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required the subsequent copula to give effect to the marriage, the, distinction would never have been heard of; and with reference to this distinction it was decided, that a mere declaration of consent per verba de presenti, without any subsequent copula or cohabitation, constituted a valid marriage.
In M Adam v. Walker,(c) Elizabeth Walker had cohabited with Mr. M‘Adam and borne him two daughters. In the presence of several of his servants, whom he called into the room for the purpose of witnessing the transaction, he desired Elizabeth Walker to stand up and give him her hand; and she having done so he said, “This is my lawful wife, and these my lawful children.” On the same day, *with
[ *94 ] out having been alone with Walker during the interval, he put a period to his existence. The House of Lords, on appeal, being of opinion that at the time of the above transaction Mr M Adam was of sound mind, and that insanity was not to be inferred from the act of suicide, held, that a marriage per verba de præsenti was constituted.
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, were held to constitute a marriage.(d)
Continued presumed cohabitation of a man and his servant, letters addressed to her under the appellation of his wife, and valuable presents given to her by him with some other circumstances, were found to constitute a marriage.(e)
The case of Dalrymple v. Dalrymple, (f) was a suit for the restitu
(c) 1 Dow. 148; 2 Hagg. Cons. R. 97, inscribed “sacred promises and engage.
(d) Ballantine v. Wellace, Halkerston's ments." In various letters produced, Mr. Digest of the Law of Scotland relating to D. calls Miss G. his wife, and describes Marriage, 433, pl. 2.
hiinself as her husband, speaks of her draw. (e) Inglis v. Robertson, Mor. p. 12689. ing on him for money, " for it is ber right;
c) 2 flagg. Cons. R. 54; Dodson, 1- calls her sister his sister, and alludes to our 66. The facts of the case are as follows: marriage." Mr. D. removed from Scotland 10 In April, 1804, J. W. H. Dalrymple, of the England about the 21st July, 1804. During age of 19, a cornet in the Dragoon Guards, his stay in Scotland, it was proved by serbeing in Edinburgh with his regiment, and vants that he was frequently admitted in the Johanna Gordon, a gentleman's daughter, evening, by order of Miss G., to her father's above 21, became attached to each other, and house, when he went up stairs to the dress. entered into a mutual promisc of marriage, ing-room adjoining the young ladies' bed. without date, which was indorsed a " sacred room; and on more than one occasion he promise," and left in her possession in these was seen coming away from the house early terms, “I do hereby promise to inarry you ju the morning. The terms of many of his as soon as it is in my power, and never leiters to Miss G., during his stay in Scot. marry another, J. D. I promise the same, land, apparently referred to a marital inter. J.G". On the 28th May, 1804, they signed course as taking place between them, and the following declaration, “ I hereby declare together with the other evidence, left no doubt Johanna Gordon is my lawful wife; and I on the mind of Ld. Stowell that the alleged hereby acknowledge J. W. H. Dalrymple as marriage was consummate
Mr. D. remy lawful husband.”. By another paper mained in England till 1805, when he sailed signed by both, and dated the 11th July, for Malta, and remained abroad, with the ex1804, Mr. D. reiterates the above declaration, ception of a month or two, till May, 1808. On and promises that he will acknowledge Miss bis departure he wrote to Miss G. renewing Gordon as his lawful wife the moment he has his injunctions of secresy as to the marriage : it in his power; and she promises “ that and a correspondence was subsequently kept nothing but the greatest necessity (necessity up till the autumn of 1806, when he directed which situation alone can justity) shall ever his friend and agent not to forward her let. force her to declare this marriage.” The ters to him, as he would not read them, and two last papers were inclosed in an envelope, lo intercept any letters she might write to
tion of conjugal rights, brought by the wife against the husband, in which the chief point in discussion was, whether by the law of Scotland a present declaration constitutes or evidences a marriage without
consummation. The marriage *was in Scotland, and [ *95 ]
one of the parties, an English gentleman, was not otherwise resident in Scotland than as quartered with his regiment in that country. Lord Stowell, after an examination of the decided cases in support and against the proposition, that a contract de presenti (either in the way of declaration or acknowledgment) constitutes or evidences a marriage, said, “ It strikes me, upon viewing these cases, that such of them as are decided in the affirmative, have been adjudged directly upon this principle, and that where they have been otherwise determined, it turns out that they have rested upon specialties, upon circumstances which take them out of the common principle, and produce a determination that they do not come within it. If they do not go directly to the extent of affirming the principle, they at least imply a recognition of it, a sort of tacit assent and submission to its authority, an acknowledgment of its being so deeply intrenched in the law, as not to be assailable in any general and direct mode of attack. The exceptions prove the rule to a certain degree. It was proved in all those cases where there was a judgment apparently contradictory, that in truth they were not real matrimonial contracts de præsenti. The effect was not attributed to them, because they were not consi
