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having been taken by the legislature that all the duties of the several officers, with respect to these, shall have been carefully observed; so that when a marriage has once been solemnized, it will, indeed, be a rare thing to find that it has been unduly solemnized.
20. The law of England, relating to marriage, was similar to the ancient law of Ireland until about the middle of the last century, when Lord Hardwick's celebrated bill, relating to clandestine and consensual marriages, was passed. Since then, in England, too, it has most frequently been the subject of legislation ; and worthily so, fur marriage is not only the highest guard of human virtue, but lies at the very basis of human society. The laws of the two countries are again nearly assimilated. It is not necessary to point out the differences; but referring to the concluding sentence of the last paragraph-which_equally applies to the statutes relating to marriage in England, we shall proceed to “ that more fruitful soil of joys and sorrows,” the land of Gretna Green.
21. The Scotch law is very lax in its requirements, and on the whole not widely different from what the Irish law was prior to the act of 58 Geo. 3. In cases of regular marriages, in facie ecclesiæ, all that is required is the due proclamation of the banns, and a clerical celebration in the presence of at least two witnesses The ceremony may be performed at any time, or in any place, and no consent of guardians is requisite. Secondly, clandestine marriages, being those celebrated “ by a priest,” but without the publication of the banns, are recognized. And, thirdly, there are those consensual marriages, which have been abolished in the sister countries. These marriages are either per verba de prosenti, or by promise de futuro cum copula. The written declaration, “I hereby declare that Johanna Gordon is my lawful wife, and I hereby declare that John Dalrymple is my lawful husband,” signed by the parties, was held to be evidence of a valid and unimpeachable Scotch marriage-although having no other
26 Geq. 2. c. 33.
foundation than the mere interchange of present con
The case in which this was decided to be the law was one of peculiar hardship, and ruined, beyond repair, the happiness of an innocent lady nearly related to a noble family of the highest rank. In 1804, John Dalrymple, afterwards Earl of Stair, while quartered with his regiment in Edinburgh, became acquainted with Miss Gordon, and signed the foregoing writing. He was shortly afterwards sent abroad, where he remained for several years. His acquaintance with Miss Gordon had been very short; and during this absence his passion for her abated. He returned in 1808, and married Miss Laura Manners, in accordance with the rites and ceremonies of the Church of England. Miss Gordon determined to assert her rights, and succeeded; in 1811, in obtaining a solemn decree sustaining the validity of her marriage. Again, the mere verbal declaration, “ This is my lawful wife, and these are my lawful children," was held to constitute a marriage. And a letter, in these words, “My dearest Mary,--I hereby solemnly declare you are my lawful wife, although for particular reasons I desire our marriage to be kept private for the present.--I am your affectionate husband, A. Hamilton," constituted a marriage, although purposely suppressed from every one-even the wife had no knowledge of it until after her husband's death.3
22. The well-known Gretna Green marriages acquire their validity from the mere expression of the consentof the parties to become husbandand wife. There is no more charm in the particular place, than in the village blacksmith who officiated. His office was simply a profane mockery, and as to the place, any other spot within the Scottish boundary would answer the most impetuous of lovers as well ; but that being the nearest point of Scotland, was, in consequence, more frequently resorted to, and thus became known as it is. With the view to prevent these marriages from being contracted so hastily, a statute has been recently passed, 4 declaring
Dalrymple v. Dalrymple, 2 Hagg. Con. 54.
Walker, 1 Dow. 148.
" that no irregular Scotch marriage shall be valid unless one of the parties had lived in Scotland for 21 days next preceding such marriage, or had his or her usual residence in Scotland at the date thereof."
23. These declarations and consents of which we have spoken, must be bona fide, and not intended for a pose different from contracting marriage, or a marriage will not be thereby constituted. As where a gentleman, to get rid of his engagement with a young lady, pretended he was married to his dairy-maid, and the dairymaid soon instituted a suit against him as her husband; Court held, that it was only a sham, got up to deceive a third party, and not a marriage.
24. Lastly, there may be a marriage in Scotland by what is called “habit and repute :" and this on the eminently social principle, that if a man introduce a woman to the world as his wife, he should not be per. mitted afterwards to disregard her, and declare her to have been all the time his mistress.
The very numerous topics which have an important bearing on the subject of marriage having been carefully, although briefly, discussed in this chapter, we shall now proceed to consider the provisions of the recent statute.
Stewart v. Menzies, Ho. Lords, 1841.
THE NEW LAW.
DIVORCE-PROCEEDINGS BY THE HUSBAND.
1. Divorce, legal meaning of the term. 2. Husband may petition Court; adulterer to pay the costs. 3. Court empowered to make decree. 4. Different footing of adultery by wife and by husband. 5. Adultery by wife entitles husband to decree, not barred. 6. Eleven Bars to remedy enumerated. 7. 1st Bar, being accessory to the adultery, defined and ex
plained. 8. 2nd Bar, connivance, defined and explained. 9. 3rd Bar, collusion, defined and explained. 10. 4th Bar, condonation, defined and explained. 11. Four preceding bars peremptory-seven following discre
tionary 12. 5th Bar, Recrimination, defined and explained. 13. 6th Bar, cruelty, defined and explained. 14. 7th Bar, desertion defined and explained. 15. 8th Bar, wilful separation, defined and explained. 16. 9th Bar, wilful neglect, defined and explained, 17. 10th Bar, misconduct, defined and explained, 18. 11th Bar, unreasonable delay, explained.
1. THE term Divorce, under the new law, implies a dissolution of the marriage tie, as wholly and effectually as it could be dissolved by the death of one of the parties. We shall now consider upon what grounds such a divorce can be obtained :—first by the husband.
2. The 27th section of the act? provides that the husband may present a petition to the Court, praying
1 20 & 21 Vic., c. 85.
that his marriage may be dissolved, on the ground tb at his wife has, since the celebration thereof, been guilty of adultery.
3. By a subsequent section the Court is empowered, upon such petition, to pronounce a decree for dissolving the marriage in case it is satisfied that the charge of the petitioner has been proved; and shall not find that the petitioner has been in any measure accessory to, or conniving at, the adultery of the other party, or has condoned the adultery complained of, or that the petition is presented, or prosecuted in collusion. But the Court shall not be bound to pronounce such decree ifit shall find that the petitioner has, during the marriage, been guilty of adultery, or if the petitioner shall, in the opinion of the Court, have been guilty of unreasonable delay in presenting or prosecuting such petition, or of cruelty towards the other party to the marriage; or of having deserted or wilfully separated himself or herself from the other party before the adultery complained of, and without reasonable excuse ; or of such wilful neglect or misconduct as has conduced to the adultery.
4. It will hereafter be seen that the legislature has put the adultery of the wife, and of the husband, each upon wery different footing. On the part of either it is a crime of a high order, and, from the vow with which they mutually engage their fidelity, “Witnessed before God”—and accompanied, as it usually is, with circumstances of solemnity and religion which approach to the nature of an oath,—the married offender incurs guilt little short of perjury. But when is the wife who offends, the crime is usually aggravated by cruelty to children, who are involved in their parent's shame; and, as has been truly said, the wound received by the
| The Court has power to order the adulterer to pay the costs of the proceedings. (Sec. 34.)
2 Sec. 31, App. p.
N.B. To prevent frequent repetitions, it is understood that the word " sec.” will hereafter have reference to a section of " The Divorce and Matrimonial Act," 20 & 21 Vic. c. 85, which will be found in the Appendix.