Scottish Court of Session Decisions

Lord Ardmillan—Notwithstanding the terms of the written promise given by the defender to the pursuer, I am clearly of opinion that marriage has not been instructed in this case. Speaking generally, there is no doubt that a promise of marriage, proved by written evidence, and followed by copula, is, according to Scottish law, sufficient to prove the mutual consent which creates the relation of marriage. It is the consent which makes the marriage. That consent may be proved in different ways; and the mode of proof of the consent here alleged amounts to this, that on the faith of the promise the woman has surrendered her person. But the surrender of her person by the woman, and the promise by the man, must be related to each other. It is not the law that the mere sequence of promise and copula uniformly and necessarily proves marriage. I retain the opinion on this point which I expressed in the case of Morison v. Dobson. If the connection was not given or permitted on the faith of the promise—if it was purchased, or given on a footing inconsistent with marriage—it cannot instruct marriage, however clear the words of promise.

The character of the woman, and the fact of illicit intercourse prior to and up to the promise, so that no promise was necessary or appropriate to obtain its concession, or to secure its continuance, is a most important fact in considering whether the copula subsequent to the promise was related to the promise, and was permitted on the faith of the promise.

I think that, where no special circumstances in the conduct and the relations of the parties are proved, but where the two facts of promise and subsequent copula are in the position of proved and unexplained sequence, the presumption must be that the copula was the response to the promise, and yielded on the faith of the promise.

But where the facts ascertained are such as to disconnect the copula from the promise, and explain it on a different footing, and to make it manifest that marriage was not within the intention of the parties, then the consensual contract of marriage cannot be held to have been formed.

I need say nothing of the character of the pursuer, nor need I add anything to what your Lord ship has said in regard to the contradiction on the proof of her statements on record. The surrender of her person to man was a thing to her so easy, so frequent, so promiscuous, so purchaseable, that there was certainly no need for a promise of marriage to induce her to give it.

The Scottish law supposes, and experience proves, that a girl previously pure and virtuous may, on the faith of a promise, surrender her person. She has much to surrender; and only in the exuberance of trust and on faith of promise can she be supposed to render up the jewel of her honour and the possession of her person. We have no such case here.

But I take a case nearer the present. I suppose a promise made by a man to a woman who was his mistress. It is still possible that, in such circumstances, a promise might be given which, followed by copula, may constitute marriage. But such a case is surely different from this. The woman may have been contrite. She may, under conscientious conviction, have insisted on breaking off the illicit connection which she felt to be guilty; and the man may then have given the promise to prevent separation, to win her back, to allay her conscientious compunctions, and to overcome her scruples, or her reluctance, and induce her to permit renewed intercourse. Such a case is possible; but, in my opinion, it must be proved. It is only by proof of such facts as these that, in a case where the man and woman were living in illicit intercourse, the mere promise, in the course of that intercourse, can be brought within the true scope and meaning of the rule, that promise subsequente copula instructs the consent which constitutes marriage. I admit the possibility of such a case. I think it is exceptional, and that it must be proved.

But in this case there is nothing of the kind. There has been here an illicit intercourse without interruption, and certainly without disturbance by any conscientious scruple. This pursuer had nothing to yield on the faith of the promise which she had not yielded to the defender, and to many others, without any promise. Nay, more, it is proved that her life for years had been a life of prostitution, and that money had often purchased the surrender of her person.

I am of opinion that, however culpable and foolish the conduct of the defender was,—and of that there can be no doubt,—the sacred and abiding relation of marriage was not constituted. The condition here attached to the promise is not without importance; and I do not think it a condition of virtue.

I agree with the observations which your Lordships have made on that condition; but I rest my opinion more especially on the ground which I have now explained. The episode with Mr Dewar cannot be omitted. Shortly before the date of this promise the pursuer had alleged in judicial proceedings, in an action of declarator of marriage, that she was married to another man, named Dewar; and she avers that the defender, Mr Wotherspoon, knew of that action, as he certainly knew of her habits and character. That is not very consistent with her claims in this action. And then, after the date of the promise, the pursuer, who knew the Scottish law, and alleged it, solemnly declared that she was not married to any one, and had not been married to any one, according to the law of England, or of Scotland, or any other law.

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