 In the case of liearnish and Beamish, which had 
 been not very long ago before the Consistory Court, 
 it had been necessary to inquire particularly what 
 was the law of Scotland upon this point ; and it had 
 been found that there was a marked distinction 
 made between contracts de prcesentl and promises 
 de fiduro. And in the case of Dalrymple and 
 Ualrymple, in the Consistory Court, the question 
 was also considered, and each of the persons who 
 were there examined, stated his opinion on paper, 
 gave the text in writing, and the decisions, with 
 comments on the decisions and text. He found five 
 names there of persons of the greatest professional 
 knowledge, who had given it as their opinions, that 
 a contract de pr<ssenti constituted an immediate 
 marriage ; and there were three on the other side, 
 who said, that a contract de iwcesenti was not of 
 itself an entire immediate marriage. There had 
 been, therefore, a difierence among professional men 
 on the point ; but, after attending to all he could 
 learn on the subject, he did not find that there was 
 the same difference in judicial opinions on this head. 
 The fact was, that the canon law was the basis of 
 the marriage law all over Europe, and the only 
 question was — how far it had been receded from by 
 the laws of any particular country? Y^y ^^ canon 
 law, the distinction between the contract de prce- 
 sentl and promise de futiiro was well known : the 
 former constituting a good marriage of itself; the 
 other not unless followed by copula, or some other 
 act which is held in law to amount to the carrying 
 
 3
 
 446 A DIGEST ON THE LAW OF MARRIAGE, book hi. 
 
 the promise into effect. This distinction is stated 
 in the text of Stair. But if the contract de prcs- 
 senti as well as the promise de futiiro had required 
 the subsequent copida to give effect to the marriage, 
 the distinction would never have been heard of. 
 The fact of the copida following the promise, is 
 held to make that present and complete, which be- 
 fore was future and incomplete. If, then, a verbal 
 declaration de prcesenti was sufficient to constitute 
 a marriage, how it was to be proved, except by ver- 
 bal testimony, he did not know. 
 
 " With respect to the decisions, it was a position 
 again and again clearly recognised in them, that 
 the contract de prcBseyitl formed very marriage, ip- 
 su7n matrimonium, and the judgments of the House 
 of Lords had not trenched on the general doctrine. 
 Since this was the evident result, their Lordships 
 would excuse his entering into a detail of the decid- 
 ed cases. If such was the law of marriage in Scot- 
 land, he was relieved from entering upon the consi- 
 deration of the question. Whether it was wise that 
 it should have been the law so long ? or, whether 
 it ought to be so in future ? If it should be thought 
 proper to make any alteration in the law on this 
 subject, it must be done in another way. 
 
 " Another point had been made, viz. that there was 
 not here the species of consent necessary to bring the 
 case within the maxim, " consensus, non concidtitus, 
 Jiicit nuptias" Now, the evidence was, that as soon 
 as the connexion between this lady and Mr. M'Adam 
 began in 1800, he looked forward to a marriage
 
 TIT. VI. VERBAL DECLARATIONS DE PR^SENTI. 447 
 
 with her ; for, in his letter to his man of business, 
 on that occasion, he called the provision to be made 
 to her a jointure ; and expressly directs the deed to 
 be so prepared, as that the provision should not ne- 
 cessarily be increased, if he should at any time be 
 married to her ; and he mentioned in his notice to 
 the brother, that the connexion might possibly end 
 in marriage. After this, when she became pregnant, 
 he wrote to his man of business to ascertain whether 
 certain acts would endanger the legitimation of the 
 child in case he should afterwards marry the mother. 
 Their Lordships knew the distinction between the 
 law of Scotland and that of England on this point ; 
 the former legitimating all the children of the par- 
 ties before marriage ; the latter legitimating only 
 those who were born after the marriage. If they 
 were arguing respecting the comparative moral 
 effects of the two institutions, one might quote this 
 as an instance of the encouragement given, by this 
 doctrine of the law of Scotland, to postpone the 
 time of marriage, from the idea that tliey can marry 
 on their death-bed, and thereby render their chil- 
 dren legitimate ; whereas, accident might prevent 
 them from ever carrying their design into effect. 
 At the time of baptizing the child, he gave her the 
 nam'i of his mother ; which, as connected with other 
 acts, was a circumstance worthy of attention. It 
 was clear, then, that he had the intention of marry- 
 ing from the beginning, though this amounted 
 neither to a promise nor a contract- It was in evi- 
 dence, too, that he treated her with great respect.
 
 448 A DIGEST ON THE LAW OF MARRIAGE, bookiii. 
 
 It had, however, been said, that he had declared to 
 Richardson, the gardener, that he would not marry 
 her ; and to another Avitness, that he had given her 
 no promise of marriage. But he did not think 
 there was much in those casual observations, utter- 
 ed merely to conceal his real intentions, when the 
 design was decisively marked by his more deliberate 
 acts. Then he wrote to Smith, and declared to 
 Woodburn, that he had made up his mind to marry 
 Miss Walker. Might not these be looked at as 
 throwing light upon his intention to do the act of 
 the 22d March 1805 ? He called her his wife in 
 the presence of his servants, sent for expressly for 
 the purpose of bearing testimony to the marriage ; 
 and he likewise declared, that these were his legiti- 
 mate children ; words deserving of being particu- 
 larly noticed, as evidence of his intention. The 
 parties joined hands. There was a conversation 
 between them afterwards, upon which Mrs. Wylie, 
 the housekeeper, who appeared not to have been 
 very well disposed towards this marriage, was call- 
 ed in, along with the other witnesses, and the same 
 ceremony was repeated, with a slight unimportant 
 variation in the expression. The lady gave her 
 hand, and, when he declared her his wife, courtsied, 
 as a sign of her assent. If this had been a promise 
 of future marriage, it would not certainly have con- 
 stituted an actual marriage. But when he declared 
 that the lady was actually his very wife, and that 
 these w^ere his legitimate children per verha cle 
 2)r<Tsenti^ this formed a present contract, and 

 
 TiT.Ti. VERBAL DECLARATIONS DE PRiESENTI. 449 
 
 they became, eo instantia, as husband and wife, 
 as if the ceremony had been celebrated in the 
 kirk ; and the marriage was as valid as if a man 
 in returning from the kirk, immediately after his 
 marriage there, had died of an apoplectic fit before 
 he reached the house. Afterwards Mr. M'Adam 
 told Woodburn that he was married. It appeared 
 that Mrs. Wylie was nettled at this business, and 
 was anxious that he should wait till Mr. Smith 
 came ; but he refused to wait for him, lest Smith 
 should dissuade him from his purpose. The lady 
 received compliments as Mr. M'Adam's wife. All 
 this was evidence of the intention of the parties to 
 marry, and it was clear, that, by the transaction of 
 the 22d March, they meant to celebrate and consti- 
 tute a present marriage. 
 
 " Then came this question, whether this transac- 
 tion could be proved by parole testimony ? He 
 agreed, that there was a great danger in admit- 
 ting the constitution of a marriage to be proved by 
 mere parole testimony. But they had only to con- 
 sider, whether the existing law allowed this to be 
 done. Sitting there as a Court of Appeal, they had 
 nothing to do with the question, whether it should 
 be so in future. Now, when an actual marriage 
 was constituted by the mere verbal declaration of 
 the parties, how was it to be proved but by parole 
 testimony ? Suppose a marriage celebrated before 
 a minister ; there was no regular form of words for 
 this purpose ; and there it was admitted, that the 
 celebration might be proved by parole evidence-
 
 450 A DIGEST ON THE LAW OF MARRIAGE, book in- 
 
 Then, if it was not necessary for a clergyman to be 
 present, and if an irregular marriage was as valid as 
 a regular one, why should it not be proved in the 
 same way ? It was answered, true ; but there was 
 the " habit and repute," and the subsequent copula 
 in that case. This, however, did not grapple with 
 the argument ; for it might happen, that the death 
 of one of the parties, by the act of God, might pre- 
 vent any sexual intercourse, and yet the marriage 
 might be proved by parole testimony. So the law 
 already existed, in a number of cases ; and, upon 
 the whole, he had heard nothing to convince him 
 that a marriage could not be proved by this species 
 of evidence. 
 
 ** With respect to the question, whether, if the 
 parties had married other persons, after this con- 
 tract, they could have been punished for bigamy ? 
 he agreed, that the argument founded upon this 
 proved too much. If the statute applied only to 
 marriages regularly celebrated, and if this was not 
 a regularly celebrated marriage, then it appeared to 
 follow, that the parties could not be punished for 
 bigamy, or marrying other parties again, though 
 the second marriage might be invalid. The legis- 
 lature probably meant to make a distinction between 
 the civil and criminal consequences in these cases. 
 
 " He had now pointed out generally the grounds of 
 his opinion, that this marriage was duly had. They 
 had before them such evident demonstration of the 
 inconvenience of loose judgments, that he intended to 
 propose, that the present judgment should be prefac-
 
 TIT. VI. VERBAL DECLARATIONS DE Pll^SENTI. 451 
 
 ed by some finding which might distinguish it from 
 some of the loose cases noticed at the Bar. The 
 finding might be of this nature — 
 
 " 1st, That, at the time of the declaration of the 
 marriage in question, Mr. M'Adam was of sound 
 mind, and able to contract. 
 
 '* 2d, That, being then of sound mind, it was un- 
 necessary to decide upon the question of previous 
 insanity, or any circumstances connected with it. 
 
 " Sd, That, by the declaration of marriage, and the 
 facts and circumstances connected with this declara- 
 tion, it appeared that the parties did, on the 22d 
 of March 1805, intend, forthwith, to marry, and 
 did accordingly contract very matrimony. 
 
 Lord Redesdale concurred in the opinion that there 
 was not the slightest proof of insanity at the time of 
 the contract. Insanity was not to be inferred from 
 the subsequent act of suicide. It was not inferred 
 by law, but nmst be proved. There was no evidence 
 here that Mr. M'Adam was insane at any period 
 of his life, except from his irregular living at Edin- 
 burgh in 1803 ; and then it was inmiediately remov- 
 ed by medicine. 
 
 "Putting that, then, whollyoutof consideration, the 
 question was, whether the circumstances were suffi- 
 cient to constitute a legal marriage .-• The acts of 
 Parliament had been referred to, and especially that 
 of 1551, cap. 19. from which it was inferred, that 
 a marriage was not valid, except regularly celebrat- 
 ed in J'acie ccclesin' ; as a prosecution for bigamy 
 could not be supported under that statute, unless
 
 452 A DIGEST ON THE LAW OE MARRIAGE, book hi. 
 
 the previous marriage had been so celebrated. It 
 did, however, appear to him, that the answer given 
 by Sir Samuel Romilly to that argument, was suffi- 
 cient. Besides, he thought that the expression in 
 the act was not strong enough to support the infer- 
 ence, considering that, by the prior act of 1503, 
 cap. 77, marriage was recognised without this evi- 
 dence of regular celebration for its validity. Per- 
 haps the intention was, that strong evidence should 
 be necessary in criminal cases. The acts of 1641, 
 cap. 8. and of 1661, cap. 34, were so far from sup- 
 porting the conclusion, that regular celebration was 
 necessary to constitute a valid marriage, that they 
 referred to marriages constituted in both ways, 
 where there was, and was not a regular celebration, 
 and the act 1698, cap. 6. made the same distinc- 
 tion. 
 
 " All the text authorities made a clear distinction 
 between the contract de prcBsenti and the promise 
 dejuturo, whereas the agreement on the side of the 
 appellant went utterly to abolish the distinction. 
 In the text- writers, and especially in Mackenzie*s 
 and Erskine's Institutes, the doctrine contended for 
 by the respondent was clearly recognised. 
 
 " The same doctrine was also to be found pervad- 
 ing the whole of the cases. In the case of M'Lauch- 
 lan and Dobson, there was only a declaration, and no 
 subsequent copula. Upon the doctrine of the ap- 
 pellant, there was no ground to have induced the 
 Commissaries to declare this to be a marriage. It 
 was afterv/ards indeed found by the Court of Ses-
 
 TIT. VI. VERBAL DECLARATIONS DE PR^ESENTI. 453 
 
 sion, that this was no marriage, not because a de- 
 claration de j)rcEsenti was pei' se insufficient to con- 
 stitute a marriage ; but because, from all the cir- 
 cumstances taken together, it was evident that the 
 parties had no intention of forming a present mar- 
 riage. The declaration was considered as an en- 
 gagement for the future, from which the parties 
 rebus integris were at liberty to resile. It was 
 not enough that there should be a reservation by 
 one of the parties. The intention of both in that 
 case was, that the real marriage should be future. 
 It had been said, that in the present case there 
 was a secret reservation in the mind of Mr. 
 M'Adam, who never meant to live with Miss 
 Walker as her husband. But could it be allowed 
 that a contract should be ineffectual, because there 
 was a reservation in the mind of one of the parties ? 
 In the case of M^Ijauchlan and Dohson, the reser- 
 vation was in the minds of both parties. But was 
 there proof of any such reservation on the part of 
 Mr. M'Adam ? It had been inferred from the 
 subsequent suicide, and from his language to 
 Richardson and others. That inference, however, 
 had been met by a variety of circumstances which 
 marked his present intention to marry. He had 
 said at the time of the declaration, that these were 
 his legitimate children. From his letter to Smith, 
 stating that he had made up his mind to marry 
 Miss Walker ; from his declarations to Woodburn 
 before and after, it was clear that he considered
 
 4)54 A DIGEST ON THE LAW OF MARRIAGE, book hi. 
 
 himself bound by his contract, and that he had 
 completed his marriage. 
 
 " It had been objected however, that the verbal 
 declaration could not be proved by parole testi- 
 mony. But if a marriage could be constituted in 
 this way, he did not vmderstand how it could be 
 proved, except by parole evidence. In M'Lauchlan 
 and Dobson, and in M'Kay v. Ferguson, the evi- 
 dence was parole. 
 
 *' He saw no reason in this case, therefore, to dis- 
 sent from the Court below. If ever a marriage 
 could be completed without consummation, this was 
 a case of that description. He did not think it 
 could be properly said, that things were entire 
 after this : Though one of the parties died before 
 consummation, the person living had acquired a 
 different character — her children had acquired a 
 different character. There was no proof that Mr. 
 M'Adam did not intend a consortium vitcB at the 
 time of the marriage ; and even though he had not 
 had that intention, still it was not to be allowed 
 that a civil contract (as this was by the law of Scot- 
 land) should be avoided by a secret reservation of 
 one of the parties."
 
 455 
 
 BOOK III. 
 TIT. VII. 
 
 OF PROMISE AND SUBSEQUENT COPUI.A. 
 
 In the jurisprudence of every civilized and en- 
 lightened community, women are favoured objects, 
 and accordingly our law throws around them ample 
 protection in their just rights ; and will not suffer 
 them to be ensnared without remedy, especially in 
 the mode of contracting marriage, by a previous 
 solemn promise followed by sexual intercourse ; and 
 seeing this is part of our law, and has been so from 
 the earliest times, and since the Reformation, due 
 effect ought to be given to it. 
 
 But it has been insinuated that young men may 
 be ensnared into imprudent marriages by artful and 
 designing women ; this may possibly happen, but is 
 there no danger that the most honourable minds, con- 
 scious of the purest innocence, may receive the deep- 
 est and most irre})arable injuries from the insinua- 
 tion and address of profligate and unprincipled men ? 
 AVill it be said that it is tlie exclusive province of
 
 i\ 
 
 456 A DIGEST ON THE LAW OF MARRIAGE, book in. 
 
 impartial justice to protect the honour and interest 
 of one sex only and not that of the other ? Because 
 some women may be without sincerity, and without 
 affection towards the persons whom they would 
 ensnare, ought all men to enjoy a general licence, 
 under professions of marriage, to corrupt the virgin 
 innocence of the most virtuous and most respecta- 
 ble of the sex ? Because a few women may prac- 
 tise deceit, ought it to be permitted to all persons 
 under the cover of marriage, to stain the honour 
 and destroy the peace of mind for ever of every 
 woman without distinction of rank in life ? These 
 practices our law detests and punishes, and always 
 affords redress to these grievous wrongs by holding 
 a promise and copula to be a marriage. The rights 
 and interests of the male sex are sufficiently guard- 
 ed, for with respect to the institution of marriage 
 by a promise c?im copula, every thing is in favour 
 of the man ; the promise of the man, which is the 
 ground-work of this mode of marriage, with the 
 exception of a regular courtship of marriage follow- 
 ed by a copula^ can be proved only scripto vel jura-- 
 mento of the man, but the subsequent copula may 
 be proved by witnesses, as will clearly appear from 
 Bankton, lib. iv. tit. 5. § 3. who says, " when mar- 
 riage is made out by a promise of marriage and 
 subsequent copula, the promise must be proved by 
 the defender's oath or writing, and the copula by 
 witnesses, for our law rejects parole evidence of all 
 kinds, and it were dangerous to admit such proof 
 in a matter of the greatest consequence, as the con-
 
 TIT. vn. OF PROMISE AND SUBSEQUENT COPULA. 45? 
 
 stitution of marriage is, but the copulation will be 
 proved by witnesses which will be inferred by cir- 
 cumstances ordinarily accompanying it. 14th July 
 1732, Harvie v. Crawford of Milton, and a trans- 
 action between the man and the friend of the woman 
 he had got with child, to give her a sum of money, 
 may be proved by witnesses, 2l6th June 1706. 
 Fount, ii. 337. Mor. 12,234. 
 
 In the classification of cases in this work, our 
 readers are requested to observe the marked dis- 
 tinction that exists between the different modes of 
 ascertaining marriage, without which no legitimate 
 conclusion can be drawn. This observation does 
 most essentially apply to the class of cases de prce- 
 senti and dejutiiro. 
 
 In support of this title " of promise and subse- 
 quent copula," we appeal to all our institutional 
 writers, and to a long unbroken chain of solemn 
 decisions. Lord Stair, book i. tit. i. § 6. observes, 
 ** Marriage consists in the present consent, whereby 
 they accept each other as husband and wife, whether 
 that be by words expressly, or tacitly by marital 
 cohabitation or acknowledgment, or hy natural com- 
 mixion^ where there has heen a promise or espousal 
 preceding^ for therein is presumed a conjugal con- 
 sent de jwtssenti" 
 
 Sir James Stewart asserts, " When sponsalia or 
 promise of marriage is consummate ^9er copulanty 
 and a pursuit intended for solemnizing and declar- 
 ing the issue lawful, though the defender die, the 
 pursuit may be transferred in favour of the relict
 
 458 A DIGEST ON THE LAW OF MARRIAGE, book m. 
 
 and children to have the marriage declared, and so 
 sustain their rights." 
 
