“The law of Scotland,” he went on, “so far as it relates to Irregular Marriages, is an outrage on common decency and common-sense. If you think my language in thus describing it too strong—I can refer you to the language of a judicial authority. Lord Deas delivered a recent judgment of marriage in Scotland, from the bench, in these words: ‘Consent makes marriage. No form or ceremony, civil or religious; no notice before, or publication after; no cohabitation, no writing, no witnesses even, are essential to the constitution of this, the most important contract which two persons can enter into.’—There is a Scotch judge’s own statement of the law that he administers! Observe, at the same time, if you please, that we make full legal provision in Scotland for contracts affecting the sale of houses and lands, horses and dogs. The only contract which we leave without safeguards or precautions of any sort is the contract that unites a man and a woman for life. As for the authority of parents, and the innocence of children, our law recognizes no claim on it either in the one case or in the other. A girl of twelve and a boy of fourteen have nothing to do but to cross the Border, and to be married—without the interposition of the slightest delay or restraint, and without the slightest attempt to inform their parents on the part of the Scotch law. As to the marriages of men and women, even the mere interchange of consent which, as you have just heard, makes them man and wife, is not required to be directly proved: it may be proved by inference. And, more even than that, whatever the law for its consistency may presume, men and women are, in point of fact, held to be married in Scotland where consent has never been interchanged, and where the parties do not even know that they are legally held to be married persons. Are you sufficiently confused about the law of Irregular Marriages in Scotland by this time, Mr. Delamayn? And have I said enough to justify the strong language I used when I undertook to describe it to you?”
“Who’s that ‘authority’ you talked of just now?” inquired Geoffrey. “Couldn’t I ask him?”
“You might find him flatly contradicted, if you did ask him by another authority equally learned and equally eminent,” answered Sir Patrick. “I am not joking—I am only stating facts. Have you heard of the Queen’s Commission?”
“No.”
“Then listen to this. In March, ‘sixty-five, the Queen appointed a Commission to inquire into the Marriage-Laws of the United Kingdom. The Report of that Commission is published in London; and is accessible to any body who chooses to pay the price of two or three shillings for it. One of the results of the inquiry was, the discovery that high authorities were of entirely contrary opinions on one of the vital questions of Scottish marriage-law. And the Commissioners, in announcing that fact, add that the question of which opinion is right is still disputed, and has never been made the subject of legal decision. Authorities are every where at variance throughout the Report. A haze of doubt and uncertainty hangs in Scotland over the most important contract of civilized life. If no other reason existed for reforming the Scotch marriage-law, there would be reason enough afforded by that one fact. An uncertain marriage-law is a national calamity.”
“You can tell me what you think yourself about my friend’s case—can’t you?” said Geoffrey, still holding obstinately to the end that he had in view.
“Certainly. Now that I have given you due warning of the danger of implicitly relying on any individual opinion, I may give my opinion with a clear conscience. I say that there has not been a positive marriage in this case. There has been evidence in favor of possibly establishing a marriage—nothing more.”
The distinction here was far too fine to be appreciated by Geoffrey’s mind. He frowned heavily, in bewilderment and disgust.
“Not married!” he exclaimed, “when they said they were man and wife, before witnesses?”
“That is a common popular error,” said Sir Patrick. “As I have already told you, witnesses are not legally necessary to make a marriage in Scotland. They are only valuable—as in this case—to help, at some future time, in proving a marriage that is in dispute.”