the ceremony, and from the conduct of the parties subsequently, that no real consent to marry was given.(1)

6. MARRIAGES OF ENGLISH PARTIES IN SCOTLAND.

Parties may go out of England and marry by necessity or choice; in either way a foreign marriage is not void upon that account by the laws of England. The marriage acts(m) are confined to England; consequently, marriages in Scotland remain in the same state as if those acts had not passed.

It is well known that so much of the marriage acts as prohibits the marriage of minors, without the consent of parents or guardians, is frequently evaded, by the parties going into Scotland to be married, and returning into England immediately afterwards. The validity of such marriages was once questioned by high authority;(n) for though in general marriages are governed by the law of the country in which they are celebrated, yet it was doubted whether the lex loci ought to be applied in a case accompanied with circumstances so strongly marking the intent to evade the law of England.

[ *108 ]

The validity, however, of a marriage contracted in Scotland by English subjects, according to the law of that kingdom, is now fully established, although the marriage would be invalid according to the law of England, and notwithstanding the parties had acquired no bona fide domicile in Scotland, but had resorted thither for the purpose of making a contract, which, if they had remained in England, they were prohibited from making. Thus it was decided, on appeal to the delegates, that a marriage in Scotland between two English subjects, one of whom was under age, and had eloped without the consent of her guardians, was a good marriage. (o)

(1) Macneil v. Macgregor, 2 Bli. N. S. 470; 1 Dow & Clark, 208; 3 Wils. & Shaw, 85.

In this case two questions were raised as to the admissibility of evidence:-1st. Whether, according to the law of Scotland, entries made in a book kept by a minister of the church of Scotland, in the manner above described, are admissible in evidence to prove a marriage; and how marriages are to be proved, supposing the minister and witnesses to be dead or incompetent?

2d. Whether the admissions of a woman who may be claimed as a wife by two persons, under such alleged ceremonies of marriage and circumstances as above stated, is admissible in evidence as proof of the first marriage?

Another question was, whether a marriage celebrated by a minister of the church of Scotland, upon such certificate as above mentioned, without actual publication of banns, is to be deemed, according to the practice, a regular marriage in Scotland.

(m) 26 Geo. 2, c. 33, s. 18; 4 Geo. 4, c. 76, s. 33; 6 & 7 Will. 4, c. 85, s. 45.

(R) Lord Mansfield, 2 Burr. 1079. In Phillips v. Hunter, 2 H. Bl. 412, Eyre, C. J.,

said, that Lord Mansfield failed altogether in the proposition that British subjects should not be allowed to contravene the statute law of the land as to marriages, by withdrawing themselves from England.

(0) Crompton v. Bearcroft, Arches, 16th of February, 1767; Delegates, 4th of February, 1769. The facts.of this case appear by the libel, which pleaded the marriage act, and the minority of the lady, and want of consent, and that "on the 13th of March, 1762, a marriage was had and performed in the dwelling-house of Thomas Huddlestein, cook and confectioner, at Dumfries in North Britain, by Richard Jameson, the minister (or pretending himself to be the minister) of the English chapel at Dumfries, who then lodged in the house of Thomas Huddlestein, in whose lodging room the marriage was so performed between Edward Bearcroft of Droitwitch, in Worcestershire, and Maria Catherine Compton, of Hartpury, in Glouces tershire, without publication of banns, and without any license being had and obtained for the solemnization of the said marriage from any person having authority to grant the same; and that neither Edward Bear-.

*The principle of this decision has been referred to [ *109 ] different grounds. It is said, "that determination passed, not on the ground that the marriage was valid in Scotland, and that, therefore, it was good-nothing was laid before the court to show that the marriage was valid in Scotland-but because the act of parliament did not put any restraint upon English subjects being married in Scotland, with respect to the consent of parents. On that ground it is that those marriages are held good, not being contrary to the law of England. The same holds as to marriages beyond sea; for English subjects going abroad, or to Scotland, to m rry English subjects, have an exemption from that restraint in the act."(p) In another case it is said, that the case was decided by the Court of Delegates upon different grounds from those which were taken in the Court of Arches, and because the marriage was a good marriage in Scotland: and if all the facts pleaded in the libel were proved, the marriage could not be pronounced void under the marriage act; in which it is expressly declared, that it shall not extend to Scotland. On these grounds the delegates rejected the libel; the case of that marriage, therefore, was determined by the lex loci. Those persons having gone to Scotland, and been married in a way not good in England, but good in Scotland, and not affected by the marriage act, were considered to have contracted a valid marriage.(g)