 In like manner, Mr. Erskine, book i. tit. vi. § 2. 
 describes, " marriage as being truly a contract, and 
 so requires the consent of parties. And it is con- 
 stituted by consent alone^ by the conjunctio animo- 
 rum, &c. He adds in section 5, that the consent 
 essential to marriage, is either express or tacit." 
 After describing what a regular marriage is, he 
 adds, " But it is not essential to marriage that it 
 be celebrated by a clergyman." Again, " The proof 
 of marriage is not confined to the testimonies of the 
 clergyman and witnesses present at the ceremony. 
 The subsequent acknowledgment of it by the par- 
 ties is sufficient to support the marriage, if it ap- 
 pear to have been made not in a jocular manner, 
 but seriously, and with deliberation." And that, 
 " in the case of a j^rotnise of marriage, follow- 
 ed hy a copula, the subsequent copula must doubt- 
 less be considered as the perfection or consum- 
 mation of the prior contract, after which, there can 
 he no room for resiling ;" and, indeed, though the 
 promise de futuro should be barely verbal, the ca- 
 nonists (Decretal, 1. iv. tit. i. c, 30.) and upon 
 their authority, both our Judges and writers are 
 agreed, that a copula subsequent to such promise 
 constitutes a marriage, from a presumption or fic- 
 tion that the consent de praesenti, which is essen- 
 tial to marriage, was at that moment mutually 
 given by the parties, in consequence of the ante- 
 rior promise." 
 
 'A
 
 TIT. VII OT PROMISE AND SUBSEQUENT COPULA. 459 
 
 In a foot note to the fifth edition of Erskine, page 
 95, it is said, that " any farther discussion of the 
 subject, is superseded by the case of Pennycuick, 
 which was taken up by the Court, entirely upon 
 the general point. It was held for law, that apro- 
 mise of marriage followed by a copula^ made />ww 
 that moment a mutual marriager And proof of a 
 courtship before a copula so as to infer the pre- 
 sumption of a promise of marriage, was allowed by 
 witnesses, in the case of Smith. Fac. November 
 21, 1775.'' 
 
 On these liberal principles and grounds, the fol- 
 lowing decisions have been pronounced. 
 
 1. Elizabeth Lining v. Hamilton, December 1, 
 1749. Kilk. page 487. Kames' Remarkable Deci- 
 cisions, page 100, Diet. 4,288. Mor. 13,912. 
 
 The pursuer was cousin-german to the defender, 
 pursued him for a declarator of marriage and adhe- 
 rence, and for having the legitimacy of a child pro- 
 created betwixt them ascertained, founded upon a 
 promise and subsequent copula, and in place of 
 asking a proof prout de jure^ she at once had re- 
 course to the defender's oath, and he having emit- 
 ted an oath unfavourable to her, not amounting to 
 a full proof of her libel, she, without desiring the 
 oath to be advised, raised a subsequent process for 
 damages, for seducing her into an unlawful com- 
 merce with him. 
 
 These processes being conjoined, the Commissa- 
 ries " Found the libel of declarator of marriage not 
 proven, and assoilzied him from the adherence, but
 
 460 A DIGEST ON THE LAW OF MARRIAGE, book in 
 
 found the qualification of his iiaving seduced the 
 pursuer to yield to his embraces proved, and rele- 
 vant to subject the defender liable in damages, and 
 modify the same to L.500." 
 
 The defender having presented a bill of advoca- 
 tion, to which answers were put in on the part of 
 the pursuer, and the Lord Ordinary having report- 
 ed the case to the Lords, they " Remitted to the 
 Ordinary to refuse the bill, and to remit the same 
 to the Commissaries, with this instruction, that 
 they restrict the damages to L. 290 Sterling, besides 
 the full expense of the process.'* 
 
 2. Alison Pennycuick and Son, 15th Dec. 1752, 
 
 V. John Grinton and Ann Graitie. Fac. 166, No. 46. 
 
 Mor. 12,677. 
 
 Of this class of cases to which we would solicit 
 
 attention, perhaps none is more decisive than this, 
 where the man by his judicial declaration express- 
 ly admitted the previous promise and subsequent 
 copula and a child, yet he afterwards chose to marry 
 Ann Graitie the other defender, who bore children 
 to him. The decision is the more important, as it 
 establishes two material points ; first, that a pro- 
 mise and subsequent copula establishes a marriage ; 
 and second, that any subsequent marriage, however 
 regular and agreeable to the rules of the church, 
 cannot annul the prior irregular marriage, whether 
 by promise and subsequent copula, habit and re- 
 pute, suhseque7is 7}iatrimo7imm declarations ^/i?/:)/Y/^- 
 sentl, written or verbal, or in any other manner 
 which the law has recognised as irregular. 
 
 John Grinton, a tenant, proposed marriage to Ali-
 
 TIT. vii. OF PROMISE AND SUBSEQUENT COPULA. 461 
 
 son Pennycuick, and obtained her consent. She, in 
 consequence, permitted him to have knowledge of 
 her more than once, and in consequence, bore 
 a son to him iu July 1747. He presented the child 
 to the minister to be baptized, but Grin ton refusing 
 to adhere, Alison Pennycuick, in 1748, first com- 
 menced a process for damages only, but she after- 
 wards raised a process of declarator of marriage and 
 legitimacy before the Commissaries, where she 
 founded on courtship, promise of marriage, copula- 
 tion, and the procreation of a child, all which were 
 referred to Grinton the defender's oath, and he, in 
 effect, acknowledged them all, although, at the 
 time, he alleged he was in liquor when he made 
 the proposals and promises. 
 
 In January 1750, Grinton was privately married 
 to Ann Graitie without proclamation of banns ; how- 
 ever, he brought her immediately home to his house, 
 and lived imhlicly ivith her us Im wife. Of this 
 marriage Graitie bore a child. All this time Alison 
 Pennycuick, although she had opportunity of know- 
 ing of Graitie's marriage with Grinton, took no step 
 in her process, but in January 1751 she raised 
 affainst him a new summons in her own and her 
 son's name, setting forth the same facts as the for- 
 mer, and referring for proof thereof to the oath be- 
 fore mentioned, and containing the proper conclu- 
 sion, declaratory of her marriage, and of the legiti- 
 macy of her child ; at same time, it concluded for 
 divorce on account of the defender's open adultery 
 with Ann Graitie. Upon this Ann Graitie raised
 
 462 A DIGEST OF THE LAW OF IMAlllllAGE. book iii. 
 
 a counter process, declaratory of marriage with 
 Grinton. The Commissaries, very properly, " found 
 the marriage between John Grinton and Alison 
 Pennycuick proven ; and declared them husband 
 and wife, and James Grinton their lawful child ; 
 and found it proven that John Grinton and Ann 
 Graitie had celebrated a marriage in January 1750, 
 but that the same was unlawful, void, and null ; 
 and found, that in respect of John Grinton's coha- 
 bitation with Ann Graitie, he had been guilty of 
 adultery, and, therefore, they divorced and separat- 
 ed Alison Pennycuick from him, and found her en- 
 titled to bygone aliment, from the time of her mar- 
 riage, and until the date of the decreet, and found 
 James Grinton entitled to aliment, from the time of 
 his birth, until he should attain the age of fourteen 
 years ; and in order to the modification of these 
 aliments, allowed Alison Pennycuick to give in a 
 condescendence of John Grinton's circumstances ; 
 and, lastly, they found John Grinton liable in ex- 
 penses of process, and dues for extracting the de- 
 creet." 
 
 John Grinton and Ann Graitie presented a bill of 
 advocation against this judgment, and pleaded that 
 Alison Pennycuick did not understand that any 
 obligation to marry had been contracted between 
 Grinton and her, far less that an actual marriage had 
 intervened, and that this her sense of the matter was 
 evident, first from this, that her first suit concluded 
 for damages only ; for her making mention of the 
 promise of marriage could mean nothing more than
 
 TIT. VII, 
 
 . OF PROMISE AND SUBSEQUENT COPULA. 463 
 
 an apology for the surrender of her virtue. Her 
 sense of the matter was further evident from her 
 silence during more than a year and a half before, 
 and a year after the marriage with Ann Graitie. 
 
 But secondly, et separathn^ it was pleaded, as a 
 general point of law, that John Giinton's promises 
 to marry, although followed by a copula, cannot, in 
 the strongest sense, infer more than an obligation 
 upon him afterwards to solemnize and complete a 
 marriage. This obligation might, by the intervention 
 of a mid impediment, become unperformable. Sup- 
 posing John Grinton had died, his obligation to 
 marry must have died with him. In this case the 
 second marriage became a mid impediment, no less 
 effectual than death ; and therefore the obligation 
 could no otherwise issue, than in damages to the 
 party. Upon this point, important as it is, our 
 lawyers have not wrote with entire precision ; yet, 
 by their making mention tiiat, in a like case, there 
 would be an action to compel the party refractory 
 to complete the marriage, it is very plain they did 
 not hold the marriage to be actually completed. It 
 must have been upon these principles that my Lord 
 Stair, lib. i. tit. 4. par, 6". mentions, that, in the 
 case of Barclay v. Napier, the man was obliged to 
 solemnize the marriage, seeing he had procreated 
 children with the woman. Sir Thomas Craii>\ lib. 
 ii. dieg. 18, par. 19. relating the case oi Kdward 
 Youiigert says, lilt commisaaril viri acuti, succes.sio- 
 nem honoruni mohilium concesscrunt liheris Ed- 
 ward i Younger, licet matrimoniuvi nunquam Juit 
 contractum, nequc hahna proclamata, ea raiione quod
 
 464 A DIGEST ON THE LAW OF MAPtRIAGE. book m. 
 
 cum Edwardus, suhfidefuturi matrimonii eos liheros 
 suscepissetf materque apud Commissarios causam oh- 
 tinuisset, ut Edwardus, matrimoiiium promissum im- 
 plere cogeretur ; eo recusante perindc habuerunt ac 
 si eam in uxorem diixisset, liherisque honoriim mo- 
 bilium execiitio sine hcereditas adjudicata est. Con- 
 stat ergo ube nunquam matrimonium de Jacto in- 
 tervenit, posse aliquando legitimos saltern legitimatos 
 esse. 
 
 This doctrine is well founded in reason, for dread- 
 ful were the consequences, if promises, made for the 
 most part in cBstu libidinis^ and kept private, or, at 
 least, not properly put in suit, should have the effect 
 to make void a subsequent and formal marriage, and 
 to bastardize the issue of it. 
 
 Answered for Alison Pennycuick, — That her not 
 having concluded properly in her first summons, 
 was the oversight of her procurator, and at any rate, 
 might be amended ; for, in that summons, she had 
 fully set forth the facts which inferred the marriage. 
 Anne Graitie did not pretend to be ignorant of her 
 claim ; and it was evident that the fear of objections 
 upon that account, was the reason why the celebra- 
 tion of the second marriage was private, and with- 
 out proclamation of banns ; therefore Anne could 
 not complain she was deceived : but, at any rate, 
 in the second place, the general point of law was 
 absolutely clear. That a promise of marriage, fol- 
 lowed by conjugal intercourse, made an actual and 
 legal marriage, although not a formal one. Such 
 was the rule of the canon law itself, notwithstand- 
 ing the great stress is laid upon sacerdotal benedic-
 
 TIT VII. OF PROMISE AND SUBSEQUENT COPUI.A. 465 
 
 tion. This appetirs from lib. iv. tit. 1. cap. 30. — 
 Decretalium de sponscdibus et matrimonio : is qui 
 fidem dedit mulieri super matrimonio confrahendOf 
 carnali copida subsecuta si in facie ecclesiae, ducat 
 aliam et cognoscat, ad primam redire tenetur, &p. 
 Although our law followed not the canon law, so 
 far as to give action upon sponsalia de futuro, or 
 bare promise of marriage ; yet si copida sit subse- 
 cuta, it makes a legal marriage de praesenti. This 
 is expressly laid down by Lord Stair, lib. i. tit. 4. 
 par. 6. where, speaking of present consent, which 
 makes the essence of marriage, he says, " That may 
 be by natural commixion, where there hath been 
 a promise or espousal preceding ; for therein is pre- 
 sumed a conjugal consent, de praesenti'* And again, 
 lib. iii. tit. 3. par. 42. he says, " After contract or 
 promise of marriage, or sponsalia, if copulation fol- 
 low, there is thence presumed a matrimonial con- 
 sent, de praesenti, which therefore cannot be passed 
 from, by either or both parties, as having the essen- 
 tial requisites of marriage." And in the tit. first 
 mentioned, he relates, that in the case of Harclay v. 
 Napier, the man was obliged to solemnize the 
 marriage, although the woman, in a contract pos- 
 terior to the contract of marriage, had renounced 
 the same. This is also agreeable to our ancient 
 practice, as appears from Sir Thomas Craig, where 
 he relates, that, in the case of Edward Younger 
 (above mentioned,) the Commissaries first de- 
 cerned him to solemnize the marriage, and upon 
 his refusal declared the marria^-e and the le<riti-
 
 466 A DIGEST ON THE LAW OF MARRIAGE, book m. \\ 
 
 macy of the children. These learned authors are 
 clear as to what made the essence of marriage ; and 
 as to the solemnization mentioned by them, that 
 was only required for the sake of public order and 
 decency. The principles here laid down are sup- 
 ported by the uniform practice of our courts, where, 
 upon evidence of the promise and cojmla, the constant 
 style of their judgment is, " declaring the parties 
 to be married, decerning them to adhere, and de- 
 claring the legitimacy of the children." 
 
 This case was taken up by the Lords, entirely 
 upon the general point ; and it was held for the 
 law, that a promise of marriage, followed by a co- 
 pula, made, from that moment, an actual marriage. 
 
 The Lords remitted the cause to the Commis- 
 saries simpUcifer. 
 
 3. Margaret Sawers v. David Forrest, decided in 
 the year 1787, but not reported. 
 
 There, in a declarator of marriage, it was found 
 that a courtship, a subsequent copula, the birth of 
 a child, and proclamation of banns, establish a mar- 
 riage. 
 
 Like that of Pennycuick, it rested chiefly on the 
 judicial declaration of the defender, who gave the 
 following account of the first intercourse when ex- 
 amined before the Commissaries, " That, about the 
 6th October 1781, or perhaps before it, the declar- 
 ant began to visit the pursuer, at her father's house, 
 and from that time continued his visits ; and after a 
 few interviews, when they were together at her fa- 
 ther's house, the declarant said to the pursuer that
 
 TjTvii. OF PROMISE AND SUBSEQUENT COPULA. 4G7 
 
 lie had a great regard for her : the pursuer answer- 
 ed that she had a great regard for him ; and there- 
 upon he had carnal dealings with her, for the first 
 time : That at this time the declarant had neither 
 courted the pursuer for marriage, nor given her a 
 promise of marriage : That, in the course of that 
 night, the declarant having asked the pursuer, 
 what was her mind ? the pursuer made answer, 
 that her mind was for him ; upon which the declar- 
 ant said, he had no objectiofi, and that he was will- 
 ing to take her, according to their mutual agree- 
 ment ; and by this expression, he meant nothing 
 else, than that he was to take her for his wife : 
 That, after he had paid the pursuer several visits, 
 she told him, that she would make no provision of 
 furniture until the declarant had asked the good will 
 of her parents." It appears farther, that, in pursu- 
 ance of their conversation about marriage, the fa- 
 ther of the pursuer was consulted, proclamation of 
 banns was made, but the parties having differed 
 about the terms, treaty broke off. But the Commis- 
 saries and the Court found a marriage between 
 the parties. 
 
 4. A. M. Cockburn v. Logan, 19th July 1670, 
 Gosford Die. ii. p. 228. 
 
 The same principle, as to promise of marriage 
 and subsequent copula, was recognised in this case, 
 which was a suit at the instance of a widow for 
 aliment against the representatives of a defunct, to 
 whom she had borne a child j but the court refused 
 
 2 L
 
 468 A DIGEST ON THE LAW OF MARRIAGE, book iit. 
 
 to sustain the probation of a promise of marriage, 
 after the man's death, otherwise than by writ. 
 
 5. Jean White v, William Hepburn, 18th No- 
 vember 1785, Fac. Mor. 12,686. 
 
 If, in this case, the pursuer had established any 
 treaty or promise of marriage anterior to the copu- 
 la, or a proof of a previous courtship, little doubt 
 could be entertained but a marriage would have 
 been established : banns had been published at the 
 defender's desire ; he had acknowledged to different 
 persons, that she was his wife, had entered on a 
 treaty of marriage with her father, and she had 
 borne a child to him. 
 
 This, therefore, was considered to be a very nice 
 question, and bore considerable resemblance to 
 Grierson v. Grierson. 
 
 The Report in the Faculty Collection is : — Wil- 
 liam Hepburn and Jean White, both young persons 
 of middling rank, having contracted an intimacy 
 with each other, the consequence was the birth of a 
 child. His having that intercourse was not denied 
 by Hepburn ; and it was proved, by witnesses, that, 
 while Jean White was with child, he said to differ- 
 ent persons, that he was married to her, or that she 
 was his wife, caused proclamation of banns to be 
 made between him and her, and entered with her 
 father on a treaty of marriage. But there was no 
 evidence of any such treaty, or of a promise of 
 marriage, prwr to the copula, and but a very slight 
 proof that any courtship had then taken place. 
 
 
 1
 
 TIT. VII. OF PROMISE AND SUBSEQUENT COPULA. 469 
 
 'J'he Commissaries found facts, circumstances, and 
 qualifications proven relevant to infer marriage be- 
 tween the pursuer and defender. 
 
 This sentence was brought under review by ad- 
 vocation ; and the Lord Ordinary having reported 
 the cause upon informations, the Lords refused the 
 bill, and remitted the cause to the Commissaries, 
 with this instruction, that they alter their interlocu- 
 tor, finding facts, circumstances, and qualifications 
 proven, relevant to infer marriage between the par- 
 ties, and assoilzie the defender. 
 
 In the Die. it is abridged, — " Jean White bore 
 a child to Hepburn, and having pursued a declarator 
 of marriage against him, it was proved, that, dur- 
 ing the pursuer's pregnancy, Hepburn had said to 
 different persons that she was his wife, had caused 
 banns to be proclaimed, and had entered into a 
 treaty of marriage with the father. But there was 
 no evidence of any such treaties being prior to the 
 copula, nor of any promise of marriage previous 
 thereto, and but a slender proof of courtship. The 
 Commissaries found the facts and circumstances re- 
 levant to infer a marriage between the parties ; but 
 the Lords altered that judgment, and assoilzied the 
 defender." 
 
 6. Miss Catharine Low v. William Allardice, de- 
 cided about 1794, where the Commissaries and the 
 Court, on the ground of courtship and subsequent 
 copula, found a marriage. Not reported. 
 
 This important case excited much attention. 
 Able informations to the Court were framed bv
 
 470 A DIGEST ON THE LAW OP MARllTAGE. book lif, 
 
 Allan Maconochie, Esq. advocate, thereafter Lord 
 Meadovvbank, on the part of the lady, daughter of 
 Dr. Joseph Low, physician in Brechin, pursuer, 
 and by Alexander Elphingston, Esq. advocate, on 
 the part of the defender, Mr. Allardice of the Hon- 
 ourable the East India Company's service. 
 
 It appears that there was an attachment on both 
 sides, (and the chief motive for resisting the ques- 
 tion on the part of the defender was, that it would 
 jirove ruinous to his prospects in India, to where he 
 intended to return) and that she surrendered her 
 honour and virtue after courtship and promise of 
 marriage, as appears from the letters of love and at- 
 tachment that passed between them in the course of 
 an honourable courtship, and it even came out that 
 de facto, previous to the copula, they entered into 
 the ceremony of marriage, according to the rites of 
 the Church of England, although he pretended to 
 say it was a joke when examined before the Com- 
 missaries. After admitting that he had connexion 
 on two occasions prior to the ceremony, he says, 
 " That being together in the house of her father, 
 and rummaging over some books that were lying on 
 a table, they lighted on a prayer-book, which they 
 looked into, and read part of the marriage cere- 
 mony, but in reading altered some of the words in 
 a jocular manner, as, for example, when they came 
 to the passage * I pledge to thee ray troth,' they to- 
 gether exclaimed, ' I plight to thee my kiss,' and 
 upon this they kissed each other." 
 
