372 On Receiving the Evidence of Parties. one member of the community against another, there was necessarily an affirmation on the one side and a denial on the other, and as each of the parties was deemed equally worthy of credit, it followed that the evidence of neither was received. The testimony of both was rejected, because, being contradictory, both could not be true, and consequently they proved nothing. We thus see the reasons that led to the adoption of the two leading maxims of the English law with respect to evidence, that no person who was infamous, i. e. who had done an act by which he had forfeited the character of an honest and true man, and no person who was interested, could be a competent witness. While the country retained its ancient juridical government, and before it became a commercial one, the establishment of such rules of evidence was not perhaps attended with any ill effects, considering the publicity that was then given to all bargains and contracts. Land could not be conveyed without the attendance of the parties on the very spot, and there, in the presence of witnesses, the one delivering possession to the other; and the same, or as great publicity was given to all other contracts, which being generally made in a fair or market, evidence could very easily be procured respecting them. But so soon as such juridical government ceased to be strictly kept up, and commerce began to be cultivated, the rule not to receive the evidence of an interested party became inapplicable to the state of society, as did the principle upon which it was founded, of regarding evidence as proof; for when men had no longer that intimate knowledge of their neighbours which they possessed before, criminals could not so readily be sifted from out the community; and as commerce caused contracts to become mere matters of course, and divested them of the solemnity and notoriety which previously distinguished them, great inconvenience arose from rejecting generally the best, sometimes the only evidence which could be had. Now the civil law took a different view of the nature of evidence, and adopted a different rule. In criminal matters it requires the testimony of two witnesses to convict any one of a crime punishable with death; thereby showing that it was cautious in giving credit to testimony: and in suits of a civil nature, the evidence of a party interested was equally receivable with that of any other person. Let us now enquire what reasons exist, in our own time and country, against regarding evidence as mere information, en titled to more or less credit according to the character and circumstances of the witness. Laws should always bear an analogy to the manners of the period in which they prevail. They should change as the people change; for the laws of a rude period can never be applicable to a more civilised state of society. We have seen the different views which the Roman and the English law took of evidence, and their opposite practice with respect to it. What was the reason? The English law was instituted for a period comparatively rude, while the Roman law was embodied in and for a state of society highly refined. In a rude period the rules of law require to be strongly marked out, and do not admit of any very nice distinctions, which an uncultivated people would not be able to perceive. This observation more especially applies to the Saxons, where the body of the people, unlettered and ignorant as they were, were the judges. At that time, therefore, it might appear that the receiving the evidence of parties interested, or any evidence that did not carry with it a strong presumption of its truth, was improper, because a jury in those days was incapable of distinguishing the different shades of credibility attending various kinds of evidence. This reason, however, no longer exists, and the practice of rejecting the testimony of interested parties ought therefore to cease. At the present time a jury never does receive evidence without weighing its value, a task which, from the degree of knowledge possessed by the nation at large, a jury is now competent to perform. This being the case, how absurd is it to refuse to receive any evidence that can be given, any information that can be obtainedwhich can by possibility throw light upon a transaction. But the matter rests not here: while excluding the evidence of interested parties generally, our law has felt the necessity of permitting it to be received in some cases, and has therefore made a distinction as to what parties shall be adjudged interested, so as to become incapacitated for witnesses; and what parties shall be held good evidence, notwithstanding their being interested. Now, in drawing a distinction like this, it will be seen there must be great difficulty; that it can be no easy task to fix the kind or quantum of interest which shall incapacitate a man from being a legal witness; and most strange are the determinations of the English law upon this point. From the commercial character of our Review. The Law, Practice, &c. of the Court of Session. country at the present day, the rejection of the testimony of an interested party must be most unwise. In many instances, as before remarked, the parties to a transaction, if not the only, are the most important witnesses that can be had, and a denial of justice must frequently occur through the rejection of such evidence. In such case it may be said, relief can be obtained in equity; but it may be answered, that while the admission of the evidence of parties interested in