This paper would not be complete without some notice of an aspect of the
matter with which it deals, which has not received the attention to which
it is certainly entitled. The law relating to marriage remains unsettled.
It has been so constantly regarded as a matter for ecclesiastical
regulation, that it has been practically left to be dealt with by
Presbyteries and Kirk Sessions. "As far back as any living man
remembers," says Dr Edgar, "it has taken very few formalities to
constitute in Scotland a marriage that is binding in law. A man and a
woman have only had to take up house together, and declare themselves
husband and wife. The law thereupon pronounced them married persons. But
this was not always understood to be the law of the land in Scotland, and
the Church of Scotland did not always recognise such unions as marriages."
But while writing of what was or was not _understood_ to be the law, he
tells us nothing as to what the law really was or is.
It seems to have been the practice of the Church, in former times, to
pronounce her own judgment, and then to ask the State to confirm it. In
the first General Assembly held in Scotland, that of 1560, there was a
declaration made concerning marriages within certain degrees of
relationship, and "the authority of the Estates was craved to be
interposed to that finding as the law." There were many of the ministers
of the Reformed Church who held that a religious ceremony was not
necessary to constitute a valid marriage. One of the members of the
Westminster Assembly, in 1644, expressed the opinion, previously given by
Luther, that only the consent of the parties was necessary. This view
appears to have prevailed very generally among the laity, notwithstanding
the action taken so frequently by Kirk Sessions in opposition to it.
The question continued to be disputed throughout the last century. Writers
on legal questions held one view, and judges on the bench pronounced
contrariwise. Erskine argued that, in Scotland, the consent of the parties
was all that was necessary to constitute a valid marriage. Lord Braxfield
affirmed the opposite in 1796. Lord Fraser, on a later occasion, said that
the view set forth by Erskine was never judicially pronounced to be the
law of Scotland until 1811. Can we wonder, therefore, when lawyers and
judges disagree, at the haziness of mental vision displayed by Kirk
Sessions, and the frequent want of uniformity in their decisions?
Gretna Green Gossip.
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account