CHAPTER IX. CONSENT IN FORM BUT NOT IN FACT. CONSENT is an agreement of two wills. No words, however solemn, will bind the parties in marriage if it be proved, to the satisfaction of the Court, that they never gave a real and genuine consent. As Swinburne, an old authority, says, marriage cannot be constituted by the exchange of words of consent uttered in "jeast or sport, for such wanton words are not at all obligatory in so serious a matter as matrimony."1 In an American case, a marriage gone through in jest was reduced.2 There does not appear to be any case in which a marriage regularly celebrated, in facie ecclesia, has been set aside on the ground that the parties never consented. And there are dicta to the effect that the Court will not go behind a regular ceremony of marriage and find that, in spite of it, there was no real consent. It is said that parties must be concluded to mean what they have expressed in such a solemn manner.3 But it is submitted that Lord Fraser is right in thinking that a case might arise in which a regular marriage should be set aside on this ground. Marriages celebrated in fucie ecclesia have been frequently avoided, on the ground of force, fraud, or error. And these are only different ways of proving want of mutual consent.4 No doubt, very clear evidence would be required. The conduct of parties, both before and after the ceremony, would be narrowly looked at. For, although no conduct and no change of mind can undo a marriage once con 1 Swinb., "Spousals," p. 105. 2 M'Clurg v. Terry, cited by Bishop, § 338 (Ed. 1891). 3 See per Lord Stowell, 2 Hagg. C.R., at p. 106, in Dalrymple, and Lord Deas in Robertson v. Steuart, stituted, the manner in which parties have comported themselves to each other is often the clearest evidence as to whether they regarded themselves as married persons. Light reflected by Conduct.—Ill.—A young man of twentythree paid his addresses to a girl of sixteen. Her parents were about to send her away from home, to be out of his way. He persuaded her to accompany him to a clergyman's house and go through a form of marriage, with the mutual understanding that they were not to be married. The ceremony was only to fortify their mutual engagement. At the end of two years, if their parents consented, they were to go through the ceremony anew. There was no consummation, and two or three days after the ceremony the girl told her parents. Subsequently, the man claimed a valid marriage, and she brought a suit to have it declared null. Decree of nullity was granted.1 In such a case, want of consummation is most material evidence. If, after the ceremony, there had been concubitus, it would have been vain for the girl to maintain that she had not meant marriage. It is conceived that if, as in a case figured by Mr. Henry Erskine, the parties had exchanged written declarations before going through a ceremony of marriage, to the effect that they were doing so for some ulterior object, and did not intend to regard it as binding, there would be no marriage. But if followed by copula, it would seem well-nigh impossible to prove want of matrimonial consent. It is quite conceivable for two persons to consent to marriage for some purpose collateral to the ends for which that institution exists. But being in it they cannot divorce themselves, ex mera facultate. Lord Fraser gives the case of Jolly v. M'Gregor as one in which a regular, though clandestine, marriage was set aside on the ground of no real consent. But this is a weight which that very singular case will not bear. For Lord Lauderdale, who gave the leading judgment, says: "You must concur with me, therefore, in thinking that there is no proof whatever upon which your Lordships can rest a judicial decision that there was any ceremony took place on the 23rd May, 1816."3 1 Case cited by Bishop, § 339 (Ed. 1891). 2 2 Hagg. C.R., App. p. 26. 3 1828, 3 W. and S. 85, p. 177. The beginning of his opinion is amusing: "This is an action of Further, there was no proof of copula after the alleged marriage, and the man raised no objection to the woman subsequently marrying another man, named Jolly. It was even proved that M'Gregor, the pursuer, and the defender and Jolly occupied on one occasion a double-bedded room at a hotel, M'Gregor sleeping in one bed, and the woman and Jolly occupying the other. The House of Lords, not unreasonably, held this as very clear evidence that M'Gregor did not regard himself as married to the woman. But they distinctly saved themselves from deciding the general question whether a regular marriage can be thus set aside. In fact, Lord Eldon's judgment may be read as affording authority for the doctrine that the Court will in no case receive evidence of want of consent, when a marriage ceremony has been regularly performed.1 Where apparent consent has been given, in a less formal way than by marriage in facie ecclesiæ, it is wellsettled law that proof is admissible to show that the ostensible consent was not genuine. It is competent to prove, by parole evidence or otherwise-(1), that documents bearing to be declarations of marriage were granted for some other purpose, and were not understood by the parties as binding; (2), that though a copula followed a promise of marriage, it was not on account of the promise that the woman consented, and, therefore, no matrimonial consent was interchanged; (3), that two persons who cohabit, and are reputed married, do so, nevertheless, with the understanding that they are not really husband and wife. Of (1), the following well-known cases are illustrations : Ulterior Purpose.