Marriage in hope and expectation - but maybe not in law

One of the things I rather enjoy doing as part of my day job is fossicking about among the older law reports in ICLR’s collection and tidying up their subject matter classification. I need to do this in order to enable effective online searching and browsing by subject matter. But much of the terminology in the old cases is bafflingly antiquated, often in Latin or even Law French. The Scottish cases which ended up in the House of Lords’ Appellate Committee may contain references not just to Roman law, as you might expect, but also to Scottish customs and traditions. It’s easy, if you start looking things up and checking them out, to find yourself diverted down a rabbit hole of inquiry.

Kissing and bedding

For example, in one of the old reports I found a fascinating account of the old Scotch custom of ‘Kissing and Bedding.’ This was from the case of Steuart v Robertson (1875)  LR 2 ScDiv 494. The headnote reads:

‘After a family supper, one of the party — a bachelor — put a ring on the finger of one of the daughters, a spinster, and said to her, “Maggie, you are my wife before heaven — so help me, oh God!” The two thereupon kissed each other, and Maggie said, “Oh, Major!” Their health was drunk, and they were forthwith “bedded,” according to an obsolete Scotch fashion.’

The question to be decided, according to the narrative section of the report, was ‘whether the affair here described constituted a real marriage by the law of Scotland, or was only got up to sooth the father, and to “shut up people's mouths”.’

It was held by the House of Lords, reversing the judgment of the Court of Session, that ‘no marriage was contracted; it appearing clearly that no real marriage was then intended by either of the parties, although the ultimate maturing of matrimony and legitimation, under the Scotch law, hoped for and confidently anticipated by “Maggie” and her relatives.’

Lord Selborne rather acidly commented (obiter):

‘I am sorry to say that in Scotland persons generally reputed to be respectable, though not fastidious, may sometime reconcile their moral sense to the notion of an inchoate marriage, to be perfected by the progress of events, — of which they expect a favourable issue.’

Lord Selbourne was English, of course, but these were cases (included in volumes designated as ‘Scotch and Divorce Appeals’) that came to the Appellate Committee of the House of Lords from north of the border, just as they also might come from across the Irish Sea. The House of Lords, like its modern day incarnation the UK Supreme Court, had multiple jurisdictions.

A kitchen courtship

The idea that a couple might plight their troth in expectation, or ‘kiss’n’bed’ (which sounds only slightly less euphemistic than ‘rock’n’roll’) was given the more formal, Latinate designation of ‘Promise Subsequente Copula’ in the case of Forster v Forster (1872) LR 2 ScDiv 244. The matter is approached initially in a quite legalistic (and euphemistic) way: ‘A written declaration of marriage de præsenti signed by both parties and delivered by the man to the woman, conclusively establishes the contract.’

The report goes on to record that ‘The declaration might be regarded as a promise which when followed but not preceded by copula constitutes marriage.’ But the reporter soon abandons this tone in favour of something much more akin to a penny-a-liner romance:

‘In this case a youth of twenty married his mother's housemaid, three years older than himself; the courtship having been carried on in the kitchen, and the connubial relation only known to the coachman and the other servants of the family. The husband, when awoke to his error, treated and represented the whole affair as a jest. But the Court of Session, enforcing the Scotch law, decided that the marriage, though indiscreet and clandestine, was binding and irrevocable.’

Compare the two cases. In the first, you might think that an attempt by ‘Maggie’ and her relatives to ensnare the major, a rich older man, in marriage was frustrated by the solid good sense of the judiciary; in the second, an attempt by the son of the house to wriggle out of a commitment to his mother’s housemaid, following a ‘kitchen courtship’ on the basis it was all ‘a jest’, was likewise seen for what it was by the court. But I wonder if they are really that different? Both cases appear to acknowledge that sexual intercourse took place. Was Major Steuart not just as happy to partake of the jest, and the ‘bedding’, as the bounder in the Forster case? Was the second case worse for being -- confusingly -- both ‘indiscreet and clandestine’?

Habit and repute

Another Scotch custom aired in the law reports concerns the less dubious relationship formed by a couple who genuinely believed themselves honestly married, although technically prevented by an impediment of which both were unaware.

In the case of Captain De Thoren v The Attorney-General (1876) 1 App Cas 686 the husband, having obtained a decree from the Divorce Court in Westminster, but before the expiry of the obligatory waiting period allowed in case of an appeal to the House of Lords, entered into a new marriage with the wife in Glasgow. They resided together as husband and wife for many years, ignorant of the technical impediment at the time of their wedding.

Many years later, the matter was raised in relation to the legitimacy of their sons as heirs. The marriage was held by the court to have been established by the force of habit and repute, without any proof of mutual consent by verbal declaration. Their mutual consent to the match, after removal of the impediment, was to be inferred or deemed from the circumstances.

On this occasion Lord Selbourne adopted a more approving tone. He said, at p 699:

‘When a true and undivided habit and repute of marriage is shewn, a presumption of that marriage from that habit and repute at once arises by the law of Scotland. It is true that this presumption may be rebutted; but the onus of rebutting it is thrown by the law (as I understand it) on those whose interest it is to deny the marriage.’

If you think these cases sound more akin to the law of contract, of offer and acceptance and intention to create legal relations, than to the modern law of matrimony, then you’d be right. They belong to a bygone era when promises of marriage were actionable and husbands and wives could sue to enforce their conjugal rights, as well as rites.

Next time we’ll look at some of the cases in which those rights were sought to be enforced. In the meantime, take care what you say to the maid in the kitchen, and keep on the right side of the coachman.

Written by Paul Magrath

Paul Magrath is head of product development at the Incorporated Council of Law Reporting for England and Wales (ICLR) and a member of the Transparency Project. He is one of three authors of Transparency in the Family Courts: Publicity and Privacy in Practice.

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