courts of equity, shows the impropriety of the rule adopted by the common law, the mode of receiving evidence in those courts is not the mode best adapted to elicit the truth. For if in any instance the examination of a witness virá voce, in open court, is important, it is in the case where a witness is an interested party. The mode of examining persons in our equity courts does not afford facility for sifting out the truth which is afforded by the examination of witnesses in the presence of judge, jury, and the public; and in the case of interested parties, gives to them, what they should, as much as possible, be prevented from having, -a previous knowledge of the interrogatories to which they are to give answers. The state of the argument then stands thus: The rule of rejecting the evidence of parties interested, being applicable to the rude and peculiar state of society in which it was first established, is a strong argument of its inapplicability to our more refined one. That a jury does always exercise its judgment as to the value of the evidence, and is quite capable of so doing; and that therefore the admission of the evidence of parties interested, could not be attended with ill effects. That the evidence of parties interested, being made serviceable in some cases, but not in all, has produced doubt, confusion, and inconvenience. That the admission of the evidence of parties interested in the courts of equity, does not remedy the defect of the common law; the mode of receiving evidence, and examining persons in such courts, being the mode least adapted to answer its proposed end. REVIEW. L. W. W. The Law, Practice, and Styles, peculiar to the Consistorial Actions transferred to the Court of Session, by Act 1 G. 4. c. 69. Compiled by Maurice Lothian, Solicitor in the Consistorial Court of Session, Edinburgh. Adam Black, 1830. THIS is a work much wanted; more particularly on this side of the Tweed. There 373 are few subjects on which so much doubt and confusion have existed as on the law of marriage in Scotland; and, as the necessity for its being clear and precise was of considerable importance as well in England as in Scotland, we have frequently had the more reason to regret that there was no work to which we might refer which was at once correct and concise. We think that Mr. Lothian's book will lessen, if not entirely remove, this difficulty; and in order to enable our readers to judge of this for themselves, we shall make some extracts from the work. We shall pass over the account of the Commissary Court, and shall proceed at once to the subject most interesting to Southron readers - the precise ceremonies necessary to constitute a marriage in Scotland. "By the civil law this relationship was considered to be purely a consensual contract, though in general, all nations have employed certain solemnities to mark its constitution. The Council of Trent made the sacerdotal benedic-` tion necessary to its validity. This, though it extended to the Western Empire, and prevailed over Europe, was not acknowledged in Scotland, in consequence of the Reformation; and since that time the ceremonies of a regular marriage, consist only of the proclamation of banns, of which a register is kept, and the acceptance of the parties before a clergyman, who pronounces the nuptial benediction, and who may be either of the Scotch or English church. Tol: Act: 2 Anne, 10. c. 7. Banns should be proclaimed on three Sundays in the parish church or churches of the parties, while the people are assembled for divine service. The names and designations of the parties, and their purpose of marriage are thereby announced, and all concerned are required to state any objection which they may have to the union. The only specific regulations on this subject are ecclesiastical. See B. I. of Discipline, Gen. Assem. 1658. ar. 21. Direc. of Worship, 1644. Act of Assembly, 1690. c. 5.; 1711. c. 5.; 1748. c. 8. They have, however, beer recognised by repeated enactments of the legis lature against clandestine and disorderly marriages. After proclamation of banns the woman cannot do any gratuitous deed to the injury of her future husband. The certificate of the session clerk is received as evidence of the due proclamation, not to be redargued by positive proof that the three different proclamations were made on the same day, though he may be prosecuted at common law if he returns a false certificate. "It makes no difference, however, as to the legal effects on the parties, though this relationship be contracted in the most irregular form. The only individuals affected by the form are the celebrator and witnesses. In the latter case, the clergyman by stat. 1661. c. 34. is exposed to banishment, and the witnesses by 1698. c. 6. to fine and imprisonment; but, for a long time 374 The Law, Practice, &c. of the Court of Session. back there have been few such prosecutions; nor will there likely be any, unless other circumstances occur to call for the interference of the criminal prosecutor. 