Sir William Scott and the law of marriage

The judgment of Sir William Scott in Dalrymple v Dalrymple has been lauded by subsequent judges and academic writers, and is frequently cited as authority for the proposition that under the canon law the exchange of vows in words of the present tense was sufficient to create a marriage that was valid for all purposes. Of course, by 1811 legislation had long supplanted the canon law in England and Wales, and so this proposition was only of relevance in Scotland, and to marriages celebrated overseas (including, in certain limited circumstances, those celebrated in Ireland). Despite this, his judgment has also been seen as conclusive as to the law that preceded the Clandestine Marriages Act of 1753 in England and Wales. In this paper I aim to show that Dalrymple proceeded on a mistaken understanding of the law in England and Wales prior to 1753 and does not deserve the weight that has been attached to it.