It was observed by Lord Brougham, that the judges both of the consistorial and common law courts have held, that a Scotch marriage contracted by English parties in the face and in fraud of the English law is valid to all intents and purposes, *and car[ *110 ] ries all the real and all the personal rights of an English

croft nor Maria Catherine Compton ever was resident in any part of North Britain. But she the said Maria Catherine Compton, in the beginning of March, 1761, went from the house of John Dalby, her testamentary guardian, in Berkshire, to pay a visit to her brother, Sir William Compton, at Henslip, in the county of Worcester, and he dying, she left that place and went to her mother at Hartpury, in the county of Gloucester, and from thence went, unknown to John Dalby, and without his consent, and without the knowledge of her other testamentary guardians, with Edward Bearcroft, on or about the 6th of March, 1762, to Dumfries to be married, and that they were married there as aforesaid merely to evade the laws of this realm, and returned into England on the same day, and proceeded to the house of Edward Bearcroft at Droitwitch, and were never in North Britain but during the time of the journey and for the purpose of the marriage. The certificate of the marriage was also pleaded in these words: 'I certify that I married, after the manner of the Church of England, Edward Bearcroft and Maria Catherine Compton. (Signed) J. Jame son, minister of the English chapel at Dumfries.' The prayer of the libel was, that the marriage might be declared null and void, pursuant to the said act for clandestine

marriages." 2 Hagg. Cons. R. 444, 445, n. It appears from the imperfect account which remains of the argument in this case, that soon after the marriage act many instances had occurred of persons going into Scotland to evade the restrictions of that act. The cases of Bedford v. Varney, 1762, before Lord Northington, and Brook v. Oliver, at the Rolls, before Sir Thomas Clarke, 1759, were mentioned, being cases of bequests dependent on the validity of such marriage, in which it had been contended, that the marriage was not valid; but the objection was overruled, and the points in those causes adjudged accordingly. It was said also, that Lord Northingington must have been well acquainted with the spirit and intention of that act, as he had been much concerned in procuring it. The notion of impeaching these marriages on the ground of evasion. stated in the libel of Compton v. Bearcroft, is supposed to have proceeded from the observation of Lord Mansfield in Robinson v. Bland, 2 Burr. 1079; 1 W. Bl. 234; as to the exception that might be admitted on that principle, as suggested by Huber de ConAlictu Legum, p. 538; see 2 Hagg. Cons. R. 376, 377.

(p) Per Sir Geo. Hay, 2 Hag. Con. R. 430. (q) Sir W. Wynne, 2 Hagg. Cons. R. 443,

444.

marriage, affecting, in its consequences, land and honours, and duties and privileges, precisely as does the most lawful and solemn matrimonial contract entered into among ourselves, in our own churches, according to own ritual, and under our own statutes.

It is firmly established and daily acted upon by persons of every condition, that, though the law of England incapacitates parties from contracting marriage here, they may go for a few minutes to a Scotch border and be married as effectually as if they had no incapacity whatever in their own country, and then return, after eluding the law, to set its prohibitions at defiance without incurring any penalty, and to obtain its aid without any difficulty in securing the enjoyment of all the rights incident to the marriage state. (r)

In Gretna Green marriages by English parties, whose domicile continues in England, the statute law of their own country is disregarded, such marriages taking place without form or solemnity of any kind, except a mutual declaration of consent by the parties before witnesses. The validity of these marriages is referred to the principle, that a marriage solemnized according to the rule of the place of celebration, however peculiar that municipal rule may be, is by the law of nations valid in all other countries. In other words, like every other contract juris gentium, marriage, wherever celebrated, has the same consequences and effect in any other country, to the law of which the married persons might afterwards be subject, as if it had been celebrated under that law. (s) And it is said, that if persons have the free choice of the place where they reside or travel, or perform any act, they are guilty of no fraud against the law of their own country, when they *avail themselves of an opportunity [ *111 ] of going to another civilized country to constitute the relation of husband and wife, in the manner and according to the rights allowed to persons the subjects of that country; all that such persons do is to prefer in this matter the law of Scotland to the law of England; and in so doing, they do no wrong; they merely utuntur jure suo; and accordingly this is now the settled law of England, which proves that no domicile is required to constitute in Scotland the relation of husband and wife among foreigners, who have just arrived there before celebrating their marriage, and which, nevertheless, is adjudged to be good and effectual all the world over.(t)

