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Roman Catholic marriages on the same unsatisfactory footing as before. No publication of banns, no legal hours, no necessary interval for salutary reflection were prescribed.
Quakers and Jews were not, any more than in England, to be compelled to perform the ceremony with open doors, within defined hours, or in the presence of witnesses. The measure, in fact, as has been ingeniously said, was not so much a matrimonial code for all her Majesty's Irish subjects, as a “series of concordats with the chief religious parties, tacked on to a system of complete registration.”
According to the law of Scotland, marriage is either regular or irregular. To constitute a regular marriage, the following conditions must be observed :-Publication of banns according to the rules of the Church, and celebration by a clergyman of any religious persuasion,-witnesses to whom the parties are known being usually present.
Your committee find that, according to the practice of the present day, marriage is generally celebrated in the private residence of one of the parties, at any hour of the day; but the presence of a clergyman and witnesses, together with the previous proclamation of the banns, seem to be a sufficient provision for the due publicity of the contract. The system of registration adopted appears to give satisfaction. It efficiently secures a permanent and accessible record of the marriage. Although the custom of proclaiming the banns three consecutive times on the same Sabbath, in the parish church, may afford facilities like the licence system in England, for contracting hasty marriages, your committee, nevertheless, desire to express their general approval of the law as affecting regular marriages.
On the other hand, they feel compelled to deprecate the facilities which the law of Scotland affords for contracting clandestine or irregular marriages. It is worthy of observation, that irregular marriages are, in every respect, as binding and valid in Scotland, as those which are solemnized publicly
after proclamation of banns. Irregular marriages may be contracted in three ways:-1. Per verba de presenti; that is to say, by words declaratory of present mutual acceptance of the conjugal relationship. It appears “ that a verbal acknowledgment-a declaration of marriage per verba de presenti, may competently be proved by parol testimony. 2. That although consummation may perhaps add, in a doubtful case, to the strength of evidence as to the true intent of the parties, it is by no means an essential: a marriage constituted de presenti, by mutual declarations, does not require consummation in order to become very matrimony: it does ipso facto et ipso jure constitute the relation of man and wife. 3. That a first marriage, although private and irregular, can in no degree be affected by a second, how regular and public soever.” (Erskine's Institute, Book I., t. 16.)
Another mode of contracting a valid irregular marriage, is per verba de futuro cum copula subsequente. They are marriages consummated conjunctione corporum, subsequent to a previous promise to marry. Marriages of the former class are contracted finally and without condition by the very acknowledgment of the conjugal relationship; for there the conjunctio animorum is avowed, and that mental act of consent, according to the strict logic of the canonists, is the vinculum and essence of the contract. But a marriage contracted per verba de futuro is, in its inception, executory, and amounts only to a betrothal. From this promise to marry either party may resile by mutual concession; and even without such mutual discharge, either may subsequently contract a valid marriage, regular or irregular, with another ; but after having exchanged the promise to marry, the effect of intercourse is to raise a legal presumption of present mutual consent, sufficient, when coupled with previous betrothal, to constitute a valid marriage.
The third class of clandestine marriages includes those where the proof of the consensus rests upon no express decla
ration either de presenti or de futuro, but upon habite and repute being proved rebus ipsis et factis. Proof of cohabitation, and general reputation of being husband and wife, is accepted as presumptive evidence of the consensus, which, in contemplation of law, is very marriage.
The statute generally known as Lord Brougham's Act (19 & 20 Vict., c. 96), making it essential to the validity of an irregular marriage, that one of the parties, at least, shall have resided in Scotland twenty-one days before the event, was a step in the right direction; but your committee are strongly of opinion that a much more comprehensive and radical reform is absolutely necessary.
