a religious, was something too dreadful to be thought of in christian community. How these difficulties were digested by the reverend prelates is not recorded. But we learn that the government measure enjoyed their cordial support in the upper house of parliament. 20. It is curious to observe that while, as we have seen, the statute abstains from expressly nullifying consensual marriages, it declares all marriages celebrated irregularly, though before a clergyman, good for nothing. Yet such marriages were always of higher efficacy than marriages merely consensual. The act having thus dealt with consensual marriages and with clandestine marriages, proceeds next to take cognizance of regular marriages, that is to say, inarriages solemnized in facie ecclesiæ. Now here it is probable that the intention of the original framers, of the measure was to declare that no marriage should thenceforth be valid unless solemnized by a person in holy orders, and in some parish church or public chapel, according to the rubric. But we shall search the act in vain for words of this general import, although practically, no doubt, such has been the construction. 21. The statute rendered two things absolutely indispensable which were before only recommended; namely, in the absence of licence, the proclamation of banns; and in the case of minors, the consent of guardians. Borrowing a suggestion from the Tridentine decree, the statute further enacted that there should be two or more witnesses present at the ceremony, besides the officiating minister; and an entry of the proceedings was to be made in a register appointed for the purpose, to be signed by the parties, the clergyman, and the witnesses. 22. It is the fashion to speak of Lord Hardwicke's Act as an advance in civilization; and Scotland is charged with barbarism for having resisted every attempt to introduce it in that kingdom. Yet was this measure when it passed most unpopular in England. Not only the people at large, but some of the greatest and wisest of our public men, were strenuously opposed to it, and afterwards lamented its passing as a national calamity. Its practical working is said to have made good all that its opponents had predicted. The discontent is represented as having been nearly universal. 23. About a quarter of a century after Lord Hardwicke's enactment, Mr. Fox, in June 1781, brought in a bill to repeal it. On that occasion,* delivering one of his greatest orations, he described the new marriage law as "tyrannical, unjustifiable, oppressive, and ridiculous." He was followed by Sir George Yonge, who, painting in strong colours the mischief of all restrictions upon matrimony, denounced the measure of Lord Hardwicke after the experience had of it as a "very disgrace"ful and pernicious law, not only impolitic but wicked." 24. Mr. Fox's bill was read a second time by a majority of 90 to 27. It was read a third time, passed, and carried in triumph to the House of Lords, where, however, it was rejected on the second reading; since which time the people of England, more obedient than the Scotch, have come, under the tuition of the legislature, to look upon clandestine and consensual marriages as things not only illegal here, but of very questionable morality in those countries where they are still allowed. So that what Englishmen viewed with abhorrence 75 years ago, what Mr. Fox and Sir George Yonge pronounced "tyrannical, unjustifiable, oppressive, ridiculous, dis"graceful, pernicious, impolitic, and wicked,"-the Scotch are now held up as wilfully blind and obstinate for not adopting, at the recommendation of those very neighbours who so recently entertained and so furiously expressed such opposite opinions. It is no doubt true that Mr. Burke disagreed with Mr. Fox and resisted his attempt to repeal the Hardwicke Act; but the question is, not whether Mr. Fox was right or Mr. Burke was right but, whether it is reasonable in the English now to blame the Scotch for cherishing institutions which the English themselves adhered to so long, and surrendered so reluctantly. 25. The provisions of Lord Hardwicke's Act (in many instances productive of great hardship and injustice) continued to be law till the year 1823, when, by the 4th Geo. 4., c. 76., the penalty of nullity was confined to the case of persons wilfully consenting to the celebration of marriage before publication of banns, or before obtaining a license, or by one not in holy orders, or elsewhere than in a church or licensed chapel. The want of consent too, by guardians, in the case of minors, did not, under this Act of Geo. 4., invalidate the mar *Parl. Hist., vol. 22, p. 395. riage; but the minister officiating was made liable to banishment. And the 23rd section provided that, in the event of any fraud practised to procure the contract, the party guilty thereof should forfeit all property accruing from the marriage. 26. The statute of Geo. 4. was certainly an improvement upon that of Geo. 2., but it was far from meeting with universal approbation; for, besides many other objections, it left the power of celebrating marriages as it had stood before, exclusively in the hands of the Church, a restriction which gave offence to almost every denomination of dissenters. 