Dalrymple
v. Dalrymple
IN
THE CONSISTORY COURT
Original Printed Version
(PDF)
For witnesses statements, see:
(1809) 2 Hag. Con. (App.) 1, 161 E.R. 802 (PDF, 104 Mb., 85 pp.)
Report in The Times, July 17, 1811, p. 3
Entry in thePeerage.com
Original
Citation: (1811) 2 Hag Con 54
English
Reports Citation: 161 E.R. 665
16th
July, 1811.
[Discussed,
Reg. v Millis, 1844, 10 Cl. & F. 534. Referred to, Earl Nelson v. Lord Bridport, 1845, 8 Beav. 547. Applied, The Halley, 1867, L. R. 2 Adm. & Ec. 17; Longworth v. Yelverton, 1867, L. R. 1 Sc. App. 224; Sottomayor v. De
Barros, 1877, L. R. 2 P. D. 89. Explained, In re Goodman’s Trusts,
1881, 17 Ch. D. 281. Referred to, Mackonochie v. Lord Penzance, 1881, 6 A. C
447. Adopted, The Dysart Peerage case, 1881, 6 A. C. 515. Referred to, Collins,
1884, 9 A C 230.]
[*54] Dalrymple v. Dalrymple 16th July, 1811. — Marriage, by contract
without religious celebration, according to the law of Scotland, held to be
valid: distinction, as to the state of one of the parties being an English
officer on service in that country not sustained.
This
was a case of restitution of conjugal rights brought by the wife against the
husband, in which the chief point in discussion was the validity of a Scotch
marriage, per verba de pr&ligae;senti, and without religious celebration, one of
the parties being an English gentleman not otherwise resident in Scotland than
as quartered with his regiment in that country.
Judgment—Sir
William Scott.
The facts of this case, which I shall enter upon without preface, are these:
Mr. John William Henry Dalrymple is the son of a Scotch noble family, I find no
direct evidence which fixes his birth in England, but he is proved to have been
brought up from very early years iu this country. At the age of nineteen, being
a cornet in His Majesty’s Dragoon Guards, he went with his regiment to
Scotland in the latter end of March or beginning of April, 1804, and was
quartered in and near Edinburgh during his residence in that country Shortly
after his arrival, he became acquainted with Miss Johanna Gordon, the daughter
of a gentleman in a respectable condition of life What her age was does not
directly appeal-, she being described as of the age of twenty-one years and
upwards: she was, however, young enough to excite a passion in his breast, and
it appeals that she made him a return of her affections . he visited frequently
at her father’s house in [*55] Edinburgh, and at his seat in the
country at a place called Braid A paper without date, marked No 1, is produced
by her: it contains a mutual promise of marriage, and is superscribed
“a sacreed promise.”
A second paper, No. 2, produced by her, dated May 28, 1804, contains a
mutual declaration and acknowledgment of a marriage. A third paper, No. 10,
produced by her, dated July 11, 1804, contains a renewed declaration of
marriage made by him, and accompanied by a promise of acknowledging her the
moment he has it in his power, and an engagement on her part that nothing but
the greatest necessity shall compel her to publish thia marriage These two
latter papers were inclosed in an envelope, inscribed “Sacreed
promises and engagements,”
and all the three papers are admitted or proved in the cause, to be of
the handwriting of the parties, whose writing they purport to be.
It appears that Mr. Dalrymple had strong reasons for
supposing that his father and family would disapprove of this connection, and
to a degree that might seriously affect his fortunes; he, theiefore, in his
letters to Miss Gordon repeatedly enjoined this obMgation of the strictest
secrecy; and she observed it, even to the extent of making no communication of
their mutual engagements to her father’s family; though the attachment
and the intercourse founded upon it did not pass unobserved by one of her
sisters, and also by the servants, who suspected that there were secret ties,
and that they were either already, or soon would be married. He wrote many
letters to her, which are exhibited in the cause, expressive of the warmest and
most devoted passion, and of unalterable fidelity to his engagements, in almost
all of them applying the [*56] terms of husband and wife to himself and her. It
appears that they were in the habit of having clandestine nocturnal interviews
both at Edinburgh and Braid, to which frequent allusions are made in these
letters. One of the most remarkable of these nocturnal interviews passed on the
6th of July at Edinburgh, where she was left alone with two or three servants,
having declined to accompany her father and family (much to her
father’s dissatisfaction) to his country-house at Braid. There is
proof enough to establish the fact, m my opinion, that he remained with her the
whole of that night He continued to write letters of a passionate and even
conjugal import, and to pay nocturnal and clandestine visits during the whole
of his stay in Scotland; but there was no cohabitation of a more visible kind,
nor any habit and repute, as far as appears, but what existed in the surmises
of the servants and of the sister. His stay in that country was shortened by
his father who came down alarmed, as it should seem, by the report of what was
going on, and removed him to England on or about the 21st of July.
The correspondence appears to have slackened, though the
language continued equally ardent, if I judge only from the number exhibited of
the letters written after his return; thoogh it is possible, and indeed very
probable, there may be many more which are not exhibited. No letters of Miss
Gordon’s addressed to him are produced; he has not produced them and
she has not called for their production. In England he continued till 1805,
when he sailed for Malta: his last letter, written to
2 HAG. COM. 57. DALRYMPLE V.
DALRYMPLE 667
her on
the eve of bis departure, reinforces his injunctions of secrecy, and conjures
hef to withhold all credit from reports that might reach her [*57] of any
transfer of big affection* to another: it likewise points out a channel for
their future correspondence, tihrough the instrumentality of Sir Rupert George,
the first commissioner of the Board of Transports He continued abroad till May,
1808, with the exception of a month 01 two in the autumn of 1806, when he
returned for a purpose unconnected with tlis history unknown to his father, and
as it appears, to this lady. It is upon this occasion that the alteration of
his affection first discloses itself in conversations with a. Mr. Hawkins, a
friend of his family, to whom he gives some account of the conneution which he
had formed with Miss Gordon in Scotland, complains of the copsequeneea of it,
in being tormented with letters from her, which he was resolved never to read
in future; and having reason to fear she would write others to his father, he
requested Mr. Hawkins to use all means of intercepting any letters which sh1/2
might, write either to the one or the other.
Mr. Harwkins executed this commission by intercepting many
letters so addressed, though in consequence of her extreme importunity, he
forwarded two or three as he believes of those addressed to Mr. Dalrymple; and
he at length wrote to her himself, about the end of 1806, or beginning of 1807,
and strongly urged her to desist from troubling General Daliymple with letters.
This led to a correspondence between her and Mr. Hawkins; and it was not till
the death of Mr. Dalrymple’s father (which happened in the spring of
the year 1807) that she then asserted her marriage tights, and furnished him
with copies of these important papers which she denominates according to the
style of the law of Scotland, her “marriage lines.” She took no steps to enforce [*58] her
rights by any process of law. Upon the unlooked-for return of Mr. Dalrynaple in
the latter end of May, 1808, he immediately visited Mr. Hawkins who
communicated what had passed by lelter between himself and Miss Gordon, and
suffered him, though not without reluctance, to possess himself of two of her
letters, which Mr. Dalrymple has exhibited. Mr. Hawkins however dismissed him
with the most anxious advice to adhere to the connection he had formed; and by
no means to attempt to involve any other female in the misery that must attend
any new matrimonial connection. Within a very few days afterwards Mr. Dalrymple
marries Miss Laura Manners in the most formal and regular manner. Miss Gordon,
who had before heard some reports of no very definite nature, instantly, upon
hearing authentic news of this event, takes measures for enforcing her rights;
and being informed that he is amenable only to this jurisdiction, she
immediately applies for its aid to enforce the performance of what she
considers as a marriage contract
The cause has proceeded regularly on both sides, and has
been instructed with a large mass of evidence, much of it replete with legal
erudition for which the Couit has to acknowledge great obligations to the
gentlemen who have been examined in Scotland.* It has also been argued with
great industry and ability by the counsel on both sides, and now stands for
final judgment. Being entertained in an English Court, it must be adjudicated
according to the principles of English law [*59] applicable to such a case. But
the only principle applicable to such a case by the law of England is, that the
validity of Miss Gordon’s marriage rights must be tried by reference
to the law of the country, where, if they exist at all, they had their origin.
Having furnished this principle the law of England withdraws altogether and
leaves the legal question to the exclusive judgment of the law of Scotland.
I am not aware that the case so brought here is exposed to
any serious disadvantage beyond that which it must unavoidably sustain in the
inferior qualifications of the person, who has to decide upon it to the talents
of the eminent men to whose judgment it would have been submitted in its more
natural forum. The law-learning of Scotland has been copiously transmitted; the
facts of the case are examinable on principles common to the law of both
countries, and indeed to all systems of law. It is described as an advantage
lost that Miss Manners, the lady of the second marriage, is not here made a
party to the suit; she might have been so in point of form if she had chosen to
intervene; in substance she is; for her marriage is distinctly pleaded and
proved, and is as much therefore under the eye and under the attention, and
under the protection of the Court, as if she were formally a party to the
question
* It has been deemed proper that this information with the
evidence should acoompany the report of this case: it has therefore been
printed in the Appendix.
668 DALRYMPLE V. DALRYMPLE 2 HAG
CON 60.
respecting
the validity of this marriage, which is in effect to decide upon the validity
of her own. For I take it to be a position beyond the reach of all argnment and
contradiction that if the Scotch marriage be legally good, the second or
English marriage must be legally bad. Another advantage intimated to be lost is
this, that the native forum [*60] would have compelled the production of her
letters to him, for the purpose oi seeing whether any thing in them favoured
his interpretation of the transaction. Surely, according to any mode of
proceeding, there can be no need of a compnlsoiy process to extract them from
the person in whose possession they must be if they exist at all. If they
contain such matter as would favour such an interpretation, he must be eager to
produce them, for they would constitute his defence, not being produced the
necessary conclusion is either that they do not exist, or that they contain
nothing, which he could use with any advantage for such a purpose. The
considerations that apply to the indiscretions of youth, to the habits of a
military profession, and to the ignorance of the law of Scotland, arising from
a foreign birth and education, are common to both, and I might say to all
systems of law. They are circumstances which are not to be left entirely out of
the consideration of the Court in weighing the evidence for the establishment
of the facts, but have no powerful effect upon the legal nature of the
transaction when established.
The law which in both countries allows the minor to marry,
attnbutes to him in a way which cannot be legally averred against upon the mere
ground of youth and inexperience, a competent discretion to dispose of himself
in marriage; he is arrived at years of discretion, quoad hoc, whatever he may
be with respect to other transactions of life, and he cannot be heard to plead
the indiscretion of minority. Still less can the habits of a particular
profession exonerate a man from the general obligations of law. And with
respect to any ignorance arising from foreign birth and eduea- [*61] -tion, it is
an indispensable rule of law, as exercised in all civilized countries, that a man
who contracts in a country engages for a competent knowledge of the law of
contracts in that country. If he rashly presumes to contract without such
knowledge he must take the inconveniences resulting from such ignorance upon
himself, and not attempt to throw them upon the other party who has engaged
undei a proper knowledge, and sense of the obligation which the law would
impose upon him by virtue of that engagement. According to the judgment of all
the learned gentlemen who have been examined, the law of Scotland binds Mr
Dalrymple though a minor, a soldier, and a foreigner, as effectively as it
would do if he had been an adult living in a civil capacity, and with an
established domicil in that country
The marriage which is pleaded to be constituted by virtue
of some or all of the facts of which I have just given the outline, and to
which I shall have occasion more particularly to advert in the course of my
judgment, has been in the argument described as a clandestine and irregular
marriage. It is certainly a private transaction between the individuals, but it
does not of couise follow that it is to be considered as a clandestine
transaction in any ignominious meaning of the word, for it may be that the law
of the eoantry in which the transaction took place may contemplate private
marriages with as much countenance and favour as it does the most public It
depends likewise entirely upon the law of the country whether it is justly to
be stiled an irregular marriages. In some countries one only form of contracting
marriage is acknowledged, as in oar own, with the exception [*62] of particular
indulgences to persons of certain religious persuasions; saving those
exceptions all marriages not celebrated according to the prescribed form are
mere nullities; there is and can be no such thing in this country as an
irregular marriage. In some other countnes all modes of exchanging consent
being equally legal, all marriages are on that account equally regular. In
other countries a form is recommended and sanctioned, but with a toleration and
acknowledgment of other more private modes of effecting the same purpose,
though under some discountenance of the law on account of the non-conformity to
the order that is established. What is the law of Scotland upon this point ?Marriage
being a contract is of course consensual (as is much insisted on, I observe, by
some of the learned advocates), for it is of the essence of all contracts to be
constituted by the consent of parties. Consensus non concubitus facit
matrimomum,* the maxim
* D. lib. 50, tit. 17, 1. 30, De Reg. Juris. D. lib. 35, tit. 1, l. 15. Huber, De Nuptiis, p. 23, lib. 24, tit. 2, De Divortiis. Voet. lib. 23, tit. 2, s. 2. Vinnius, lib. 1, tit. 9, s. 1. Cujac, in D. de Rit. Nup. v. 1, p. 800, in Cod. lib. 5, tit. 1, De Spons. et