The uncertainty thrown around the status of parties ostensibly married, must in the future, as it has done in the past, lead to painful litigation and disastrous consequences. Surely the best interests of a community are placed in serious danger, when the law holds forth facilities for entering upon so important a contract as marriage, even without the knowledge of the parties themselves. The fact of marriage is only a legal inference from a series of antecedent circumstances, and frequently so doubtful as to require solemn judicial investigation, to ascertain its nature. There being no registration, or public ceremony, it is obvious that fraudulent representation as to status may be successfully made, and interests of the most momentous character may thereby be placed in jeopardy.
Irregular marriages are defended on two grounds: first, as being in theory strictly logical; and secondly, as being in practice conducive to morality. What is marriage, it is asked, in the sight of Heaven, but the mutual acceptance and acknowledgment of the relationship of man and wife? The fact is complete when the interchange of consent takes place, and the law is bound upon proof of that interchange of consent, howsoever and from what sources soever derived, to recognise its binding force. The publication of banns, religious rites, and
ceremonial observances, it is said, are purely adventitious, the essence and substance being the consent of the parties. It is not disputed that consent is the very essence of the matrimonial contract. Indeed, consent is the very essence of all contracts. The question really is, whether the law ought not to insist upon certain observances as indicia and legal evidence of that consent. The provisions of the Statute of Frauds, all the strict regulations as to stamps, registration of deeds, signatures, attestation, &c. &c. prove that mere evidence of consent is not always sufficient to bring genuine and bonâ fide agreements under the cognizance of the municipal law. The observations of Lord Stowell upon this subject are very pertinent: “Marriage in its origin is a contract of natural law; it may exist between two individuals of different sexes although no third person existed in the world, as happened in the case of the common ancestors of mankind. In civil society it becomes a civil contract, regulated and prescribed by law, and endowed with civil consequences. In most civilized countries, acting under a sense of the force of sacred obligations, it has had the sanction of religion superadded. It then becomes a religious as well as a natural and civil contract, for it is a great mistake to suppose that, because it is the one, it may not likewise be the other.” (2 Hagg. Cons. Rep. 63.)
Every community has a right-nay is bound for its wellbeing---to impose upon individuals certain conditions and obligations. Will it be said that the courts should take judicial notice of a sale of an acre of land which is only evidenced per verba de presenti? Or will it be said that a marriage settlement is of so much greater importance than the marriage itself as to require clearer proofs than that to which it is simply appurtenant ?
As to the effect of clandestine marriages on morality, it is said that the dishonourable man will be deterred from practising his seductive arts by the solemn consequences which the law attaches to immorality, if preceded by promise of marriage. But strangely enough it seems to be forgotten that for precisely the same reasons, the direct tendency of that law is, to make female frailty the more easy victim of the designing, the dishonourable, and the immoral. It has been further
, urged in favour of this system, that clandestine marriages very seldom occur, the proportion being, as it has been said, about one in five hundred. But is it evident, from the very nature of these marriages, that the best calculation is little better than a good guess? To obtain any reliable estimate implies the absence of that secrecy which is their distinguishing characteristic. Those alone come to be known which litigation, family dissension, or some pressing cause, force into publicity. Again, if the proportion of irregular to regular marriages be one to five hundred—it is sound policy to throw uncertainty around the social status of the majority for the sake of extending in exceptional instances, what, for the sake of argument, might be admitted to be a merciful justice ?
Lastly, this system of law has the grave fault of befriending the woman, who although wronged, has at least been accessory to her own disgrace, while it casts into irretrievable social degradation the woman whose conduct may have been throughout innocent and honourable.
The celebrated Dalrymple case may be cited as an example of the cruel results effected by this law. Miss Johanna Gordon had carried on a clandestine intercourse with Mr. Dalrymple, afterwards Lord Stair, while quartered with his regiment in Edinburgh. After exchanging pledges of love and fidelity, and almost unknown to themselves contracting what was judicially pronounced to be a legal marriage, the young cornet went abroad, and his affections towards Miss Gordon underwent a marked change. It is true, that the law bound down the unscrupulous young nobleman, and compelled him to make the best reparation to the woman he had loved, deserted, and deceived, by declaring him her husband. But Mr. Dalrymple, subsequent to the secret marriage with Miss