dered as such contracts. I cannot but think, that when ]
*case upon case came before the House of Lords, in which that principle was constantly brought before their eyes, they would have reprobated it as vicious if they had deemed it so, instead of resorting to circumstances to prove that the principle could not be applied to them. I may, without impropriety, add, that the lord chancellors of England have always, as I am credibly informed, in stating their understanding of Scotch law upon such subjects to the House of Lords, particularly Lord Thurlow, been anxious to hold out that law to be strictly conformable to the canonical principle, and have scrupulously guarded the expressions of the public judgments of the house against the possible imputation of admitting any contrary doctrine. Upon the whole view of the evidence applying to this point, looking first to the rule of the general matrimonial law of Europe, to the principle which I venture to assume, that such continues to be the rule of Scotch matrimonial law, where it is not shown that that law has actually resiled from it—to the opinions of eminent professors of that law-to the authority of text writers, and to the still higher authority of decided cases (even without calling in aid all those cases which apply a similar rule to a promise cum copulâ,) I think that,
General D, his father. On the death of the that Mr. D. was not amenable to the Scotch father in 1807, Miss G. asserted her marriage courts, proceeded in the Consistory court of rights, and furnished Mr. D.'s friend and London for restitution of conjugal rights, agent with copies of the above papers, which resting her claim on the above documents, on she denominated, according to the style of the defendant's letters, and on the evidence of the Scotch law, her “ marriage lines.” Soon the servants, as to a marital intercourse hav. after his return, in May, 1808, Mr. D. con- ing occurred. The plaintiff's letters to the trary to the strenuous advice of his friend, detendant were not put in by her, nor were married Miss L. M. in England according they called for on behalf of the defendant. to established forms. Miss G. then finding
being compelled to pronounce a judgment upon that point, I am bound to say, that I entertain as confident an opinion as it becomes me to do, that the rule of the law of Scotland remains unshaken; that the contract de presenti does not require consummation in order to become
very matrimony:" that it does, ipso facto, et ipso jure, constitute the relation of man and wife. There are learned and ingenious persons in that country, who appear to think this rule too lax, and who wish to bring it somewhat nearer to the rule which England has adopted; but on the best judgment which I can form upon the subject, it is an attempt against the general stream of the law, which seems to run in a direction totally different, and is not to be diverted from its course by efforts so applied. If it be fit that the law of Scotland should receive an alteration, of which that country itself is the best jadge, it is fit that it should receive that alteration in a different mode than that of mere interpretation."(g)
* Promise of Marriage. -A promise of marriage—the true sponsalia or the sponsalia de futuro of the canon law
[ *97 ] -may, while things remain entire, be resiled from at any time, though the party guilty of a breach of promise, without any adequate cause, may be liable to damages at the suit of the party who is prejudiced by the non-performance.(h) If, however, the promise be followed with copula, it is, with an exception to be noticed, converted into an actual marriage, in consequence of the presumption arising from the fact of a consent to present marriage having been then interposed. The marriage being complete in this way, necessarily invalidates any other with third parties.(i) In England no such marriages are allowed; but an opinion is expressed, that if an individual, residing in that country, gave a promise of marriage, and afterwards came to Scotland, and had carnal connection with the woman, that the matrimonial tie would be complete. For it will be observed that the matrimony does not rest on the promise, but on the present consent, which is presumed from it, and attends the subsequent connection.(k) It has been held, that in order to establish a marriage by a promise and subsequent copula, that the promise must be proved by the writ or oath of the pariy whose promise is founded on.(1) But where the whole language of the letters which had passed between the parties, without containing any direct promise, could lead to no other inference than that the parties contemplated honourable connection and a future marriage, and was followed by carnal intercourse; the House of Lords affirmed the judgment of the court below, and declared the marriage valid by the law of Scotland.(m)
(g) Dalrymple v. Dalrymple, 2 Hag. Cons. (k) 1 Stair's Inst. p. 28, n. by Brodie; R. 102-104; Dodson, 56, 57, affirmed by Ersk. Principles of Law of Scotland, 68, Deleg. 19th Jan. 1814.