 Of the many letters that passed between them,
 
 !iiT. vn. OF niOMISE AND SUBSEQUENT COPULA. 471 
 
 one of them from the lady, and another from the 
 defender to her father, runs in these terms : — 
 
 "Miss Low presents best compliments to Mr. 
 Allardice ; begs he will wait on her just now, as she 
 is alone, and cannot be interrupted by any person, 
 
 sametime thinks it preferable to any where else 
 
 Sunday Evening. Received ISt/i March. 
 
 " Du. Low—Sir, 
 
 *' Being engaged with business this fore- 
 noon, and in the afternoon with company, I take 
 the first opportunity of avowing my regard for 
 Miss Low to you ; but to enter into matrimony in 
 my present situation would be absolute ruin to both 
 her and me, and if we should have any progeny, 
 entailing misery on them for ever. My regard has 
 often prompted me to disclose my sentiments con- 
 cerning Miss Low to you ; but I have been as often 
 dissuaded from doing it, by considering that her 
 union and mine must at any rate be deferred for a 
 few years, and perhaps interrupted by accidents for 
 ever. If Miss Lovi% with your approbation, will 
 favour me with her correspondence after my de- 
 parture from this, she shall be informed how soon 
 I am in a condition to marry, but at present to 
 think of it, would be absolute madness. 
 
 Brechin, \M March 1791." 
 
 The Commissaries, after allowing a proof and or- 
 dering memorials, pronounced the following inter- 
 locutor : — " Having resumed consideration of this
 
 472 A DIGEST ON THE LAW OF MARRIAGE, book. iii. 
 
 cause, with the proof adduced, and memorials Mnc 
 inde, find it clearly proven that a copula took place 
 between the parties in the course of an honourable 
 courtship, and in consequence of a solemn promise of 
 marriage by the defender to the pursuer : Find these 
 facts relevant to infer marriage between the par- 
 ties ; and, therefore, find and declare in terms of the 
 conclusions of pursuer's libel, so far as relates to the 
 conclusion for m.arriage and adherence, and decern." 
 
 The defender reclaimed against this interlocutor, 
 but upon advising the petition, the Commissaries 
 were pleased to refuse the desire thereof, and to 
 adhere to the interlocutor reclaimed against. 
 
 The defender offered a bill of advocation, and 
 the Lord Abercromby having ordered informations 
 to the Court, they refused the bill of advoca- 
 tion, and adhered to the judgment of the Com- 
 missaries, than which, doubtless none could be bet- 
 ter founded. 
 
 7. Kennedy v. M'Dowall, 1800, not collected. 
 
 Here the chief ground of declarator of marriage 
 was a promise and subsequent copula, and although 
 the pursuer failed in establishing these facts, and of 
 consequence making out her marriage, no doubt was 
 entertained by the Commissaries and the Court of 
 Session as to the relevancy of a promise and sub- 
 sequent copula to constitute a marriage. 
 
 8. Castlelaw v. Agnew, 1717, not collected. 
 
 This was a declarator of marriage on the footing 
 of promise cum suhsequeufe copula, in which the
 
 TIT. VII. OF PROMISE AND SUBSEQUENT COPULx\. 473 
 
 defender produced "A discharge granted by the 
 pursuer to the defender, of date 25th November 
 1715, whereby the said pursuer granted her to 
 have received from the defender full and complete 
 payment of all fees due to her for five years ser- 
 vice, preceding Martinmas 1715, whereupon she 
 discharged the said defender of all fees due to her 
 for the said service, and all ^Jt^fensions of mar- 
 riage that she could claim of the defender." The 
 Commissaries, 15th August 1717, "Found the 
 promise of marriage with the posterior copula or 
 concubitus libelled, relevant to infer the conclu- 
 sions of the libel, and proveable by the defender's 
 oath of verity, and found the discharge not suffi- 
 cient to elide the same." Vide Commissary re- 
 cord, p. 380. 
 
 9. Isabella Shillinglaw v. William M'Intosh, 
 where it was found by the Commissaries and the 
 Court, that a letter holograph of the defender, con- 
 taining a promise of marriage followed by a sub- 
 sequent copula, clearly established a marriage, 6th 
 March 1829, not reported. 
 
 The parties are about equal age, she about tv/enty- 
 iive years, and the youngest of the two. 
 
 At the commencement of their acquaintance, 
 which is of some years standing, the parties were 
 both of humble rank. She had supported herself 
 by her needle, 'i'he defender, for some years, was 
 qualifying himself for becoming a practitioner be- 
 fore the local courts of Peebles. He had paid his 
 addresses to the respondent, for whou) he had pro-
 
 474 A DIGEST ON THE LAW OF MAllllIAGE. book lu, 
 
 fessed to have conceived an honourable attachment. 
 This manifested itself in attentions, that find their 
 way to the female heart, with which she was grati- 
 fied, and the assiduity which he displayed to please 
 her, ended in gaining her entire confidence. 
 
 It was, however, considered that a public avowal 
 of marriage, would not be prudent in the circum- 
 stances of the parties, and they both resolved to 
 keep their connexion that had taken place private. 
 But the defender having assumed some degree of 
 consequence, he, after writing her letters and hav- 
 ing connexion with her, thought proper to abandon 
 her. This forced her to institute an action before 
 the Commissaries, which concluded for declarator of 
 marriage in common form, that the parties are 
 *' lawful married persons," and for adherence and 
 aliment. 
 
 In order to establish the promise, the defender 
 on the 16th January XS22, v/rote, and sent to the 
 pursuer, a letter referred to in the libel, in which, 
 after soliciting an interview with her, he uses these 
 words : — 
 
 " For love has of this cheek bereft 
 
 That smile, that glow of joyous gladness ; 
 And sympathy's cold sting has left 
 Nought there but pale and gloomy sadness-" 
 
 " It is with pain that I can write to-day. Adieu 
 ly love, and may God send us a cheerful meeting. 
 
 (Signed) 
 
 " W. M."
 
 TiT.vii. OF rilOMISE AND SUBSEQUENT COPULA. 475 
 
 Another letter of 29th May 1822, he urges a 
 fleeting, and addresses her Miss Sliillinglaw, dress- 
 maker, Peebles. 
 
 In another letter he expresses his vexation and 
 jealousy, at imagining the pursuer had listened to 
 some story to his disadvantage, and asks, " What 
 you would be in such circumstances ? Let your 
 unhappiness cease, I shall be with you at nine pre- 
 cisely — but were you to catch cold in your head 
 what shall I say to myself ? Adieu, and remem- 
 ber that I am, my Bell, yours faithfully." 
 
 In another letter he presses a meeting, and in 
 another he says, " Dear Bell, — To satisfy your 
 scruples as to my love for you, I now say that it is 
 my intention to conclude most honourably by mar- 
 riage, but that only when I find we can do so with 
 comfort, and also in consideration of your good be- 
 haviour, yours ever." — other letters of a similar 
 tendency and import were wrote importing a pro- 
 mise of marriage, and a proof having been led of 
 repeated retirements and sexual intercourses, the 
 Commissaries pronounced the following interlocu- 
 tor :— 11th July 1821.— " The Commissaries hav- 
 ing considered the cases for the parties, writings 
 produced, proof adduced, and whole i)roceedings ; 
 Find that the pursuer has established by legal evi- 
 dence, a marriage with the defender, by promise 
 et siihsequeuti copula ; Find them married persons, 
 husband and wife accordingly : Therefore, decern 
 in terms of the libel in so far as concerns the 
 conclusions for declarator of marriage and ad- 
 herence : Find the defender liable to the pursuer in
 
 476 A DIGEST ON THE LAW OF MAlllUAGE. book in 
 
 expenses of process, of which allow an account to 
 be given in, and when lodged, remit the same to 
 the auditor to be taxed." 
 
 The Lords, Second Division, refused a bill of ad- 
 vocation, followed with answers for the defender, 
 which had been presented against the Commissaries' 
 judgment. 
 
 10. Dame Elizabeth Campbell and Elizabeth 
 and Alexander Honyman v. Sir R. B. J. Honyman, 
 Bart. 9th July 1820, Fac. Affirmed in the House 
 of Peers, 3d March 1831. 
 
 Here a marriage was declared by the Courts be- 
 low and the House of Peers. 
 
 The facts and procedure are the following : — 
 
 In summer, 1808, the pursuer, then an accom- 
 plished young woman of twenty-two years of age, 
 went as governess to the family of Sir William 
 Honyman, the defender's father, and for six years 
 remained in charge of Sir William's daughters, re- 
 spected and esteemed in the family. At the end of 
 three years, the defender returned to his father's 
 house from India, at the age of twenty-four. His 
 health had been somewhat affected by the climate, 
 and, therefore, he was not only more at home and 
 in the company of the pursuer, but necessarily be- 
 came an object of deeper interest, and of all those 
 little attentions which it is a sort of privilege of in- 
 disposition always to command. He came to his 
 father's house at Smylum, near Lanark, in Septem- 
 ber 1811 ; and although it is proved by the evi- 
 dence of the coachman, who was then, and still is.
 
 TIT. VII. OF PROMISE AND SUBSEQUENT COPULA. 477 
 
 a domestic of the family, that not the least impro- 
 priety was observable, it is evident that a very 
 mutual attachment commenced, which continued to 
 increase virtuously, till it terminated in a marriage, 
 which took place nearly two years thereafter, viz. 
 in June 1813. 
 
 In spring 1812, the pursuer's health became im- 
 paired by a liver complaint. According to advice 
 she took a sea voyage to London in June 1812, 
 and resided for a fortnight with an uncle, Mr. 
 Chambers, in Milman Street. It so happened that 
 the defender, having gone to Cheltenham for his 
 health, came to London soon after, and, as was to 
 be expected from the state of their affections, he 
 spent a considerable portion of his time in Milman 
 Street. Returning from London, the parties spent 
 the succeeding autumn together at Smylum, when, 
 though no distant arrangements were made for 
 completing their plan, they did adopt the resolu- 
 tion of becoming man and wife, as soon as it could 
 with any safety be accomplished. 
 
 The defender havinij been returned 'to Parlia- 
 ment, as member for Orkney, went to London 
 again about the end of January 1813 ; and having 
 applied for permission to correspond with the pur- 
 suer by letter, he was but a very short time in 
 London before he took advantage of the permission 
 given to him, and wrote the first letter of the series 
 of correspondence ])ro(hiced in process. Tiiis se- 
 ries, which consists of three letters, were all writ- 
 ten i>revious to the concubititfi ; and their terms are
 
 Vl I 
 
 478 A DIGEST ON THE LAW OF MARRIAGE, book iij, 
 
 very important, because, independently of particu- 
 lar expressions which distinctly mark out the re- 
 lation of husband and wife, as that and that only 
 which he contemplated with the pursuer, they are, 
 in their whole strain, expressed in language so free 
 from every thing of a gross or criminal nature, that 
 it is impossible for a moment to consider them in 
 any other light than as the letters of an honourable 
 lover. 
 
 The letters from the pursuer to the defender 
 have been all destroyed by the defender, in the cir- 
 cumstances to be afterwards explained. 
 
 On the defender's return to Smylum in April 
 1813, the courtship was continued in the same 
 honourable terms till the end of June, when, after 
 a lapse of nearly two years from the commencement 
 of his attentions, the marriage was contracted by 
 the distinct avowal of the parties de praesenti to 
 accept of one another as husband and wife. This 
 was in private, and the publication of the marriage 
 was anxiously avoided, for the reasons already re- 
 ferred to. 
 
 During part of the succeeding winter, the pur- 
 suer resided with her aunt, Mrs. Fraser, in Edin- 
 burgh ; and the defender visited her there. 
 
 The defender again returned to his duty in Par- 
 liament in spring 1814, and the correspondence 
 was continued while he was in London. 
 
 In the summer 1814, the pursuer was delivered 
 of her first child at Smylum, and she so managed 
 matters as to conceal her pregnancy and delivery
 
 TIT. vii. OF PllO]\lISE AND SUBSEQUENT COrUf.A 479 
 
 from the family ; and if any thing could have fixed 
 permanently the affection and esteem of the de- 
 fender, it might have been supposed that her con- 
 duct at this crisis must have done so, for she made 
 the extraordinary exertion of leaving Smylum with 
 her infant within thirty-six hours after the child 
 was born, and comino; in a carriasre to Edinburirh, 
 and having been put down at the end of the Mound, 
 she walked down with it to Leith, where she obtained 
 shelter for herself and the child in the house of a 
 stranger — and all this to prevent a trace of any 
 thing which might expose the defender to his fa- 
 ther's displeasure. After having recruited her 
 strength, and placed out her child to nurse, she re- 
 turned to Smylum, where she remained to the close 
 of the year, when finding that some circumstances 
 liad transpired which excited a suspicion amongst 
 some of the servants of the family, she left it, after 
 having resided in it for six years and four months, 
 enjoying, during the whole of that period the ap- 
 probation of all its members. 
 
 After leaving Smylum, the pursuer paid a visit 
 to a friend — Captain Cain])bell, then Chamberlain 
 to the Duke of Argyle, near Inverary ; and while 
 there, the defender wrote some letters to lier anx- 
 iously desiring a meeting to arrange their future 
 plans ; but owing to an accident which he met with 
 on tlie road, he did not accomj)lish his visit. After 
 her return from Inverary in 181.5, she went to 
 Edinburgh, where she remained with her aunt for 
 some time, and where the parties, though witii
 
 480 A DIGEST ON THE LAW OF I>IA11RIAGE. book hi. 
 
 secrecy, cohabited as man and wife. Previous to 
 leaving Edinburgh, the defender paid, as he was 
 bound to do, his wife's debts, being the expense in- 
 curred for herself and child during the preceding 
 year. 
 
 It was with his approbation that she had, as M 
 
 above mentioned, left Smylum and gone to visit her 
 friend at Inverary, where she remained till spring 
 1815. On her return to Edinburgh, and informing 
 him of her motions, probably of disappointment that 
 he had not contrived to break through all the bars 
 that stood in his way, in order to have some com- 
 munication with her, he did, as soon as circum- 
 stances permitted, come to Edinburgh, and the in- 
 tercourse continued as close as possible without be- 
 traying their secrets, till her second pregnancy 
 obliged her, in order to avoid discovery, to leave 
 her aunt's and go to York, where their second 
 dauajhter was born in June 1816. 
 
 The pursuer's talents, aided by a few hundred 
 pounds, her private property, enabled her to main- 
 tain herself and her children ; and as Sir Richard's 
 finances were but very slender, and all communica- 
 tion, through third parties, was attended with dan- 
 ger, she continued for some years to support her- 
 self and children by her own industry. It appears, 
 however, that absence and the exertions of the fa- 
 mily gradually cooled the defender's affection to her, 
 so that, as he very heartlessly states it in one of his 
 pleadings, she was allowed by him " to wander un- 
 friended and alone, and to seek shelter wherever she
 
 TIT. vir. OF PROMISE AND SUBSEQUENT COPUI.A. 481 
 
 could find it." She had friends, however, who had 
 made her some advances of money, and she return- 
 ed to her aunt in Edinburgh in 1820, with whom 
 she lived till her death in January 1821. Uuring- 
 that year (1821) her health and strength failed, and 
 seeing no prospect of being able to reimburse her 
 friends, she applied to the defender by letter, men- 
 tioning the circumstance of her bad health ; and he 
 himself admits, that this comnmnication, which cer- 
 tainly was not at all fitted to induce a renewal of a 
 criminal connexion, was the means of renewing 
 their intercourse from 1821 to 1823. The letter 
 he thus received, and which he does not allege to 
 have contained any expression of passion, but only 
 a communication of illness, was, with all her other 
 letters, destroyed by him in 1824. A year after, he 
 abandoned her altogether. 
 
 The pursuer was thrown into jail for debts neces- 
 sarily incurred. There, though forlorn and penny- 
 less, she supported her fortitude, and the secret of 
 their marriage; knowing that if she had made such 
 discovery it might have brought her creditors upon 
 the defender, as her husband, and terminated in the 
 destruction of all her ultimate hopes of reunion or 
 happiness with him. Here slie wrote the most af- 
 fectionate letters, telling him that she was dying 
 and the children starving, and entreatino- him to 
 have pity on his own. The defender, had, after he 
 had left her in 1823, endeavoured to obtain a dis- 
 charge of her claims upon him as his wife, but this 
 she steadily resisted. With true dignity, amidst all
 
 482 A DIGEST ON THE LAW OF MARRIAGE, book i it. 
 
 ' Iier calamities, she referred her case to his conscience, 
 and conceived that all she wanted could not fail to 
 be obtained by painting in true colours the destitute 
 state in which he had left his children. 
 
 The pursuer, finding that in 1824 the defender 
 was determined to desert her altogether, and to deny 
 the marriage, she, at last, on 6th May, 1825, insti- 
 tuted an action, concluding for a declarator of mar- 
 riage, and the legitimacy of her children. 
 
 The summons narrates, that the pursuer resided 
 at Smylum, as governess of the family of the de- 
 fender's father, for six years and four months : That 
 while there the defender professed the greatest love 
 and affection for her j and when, on account of bad 
 health, she had gone to reside with her uncle in 
 London ; the defender went to London, and visited 
 her at her uncle's twice a-day : That on her return to 
 Smylum, he returned there also, and continued his 
 attentions and professions of love and esteem ; and 
 on his being elected member to serve in Parliament 
 for Orkney, about a year and a half after their first 
 acquaintance ; that he, after having courted her for 
 marriage, asked and obtained permission to write to 
 her, and a promise that she would answer his let- 
 ters ; and that a correspondence evincing the strong- 
 est love and esteem, was carried on till his return 
 to Scotland, about the month of April 1813. That 
 from April till June 1813, he persevered in his 
 courtship, and in consequence of these addresses, 
 and professions |0f love and esteem, continued for 
 nearly two years, he gained the pursuer's affections.
 
 TIT. VII. OF PRO^riSE AND SUBSEQUENT COPULA. 483 
 
 and notwithstanding her hesitation for some time, on 
 account of her reluctance to a clandestine marriaire, 
 which, owing to the circumstancess in which she 
 was placed with his family, his marriage with her be- 
 hoved to be, that she at last, on the 25th June 1813, 
 consented to become his wife, and they afterwards 
 lived and cohabited together as man and wife, and 
 had two children born of the marriage. The sum- 
 mons then states, that a correspondence between the 
 parties proceeded on the assumption that marriage 
 had been promised, or contracted between them ; 
 and one letter is quoted, in which the defender calls 
 the pursuer his •' beloved wife." And from this 
 narrative it concludes, that " from said letter, with 
 other letters and documents which will be produced, 
 and from facts and circumstances to be proved, it 
 will be made appear that the pursuer and the said 
 Richard Bempdon Johnston Honyman, now Sir Ri- 
 chard Bempdon Johnston Honyman, Bart, are mar- 
 ried persons, husband and wife of each other, and 
 that the pursuers, Elizabeth Honyman and Alexan- 
 der Honyman, are their lawful children." 
 