2 HAG. CON. 81 DALRYMPLE V.
DALRYMPLE 669
of the
Roman civil law is, in truth, the maxim of all law upon the subject; for the
concubitus may take place for the mere giatification of present appetite
without a view to any thing further; but a marriage must be something [*63]
more, it must be an agreement of the parties looking to the consortium vitae:
*1 an agreement indeed of parties capable of the concubitus, for though the
concubitus itself will not constitute marriage, yet it is so far one of the
essential duties for which the parties stipulate that the incapacity of either
party to satisfy that duty nullifies the contract †1 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; it is the parent, not the child,
of civil society,” principium urbis et quasi seminanum
reipublicae” (Cic. De Off. l 17) 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 sanctions of leligion 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 therefore it may not likewise be the other. Heaven itself is made
a party to the contract, and the consent of the individuals pledged to each
other is ratified and consecrated by a vow to God. It was natural enough that
such a contract should, under the religious system which prevailed in Europe,
fall under ecclesiastical notice and cognizance with respect both to its
theological and its legal constitution; though it is not [*64] unworthy of
remark that amidst the manifold ritual provisions made by the divine lawgiver
of the Jews for various offices and transactions of life there is no ceremony
prescribed for the celebration of marriage In the Christian Church marriage was
elevated in a later age to the dignity of a sacrament in consequence of its
divine institution and of some expressions of high and mysterious import
respecting it contained in the sacred wntings. The law of the Church, the canon
law (a system which in spite of its absurd pietensions to a higher origin is in
many of its provisions deeply enough founded in the wisdom of man), although,
in conformity to the prevailing theological opinion, it reverenced marriage as
a sacrament, still so far respected its natural and civil origin as to consider
that where the natural rind civil contract was formed it had the full essence
of matrimony without the intervention of the priest; it had even in that state
the character of a sacrament; *2 for it is a misapprehension to suppose that
this intervention was required as matter of necessity, even for that purpose,
before the Council of Trent. It appears from the histories of that council, as
well as from many other authorities, that this was the state of the earlier law
till that council passed its decree for the reformation of manriage: the
consent of two parties †2 [*65] expressed in words of present mutual
acceptance constituted an actual and legal marriage technically known by the
name of sponsaha per verba de praesenti, improperly enough, because sponsalia
in the original and classical meaning of the word, are preliminary ceremonials
of marriage, and therefore Brower justly observes jus pontaficium nimis laxo
significatu, imo etymologia mvita ipsas nuptias sponsalia appellavit (l 1, c 1,
n 6). The expression, however, was constantly used m succeeding times to
signify clandestine marriages, that is, marriages unattended by the prescribed
ecclesiastical solemnities in opposition, first, to regular marriages;
secondly, to mere engagements for a future marriage, which were teiined
sponsalia per verba de futuro, a distinction of sponsalia not at all known to
the Roman civil law (Swinburn, sect. 3, § 3) Different rules relative
to their lespective
Arrhis. Taylor’s Civil Law, p. 301. Puffendorf, b. 6, c. 1, s. 14. Wood’s Instit. book 1, chap. 1. 27, qu. 2, c. 1,
Matrimonium. 27, qu. 2, c 2, Sufficiat. 27, qu. 2, c. 5, Cum Initiatur. 27, qu.
2, c. 6, Conjuges. C. 25, Extra, de Spons et Matrim. Haber, Eunona. Rom. ad
lib. 23, Pand. Vind. s. 1. Hoppii, Commen. ad Ins. lib. 1, tit. 10 Wood’s
Instit. book 1, chap. 2, Ayl. Parerg. 362.
*1 D. lib. 23, tit. 2, l 1. Instit lib. 1, tit 9, s. 1.
†1 C. 2 et 3, Extra, de Spons. et Matrim Vinnius,
lib. 1, tit. 9, s 1. Burn’s Eccles. Law, v. 2, p. 500, Ayl. Par 226.
*2 Sanchez, lib 2, disp. 6, s 2, et lib 2, disp 10, s. 2
Father Paul, p. 737. Pallavicini, lib. 23, chap 8. Pothier, tit. 3, p. 290. 27,
qu 2, c. 10, omne.
†2 C. 25 et c. 31, Extra de Spons. et Matrim C 3,
Extra, de Sponsa Duorum. Swinburn, sect. 4, s. 2, 3, 4, et sect 18, s. 1.
Brower, lib 1, cap. 2, s. 8, 9, et cap 22, s 12, et cap. 27, s. 21.
670 DALRYMPLE V. DALRYMPLE 2 HAG.
COW. 66.
effects
in point of legal consequence applied to these three cases-of regular
marriages, of irregular marriages, and of mere promises or engagements. In the
legulai marriage every thing was presumed to be complete and consummated both
in substance and in ceremony. In the irregular marnage every thing was presumed
to be complete and consummated in substance but not in ceremony; and the
(Svvinburn, sect. 17, § 1) ceremony was enjoined to be undergone as
matter of order In the promise or sponsalia de inturo nothing was presumed
to be complete or consummate either in substance or ceremony. Mutual (c. 2,
Extra. de Spons. et Matrim.) consent would release the parties from their
engagement; and [*66] 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 connection. I spare myself the trouble of citing from
the text books of the canon lathe passages that support these assertions.
Several of them have been cited in the course of this discussion, and they all
lie open to obvious reference in Brower and Swinbura and other books that
profess to treat upon these subjects. The reason of these rules is manifest
enough. In proceedings under the canon law, though it is usual to plead
consummation it is not necessary to prove it, because it is always to be
presumed in parties not shewn to be disabled by original infirmity of body. In
the eaae of a marriage per verba de praesenti, the parties there also
deliberately accepted the relation of husband and wife, and consummation was
presumed as naturally following the acceptance of that relation, unless
controverted in like manner. But a promise per verba de futuro looked to a
future time, the marriage which it contemplated might perhaps never take place.
It was (Swinburn, sect. 18, p. 1, et sect. 4, p. 2) defeasible in various ways;
[*67] and therefore consummation was not to be presumed; it must either have
been proved or admitted. Till that was done, the relation of husband and wife
was not contracted; it must be a (Swinburn, sect. 17, p& 11) promise cum
copula that implied a present acceptance, and created a valid contract founded
upon it.
Such was the state of the canon law, the known basis of
the matrimonial law of Europe. At the Reformation this country disclaimed,
amongst other opinions of the Romish Church, the doctrine of a sacrament in
marriage, though still retaining the idea of its being of divine institution in
its general origin; and on that account, as well as of the religious forms that
were prescribed for its regular celebration, an holy estate, holy matrimony,
but it likewise retained those rules of the canon law which had their
foundation not in the sacrament or in any religious view of the subject, but in
the natural and civil contract of marriage. The Ecclesiastical Courts,
therefore, which had the cognizance of matrimonial causes, enforced these
rules, and amongst others that rule which held an irregular marriage,
constituted per verba de praesenti, not followed by any consummation shewn,
valid to the full extent of voiding a subse-qoent regular marriage contracted
with another person (Brower, 1, 22, 12). A statute (32 Hen. 8, cap. 38, sec. 2)
passed in the reign of Henry VIII. proves the fact by reciting that
“Many persons after long continuance in matrimony without any
allegation of either of the parties, or any other at their marriage, why the
same matrimony should not be good, just, and [*68] lawful, and after the same
matrimony solemnized, and consummate by carnal knowledge, have by an unjust law
of the Bishop of Rome, upon pretence of a former contract made, and not
consummate by carnal copulation, been divorced and separate,” and than enacts “that
marriages solemnized in the face of the Church and consummate with bodily
knowledge shall be deemed good, notwithstanding any pre-contract of matrimony
not consummate with bodily knowledge, which either or both the parties shall
have made” But this statute was afterwards repealed, as having
produced horrible mischiefs which are enumerated in very declamatory language
in the preamble of the statute 2 Edw. VI.; and Swinburn, speaking the
prevailing opinion of his time, applauds the repeal as worthily and in good
reason enacted. The same doctrine is recognized by the temporal Courts as the
existing rule of the matrimonial law of this country in Bunting’s
case, 4 Coke, 29. “John Bunting,
* C. 30 et 31, Extra. de Spons. et Matrim. C. 3, Extra. de
Sponsa Duorum Brower, lib. 1, cap. 22. Swinburn, sect. 17, s 11.
2 HAG CON 69 DALRYMFLE V.
DALRYMPLE 671
father of the flafntiff, and Agnes Adenshall, contracted
marriage per verba de prajsenti, and afterwards on the 10th of Dec., 1555, the
said Agnes took to husband Thomas Twedej and afterwards, on the 9th of July,
Bunting libelled against her in the Court of Audience, efc decret. fuit quod
prsedict. Agnes subiret matrimonium cum praefato Buating, et inreper
pronunciatuin fuit dictum matrimonium fore nullum.” Though the common law certainly had
scruples in applying the civil * rights of dower, [*69] and community of goods,
and legitimacy in the cases of these looser species of marriage. In the later
case of Collins and Jesson, 3 Anne it was said by Holt, Chief Justice, and agreed to
by the whole Bench, that “if a contract be per verba de praesenti, 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 ecclesiae.” “But a contract per verba de
futuro, which do not intimate an actual marriage, but refer to a future act, is
releasable.” 2 Salk. 437
Mod. 155. In Wigmore’s case, 2 Salk. 435, the same Judge said, “a contract
per verba de praesenti is a marriage; so is a contract de futuro; if the
contract be executed and he take her, ’tis a marriage, and they cannot
punish for fornication.”
In the Ecclesiastical Court tie stream, ran uniformly in that course. One
of the most remarkable is that furnished by the diligence of Dr. Swabey, on
account of its striking resemblance to the present ease: I mean the case of Lord
Fitzmaurice, Son of the Earl of Kerry, coram Deleg, in 1732. There were in that case, as in the
present, three engagements in writing: the first was dated June 23, 1724, and
contained these words, “We swear we will marry one
another.” The second,
dated July 11, 1724, was to this effect: “I take you for my wife and
swear never to marry any other woman.” This last contract was repeated in December of the same
year. It was argued there, as here, that tihe iteratioi of the declaration
proved that the parties did not depend upon their first declaration, and was in
effect a disclaimer of it But the Court, composed of a [*70] full commission,
paid no regard to the objection, and found for the marriage, and an application
for a commission of review, founded upon new matter alleged, was refused by the
Chancellor. Things continued upon this footing till the Marriage Act, 26 G. S,
c. 33, described by Mr. Justice Blackstone (book 1, chap. 15, s. 3),
“an innovation on our laws and constitution,” swept away the whole subject of irregular
marriages, together with all the learning belonging to it, by establishing the
necessity of resorting to a public and regular form, without which the relation
of husband and wife could not be contracted.
It is not for me to attempt to trace the descent of the
matrimonial law of Scotland since the time of the Eeformation. The thing is in
itself highly probable, and we have the authority of Craig (Craig, lib. 2,
dieg. 18, s. 17) for asserting that the canon law h its basis there, as it is
every where else in Europe, “totam hanc questionem pendre a jure
pontificio,” though it is
likely enough that in Craig’s time, who wrote not long alter the
Reformation, the consiatorial law might be very unsettled, as Mr. Cay in bis
deposition describes it to feave been. It is, however, admitted by that learned
gentleman that it settled upon its former foundations, for he expressly says
that the canon law in these matters is a part of the law of the land; that the
Coufts and lawyers reverence the decretals, and other books of the more ancient
cancn law; and I observe that in the depositions of most of the learned
witnesses, and indeed ib all the factums that I have seen upon these subjects,
they are referred to as authorities. Several regu- [*71] -lations both
ecclesiastical and civil, canons and statutes, have prescribed modes of
celebrating marriage. Mr. Cathcart, in particular, refers to them in his
deposition. Some of these appear to have been made in times of great ferment
daring the conflict between the episcopal and presbyterian parties, and are therefore,
I presume, of transitory and questionable authority Mr. Cathcart infers that
tie whole of the Scotch statutes hold solemnization by a clergyman, or, as he
expresses it, some one assuming the functions of a clergyman, as necessary. 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
solemnization by * 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
* Swinbom, sect. 1, s 2, and sect. 17, s. 29 Tract de
Eepub. Ang. p 103. Perkins, tat, Feoffments, fol 40, p. 38, ed. 3, 12. 1 Roll
Abridg. 341 and 357. Moor, 169.672
DALRYMPLE V. DALRYMPLE a HAG CON.
72.
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. I observe that Mr. Gillies says in his
deposition “that to make marriage valid it ia not necessary that it
should be celebrated in facie ecclesise, but rebus inlegris it caa only be
constituted by a consent adhibited in the presence of a clergyman, or in some
mode equivalent to an actual celebration “ So Lord Braxfield in a
loose note which is introduced is made to say, “Private consent is not
the consent the law looks to; it must be before a priest, or something
equivalent.” Now what are
these equivalents 1* and how to be provided 1 Are they to be carved out by the
private fancy and judgment of the individuals? If so, [*72] though equivalent,
they can hardly be deemed the regular forms, and yet appear to stand on a
footing of equal authority. I observe, likewise, that a marriage before a
magistrate is alluded to in some passages as nearly equal to that before a
minister, though certainly not a marriage in facie ecelesias, in any proper
sense of that expression.Sir Hay Campbell states in an opinion of his given to
the English Chancery (Lib. Reg. A. 1780, f. 552) in a case furnished to me by
Dr. Stoddart, “that marriages, irregularly performed without the
intervention of a clergyman, are censurable, and formerly the parties were
liable to be fined or rebuked in the face of the Church, but this for a long
time has not been piactised” The regulations, therefore, whatever they
may be, are not penally enforced, and it does not appear thatthey 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, at any rate the distinction between them is not very
strongly marked in the existing usage of that country. Many of the marriages
which take place between persons in higher classes of society are conti acted
in such irregular forma, if so to be denominated. They appear to create no
scandal; to give no offence. The parties are not reprobated by public opinion,
nor is legal censure actually applied. But taking it that the distinction
between the regular and irregular marriages was much stronger than I am enabled
by the pre- [*73] -sent 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 so to be deemed irregular
The libel is drawn in a form not calculated to extract,
simply and directly, a distinct statement of what the law of Scotland may be
upon this point, for it collects together all the paints of which the party
conceives she can avail herself consummation included, as matters of fact and
matters of law, and then alleges that by the law of Scotland this aggregate
constitutes a marriage, without providing for a possible case in which she
might establish some of these matters and fail in establishing others, e.g. if
she failed in proof of a copula,, but succeeded in establishing a solemn
compact. If thfr law had been more distinctly understood here at the
commencement of this suit the libel would probably have been drawn with more
accommodation to the possible state of facts that might ultimately call for the
proper specific rule of law. The advocates of Scotland have to a great degree
supplied the want of that distinctness in the libel by bringing forwaid the
distinctions in their answers, and applying what they conceive to be the law
applicable to the possible case that may result from the evidence; most of them
have stated what they conceive to be the law, first, in the case of a promise
de future, secondly, of a promise cum copula; thndly, of a solemn declaration
or acknowledgment of marriage, and, fourthly, of such a declaration accompanied
by a copula. It may be convenient to consider, first, whether the present case
is a case of promise or of present declaration and acknow- [*74] -ledgment. It
will be convenient to do so in two respects; the first convenience attending it
is that the fact itself is determmable enough upon the face of written existing
instruments. It is not to be gathered from the loose recollections of loose
verbal declarations, not guarded either in the expressions of those who made
them or in the memory of those who attest them. The second convenience
resulting from this is, that a large portion of the inquiry into the other
points of the case may in a great degree be rendered superfluous; for if these
papers contain mere promises, then have I to consider only the law of promises,
as referable to cases accompanied or unaccompanied by a copula, leaving out
entirely the law that respects acknowledgment and declaration. On the other
hand, if they are to be considered as acknowledgments, then the
2 HAG. COM. 75. DALRYMPLE V.
DALRYMPLE 673
law of
promises may be dismissed, except perhaps sometimes to be introduced
incidentally for purposes of occasional illustration.
