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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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CO
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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