And 'tis within the power of us lawyers,
To wrest this nose of wax which way we please."
This illustration was overlooked by Nares, to whose Glossary you refer.
C. H. Cooper.
Cambridge.
Canongate Marriages (Vol. v., p. 320.; Vol. vii., p. 67.).—The correspondent who expressed his surprise some time ago at his Query on this subject not having called forth any remark from your Scotch friends, will perhaps find the explanation of this result in the fact, that in Scotland we are guided by the civil or Roman law on the subject of marriage; and consequently, with us marriage is altogether a civil contract; and we need the intervention neither of clergyman, Gretna blacksmith, or the equally disreputable Canongate coupler. The services of the last two individuals are only sought for by you deluded southerns. All we require here is the agreement or consent of the parties ("consensus non concubitus facit matrimonium"); and the legal questions which arise have reference chiefly to the evidence of this consent. The agreement may be made verbally, or in writing, before witnesses or not, as the parties choose. Or a marriage may be constituted and proved merely by habit and repute, i. e. by the parties living together as man and wife, and the man allowing the woman to be addressed as his wife. A promise of marriage, followed by copula, also constitutes a marriage. But it would be out of place here to enter into all the arcana of the Scotch law of marriage: suffice it to say, that it prevails equally at John o' Groat's House and Aberdeen, as in the Canongate or at Gretna Green. A regular marriage requires certain formalities, such as the publication of banns, &c. An irregular one is equally good in law, and may be contracted in various ways, as above explained.
This law, though at first sight likely to lead to great abuses, really works well in practice; and prevents the occurrence of those distressing cases, which not unfrequently happen in England, of seduction under promise of marriage, and subsequent desertion.
Scotus.
Smock Marriages (Vol. vii., p. 191.).—According to Scotch law, the marriage of the father and mother legitimises all children previously born, however old they may be. This is called legitimisation per subsequens matrimonium, and is not unfrequently taken advantage of by elderly gentlemen, who, after having passed the heyday of youth, wish to give their children a position, and a legal right to inherit their property. Like the rule as to marriage above explained, it is derived from the Roman or civil law. There are very few, I should rather say no, legal fictions in the Scotch law of the nature alluded to by your correspondent.
Scotus.