(h) 1 Stair's Inst. p. 28, n. by Brodie. (l) Smith v. Grierson, Mor. 12391. See Hogg v. Gow, 27th May, 1812, Fac. (m) Honyman v. Campbell, 2 Dow & Coll
. The stat. 59 Geo. 3, c. 35, s. 1, enacts Clark, 265; 5 Wils. & Shaw, 92; 8 Shaw, that all actions of damages “on account of D. & B. 1039. It is said to be a question as breach of promise of marriage, seduction or yet undecided, whether promise with copula adultery," shall be forthwith remitted to the so constitutes a marriage ipso jure that it jury court without undergoing any discus- may be insisted on in prejudice of a second sion in the court of Session.
marriage; Bell's Principles of the Law of (1) Pennyccok v. Grinton, Mor, p. 12677; Scotland, p. 417, 3d ed. 1 Stair's Inst. p. 28, n. by Brodie.
*It was said that by the law of Scotland, if the wife of [ *98
the first private marriage chooses to lie by, and suffer another woman to be trepanned into a marriage with her husband, she may be barred presonali exceptione from asserting her own marriage. Certainly no such principle ever found its way into the law of England: no connivance would affect the validity of her own marriage: even an active concurrence on her part, in seducing an innocent woman into a fraudulent marriage with ber own busband, though it might possibly subject her to punishinent for a criminal conspiracy, would have no such effect. Lord Stowell thought that no such rule was ever admitted authoritatively as the law of Scotland ; and that the doctrine of a medium impedimentum was this, that on the factum of a marriage, questioned upon the ground of the want of a serious purpose, and mutual understanding between the parties, or indeed on any other ground ; it is a most important circumstance in opposition to the real existence of such serious purpose and understanding, or of the existence of a marriage, that the wife did not assert her rights when called upon so to do, but suffered them to be transferred to another woman, without any reclamation on her part.(n)
A man and woman had sexual intercourse together, and after this had continued some time, the man granted and delivered a letter lo the woman, which if it did not contain a de præsenti matrimonial consent, at least contained a promise of marriage, and was so understood by the woman; this was followed by the renewal of sexual intercourse; the case was in many respects affected with specialties. It was held that there were no circumstances to exclude the rule that marriage is contracted by a promise of marriage copula sequente, and that the parties were accordingly married. It was observed, that after marriage has been contracted by previous and subsequent copula, it was not in the power of the woman to divorce the marriage relation by releasing the man from his promise, even had she agreed 10 do so.(0)
It is not necessary to prove the contract of marriage per verba de præsenti, it is sufficient if the facts of the case are such as to lead 10 satisfactory evidence of such a contract having taken place. Upon this principle the acknowledgment of the parties, their conduct towards each other, and the repute consequent upon it, may be sufficient to prove a Scotch marriage.(a) A promise of marriage cum subsequenti copula is sufficient; and it seems that the release of the promise of marriage intervening between the promise and a subsequent copula would revive the promise and repeal ihe renunciation.(h)
[ *99 ]
*4. OF MARRIAGE BY HABIT AND REPUTE.