 After various steps of procedure, unnecessary ta 
 be mentioned, except that a curator was named for 
 the children, and a proof led, the Commissaries pro- 
 nounced the following judgment: — " July 11th, 
 1828, The Connnissaries having considered the me- 
 morials for tlie ])arties, writings ])roduced, proof 
 adduced, and whole process, find facts, circumstan- 
 ces, and qualifications proved, relevant to infer mar- 
 riage between the defender and the pursuer : Find
 
 484 A DIGEST ON THE LAW OF MARRIAGE, iiooic iii. 
 
 them married persons, husband and wife, according- 
 ly : Therefore, decern in terms of the libel, in so far 
 as concerns the conclusions for declarator of mar- 
 riage, adherence, and legitimacy : Find the defender 
 liable in expense of process, of which allow an 
 account thereof to be given, and when lodged, remit 
 the same to the auditor to be taxed." 
 
 Against this judgment, which was pronounced by 
 a majority of the Commissaries, a bill of advoca- 
 tion was presented to the Court of Session, and 
 being advised with answers, the Lord Ordinary 
 made avizandum with the cause to the Lords of the 
 Second Division. 
 
 The Court of Session, after perusing the pleadings, 
 and hearing counsel hinc ifide, allowed the pursuers 
 to state in a minute, whatever farther evidence they 
 had to produce ; and this being done, and the mi- 
 nute followed by answers, the Court pronounced as 
 follows :— " The Lords," 7th July, 1829, " having 
 considered the bill and answers, together with the 
 minute and answers, and whole productions, and 
 heard counsel for the parties : In respect of the state- 
 ments contained in the minute and answers, and of 
 the additional evidence produced and offered by the 
 parties ; remit the cause to the Commissaries, with 
 instructions to recall their interlocutor of the II th 
 July last, and to reconsider the cause, with the ad- 
 ditional statements and evidence contained in the 
 pleadings and in the productions made in this Court, 
 with powers to them to allow such farther proof or 
 pleadings as to them may seem just, and to consider
 
 TiT.vii. OF PROMISE AND SUBSEQUENT COPULA. 485 
 
 and decide on any application of the pursuer for an 
 interim allowance, and to do otherwise as to them 
 shall seem meet. 
 
 The case having been thus returned to the Com- 
 missaries, and after leading additional proof, they, 
 after various steps of procedure, pronounced their 
 final judgment in these terms — February 26, 1830. 
 *' The Commissaries havinjj considered the addition- 
 al proof adduced, and resumed consideration of the 
 whole cause, of new, finds facts, circumstances, and 
 qualifications proved, relevant to infer marriage be- 
 tween the pursuer and defender : Find them mar- 
 ried persons, husband and wife accordingly : There- 
 fore, decern in terms of the libel, in so far as con- 
 cerns the conclusions for declarator of marriage, ad- 
 herence, and legitimacy ; and in the event of the 
 defender not adhering to the pursuer, find her en- 
 titled to an aliment out of his estate, but before mo- 
 difying the same, ordain the pursuer, within three 
 weeks from this date, to give in a condescendence of 
 the defender's circumstances, and when lodged, al- 
 low the defender to see the same, and lodge answers 
 thereto, within three weeks thereafter : Find the 
 defender liable in expenses of process, of which al- 
 low an account to be given in, and when lodged, re- 
 mit the same to the auditor to be taxed." 
 
 The defender being still dissatisfied with the Com- 
 missaries* second final judgment, thought proper 
 to prefer another bill of advocation to the Court of 
 Session (Second Division) who, after hearing cou n- 
 sel for the parties, on 9th July 1830, pronounced as
 
 486 A DIGEST ON THE LAW OF MARRIAGE, hook hi. 
 
 follows : " The Lords having considered this bill, 
 .answers, and productions, and heard counsel for the 
 parties, refuse the bill, find the advocator liable in 
 expenses in this Court, and remit to the Lord Or- 
 dinary to modify and decern for the same." 
 
 Against these judgments of the Commissaries 
 and the Court of Session, the defender appealed to 
 the House of Peers, who affirmed the same. 
 
 Having premised a state of our law in the outset 
 of this important title, we do not feel ourselves 
 warranted to do more than to quote the enlightened 
 speech of the learned Lord Chancellor Brougham, at 
 pronouncing judgment, in confirmation of our doc- 
 trine on that head. 
 
 Lord Chancellor. — My Lords, although this case, 
 which is of great importance to the parties, has 
 been sought to be made of equal importance to the 
 law of Scotland, I cannot accede to that, for I do 
 not feel that the decision, which I shall think it my 
 duty to recommend your Lordships to give on the 
 merits of the case, will at all either be consider- 
 ed as impeaching or affirming any of the known 
 and established doctrines of the Scotch law ; I re- 
 gard it on the other hand as a mere question of fact, 
 and it is only in order to guard myself against its 
 being understood that what I shall recommend to 
 you, and what you may be pleased to adopt upon 
 my humble recommendation, in any way alters 
 those principles which have been long established 
 as the marriage-law of Scotland, and which it is of
 
 TIT. vH. OF PROMISE AND SUBSEQUENT COPULA. 487 
 
 the utmost importance to preserve unchanged, and 
 certain, and unambiguous until it may, if it ever 
 should, please the legislature to alter them. It is 
 in order to prevent those two kinds of misconstruc- 
 tion of the grounds on which I have to recommend 
 you to affirm this judgment, I shall state at great- 
 er length than I would otherwise do my opinion on 
 the subject. My Lords, two questions were raised 
 in the Court below, and two questions have ac- 
 cordingly been argued, but at a disproportionate 
 length, at the Bar. The first is, that the summons 
 does not raise the question in a competent shape, in 
 as much as it set forth a marriage j^;<?r vei^ha de 
 jiroisenliy and in as much as that is abandoned in 
 the evidence, and all the reliance is placed for the 
 respondents, pursuers below, on the promise and 
 subsequent cohabitation — I say this was argued be- 
 low, but not so much relied on, though not aban- 
 doned by the appellant here. But on looking into 
 the summons, I find no sufficient foundation for this 
 preliminary objection, and tliat because there is 
 enough set forth according to the style in which 
 summonses are oftentimes drawn, though 1 must 
 say I have not often seen a more inaccurate or more 
 loosely drawn sunmions than this, therefore I am a 
 little surprised that a question should be made about 
 it. According to the style in which I have seen 
 these summonses more than once, certainly most 
 ably discussed — in one of the former cases I recol- 
 lect at the Bar, the whole matter is brought in, and 
 in all the ways in wliich a })arty may be married,
 
 488 A DIGEST ON THE LAW OF MARRIAGE, book iii. 
 
 are set forth without very distinctly specifying 
 which of those several ways it is on which reliance 
 is mainly made. In the latter part of the summons, 
 indeed, within the four corners of the summons, I 
 find enough to let in evidence of the kind of mar- 
 riage now relied upon. 
 
 Now, my Lords, the next question, and the only 
 question remaining to be considered is, whether in 
 the marriage now relied upon you have a 'promise 
 with a subsequent copula or cohabitation. Now, 
 my Lords, I take the law of Scotland to be, whe- 
 ther it is to be continued or not, that so perilous an 
 experiment is to be tried on society, and upon the 
 most impetuous passions of society, as to enable 
 two young persons at the twelve years of the one 
 and fourteen years of the other, who could not by 
 the law of Scotland, the one for seven years more, 
 and the other for nine years more, competently by 
 the most solemn and deliberate act, affect in any one 
 way a single half quarter of an acre of their landed 
 property, to do an act which shall unite them for 
 ever in holy matrimony, and create an indissoluble 
 union for life ; lead to the procreation of issue, and 
 by that procreation carry to the issue, it may be, 
 of a common prostitute, (I am not speaking of the 
 parties in question) all the landed estates of which 
 a man can be seized, and ail the honours and digni- 
 ties a man can inherit from his ancestors — whether 
 it be fitting, that it should in any country in com- 
 mon consistency, be the law, whether in expediency 
 it is fit that this should be the law, and that, in 
 
 %
 
 TIT. VII. OF niOMISE AND SUBSEQUENT COPULA. 489 
 
 half a moment, while the passions are fermenting, 
 and the reason, if ever it has hudded in these young 
 persons at all, is by force of those passions laid 
 asleeji, and, careless at that moment, without the 
 slightest interposition of delay, to give time for reflec- 
 tion, they should be capable of binding themselves 
 for life, by the most solemn of all human contracts, 
 with the largest of all possible municipal and po- 
 litical effects attached to it, both on honours and on 
 property, that should be capable of being valued by 
 the law of civilized society, and whether it be 
 thought fit and proper, I do not stop to inquire, 
 suffice it to say that it is the law of Scotland, and 
 that it is as certainly the law of Scotland that 
 that is a valid marriage, as that it is certainly the 
 law of Scotland that it is an irregular marriage. It 
 is an act to be visited with the censures of an eccle- 
 siastical nature — it is irregular ; but it is a valid 
 marriage, and has all the consequences touching 
 the rights of the parties mutually, and touching the 
 rights of their issue and its legitimacy, which the 
 most solemn marriage upon the publication of the 
 banns by the greatest divine of the Scottish church, 
 established by law, could draw after it and confirm. 
 That is the law, and we are to administer that law, 
 and we are to consider that law in each case with 
 a view to whether the facts bring the i)arties with- 
 in its scope. Now, marriage may be, nay, it is a 
 consensual contract, for it is constituted by consent 
 and consent alone. Jjut there are three various
 
 490 A DIGEST ON THE LAW OF MARRIAGE, book in, 
 
 ways in which you have evidence of the consent ; 
 there are three kinds of consent which may be so 
 called — one is consent infact^ the other is consent 
 to be jtresumed by law. One is, that there shall be 
 verba cle praesenti, a consent mutually given and 
 taken to be man and wife thereafter. The other is, 
 that they shall have obtained repute as husband 
 and wife, acknowledging each other rehus ipsis et 
 Jactis, by living in Scotland as man and wife. That 
 partly by giving rise to presumption of matters 
 of fact, and partly having been made the ground of 
 presumption in law, constitutes a valid marriage in 
 Scotland. The third is, that which touches the 
 facts of the present case more nearly and more im- 
 mediately, where a promise is given, and a copula 
 follows upon the promise, and is to be taken as not 
 disconnected from that promise. A promise, like 
 all other acts, may be proved by two several ways, 
 either by direct evidence or circumstantial evidence. 
 There may be direct evidence by the testimony of 
 witnesses who heard the promise given — -there may 
 be direct evidence in writing proved to be of the 
 Land of the party giving it ; but, like all other facts, 
 these things may be proved ; the promise may be 
 proved, uithout either witnesses to support it, or 
 the hand-writing to remain of record against the 
 party promising. Circumstances may be proved 
 by evidence, circumstances may be proved by the 
 testimony of witnesses, or by written evidence, 
 proving those circumstances, and if those circum- 
 stances are sufficient to convince the Court, trying
 
 Tir. VII. OF PROMISE AND SUBSEQUENT COPULA. 491 
 
 the fact, as a matter of fact, that a promise did take 
 place, the promise must be taken to have happen- 
 ed as much as if it had been proved by the other 
 more direct and immediate and satisfactory proof, 
 though sometimes (indeed our law very much in its 
 practice proceeds on that assumption) circumstantial 
 evidence is more clear and stronger, and even less 
 liable to doubt than direct evidence, in as much as 
 it is more difficult to make out a circumstantial 
 case by curiously contrived perjury, than it is to 
 make out a direct case by one or two witnesses who 
 may easily swallow, as it were, an oath false to the 
 fact. 
 
 Now let us see what the kind of evidence is, it 
 being not of the direct kind, but of the circumstan- 
 tial kind, by which you here are called upon to ad- 
 mit as the Court below did, that there was a pro- 
 mise of marriage between the parties. I shall now, 
 my Lords, take the case, sifted as it has been by the 
 observations I have taken leave to throw out, as if 
 I were at Nisi prius trying before a jury, and 
 stating to the jury the grounds on which their ver- 
 dict must turn. I should then have been called 
 upon to inform them in my direction, that there 
 were three matters for their consideration, before 
 which they could not find a verdict for the affirma- 
 tion of the issue, supposing the issue to have been 
 joined, what we call in English law pleading, an 
 issue of ue i/j/f/iu; accoupla. I should then call 
 them to attend to three particulars, that they must 
 be satisfied there was a promise, that they must be
 
 492 A DIGEST ON THE LAW OF MARRIAGE, book m. 
 
 satisfied there was a serious and intended promise, 
 intended by the person making it, and accepted as 
 such by the person to whom it was made. In the 
 second place, that they must be satisfied that there 
 was a cohabitation afterwards ; in the third place, 
 that they must be satisfied that there was no discon- 
 nexion between the subsequent cohabitation and the 
 preceding promise at all events, and that is the 
 very way in which I think I am safe in stating it, 
 as I have already stated it, that there is no discon- 
 nexion, no medium imj^edimentum, no evidence to 
 rebut connexion, no disconnexion, and if that dis- 
 connexion is not substantiated, the law will take 
 the promise to be coupled with the copula. 
 
 The copula is here admitted, there is no doubt 
 whatever of its having taken place. The discon- 
 nexion cannot be set out, for the time is so short, 
 the circumstances so little varied ; that is, the cir- 
 cumstances of the parties between the promise and 
 the copula., if there was a promise, the relations in 
 which the parties stood to one another, and all man- 
 kind besides, are so precisely the same, that I take 
 it to be quite as clear that there is no disconnexion 
 of the copida with the promise, as it is clearly ad- 
 mitted, indeed, that there was a copula. Then the 
 only question turns upon the existence of a promise ; 
 and to that I then come in the last place. If such 
 a doctrine had been founded on here, that a court- 
 ship, however warm the expression of an intention 
 to marry, however strongly ex})ressed, and however 
 plainly entertained, constitute in itself what may be
 
 TIT. VII. OF I'ROMISE AND SUBSEQUENT COPULA. i9'i 
 
 termed (borrowing an expression familiarly known 
 to the Scottish lawyers in either case,) eqiiipollents 
 to a promise. I deny that proposition in law. 
 But courtship (for the reasons I fling out in the 
 course of the argument,) that promise must be mu- 
 tual, both parties must be bound, and the marriage 
 to bind one must bind both, and there is nothing 
 more plain, that the perpetual distinction between 
 an intention to marry and a promise to marry, and 
 the law attaches on the promise followed by the cop- 
 ula and not on any intention, but courtship is a 
 most material matter in the case when you are com- 
 ing to examine, whether from the conduct of the 
 parties a promise has actually passed between them. 
 Where persons are on the footing of lovers, and 
 where it is so well known that love is usually fol- 
 lowed by matrimony, and whereas it is naturally 
 incident to the relation of lovers to wish to be 
 married, and where a long course of courtship can 
 only have an intention of marriage in view, 
 though the intention to marry, will not of itself 
 supply the want of a promise. Yet when you are 
 seeking for evidence of a promise, at all events it 
 coujes so near it as to make it extremely probable 
 that the parties in courtship for a length of time 
 had received mutual promises of marriage, it being 
 the subject matter of marriage, that matrimonial 
 connexion ultimately should take place, the promise 
 being the frequent incident of sucli an intercourse 
 between the parties. Therefore, if it stood alone, 
 and dryly as a mere question of probability thiit 
 Mould carry the party, setting up tlic marriage on
 
 494 A DIGEST ON THE LAW OF MAllRIAGE. book hi. 
 
 the ground of a promise, a good way towards his 
 journey's end to satisfy the Court and the jury 
 clearly, (whom I am supposing to be trying the 
 cause,) that there was a courtship and a course of love- 
 making, with a view, as it may generally be taken, 
 to be to matrimony, otherwise it is no courtship be- 
 tween the parties. But now let us hear whether 
 the evidence rests here, because if it did, I should 
 have reversed the judgment. I do not quarrel with 
 that judgment when I allude to the evidence, for I 
 find first of all the strongest expressions of that 
 kind of attachment, which may be said to spring up, 
 and to be the object with lovers who can have no- 
 thing but a permanent, that is, a matrimonial con- 
 nexion in view. " Love me as I love you, and put 
 my heart at rest, by assuring me of it," and this 
 expression, " Farewell thou in whom all my joys 
 are centred, my lovely Betsy adieu. I trust you 
 will never be able to accuse me of having: a bad 
 heart. Believe me I would not intentionally hurt 
 any one, far less that being for whose happiness I 
 would lay down ray existence," with other expres- 
 sions I don't single out. I have singled out a few 
 of them, some of the ranting expressions with which 
 love-letters frequently abound, of which a good deal 
 has been said and justly said. Then was this exr 
 pression of attachment reciprocal ? AVas this ten- 
 der of the heart, and this offer of the heart in love, 
 with a view to a matrimonial connexion, though 
 not promised ? — I am not talking about promise, 
 but courtshij) — was this accepted by the lady? An
 
 TIT. vii. OF PROMISE AND SUBSEQUENT COPULA. 495 
 
 answer to that first letter must have come, tlioiigh 
 the appellent does not produce it, however, he may- 
 have accounted for its loss more or less satisfactorily, 
 I rely not on that, he says, " I received your 
 most welcome letter this morning, my dearest, 
 dearest Eliza." Why was it most welcome ? 
 Could it be for any other reason than that she gave 
 her reciprocal affection, and that she gave the offer 
 of her love in return for his. 
 
