the ancient law of Europe before the Tridental decree, deemed binding and effectual according to the maxim, factum valet quod fieri non debet. It is material to observe that in this respect the Scotch consensual marriage differs from the consensual marriage known to the ancient English law. The English consensual marriage, as we have seen, was good only for certain purposes. The Scotch is good for all.

6. Scotch consensual marriages are either per verba de præsenti, or by promise de futuro cum copula.

7. The most remarkable example of the first method is furnished by the justly celebrated case of Dalrymple the wife against Dalrymple the husband. In April 1804, John Dalrymple, then a cornet of dragoons, afterwards Earl of Stair, went with his regiment to Edinburgh, and there became acquainted with Miss Gordon. The result of a short intercourse was a written declaration signed by both parties in these emphatic terms: "I hereby declare that Johanna Gor"don is my lawful wife; and I hereby acknowledge that John "Dalrymple is my lawful husband." Another paper reiterated the declaration of marriage by the cornet, with a promise "that "he would acknowledge her as his lawful wife the moment he "had it in his power," to which she likewise in the same paper annexed a co-relative undertaking on her part, "that nothing "but the greatest necessity, which her situation alone could justify, should ever force her to divulge this marriage.” Here then was evidence of a good Scotch marriage, irregular it is true, but valid and unimpeachable, though having no other foundation than the mere interchange of present consent,-without clerical intervention, without ceremony, without witnesses, without even the knowledge of any third party, and, above all, without copula,- the Scotch law declaring conformably to the old canon law, Consensus, non concubitus, facit matrimonium. At the end of three months from his first arrival in Scotland, the young officer was sent abroad, and continued on the continent for three or four years; at the end of which period an abatement of his passion for Miss Gordon began to betray itself.

He returned to this country in 1808, and soon afterwards married Miss Laura Manners according to the rites and ceremonies of the Church of England. But now the neglected Miss Gordon determined to assert her rights, and took steps for the purpose in the Consistory Court of London, having

jurisdiction over the defendant. The cause being thus entertained in an English Court, Sir Wm. Scott, the presiding judge, held that it must be decided according to the principles of English law. But then he observed, with characteristic refinement, that the only principle applicable to such a case by the law of England was, that the validity of Miss Gordon's marriage rights must be tried by reference to the law of the country where they had their origin.

Having furnished this principle the law of England withdrew from the scene, and left the legal question to the exclusive determination of the law of Scotland. The ground being thus cleared, he said, "The main inquiry was, whether by the "law of Scotland a present declaration constituted or evi"denced a marriage without a copula." In order to decide this point, he not only examined the decisions and the text writers of Scotland, but had the law of that country proved before him by the sworn opinions of divers Scottish lawyers; the result of which elaborate investigation was, that in 1811 he solemnly sustained the validity of the marriage. The neces sary effect of this sentence was, that the English regular marriage proved a nullity, and the happiness of an innocent lady, nearly related to a noble family of the highest rank, was ruined beyond repair. 2 Hagg. Con. 54.

8. Another instance of marriage by declaration of present consent without copula, was that of McAdam v. Walker, decided first by the Scotch Court, and ultimately by the House of Lords in 1813. The facts were short :-An Ayrshire gentleman of great estate having taken into keeping a young village girl, had two children by her. On a certain day, in the presence of his servants, whom he had summoned into the room for the purpose of witnessing the transaction, he desired her to stand up and give him her hand, and she having done so, he said, "This is my lawful wife, and these are my lawful children." This done, he forthwith walked out into his grounds, and wandered about for some hours. On his return, the unfortunate gentleman committed suicide. From his previous character, as well as from the suicide, many supposed him to have been insane. The declaration of marriage, too, made by him so immediately before the act of self-destruction, and at a time when he apparently had that act in contemplation, seems scarcely reconcilable with the consortium vitæ essential

to matrimony. Nevertheless, there was evidence of present and mutual consent; and insanity, though alleged, was not established; so that the court in Scotland came, but with much difficulty, to the conclusion that enough appeared to constitute a marriage per verba de presenti. And this decision was affirmed under the advice of Lord Chancellor Eldon and Lord Redesdale. Now, although the woman when she stood up and gave Mr. McAdam her hand may be supposed to have intended marriage, it is by no means so clear that the man himself had the like purpose; on the contrary, one would say that his scheme was not so much to make her his wife as to leave her his widow and legitimate his children.*

