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the ceremony, and from the conduct of the parties subsequently, that no real consent to marry was given.(?)
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
[ *108 ] evade the law of England.
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 delegales, 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; said, that Lord Mansfield failed altogether in 1 Dow & Clark, 208; 3 Wils. & Shaw, 85. the proposition that British subjects should
In this case two questions were raised as not be allowed to contravene the statute law to the admissibility of evidence :-/st. Whe. of the land as to marriages, by withdrawing ther, according to the law of Scotland, en. themselves from England. tries made in a book kept by a minister of (0) Crompton v. Benrcroft, Arches, 16th the church of Scotland, in the manner above of February, 1767 ; Delegates, 4th of Februdescribed, are adrnissible in evidence to ary, 1769. The facts.of this case appear by prove a marriage; and how marriages are the libel, which pleaded the marriage aci, to be proved, supposing the minister and and the minority of the lady, and want of witnesses to be dead or incompetent ? consent, and that “on the 13th of March,
2d. Whether the admissions of a woman 1762, a marriage was had and performed in who may be claiined as a wife by two per. the dwelling-house of Thomas Huddlestein, sons, onder such alleged ceremonies of mar. cook and contectioner, at Dumfries in North riage and circumstances as above stated, is Britain, by Richard Jameson, the minister admissible in evidence as proof of the first (or pretending himself to be the minister) of marriage ?
the English chapel ut Dumfries, who then Another question was, whether a marriage lodged in the house of Thomas Huddlestein, celebrated by a minister of the church of in whose lodging.room the marriage was so Scotland, upon such certificate as above performed between Edward Bearcroft of mentioned, without actual publication of Droitwitch, in Worcestershire, and Maria banns, is to be deemned, according to the Catherine Compton, of Hartpury, in Glouces. practice, a regular marriage in Scotland. tershire, without publication of banns, and
(m) 26 Gco. 2, c. 33, s. 18; 4 Geo. 4, c. withoul any license being had and obtained 76, s. 33; 6 & 7 Will. 4, c. 85, s. 45. for the solemnization of the said marriage
(R) Lord Mansfield, 2 Burr. 1079. In from any person having authority lo grant Phillips v. Hunler, 2 H. Bl. 412, Eyre, C. J., the same; and that neither Edward Bear.. croft nor Maria Catherine Compton cvar marriages." 2 Hagg. Cons. R. 444, 445, n. was resident in any part of North Britain. It appears from the imperfect account which But she the said Maria Catherine Coinpton, remains of the argument in this case, that in the beginning of March, 1761, went from soon after the marriage act many instances the house of John Dalby, her testamentary had occurred of persons going into Scotland guardian, in Berkshire, 10 pay a visit to her to evade the restrictions of that act. The brother, Sir William Compton, at Henslip, cases of Bedford v. Varney, 1762, before in the county of Worcester, and he dying, Lord Northington, and Brook v. Olirer, at she left that place and went to her mother at the Rolls, before Sir Thomas Clarke, 1759, Hartpury, in the county of Gloucester, and were mentioned, being cases of bequests de from thence went, unknown to John Dalby, pendent on the validity of such marriage, in and without his consent, and without the which it had been contended, that the mar. knowledge of her other testamentary guard. riage was not valid; but the objection was ians, with Edward Bcarcroll, on or about overruled, and the points in those causes adthe 6th of March, 1762, to Dunfries to be judged accordingly. It was said also, that married, and that they were married there Lord Northingington must have been well as aforesaid merely to evade the laws of this acquainted with the spirit and intention of realın, and returned into England on the that act, as he had been much concerned in same day, and proceeded to the house of procuring it. The notion of impeaching Edward Bearcroft at Droitwitch, and were these marriages on the ground of evasion. never in North Britain but during the time stated in the libel of Compton v. Bearcroft, is of the journey and for the purpose of the supposed 10 have proceeded from the obser. marriage. The certificate of the marriage vation of Lord Mansfield in Robinson v. was also pleaded in these words : 'I certify Blund, 2 Burr. 1079 ; 1 W. Bl. 234; as to that I murricd, after the manner of the the exception that might be admitted on that Church of England, Edward Buarcroft and principle, as suggested by Huber de Con. Maria Catherine Compton. (Signed) J. Jame- Alictu Legum, p. 538; see 2 Hagg. Cons. R. kon, minister of the English chapel at Dum. 376, 377. fries. The prayer of the libel was, that the (p) Per Sir Geo. Hay, 2 Hag. Con. R. 430. marriage might be declared null and void, (9) Sir W. Wynne, 2 Hagg. Cons. R. 443, pursuant to the said act for clandestine 444.
* 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 Scotlund, 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 micry English subjects, have an exemption from that restraint in the act."(p) In another case it is said, ihat 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. (9)
It was observed by Lord Brougham, that the judges both of the consistorial and common law couris have held, that a Scotch mar. riage 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 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 eflectually 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.(ro)
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 solennity 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 of going to another civilized country to constitute the [ *111 ] 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 matier 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 ihemselves, that the holy estate of matrimony has been effectually and properly contracted. Another purpose is, that of giving
(1) Warrender v. Warrender, 2 Clark & in Scotland, that is, usually reside there, or Finn. 542, 550. In die year 1835 Lord live in Scotland for three weeks next preced. Brougham introduced a bill (which did noting the marriage. See Lord Brougham's pass) in the House of Lords, which had for Speeches, vol. iii. p. 410, 441, 459, 471; its principal object to prevent a Scotch mar- Hans. Parl. Deb. vol. xxx. 3d ser. pp. 1307– riage from operating differently from an 1313. English marriage, by providing that no mar. (8) Sec Fergusson's Rep. 222, 223. 464; riage contracted in Scotland shall be valid post, sect. 8. either in Scotland or England, unless both (1) Fergusson's Rep. 64, 65; see Harford parties are Scotch by birth, or are domiciled V. Morris, 2 Hagg. Cons. R. 423.
ease and happiness to the minds of the parties themselves.(1) Assuming, however, the marriage in Scotland to have been valid, its re-celebration in England has no legal effect.