 Then he says, "Well does it deserve an imme- 
 diate acknowledgment" — for what? because it 
 returned his affection, " Never can I sufficiently 
 thank you for the alacrity whicii you have dis- 
 played.'* Here is a second step towards the jour- 
 ney's end — there is a love — the tender of the heart 
 — a (Courtship to affirm a connexion, and that is 
 proof, if any were wanted, under the third head of 
 these observations which I am makincr. The se- 
 cond step is the acceptance by the lady of the heart, 
 or the love of his person. Now come we to the 
 more material parts, for they leave no doubt in 
 mv mind of a promise having existed between the 
 parties, " You will receive this on jMonday, and 
 write me soon — God bless you, thou dearest girl, 
 again farewell, and believe me, with an attachment 
 strong as it is pure. Yours most affectionately." 
 That is 2^2ire virtuous love, — -that is courtship with 
 a view to virtue, — that is courtship Avith a view to 
 niatriwony. And, my Lords, suffer me to add. 
 that we are to consider not merely what may have 
 been, and to speculate on what may have been the
 
 496 A DIGEST ON THE LAW OF MARRIAGE, book in. 
 
 intentions with which he wrote, but we are, says 
 Sir William Scott, the present Lord Stowell, in 
 that admirable judgment on what he calls the Ca- 
 non Law of Scotland, delivered by him in Dalrym- 
 ple V. Dalrymple. *' We are first to consider 
 what the lover meant by these words, and then we 
 are to consider how those words were likely to be 
 received by the party to whom they were address- 
 ed ; for can any thing be more monstrous, more 
 unjust, and inconsistent with all principle, than to 
 say a man shall use certain expressions, and turn 
 round and say, I meant not so, though the party 
 to whom they were used could have affixed but one 
 meaning." Following that remark up, how does 
 it proceed ? " nothing, I trust, will thwart the hap- 
 piness I look up to." Now I beg your Lordships 
 to attend to this, a promise differs from a contract 
 per verba de praesenti ; in this that it contem- 
 plates a future period ; what I have read 1 mainly 
 rely on, because it proves it was a contemplation 
 of an after event, intentions, however ardent, how- 
 ever strongly expressed — courtship, howeve" direct, 
 asking, however plain and prompt, asking the hand 
 in marriage, they all refer to the present, but that 
 which differs a promise from this thing is, that it 
 has a future reference, it contemplates a future 
 time, and that is material. Now your Lordships 
 will observe these all sound in future. Nothing 
 I trust will thwart " the happiness / possess ! 1 
 enjoy ! I prize ! — words of present meaning ; no 
 such thing as the happiness / look forward /o" — 
 
 1
 
 TIT. vu. OF PROMISE AND SUBSEQUENT COPULA. 497 
 
 that is future — nothing shall — nothing can — for 
 it is felicity sanctioned bij virtue lierself, and every 
 thing that is tender and amiable. Can any man 
 read these words, and not affix this plain meaning 
 to them, that she was to look forward, and he told 
 her that he looked forward to nothins: else but 
 marrying her, and that virtue itself would sanc- 
 tion that pure affection and those ptire enjoyments 
 only in the state of matrimony which he really 
 plainly contemplates, li the lady construed, ac- 
 cording to Sir William Scott's judgment in Dal- 
 rymple v, Dalrymple, if she considered this as a 
 direct promise (I should not much wonder if she 
 did), but though I don't take it now as a direct 
 promise in itself, yet it is the strongest evidence, 
 that they were on the footing of a party promis- 
 ing, and a party to whom it was made at this period 
 before the cohabitation had taken place. I don't 
 accede to what Lord Glenlee lays down in a doubt- 
 ful sort of judgment, that if the first part of this 
 passage stood alone it would have gone far, but he 
 rejects it entirely ; for what follows, " Every thing 
 that is tender and amiable," he says, that is non- 
 sense, and is a violent trashy expression — with 
 great submission to that learned and excellent 
 judge, excellent as he is known to be, I don't think, 
 that is so accurate and })])ilosophical a view of the 
 subject as his Lordship is wont to take in other in- 
 quiries. I do not think adding tender and amiable 
 to the expression of felicity sanctioned by virtue 
 herself, will enable me to get rid of (lie plain and
 
 498 A DIGEST OX THE I-AW OF iMAllRIAGE. book hi. 
 
 manifest tender of the expression. *' In offering 
 you my best beloved that heart which has for a 
 long time been devoted to you," this is in the same 
 letter in which he thanks her for accepting his 
 love, " I have only to lament that it is not a more 
 deserving gift to her to whom it is offered — we 
 will talk over the future when we meet." Could a 
 man think this meant any thing but future mar^ 
 riage ? What were they to talk over ? Cohabita- 
 tion ? fornication ? — No — They were to talk of 
 their pure affection sanctioned hy virtue herself; 
 the future was the matrimonial future, and clearly 
 could have meant nothing else. Then we have 
 hgain, " You deprive me, thou M^ho art the most 
 dear of thy endearing sex, of a very great pleasure 
 by prohibiting my delivering your letters to our 
 uncle," then comes, '' you must no longer have em- 
 braces for any one else, not even for aunt Fraser 
 or sister Ann, I call them so, for your aunt is my 
 aunt, and your sister my sister." Now, added to 
 all that, I import from the subsequent letters into 
 this consideration of the case, the joy and the in- 
 terest he takes, when she appears to be with child, 
 when he was looking forward to the birth of that 
 infant, " I must be with you to comfort and soothe 
 you, and to partake of the joy such an event will 
 excite ;" and he is anticipating the happiness in 
 another letter of seeing all the schemes he had 
 formed realized. Now this is the expression of a 
 person who looked forward to a matrimonial joy, 
 and these expressions as to the birth of a child
 
 TIT. VII. OF PROMISE AND SUBSEQUENT COPULA. 499^ 
 
 must mean, that he looked forward to that being 
 his legitimate child — and not his bastard child — 
 Looking at all these letters, taking them altogether, 
 I can read them in no other wav than as letters 
 passing from one man to one woman who had 
 avowedly been in courtship, who had plainly been 
 in courtship with a good view, and who had pro- 
 mised each other in marriage, which there was an 
 obvious and satisfactory reason for deferring un- 
 til a future period — I mean till the death of his fa- 
 ther, who was then an old man near his latter 
 end, and who very possibly might view this as an 
 unseemly, if not as an inferior or degrading con- 
 nexion. 
 
 " My Lords, I beg to say, that I should differ with 
 him, if he so regarded it. I desire to be understood, 
 as saying that this lady's conduct stands as pure 
 and unimpeached as that of any party who ever 
 came to this bar. 1 desire to have it understood, 
 as in part of my opinion, that my Lord Armadale's 
 son, or Sir William Honyman's son, even if he had 
 been a wealthy, instead of a poor baronet, of small 
 and moderate circumstances, would not have been at 
 all degraded by forming a virtuous connexion in mar- 
 riage with a lady who had been governess to his 
 sisters, of whose accomplishments I have his own 
 admission, whose charms he is the first to speak- 
 forth, and whose virtue, whose purity of character 
 is entirely unimpeached by all the evidence and all 
 the scrutiny to which it has been subjected. 
 
 " But, my Lords, now, if there was any doubl, or 
 
 3 xN
 
 500 A DIGEST ON THE LAW OF MAIHIIAGE. book iii. 
 
 ambiguity as to the meaning of the previous expres- 
 sions, the copula which follows will carry us far out 
 of the scope of that doubt. For I desire to be dis- 
 tinctly understood, as according to the doctrine, 
 that where persons are in courtship, though court- 'A 
 
 ship is not a promise where persons are in covirt- 
 ship, and where ambiguous expressions may have 
 been used, and where an offer of love may have been 
 made on the one hand and accepted on the other, that 
 what is doubtful will become certain, and that, if 
 there is great probability of a promise having taken 
 place, that probability may be turned into a certain- 
 ty by the copula which follows, and for this plain 
 and obvious reason, I will assume, that the woman 
 in these circumstances, does not yield her virtue for 
 nothing, I will assume, that she gets that consider- 
 ation for it precisely as I would assume, if I had a 
 doubt about the evidence of a common contract for 
 the purchase or sale of merchandize ; if I saw one 
 party paying the price, if there were an ambiguity 
 as to whether the price was stipulated, I should con- 
 sider that that ambiguity is removed by the fact of 
 the payment of the price. 
 
 " In holding this doctrine, for which I know not 
 that I have the warrant either of the doctrine of any 
 judge, or the authority of any text- writer, or of one 
 decided case on the law of Scotland in this house ; I 
 know that I am following out the principles on w^hich 
 the Scottish law is founded. I know that I am lay- 
 ing down a rule which is of a wholesome and effica- 
 cious tendency in respect to the contract of marriage.
 
 fiT. VII. OF Promise and subsequent copula, 501 
 
 ** These are the grounds, my Lords, and the rea- 
 sons, which I have gone into at more length than I 
 should otherwise have deemed it necessary to do in 
 moving the affirmance of the judgment. I take 
 leave to submit, that there is sufficient evidence to 
 establish marriage in this case. I have laid pur- 
 posely out of view the letter where the word tvije 
 has been mentioned, and I have laid it out of my 
 view because there is nothing on the face of the in- 
 strument, which has been given to explain the era- 
 sure, that is favourable to the party, to whose cus- 
 tody it came from the party in whose power it had 
 been. I, therefore, rest my judgment, and the other 
 part of my opinion, which is to advise your Lord- 
 ships to affirm this judgment. I rest my opinion 
 on the other facts of the case, which are sufficient, 
 notwithstanding the two circumstances which I 
 think were vmfavourable, and which I think cast a 
 shadow of doubt over the case at different parts of 
 the argument. I mean, in the first place, the letter 
 of 14th July, and the non-production of the evidence 
 referred to in that letter, as to which much was said 
 by Mr. M'Niell, and which leaves in my mind some 
 doubt, whether this luihappy woman, reduced to the 
 greatest difficulties, burdened with children whom 
 the appellant seems to have had no very great in- 
 clination to support, and denied the rights of a wife, 
 to which she deemed herself entitled — probably did, 
 under the bad advice of some female friend, put forth 
 a stronger case, by way of intimidation, than she 
 really had. That is a notion, I Avill not say, I can
 
 502 A DIGEST OF THE LAAV OF MARRIAGE, book hi. 
 
 altogether be surprised at, notwithstanding I will 
 dismiss that from my judgment, if I see evidence, 
 independent of that part of the case to satisfy me 
 that she had a case. I have not lived so long in 
 courts of justice as not to have observed that a good 
 case is often marred by trying to make it better by 
 the contrivance of parties. 
 
 The other point I wish to advert to, which cast 
 the case into a shade of doubt is, that a good deal 
 of correspondence has taken place, in which letters 
 have passed from her to him asking for money in I 
 
 the most touching and painful manner ; and allud- ( 
 
 ing to the children, and the connexion that had pass- 
 ed between them, and the footing on which they 
 ought to stand. These must have been present to 
 her mind, yet no claim for the rights of a wife is 
 put forth in that part of the correspondence. I look 
 upon that as another imfortunate circumstance in 
 her case, even more unfortunate than the former, 
 and tending to raise more doubt than the former. 
 If she may have been ignorant of the law and ig- 
 norant of her rights, as she says in her letter ; her 
 ignorance of her legal rights does not impeach them, 
 nor impede her in the course she takes to have them 
 decided. My Lords, these are the grounds on which 
 I rest my opinion, and upon which I call upon the 
 house to affirm the judgment, though, for the rea- 
 sons I have last mentioned, I shall not ask you to 
 affirm it with costs. 
 
 My Lords, I think it my duty to mention that 
 I have said thus much with respect to the lady's
 
 TIT. VII. OF mOMISE AND SUBSEQUENT COPULA. 503 
 
 character, for her vindication, and for the sake of 
 the appellant as much as for the respondent. She 
 is now his lawful wife, she is as much his wife by 
 the law of Scotland as if that marriage had never 
 been disputed, and every thing that sets up her 
 character, takes off any thing that in the heat of 
 argument, at one time (not here but elsewhere) 
 may have been attempted to be cast on her. I 
 felt anxious that that should be removed, which as 
 far as my judgment can remove it, I have endea- 
 voured to do. I will say for him, (and in saying 
 so I say it for her, who is now his wife as much as 
 if she had been publicly and openly married to him, 
 and there had never been any dispute about the 
 validity of the contract,) I will say that though he 
 may have acted harshly, though he may have 
 acted lightly towards her, he may have been over 
 persuaded by the foolish pride of those with whom 
 he is connected by birth, to refuse to acknowledge 
 this lady as his wife ; yet he was a very young man, 
 and he may have been irritated perhaps by some 
 sinister influence, perhaps irritated by bad health, 
 and therefore I will look upon his conduct with 
 as much tenderness, as it is possible to regard it. 
 Under all these circumstances, I trust, therefore, 
 that he and his wife will be allowed to go from this 
 bar without any injurious aspersion remaining on 
 their characters in consequence of any thing that 
 has taken place here. 
 
 Mr. M'Niell. — My Lord, as by the judgment of 
 •this house, this lady is distinctly constituted the
 
 504} A DIGEST ON THE LAW OF MARRIAGE, book hi, 
 
 wife of the appellant, therefore as the appellant is 
 liable for such expenses as she may have incurred 
 in the course of this suit, which she has now sus- 
 tained, perhaps it will not be necessary to make any 
 order on the subject of costs. 
 
 The Lord Chancellor. — I have said nothing about 
 costs. She is his wife, and she is not liable to costs. 
 You know he is liable for all her debts by law from 
 the date of the copula. 
 
 In conclusion, we deem it necessary to quote the 
 following letters which were written by the defen- 
 der to the pursuer, importing love, courtship, and 
 subsequent copula. 
 
 30, Duke Street, St. James. 
 You will probably have conceived, by the time 
 which I have suffered to elapse since the permission 
 which you so kindly granted me, that I did not in- 
 tend availing myself of it ; but so bewildered and 
 agonized have I been since our separation, that I 
 have been unable to give utterance to my feelings, 
 or form one rational sentiment, even to her who is 
 the tenderest object of my regards. O my dearest 
 darling Eliza, much as I thought I loved you when 
 we were together, still does it fall far short of that 
 affection I now feel, and so fondly cherish towards 
 you. If the sentiments which I so ardently feel, 
 and have so repeatedly avowed, be reciprocal, hesi- 
 tate not to say so. I am unable to doubt, after the 
 innocent endearments with which you have favoured 
 me, that it should be otherwise ; yet still, as a so-
 
 TIT. vix. OF rilOMISE AND SUBSEQUENT COPULA. 505 
 
 lace to my woes, refuse not this solicitation. Write 
 me. Tell me that I am dear to you, thou lovely 
 girl. Would that we were once again together, 
 and nothing shall separate us. I look forward with 
 rapture to our again meeting, and then we must 
 form plans for putting our feelings out of the reach 
 of hate. I intend being with you much sooner than 
 I intended. From the embarrassed state of my 
 father's affairs, my residence in London is both im- 
 proper and disagreeable ; and it was only to please 
 him that I ever went. God knows how bad a po- 
 litician I shall make ; and I would resign such a 
 situation with great happiness. I went yesterday 
 and paid a visit to the outside of No. 8, Miluian 
 Street. The blinds were up and the windows open. 
 Ah ! thought I, they have a different inmate in the 
 house now to what they had when I knew it, and 
 the conclusion sunk deeply on my heart. Believe 
 me, I feel a fondness for the house, for it was once 
 the abode of Eliza. I took a most accurate survey 
 of it. The windows were new painted, and there 
 was the little Chambers, who took such an insur- 
 mountable antipathy to my looking out at one of 
 them. Farewell for the present, my dearest Betsy, 
 thou best beloved. Love me as I love you, and put 
 my heart at rest by assuring me of it. You will re- 
 ceive this on Monday, and write me soon. God bless 
 you, thou dearest girl. Again farewell, and believe 
 me, with an attaclnnent strong as it is pure, yours 
 most affectionately, signed, R. B. J. Honymaii, 
 (addressed to) Miss Campbell.
 
 506 A DIGEST ON THE LAW OE MARRIAGE, book Hi. 
 
 I received your most welcome letter this morn- 
 ing, my ever dearest Eliza. Well does it deserve *|| 
 an immediate acknowledgment. Never can I sufr || 
 ficiently thank you for the alacrity which you have 
 displayed. I rejoice to think, my sweetest love, 
 that you do know how impatient I am. If that be 
 one of my failings in the common occurrences of 
 this sad world, how much it is increased when ex- 
 pecting a letter from you. I may safely say, that 
 the only real enjoyment I have had since leaving 
 you is the perusing of your letters. Many is the 
 kiss I give them, and many is the sigh that escapes 
 when I think at what a distance the dear writer is at. 
 Soon, however, I trust we shall meet, and one soft 
 embrace will repay me an age of anxiety and dis- 
 tress. Oh, my darling Eliza, my dearest beloved, 
 my sweetest and my only love, with what anxiety 
 do I look forward to again beholding you, with 
 what rapture do I anticipate the realizing of those 
 visions which my fancy has already formed. No- 
 thing, I trust, will thwart the happiness I look for- 
 ward to — nothing shall, nothing can ; for it's felicity 
 sanctioned by virtue herself, and every thing that 
 is tender and amiable. In offering you, my best 
 beloved, that heart which has for a long time been 
 devoted to you, I have only to lament that it is not 
 a more deserving gift to her to whom it is offered. 
 We will talk over the future when we meet. Would 
 there was a Milman Street in Edinburgh ; oppor- 
 tunities cannot, however, be wanting, and we must 
 make the most of them. I delivered your dear
 
 TIT. VII. OF PROMISE AND SUBSEQUENT COPULA. 507 
 
 letter this day. Send all your letters to me, and 
 they shall be delivered. Never am I so happy as 
 when engaged in your service. Anxiously do I look 
 forward to Wednesday. Never, thou dearest girl, 
 disappoint me in hearing from you. Tell me the 
 day you mean to write, that I may have something 
 to look forward to. Believe me, I am deserving of 
 all your sympathy, and all your love ; for I am, 
 without you, a wretched mortal. Farewell, thou 
 in whom all my joys are centered ; my lovely Betsy 
 adieu. Believe me ever yours most faithfully at- 
 tached, (signed) R. B. J. Honyman. P. S, — Pray, 
 my love, direct your next cover to your aunt's. I 
 am apprehensive of Queen Street. 
 
 « 
 
 My dearest dearest Eliza. — If I were not 
 the very worst correspondent in the whole world, 
 I should have wrote at least half a dozen of 
 letters before now, in return for the affectionate 
 ones I have received from you. I ask but a con- 
 tinuance of such goodness for one fortnight long- 
 er, and by that time I hope to be indebted for favours 
 of a still more tender sort than even those of your 
 dear letters. How much, my sweetest love, am I 
 now your debtor, and how hapj)y am to acknowledge 
 it. My dearest Eliza, my darling friend, you who 
 are every thing to me, in whom my whole happi- 
 ness is centered, and whom, while I exist, I shall 
 never cease to love. Even death itself shall not 
 subdue the fervour of my attachment. If it be
 
 -*' 
 
 508 A DIGEST ON THE LAW OF MARRIAGE, book hi. 
 
 permitted the immortal part of us to retain the re- 
 collection of those who on earth were most dear, 
 I'll love thee then, even when my love can no 
 more avail. You deprive me, thou who art the 
 most dear of thy endearing sex, of a very great 
 pleasure, by prohibiting my delivering your letters 
 to our uncle. Be it so. I obey as you desire. 
 You cannot, however, insist on my not visiting the 
 street, without being very arbitrary. No such 
 prohibition having as yet arrived, I shall continue 
 as heretofore, to visit it once in the day at least. 
 As to your letters, thou dearest of women, I can 
 never burn them. If you are afraid to trust, but 
 no, you are too generous ; you judge people too 
 much by your lovely self, to suppose any im- 
 proper use should ever be made of them. I cannot 
 destroy, but may be bereaved of every thing I value 
 in existence, or existence itself, if I ever under even 
 every or any circumstance, betray a sentiment or 
 syllable of such aifectionate effusions. Indeed, you 
 may trust me, my love ; but it shall only be until 
 we meet, for I will deliver all your letters into your 
 possession. Farewell, my only love ; God bless 
 you, my sweetest Eliza. Yours ever (signed) R. J. 
 Honyman." 
 
 " My darling Betsy. — I have received your 
 letter very safely, and request you will give your- 
 self no uneasiness about it. Careless as I con- 
 fess myself to be about many things, I never
 
 TIT. VII. OF PROMISE AND SUBSEQUENT COPULA. 509 
 
 had, and, moreover, most solemnly swear to you, 
 my dearest love, that I never will have cause 
 to upbraid myself with inattention to any thing 
 relating to your dear self. The assurances which 
 you have given ought to satisfy me, but I long 
 to hear them while locked in your arms, and 
 pressed to that heart of hearts, the only one 
 that mine will ever throb at approaching. You 
 have every thing, my best beloved, for securing 
 my affections ; and the result will prove the truth 
 of my assertion. You are every thing in the world 
 to me. Without, I am bereft of every thing j and 
 possessing you, I have nothing more to ask. Trust 
 me, love, I know my own heart ; and believe me, 
 my beloved, these are its sentiments. I am writing 
 in the midst of interruptions, and time presses. I 
 rejoice you are to be with us on Wednesday next. 
 The carriage will be in on Monday with William, 
 and you can come out in it. How I long for you, 
 my dearest love, how I long for Wednesday and all 
 its joys and pleasures. What a scrawl, Betsy ; how 
 unconnected the sentences, in short, what a produc- 
 tion. It is a letter that requires a partial eye like 
 yours to peruse. I have time for no revisions, but 
 I trust there is need of none. The language of the 
 heart, in however uncouth a form, should be the 
 most acceptable. Farewell, thou joy of my life ; 
 dearest, dearest, dearest being, darling Betsy, your 
 ever affectionate and unalterably attached (signed) 
 R. J. Honyman. P. S. Let me hear of your 
 health by Jemima. Do not tire, nor write again,
 
 510 A DIGEST ON THE LAW OF MARRIAGE, book iii. 
 
 as the time of our meeting is nearer than I dared to 
 hope.' 
 
