Dalrymple v.

Dalrymple
The Times, Wednesday, July 17, 1811; pg. 3; Issue 8348; col. B
Consistory Court, Doctors’ Commons

This was a suit at the instance of Mrs. Dalrymple, formerly Miss Gordon, for a restitution of
conjugal rights, as the wife, by the law of Scotland, of Captain John William Henry Dalrymple, a
son of the late General Dalrymple.

It appeared that Captain D. accompanying his regiment to Edinburgh, was there first introduced
to Miss Gordon; they conceived a mutual regard for each other, which ended in a matrimonial
contract. Family circumstances, however, rendering it necessary, as he persuaded her, that the
knowledge of the marriage should be concealed during the life-time of his father, Miss Gordon
yielded to his injunctions of secrecy, and they accordingly exchanged mutual written promises to
this purport: “I do solemnly promise, as soon as it is in my power, to marry you, and never any
other person.” Upon the faith of these promises, they conducted themselves towards each other
as man and wife, and at a subsequent period exchanged further acknowledgments of the relation
in which they stood to each other, to this purport: “I hereby acknowledge John William Henry
Dalrymple to be my lawful husband;” and “I hereby acknowledge Johanna Gordon to be my
lawful wife;” and signed respectively. Upon Captain Dalrymple’s departure with his regiment
from Scotland, he obtained a written promise of secrecy from Miss Gordon, in which she
declares, “that nothing but the strongest necessity, a necessity which circumstances alone could
justify, should ever force her to declare her marriage with him.” He continued earnestly his
injunctions to her on this head, ’till almost the very moment of his departure from England;
constantly addressing her by letter from Portsmouth, and even when abroad, and pointing out to
her the agency of Sir Rupert George as the channel of their communication. Some time
afterwards the correspondence was discontinued on his part, and Miss Gordon in consequence
wrote to his father to ascertain his address. Upon being apprised of this, he directed a
confidential friend, Mr. Hawkins, of Brighton, to intercept her letters to his father; but this
Gentleman, finding considerable difficulty in such a service, wrote to her himself to discontinue
the correspondence; and General Dalrymple dying about this time, Miss Gordon considering
herself released from her promise of secrecy, immediately made a frank avowal to Mr. Hawkins
of the nature of her situation with Captain Dalrymple. He shortly afterwards returned very
unexpectedly from Malta; and in a conversation with Mr. Hawkins, hinted at his determination
of abandoning his connection with Miss Gordon. This Gentleman used every argument to
dissuade him from such a purpose, and as he had reason from his conduct to think with success;
but in a day or two afterwards, he was surprised to hear of Captain D’s marriage with Miss
Manners, a sister of the Duchess of St. Albans. This coming to the knowledge of Miss Gordon,
she in justice to her own rights commenced the present suit.

The validity of a marriage of this description, according to the law of Scotland, being the
principal question in the case, the opinions and exposition of that law, by its most eminent
professors of the present day, formed the principal part of the evidence, accompanied by the
production of many of the letters that passed in the course of the transaction.

A very learned and ingenious argument took place upon this subject. The counsel for Miss
Gordon contended, that from this evidence, it appeared the Scotch law recognized three modes
of marriage as binding upon the parties—the first was, a consent per verba de præsenti, by
which the parties assume the marriage contract between them from that moment; the second was
a promise to solemnize matrimony at a future period, and an intercourse between the parties
upon the faith of that promise; and the third was by public acknowledgments of being man and
wife, from which the actual existence of the marriage contract was by law presumed. The
Learned Advocates, from a review of all the circumstances of the case, then proceeded to
contend that the marriage in question clearly came within the three modes specified, and the
Court was therefore bound to give operation to it.

This construction of the law was denied by the Counsel on the other side, who, from their
comments upon the evidence, contended, that it would warrant no other construction than of an
obligation upon Captain Dalrymple to perform the nuptial engagement at a future period, but
upon a condition of secrecy; that the condition not having been complied with, he was released.

Sir William Scott, in a learned and elaborate, yet perspicuous speech, recapitulated the evidence,
and delivered the judgment of the Court. He observed that the question must be decided by the
law of England, though by reference to that of Scotland; for it was a proposition beyond the
reach of argument upon any principle of law in civilized states, that if the first marriage was
legally good, the second was legally bad. According to the judgment of the eminent men
examined, Mr., Dalrymple was sufficiently a domicile resident, and of sufficient age, to contract
matrimony in Scotland, though a Minor by the laws of England; for the same law that gives him
that power supposes a sufficient discretion in its exercise. By the Scotch law, too, consensus non
concumbitus facit matrimonium, and that without the intervention of a priest; it was a civil
contract, and consent was the very essence of a contract, and was, therefore, equally so in this, to
which heaven was a witness. This, too, was conformable to the ancient canon-law derived from
the theological principles of the religion of Europe, and till the Council of Trent the consent of
two parties was deemed a sufficient marriage; afterwards three sorts of marriage only were
allowed: regular, which were complete both in civil and religious requisites; irregular, which
were only civil contracts, and wanted the religious ceremony; and promises of marriage at a
future period, followed by conjugal rights. The statute of the 26th of George III, however, swept
away all three doctrines in England. The Court would not itself trace the progress of the Scotch
law farther than that it was derived from the Roman Canon law, but for that purpose must look to
Scotch authorities. The Learned Judge then took a view of the opinions of the Scotch Professors,
from which he inferred that as most of them agreed in points conformable to the old Canon Law
that that law must be the basis of the Scotch Law, and consent, therefore, was the real marriage
of Scotland. He then referred to the text authorities, and thence to the decisions of the Scotch
Courts confirmatory of that doctrine; and, applying that to the circumstances of the present case,
was clearly of opinion that the marriage was a valid one, and that the Lady had used no
unnecessary delay in claiming her remedy. He pronounced, therefore, that her claim to conjugal
rights was a just one, and that Mr. Dalrymple was bound to receive and treat her accordingly.