Whether they are to be considered as promises or
declarations must be determined upon the contents of the instruments
themselves, on such a view as the plain meaning of the words imports, and upon
the information of their technical meaning as communicated by the Scotch
lawyers, for it is possible that they may be subject to a technical
construction different from their obvious meaning. This is the case in the
marriage settlements of Scotland. The words of the stipulatio sponsahtia are
present declaratory words; the parties mutually accept each other, but the
engagements they enter into are always technically considered to be mere
promises de futuro. Those who are conversant in [*75] the books of the canon
law will recollect the extremely nice distinctions which that law and its
commentators have made between expressions of a very similar import in their
obvious meaning, as constituting contracts de praesenti, or onlj promises de
futuro
The first paper is without date, and is merely a promise.
Mr. Dalrymple promises to marry Miss Gordon as soon as it is in his power, and
she promises the same; it is subscribed by both their names-is endorsed
“A sacreed promise,”
and is left in her possession. It is pleaded to be the first that was
executed by them, and it is highlyreasonable to presume that it was so, for no
person, I think, would be content to acceptsufih a paper as this, after having
received the papers which follow, marked 2 and 10.The paper marked No 2 is
dated on the 28th of May, 1804, and contains these words,” I hereby declare Johanna Gordon is my
lawful wife, and I hereby acknowledge John William Henry Dalrymple as my lawful
husband.” I see no great
difference between the expression declare and acknowledge; the words properly
enough belong to the parties by whom they are respectively used, and are
perhaps not improperly adapted to the decorums of such a transaction between
the sexes. No 10 is a reiterated declaration on the part of Mr. Dalrymple,
accompanied with a promise “that he will acknowledge Miss Gordon as
his lawful wife the moment he has it in his power.” She makes no repeated declaration, but
promises that “nothing but the greatest necessity (necessity which
situation alone can justify) shall ever [*76] force her todeelate this
marriage.” It is signed
by him, and by her, describing herself J Gordon, now J. Dalrymple, and it is
dated July 11, 1804 Both the papers are inclosed in an envelope, on which is
inscribed “Sacreed promises and engagements:” there are promises and engagements that
would satisfy these terms, independent of the words which contain the declaration
of the marriage. At the same time it is to be observed that the words
“promises and engagements “are not improperly applied to the
marriage vow itself, which is prospective in its duties, which engages for the
performance of future offices between the parties till death shall part them,
and to which, in the words of our liturgy, it plights their troth, or in more
modern language, pledges their good faith for that future performance. I feel
some hesitation in acceding to the remark that the paper marked No. 2 is at all
weakened or thrown loose by the mere engagement of secrecy, which seems to be
the principal, if not the sole object of the latter paper, though Mr. Dalrymple
has thrown in a renewed declaration of his marriage; that reiterated
declaration, though accompanied with a promise of secrecy, cannot, upon any
view of the case, be considered as a disclaimer of the former. An engagement of
secrecy is perfectly consistent with the most valid, and even with the most
regular marriages. It frequently exists even in them from prudential reasons;
from the same motives it almost always does in private or clandestine
marriages. It is only an evidence against the existence of a marriage, when no
such prudential reasons can be [*77] assigned for it, and where every thing
arising from the very nature of marriage calls for ita publication.
Such is the nature of these exhibits; first, a promise;
secondly, that promise merged in the direct acknowledgment of the accomplished
fact, thirdly, a renewed admission of the fact on his side, with a mutual
engagement for secrecy till the proper time for disclosure should arrive.
In these papers, as set up by Miss Gordon, resides the
constitution, as some of the gentlemen who have been examined call it, or as
others of them term it the evidences of the marriage; for it is matter of
dispute between these learned persons, whether suci papers, when free from all
possible impeachment, are constituents, or merely evidences of marriage. It
appears to be a distinction not very material in its effects; because if it is
to be considered that such papers, so qualified, are only to be treated
674 DALRYMPLE V. DALRYMFLE 2 HAG,
CON. 78.
as,
evidences, yet if free from all possible impeachments, on the grounds on which
the law allows them, as evidences to be impeached, they make full faith of the
marriage, they sustain it as effectually as if, accoiding to other ideas, they
directly constituted it; they have then become praesumptiones juris et de jure,
which establish the same conclusion, although in another way.
But these papers must be taken in conjunction with the
letters which may controulor confirm them. What is the effect of the letters?
In almost all of them Mr.Dalrymple addresses Miss Gordon as his wife, and
describes himself as her husband.In the first letter he insists upon it, that
she shall draw upon him for any money shemay stand in need of, “for it
is her right,” and [*78]
“in accepting of it she will proveher acknowledgment of it.” Her sister he calls his sister. This
letter appears bythe post-mark to have been written before No. 2, and therefore
has been said to beentirely premature, and to give an interpretation to
subsequent expressions of thelike kind. But, non constat that it might not be
written long after the undatedpromise by which the parties entered into a
solemn engagement to marry. Verbaldeclarations, similar in their imports to the
contents of No. 2, might have passed, forit can hardly be conceived that such a
paper could have passed, without many preliminary verbal declarations to the
same effect. People do not write in thatmanner till after they have talked
together in the same style. The post-mark on theletter, No 4, is May the 30th,
and this letter refers to what passed on the night afterthe paper, No. 2, bears
date; in it he says, “You are my wife, to retract is impossibleand
ever shall be; I have proved my legal right to protect you, which I have most
fully established: nothing in this world shall break those ties” The letter, No. 5, has
theseexpressions: “Remember you are mine: that God Almighty may
preserve my wifeis the prayer of her husband.” No. 6. “It grieves me to
suffer you five minutes fromyour husband, nothing can change my sentiments,
independent even of those sacredties which unite us. Nothing ever can or should
(if ’twere possible) annul them.Put that confidence in me which your
duty requires. That God may ever preservemy wife, and inspire her with the
purest love for her husband, is the first wish of heradoring.” No 8. “I have [*79] received
letters from town which say thatLord Stair has heard of oui
marriage.” No 12.
“Whatever money you may want draw on me for without scruple.” No 13, dated May 29, 1805.
“Situated as you are, nothing could strengthen the ties which unite
us, therefore wish it not to be mentioned that you are my wife till it can be
done without injury to ourselves I insist upon a paper acknowledging yourself
as my wife.” No. 14,
dated June 10, 1805. “Forward to me the paper I requested in my last,
and acknowledge yourself my wife-that as we are not immortal I may leave you
in” trust of a friend,
the small remains of what was once a tolerable fortune; you can’t
refuse on any legal grounds, do, my dearest wife, forwaid it.” In No 15, dated June 28, 1805, he says,
“I would not give up the title of your sister’s brother for
any consideration. Don’t deny yourself what you require, as I should
not wish my wife to appear in any thing not consistent with her rank, I will
arrange before my departure money-matters, so as to give you every opportunity
of gratifying your taste, or any other fancy.” In the letter marked 14, he asks her
permission to go abroad on account of the distress of his affairs. “Will
you allow me to endeavour by a short absence to rectify these things? In asking
your consent, I humbly conjure you, dearest love, to pardon me. I solemnly
assure you I will not be absent from you very long” . In another part
of this letter he points out the period of four months as the probable duration
of his absence.
Now it is impossible to say that the exhibits, No. 2 and
10, are at all weakened by the strong [*80] conjugal expressions contained in
these letters. Taken together they, in their plain and obvious meaning, import
a recognition of an existing marriage. What is their technical meaning 1 That
information we must obtain from the learned persons who have been examined. Mr.
Erskine, Mr. Hamilton, Mr. Cragie, Mr. Hume, and Mr. Ramsay, are all clearly of
opinion that they are “present declarations” Mr. Cay is equally clear that they
“are contracts de praesenti”
Sir Hay Campbell describes them as “very explicit
mutual declarations of marriage between the parties” Mr. Clerk says
that No. 2 is evidence of a very high nature to prove that “a marriage
had been contracted by the parties; it is a full and explicit declaration of a
contract de praesenti. “No. 10,” he says, “imports little more than No. 2; it is
important evidence to the same effect.” Mr. Cathcart and Mr. Gillies, who hold a copula in all cases
necessary, do not distinctly say under which class of cases the present falls.
2 HAG COM 81 DALRYMPLE V.
DALRYMPLE 675
Upon this view I think myself entitled to lay aside, at
least for the present, the rules of law that apply to promises. The main
enquiry will thus be limited to two questions, whether, by the law of Scotland,
a present declaration constitutes or evidences a marriage without a copula,
and, secondly, whether, if it does not, the presenti evideaee supplies
sufficient proof that such a requisite has been complied with.
The determination of the first question must be taken from
the authorities of that country, deciding for myself and for the parties
entrusted to my care, as well as I can, upon their preponderance where they
disagree, and feeling that hesitation of judg- [*81] -ment which ought to
accompany any opinion of mine upon points which divide the opinions of persons
so much better instructed, in all the learning which applies to them.
The authorities to which I shall have occasion to refer
are of three classes, first, the opinions of learned professors given in the
present or similar cases, secondly, the opinions of eminent writers as
delivered in books of great legal credit and weight; and, thirdly, the
certified adjudication of the tribunals of Scotland upon these subjects. I aeed
not say that the last class stands highest in point of authority, where private
opinions, whether ia books or writing, incline on one side, and public
decisions on. the other, it wilt be the undoubted duty of the Court which has
to weigh them, stare deeisis.
Before I enter upon this examination I will premise an
observation from which I deduce a rule that ought, in some degree, to conduct
my judgment; the observation I mean is this, that 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 And whether that law remains entire or has
been varied, I take it to be a safe conclusion that, 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 Shew the variation, and the Court must
follow it; but if none is shewn, then must the Court lean upon the doctrine of
the ancient general law; for I do not find that Scotland set out upon any
original plan of deserting the ancient matrimonial law of Europe, and of
forming an entire new code upon principles hitherto un- [*82] -known in the
Christian world. It becomes of importance, therefore, to consider what is the
ancient general law upon this subject, aad, on thirpoint, it is not necessary
for me to restate that by the ancient general law of Europe, a contract per
verbs de prassenti, or a promise per verba de future cum eepuli, 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.
It appears from the case of Younger, cited by Sir Thomas Craig (lib.
2, dieg. 18, s. 19), that, in his time, the practice upon a contract de
praesenti waa the same in Scotland as it continued to be in England till the
period of the Marriage Act, viz. to compel the reluctant party to a public
celebration as matter of order. This was soon discontinued ia Scotland, on
account of the apparent incongruity of compelling a man. to marry against his
will, but with a solemn profession of love and affection to the party who
compelled him. But though they discarded the process of compulsion for some
such reason as this, which is stated by Mr. Hume, they might still consistently
retain the principle that a, present consent constituted a valid marriage. Whether
it was retained is the question I have to examine, assuming first (as I have
done) that, if the contrary is not shewn, it must so be presumed.
The evidence of opinions on this point, taken in this and
similar cases, and under similar aathcrity, stands thus: Mr. Erskine, Mr.
Cragie, Mr. Hamilton, Mr. Hume, and Mr. Batnsay, who [*83] have been examined
upon the question at present before the Court, ate all clear and decided in
their opinions that a declaration per verba de praeseati without a copula, does,
by the law of Scotland, constitute a valid marriage. I will not enter into an
examination of their authorities where they agree—oportet diseentem
credere, though, where authorities differ, it is a rule which cannot be
universally applied. Still less shall I presume to discuss their reasonings,
except in a few instances where, however desirous to follow, I find a real
inability to accompany them to their conclusions. To the authorities above
stated I must add the opinions of the learned persons examined upon the case of
Beamish and Beamish, a case which came before this Court upon a similar
question of a Scotch marriage of an Englishman with a Scotek woman in the year
1788, and in which the Court of Arches to which it was appealed, upon the
informations of law obtained from the learned advocates of
676 DALRYMPLE V. DALRYMPLE 2 HAG.
CON. M.
Scotland,
pronounced for the validity of the marriage. Mr. John Milhir, professor of law
at Glasgow, there said, “that, by the law of Scotland, the ceremony of
being married by a clergyman was not necessary to constitute a ralid marriage.
The deliberate consent of parties, entering into an agreement to take one
another for husband and wife, was sufficient to constitute a legal marriage, as
valid in every respect as that which ia celebrated in the presence of a
clergyman. Consent must be expressed or understood to be given per verba de
praesenti; for consent de futuro, that is a promise of marriage, does not
constitute actual marriage. By the Scotch law of the delibe- [*84] -rate consent
of parties constitutes marriage.” Mr. John Orr, in his deposition, said, “By the laws
of Scotland, a solemn acknowledgment of a marriage having happened between the
parties, whether verbally or in writing, is sufficient to constitute a
marriage, whether expressed in verbis de prEeseati or in an acknowledgment that
the marriage took place at a former period. A promise followed by a copula
would constitute a valid marriage; and a written instrument containing not a
eoos1/2nt de praesenti, but only stating that the parties were married at a
certain time, or even a solemn verbal acknowledgment to this effect, although
no actual marriage had taken place, is sufficient to constitute a marriage by
the law of Scotland.” Mr.
Hume said, “Marriage is constituted by consent of parties to take or
stand to each ether in the relation of husband and wife. The mode or form of
consent is not material, but it must be de prassenti” . Mr. Erskme and
Mr. Robertson agreed in saying, “that a deliberate acknowledgment of
the parties that they were married, though not containing a contract per verba
de praesenti, is sufficient evidence of a marriage, without the necessity of
proving the actual celebration.”
