Dairym, le v. Ecclesiastical courts. Marriage 1 er senti. Thomas Little was then called, who deposed as follows:-" I live at Spring Field, near Gretna engagement; and one party, without the consent of the other, might contract a valid marriage, regularly or irregularly, with another person; but if the parties who had exchanged the promise had carnal intercourse with each other, the effect of that carnal intercourse was to interpose a presumption of present consent at the time of the intercourse, to convert the engagement into an irregular marriage, and to produce all the consequences attributable to that species of matrimonial connexion. Such was the state of the canon law,— the known basis of the matrimonial law of Europe. "At the Reformation, this country disclaimed the doctrine of a sacrament in marriage, but retained those rules of the canon law which had their foundation in the natural and civil contract of marriage. "The ecclesiastical courts, therefore, which had the cognisance of matrimonial causes, enforce those rules; and, among others, that rule which held an irregular marriage, constituted per verba de præsenti, not followed by any consummation shown, valid to the full extent of voiding a subsequent regular marriage contracted with another person. Bunting's Case, 4 Co. 29. "In Collins & Jesson's Case, 3 Ann., it was said by Holt, verba de præ- C. J., and agreed to by the whole Bench, that,' If a contract be per verba de præsenti, it amounts to an actual marriage, which the very parties themselves cannot dissolve, by release or other mutual agreement; for it is as much a marriage in the sight of God as if it had been in facie ecclesiæ. But a contract per verba de futuro, which does not intimate an actual marriage, but refers to a future act, is releaseable.' 2 Salk. 437, Mod. 155. Hall, and am an innkeeper. I am in the habit of performing the ceremony of marriage at Gretna In Wigmore's Case, Salk. 438, Holt, C. J., said, 'A Dalrymple v. Dalrymple. contract per verba de præsenti is a marriage: so is a contract per verba de futuro if the contract be executed, and he take her, 'tis a marriage, and they cannot punish for fornication:" "In the ecclesiastical court the stream ran uniformly in that course. Lord Fitzmaurice's Case, Cor. Deleg. 1732. Things continued upon this footing till the marriage act, Marriage act, 26 Geo. 2, c. 33, described by Mr. Justice Blackstone*, ' An Innovation on our Laws and Constitution;' swept away the whole subject of irregular marriages, by establishing the necessity of resorting to a public and regular form, without which the relation of husband and wife could not be contracted. 22 G. 2, c. 33. land. "With respect to the matrimonial law of Scotland since Matrimonial the Reformation, it is highly probable, and we have the law of Scotauthority of Craig + for asserting, that the Canon Law is its basis there as it is every where else in Europe; and Cay, in his deposition, says, 6 That the canon law in these matters is a part of the law of the land; that the courts and lawyers reverence the decretals and other books of the more ancient canon law:' and I observe, that, in the depositions of most of the learned witnesses, and in all the factums that I have seen upon this subject, they are referred to as authorities. "Several regulations, both ecclesiastical and civil, canons and statutes, have prescribed modes of celebrating marriaget. Some of these appear to have been made in times of great ferment, during the conflict between the episcopal and presbyterian parties; and are, therefore, I presume, of transitory * Lib. 1, c. 15, s. 3. + Lib. 2, dieg. 18, sect. 17. Cathcart. Dalrymple v. Green. I recollect the prisoner there on the 23rd of May last. There was a woman there also and questionable authority. Mr. Cathcart infers, that the whole of the Scotch statutes hold solemnisation by a clergyMatrimonial man, or (as he expresses it), some one assuming the functions of a clergyman, as necessary. law of Scotland. Opinion of Lord Braxfield. Sir Ilay "It rather appears difficult to understand this consistently with the fact, that other marriages have always been held legal and valid. "What the form of solemnisation by a clergyman is, I have not been accurately informed. Prescribed ritual forms are not, I believe, admitted by the Church of Scotland for any office whatever. Whether the