6 Marriage in this country, according to all our institutional writers, and a long unbroken chain of solemn decisions, is constituted simply by the consent of parties expressed de præsenti, without regard to form, and without consummation; and may be proved by such parol or other testimony as is admissible to establish any other personal contract of importance. Lord Stair, B. 1. t. 1. § 6. says, Marriage consists in the present consent, whereby they accept each other as husband and wife, whether that be by words, expressly, or tacitly by marital cohabition or acknowledgment, or by natural connec tion, where there has been a promise or espousal preceding, for therein is presumed a conjugal consent de præsenti. In like manner, Mr. Erskine, B. 1. t. 6. § 2., describes it as a civil contract, constituted by consent alone. "Such consent may be declared in writing or before a magistrate, or kirk-session, or mutual friends, without the intervention of a clergyman, and it may be inferred from the conduct of the parties. "1. It must be shown, however, that the consent was deliberate, serious, and voluntary. In the case of Cameron, Dict. p. 12680, the court, owing to the youth of the female, and the precipitation employed, considered that her consent had not been given with that seriousness which such a contract requires, and therefore annulled a marriage celebrated before a clergyman, proof having been led that she went to the place with her mother without any intention of marriage, that it was celebrated in her mother's absence, was instantly succeeded by repentance, and that some altercation ensued on bedding being proposed; on which the mother and daughter, a girl of only twelve years and four months old, returned home, refusing to acknowledge the marriage ceremony. 66 2. Idiots, being incapable of consent, cannot marry. The procreation of children by idiots who may have gone through the most formal ceremony, and who may not have been previously cognosced, will not supply the want of the requisite consent; such were the circumstances of the case of Blair v. Blair, 28th June, 1748, Dict. p. 6293, in which the interlocutor of the commissaries, adhered to by the Court of Session, bore, that the said Hugh Blair was, and from his youth had been, a natural fool, and void of that degree of reason and understanding which were necessary to entering into the marriage contract, and therefore found and declared the pretended marriage to have been from the beginning, and to be in all time coming void and null.' In the English case, Turner v. Meyers, 6th May, 1808, a ceremony of marriage was set aside as void, on the ground of the husband's insanity, he himself being the pursuer of the action of nullity after his recovery. Lord Stowel said, it is perfectly clear in law, that a party may come forward to maintain his own past incapacity, aud also that a defect of capacity invalidates the contract of marriage as well as any other contract.' "3. Pupils, that is, a boy under fourteen and a girl under twelve years of age, being presumed incapable of giving consent, as well as being physically immature, cannot marry. If, however, their cohabitation is continued after puberty, the requisite consent will be held as irretrievably supplied. Johnston v. Ferrier, 17th Nov. 1770, Dict. 8931. In this case the female was twenty, and the male twelve years of age. "4. From the same inability to give a rational consent, a person cannot be bound by any words uttered or solemnity gone through when intoxicated, and disclaimed when sober. The circumstance of a woman's being in a state of inebriety when declaring a marriage before a justice of the peace, and for three days thereafter, during which she cohabited with the defender, was found to entitle her to a decree of nullity, and putting to silence, in Johnston v. Brown, 15th Nov. 1823, she having left him, and intimated that she would hold no communication with him, so soon as she became capable of acting rationally. A man's acknowledgment was disregarded, having been made in liquor and in jest, in Grey v. Lennie, 12th March 1801, and because it was made in jest, in M'Gregor v. Campbell, 28th Nov., 1801. "5. If either party be compelled to express consent there can be no marriage, even though consummation follows, unless it be unequivocally proved that the parties voluntarily cohabited afterwards. "6. A person within the forbidden degrees of relationship, or impotent, or who is bound by a previous existing marriage, is not at liberty to give a lawful consent. By stat. 1600, c. 20. a party who is divorced for adultery is not permitted to marry with the guilty paramour, "Neither the bona fides of one of the parties to a second marriage, nor the plea of personal exception against the conduct of the parties to a first, will protect the second against the effects of a challenge by any individual having an interest to object to it. In regard to the offspring of such second marriage, see Chap. IX. "The consent of parents or guardians is unnecessary. In Muir v. Nisbet, 14th Jan. 1727, where the requisite consent was deliberately given, it was found not to be invalidated by the circumstances, that the gentleman was a minor; that he had not got the consent of his friends; that no banns were proclaimed; that the lady's father officiated at the ceremony; and that there had been no consummation. Consensus non concubitus facit matrimonium." The author then proceeds to show how this consent may be proved. It will be seen by what slight evidence this solemn. relationship may be constituted. The Law, Practice, &c, of the Court of Session. claration or acknowledgment of the parties, that they are married to each other, or by writing to that effect. 