It frequently happens that parties who have gone to Scotland to be married, are married again in England. The purpose of such second marriage is to satisfy all the friends and connections, as well as the parties themselves, that the holy estate of matrimony has been effectually and properly contracted. Another purpose is, that of giving

(r) Warrender v. Warrender, 2 Clark & Finn. 542, 550. In the year 1835 Lord Brougham introduced a bill (which did not pass) in the House of Lords, which had for its principal object to prevent a Scotch marriage from operating differently from an English marriage, by providing that no marriage contracted in Scotland shall be valid either in Scotland or England, unless both parties are Scotch by birth, or are domiciled

in Scotland, that is, usually reside there, or live in Scotland for three weeks next preceding the marriage. See Lord Brougham's Speeches, vol. iii. p. 440, 441, 459, 471; Hans. Parl. Deb. vol. xxx. 3d ser. pp. 13071313.

(s) See Fergusson's Rep. 222, 223. 464; post, sect. 8.

(1) Fergusson's Rep. 64, 65; see Harford v. Morris, 2 Hagg. Cons. R. 423.

ease and happiness to the minds of the parties themselves.(u) Assuming, however, the marriage in Scotland to have been valid, its re-celebration in England has no legal effect.

In Ex parte Hall, (x) the parties, both infants, eloped to Scotland, and married there without the consent of their fathers, according to the laws of Scotland. Previously to the re-celebration of the marriage in England, the fathers of the married couple mutually agreed to make settlements upon their two children. In consideration of an annuity agreed to be settled by the husband's father, the wife's father, being then solvent, entered into a bond for securing to his daughter an annuity, which was regularly paid until a short time before he became a bankrupt. On a petition presented by the husband to prove under the commission the value of the annuity, Lord Eldon declared that the settlement, after the marriage in Scotland, not being antenuptial, the re-celebration of the marriage in England could not support the bond as given for a valuable consideration; but, as it appeared that the husband's father had, in fact, agreed to make a [ *112 ] provision for his son at the time the bond was given, such agreement would sustain the bond, although, in fact, the latter provision was not made until after the bankruptcy.(y)

Evidence of the Marriages of English Parties in Scotland.]—Certificates are in many cases admitted as evidence, on the ground that they are made by persons in official situations intrusted with authority for the purpose. The certificate of a private individual, without any designation of character or office, is not admissible, on the broad principle that, in judiciis non creditur nisi juratis, therefore the certificate of a person before whom a Gretna Green marriage has been solemnized, is not admissible evidence in England of a marriage in Scotland.

In a suit of nullity of marriage, the libel pleaded a marriage between the parties at Gretna Green, in Scotland, and that the said parties then and there acknowledged each other as husband and wife respectively, in the presence of divers credible witnesses, who, together with the said parties, signed their names to a "certificate" of the said marriage, which was also pleaded and annexed to the libel, as the identical certificate. The court observed, that although the certificate, from the libel not having been objected to, remained as an exhibit in the cause, and claimed as such to be noticed by the court, yet the certificate was not any proof whatsoever of a marriage between the parties. Even the certificate of the king himself, under his sign manual, is, it is well known, no evidence of a mere fact,(z) much less a certificate of a private individual, without any designation of character or office.(a)

(u) 2 Bligh, N. S. 501.

(x) 1 Ves. & B. 112; 1 Rosc, 30.

(y) That a settlement made after mar. riage, for a valuable consideration, will be good, see Jones v. Marsh, For. 64; Ramsden v. Hylton, 2 Ves. sen. 304; Russell v. Hammond, Brown v. Jones, 1 Atk. 13, 190,

(2) See Omichund v. Barker, Willes, 550; sec flob. 213.

(a) Noakes v. Milward, 2 Addams, R. 386;

Owen v. Spence, Compton v. Bearcroft, cited 2 Addams, R. 392, 3. In the first case, the 4th article of the libel pleaded that a marriage beteen the defendant (then and still Rosa Milward, wife of L. J. Milward, but passing by the names and description of Rosa Haden, widow,) and the plaintiff, was had and solemnized, or rather prophaned, at Gretna, in the parish of Springfield, in the shire of Dumfries, and in that part of the

*Although such a certificate cannot be exhibited as a

proof of an alleged marriage, yet it may be offered to the [ *113 ] court as a constituent either wholly or in part of the marriage, and be used as a declaration, under the hands of the parties, of their mutual acknowledgment of each other as husband and wife. Such a certificate, if set up as a constituent of the marriage, must be pleaded as such, with an averment to be sustained by evidence, that such was its effect by the laws, immemorial usages, and customs of Scotland.(b)