 >» 
 
 " My dearest dearest Eliza. — If you think that 
 I have forgotten you, my best beloved, by hav- 
 ing allowed two days to elapse after their depar- 
 ture from Smylum, without writing, you will judge 
 me very wrong. Friday would have been too soon 
 to write, and Saturday morning I went into the 
 country, from whence I have but within this hour 
 returned. Now that I am away from you, I know 
 how much I love you. I have no happiness except 
 looking forward to being once more with you. 
 God knows when that will be. Not for some 
 weeks, if my father persists in coming to London. f 
 If not, I hope very shortly to embrace the darling 
 of my heart. Betsy, love, my fate is fixed, 1 never 
 can exist without you ; you are the only comfort of 
 my existence. How much do I appreciate the affec- 
 tion of so affectionate a heart ! I will be contented 
 to live in any part of the world with you ; and 
 under all circumstances, it is alike indifferent to me, 
 what part of this world, or in what situation, pro- 
 vided you are with me. How are you to write 
 me, dearest ? Tell sweet Jemima to write, and you 
 can put a letter inside. I only ask you to say, that 
 you are satisfied with me. I repose with implicit 
 confidence on the fidelity of your heart. Tell me, 
 my Betsy, if you think there is any likelihood of 
 the event which you and I talked about aking 
 place. If so, you must come directly. must be
 
 TfTvii. OF PROMISK AND SUBSEQUENT COPULA. 511 
 
 with you to comfort and soothe you, and to partake 
 of the joy such an event will excite. You can easily 
 manage to leave Smylum by assigning the excuse 
 which you mentioned to me. How is your health, 
 
 my beloved wife ? Take care of it, and pray do 
 not, as you are too apt to trifle with that which so 
 ultiinately constitutes your own happiness and mine. 
 If you are not vet^y very Jut when we meet, I shall be 
 much mortified. If you love me, dearest, get fat. It 
 is the only thing wanting to make you all lean wish. 
 
 1 dread a discovery of this epistle, write me the 
 family movements, and inform me when they re- 
 turn. Oh, how much I long to be with you ! It is 
 the only thing that I have to look forward to that 
 cheers my forlorn heart. Farewell, every blessing 
 be with you, my ever dearest and affectionate (torn) 
 Your ever unalterable, sincerely attached and affec- 
 tionate R. B. J. H." 
 
 11. Steuart v. Lindsay, 2d July, 1818, Fac. 
 
 Here, the Commissaries and the Court decided 
 that a marriage was established. 
 
 The material circumstances of the case, tending 
 to establish a promise on the part of Lindsay, the 
 defender, was, that according to his own admission, 
 he had put into the hands of Steuart, the pursuer, 
 a Bible, and pointed out to her the seventh chapter 
 of 1 Corinthians, (which relates to marriage,) and 
 had also given her to peruse, (he being an excise- 
 man,) a copy of the regulations of the excise for 
 annuities to the widows of excisemen. He denied 
 
 6
 
 512 A DIGEST ON THE LAW OF MARRIAGE. feooK iir^ 
 
 that he had said one word to her, as to the appli-' 
 cation she was to make of these circumstances ; but 
 the Court held, that as he gave no explanation, as 
 to how they could be otherwise interpreted, and 
 had talked to her of marriage in general, the woman 
 was entitled to understand that he meant marriage 
 to herself; and on the strength thereof, and the 
 admitted conciibitus that followed, decided that a 
 marriage was constituted. 
 
 Thus we see that a promise, followed by a co- 
 pula, establishes marriage, and that the promise, 
 with the exception of a regular courtship, can only 
 be instructed by the oath or writing of the man, 
 and that the copula may, from its hidden nature, be 
 proven by witnesses, even by near relations, cum 
 nota. And it is, therefore, a mistake to suppose, 
 that a jjromise can be proved by witnesses, who are 
 either low or corrupt. Even if they were respecta- 
 ble, they could not be admitted to prove the pro- 
 mise, because promises of this description may be 
 easily mistaken, and may have in prospect a future 
 circumstance of an indelicate nature, which it is not 
 natural to suppose would be made matter of pub- 
 licity. In every view the man is sufficiently pro- 
 tected, and, without committing perjury against 
 hnnself, he can suffer no injury ; nor can it be deem- 
 ed injustice to hold him bound, when he himself 
 admits, that, under the honourable promise of mar- 
 riage, he has violated the chastity of a virtuous 
 woman, influenced by the tenderness of her affec- 
 tion for him, and by her generous confidence in his
 
 TIT. VII. OF PPwOMISE AND SUBSEQUENT COPULA. 513 
 
 integrity. PJen ought, therefore, to be admonished 
 in their intercourse with the fair sex, to observe 
 the same principles of candour, honour, and truth, 
 as they do in their transactions with one another, 
 and strictly to observe the golden rule, quod i'lhi 
 fieri non vis altcri non Jeceris, and assuredly they 
 will be safe. It is a happy characteristic of our 
 law, to render it incumbent on them to be so. In 
 this respect, therefore, as well as in its important 
 effects on the purity of manners and population, our 
 law appears to possess an advantage, which ought 
 to be an object of approbation, and not of censure. 
 
 On the delightful and interesting subject of con- 
 jugal love, (in opposition to courtship between the 
 sexes,) we close this first volume with quoting a few 
 beautiful and sublime lines, not unworthy of the 
 muses to celebrate in exalted strains. 
 
 MERCATOR TO HIS AMANDA. 
 
 O thou, in whom complacence dear I find 
 Far sweeter solace of my labouring mind, 
 (Saving what sweeter to his grace I owe, 
 At whose right hand rivers of pleasure flow) 
 Thou dearest partner of my joys and cares. 
 Thou daily subject of my fervent pray'rs. 
 Whom shall I love but thee, my charming spouse, 
 To whom engag'd I stand by solemn vows ? 
 Are children dear — and not Amanda more, 
 Amanda, who the beauteous oflspring bore ! 
 Whom should I care to please, my fair, but thee .' 
 Who gav'st in blooming youth thyself to me ?
 
 514 A DIGEST ON THE LAW OF MARRIAGE, book. ni. 
 
 Nor parents' frowns thy steady heart could move, 
 Firm to thy choice, and constant in thy love ; 
 Love, which thro' years in pensive patience spent, 
 Bow'd their reluctant minds to late consent. 
 Blest be the day when Hymen join'd our hands. 
 And bound our gentle hearts with mutual bands ; 
 The day when thou, by pure affection led. 
 Didst take me for thy spouse, thy guide, thy head. 
 Hail ! wedded love, source of domestic joys ; 
 Hence, jarring discord, which all bliss destroys. 
 Still may my breast with chastest passions burn ; 
 Still may my dear an equal flame return ; 
 Connubial flame still in thy bosom glow, 
 Fond as the loving hind, and pleasing roe. 
 So shall thy bliss my joy perpetual prove. 
 And I be ever ravish'd with thy love. 

 
 515 
 
 ALPHABETICAL INDEX 
 
 MATERIARUxM. 
 
 Page No. 
 
 Aitkinson, Sibella, v. John Brown, — An explicit 
 written declaration, depraesenli, establishes a 
 marriage. Not reported. . . 377 6 
 
 Aitkin, Margaret, v. Topham. — Verbal declara- 
 tions of marriage, on several occasions, made 
 by an Englishman to a Scotchwoman in 
 Scotland, constitutes marriage. Not reported. 4-35 5 
 
 Allan, William, v. Ann Young. — A marriage 
 in J'acie ecclesiw, the girl being just turned 
 twelve years, was annulled on the ground of 
 her extreme youth, deception, undue influence 
 and fraud, which had been practised by Allan 
 to obtain her consent. Not reported. 318 3 
 
 Anderson, Jean, v. James Gordon. — A proposal 
 by a man to a woman's relations, to pay her 
 a sum of money, on condition of her claim of 
 marriage being ])assed from, resolves into a 
 bargain, and proveable by witnesses. 179 15 
 
 Anderson, , v. Wishart. — A letter by a man 
 
 to a third party, owning a woman to be his 
 wife, and bequeathing a legacy to her, therein 
 
 3 o'
 
 516 INDEX 
 
 Page No. 
 
 designed his spouse, found her entitled to her 
 terce of the deceased's lands. . 373 
 
 Advocate, The Lord, v. Rob. McGregor. — Rob. 
 M'Gregor suffered the last punishment of the 
 law at the Grassmarket of Edinburgh, on the 
 6'th Feburary, ITSI-, for the crimes of hame- 
 suken, ravishing, and the carrying away of 
 Jean Kay, aged 19, daughter and sole heiress 
 of the deceased James Kay, portioner of 
 Edinbelly. . . .319 
 
 B 
 
 Ballantine, , v. Wallace. — A verbal declara- 
 tion by a man soon before death, to the mi- 
 nister and elders of his parish, that a woman 
 was his wife, who had borne children to him, 
 and their livins; together as man and wife for 
 years, constitute a marriage. Not reported. 433 
 
 Ballantine, Jean, v. Wallace. — A written declara- 
 tion delivered to a woman some years before 
 the man's death, cohabitation, and verbal de- 
 clarations, held to establish a marriage. Not 
 reported. . . 373 
 
 Baptie, George, v. Christian Barclay.— An ac- 
 knowledgment that a child was born under a 
 promise of marriage, establishes a marriage, 
 but on an allegation that the woman after- 
 wards bore a child to another man, the Lords 
 ordained her to prove her converse with the 
 man, who granted the acknowledgment. 171 
 
 Baptie, Christian, v. George Barclay. 
 
 Vide the above case, under the title of 
 
 written declarations He praesenli. . 372 
 
 Barclay v. Ann Napier. — The Court sustained a 
 relict's process on her contract of marriage.
 
 MATEllTAllUM. 517 
 
 Page Noi 
 (and on the general ground of habit and re- 
 putCj) licet 7nalr'unonium, 7iun<juam Jucral in 
 Jacie ecclesiee celehralmn. . . 1(J8 1 
 
 Vide this case illustrated under the head 
 
 of habit and repute. . . 351 1 
 
 Barbour, Sibilla, v. Stewart. — In a process of ad- 
 herence, the brothers and sisters and their 
 husbands of the pursuers were admitted, cum 
 nolo, to prove the marriage, for this reason, 
 that as private marriages are not put extra 
 commcrciuvi, no witnesses can be depended 
 upon but the nearest relations. . 182 19 
 
 Bell, Mrs. V. Dr. Andrew Bell. — Here it was 
 found that the parties being Scottish, the 
 marriage contracted in Scotland, and the hus- 
 band proprietor of a Scotch estate, the wife 
 may competently pursue him in the Court 
 of Session, though he may be domiciled in 
 England. . . . 224-12 
 
 Bempde v. Johnstone. — Mere the domicile of the 
 JMarquis of Annandale was found to be in 
 England. . . 287 9 
 
 Reveridge v. Bain. — Kirk beadles are entitled to 
 their customary dues, at proclamation of banns 
 and bajitisms, even from dissenters. . 328 f) 
 
 Birtwhistle v. V^irdill. — A })rivate marriage before 
 witnesses, and cohabitation, establisli a mar- 
 riage and the legitimation of their issue. 255 d 
 
 Blair, John, v. Hugh Blair. — A marriage was an- 
 nulled by the Commissaries, and a bill of ad- 
 vocation refused, after many months cohabi- 
 tation, and the birth of a child, upon a proof 
 being brought that the pretended husband 
 was an idiot from his birth. • 207 3 
 
 Bowes, John, (an infant,) v. Tiie Earl of Strath- 
 more — Besolved and adjudged that John 
 Bowes is not entitled to the title, honour, and
 
 518 INDEX 
 
 Page No. 
 
 dignity of Baron Bowes, claimed by him, but 
 found that the Right Honourable Thomas 
 Bowes had made out his claim to the titles, 
 honours, and dignities of the Earl of Strath- 
 more, &c. , . 291 11 
 
 Brunstain, Dame Eliz. v. Sir Thomas Wallace. — 
 A Scotchman and Englishwoman, marrying 
 in England, cannot be dissolved in Scotland, 
 on an allegation of adultery committed in 
 England. . . 231 1 
 
 Bute, Lady, and Husband, v. Her Son. — A re- 
 nunciation of part of a woman's liferent lands 
 in favour of her son of a first marriage, after 
 proclamation of banns to a second husband, 
 found ineffectual. . . 326 5 
 
 Chalmers, Ann, v. Alexander Brown. — Women 
 witnesses were rejected to prove the actual 
 celebration of marriage, and are limited to 
 prove habit and repute and cohabitation. 178 14 
 
 Chapman and Lindsay v. Mrs. Patullo. — The 
 brother and sister of the defender of a decla- 
 rator of marriage were rejected to prove an 
 alleged concubitus. . . IQ3 25 
 
 Callander, Marion, v, Alexander Boyd. — Here "it 
 was found, that a written declaration, de 
 praesenti, by Callander to Boyd, constituted 
 marriage. . . 427 10 
 
 Campbell, John and Christian, v. Alexander Mac- 
 Glashan. — Proposals of marriage given to 
 a woman's brother, but not proven to have 
 been shown to her nor her father, are not to 
 be considered as a marriage contract, and as 
 
 ♦
 
 iMATERIARUM. 519 
 
 Page No. 
 such to cut off the right of her representa- 
 tives to share the goods in communion, 
 though marriage follow the proposals. l59 4 
 
 Cameron v. Miss Malcolm. — A marriage in facie 
 eclesiae, was annulled on the ground of undue 
 influence practised upon the defender, a 
 young girl just turned twelve years. 315 2 
 
 Campbell v. Campbell. — A subsequent marriage 
 supplies defects in contracts of marriage, 
 quoad principals, but not as cautioners. 335 1 
 
 Campbell, Jean, and Daughter, v. Magdalen Coch- 
 rane or Kennedy, et e contra. — A second 
 marriage m facie ecclcsiae, preferred to a first 
 irregular marriage of an ambiguous and un- 
 certain nature. . . 367 1S5 
 
 Cockburn v. Logan. — In a question of aliment at a 
 woman's instance, v. the representatives of a 
 defunct, to whom she had borne a child, 
 under an alleged promise of marriage, the 
 Lords refused to sustain any other mode of 
 proof but writ. . . l68 3 
 
 Vide this case stated under a different title. 173 U 
 
 Cochrane, Agnes, and Daughter, v. Andrew Coch- 
 rane. — Here the Court found a declarator of 
 marriage and legitimacy, grounded chiefly 
 upon the defender's letter to the pursuer, and 
 his oath on reference before the Commissaries. 377 7 
 
 Cook V. Johnstone. — A woman brought a proof of 
 her marriage, and then pursuing an adher- 
 ence, the defender alleged that she had been 
 guilty with another man, the court, notwith- 
 standing, allowed her an interim aliment. 177 13 
 
 Craig i\ Sinclair. — A penalty in a bond to solem- 
 nize marriage before the face of the Holy 
 Kirk sustained, and an arrestment following 
 on the bond found good. . . 336 3
 
 530 INDEX 
 
 Page No. 
 
 Crawford's Trustee v. Hart, Relict. — Thirty years 
 cohabitation as man and wife, and verbal de- 
 clarations before a Justice of Peace, as such, 
 entitles a widow to her legal provision. . 357 9 
 Vide same case under the title verbal de- 
 clarations cle praesenti. . . 435 4 
 
 Cuming, Miss v. Nevin. — A marriage in facie 
 eccleslae was annulled on the ground of fraud 
 and undue influence practised upon the de- 
 fender, a young lass of twelve years. . 314 1 
 
 Castlelaw v. Agnew. — A written disclamation of 
 marriage granted by a woman is ineffectual 
 to bar procedure in a declarator of marriage 
 at the woman's instance. Not reported. 472 8 
 
 Campbell, Dame Eliz. and Children v. Sir R. B. 
 J. Honyman, Bart. — A regular courtship fol- 
 lowed by a copula and children establish 
 marriage. . . • . 476 10 
 
 Cuninghames v. Cuninghame. — The Court, chiefly 
 on the ground of habit and repute, found a 
 marriage, but was reversed by the Flouse of 
 Peers, as there was no satisfactory proof of 
 habit and repute. . . . 360 10 
 
 D 
 
 Dalziel, Margaret v. James Richmond. — The 
 mother and sister of the pursuer in a decla- 
 rator of marriage were found to be inadmis- 
 sible as witnesses ; yet the point was settled, 
 that after a woman had failed in her proof 
 by witnesses, she may, notwithstanding, re- 
 fer the libel to the defender's oath. . I.9O 2t 
 
 Dods V. Wescomb. — Here it was found compe- 
 tent to sue a declarator of marriage at the 
 instance of a Scotchwoman against an Eng-
 
 ■\IATER1AKUM. 521 
 
 Page No- 
 Hshman, who held an office in the Exchequer 
 for several years. . . . 206 2 
 
 Eosdem. — In a declarator of marriage and ad- 
 herence, habit and repute by an Englishman 
 with a Scotchwoman in Scotland is sufficient 
 to establish a marriage. . . . 353 6 
 
 Drummond v. Bisset Although a contract of 
 
 marriage cannot be otherwise proved than 
 scripto, yet the Lords found that promises 
 of tocher may be established by witnesses. 170 5 
 
 E 
 
 Edmonstone, Thomas Stirling v. Mrs. Edmon- 
 stone — It is competent to dissolve an Eng- 
 lish marriage in Scotland when adultery is 
 committed there, and the defender is domi- 
 ciled in Scotland. ... 225 13 
 Vide, the case Mrs. Forbes v. Her hus- 
 band, grounded nearly upon the same 
 principles with the above. . . 22C 14; 
 
 F 
 
 Forbes, Mrs. v. Forbes, her husband. 
 Vide immediately above. 
 