66 3. By a reference to oath, that even in the most secret manner, and though without the knowledge, advice, or concurrence of any other human being, and verbally, parties accepted of each other to be husband and wife, provided there be nothing to throw discredit on the oath. "The first of these modes may be established just like any other matter of fact. "As to the others, Erskine, B. 1. t. 6. § 5. mentions an unreported case, where marriage was sustained chiefly on the evidence that the husband owned it to the midwife, whom he called to assist at the birth of his child, and to the minister who baptized it. Arrol, Feb. 1759. "In Currie v. Campbell, 2d June, 1807, it was found sufficient that a man, previous to consummation, had taken a woman to a public house, and acknowledged her as his wife before the mistress and servants of the house. "It is not unusual in some of the Scotch burghs for a petition to be presented to the magistrates, setting forth that the parties were irregularly married, and praying for fine, or imprisonment on account of the irregularity. On this the parties emit a declaration, confess the charge, and receive sentence to pay a small fine. These irregular proceedings establish the marriage. Hamilton v. Wylie, 27th May, 1827. In this respect, statutes which were designed to repress the evil, have been converted into means for extending it. "The circumstances of a person mentioning his marriage in a letter to a third party, and designing the lady as his spouse in his testament, were found sufficient. Anderson v. Wishart, 23d February, 1724. Dict. 12676. A written acknowledgment was also found sufficient in Edmiston v. Cochran, 15th May, 1804." This, of course, is direct evidence of the contract; but it may also be proved “inferentially" by a promise to marry, followed by sexual intercourse, and by the cohabitation of the parties, and their being reputed man and wife. "Marriage may be constituted by a promise carnali copula subsecuta (as the canonists express it) from a presumption that the promise was then fulfilled, and that the consent which was previously prospective, was then rendered present. Pennycuick v. Grinton and Graite, 15th Dec. · 1752. Reid v. Laing, 14th May, 1823, affirmed on appeal. Mr. Erskine says, that in the case of a promise of marriage followed by a copula, the subsequent copula must doubtless be considered as the perfection or consummation of the prior contract, after which there can be no room for resiling.' This is an equitable doctrine; for since marriage may be contracted in this country by consent merely, and without regard to form, it is most reasonable to infer that the intercourse consequent on the promise, was the matrimonial acceptance and recognition on both sides. "The woman is more frequently the pursuer of a declarator of marriage so constituted. There 375 is nothing, however, to hinder the man from founding on his own promise, followed by copula, provided he will prove her acceptance of it by her writ or oath. A female may indulge a licencentious passion with a man below her in rank, without any intention of gratifying his ambition by marrying him, and therefore, in such a case, her express acceptance must be proved, and will not be implied merely from her admitting that he promised or expressed his willingness to marry her prior to the connection. Forbes v. Dowager Countess of Strathmore, 27th Feb. 1750." Mr. Lothian then enquires minutely into the proof of the promise and copula, and of the reputation of parties being man and wife. It seems quite clear, that the circumstance of the parties being Scotch, if they be resident in another country, will not enable them to contract a marriage after the Scotch fashion; they must then conform in all particulars to the peculiar customs of the country in which they are resident. "No proof of any facts or circumstances occurring in a foreign country will be permitted, unless they constitute a marriage in such foreign country. "On this ground the commissaries found that cohabitation, habit, and repute, and repeated and deliberate acknowledgments in the Isle of Man, were insufficient, and assoilzied the defender; and though the Court of Session remitted with instructions to alter, yet the House of Lords sustained the judgment of the Commissaries. M'Culloch v. M'Culloch, 10th Feb. 1759. "The principle on which this rule rests is, that the conduct of parties must be judged of by the laws of the place where it occurred, which is an established maxim of international law. If, therefore, cohabitation in any foreign country could constitute a marriage in that particular country, a proof will be allowed. Forbes v. The Countess of Strathmore, 27th Feb. 1750. In this case cohabitation as man and wife in Holland, which constitutes a marriage there as well as in Scotland, was libelled, and though the Commissaries superseded the foreign proof till the proof in this country was reported, the Court of Session remitted with instructions to allow a proof of both at the same time. "In England the public ceremony is indispensably necessary. Accordingly, an offer to prove a promise and copula in that country will be unavailing. It was so decided in Dalrymple v. Dalrymple, 16th July, 1811, where Lord Stowel said that a public ceremony there being indispensably required, no young woman acting with a regard to virtue and character, and common prudence, would surrender her person in a way which would not only not constitute a marriage, but would in all probability defeat all expectation of such an event.' "In the case Gainer v. Captain Dalrymple, where the pursuer libelled on a celebration of marriage before a popish priest in Ireland, and cohabitation in that country, it was pleaded that no such marriage could be recognised there. 