clergyman merely receives the declaration as a witness, or pronounces the parties by virtue of his spiritual authority to be man and wife, as in our form, does not distinctly appear. "Mr. Gillies says, that, 'to make a marriage valid, it is not necessary that it should be celebrated in facie ecclesiæ; but, rebus integris, it can only be constituted by a consent adhibited in the presence of a clergyman, or in some mode equivalent to a celebration.' "So, Lord Braxfield, in a loose note, is made to say, 'private consent is not the consent the law books look to; it must be before a priest or something equivalent.' "Now, what are these equivalents, and how to be provided? are they to be carved out by the private fancy and judgment of the individuals? If so, they can hardly be deemed the regular forms, and yet appear to stand on a footing of equal authority. "Sir Ilay Campbell states*, ' that marriages irregularly * Lib. Reg. A. 1780, f. 552. Margaret Moffatt she called herself, I believe. performed, without the intervention of a clergyman, are Dalrymple v. Dalrymple. censurable, and formerly the parties were liable to be fined or rebuked in the face of the Church; but this for a long Matrimonial time has not been practised.' "The regulations, therefore, whatever they may be, are not penally enforced; and it does not appear that they are enforced by any sense of reputation or of obligation imposed by general practice. "The advocates who describe the modes of marriage by the terms 'regular and irregular,' seem, as far as I can collect, to attribute no very distinctive preference to the one over the other. But taking it that the distinction was much stronger than I am enabled by the present evidence to suppose, the question still remains to be examined, how far actual consummation is required by the law of Scotland in marriages which are to be deemed irregular. "The canon law, as I before have described it to be, is the basis of the marriage law of Scotland, as it is of the marriage law of all Europe. "In all instances where it is not proved that the law of Scotland has resiled from it, the fair presumption is, that it continues the same. "It becomes material, therefore, to consider what is the ancient general law upon this subject. "By the ancient general law of Europe, a contract per verba de præsenti, or a promise per verba de futuro cum copula, constituted a valid marriage without the intervention of a priest till the time of the council of Trent. The decrees of which council were never received as of authority in Scotland. law of Scotland. The Canon Ancient gene ral law of Europe. Dalrym le v. Opinion of Mr. Clark &c., contra. Text authorities of Scotland. Cases decided in the Scotch tribunals. Promise cum copula. you take Margaret Moffatt?' Nothing more was done; they remained all night at my inn, and Mr. Erskine, Mr. Cragie, Mr. Hamilton, Mr. Hume, and Mr. Ramsay, are all clear and decided in their opinions, that a declaration per verba de præsenti, without a copula, DOES, by the law of Scotland, constitute a valid marriage. I must add to these the opinions of the learned persons examined in Beamish v. Beamish, in 1788, viz.— "Mr. John Millar, Professor of Law at Glasgow; Mr. John Orr; Mr. Hume; Mr. Erskine; Mr. Robertson. "But Mr. Clark, Mr. Gillies, and Mr. Cathcart, who are examined in the present case on the part of Mr. Dalrymple, are equally clear in their opinions on the other side of the question. "Mr. Cay inclines to think a copula necessary, although well aware that a different opinion prevails among lawyers on this point. "I now come to the text authorities of Scotland: "1. Craig, not of great authority either one way or the other; 2. Lord Stair; 3. Sir George M'Kenzie, Lord Advocate under Charles 2 and James 2; 4. Mr. Erskine, the writer of Institutional Law; 5. Mr. Hutcheson. "It is easy to strike the balance on this class of authorities; they are all in one scale, a very ponderous mass on one side and totally unresisted on the other. "I come, 3rd, to the last and highest class of authorities, that of cases decided in the Scotch tribunals. "1. Cochrane v. Edmonstone, before the Court of Session, in 1804; 2. Inglis v. Robertson, 1804; 3. Ritchie v. Wallace, 1792; 4. Mesdam v. Walker, 13 Nov. 1806. "I might here call in aid the numerous cases where promise cum copula has been admitted to constitute a mar |