 Fairlie, Dame Cuninghume v. Sir William Cun- 
 inghame Fairlie. — In an application for an 
 aliment pendens a divorce, the Court found 
 that the Commissaries were alone competent 
 prinui inslantia to award it. . • 2S7 
 
 Findlator, Lady v. Findlator and Curator. — Here 
 it was found that provisions in a contract of
 
 522 INDEX 
 
 Page No. 
 
 marriage in a foreign country bar a widow 
 
 from claiming legal provisions in Scotland. 253 5 
 
 Fletcher v. After proclamation of banns, 
 
 the bride can grant no gratuitous deed to the 
 prejudice of her future husband. . 324? 2 
 
 Forbes and Auchmuty v. Forbes and Munro. — 
 The Lords found women were not habile 
 witnesses to prove that persons were married 
 or habit and repute so. . . 181 1 6 
 
 Forrest v. Funstain. — The Court found that a 
 native of Ireland, having a military office in 
 Scotland without actual residence, is not 
 liable to the jurisdiction of the Scottish 
 Courts. ... . 236 4 
 
 Forbes v. Countess of Strathmore. — The living 
 together as man and wife in Scotland for 
 some time, and afterwards returning to Hol- 
 land, entitle the pursuer to prove cohabita- 
 tion in Holland, and the birth of a child 
 there. . . . . 244 1 
 
 Eosdem under the title of habit and re- 
 pute. . . . 351 2 
 
 French v. Pilcher. — A Scotchman and an Eng- 
 lishwoman married at Gretna Green, an ac- 
 tion for adultery committed in Scotland and 
 England was sustained. . . 210 5 
 
 G 
 
 Gillespie v. Auchinleck— On the ground of 
 fraud, where there is no proclamation of banns 
 previous to marriage, a widow cannot grant 
 an assignation to the prejudice of her second 
 husband. . . . 327 
 
 Gordon v. Pye.— The Commissary Court, where
 
 MATERIAIIUM. 523 
 
 Page No. 
 the parties are Englisli, and the iiiarriage 
 celebrated in England, luid domiciled there, 
 it was found competent to snstain a declara- 
 tor of nullity upon the ground of adultery, 
 committed in Scotland, and no regard paid to 
 a contract between the parties to prevent a 
 sentence of divorce, a vinculo matrimonii. 237 G 
 
 Gordon V. Gordon. — Found that children born be- 
 fore marriage in America could not give legi- 
 timation to their issue. . . 300 1 2 
 Gordon, Joanna v. Dalrymple. — Written declara- 
 tions, concubitits and courtship, establish a 
 marriage, and annul any subsequent marriage 
 of the defender. ... 380 8 
 Grierson v. Laird of Craigdarroch. — It was found 
 relevant for validating a contract of marriage, 
 sixteen years cohabitation, and being repute 
 man and wife. . . . 553 5 
 Grant and Gilchrist v. Fringle. — A gratuitous 
 bond by a bride after proclamation of banns 
 is not sood asiainst her second husband. 328 7 
 Graham and Erskine v Burn. — Damages in sola- 
 tium awarded to a woman after a contract of 
 marriage was entered into, and no sufficient 
 reason assigned for breaking it off". . 336 2 
 
 11 
 
 Harvie, Catharine, r. Crawford of Milton. — In 
 a process of adherence before the Commissa- 
 ries, in which the pursuer offered to prove a 
 promise of marriage and subsequent copula, 
 they held the promise relevant, scriplo vet 
 juramenlo, and the copulation proul de jure.
 
 >2-L 
 
 INDEX 
 
 Which judgment the Lords affirmed by re- 
 fusing a Bill of Advocation. 
 
 Vide this case again stated under the 
 title of proof parole. 
 
 Henri de Conti Ecuyer j;. Sieur de Quesney.— 
 In France it appears to be established, that 
 the status of a party, notwithstanding the 
 residence and marriage of his parents in 
 England, where legitimation " per suhse- 
 quens matrimoniuvi' is not allowed, depended 
 upon the law of France, where the contrary 
 rule obtains; and that a person might con- 
 sequently be legitimate in France, and might 
 succeed to honours and lands there, while he 
 was illegitimate in England. 
 
 Hogg, Rebecca, v. Thomas Hogg. — The execu- 
 tors of a wife have no legal claim to the 
 moveable effects of the husband, when other- 
 wise provided by contract of marriage en- 
 tered into in England. 
 
 Page No. 
 
 168 
 
 182 18 
 
 301 13 
 
 251 
 
 4 
 
 i 
 
 Inglis, Helen, v. Alexander Robertson. — Written 
 declarations de praesenti styling the woman 
 dear wife, giving her presents, and other 
 circumstances, found to constitute a mar- 
 riage. 
 
 375 
 
 K 
 
 Kennedy v. M'Dowall. — It was found by the 
 Commissaries and the Court, in a declarator 
 of marriage, that a promise and subse- 
 quent copula was relevant to infer marriage. 
 Not collected. 
 
 472
 
 MATEUIAUUM. o'J5 
 
 Page No. 
 
 Laing, Jean, v. George Reid of Rathobank. — 
 Written declarations de praescnli, joined with 
 courtsliip and concuhilus, found to establish 
 mariiiige in the Courts of Scotland and House 
 of Peers. . . . S94> 9 
 
 Lining, Eliza, v. Hamilton. — In a declarator of 
 marriage the pursuer failed to prove the 
 promise of marriage, but the defender was 
 subjected in L.'2()0 of damages and expenses. 4'59 1 
 
 Lees V. Parlane. — The Court found that soldiers 
 having no fixed domicile, are not liable to 
 the domicile of forty days, and may be cited 
 within that period. . . 205 1 
 
 Lindsay v. Tovy. — An action of divorce at the in- 
 stance of a Scotchman against his wife, an 
 Englishwoman, for adultery, was sustained, 
 although she resided in England, in conse- 
 quence of a voluntary separation. . 217 8 
 
 Lolly. W. M. — By the judgment of the twelve 
 Judges in England, Lolly had sentence of 
 transportation for seven years pronounced 
 against him, for marrying a seconil wife in 
 England, jdthough divorced in Scotland, for 
 adultery committed there, and that except 
 England no other country can grant divorce 
 of a marriage contracted there. . 229 
 
 Low V. Lunden and Lumsden. — After witnesses 
 have been examined to establish the libel, 
 and fail, the pursuer may have recourse to 
 the defender's oath in supplement. . 183 20 
 
 Low, Catharine, v. William Allardice. — The Com- 
 missaries and the Court, on the ground of 
 courtship and subsefpient copula, found a 
 marriage. Not reported. 'lG9 6
 
 526 INDEX 
 
 M 
 
 Page No, 
 
 Milton, Lady, v. Lord Milton. — Two women, 
 witnesses, swearing to separate acts of adul- 
 tery found to be probatio probata, and in an 
 action of reduction of the Commissaries' de- 
 cree, the Lords sustained the reasons of re- 
 probator to be proved by witnesses — amni 
 exceptione majores. . . 174 7 
 
 M'Culloch V. M'Culloch of Auchlnguii.— Cohabi- 
 tation in a foreign country, (Isle of Man) 
 as husband and wife, and other circumstan- 
 ces were found to constitute a marriaae, but 
 reversed in the House of Peers. . 247 2 
 
 Eosdem. — Vide this case stated under the 
 
 title of Habit and Repute. . S51 3 
 
 M'Gregor and Campbell v. Campbell. — Circum- 
 stances get the better of a former acknow- 
 ledgment of marriage, and an imperfect proof 
 of habit and repute. . < 354. 7 
 
 M'Kenzie and Children v, M'Kenzie. — A mar- 
 riage found on the ground of habit and re- 
 pute in Scotland, and no regard paid to a 
 letter of disclamation of marriage by the 
 wife denying that they were married^ or had 
 lived togetlier as such. • . 365 1 1 
 
 M'Kay V. Peggy Ferguson. — A verbal declara- 
 tion before witnesses', followed by a bedding, 
 nndi/s cum nuda, establish a marriage. Not 
 collected. .... 433 3 
 
 M'Kenzie and Children ?;. M'Kenzie An action 
 
 of declarator of marriage on the ground of 
 habit and repute, sustained, the parties being 
 Scots, and the defender domiciled in Eng- 
 land. . . ... 219 9 
 
 Vide this case stated under the title of 
 Competent Questions.
 
 .MATER lARUIVr. 527 
 
 Page No. 
 
 M'Dugall V. Aitken. — A bond granted by a wo- 
 man a few weeks before she gave up her 
 name to be proclaimed, found valid and ef- 
 fectual. .... 325 3 
 
 M'I.ellan v. M'Lellan and JMitchell. — A gratui- 
 tous disposition granted by the bride after be- 
 ing twice proclaimed, was reduced. • 328 8 
 
 Milton, Lord, v. Lady Milton. — In clandestine 
 crimes, such as adultery, infamy is not a re- 
 levant objection against a witness, unless it 
 be itifatnia Juris; by doing a deed which the 
 law declares to infer infamy, or where the 
 witnesses are declared infamous serttenlia 
 judicis. . . . .174-8 
 
 Eosdem in clandestine crimes such as a- 
 dultery, it is not a relevant objection against 
 a witness that he is not worth the king's un- 
 law ; or ten pounds Scots, or a fine for small 
 delinquencies. . . . 174* 8 
 
 ]\Iillar, Phillip, v. Angelo Framando. — A promise, 
 though alleged to be made iiiluilu maliimonii, 
 is not proveable by witnesses. . 188 22 
 
 Monteith, Countess, r\ Earl. — Women wit- 
 nesses admitted, omni exceplione majores, to 
 prove adultery, in respect of the occultness 
 of the crime. . . . 17,!; 12 
 
 Morcomb, Maria, v. John Laurie and IM'Lellan. — 
 It is incompetent to bring an action of di- 
 vorce against a person who was born and 
 educated in Scotland, and had married an 
 Englishwoman in England, but never after- 
 wards returned to Scotland. . . 233 2 
 
 Munro or Rose v. George Ross. — A native of Scot- 
 land having a landed estate there, but prin- 
 cipally residing in England, contracting a 
 marriage in Scotland with a woman who had 
 previously born a child to him in England,
 
 528 INDEX 
 
 Page No. 
 
 legitimation, per subseqiieiis matrimonium, 
 takes place, to the effect of enabling such 
 child to succeed as heir to his father in a 
 landed estate in Scotland. Reversed in the 
 House of Peers. 271 8 
 
 Murray v. Smith. — The Lords refused to sustain 
 the testimony of two women witnesses offer- 
 ed for the pursuer, to prove the solemniza- 
 tion of the alleged marriage, unless farther 
 adminicles could be condescended on. 182 17 
 
 Murray v. Linley — The Court found that the 
 giving in defence in causa, without stating a 
 declinature, infers prorogation of the Commis- 
 saries' jurisdiction. 214 7 
 
 Napier v. Napier. — x\ second marriage in facte 
 ecclesiae preferred to a first marriage by ha- 
 bit and repute, of rather an ambiguous na- 
 ture. Not reported. . . S56 8 
 
 Perie, Mary, v. Andrew Lunan. — An action of 
 divorce found competent, although the pur- 
 suer and defender reside in England, they 
 being natives in Scotland, and domiciled 
 there at the time of their marriage. . 208 
 
 Pennycuick, Alison, and Son, v. John Grinton and 
 Ann Graitie. — A promise of marriage which 
 in this case was instructed by the judicial de- 
 claration of the defender, followed by a copu- 
 la, make a marriage, and the after-marriage 
 of either of the parties, though openly made, 
 
 will be void and null. . . 460 
 
 6
 
 MATERIAllUM. 529 
 
 Page No. 
 
 R 
 
 Ritchie, Elizabeth, v. John Irving. — The Court 
 found that an explicit written declaration de 
 prae^ra/i established a marriage. Not reported. 428 11 
 
 Ritchie, Elizabeth, r. James Wallace. — A written 
 declaration, concubitus and child, found to 
 establish a marriage. Not reported. . 374- 4? 
 
 Rowland, Mrs. v. her Husband. — An English 
 marriage may be dissolved in Scotland on 
 the head of adultery, where the defender was 
 domiciled, and personally summoned, and the 
 crimeof adultery committed in this country. 221 10 
 
 Sassen, Madam, v. Sir James Campbell of Ar- 
 kinglass, Bart. — The Court, after very full 
 pleadings and writings hitic inde seriatim, 
 found that written declarations in a foreign 
 country, by a man a native of Scotland, to a 
 foreigner, importing marriage, did not con- 
 stitute marriage in this country, but entitles 
 the woman to damages — affirmed in the 
 House of Peers, quoad the marriage, but re- 
 versed (juoad damages. . . 264 
 
 Shedden, VVm. v. Patrick. — One whose parents 
 were afterwards married in a country where 
 legitimati')n per snbsequens malrimoniuvi is 
 not recognised, does not succeed to a landed 
 estate in Scotland, ah inteslata, as a lawful 
 child. . . . .219 
 
 Scott V. Brown. — The bride's deed, after proclama- 
 tion of banns, was found eH'ectual against her 
 husband. .... 326
 
 530 INDEX 
 
 Page No, 
 
 Scrutten, Margaret, v. John Gray and Attorney. — 
 It is incompetent to bring an action of de- 
 clarator of marriage against a person not a 
 native of Scotland, and not domiciled there ; 
 nor will the citation at the market- cross, pier 
 and shore, and an arrestment of moveables of 
 little value be deemed sufficient, adfundan- 
 dum jiirisdiclionem ralione rei sitae. 234 3 
 
 Sioyne v. Sioyne. — After proclamation of banns, 
 the bride can grant no gratuitous deed to the 
 prejudices of her future husband. . 324 1 
 
 Smith and Grierson v. Grierson. — Facts inferring 
 a previous courtship for marriage before a 
 copula, and the procreation of a child, may be 
 proved by witnesses, and is as effectual as an 
 admitted promise, CH/rt co/j?</a. . 184 21 
 
 Somnierville v. L. Halcro. — A proof of habit 
 and repute for ten years legitimates a child, 
 notwithstanding of its having been universal- 
 ly held to be habit and repute a bastard. 352 4 
 Sommerville v. Lord Sommerville.-^In a ques-r 
 tion of domicile, it was determined that Lord 
 Sommerville's domicile was in Scotland. 289 ^^ 
 Stewart v. Lindsay. — Solemn declarations of mar- 
 riage and admitted concubitus held to con- 
 stitute a marriage. . . 511 11 
 Sawers, Margaret, v. David Forrest. — A court- 
 ship, subsequent copula, and proclamation of 
 banns, establish a marriage. Not reported. 466 S 
 Shillinglaw v. William M'Intosh. — It was found 
 by the Commissaries and the Court of Ses- 
 sion, that a letter holograph of the defender 
 containing a promise of marriage, followed 
 by a subsequent copula, established a mar- 
 riage. . . . . 473 9
 
 MATEEIARUM. 531 
 
 Page No. 
 Taylor v. Lord Lindores, — A confession in foro 
 
 pcsnitentiali for exonerating one's conscience, 
 
 and purging a scandal, is not a sufficient 
 
 ground for rejecting a witness. 175 10 
 
 U 
 
 Utterton, Elizabeth, v. Frederick Tuish— The 
 lex loci of tlie crime of adultery fixes juris- 
 diction in Scotland, although the parties 
 were married in England ; hence after proof 
 was led of adultery, Decree of Divorce a 
 vificu/o mafri7fi07ni was ])Tonounced. 221 11 
 
 W 
 
 Walker and children v. IM'Adam. — The Com- 
 missaries, the Court of Session, and the 
 House of Peers found a valid marriage, and 
 the legitimation of the children, chieHy on 
 the ground of verbal and mutual declara- 
 tions de praesenti. . . . 436 6 
 
 Wemyss V. Wemyss. — A woman by marrying, 
 validates a marriage contract signed by her 
 father and husband only. . . 338 5 
 
 White, Jean, v. Wm. Hepburn. — A promise and 
 subsequent copula not established. The 
 oath of the defender on reference, was allow- 
 ed after a proof of courtshij), but failed. 1 SQ 23 
 Vide this case stated under the title of 
 
 promise and subsequent copula. . lG8 5 
 
 Wychee and Auorney r. Blount. — The parties 
 
 English and married at Gretna Green, lived 
 
 2 p
 
 532 INDEX MATERIAllUM. 
 
 Tage No. 
 
 only in England, the crime of adultery com- 
 mitted there ; the summons executed against 
 the defender personally, in Scotland, found 
 sufficient to found jurisdiction. . 211 6 
 
 Vide the same case stated under the title 
 
 of written declarations de j)raesenli. 428 1 2 
 
 Young, William, v. Margaret Irving and John 
 Anderson her husband — A penalty in a con- 
 tract of marriage is ineffectual against a wo- 
 man who marries another man, the contract 
 not being signed. . . , 337 
 
 Young, Elizabeth, v. Dr. Arrot. — Repeated verbal 
 declarations by a man to a midwife who de- 
 livered his child, and to a clergyman who 
 baptized it, that the parties were married, 
 found to establish a marriage. . 432 
 
 i 
 
 1
 
 ALPHABETICAL LIST 
 
 OF THE 
 
 DEFENDERS' NAMES, 
 
 ET E CONTRA. 
 
 A 
 
 Defenders' Names. 
 
 Pursuers' Names. 
 
 Page 
 
 No. 
 
 Aitkin, 
 
 M'Dugall, 
 
 325 
 
 3 
 
 Agnew, C. 
 
 Castlelaw, 
 
 4.72 
 
 8 
 
 Allardice, Wm. 
 
 Low, Catharine, 
 
 469 
 
 6 
 
 Arrot, Dr. 
 
 Young, Elizabeth, 
 
 432 
 
 1 
 
 Auchinleck, 
 
 Gillespie, 
 
 327 
 
 6 
 
 B 
 
 Bain, V. 
 
 Beveridge, 
 
 328 
 
 9 
 
 Barclay, Christian, 
 
 Baptie, George, 
 
 (372 
 
 6 
 
 1 
 
 Bell, Dr. Andrew, 
 
 Bell, Mrs. 
 
 224 
 
 12 
 
 Bisset, 
 
 Drummond, 
 
 170 
 
 5 
 
 Boyd, Alexander, 
 
 Callander, JNIarion, 
 
 427 
 
 10 
 
 Blount, 
 
 Wychee and Attorney, 
 
 211 
 
 6 
 
 Ditto, 
 
 Ditto ditto 
 
 428 
 
 12 
 
 Brown, Alexander, 
 
 Chalmers, Ann, 
 
 178 
 
 14 
 
 Blair, 
 
 Blair, Hugh, 
 
 207 
 
 ■3
 
 53 4> 
 
 ALPHABETICAL LIST OF 
 
 Defenders' Names. 
 
 Burn, 
 
 Brown, 
 
 Brown, 
 
 Lady Bute's Son, 
 
 Pursuers' Names. Page No- 
 
 Grahame and Erskine, 336 ^ 
 
 Scott, 326 4 
 
 Sibella Atkinson, 377 6 
 
 Bute, Lady and Husband, 326 5 
 
 Campbell, Sir James, Bt. Sassen, Madame, 264 
 
 Campbell, M'Gregor and Campbell, 354 
 
 Campbell, Campbell, 
 
 Cochrane, Magdalen ) Campbell, Jean and 
 or Kennedy, et e contra, j Daughter, 
 
 ^ , .J 1 Cochrane, Agnes and 
 
 Cochrane, Andrew, | Daughter, 
 
 Cuningham, Cuninghames 
 
 Craigdarroch, Laird of Grierson, 
 
 Crawford of Milton, Harvie, Catharine, 
 
 Ditto, Ditto, 
 
 n Q rf 
 
 1 367 
 1 377 
 
 7 
 7 
 1 
 
 12 
 
 360 
 
 10 
 
 35S 
 
 5 
 
 168 
 
 2 
 
 182 
 
 18 
 
 D 
 
 Dalrymple, 
 
 Gordon, Joanna, 
 
 380 8 
 
 E 
 
 Edmonstone, Mrs. 
 
 Edmonstone, Thos. Stirling, 225 r3 
 
 Fairlie, Dame Cuning- ) Fairlie, Sir Wm. Cuning- f g„ 
 
 hame, J hame, X" 
 
 Fergusson, Peggy, M'Kay, 
 
 Forbes and Munro, Forbes and Auchmuty, 
 
 433 
 18i 
 
 3 
 I6
 
 THE defenders' NAMES. 
 