A marriage may also be constituted in Scotland by a train of cohabitation as married persons, and being publicly held and reputed
(n) Dalrymple v. Dalrymple, 2 Hagg. (b) Ibid. See White v. Hephurn, Mor. Cons. R. 129, 130; Dodson, 88, 89.
Dict. 12. 666; MDouall, Fergusson's Cons. (0) Craigie v. Hoggan, 16 Dunl. B. & M. Law, (1829) 167–178; Shillingbeer v. 584.
M*Intosh, 7 Shaw & D. 533 ; M Kinnon s. (a) Hoggan v. Craigie, 1 Mac. & Rob. Sandys, Miles v. Sim, 8 Shaw & D. 89.
15 Dunl. B. & M. 379; 16 Id. 584.
to be such, which from the acknowledgment implied in these circumstances establishes a presumption, that an actual marriage has intervened; a presumption, like all others, capable of being refuted by contrary evidence. Cohabitation as man and wife does not in England constitute a marriage, but as it may create a pre. sumption of a previous celebration, it is a general rule of the law of England, that in all civil personal actions, except that for criminal conversation, general reputation and cohabitation are sufficient evidence of marriage.(p) In judging from the nature of a connection, whether illicit or not, the question must in some degree be affected by the mode in which it originated. The prima facie presumption is in favour of the legality of the connection, but if it clearly appears to have been at first illicit, the presumption is that it has so continued.(9) A distinction therefore has heen made between cases where the parties have been reputedly married from their first connection, and those in which it has commenced illicitly. In the first, the reputed cohabitation is sufficient; in the last, the presumption is that the parties continue to cohabit illicitly, and it is necessary to prove in some other way that they really regarded each other as man and wife.(r) For, as observed by Lord Eldon, it is one thing to say, that being in habit and repute man and wife, should be evidence of a marriage, and another thing to say, that it should be held as constituting, or admitied as incontrovertible proof of, a marriage, even though it should be shown that there was in fact originally no marriage.(8) With respect to the constitution of marriage by cohabitation, with habit and repute, it is to be observed that repuie alone cannot make or prove a marriage, but there must first be cohabitation as husband and wife, such as belongs to the state of matrimony, which is the basis of the proof of marriage, the reputation following from it being but an adjunct to prove the characier of the cohabitation.(0)
A man may occasionally allow a woman to bear his name, or even to have the appearance of being his wife, without her being so.(1) Where there has been no regular marriage, *cohabitation must be of such a character as to lead to the conclusion [*100] that the parties cohabited as man and wife. A man's allowing a woman to take the station, and be called his wife, is a constant and continued declaration of consent. And after this has gone on for a considerable time, is sufficient proof that they were married. The evidence of consent was considered irresistible in a case where the woman was respectable. The parties had courted for two years on the perfect understanding that they were to be man and wife. She was so hurt at not being regularly married, that she refused to have any further connection with him; and then, in the presence of persons respectable in their station of life, they were bedded, and the witnesses called on to declare them man and wife. The inference in favour of the marriage was strongly corroborated by the man's
(p) Stark. on Ev. 939, 1st ed.
Macgregor, 1 Dow & Clark, 208; 2 Bligh, (9) Cunningham v. Cunningham, 2 Dow, N. S. 480; 3 Wils. & Shaw, 85. 501, 502.
(8) 1 Dow, 134. (r) Sommerville v. Halcro, Mor. p. 12635; (0) Lowrie, 2 Dunl. B. & M. N. S. 953. Swinton v. Kuilles, Mor. p. 12637; Inglis (1) Thomas v. Gordon, 7 Shaw & Dunl. V. Robertson, Mor. p. 12689; Macneil v. 872; M Innes v. More, Mor. 12683.