SMOCK MARRIAGES.—SCOTCH LAW OF MARRIAGE.
(Vol. vii., p. 191.)
To a certain extent, the information Mr. F. H. Brett got from his Scotch friend is correct. An idea does exist in some parts of Scotland, that children born out of wedlock must be "under the apron string" at the solemnisation of the marriage of their parents, before they can be legitimated per subsequens matrimonium. How this notion originated, I do not pretend to say; but it is easy to speculate as to its origin. But Mr. Brett's friend showed a blessed ignorance of the laws of his native country, if he ever said that "in the Scotch law of marriage there is a clause providing that all 'under the apron string,' at the time of the marriage, shall be considered legitimate." The Scotch law of marriage is not statutory, and, consequently, it has no clauses.
I have often felt sore at the ignorance displayed, even in well-informed circles in England, as to the real principles of the Scotch law of marriage; and I am encouraged by the comprehensive terms of Mr. Brett's Query, to hope that you will permit me to say a word or two which may serve to dissipate some of the delusions that prevail as to both the constitution of a Scotch marriage, and its effects.
In Scotland, as in every country whose system of jurisprudence is based on the civil law,
marriage is dealt with as a purely civil contract; and its constitution may be established by the same proof as would establish any ordinary civil contract, viz. by writing, by the testimony of witnesses, or by the judicial confession of the parties. It is true, that, in deference to the natural feeling that the blessing of God should be invoked upon the constitution of a relation so important and so solemn, and from other considerations of public policy and morality, the law has prescribed that a "regular marriage" can be performed only by a clergyman, after due proclamation of the banns; and that it punishes an "irregular" constitution of the contract by fines and other penalties. But it never loses sight of the principle, that the contract is purely civil; and irregularity in point of form, though punishable, does not vitiate the contract, which is binding and valid if its substance be proved, in the same way as any other contract may be proved. Such a contract is binding, if entered into in accordance with the lex loci contractus, although that law should differ from the law of the domicile of the parties. The sole privilege of the smith of Gretna Green consisted in his smithy being the nearest place to the English border, at which witnesses to the constitution of the contract could be obtained. Now-a-days, I suppose, a runaway couple, unable to hire a special train, would take the express; and I would advise them to take their tickets to Ecclefechan—the first Scotch station at which the express stops—and to confer on the station-master and porter there the dignity of high priests of Hymen: for they, or any other two witnesses you meet in Scotland, can help you to tie the knot as firmly as the Gretna smith. After what I have said, I need hardly add that these functionaries had no warrant for their certificate that their marriages were performed "according to the forms of the Church of Scotland." To those who look upon marriage as a purely civil contract, the mock ceremony at Gretna is a marriage; to those who look upon it as a sacrament, or who think that a religious ceremony affects its constitution in the slightest degree, a Gretna Green marriage is, in plain words, neither more nor less than a legalised concubinage; and, surely, I need not say, that the spouses in such a marriage, though, quoad omnem civilem effectum, on the same footing with persons regularly married in facie ecclesiæ, are not—in Scotland, at least—allowed to obtrude themselves into respectable society. So much for the constitution of the contract of marriage under the law of Scotland.
As for its effects, in so far as involved in Mr. Brett's Query, no such provision exists, or ever did exist, in the Scotch law of marriage, as that children, to be legitimatised per subsequens matrimonium, must be under their mother's apron strings. In its effects, as well as in its constitution, the contract of marriage in Scotland is ruled by the principles of the civil law; and all the children of the spouses, born before marriage, are legitimated per subsequens matrimonium, whether, at the time the ceremony is performed, they be "under the apron strings" or not. The old theory was, that marriage being a consensual contract, the constitution of the rights and obligations arising from it drew back to the date of the consent; which, in the case of parties who had previously had connexion, was presumed in law to be the date of the connexion. This theory has of late been somewhat impaired by the decision of the Court of Session, in the case of Kerr v. Martin. See Dunlop Bell and Murray's Reports of Cases decided in the Court of Session, vol. ii. p. 752. The soundness of that decision is still matter of controversy in the profession; but I may refer Mr. Brett to it as containing a full and able discussion of the whole principles on which the Scotch law of marriage is founded.
An Advocate.
I remember that my brother, when curate of a parish in Lincolnshire between 1838 and 1844, married a woman enveloped only in a sheet. He was of course startled at the slenderness of her apparel; but as all the requisitions of the law had been complied with, he did not feel himself at liberty to refuse. He contented himself, therefore, with addressing the numerous congregation on the behaviour he expected from them at a religious ordinance, and all went off well. The reason for the bride so presenting herself, was of course the popular opinion, that her new husband would not be liable for her debts.
Anon.