Mr. Clerk, 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.” Sir Ilay Campbell’s opinion
upon this important point, which the Court was particularly eager to [*85]
learn, is, through some inaccuracy of the examiner, transmitted in such a
manner as to leave it rather a matter of question which of the two opinions he
favours; for in the former part of the deposition he is made to say that
“by the general principles of the law of Scotland, marriage is
perfected by the mutual consent of parties accepting each other as husband and
wife.” In words so
express and anqualified, pointing to nothing beyond the mutual acceptance of
the parties as perfecting a marriage without reference to any future act as
necessary to be done, I thought I had received a judgment of high authority in
favour of the ancient rule that consent without a concubitus constitutes a
marriage; but in a latter part of the deposition he lays it down that this
acknowledgment per verba de praesenti must be attended with personal
intercourse, prior or subsequent; if sos it throws a doubt upon the precise
meaning of the former position, which had declared a marriage perfected by mere
mutual acceptance, “Without such intercourse,”
Sir Hay Campbell says, 11 thej would resolve into mere
stipulatio sponsalitia, where the words are de prseaenti, but the effect
future.” And here I have
to lament the difficulty I find in following so highly respectable a guide to
the conclusion, on account of a distinction that strongly impresses itself upon
my apprehension. In the stipulatio sponsalitia the words de praesenti are
qualified by the future words that follow, and which imply something more is to
be done—a public marriage to take place; but in the case supposed of a
clear present declaration, no such qualifying expressions occur-nothing
pointing to future sett* as the fulfilment of a [*86] a presnt engagement. I
find the greater difficulty in ascertaining the decided judgment of this very
eminent person, from considering an opinion of his given into the English Court
of Chancery (Lib. Reg. A. 1780, F. 552) upon a requisition from that Court, and
on which that Court acted in the ease of the Scotch, marriage. In that case,
the case of the marriage of Thomas Thomasson and Catharine Grierson, the
opinion dated August 18th, 1781, and remaining on record in Chancery, states a
present contract to be sufficient to validate a marriage, without any mention
of a copula, antecedent or subsequent; the known accuracy of his judgment would
never have allowed him to omit this, if it had been considered by him at that
time a necessary ingredient in the validity I might, perhaps, without much
impropriety, be permitted to add another legal opinion of equal authority-the
opinion of a person whose death is justly lamented as one of the greatest
misfortunes that have recently visited that country. I need not mention the
name of the Lord President
2 HAG.CON. 87. DALRYMPLE V.
DALRYMPLE 677
Blair,
upon whose deliberate advice and judgment this present suit has been asserted
in argument, and without contradiction, to have been brought into this Court
Upon this state of opinions, what is the duty of the
Court? How am I to decide betweea conflicting authorities? For to decide I am
bound. Far removed from me be the presumption of weighing their comparative
credit; it is not for me to construct a scale of personal weight amongst living
authorities, with most of whom I [*87] am acquainted no-otherwise than by the
degree of eminence which situation, and office, and public practice, and
reputation may have conferred upon them. In such a case I am under the
necessity of quitting the proper legal rule of estimating pondere, non numero;
I am compelled to attend a little to the numerical majority (though I admit
this to be a sort of ruaticum judicium), and finding that much the greater
number of learned persons recognize a rule consonant to that which, in ancient
times, governed the subject universally, I think I am not qualified to say
that, as far as the weight of opiaion goes, it is proved that the law of
Scotland has innovated upon the ancient general rule of the marriage law of
Europe. It appears to me that the common mode of expcegsion used ia Scotland,
which is constantly recurring, is no insignificant proof of the contrary doctrine.
It is always expressed-Promise cum copula, the copula is in the ordinary
phrase, a constant adjunct to the promise-never to the contract de praesenti,
strongly marking the known distinction between the two cases that the latter y
itself worked its own effect, and that the other would be of no avail, unless
accompanied with its constant and express associate.
I come now to the text authorities of the Scotch writers:
the first to whom I shall refer is Craig (Cragii jus feudale, lib. 2, dieg. 18,
§ 17 & 19). It does not appear to me thftb he is of great
authority either one way or the other: he admits generally that the question of
marriage is not hujus instituti propna, sed judicis ecclesiastici, and the case
[*88] of Younger,
which he cites from the Court of the Commissaries, is a case not of a
declaration de praesenti, but of a, promise cum copula, unless, therefore, it
is previously established that a promise cum copula converts itself in all
respects, and ia all its bearings, into a contract de praesenti without a
copula (which certainly it does in the eaaon law, and is so recognized in the
majority of the opinions upon the law oJ Scotland), it is no direct authority;
and the conclusion is still more weakened by olserviBg that, in that ease, a judicial
sentence of the commissaries had been actuaBy obtained, and that the point
determined by the common law was a mere question of miccession upon
legitimation, which may depend upon many considerations extrinsic to the
original validity of the marriage.
A more pertinent authority, and of higher consideration,
is Lord Stair, an ancestor, I presumbably of one of the present
parties—a person whose learned labours have at all times engaged the
reverence of Scotch jurisprudence. He treats of this very question, stating it
as a question, and determines it thus (Stair’s Institut. lib. 1, tit
4, § 6): “It is not every consent to the married state that
makes matrimony, but consent de praesenti, not a promise de future matrimonio.” The marriage consists not in
“the promise but in the present consent, whereby they accept each
other as husband and wife, whetfcer by words expressly, or tacitly by marital
cohabitation, or acknowledgment, or by natural commixtion where there hath been
a promise preceding, for therein is presumed a conjugal consent de praesenti,
but [*89] the consent must specially relate to that conjunction of bodies as
being then in the consenter’s capacity, otherwise it is void” I shall decline entering into the
distinctions and refinements which have attempted to convert the obviously
plain meaning of this passage into one of a very different import It does
appear to me to establish the opinion of this very learned person to be that
without a commixtion of bodies immediately following (though in all cases to be
looked to as possible, and at some time or other to take place), a present valid
marriage is constituted by a contract de praesenti.
Sir George Mackinsie (Mackinsie, Institut. book 1, tit. 6,
§ 3), Lord Advocate under King Charles and James the Second, whose
authority carries with it a fair proportion of weight, says “Consent
de praesenti is that in which marriage doth consist Coasent de futuro is a
promise; this is not marriage, for either party may Resile rebus
integris;” manifestly intimating that this could not be done under the
content de praasenti.Another authority of more modern date, but entitled to the
greatest respect, is Mr. Brskinera writer of institutional law; by him it is
expressly laid down (b. 1, tit. 6, § 5) that “marriage
consists in the present consent, whether that be by words
678 DALRYMPLE V. DALRYMPLE 2 HAG.
CON. 90.
expreasly,
or tacitly, by marital cohabitation, or by acknowledgment. Marriage may without
doubt be perfected by the consent of parties declared by writing, provided the
writing be so conceived as to import a present consent.” Nothing upon the direct meaning of
these words can be more [*90] clear than that he held bodily conjunction not
necessary in a present contract. The very note of the anonymous editor, to
whom, as an anonymous editor, no authority can be allowed, whatever may be the
weight that really belongs to it, admits this; for he says, “From the
later decisions of the Court, there is reason to doubt, if it can now be held
as law, that the private declarations of parties, even in writing, are per se
equivalent to actual celebration of marriage,” admitting, by that mode of expression,
that such was the doctrine of the text and of the times when it was composed.
Mr. Clerk says, “he considers the doetrine to be
incorrect,” thereby
likewise admitting it to be the doctrine contained in these words.
I am not enabled to say how far Mr. Hutcheson’s
book can be considered as a work of authority. It, however, carries with it
most respectable credentials, if it be true, what has been asserted in the
argument, that it has been sanctioned by the approbation of several of the
Judges of Scotland, and particularly of Sir Iky Campbell, who refers to it in
his deposition as a book of credit, and under whose patronage it is published,
and to whose perusal it is said to have been submitted previously to its
publication. His statement of the law of Scotland is full and explicit in
favour of the doctrine that private mutual declarations require no bodily
consummation to constitute a marriage. He says that the ancient principle to
this effect has been happily aetained in the law of Scotland, speaking with
similar feelings of attachment to it, whick are observable in our Swinburn,
when he talks of the Repealing Statute of Edward VI. as being worthily [*91]
and for good reasons enacted, though a regard to domestic security has induced
us to extinguish it entirely in this part of the island ty the legislative
provisions of later times. Mr. Hutcheson mentions it as a fact that in the ease
of M’Adam
against Walker none
of the Judges, who dissented from the judgment, disputed that doctrine of the
law. His testimony to such a fact is equivalent to that of any person of
unimpeached credit—even to that of Lord Stair or Mr. Erskine; he has
asserted it in the face of his profession and the public, and at the hazard of
being contradicted, if he has stated it untruly, by the united voice of the
whole bench and bar of his country
In support of the opposite opinion, mo ancient writer of
authority has been cited. The only writer named is of very modern date, Lord
Kaimes, a man of an ingenious and inquisitive turn of mind, and of elegant attainments,
but whose disposition, as he admita, did not lead him to err on the side of
excessive deference to authority and establishment. The very title of his book
is sufficient to excite caution; “Elucidations respecting the law of
Scotland” may seem to
imply rather proposed improvements than expositions of the existing law. He
says, in his preface, that “he brings into the work the sceptical
spirit, wishing and hoping to excite it in others, and confesses that he had
perhaps indulged it too much.”
But supposing that it is liable to no objection; of this kind, the whole
of his chapter on these subjects, so far as this question is concerned, relates
entirely to the effect of a promise de future cum copula, which has no
application to the present case, unless it is assumed that this amounts to the
same thing identically in [*92] law, to all intents and purposes, as a contract
de prseaenti. I must add that his extreme inaccuracy, in what he ventures to
state with respeet both to the ancient canon law and to the modirn English law,
tends not a little to shake the credit of his representations of all law
whatever. In this chapter (page 32) he asserts that by the present law of
England, a mutual promise of marriage de futuro is a good foundation to compel
a refractory party to complete the marriage, by process in the Spiritual Court.
I mean, no disrespect to the memory of that ingenious person, when I say that
it is an extraordinary fact that it should have been a secret to any man of
legal education in any part of this island that the law of England has been
directly the reverse for more than half a century.
No other reference to any known writer of eminence is
produced; it is easy, therefore to strike the balance upon 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, thirdly, to the last and highest elasa of
authorities, that of cases decided in the Scotch tribunals. Many of these have
been alluded to in the learned exposition* which have been quoted, but such of
them (and they are not few in number) as
2 HAG. CON. 93. DALRYMPLE V.
DALBYMPLE 679
apply
to the cases of promises de futuro cum copula I dismiss for the present
observing only that if a promise of this kind be equivalent to a contract de
praeseuti nudis faiibus, the result of those cases appears to me strongly to
incline to the conclusion deduced from the two former classes of authority.
[*93] With regard to decided cases, I must observe
generally that very few ara to be found, in any administration of law in any
country, upon acknowledged and settled rules. Such rules are not controverted
by litigation, they are therefore not evidenced by direct decision: they are
found in the maxims and rules of books of text-law It would be difficult, for
instance, to find an English case in which it was directly decided that the
heir takes the real, and the executor the personal estate; yet though nothing
can be more certain, it is only incidentally, and obiter, that such a matter
can force itself upon any recorded observation of a Court; equally difficult
would it be to find a litigated case in the canon law, establishing the
doctrine that a contract per verba de praesenti is a present marriage, though
none is more deeply radicated in that law.
The case of Cochmne versus Edmonston, before the Court of Session in
the year 1804, was a case of contract de prsssenti, and of this I shall take
the account given by Mr. Clerk. The Court there held, “that a written
acknowledgment de praesenti was sufficient to constitute a marriage The
interlocutor of the Lord Ordinary, which the Court adhered to, rests upon the
consent of parties to constitute a marriage de pnesenti without referring to
the copula.” Mr. Clerk
says “he cannot suppose the Court overlooked the very material
circumstance of the copula,”
which did exist in that case, and which he says “would have
been sufficient with a bare promise to bind the man to marriage.” I find great difficulty in acceding to
this observation, particularly when it is stated that the Court adhered to the
interlocutor, [*94] which expressed the directly contrary doctrine, and even if
it had not so done, it appears to me to be an inaccuracy too striking to attribute
to that Court that they should have declared consent be prajsenti sufficient,
without express mention of the copula, if they had thought it a necessary
ingredient in the validity of the marriage. What Mr. Clerk says of hia
disposition to advise an appeal, in particular cases, is not necessary to be
noticed in the present consideration, which regards only actual decisions, and
not private opinions, however respectable. He admits expressly that on the
evidence of the report he thinks it at least highly probable that some such
doctrine, as that held by Mr. Erskine, was laid down in that case by the Judges
The next case which I shall mention is that of Taylor and
Kello, which occurred in 1786. This was an action of declarator of marriage
instituted by Patrick Taylor against Agnea Kello, and was grounded on a written
acknowledgment in the following words:-” I hereby declare you, Patrick
Taylor, in Birkenshaw, my just and lawful bushand, and remain your affectionate
wife, Agnes Kello.” Kello
delivered this written declaration to Taylor, and received from him another
mutatis mutandis in the same terms, which she afterwards destroyed. There was
no sufficient evidence to support the concubitus, but the report states that
the Court, in its decision, held this to be out of the question. The
commissaries “found the mutual obligations relevant to infer marriage
between the parties, and found them married persons accordingly.” This sentence was affirmed by the Court
of Session, though that Court was [*95] much divided upon the occasion, some of
the Judges considering the declaration as merely intended to signify a
willingness to enter into a regular marriage, but a majority of the Court
thought, in conformity to the judgment of the commissaries, that the marriage
was sufficiently established. This sentence was reversed by the House of Lords,
but upon the express grounds that neither of the parties understood the papers
respectively signed by them to contain a final agreement to consider themselves
as married persons; on the contrary, it was agreed that the writing was to be
delivered up whenever it was demanded the whole subsequent conduct of the
parties proving this sort of agreement.