27. The consequence was, that in the year 1836 the marriage law of this country underwent a still farther mutation, having been then placed on its present footing by Lord John Russell's Act, 6 & 7 Will. 4., c. 85., which enables parties desirous of entering into wedlock to complete their contract without any appeal to spiritual authority. Such persons, therefore, as object to marry in facie ecclesiæ, may now repair to the registrar, and, upon giving the notices and procuring the certificates prescribed by the statute, may be married either before that officer by a verbal declaration, or, in the registered places appointed for the purpose, may solemnize their marriage according to any form or ceremony they please; taking care, however, whichever mode they resort to, that two witnesses be present, and that the proceeding be completed with open doors between eight and twelve in the forenoon, so as to afford some security for order and publicity.* * See also the 7 Will. 4. c. 1., the 1 Vict. c. 22., and the 19 & 20 Vict. c. 119. CHAPTER II. SCOTCH LAW OF MARRIAGE. 1. Its resemblance to the old English 8. McAdam v. Walker. law. 2. Marriage in facie ecclesiæ. 3. Marriage by clandestine cele- 4. Marriage by mere consent. 6. Their different modes—perverba de Hamilton. 9. Hamilton v. 10. The consent must be real, Stewart v. Menzies. 11. Cases of promise cum copula, 12. "Habit and Repute." 14. Lady Strathmore's case. 1. THE constitution of marriage in Scotland is governed by the principles of the ancient law of Europe, as that law existed prior to the decree of the Council of Trent; and it corresponds with the law of England, as the law of England stood prior to the passing of Lord Hardwicke's Act. 2. The Scotch regular mode of marrying in facie ecclesiæ, is by compliance with the orders of the kirk-orders easily satisfied, since all that is required is no more than a due proclamation of banns, and a clerical celebration in presence of, at least, two witnesses. There is no ritual, no formality. The minister admonishes the parties, interrogates them respectively, receives their assent, declares them married, utters a prayer, and pronounces his benediction. The proceeding is grave, solemn, and impressive, as befits the occasion. In general the ceremony, if such it can be called, takes place in a private house, never in church; it may be in the open air, and sometimes is. The attribute of regularity results from the banns. The celebration, a thing not enjoined by scripture, may be by any christian minister, whether of the establishment or not; and it may take place at any hour in the four and twenty best suiting the convenience, the wishes, or the caprice of the parties. The consent of guardians is not necessary. 3. The Scotch clandestine mode of marrying is by a clerical celebration covertly and irregularly conducted. The Canons of Perth, so early as 1209, describe a clandestine marriage as one at which "a priest is present." The clandestinity is from the want of banns; and it must be evident that the officiating minister is akin to the, Fleet Parson already described. But few examples of clandestine marriages are to be found in the Scotch law books. The last case was that of McGregor v. Jollie, which came before the House of Lords in 1828.* A clandestine marriage, though under the frown and subject to the penalties of Scotch law, is nevertheless recognized by it as valid to all intents and purposes. 4. The Scotch consensual mode of marrying reminds us of the consensual English marriages, so tenderly handled by Lord Hardwicke, because founded in nature, and as old as our religion. 5. A notion prevails that marriages of this last description are common in Scotland, and it is even thought that no reproach attends them. Sir William Scott, when pronouncing his famous judgment in the Dalrymple case, observes that "the woman carries her virgin honours to the private nuptial "bed with as much purity of mind and with as little loss of reputation as if the matter were graced with all the "sanctities of religion." The same idea is evidently entertained by a distinguished living ornament of the ecclesiastical Bench, Dr. Lushington, who in his evidence before a parliamentary committee said, "he supposed it was but rarely that Scotch marriages took place in the face of the Church, at least not very often, so "far as he knew." Now there is not, and there cannot be, a greater delusion than that into which these profound and experienced authorities in this instance have fallen; for in Scotland, so far are consensual marriages from happening frequently, that they are in fact never resorted to except where there is some disparity in the position of the parties, or some other cogent reason suggesting or requiring the temporary concealment of a connexion censured by the church and punished by the law. Consensual marriages, as I have said, although viewed with disfavour by spiritual authority, and visited with penalties by civil jurisdiction, are nevertheless in Scotland, as they were in *3 Wil. & S. 85. |