376 Remarkable Trials, No. II. A proof of the pursuer's averments was allowed before answer, but the Commissaries pronounced an interlocutor, finding the facts and circumstances proved in behalf of the said Mary Gainer and her children not relevant to infer marriage, and therefore assoilzied,' &c. "It is no answer to say that both parties were Scotch by birth, and that such a ceremony was gone through abroad, or that such circumstances occurred abroad as would, if they had happened in this country, have constituted marriage, unless they had the same effect by the laws of the place where they happened. This rule is simple and just. It rests on the principle, that as a man must always be governed by the laws of the country where he happens to be, his conduct at the time should only be tried by these laws." We shall now shortly notice the part of the work relating to the law of divorce. In Scotland there are strictly only two grounds of divorce, viz. wilful desertion or adultery. The actions founded on the defender's impotency, prior to marriage, not being actions of divorce but of declarator, that the ceremony was null and void ab initio. The rules as to wilful desertion are more novel to us than the other portion of the work. "By the Scotch statute, 1575. c. 55. it is enacted, That where any of the spouses shall divert frae the other without sufficient grounds, and shall remain in his or her malicious obstinacy for four years,' the party injured may sue the defender for adherence before the judgeordinary; and if the defender disregard the sentence, the pursuer may apply to the Court of Session for letters of horning, in room of the ancient letters of four forms mentioned in the statute, to enforce it. After this, the church is directed to admonish the defender to adhere; and if he shall still continue obstinate, the church-court is to proceed to excommunication. Which previous steps are declared by the statute to afford sufficient foundation for a divorce. "Although, by the enactments of the statute, it would seem the offending party must have deserted four years before the action of adherence can be raised, yet, in practice, such action has always been admitted, and decree pronounced in it, after one year's desertion. Four years, however, must intervene between the desertion and the raising of the action of divorce." The defences to the action are then mentioned, and among others, "It is not a good defence against the action of adherence that the parties agreed to live separately. Nor that a decree of aliment went out against a husband during separation. Nor yet that an agreement was gone into, by which the wife was to be entitled to live separately, with a specific annuity, if it were found by two arbiters that she could not live in family with her husband on account of maltreatment, and that they had, on proof adduced, pronounced a deliverance, finding the maltreatment proved, on which her husband had given to her a discharge of her person. All such agreements are revo vocable, as being inconsistent with the first duties of the marriage; and the only effectual separ ation is a judicial one on cause shown. Vailange v. Lady Touch, 3d May, 1707. "Maltreatment, and other improper conduct, so that the wife cannot safely cohabit, is a good defence. Reid v. his Wife, 9th August, 1696. "The Court of Session also found that the following circumstances afforded a relevant defence in an action of adherence at the instance of a person of quality against his lady, viz. that he refused to allow her money for necessary uses; debarred her from the oversight of her young children's education; shut his doors against her at night; turned off a servant for opening them; conversed indecently with her woman; and protected the woman after his lady had dismissed her. Duchess v. Duke of Gordon, 8th June, 1697. "In Letham v. Proven, 8th March, 1823, where Session sustained the defence for the wife that the husband was also the pursuer, the Court of she was justified in withdrawing from his society in consequence of his having committed adul tery with a domestic servant. It may be here noticed generally, that whatever will justify an action of separation, which will be noticed afterwards, will afford, without any counter action, a successful defence against an action of adherence." Divorce on account of adultery, and the various defences thereto, are then fully considered; but we have already extracted sufficient to enable the reader to judge of the value of the work. He will find the other portions equally judicious and interesting. REMARKABLE TRIALS, NO. II. THOMAS Harris kept the Rising Sun, a public house, about eighteen miles from York on the road to Newcastle. Harris had a man and maid servant: the man, whose name was Morgan, be kept in the threefold capacity of waiter, ostler, and gardener. James Gray, a blacksmith, travelling on foot to Edinburgh, stopped at Haring Morgan went secretly to a neighbouring maris's, supped, and lay there. Early in the morngistrate, and gave information that his master, Harris, had just then murdered the traveller James Gray in his bed. A warrant was issued, and Harris was apprehended. Harris positively denied the charge, and Morgan as positively affirmed it; deposing, that he saw Harris on the stranger's bed strangling him, but that he came too late to save him, and that Harris's plea was the deceased was in a fit, and he was only as The first number of this series was inserted in the Supplement for March, and we shall, in that portion of the work, continue to preserve correct reports of interesting and important trials which occur at the present time, but shall continue the series of ancient trials in our weekly publication. |