It appears then that this was not considered by the House
of Lords an irrevocable contract, such as that of marriage is in its own
nature, from which the parties cannot resile even by joint consent, much less
on the demand of one party only. This case, I think, goes strongly to affirm
the doctrine, that an irrevocable contract de praesenti does of itself
constitute a legally valid marriage Mr. Cathcart admits, in his deposition,
that this sentence of the commissaries, confirmed by the Court of Session,
would have been a decision in favour of the doctrine that a contract de
praesenti constitutes
680 DALRYMPLE V. DALRYMPLE 2 HAG.
CON. 96.
a
marriage, if it had not been reversed by the House of Lords. But as it was
clearly reversed upon other grounds, the authority of the two Courts stands
entire in favour of the doctrine. Mr. Gillies thinks the reversal hostile to
the doctrine, but he has not favoured the Court with the grounds on which he
entertains this opinion. Mr. Clerk contents himself with saying, that the
doctrine is not recognized: most [*96] assuredly it is not disclaimed, on the
contrary, the presumption is, that if the contract had been considered
irrevocable, the House of Lords would have attributed to it a very different
effect.
In the case of Inglis against Robertson, which was decided in the same
year, the commissaries sustained a marriage upon a contract de praesenti, and
this sentence was affirmed by the Court of Session upon appeal, and afterwards
by the House of Lords. The accounts vary with respect to the proof of
concubitus in this case, which renders it doubtful whether the decision was
grounded on the acknowledgment only, or referred likewise to the copula. If it
had no such reference, then it is a case directly in point. but if it had, it
certainly cannot be insisted upon as authority upon the present question.
The case of Ritchie and Wallace, which was before the Court of Session in 1792, is
not reported in any of the books, but is quoted by Mr Hamilton, who was of
counsel in the cause. It was the case of a written declaration of an existing
marriage, but accompanied with a promise that it should be celebrated in the
church at some future and convenient time. This very circumstance of a
provision for a future public celebration might of itself have raised the
question, in the minds of some Judges, whether these acknowledgments could be
considered as relating to a matrimonial contract already formed and perfected m
the contemplation of the parties themselves; and this is sufficient to account
for the diversity of the opinion of the Judges upon the case, without resorting
to any supposed difference of opinion on the general principle of law now
controverted. The woman was [*97] pregnant by the man when she received this
written declaration from him, but, as I understand the case, nothing rested m
judgment upon this fact; for Mr Hamilton says the woman founded on the written
acknowledgment as a declaration de praesenti constituting a marriage, which
conclusion of law was controverted by the man; but the Court, by a majority of
six Judges to three, found the acknowledgment libelled, relevant to infer the
marriage.
The case of M’Adam against Walker (13th of November, 1806), which
underwent very full discussion, ia by all parties admitted to be a direct
decision upon the point, though it was certainly attended with some difference
of opinion amongst the Judges by whom it was decided. In that case Elizabeth
Walker had cohabited with Mr. M’Adam, and borne him two daughters In
the presence of several of his servants, whom he had called into the room for the
purpose of witnessing the transaction, he deared Elizabeth Walker to stand up
and give him her hand; and she having done so he said, “This is my
lawful wife, and these my lawful children,” On the same day, without having been alone with Walker
during the interval, he put a period to his existence. The Court held the
children to be legitimate. It appears clearly that in this case there had been
a copula antecedent, though none could have taken place subsequent to the
declaration: it could not therefore have been upon the ground of want of copula
that Sir Hay Campbell, who holds a prior copula as good as a aubsequent one,
joined the minority in resisting that judgment It is stated by Mr. Hutcheaon,
as a matter of fact, that “none of the Judges dis- [*9S]-puted the
law,” but there were
other grounds of dissent arising out of the circumstances of the case,
unconnected with the legal question. “The Judges entertained doubts of
the sanity of Mr. M’Adam at the time of the marriage, they considered
also that when he made the declaration he had formed the resolution of suicide,
and therefore did not mean to live with the woman as his wife” . It is
said that this decision of the Court of Session is appealed from, and therefore
cannot be held conclusive upon the point. At any rate it expresses the judgment
of that Court upon the principle, and the appeal, whatever the ground of it may
be, does not shake the respect which I owe to that authority whilst it exists
unshaken.I might here call in aid the numerous cases where promise cum copula
has been admitted to constitute a marriage, if the rule of the canon law,
transfused into the law of Scotland, be sound, that copula converts a promise
de futuro into a contract de praesenti. If it does not, if copula is required
in a contract de praesenti, what
2 HAG. COM. 99. DALRYMPLE V.
DALEYMPLE 681
intelligible
difference is there between the two-between a promise de fnturo and a contract
de prasenti ? None whatever. They stand exaetly upon the same footing. A
propbatioa, I will venture to say, never heard of in the world, except where
positive regulation bag so placed them, till these receit controversies
respecting the state of the marriage law of Scotland.
I might also advert to the marriages at Gretna Green,
where the blacksmith supplies the place of the priest or the magistrate. The
validity of these marriages has been affirmed in England upon the [*99]
certificates of Scotch law, without reference to any act of consummation, for
such I think was clearly the exposition of the law as contamed in die opinion
of Sir Hay Campbell, upon which the English Court of Chancery founded its
decision in the case of Grierson and Grierson.
What are the cases which have been produced in
contradiction to this doctrine? As far as I caR judge, none—except
cases similar to those which have been already stated, where the superior Court
has overruled the decisions of the Court below, and pionouneed against the
marriage, upon grounds which leave the principle perfectly untouched. The ease
of M’Lauchlan, contrà Dobson, in December, 1796, was a case of contract per verbs de
praesenti where there was no copula, in which the commissaries declared for the
validity of the marriage, and the interlocutor was altered by the Court of
Session. But upon what grounds was that sentence reversed? Mr. Hutcheson states
that the Court did not think there was sufficient evidence of a real de
praesenti matrimonial consent.”
Mr. Hume says “the conduct of the parties had been variable and
contradictory;” and Sir
Hay Campbell says “there were circumstances tending to shew that the
parties did not truly mean to live together.” The dicta of Lord Justice Clerk
M’Queen have been quoted and much relied upon; but I must observe that
they comer before the Court in a way that does not entitle them to much
judicial weight: they/ are stated by Mr. Clerk to be found in notes of the
handwriting of Mr. Henry Erakine, who is not himself examined for the purpose
of authenticating them, althongh interrogatories are addressed to other [*100]
persons with respect to other legal authorities, for which they are much less
answerable. They are taken very briefly, without any context, nor is it stated
in what manner, whether in the form of discussion or decision, they fell from
that learned Judge. He is, however, made to say, “The case of M’Laughlan against Dobson is new, but the law is old and
settled. Two facts admitted hinc inde, no celebration, no concubitus, nor
promise of marriage followed by copula; contract as to land not binding till
regularly executed, unless wheoe res non sunt integra.” This proposition that
“contract as to land not binding till regudlarly
executed,” proves little,
because it may refer to rules that are confined to agreements respecting that
species of property, and even with regard to that species of profterty the
contract may be sufficiently executed by the signing of articles or deeds,
thougk there is no entry upon the land. “A promise without copula
locus poenitentiae—even verbal consent de praesenti admits
poenitentia” —that is the matter to be proved. “Form
of contracts contains express obligation to celebrate, till that is done either
party may resile.” The
reason is that these same forms contain worda which qualify the present
engagement by giving them a mere promissory effect.” Private content is not the consensus
the law looks to. It must be before a priest or something equivalent; they must
take the oath of God to each other;” this may be done in private to each other, as it actually
was done in the case of Lord Fitamauriae: “a present consent not
followed by any thing may be mutually given up, bat H to, it cannot be a
marriage” To be sure, if
the propositions contained [*101] in these dicta are correct, if it be true
that a contract de praesenti may be mutually givta up, that certainly it cannot
constitute a marriage; but that is the very question which is now to be
determined upon the comparative weight of authorities; I admit the authority of
Lord Braxfield, deliberately and directly applied to any proposition to Tfhieh
hiª Bind was addressed, to be entitled to the highest respect; but I have
already adverted to the Loose manner in which these dicta are attributable to
him, and it is certamly a pretty strong circumstance against giving full effect
to these diets so introduced, without context and without authentication, that
Lord Braxfield, as Lord ddinary, refused the bill of advocation in the case of
Taylor and Kello, compiaiBttg of the sentence of the Consistorial Court, which
found “mutual obligations relevant to infer a marriage.”
The other case that has been mentioned is that of M’Innes against More, which came, before the House of
Lords upon appeal in the year 1782. The facts therein
682 DALRYMPLE V. DALRYMPLE 2 HAG. CON. 102.
were
that the man, at the woman’s desire, had signed the acknowledgment not
for the purpose of making a marriage, but merely as a colour to serve another
and different purpose mutually concerted between them, namely, that of
preventing the disgrace arªng from the pregnancy of the woman. The commissaries
and the Court of Session had found the facts relevant to infer a marriage, but
the House of Lords, considering the transaction as a mere blind upon the world,
and that no alteration of the statais personarnm was ever intended by the
parties themselves, reversed the sentence, and pronounced against the marriage
[*102] I am not aware of any other decided cases which
have been produced against the proposition, that a contract de praesenti (be it
in the way of declaration or acknowledgment) constitutes, or, if you will,
evidences a marriage. It strikes me, upon, viewing these cases, that such of
them as are decided in the affirmative have been adjudged directly upon this
principle, and that where they have been otherwise determined, it turns out
that they have rested upon specialties, upon circumstances which take them out
of the common principle and produce a determination that they do not come
within it. If they do not go directly to the extent of affirming the principle,
they at least imply a recognition of it, a sort of tacit assent and submission
to its antberity, an acknowledgment of its being so deeply intrenched in the
law, as not to be assailable in any general and direct mode of attack. The
exceptions prove the rule to a certain degree. It was proved in all those eases
where there was a judgment apparently contradictory, that in truth they were
not real matrimonial contracts de praesenti. The effect was not attributed to
them, because they were not considered as such contracts. I cannot but think
that when case upon case came before the House of Lords, in which that
principle was constantly brought before their eyes, they would have reprobated
it as vicious if they had deemed it so instead of resorting to circumstances to
prove that the principle could not be applied to them. I may, without
impropriety, add that the Lord Chancellors of England have always, as I ana
credibly informed, in stating their understanding of Scotch law upon such
subjects to the House of Lords, particularly Lord [*103] Thurlow, been anxious
to lold out that law to be strictly conformable to the canonical principles,
and have scrupulously guarded the expressions of the public judgments of the
House, against the possible imputation of admitting any contrary doctrine
Upon the whole view of the evidence applying to this
point, looking first to the role of tie general matrimonial law of Europe-to
the principle which I venture to assume that such continues to be the rule of
Scotch matrimonial law, where it is not shewn that that law has actually
resiled from it-to the opinions of eminent professors of that law-to the
authority of text writers, and to the still higher authority of decided cases
(even without calling in aid all those cases which apply a similar rule to a
promise cam copula) I think that being compelled to pronounce a judgment upon
this point, I am bound to say that I entertain as confident an opinion as it
becomes me to do, that the rule of the law of Scotland remains unshaken; that
the contract de praesenti does not require consummation in order to become
“very matrimony;”
that it does, ipso facto, et ipso jure, constitute the relation of man
and wife. There are learned and mgenious persons in that country, who appear to
think this rule too lax, and to wish to bring it somewhat nearer to the rule
which England has adopted j but on the best judgment which I can form upon the
subject, it is an attempt against the general stream of the law, which seems to
run in a direction totally different, and is not to be diverted from its course
by efforts so applied. If it be fit that the law of Scotland should receive an
alteration, of which that country itself is the [*104] best judge, it is fit
that it should receive that alteration in a different mode than that of mere
interpretation.
When I speak of a contract, I mean of course one that is
attended with such qualifications as the law of Scotland requires for such a
contract, and which in truth appear to me to be very little more than what all
law requires for all contracts of every description, and without which an
apparent contract upon any subject is, in truth, no contract at all; for having
been led, by the manner in which theae qualifications are sometimes described,
to suppose at first that they were of a peculiar and characteristic nature, I
really cannot, upon consideration, discover in them any thing more than the
ordinary qualifications requisite in all contracts. It is said that the
marriage contract mast not be extorted by force or fraud. Is it not the general
law of contracts that they are vitiated by proof of either? In the present
case, menace
2 HAG. CON. 1O5 DALRYMPLE V.
DALRYMPLE 683
and
terror are pleaded in Mr. Dalrymple’s allegation as to the execution
of the first contract No 2, for as to the promise No. 1, he admits that it was
given merely at the entreaties and instigation of the lady (an admission not
very consistent with the suggestion of the terror afterwards applied), but he
asserts that he executed this contract, “being absent from his
regiment, without leave, alone with her, and unknown to her father, and urged
by her threats of calling him in.” What was to be the effect of calling in the father, which
produced so powerful an impression of terror in his mind, he does not explain;
still less does he attempt to prove the fact, for ha has act read the only
evidence that could apply to it, the sworn answers of the lady to [*105] this
statement of a transaction passing secretly between themselves, and in which
answers it is positively denied. This averment of menace and terror is
perfectly inconsistent with every thing that follows, with the reiterated
declaration contained in No. 10, and with the letters which he continued to
write in the same style for a year afterwards. Could the paper No. 10 have been
executed by a man smarting under the atrocious injury of having been compelled
by menaces to exeec&e one of the like import1? Could these letters,
breathing sentiments of unalterable fondness, have been addressed to the person
by whom he had been so treated ? Nothing can be apparently more unfounded than
this suggestion of menace and terror. It is said that it must be a deliberate
contract. It is, I presume, implied in all contracts that the parties have
taken that time for consideration which they thought necessary, be that time
more or less, for no where is there assigned a particular tempus dehberandi for
the marriage contract any more than for any other contract.