In Ex parle Hull,(r) 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 [ *112 ]
that *the husband's father had, in fact, agreed to make a
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 Greina Green, in Scotland, and that the said parties then and there acknowledge, each other as husband and wife respeclively, 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.
Owen v. Spence, Complon v. Bearcroft, cited () 1 Ves. & B. 112; 1 Rosc, 30.
2 Addams, R. 392, 3. In the first case, the (y) That a settlement made after mar. 4th article of the libel pleaded that a mar. riage, for a valuable consideration, will be riage beteen the defendant (then and still good, sce Jones v. Marsh, For. 64; Rumsden Rosa Milward, wife of L. J. Milward, but v. Hylton, 2 Ves. sen. 304; Russell v. Ham. passing by the names and description of mond, Broun v. Jones, 1 Alk. 13, 190. Rosa Haden, widow,) and the plaintiff, was
(7) See Omichund v. Barker, Willes, 550; had and solemnized, or rather prophaned, at sec flob. 213.
Gretna, in the parish of Springfield, in the (a) Noakes v. Milward, 2 Addams, R. 386; shire of Dumfrics, and in that part of the united kingdom called Scotland, on or about customs aforesaid. The second article ; that the 24th day of October, 1822, and that they in the months of August, September, &c. the said parties then and there acknowledged all, some, or one of thein, G. C. Montague, each other as husband and wife respectively, then a bachelor, aged twenty.seven years, in the presence of divers credible witnesses, and free from all matrimonial contracts and who, together with the said parties, signed engagements, paid his addresses to M. G. their names to a “certificate of the said mar. Wilson, then a spinster, aged seventeen riage.' And it then pleaded, in the 51h years, and free from all matrimonial conarticle, a certain paper writing, or exhibit, tracts and engagements; that they the said annexed to the libel, to be and contain that parties mutually agreeing to become husidentical certificate. The exhibit in question band and wife, went to Scotland for the purwas as follows :-"Kingdom of Scotland, pose of intermarrying there; and on 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.(6)
county of Dumfries, parish of Gretna: 29th day of December, 1803, in the presence " These are to certify, to all whom it may of divers credible witnesses, at Gretna Green,
concern, that John Nokes, from the parish in the kingdom of Scotland, mutually ac" of Chatham, in the county of Kent, and knowledged each other to be husband and "Rosa Haden, from the parish of St. Maries, wife, and were validly joined together in " in the county of Nottingham, being both matrimony by Joseph Paisley, who upon “here now present, and having declared to that occasion read in the presence of the " me that they are single persons, but have said G. C. Montague and the said M. G. * now been married conformable to the laws Montague, formerly Wilson, the office for "of the Church of England, and agreeable matrimony contained in the liturgy of the "to the Kirk of Scotland. As witness our church of England, as by law established ; " hands at Springfield, this 4th day of Octo- and that the marriage so had and celebrated "ber, 1822. Witness me, David Lang; was and is a valid marriage according to the "John Nokes, Rosa Haden. Wilness, Jane laws, immemorial usages and, customs of "Rae, John Ainslie."
Scotland. The fifth article of the libel plead(6) Montague v. Montague, 2 Addams R. ed, that the parties consummated their said 375, which was a suit of separation a mensa marriage, and lived and cohabited together et thoro by reason of adultery. The first in Scotland (at Edinburgh) as husband and article of the libel, as reformed, pleaded that wife, till the end of March, 1804, during by the laws, immemorial usages and customs which time they constantly owned and acof Scotland ; a valid marriage between a knowledged each other as husband and wife, man and a woman may, by their consent and were commonly accounted, reputed, and per verba de presenti, be contracted by them taken to be such by and amongst their in that kingdom, such man and woman friends, acquaintance, neighbours, and others. being respectively above the age of pupil. And the eighth article pleaded, that at the lage, which by the law of Scotland is the age time of the marriage of the parties pleaded of fourteen years in males, and twelve ycars as above, he the said G. C. Montague obtainin females, without any banns published or ed a paper-writing purporting to be a certilicense had, and without the intervention of ficate of his said marriage, from Joseph any religious ceremony; and that the ac. Paisley, the person who celebrated the same knowledgment by the parties of each other at Gretna Green aforesaid; which said as husband and wife, and their public coha. paper-writing he, the said J. C. Montugue bitation as such, is by the laws, usages, and preserved and hath frequently shown to customs aforesaid, presumptive proof that divers persons of credit and reputation, upon such parties are validly married; and the one occasion as lately as in the month of same is taken to be conclusive evidence May, 1823; and that the said paper-writing of their marriage, unless it be distinctly was still in the custody, power or possession proved that they did not intend to contract of the said G. C. Montague. It was objected marriage; and that no consent of parents or that the eighth article pleaded sub modo a guardians is necessary to the validity of a certificate inadmissible in evidence; and marriage between persons both above the Nokes v. Milward, 2 Addams R. 386, anie, age of pupillage, by the laws, usages and 112, was ciled, in which a similar certificate