(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, {244} 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.