It is said that it must be serious, so surely must be all
contracts; they must not be the sports of an idle hour, mere matters of pleasantry
and badinage, never intended by the parties to have any serious effect
whatever; at the same time it is to be presumed that serious expressions,
applied to contracts of so serious a nature as the disposal of a man or woman
for life, have a serious import. It is not to be presumed a priori that a man
is sporting with such dangerous play—things aa marriage engagements,
Again it is said that the animus contrahentium must be regarded: is that
peculiar to the marriage contract 1 It is in the intention of the [*106]
parties that the substance of every species of contract subsists, and what is
beyond or adverse to their intent does not belong to the contract. But then
that intention is to be collected (primarily at least) from the words in which
it is expressed; and in some systems of law, as in our own, it is pretty
exclusively so to be collected. You are not to travel out of the intention
expressed by the words to substitute an intention totally different and
possibly inconsistent with the words. By the matrimonial law of Scotland a
latitude is allowed which to us (if we had any right to exercise a judgment on
the institutions of other countries with which they are well satisfied) might
appear somewhat hazardous, of substituting another serious intention than that
which the worsts express, to be proved by evidence extrinsic, and totally, as
we phrase it, dehors the instrument. This latitude is indulged in Scotland to a
very great degree indeed, according to Mr. Erskine In all other countries a
solemn marriage in facie ecclesise facit idem; the parties are concluded to
mean seriously, and deliberately, and intentionally, what they have avowed in
the presence of God and man under all the sanctions of religion and of law; not
so in Scotland where all this may pass, as Mr. Erskine relates, and yet the
parties are at liberty to shew that by virtue of a private understanding
between themselves, all this is mere imposition and mockery, witkout being
entitled to any effect whatever.
But be the law so, still it lies upon the party who
impeaches the intention expressed by the words, to answer two demands which the
law, I conceive, must be presumed to make upon him; first, he must assign ami
prove some other intention; and, [*107] secondly, he must also prove that the
intention so alleged by him was fully understood by the other party to the
contract at the time it was entered into: for surely it cannot be represented
as the law of any civilized country that in such a traasaction a man shall use
serious words, expressive of serious intentions, and shall yet be afterwards at
liberty to aver a private intention, reserved in his own breast, to avoid a
contract which was differently understood by the party with whom he contrasted.
I presume, therefore, that what is said by Mr. Craigie can have no such
meaning, “that if there is reason to conclude from the expressions
used that both or either of the parties did not understand that they were truly
man and wife, it would
684 DALRYMPLE V. DALRYMPLE 2 HAG.
CON. 108.
inter
into the question whether married or not,” because this would open a door to frauds which the justice,
and humanity, and policy of all law must be anxious to keep shut. In the
present case no other animus is set up and endeavoured to be substituted, but
the animus of avoiding danger, on which I have already observed. The assignment
oitlat intent does almost necessarily exclude any other, and indeed no other is
assigned; and as to any plea that it was differently understood by Miss Gordon,
the other party in this cause, no such is offered, much less is any proof to
that effect produced unless it can be extracted from the letters.
Do they qualify the express contracts and shew a different
intention or understanding? It has been argued that they contain some
expressions which point to apprehensions entertained by Miss Gordon that Mr.
Dairymple would resile from the obligations of the contract, and others that
are [*108] intended to calm those apprehensions by promises of eternal
fidelity, both which, it is said, are inconsistent with the supposition that
they had knowingly constituted themselves husband and wife, and created
obligations de prassenti, from which neither of them could resile.
In the first place, is there this real inconsistence? Do
the records of this Court furnish no such instance as that of the desertion of
a wife by her husband? And is such an occurrence so entirely out of all
reasonable apprehension in a case like the present1? Here is a young gentleman,
a soldier, likely to be removed into a country in which very different ideas of
marriage prevail, amongst friends who would discountenance this connection, and
amongst numerous objects which might divert his affections and induce him to
repent of the step he had taken in a season of very early youth, and in a fit
of transient fondness that a wife left in that country exposed to the chances
of a change in his affections, to the effect of a long separation, to the
disapprobation of his friends, to the impressions likely to be made by other objects
upon a young and unsettled mind, should anticipate some degree of danger is
surely not unnatural, equally natural is it that he should endeavour to remove
them by these renewed professions of constancy But supposing that Miss Gordon
really did entertain doubts with respect to the validity of her marriage, what
could be the effect of such doubts? Surely not to annul the marriage if it were
otherwise uninapeached. We are at this moment enquiring with all the assistance
of the learned professors of law in that country, amongst whom there is great
discordance of [*109] opinion, what is the effect of such contracts. That
private persona, compelled to the necessity of a secret marriage, might
entertain doubts whether they had satisfied the demands of a-law which has been
rendered so doubtful, will not affect the real sufficiency of the measures they
had taken. Mr. Dalrymple might himself entertain honest doubts* qpon this point
j but if he felt no doubt of his own meaning, if it was his intention to bind himself
so far as by law he could, that is enough to sustain the contract; for it is
not his uninformed opinion of law, bat his real intention that is to be
regarded. A public marriage waa impracticable; he does all that he can to
effect a marriage which was clandestine, not only at the time, but which was
intended so to continue The language is clear and unambiguous in the expression
of intent. No other intention is assigned: and it is not such expressions as
these, arising naturally out of the feelings which must accompany such a
transaction, that can at all affect its validity.
The same observations apply to the expressions contained
in the later letters written to Mr. Hawkins. In one of them she says,
“my idea is that he is not aware how binding his engagements are with
me,” and possibly he
might not. Still if he meant at the time to contract so far by law as he could,
no doubts which accompanied the transaction, and still less any which followed
it, can at all alter its real natuie and effect. Miss Gordon had likewise her
later hours of doubt, and even of despondency; “you will never see me
Mrs. Dalrymple,” she
says, in the spring of 1807, to her sister; and when it is considered what
difficulties she had to [*110] encounter, at what an immense distance she then
stood from the legal establishment of her claims having lost her hold upon his
affections, it cannot be matter of great surprize if in the view of a prospect
so remote and cloudy, some expression of dismay and even of despair should
occasionally betray the discomposure of her mind. As to what she observes upon
the alternative suggested by some friend, of a large sum of money in lieu of
her rights (a proposition which she indignantly rejects) it seems to paint
rather to a corrupt purchase of her silence than to any idea existing in her
mind of a claim of damages, by way of a legal solamen, for the breach of a mere
promissory contract.
2 HAG. CON. 111 DALRYMPLE V.
DALRYMPLE 685
The declarations, therefore, not being impeached by any of
those disqualifications by which, io the law of Scotland, a, contradictor is
permitted to redargue and overcome the presumption arising from the production
of such instruments, they become, in this stage of the matter, praesumptiones
juris et de jure that found an instant conelosion of marriage, if I am right in
the position that carnal copulation is not absolutely required to its
completion. The fact that these papers were left in her single possession is
insignificant, for it has well been observed by Dr. Burnaby that it is net
mutuality of possession, but mutuality of intention, that is requisite. It is
much more natural that they should be left in the possession of the lady, she
being the party whose safety is the more special object of protection, but
there is no proof here that Mr. Dalrymple himself is not possessed of a similar
document He anxiously requested to have one, and the non-production of it by
him [*111] furnishes no conclusive proof that he did not obtain his request. If
he did not, it may have been an act erf imprudence that he confided the proofs
of his marriage entirely to the honour of the lady; but if he did it is
perfectly clear that she has not betrayed the trust.
But I will now suppose that this principal position is
wrong: that it is either extracted from erroneous authorities, or erroneously
extracted from authorities that are correct. I will proceed then to enquire
what proof there is of carnal copulation having taken place between the
parties; and upon this point I shall content myself with such evidence as the
general law requires for establishing such a fact: for I find bo reference to
any authority to prove that the law of Scotland is more rigid in its demand,
where the fact is to be established in support of a marriage than for any ether
purpose. It may have happened that the fact of carnal copulation has been
established by a pregnancy, or some other evidence of as satisfactory a kind,
in the few cases which have been transmitted to us, but I find no such
exclusive rule as that which has been ingeniously contended for by Dr. Edwards;
and I take it as an incontrovertible position that the circumstances which
would be sufficient to prove intercourse in any other case would be equally
sufficient in this case. I do not charge myself in so doing with going farther
than the Scotch Courts would do, and would be bound to do, attending to the
established rules of evidence.
In the first place, I think it is most strongly to be
inferred from the paper, No. 2,that some intercourse of a conjugal nature
passed between these [*112] parties. MissGordon therein says, “I
hereby promise that nothing but the greatest necessity (necessity which
situation alone can justify), shall ever force me to declarethis
marriage.” Now what other
possible explanation can be given of this passage, or how can it be otherwise
understood than as referring to the consequences which might follow from such
an intercourse? I confess that I find myself at a loss to know how the blank
can- be otherwise filled up, than by a supposition of consequences which would
speak for themselves and compel a disclosure.
I observe that Mr. Dalrymple denies in his allegation that
any intercourse took place after the date of the written declarations, which
leaves it still open to the possibility of intercourse before that time, though
he certainly was not called upon to negative a preceding intercourse, in
consequence of any assertion in the libel which he was bound to combats It
will, I think, be proper to consider the state of mind and conduct of the
parties relatively to each other at this time. Preliminary verbal declarations
of mutual attachment must at least have passed (as I have already observed)
before the promise contained in No. 1 was written, at whatever time that paper
was written. In the first letter, which bears the post-mark of the 27th of May,
whether relying on this paper if it then existed, or on declarations which had
verbally passed between them, he thinks himself entitled to address her as his
wife in the most endearing terms. On the following day, the 28th, the
instrument which has baem produced is signed, by which they mutually
acknowledge each other as husband and wife. Letters continue to pass between
them [*113] daily, and sometimes more than onee in a day, expressive of the
most ardent and eager affection on his part, which can leave no room for the
slightest doubt that he was, at that time, most devotedly attached to her
person, and desirous of the pleasures connected with the enjoyment of it in some
way or other; for to what other motive can be ascribed such a series aad stile
of letters from a yoang man, writing voluntarily, without any appearance of
idle pleasantry, and with every character of a sincere pursuit, whether
honourable or otherwise. What was the state of mind and conduct of the lady
during this period ol time 1 It is not to be presumed from the contents of his
letters tkat she waa either indifferent or repulsive.
686 DALRYMPLE V. DALRYMPLE 2 HAG.
CON. 114
The imputation indeed, which has been thrown upon her, is
of a vary different kind, that she was an “acute and active female
who, with a knowledge of the law of the country, which Mr. Dalrymple did not
possess, was endeavouring, quicunque via data, to engage him in a marriage. To
this marriage she has inflexibly adhered, and now stands upon it before this
Court; so that whatever might be the real state of her affections towards this
gentleman (which can be known only by herself) this at least must be granted,
that she was most sincerely desirous of this marriage connection, which
marriage connection, both of them perfectly well knew, could not be publicly
and regularly obtained. Taking then into consideration these dispositions of
the parties, his desire to obtain the enjoyment of her person on the one hand,
and her solicitude to obtain a marriage on the other, which after the delivery
of such instruments ihe knew might at all [*114] events be effectually and
honourably obtained by the mere surrender of her person, what is the probable
consequence ? In this part of the island the same circumstances would not
induce the probability of a private surrender, because a public ceremony being
here indispensably required, no young woman, acting with a regard to virtue,
and character, and common prudence, would surrender her person in a way which
would not only not constitute a marriage, but would, in all probability, defeat
all expectation of such an event.
In Scotland the case is very different, because, in that
country, if there are circumstance* which require the marriage to be kept
secret, the woman, after such private declarations past, carries her virgin
honours to the private nuptial bed, with as much purity of mind and of person,
with as little violation of delicacy, and with as little loss of reputation as
if the matter was graced with all the sanctities of religion. It is in vain to
talk of criminality, and of grossness, and of gross ideas. In such a case there
are no other ideas excited than such as belong to matrimonial intercourse. It
is the “bed undefiled”
according to the notions of that country: it is the actual ceremony as
well as the substance of the marriage it is the conversion of the lover into
the husband. transit in matrimonium, if it was not matrimonium before. A most
forcible presumption therefore arises that parties so situated would, for the
purpose of a secret marriage, resort to such a made of effecting it, if
opportunities differed it must almost, I think, be presumed that Mr. Dalrymple
was in that state of incapacity to enter into such a contract, which [*115]
Lord Stair alludes to, if he took no advantage of such opportunities; for
nothing but the want of opportunity oan repel such a presumption.
Now how does the evidence stand with respect to the opportunity
of effecting such a, purpose 1 The connection lasted during the whole of Mr.
Dalrymple’s stay in Scotland and was carried on, not only by letters
couched in the most passsionate terms, but as admitted (and indeed it could not
be denied) by nocturnal private visits, frequently repeated, both at Edinburgh
and at Braid, the country-seat of Mr. Gordon, in the neighbourhood of that
eity. Upon this part of the case six witnesses have been examined, who lived as
servants in the family of Mr. Gordon. Grizell Lyall, whose principal business
it was to attend on Miss Charlotte Gordon, one of the sisters, but whe
occasionally waited on Miss Gordon, says “that Captain Dalrymple used
to visit in Mr. Gordon’s family in the spring of 1804; that before the
family left Edinburgh she admitted Captain Dalrymple into the house by the
front door, by the special order of Miss Gordon, in the evenings; that Miss
Gordon’s directions to her were that when she rung: her bell once, to
come up to her in her bed-room, or the dressing-room off it, when she got
orders to open the street door to let in Captain Dalrymple; or when she (Miss
Gordon) rung her bell twice that she should thereupon, without coming up to
her, open the street door for the same purpose; that agreeably to these
directions she frequently let Capt. Dalrymple into the house about nine, ten,
or eleven o’clock at night, without his ever ringing the bell, or
using the knocker, that the first time he came [*116] in this way, she shewed
him up stairs to the dressing-room off the young ladies’ bed-room,
where Miss Gordon then was, but that afterwards, upon her opening the door, he
went straight up stairs, without speaking, or being shewn up; but how long he
continued up stairs she does not know, as she never saw him go out of the
house; that the dressing-room above alluded to, was on the floor above the
drawing-room, and adjoining to the bed-room where the three young ladies slept,
and next to the ladies’ bed-chamber was another room, in which there
was a bedstead with a bed and blankets, but no curtains or sheets to the bed,
and it was considered as a luiaber room, the key of which was kept by Miss
Gordon.” She says that
she recollects,
2 HAG. CON. 117 DALRYMPLE V.
DALRYMPLE 687
and it
is a fact is which she is confirmed by another witness, Robertson,
“that the family removed from Edinburgh to Braid that year, 1804, on
the evening before a King’s Fast” (the King’s Fast Day for that year was on the 7th
of June), “and on a Wednesday, as she thinks, as the Fast Days are
generally held on a Thursday; that at this time Miss Charlotte waa at North
Berwick, on a visit to Lady Dalryraple; that Mr. Gordon and Miss Mary went to
Braid in the evening, but Miss Gordon remained in town, as she Lyall also did,
and Mr. Robertson the butler, and one or two more of the servants.”