 535 
 
 Defenders' Names. Pursuers' Names. 
 
 Forrest, David, Sawers, IMargaret, 
 
 Forbes, Forbes, 
 
 Findlator and Curator, Findlator, Lady, 
 
 Framando Angelo, Millar, Phillip, 
 
 Funstain, Forrest, 
 
 Page 
 
 No. 
 
 ^66 
 
 3 
 
 226 
 
 14 
 
 253 
 
 5 
 
 188 
 
 22 
 
 236 
 
 4 
 
 G 
 
 Gordon, James, 
 
 Gordon, 
 
 Gray and Attorney, 
 
 Anderson, Jean, 
 
 Gordon, 
 
 Scrutton, Margaret, 
 
 Grinton, John, and Ann? T) -i at f 
 
 ^ ■ ■ f 1 ennycuick, Alison, < 
 
 vjraitie, 3 f, 
 
 Grierson, Smith and Grierson, 
 
 179 
 300 
 234 
 
 4-60 
 
 184 
 
 16 
 
 12 
 
 3 
 
 21 
 
 H 
 
 Lining, Elizabeth, 
 
 Crawford's Trustee, 
 
 Ditto, 
 
 Sommerville 
 
 White, Jean, 
 
 Ditto, 
 Honeyman, Sir R. B.T Campbell, Eliza, and Chil- 
 
 J. J dren, 
 
 Hogg, Thomas, Hogg, Rebecca, 
 
 Hamilton, Eliza, 
 Hart, — relict, 
 Ditto, 
 HalcrO; L. 
 Hepburn, William, 
 Ditto, 
 
 459 
 
 1 
 
 357 
 
 9 
 
 435 
 
 4 
 
 352 
 
 4 
 
 189 
 
 23 
 
 468 
 
 5 
 
 |476 
 
 10 
 
 251 
 
 4 
 
 Johnstone, 
 
 Johnstone, 
 
 Irving, John, 
 
 Irvine, Margaret, and"^ 
 
 John Anderson, her > Young, William, 
 
 husband, ) 
 
 Cook, 
 
 177 
 
 13 
 
 Bempde, 
 
 287 
 
 9 
 
 Ritchie, Elizabeth, 
 
 428 
 
 11 
 
 337
 
 536 
 
 ALPHABETICAL LIST OF 
 
 
 L 
 
 
 
 1 
 
 m 
 
 
 
 
 1 
 
 Defenders' Names. 
 
 Pursuers>' Names. 
 
 Page 
 
 No. 
 
 
 Lindsay, 
 
 Stewart, 
 
 511 
 
 11 
 
 1 
 
 Linlay, 
 
 Murray, 
 
 214 
 
 7 
 
 Lindores, Lord, 
 
 Taylor, 
 
 175 
 
 10 
 
 
 Logan, 
 
 Cockburn, 
 
 168 
 
 3 
 
 
 Ditto, 
 
 Ditto, 
 
 175 
 
 11 
 
 
 Lunsden and Lurasden, 
 
 Law, 
 
 183 
 
 20 
 
 
 Lunan, Andrew, 
 
 Perie, Mary, 
 
 208 
 
 4 
 
 
 M'Glashan, 
 
 M 
 
 Campbell, Jo. and Chris- 
 tian, 
 
 •| 169 
 
 4 
 
 
 M'Dowall, 
 
 Kennedy, 
 
 472 
 
 7 
 
 
 M'Kenzie, 
 
 M'^Kenzie and Children, 
 
 219 
 
 9 
 
 
 M'Ciilloch of Auchengui 
 
 I M'CuUoch, 
 
 247 
 
 2 
 
 
 M'Lellan Lawrie, John 
 
 Morcomb, Maria, 
 
 233 
 
 2 
 
 
 M'Lellan and Mitchell, 
 
 M'Lellan, 
 
 328 
 
 8 
 
 
 M'Culloch, 
 
 M'Culloch, 
 
 351 
 
 3 
 
 
 M'Kenzie, 
 
 M'Kenzie and Children, 
 
 S63 
 
 11 
 
 
 M'Intosh, Wm. 
 
 Shillinglaw 
 
 4>13 
 
 9 
 
 
 M'Gregor, Robert, 
 
 The Lord Advocate, 
 
 319 
 
 4 
 
 
 M'Adam, 
 
 Walker, E. and Children 
 
 436 
 
 6 
 
 
 Malcolm, Miss, 
 
 Cameron, 
 
 315 
 
 2 
 
 
 Milton, Lord, 
 
 Milton, Lady, 
 
 174 
 
 7 
 
 • 
 
 Milton, Lady, 
 
 Milton, Lord, 
 
 174 
 
 8 
 
 Milton, Lady, 
 
 Milton, Lord, 
 
 174 
 
 9 
 
 
 Monteith, Earl, 
 
 Monteith, Countess of. 
 
 175 
 
 12 
 
 ri 
 
 N 
 
 Napier, 
 Napier, Ann, 
 
 Napier, 
 Barclay, 
 
 3.56 
 168 
 
 8 
 1
 
 defenders' names. 
 
 537 
 
 Defenders' Names. 
 
 Pursuers' Names. 
 
 Page 
 
 No 
 
 Napier, Ann, 
 
 Barclay* 
 
 351 
 
 1 
 
 Nevin, 
 
 Cuming, Miss, 
 
 314 
 
 1 
 
 Patullo, 
 
 jNIrs. 
 
 Chapman and Lindsay, 
 
 193 
 
 25 
 
 Patrick, 
 
 
 Shedden, William, 
 
 24-9 
 
 3 
 
 Parlane, 
 
 
 Lees, 
 
 205 
 
 1 
 
 Pilcher, 
 
 
 French, 
 
 210 
 
 5 
 
 Pringlc, 
 
 
 Gram and Gilchrist, 
 
 328 
 
 1 
 
 Pye, 
 
 
 Gordon, 
 
 237 
 
 6 
 
 Q 
 
 Quesnoy, Sieur de. 
 
 Henri de conti Ecuyer, 301 13 
 
 H 
 
 Reid, George, of Ra- 
 thobank, 
 
 Richmond, James, 
 
 Robertson, Alexander, 
 
 Ross, George, 
 
 Rowland, 
 
 > Laing, Jean, 
 Dalaiel, Margaret, 
 
 39-* 
 
 9 
 
 190 
 
 24 
 
 Inglis, Helen, 
 
 375 
 
 5 
 
 Munro or Rose, 
 
 271 
 
 8 
 
 INIrs. Rowland, 
 
 221 
 
 10 
 
 Sinclair, 
 
 Craig, 
 
 H'Jd 
 
 r, 
 
 Sioyne, 
 
 Sioyne, 
 
 324 
 
 1 
 
 Stewart, 
 
 Barbour, Sibella, 
 
 182 
 
 1!) 
 
 Strathmore, Countess, 
 
 Forbes, 
 
 22-t 
 
 \ 
 
 Strathmore. Countess 
 
 '. Forbes. 
 
 211 
 
 I,
 
 538 
 
 ALPHABETICAL LIST OF 
 
 Defenders' Names. 
 Strathmore, Earl of. 
 Smith, 
 Sommerville, Lord, 
 
 Pursuers' Names. Page No. 
 
 Bowes, John, (an infant) 291 11 
 
 Murray, 182 17 
 
 Sommerville, 289 10 
 
 Topham, 
 
 Tovy, 
 
 Tuish, Fredrick, 
 
 Aitkin, Margaret, 
 
 Lindsay, 
 
 Utterton, Elisabeth, 
 
 435 5 
 217 8 
 221 11 
 
 Vardill, 
 
 V 
 
 Birtwhistle, 
 
 255 
 
 6 
 
 W 
 
 Wallace, Sir Thomas, 
 
 Brunstain, 
 
 Dame Eliz. 
 
 231 
 
 1 
 
 Wallace, 
 
 Elizabeth 
 
 Ritchie, 
 
 374 
 
 4 
 
 Wallace, 
 
 Ballantine, 
 
 Jean, 
 
 373 
 
 3 
 
 Wallace, 
 
 Ballantine, 
 
 
 433 
 
 2 
 
 Wemyss, 
 
 Wemyss, 
 
 
 338 
 
 5 
 
 Westcomb, 
 
 Dods, 
 
 
 206 
 
 2 
 
 Do. 
 
 Do. 
 
 
 353 
 
 6 
 
 Wishart, 
 
 Anderson 
 
 
 373 
 
 2 
 
 Young, Ann, 
 
 William, Allan, 
 
 318
 
 TABLE OF CASES 
 
 IN 
 
 VOLUME I. 
 
 OF THE 
 
 DIGEST ON MARRIAGE. 
 
 'age 
 
 No 
 
 168 
 
 1 
 
 174< 
 
 2 
 
 
 3 
 
 Of Proof Scripto vel Juramento. 
 
 Barclay v. Anna Napier, 
 Catharine Harvie r. Crawford of Milton, 
 Cockburn v. Logan 
 John and Christian Campbell v. Alexander 
 M'Glashan, . . • I69 
 
 Of Proof Parole. 
 
 Drummond v. Bisset, . . 1 70 5 
 
 George Baptie v. Christian Barclay, . 171 6 
 
 Lady Milton v. Lord Milton, . 174 7 
 
 Lord Milton v. Lady Milton, . . 8 
 
 Lord Milton v. Lady Milton, . . 9 
 
 Taylor v. Lord Lindores, . . 175 10 
 
 Cockburn v. Logan, . . . 1 1 
 
 Countess of Monteith v. the Earl, . 12 
 
 Cook v. Johnston, . . • 177 13 
 
 Ann Chalmers u. Alexander Brown, . 178 1 1- 
 
 Jean Anderson v. James Gordon, . 1 79 15 
 
 Forbes and Auchmuty v- Forbes and Munro, 181 16"
 
 540 
 
 TABLE OF CASES, 
 
 Murray t^. Smith, 
 Harvie v. Crawford, 
 Sibella Barbour r. Stewart, 
 Law V. Lunden and Lumsden, 
 Smith and Grierson v, Grierson, 
 Phillip Millar v. Angelo Framendo, 
 Jean White v. William Hepburn, 
 Margaret Dalziel v. James Richmond, 
 Chapman and Lindsay v. Mrs. Pattullo, 
 
 Page 
 
 No 
 
 182 
 
 17 
 
 
 18 
 19 
 
 
 1S3 
 
 20 
 
 184 
 
 21 
 
 188 
 
 22 
 
 189 
 
 23 
 
 190 
 
 24. 
 
 193 
 
 ^5 
 
 Of Competent Cases. 
 
 Lees V. Parlane, 
 
 Dods V. Westcomb, 
 
 Blair v. Blair, 
 
 Mary Perie v. Andrew Lunan, 
 
 French v. Pilcher, 
 
 Wycliee and Attorney v. Blount, 
 
 Murray v. Linlay, 
 
 Lindsay v. Tovy, . . . . 
 
 Mackenzie and children v. Mackenzie, 
 
 Mrs. Rowland v. her Husband, 
 
 Elizabeth Utterton v. Fredrick Tuish, 
 
 Mrs. Bell v. Dr. Andrew Bell, 
 
 Thomas Stirling Edmonstone v. Mrs. Edmon- 
 
 stone, .... 
 
 Mrs. Forbes v her Husband, 
 Mrs. Levitt v. her Husband, 
 Mrs. Lolly v. W. M. Lolly, 
 
 205 
 
 1 
 
 206 
 
 2 
 
 207 
 
 3 
 
 208 
 
 4 
 
 210 
 
 5 
 
 211 
 
 6 
 
 214 
 
 7 
 
 217 
 
 8 
 
 219 
 
 9 
 
 221 
 
 10 
 
 
 11 
 
 224. 
 
 12 
 
 225 
 
 13 
 
 226 
 
 14. 
 
 227 
 
 15 
 
 229 
 
 16 
 
 Of hicompetent Cases. 
 
 Dame Elizabeth Brunstain v. Sir Thomas 
 
 Wallace, Bart, . . 231 
 
 Maria Morcomb v. John Lawrie M'Lellan, 223 
 
 Margaret Scrutten v. John Gray and Attorney, 234 
 
 1 
 
 2 
 3
 
 TABLE OF CASES. 541 
 
 Page No. 
 
 Maiy Forrest v. Funstain, . . 236 4- 
 Dame Cunninghame Fairlie v. Sir Wni. Cun- 
 
 inghame Fairlie, Bart. . . 2S7 5 
 
 Gordon v. Fye, . . . G 
 
 Of Foreign and International Law. 
 
 Forbes v. Countess of Strathmore, 
 
 M'CulIoch V. M'Culloch, 
 
 William Shedden v. Patrick, 
 
 Rebecca Hogg v. Thomas Hog, 
 
 Lady Findlator c. Findlator and Curator, 
 
 Birtwhistle v. Vardill, 
 
 Madam Sassen v. Sir James Campbell of Ar- 
 
 kinglass, Bart. 
 Munro or Rose v. George Ross, 
 Bempd v. Johnston, 
 Somerville v. Lord Somerville, 
 John Bowes an Infant v. Earl Strathmore, 
 Gordon v. Gordon, 
 Henri de Conti Ecuyer, Sieur de Quesnoy, 
 
 Of Marriage in facie ecclesia: AnmiUed. 
 
 Miss Cuming v. Nevin, 
 
 Cameron, v. Miss Malcolm, 
 
 William Allan v. Ann Young, 
 
 The King's Advocate v. Robert IM'Gregor, 
 
 Of Proclamation of Banns and Results. 
 
 Sioyne v. Sioyne, . . • SiZl- 1 
 Fletcher v. . . . 2 
 
 244 
 
 1 
 
 247 
 
 2 
 
 2*9 
 
 3 
 
 251 
 
 4 
 
 253 
 
 5 
 
 255 
 
 6 
 
 264 
 
 7 
 
 271 
 
 8 
 
 287 
 
 9 
 
 289 
 
 10 
 
 291 
 
 11 
 
 300 
 
 12 
 
 301 
 
 13 
 
 314 
 
 1 
 
 315 
 
 
 
 318 
 
 3 
 
 319 
 
 4
 
 542 
 
 TABLE OF CASES. 
 
 M'Dugall V. Aitken, 
 
 Scott i^. Brown, 
 
 Lady Bute and Husband v. her Son, 
 
 Gillespie r. Auchinleck, 
 
 Grant v. Gilchrist, 
 
 M'Lellan v. M'Lellan and IMitchell, 
 
 Beveridge v. Bayne, 
 
 'age 
 
 No. 
 
 325 
 
 3 
 
 326 
 
 4 
 
 326 
 
 5 
 
 327 
 
 6 
 
 328 
 
 7 
 
 
 8 
 
 328 
 
 9 
 
 Of Antenuptial Contracts of Marriage. 
 
 Campbell v. Campbell, 
 Graham and Erskine v 
 Craig V. Sinclair, 
 William Young in Alloa v 
 
 J. Anderson, 
 Weymss v. Wemyss, 
 
 Burnj 
 
 Margaret Irvine and 
 
 335 
 
 1 
 
 336 
 
 2 
 
 336 
 
 3 
 
 SS7 
 
 4 
 
 338 
 
 5 
 
 Of Habit and Repute. 
 
 Barclay v. Anna Napier, 
 Forbes v. the Countess of Strathmore, 
 M'CuUoch V. M'Culloch, 
 Sommerville v. L. Halcro, 
 Grierson v. the I^aird of Craigdarroch, . 
 Rebecca Dods, v. Westcomb, 
 M'Gregor and Campbell v. Campbell, 
 Napier v. Napier, 
 
 Crawford's Trustees v. Hart, relict, 
 Cuninghames v. Cuninghame, 
 M'Kenzie and Children v. M'Kenzie, 
 Jean Campbell and Daughter v. Magdalen Coch 
 raue or Kennedy, et e contra. 
 
 351 
 
 I 
 
 
 2 
 
 
 3 
 
 352 
 
 4 
 
 : 53 
 
 5 
 
 6 
 
 7 
 
 354- 
 
 356 
 
 8 
 
 357 
 
 9 
 
 360 
 
 10 
 
 365 
 
 11 
 
 367 12
 
 TABLE OF CASES. 
 
 543 
 
 Of Written Declaratiom de Pnesenti. 
 
 Christian Baptie v. George Barclay, 
 
 Anderson v. Wishart, 
 Jean Ballantyne v. Wallace, 
 Elizabeth Ritchie v. James Wallace, 
 Helen Inglis v. Alexander Robertson, 
 Sibella Anderson v. John Brown, 
 Agnes Cochrane and Daughter v. Andrew Coch- 
 rane, ..... 
 Gordon v. Dalrymple, 
 Jean Laing v. George Reid of Rathobank 
 Marion Callander v. Alexander Boyd, 
 Elizabeth Richardson v. John Irvine, 
 Wychee and Attorney v. Blount, . 
 
 Pago 
 
 No. 
 
 372 
 
 1 
 
 373 
 
 2 
 
 
 3 
 
 374 
 
 4 
 
 375 
 
 5 
 
 377 
 
 6 
 
 
 7 
 
 380 
 
 8 
 
 394 
 
 9 
 
 427 
 
 10 
 
 428 
 
 11 
 
 
 12 
 
 Of Verbal Declarations de Prcesenti. 
 
 Elizabeth Young v. Dr Arret, 
 
 Ballantyne v. Wallace, 
 
 David M'Kay v. Peggy Fergusson, 
 
 Crawford's Trustees v. Hart, relict, 
 
 Margaret Aitken v. Tophain, 
 
 Elizabeth Walker and Children v. M'Ada 
 
 :n, 
 
 432 
 433 
 
 435 
 
 436 
 
 1 
 2 
 3 
 
 4 
 5 
 6 
 
 Of Promise and Subsequent Copida. 
 
 Elizabeth Lining v. Hamilton, . . . 459 
 
 Alison Pennycuick and Son v. John Grinton and 
 
 Ann Graitie, ...... 460 
 
 Margaret Sawyers v. David Forrest, . . 466 
 
 3
 
 544 
 
 TABLE OF CASES. 
 
 A. M. Cockburn v. Logan, 
 
 Jean Wlaite v. William Hepburn, 
 
 Catharine Low v William AUardice 
 
 Kennedy v. M'Dowall, 
 
 Castlelaw v. Agnew, 
 
 Isabella Shillinglaw v. William M'Intosh, 
 
 Dame Elizabeth Campbell and Elizabeth and Alex- 
 ander Honeymah v. Sir R. B. J. Honeyman, 
 Bart., ••..... 
 
 Stewart v. Lindsay, ..... 
 
 Page 
 
 No. 
 
 467 
 
 4 
 
 468 
 
 5 
 
 469 
 
 6 
 
 472 
 
 7 
 
 
 8 
 
 473 
 
 9 
 
 476 
 
 10 
 
 511 
 
 11 
 
 ERRATA. 
 
 Page 156, No. l,for neviter read noviter, 
 
 1G4, 13, _/or conseantur reaiZ censeantur. 
 
 174, 8,ybr sententiae read sententia. 
 
 220, 9, for Balbegrie 7'ead Balbegie, 
 
 336, 2, for Bunn read Burn. 
 
 341, — 5, for Stanfiekl read Stonefield.
 
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