The Times, Wednesday, July 17, 1811; pg. 3; Issue 8348; col. B

 

Consistory Court, Doctors’ Commons

 

Dalrymple v. Dalrymple
 

 

This was a suit at the instance of Mrs. Dalrymple, formerly Miss Gordon, for a restitution of conugfal rights, as the wife, by the law of Scotland, of Captain John William Henry Dalrymple, a son of the late General Dalrymple.

It appeared that Captain D. accompanying his regiment to Edinburgh, was there first introduced to Miss Gordon; they conceived a mutual regard for each other, which ended in a matrimonial contract. Family circumstances, however, rendering it necessary, as he persuaded her, that the knowledge of the marriage should be concealed during the life-time of his father, Miss Gordon yielded tohis injunctions of secrecy, and they accordingly exchanged mutual written promises to this purport: “I do solemnly promise, as soon as it is in my power, to marryyou, and never any other person.” Upon the faith of these promises, they conducted themselvs towards each other as man and wife, and at a subsequent period exchanged further acknolwledgments of the relation in whichthey stood to each other, to this purport: “I hereby acknowledge John William Henry Dalrymple to be my lawful husband;” and “I hereby acknowledge Johanna Gordon to be my lawful wife;” and signed respectively. Upon Captain Dalrymple’s departure with his regiment from Scotland, he ob ained a written promise of secrecy from Miss Gordon, in which she declares, “that nothing but the strongest necessity, a necessity which circumstances alone could justify, should evere force her to declare her marriage with him.” He continued earnestly his injunctions to her on this head, ’till almost the very moment of his departure from England; constantly addressing her by letter from Portsmouth, and even when abroad, and pointing out to her the agency of Sir Rupert George as the channel of their communication. Some time afterwards the correspondence was discontinued on his part, and Miss Gordon in consequence wrote to his father to ascertain his address. Upon being apprised of this, he directed a confidential friend, Mr. Hawkins, of Brighton, to intercept her letters to his father; but this Gentleman, finding considerable difficulty in such a service, wrote to her himself to discontinue the correspondence; and General Dalrymple dying about this time, Miss Gordon considering herself released from her promise of secrecy, immediately made a frank avowal to Mr. Hawkins of the nature of her situation with Captain ?Dalrymple. He shortly afterwards returned very unexpectedly from Malta; and in a conversation with Mr. Hawkins, hinted at his determination of abandoning his connection with Miss Gordon. This Gentleman used every argument to dissuade him from such a purpose, and as he had reason from his conduct to think with success; but in a day or two afterwards, he was surprised to hear of Captain D’s marriage with Miss Manners, a sister of the Duchess of St. Albans. This coming to the knowledge of Miss Gordon, she in justice to her own rights commenced the present suit.

The validity of a marriage of this description, according to the law of Scotland, being the principal question in the case, the opinions and exposition of that law, by its most eminent professors of the present day, formed the principal part of the evidence, accompanied by the production of many of the letters that passed in the course of the transaction.

A very learned and ingenious argument took place upon this subject. The counsel for Miss Gordon contended, that from this evidence, it appeared the Scotch law recognized three modes of marriage as binding upon the parties—the first was, a consent per verba de præsenti, by which the parties assume the marriage contract between t hem from that moment; the second was a promise to solemnize matrimony at a future period, and an intercourse between the parties upon the faith of that promise; and the third was by public acknowledgments of being man and wife, letters in the conjugal stile, &c. from which the actual existence of the marriage contract was by law presumed. The Learned Advocates, from a review of all the circumstances of the case, then proceeded to contend that the marriage in question clearly came within all the three modes specified, and the Court was therefore bound to give operation to it.

This construction of the law was denied by the Counsel on the other side, who, from their comments upon the evidence, contended, that it would warrant no other construction than of an obligation upon Captain Dalrymple to perform the nuptial engagement at a future period, but upon a condition of secrecy; that the condition not having been complied with, he was released.

Sir William Scott, in a learned and elaborate, yet perspicuous speech, recapitulated the evidence, and delivered the judgment of the Court. He observed, that the question must b decided by the law of England, though by reference to that of Scotland; for it was a proposition beyond the reach of argument upon any principle of law in civilized states, that if the first marriage was legally good, the second was legally bad. According to the judgment of the eminent men examined, Mr., Dalrymple was sufficiently a domicile resident, and of sufficient age, to contract matrimony in Scotland, though a Minor by the laws of England; for the same law that gives him that power supposes a sufficient discretion in its exercise. By the Scotch law, too, consensus non concumbitus facit matrimonium, and that without the intervention of a priest; it was a civil contract, and consent was the very essence of a contract, and was, therefore, equally so in this, to which heaven was a witness. This, too, was conformable to the ancient canon-law derived from the theological principles of the religion of Europe, and till the Council of Trent the consent of two parties was deemed a sufficient marriage; afterwards three sorts of marriage only were allowed: regular, which were complete both in civil and religious requisites; irregular, which were only civil contracts, and wanted he religious ceremony; and promises of marriage at a future period, followed by conjugal rights. The statute of the 26th of George III, however, swept away all three doctrines in England. The Court would not itself trace the progress of the Scotch law farther than that it was derived from the Roman Canon law, but for that purpose must look to Scotch authorities. The Learned Judge then took a view of the opinions of the Scotch Professors, from which he inferred that as most of them agreed in points conformable to the old Canon Law, that that law must be the basis of the Scotch Law, and consent, therefore, was the real marriage of Scotland. He then referred to the text authorities, and thence to the decisions of the Scotch Courts confirmatory of that doctrine; and, applying that to the circumstances of the present case, was clearly of opinion that the marriage was a valid one, and that the Lady had used no unnecessary delay in claiming her remedy. He pronounced, therefore, that her claim to conjugal rights was a just one, and that Mr. Dalrymple was bound to receive and treat her accordingly.