It appears from the testimony of other witnesses that Mr.
Gordon her father appeared much dissatisfied that this lady did not accompany
himself and her sister to Braid, but chose to stay in town upon that occasion.
There are passages in Mr Dalrymple’s letters which point to the
necessity of her [*117] continuance in town, as affording more convenient
opportunities for their meeting. Lyall states, “that she recollects
admitting Captain Dalrymple that evening, as she thinks, some time between ten
aad twelve o’clock, and he went up stairs to Miss Gordon without
speaking; that on the nexfemeraing she went up as usual to Miss Gordon’s
bed-room about nine o’clock, aad informed her of the hour; and having
immediately gone down stairs, Miss Gordon rung her bell some time after, and on
the deponent going up to her, she met her, either at the bed-room door or at
the top of the stairs, and desired her to look if the street door waa kicked or
unlocked; and the deponent having examined, informed her that it was unlocked,
and immediately after went into the dressing-room, and, after being a, very
short time in it, she heard the street door shut with more than ordinary force,
which having attracted her notice, she opened the window of the dressing room
which is to the street, and on looking out she observed Capt Dalrymple walking
eastwards fiona Mr. Gordon’s house; that from this she suspected that
Captain Dalrymple was the person who had gone out of the house just before;
that nobody could have come in by the said door without being admitted by some
person within, as the door did not open from without, and she heard of no
person having been let into the house on this occasion; that having gone down
stairs after this, Mr. Robertson, the butler, observed to her that there had
been company up stairs last night, but she did not mention to him any thing of
her having let in Capt. Dal- [*118] -rymple the night before, or of her
suspicions of his having just before gone out of the house, at least she is not
certain, but she recollects that he desired her to remember the particular day
on which this happened.”
Now from this account given by Lyall, the counsel have attempted to
raise a doubt, whether it was Mr. Dalrymple who went out, for it is said that
he would have cautiously avoided making a noise for fear of exciting attention.
But the account Lyall gives is exactly confirmed by Robertson, who deposes
“that on the 7th of June, whieh was the King’s Fast, as he
was employed about ten o’clock in the morning in laying up some china
in his pantry, which is immediately oft* the lobby, he observed Captain
Dalrymple come down stairs, and passing through the lobby to the front door,
unlock it, and go out and shut the door after him.” Some observations have been made with
respect to Robertson’s conduct, and he has been called a forward
witness, because he made a memorandum of this circumstance at tbe time it
occurred; but I think his conduct by no means unnatural. Here was a
circumstance of mysterious intercourse that attracted the attention of several
of the setvants, and it is not at all surprising that this man, who held a superior
situation aaongst them, in Mr. Gordon’s family, and who appears to be
an intelligent, well edueated, and observing person, as many of the lower order
of persons in that country are, should think it right, in the zeal he felt for
the honour of his master’s family, to make a record of such an
occurrence. In so doing, I do not think that he has done any thing more than is
consistent with the character of a very [*119] honest and understanding servant
who might foresee that such a record might, one day or other, have its use.
The witness Lyall goes on to say “that Miss Gordon and herself went to
Braid that day (being the King’s Fast) before dinner, and that on tkat
evening or a night or two after, she was desired by Miss Gordon to open the
window of the breakfast parlour to let Captain Dalrymple in, and she did so
accordingly, and found Captain Dalrymple at the outside of the window when she
came to open it, and this she thinks might be between ten and twelve
o’clock, and she shewed him up stairs, when they were met by Miss
Gordon at the door of her bed-chamber, when they two went into said chamber,
and she returned down stairs, that she does not know how long Captain Dalrymple
remained there with Miss Gordon, or when he
688 DALRYMPLE V. DALRYMPLE 2 HAG.
CON. 120.
went
away;” she states that
“Miss Charlotte returned from her visit at North Berwick a few days
after Miss Gordon and the deponent went to Braid; that at Braid Miss Gordon and
Miss Charlotte slept in one room and Miss Mary in another. that within Miss
Gordon and Miss Charlotte’s bed-chamber there was a dressing-room, the
key of which Miss Gordon kept; and she recollects one day getting the key of it
from Miss Gordon to bring her a muff and tippet out of it, and upon going in
she was surprised to find in it a feather-bed lying upon the floor without
either blankets or sheets upon it, so far as she recollects: that it struck her
the more as she had frequently been in that room before without seeing any bed in
it; and as Miss Gordon kept the key she imagined she must [*120] have put it
there herself; that she found this bed had been taken from the bed-chamber in
which Miss Mary slept, it being a double bedded room; that when she observed
the said bed in the dressing-room it was during the time that Captain Dalrymple
was paying his evening visits at Braid; that upon none of the occasions that
she let Captain Dalrymple into Braid House did she see him leave it, nor did
she know when he departed.” Three other witnesses, Robertson and the two gardeners, have been
examined upon this part of the case, and they all prove that Mr. Dalrymple was
seen going into the house in the night or coming out of it in the morning.
It is proved likewise that Porteous, one of the servants,
was alarmed very much that the window of the room where he kept his plate was
found open in the morning, and that it most have been opened by somebody on the
inside: it is proved that nothing was missing, not an article of plate was
touched, and that Mr. Dalrymple was seen by the two gardeners very early in the
morning coming away from the house, and in the vicinity of the house, going
towards Edinburgh; and as to what was suggested that he might have been in the
outhouses all night, I think it is not a very natural presumption that a
gentleman who was privately and habitually admitted into the house at such late
hours as eleven or twelve o’clock at night would have been ejected
afterwards for the purpose of having so uncomfortable a situation for repose,
ae the gentlemen suppose, in some of the stables or hovels belonging to the
house. There ia another witness of the name of Brown, Mr. Dalrymple’s
own servant, whose evidence is strongly corrobo- [*121] -rative of the natuie of
those visits. This man is produced as a witness by Mr. Dalrymple himself, and
he states that he waa in the habit of privately conveying notes from his master
to Miss Gordon, which were to be 5oncealed from her father. He says to the
second interrogatory, “that he often accompanied his master to Mr.
Gordon’s house at Edinburgh, but he cannot set forth the days upon
which it was he so attended him there, except that it was between the 10th of
May, and the 18th of July, 1804,” subsequently therefore to the execution of the last paper.
This witness further states, “that on the night of the 18th of July,
which was the last time Mr Dalrymple was in or near Edinburgh in the said year
1804, he, by the orders of his master, waited with the curricle at the house of
Charles Gordon, Esq., till about twelve o’clock, when Mr. Dalrymple
came out of the said house and got into the curricle and rode away therein
about a mile on the road towards Edinburgh, and then desired him to stop, and
having told him to go and put up his horses in Edinburgh and to meet him again
on the same spot at six o’clock the next morning with the curricle,
Mr. Dalrymple then got out and walked back towards the said Mr.
Gordon’s house, and on the next morning at six o’clock he met
his master at the appointed spot and brought him in his said curricle to
Haddington, from whence he went in a, chaise to the house of a Mr. Nisbet in
the neighbourhood of that town, where Mr. Dalrymple’s father was then
staying, that he does believe that Mr. Dalrymple did, on the night of the said
18th of July, go back to [*122] and remain in the said Mr. Gordon’s
country-house:” and I
think it is impossible for any body who has seen this man’s evidence
and the evidence of the other witnesses, not to suppose that he did go there
and did take his repose for the night in that house. Now it is said, and truly
said in this ease, that the witness Lyall upon her cross examination says,
“she does not think that they could have been in bed together, so far
as she could judge;” what
means she took to form her judgment does not appear; the view taken by her
might be very cursory: she is an unmarried woman and might be mistaken with
respect to appearances, or the appearances might be calculated for the purposes
of deception in a connection which was intended to be, to a great degree,
secret and clandestine. But the question is not what inference Lyall draws, but
what inference the Court ought to draw, from the fact proved by her evidence
that Mr. Dalrymple
2 HAG. CON. 121 DALRYMPLE V.
DALRYMPLE 689
passed
the whok of the night in Miss Gordon’s room under all the
circumstances described, with passions, motives, and opportunities all
concurring between persons connected by ties of so sacred a nature.
Lady Johnstone, one of her sisters, has been relied upon
as a strong witness to negative aoy sexual intercourse; and I confess it does
appear to me rather an extraordinary thing that that lady’s
observations and surmises should have stopped short where they did, considering
the circumstances which might naturally have Led her to observe more and to
suspect more: she certainly was kept in the dark or at least in a twilight
state. It rather appears from the letters that there were some quarrels and
disagreements be- [*123] -tween Mr. Dalrymple and the gentleman who afterwards
married this lady, and who was then paying his addresses to her; how far that
might occasion concealment from her I cannot say. The father, for reasons of propriety
and delicacy respecting himself and family, was to be kept in ignorance, and
therefore it might be proper that only half a revelation should be made to the
sister. Sbe certainly states that upon her return to Braid, in the middle of
June, she slept with her sister and never missed her from her bed, and never
heard any noise in the sister’s dressing-room which led her to suppose
that Mr. Dalrymple was there. I am far from saying that this evidence of Lady
Johnstone’s is without weight: in truth it is the? strongest adverse
evidence that is produced on this point: but she admits “that from
what she had herself observed she had no doubt but that Mr Dalrymple had made
his addresses to her sister in the way of marriage; that when the deponent used
to ask her said sister about it, she used to laugh it off.” from which it appears that Miss Gordon
did not communicate freely with her upon the subject. She says “that
neve? till after the proceedings in this cause had commenced had she heard that
they had exchanged written acknowledgments of their being lawful husband and
wife, and had consummated their marriage; but, on the contrary, always, till
very lately, conceived that they had merely entered into a written promise with
each other so as to have a tie upon each other that neither of them should
marry another person without the consent of the other of them.” That is the interpretation this lady
gives to the paper No. 10, [*124] though that paper purports a great deal more, and she says “that although she did suspect that Mr. Dalrymple had at some time or times been in her sister’s dressing-room, yet she never
did imagine that they had consummated a marriage between them.” But since it is clearly proved by the
other witnesses that Mr. Dalrymple was in the habit of going privately to Miss Gordon’s bed-room at night, and going out clandestinely in the morning, I cannot think that the ignorance of this witness respecting a
circumstance with regard to which she was to be kept in ignorance, can at all invalidate the facts spoken to by the other witnesses, or the conclusion that ought to be deduced from them.
With respect to the letters written at snch a time as
this, I am not disposed to scan with severe criticism the love-letters of a
very young gentleman, but they certainly abound with expressions which,
connected with all the circumstances I have adverted to, cannot be interpreted
otherwise than as referring to such an intercourse. I exclude all grossness,
because, considered as a conjugal intercourse, it carries with it no mixture of
grossness but what may be pardonable in a very young man alluding to the
raptures of his honey-moon, when addressing the partner of his stolen
pleasures. I will state some passages, however, which appear to point at
circumstances of this nature: “My dearest sweet wife—You are, I dare
say, happy at Queen’s Ferry, while your poor husband is in this most
horrible place, tired to death, thinking only on what he felt last night, for
the height of human happiness was his.” It is said that this has reference only to the happiness
which he enjoyed in her [*125] society, for an expression immediately follows
in which he extols the happiness of being in the society of the person,
beloved: and it may be so, but it must mean society in a qualified sense of the
word, private and clandestine society; society which commenced at the hour of
midnight and which he did not quit till an early hour (and then secretly) in
the morning. That society is meant only in the tamest sense of the word is an
interpretation which I think cannot very well be given to such expressions as
these, used upon such an occasion. In the letter marked No. 6 he says,
“Put off the journey to Braid if possible till next week, as the town
suits so much better for all parties. I must consult L, on that point
to-morrow, as I well know how a-propos plans come into her pretty bead; there
appears to me only one difficulty, which is where to meet, as there is only one
room, but we must obviate that if possible.” In the next letter, No. 7, he
690 DALRYMPLE V. DALRYMPLE 2 HAG.
COM. 126
says,
“But I will be with you at eleven to-morrow night; meet me as usual. P
S.— Arrange everything with L. about the other room”
There are several other expressions contained in these
letters which manifestly point to the fact of sexual intercourse passing
between them. These I am unwilling to dwell upon, with any particular detail of
observation, because they have been already stated in the arguments of counsel,
and are of a nature that does not incline me to repeat them without absolute
necessity, I refer to the letters themselves, particularly to No. 4 and No, 6.
But it is said, here are passages in these letters which shew that no such
intercourse eould have passed between them; one in particular in No. 4 is much
[*126] dwelt upon, in which he says, “Have you forgiven me for what I
attempted last night; believe me the thought of your cutting me has made me very
unhappy”. From which it is inferred that he had made an attempt to
consummate his marriage and had been repulsed. Now this expression is certainly
very capable of other interpretations: it might allude to an attempt made by
him to repeat his pleasures improperly or at a time when personal or other
circumstances might have rendered it unseasonable. In the very same letter he
exacts it as a right He says, “You will pardon it, although it was my
right, yet I make a determination not too often to exert it; what a night shall
I pass without any of those heavenly comforts I so sweetly experienced
yesterday.”