-Ill.—Sir James Campbell, who was in Paris in the year 1818, and not able to return to Scotland on account of the war, wishing to send some one to look after his affairs, gave his mistress a power of attorney in these terms:-"I, James Campbell of Craigforth, having nominated my beloved wife, Lina Taline declarator of marriage brought by Malcolm M'Gregor, a man of very low birth, and of distinguished immorality of character, against Mary Black M'Neill, the natural daughter of the Rev. Dr. M'Neill, a clergyman, in respect of immorality of Sassen, my true and lawful conduct, certainly worthy of sustaining the relation of father-in-law to the pursuer, who, by this declarator, aims at the honour of becoming his son-in-law." 1 1828, 3 W. and S., pp. 189, 190. G attorney," &c. The lady was received in Scotland as Sir James' wife. But it was held that this document was not granted. for a matrimonial purpose, and no marriage was constituted.1 Ill.-A young man gave a woman, who was pregnant by him, a declaration in these terms:-" Mrs. Fairbairn, I hereby acknowledge that you are my lawful wife, and you may from this date use my name, though, for particular reasons, I wish our marriage kept private for some time, and always am, madam, your most obedient servant, ALEX. MORE, Aberdeen, 1st May, 1780." Addressed to "Mrs. Captain Fairbairn, Aberdeen." The Court of Session held the production of this document was sufficient proof of marriage, but this was reversed by the House of Lords. They held it proved that the declaration was given and received, not to make marriage, but to enable the woman to lie-in at the house of her brother, who would not have received her if he had not believed her married.? Ill.—The woman gave the man a writing as follows:"I hereby solemnly declare you, Patrick Taylor, in Birkenshaw, my just and lawful husband, and remain your affectionate wife, AGNES KELLO." She possessed £2000; he was on the eve of a second bankruptcy. It was proved that he had represented the declaration as not meaning more than an acknowledgment of her love and affection for him, and a promise of marriage at some future time, when her parents were satisfied. He also promised to return it if it did not serve its purpose. There was no copula. A few days afterwards the girl wrote for a return of "that foolish line." He offered to give it back for £500. Subsequently Taylor persuaded her parents to allow banns to be proclaimed; but they, after inquiry, sent a messenger to stop the proclamation. They had been proclaimed twice when he reached the church, but he stopped the third. For three years after all correspondence ceased. Then, on hearing that another man was paying his addresses to Agnes Kello, Taylor raised an action of declarator. The Commissaries found for the marriage, and 1 Sassen v. Campbell, 1824, 3 S. 159. The Court of Session gave aliment to the lady, but the House of Lords found she had no right to this, 2 W. and S. 309. 2 M'Innes v. More, 1781, M. 12,683; reversed, 2 Pat. App. 598. the Court of Session adhered. But the House of Lords reversed. They held it proved that the document was not understood by either as a final agreement. The fact of no copula, and the conduct of parties since its date, were held as pointing irresistibly to this conclusion.1 Ill. Ulterior object was held proved by the House of Lords in these circumstances:-A landed proprietor gave his housekeeper this paper-"Christy, you and I having lived together as man and wife for some time, I hereby declare you to be my lawful wife, in the event of a child being born in consequence of the present connection betwixt us." The case for the woman bristled with difficulties, for the paper, if treated as a declaration, was not of present consent, and if a promise, was conditional on the birth of a child, and, therefore, present consent was not to be presumed from the subsequent copula. It was attempted to prove that the paper was antedated, and was not, in fact, delivered to the woman till after the birth of the child. In this view, it might be read as a present declaration, the condition having been purified before delivery. The House held it incompetent to prove that another date was intended than that which it bore, but found it proved that the paper was given for a collateral purpose. This was, that it might be shown to a young lady to whom the defender was engaged, that so the engagement might be broken off, as in fact it was. No marriage.2 Ill. The parties, who were engaged to marry, signed a marriage-contract in ordinary form. Three days after, they exchanged declarations. The one by the lady was in these terms "I declare Edmund Beatty Lockyer to be my husband, J. S. T. SINCLAIR. Thurso, 29th August, 1839." There was no copula. The lady averred that she signed the paper at the request of the pursuer to convince his father that they were engaged, and induce him to make a provision for his son. There was a long correspondence between the parties afterwards. Its language was entirely that of lovers, and frequent reference was made to future marriage. The Court, looking to this, and to the fact of non-consummation, 1 Taylor v. Kello, 1786, M. 12,687; reversed, 3 Pat. App. 56. 2 Stewart v. Menzies, 1833, 12 S. 179; 1836, 14 S. 427; 1841, 2 Rob. App. 547. |