244 



NOTES AND QUERIES. 



[No. 175. 



riage is dealt with as a purely civil contract; and 

 its constitution may be established by the same 

 proof as would establish any ordinary civil con- 

 tract, viz, by writing, by the testimony of wit- 

 nesses, 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 con- 

 tract is purely civil ; and irregularity in point 

 oi form, though punishable, does not vitiate the 

 contract, which is binding and valid if its sub- 

 stance be proved, in the same way as any other 

 contract may be proved. Such a contract is bind- 

 ing, 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 con- 

 sisted in his smithy being the nearest place to the 

 English border, at which witnesses to the consti- 

 tution 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 Eccle- 

 fechan — 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 ecclesics, are not — in 

 Scotland, at least — allowed to obtrude themselves 

 into respectable society. So much for the con- 

 stitution of the contract of marriage under the 

 law of Scotland. 



As for its effects, in so far as involved in Mb. 

 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 matri- 

 monium, must be under their mother's apron 

 strings. In its effects, as well as in its constitu- 



tion, 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 con- 

 tract, the constitution of the rights and obliga- 

 tions 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 de- 

 cision 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. 



An Advocate^ 



I remember that my brother, when curate of 

 a parish in Lincolnshire between 1838 and 1844,, 

 married a woman enveloped only in a sheet. He 

 was of course startled at the slenderness of her 

 apparel ; but as all the requisitions of the law had. 

 been complied with, he did not feel himself at 

 liberty to refuse. He contented himself, therefore, 

 with addressing the numerous congregation on the 

 behaviour he expected from them at a religious, 

 ordinance, and all went off well. The reason for 

 the bride so presenting herself, was of course the 

 popular opinion, that her new husband would not 

 be liable for her debts. Anon.. 



PHOTOGRAPHIC NOTES AND QUERIES. 



3fr. Weld Taylor's Process. — As I presume 

 the object of publishing Photographic Notes, &c., 

 is to aid those who are not proficients in the 

 processes indicated, Mb. Weld Taylor must not 

 take umbrage at his first communication being 

 misunderstood, whether unavoidably or wilfully, 

 as I am sure the former must have been the 

 case with all novices in the photographic art at 

 least ; however, I had no intention whatever of 

 offering any annoyance to Mr. Taylor in my 

 remarks, which were intended solely with a view 

 to produce an effect which has partially been 

 successful, that of exciting a more definite ex- 

 planation of his meaning. That Mb. Weld 

 Taylob may " enlighten " me is not only possible, 

 but very probable, and I can only say I shall be 

 much obliged to him for so doing. 



With reference to his process for iodizing 

 Canson's paper, I presume his meaning to be aa 

 follows, viz. : Mix half an ounce of a forty-grain 

 solution of nitrate of silver with an equal quantity 