In a correspondence of this kind passing between parties
of this description and alluding to very private transactions some degree of
obscurity must be expected Here is a young man heated with passion writing
every day, and frequently twice in & day, making allusions to what passed
in secrecy between himself and the lady of his affections; surely it cannot be
matter of astonishment that many passages are to be found difficult of exact
interpretation, and which it is impossible for any but the parties themselves
fully to explain. What attempt was made does not appear; this I think does most
distinctly appear, that he did at this time insist upon his rights and upon
enjoying those privileges which he considered to be legally his own. Wherever
these obscure and ill-understood expressions occur they must be received with
such explanations as will render them consistent with the main body [*127] and
substance of the whole case. Another passage in the letter No. 5, which is
dated on the 30th of May, has been relied upon as shewing that Mr. Dalrymple
did not consider himself married at that time. In that letter he says,
“I am truly wretched, I know not what I write, how can you use me so
but (on Sunday, on my soul (torn)) you shall, you must become my wife, it is my
right,” and therefore it
is argued that she had not yet become his wife. The only interpretation I can
assign to this passage, which appears to have been written when he was in a
state of great agitation, is that on Sunday she was to submit to what he had
described as the rights of a husband. It ia not to be understood that a public
marriage was to be executed between them on ttat day, because it is clear from
the whole course and nature of the transaction that no such ceremony was ever
intended: it appears from all the facts of the case that it was to be a private
marriage, that it was so to continue, and therefore no celebration could have
been intended to take place on that approaching Sunday.
In a case so important to the parties, and relating to
transactions of a nature so secret, I have ventured to exercise a right not
possessed by the advocates, of looking into the sworn answers of the parties
upon this point: and I find Miss Gordon swears positively that intercourse
frequently passed between them subsequently to the written declaration or
acknowledgment of marriage. Mr. Dalrymple swears as confidently that it did not
so take place, but he admits that it did on some one [*128] night of the month
of May, prior to the signature of the paper marked No. 1; the date of which,
however, he does not assign, any more than he does that of the night in which
this intercourse did take place. Now consider the effecs of this admission. It
certainly does often happen that men are sated by enjoyment; that they
relinquish with indifference, upon possession, pleasures which they have
eagerly pursued; but it is a thing quite incredible that a man, so sated and
cloyed, should afterwards bind himself by voluntary engagements to the very
same party who had worn out his attachment. Not less inconsistent is this
supposition with the other actual evidence in the cases, for all these letters,
breathing all these ardors, are of a substantial date, and prove that these
sentiments clung tohis heart as closely and as warmly as ever during the whole
continuance of his residence in Scotland. I ask if it is to be understood that
with such feelings he would relinquish the pleasures which he had been
2 HAG. CON. 120 DALRYMPLE V.
DALRYMPLE 691
admitted
to enjoy, and which he appears to value so highly, or that she would deny him
those pleasures for the consolidation of her marriage which she had allowed
him, according to his own account, gratuitously and without any such
inducement.
On this part of the case I feel firm. It is not a point of
foreign law on which it becomes me to be diffident; it is a matter of fact
examinable upon common principles; and I think I should act in opposition to
all moral probabilities, to all natural operations of human passions and
actions, and to all the fair result of the evidence, if I did not hold that
consummation was fully proved. If this is proved, then is there, according to
the common [*129] consent of alllegal speculation on the subject, an end of all
doubt in the case, unless something has since occurred to deprive the partyof
the benefit of a judicial declaration of her marriage.
What has happened that can have such an effect? Certainly
the mere fct of a second marraige, however regular, can have no such effect.
The first marriage, if it be a marriage upheld by the law of the country, can
have no competitor in any second marriage, which can by legal possibility take
place; for there can be no second marriage of living parties in any
countrywhich disallows polygamy. There may be a ceremony, but there can be
nosecond marriage—it is a mere nullity.
It is said that bythe law of Scotland, if the wife of the
first private marraige choose to lie by, and to suffer another woman to be
trepanned into a marriage with her husband, she may be barred personali
exceptione from asserting her own marriage. Certainly no such principle ever
found its way into the law of England,no connivance would affect the validity
of her own marriage; even an active concurrance, on her part, in seducing an
innocent woman into a fraudulent marriage with her own husband, though it might
possibly subject her to punishment for a criminal conspiracy, would have no
such effect. But it is proper that I should atatend to the rule of law of
Scotland upon this subject. There is no proof, I think, that such a principle
was ever admitted authoritatibely; for though in the gross case of Campbell versus Cochrane, in the year 1747, the Court of
Session did hold this doctrine, yet it [*130] was afterwards retracted and
abandoned, on the part of the second wife, before the House of Lords, which
most assuredly, it would not have been, if any hope had been entertained of
upholding it as the genuine law of Scotland, because the second wife could
never have been advised to consent to the admission of evidence, which
verynearly overthrew the rights of her own marriage. Under the correct
application of the principles of that law, I conceive the doctrine of a medium
impedimentum to be no other than this, that on the factum of a marriage,
questioned upon the ground of the want of a serious purpose and mutual
understanding between the parties, or indeed on any other ground; it is a most
important circumstance, in opposition to the real existence of such serious
purpose and understanding, or of the existence of a marriage, that the wife did
not asert her rights, when called upon so to do, but suffered them to be
transferred to another woman, without any reclamation on her part. This
doctrine of the effect of amid-impediment in such a case is consonant to reason
and justice, and to the fair representations of Scotch law given by the learned
advocates, particularly by Mr. Cay, in his answer to the third additional
interrogatory; but surely no conduct on the part of the wife, however criminal
in this respect, can have the effect of shaking ab initio an undoubted
marriage.
Suppose, however, the law to be otherwise, how is it
applicable to the conduct of the party in the present case? Here is a marriage
which at the earnest request of this gentleman, and on account of his most
important interests (in which interests [*131] her own were as seriously
involved) was not only to be secret at thetime of contracting, but was to
remain a profound secret till he should think proper to make a disclosure; it
is a marraige in which she has stood firm inevery way consistent with that
obligation of secrecy, not only during the whole of his stay in Scotland, but
ever since, even up to the present moment. She corresponded with him as her
husband till he left England, not disclosing her marriage even to her own
family on account of his injunction of secrecy. Just before he quitted this
country he renewed in his letters those injunctions, but pointed out to her a
mode of communicating with him by letter, through the assistance of Sir Rupert
George, the first commissioner of the Transport Board. In the same letter,
written on the eve of his departure for the Continent, he cautions her against
giving any belief “to a variety of reports which
692 DALRYMPLE V. DALRYMPLE 2 HAG.
CON. 132
might
be circulated about him during his absence, for if she did, they would make her
eternally miserable. I shall not explain,” he says, “to what I am alluding but I know things
have been said, and the momenbt I am gone will be repeated, which have no
foundation whatsoever, and are onlymeant for the ruin of us both: once more,
therefore, I entreat you, if you value your peace or happiness, believe no
report about me whatever.”
No doubt, I think, can be entertained that the reports to
which he, in this mysterious language, adverts, must respect some matrimonial
connections, which had become the subjecs of public gossip, and might reach her
ear. Nothing, however, less than certain knowledge was to satisfyher according
to his own injunction, and nothing [*132] could, I think, be more calculated to
lull all suspicion asleep on her part. It appears, however, that it h ad not
that complete effect, for Mr. Hawkins ssays that upon the return of Mr.
Dalrymple, in the month of August 1806, when he came to England privately
without the knowledge of his father, or ofthis lady, he then for the first time
“communicated to him many cvircumstances respecting a connection he
stated he had had with a Miss Johanne Gordon at Edinburgh, and expressed his
fears that she would be writing and troubling hsi father upon that subject, as
well as tormenting the said John William Henry Dalrymple with letters, to avoid
whichhe begged him not to forward any of her letters to him, who was then about
to go to the Continent, and in order to enable him to know her handwriting and
to distinguish her letters from any others, he then cut off the superscription
from one of her letters to him, which he then gave to the deponent for that
purpose, and at the same time swore that if he did forward any of her letters,
he never would read them;and he also desired and entreated him to prevent any
of Miss Gordon’s letters from falling into the hands of General
Dalrymple, and that he went off again to the Continent in the month of
September.” Mr. Hawkins
further says “that he did find means to prevent several of Miss
Gordon’s letters addressed to General Dalrymple from being received by
him, but having found considerable risque and difficulty therein, and in order
to put a stop to her writing anymore letters to General Dalrymple, he the
deponenet did himself write and address a letter to [*133] her at Edinburgh,
wherein he stated that the letters, which she had sent to General Dalrymple,
had fallen into his hands to peruse or to answer, as the General was himself
precluded from takingt any notice of letters fromnthe precarious state he was
in, or to that effect, and urged the propriety of her desisting from sending
any more letters to General Dalrymple; and the deponent having, in his said
letter, mentioned that he was in the confidence of, and in correspondence with
Mr. Dalrymple, she soon afterwards commenced a correspondence with him
respecting Mr. Dalrymple, and also sent many letters, addressed to Mr.
Dalrymple, to him, in order to get them forwarded; but the deponent having been
particularly desired by Mr.Dalrymple not to forward any such letters to him,
did not send all, but thinks he did send opne or two, in consequence of her
continued importunities;” he says “that it was some time in the latter end ofthe year
1806 or the beginning of the year 1807 that the correspondence betweenMiss
Gordon and himself first commenced; and that after the deathof General
Dalrymple, which he believes happened in or about the spring of the year 1807,
she, in her correspondence with him, expressly asserted and declared to him her
marriage with Mr. Dalrymple.”
It appears then that Miss Gordon knew nothing of Mr.
Hawkins, except from the account he had given of himself, that he was the
confidential agent of Mr. Dalrymple, and thjerefore she might naturally have
felt some hesitation about laying the whole of her case before [*134] him,
especially as General Dalrymple was alive, till whose death the marriage was to
remain a profound secret; but upon that event taking place, which happened at
no great distance of time, Miss Gordon instantly asserted to Mr. Hawkins her
marriage with Mr. Dalrymple, and he, wishing to be furnished with the
particulars, wrote toher for the purpose of obtaining them, which she thereupon
communicated, and at the same time sent him a copy of the original papers,
which, in the language of the law of Scotland, shecalled her marriage lines.
She mentioned likewise some bills which had been left unpaid by her asserted
husband, upon which he wrote to Mr. Dalrymple, and he says, “that he
has no doubt Mr. Dalrymple received the lettrs, because he replied thereto from
Berlin or Vienna, and caused the bills to be regularly
discharged.” He says
“that in the latter end of Mayin the year 1808, Mr. Dalrymple returned
again to England” . I ought to have mentioned that it appears
2 HAG. CON. 135 DALRYMPLE V.
DALRYMPLE 693
clearly
that Miss Gordon had been sending letters to Mr. Hawkins, expressive of her
uneasiness on account of the reports which had prevailed of a marriage about to
be entered into by Mr. Dalrymple. She says in a letter to Mr. Hawkins,
“I shall have no hesitation in putting my papers into the hands of a
man of business, and establishing my rights, as it is a very unpleasant thing
to hear different reports every day; the last one is that Mr. Dalrymple had
ordered a new carriage on his marriage with a nobleman’s daughter.
This description cannot apply to the marriage which has
since taken place with Miss Manners, but [*135] is merely some vague report
which it seems had got into common discourse and circulation. On the 9th of May
she writes to know wherther any accounts had been received from Mr. Dalrymple,
and says, “Any real friend of Mr. Dalrymple’s ought to
caution him against forming any new engagement;” and she protests most strongly against
his entering into a matrimonial connection with another woman. In the end of
that very month of May, Mr. Dalrymple came home, having been at different
places on the Continent; he went down to Mr. Hawkins’s house at
Findon, where having met him, they conversed together upon Mr.
Dalrymple’s affairs, and particularly upon his marriage with Miss
Gordon, and on that occasion Mr. Hawkins having at this time no doubt left upon
his mind of the marriage, and fearing from the manner and conduct of Mr.
Dalrymple that he had it in contemplation to marry Miss Manners, the sister of
the Duchess of St. Alban’s, he cautioned him in the most anxious
manner against taking such a step, and in the strongest language which he was
able to express, describd the mischiefs which would result from such a measure,
both to himself and the lady, and the difficulties in which their respective
families might be involved, owing to Mr. Dalrymple’s previous
marriage.
Mr. Hawkins thought at the time that those admonitions had
had the good effect of deterring him from the intention of marrying Miss
Manners, though he mentions a circumstance which bears a very different
complexion, viz. that Mr. Dalrymple took from him, almost by force, some of
Miss Gordon’s letters, and particularly those annexed to the
allegation. [*136] He says “that Mr. Dalrymple took them under
pretence of shewing them to Lord Stair, and seemed by his manner and
expressions to consider that he had thereby possessed himself of the means of
shewing that Johanna Dalrymple was not his wife.” It was about the end of the month of
May that Mr. Hawkins and Mr. Dalrymple held this conversation at Findon, and
upon the 2d of the following month, Mr. Dalrymple was married to Miss Manners,
before it was possible that Miss Gordon could know of the fact of his arrival
in England. Upon her knowledge of the marriage, she immediately proceeds to
call in the aid of the law. I profess I do not see what a woman could with
propriety have done more to establish her marriage rights; Mr. Dalrymple was
all the time abroad, and the place of his residence perfectly unknown to her;
no process could operate upon him from theCourts either of Scotland or England,
nor was he amenable in any manner whatever to the laws of either country.
She did all she could do under the obligations of
secrecy,which he had imposed upon her, by entering her private protest against
his forming anynew connection; she appears to me to have satisfied the whole
demands of that duty, which circumstances imposed upon her, and I must say that
if an innocent lady has been betrayed into a marriage, which conveys to her
neither the character nor rights of a wife, I cannot, upon any evidence which
has been produced, think that the conduct of Miss Gordon is chargeable, either
legally or morally, with having contributed to so disastrous an event.
[*137] Little now remains for me but to pronounce the
formal sentence of the Court, and it is impossible to conceal from my own
observation the distress which that sentence may eventually inflict upon one or
perhaps more individuals; but the Court must discharge its public duty however
painful to the feelings of others, and possibly to its own; and I think I
discharge that duty in pronouncing that Miss Gordon is the legal wife of John
William Henry Dalrymple, Esq., and that he, in obedience to the law, is bound
to receive her home in that character, and to treat her with conjugal affection,
and to certify to this Court that he has so done, by the first session of the
next term.*
* From this decree an appeal was alleged and prosecuted to
the Court of Arches. In the course of those proceedings an intervention was
given for Laura Dalrymple—described as the wife of John William Henry
Dalrymple, Esq., the appellant in the cause.