9. The husband may retain in his own power the evidence by which the marriage is to be proved. He may withhold that evidence entirely, or he may prevent its disclosure to the world till after he has himself departed from the scene, as in Hamilton v. Hamilton, where the man wrote a letter in these words:" My dearest Mary,-I hereby solemnly declare "that you are my lawful wife, though for particular reasons "I wish our marriage to be kept private for the present.— "I am your affectionate husband, A. HAMILTON." This letter was addressed by the writer on the back "Mrs. Hamilton." It was not however delivered to her, nor does it clearly appear that she even knew of it at the time; but it was deposited with a friend of Hamilton's with an injunction that he should keep the document and shew it to no one; and there was also a significant instruction, that in the event of the depositary dying, care should be taken that the document should afterwards come back into the hands of Hamilton only. The friend on receiving the document from Hamilton, sealed it up in an envelope, on which he inscribed these words: "To be delivered into the hands of A. Hamilton, Esq., unopened." Some time after Hamilton died. His friend the depositary attended the funeral, and at the opening of his testamentary papers produced the above document, on the strength of which the woman Mary," to whom it was addressed, forthwith claimed the character and asserted the rights of widow to the deceased. The Court in Scotland held that her claim was just, and this decision was affirmed upon appeal by the House of Peers.†

* 1 Dow. 148.

† 9 Cla. & F. 327.

Bowing to the dictates of Scotch law, we yet inay express regret that courts of justice should be made to minister to the selfishness of a man who to the last moment of his existence retains the power of pronouncing his wife a strumpet, and who postpones the recognition of her virtue until his unworthy pride has escaped the humiliation of acknowledging her rights.*

10. If the declaration, though expressing a present consent, is not made bonâ fide, but is intended for a different purpose, the relation of husband and wife will not be constituted. The court must be satisfied that the consent is a consent really to intermarry, and not to do something else under pretence of matrimony. Thus in Stewart v. Menzies, which came before the Lords upon appeal from Scotland in the year 1841, it appeared that the defendant, a man of some figure in Perthshire, had made proposals to and was accepted by a young lady of ancient lineage in Argyllshire. For some unexplained reason he became desirous to break off his engagement, and to effect this purpose devised a scheme for the execution of which the law of Scotland gave facilities. In a word, he set up a pretended consensual marriage with one of his servants, a dairymaid, as an excuse for the non-performance of his promise. So far his plan succeeded. The young lady released him. But soon afterwards the dairymaid instituted a suit against him, to have the alleged consensual marriage with herself declared valid. This proceeding he resisted on the ground that what had taken place between them was not a marriage, but a sham, concerted to deceive a third party. The Scotch Court held that this was the case, and pronounced judgment against the dairymaid; and, what is more, the House of Lords confirmed this decision.

These examples sufficiently illustrate the effect of declarations de presenti, where everything turns on the reciprocal interchange of consent, entirely independent of concubitus.

11. Where again the declaratory words are not of present but of future import,- where they amount to no more than a promise of marriage,—in such a case if a copula ensue the

* See a further illustration, Hoggan v. Hoggan, decided by the House of Lords in August 1839.

с

relation of husband and wife will be constituted. This will appear from a single case. There are but few on the subject; the point having apparently given rise to but little litigation; for it is evidently a less strong thing to say, that a solemn engagement, relied upon and acted upon, shall constitute marriage, than that the mere ejaculation of so many words, without more, shall make one.

The leading case in the Scotch reports of a promise de futuro cum copula is that of Pennycook v. Grinton, decided about a century ago. The facts are thus stated by my Lord Drummuir, a learned Scotch judge, and a celebrated reporter besides : "Upon receiving," says his Lordship, "repeated

promises of marriage from John Grinton, Elizabeth Penny"cook permitted him to have knowledge of her body oftener "than once, by consequence whereof she bare a son, which "he acknowledged to be his, and presented to the minister "of the parish to be baptized." It was held that these circumstances established an indisputable marriage.*

12. There may be a marriage in Scotland by what is called. "habit and repute," and this on a principle eminently social; for if a man will introduce a woman to the world as his wife, it seems just that he should not be permitted afterwards to discard her, and declare her to have been all the time his mistress.

13. Thus, in Elder v. Elder, an exciseman had for twenty-six years cohabited with a woman in such a manner as to create a belief among the great majority of his friends that he was married to her. He invariably addressed her as his wife; went with her constantly to church; regularly slept with her; sat with her at the same table; and uniformly treated her in presence of others with all the decent proprieties of the married state. The exciseman, indeed, when sued by this woman for a judicial declaration of the marriage, attempted to overcome the inference arising from the circumstances of the case by the testimony of several witnesses, who stated their belief that he was a single man, because in official returns he had always described himself as such to the commissioners of excise. The court, however, held that there was "habit and repute" sufficient to constitute, or evidence, a marriage.

*Morr. 12,677.