counsel learned in the law, whose opinion he incorporated in one of his appendices :

"A marriage once existing cannot be annulled but by divorce. The destruction of documents may place impediments in the way of proving that it had existed, just as burning a bloody shirt may render it more difficult to prove a murder; but the fact cannot be altered. The subsequent formal marriage and the Church censure would go for nothing, except in the way of evidence, and to throw doubt on what might be adduced on the other side.

66

The question then is-was there a marriage ? Certainly there was, if the document was a declaration by Burns that Jean Armour was his wife, or that he had married her, and she accepted it in that light at the time. The following from Erskine will show that the rule is much older than Burns's day :

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Marriage may be without doubt perfected by the consent of parties declared by writing, provided the writing be so conceived as necessarily to impart their present consent. The proof of marriage is not confined to the testimonies of the clergyman and witnesses present at the ceremony. The subsequent acknowledgment

of it by the parties is sufficient to support the marriage, if it appear to have been made not in a jocular manner, but with deliberation.'

"The difficulties have occurred where the acknowledgment appeared to be with no intention to hold a marriage, but to serve some temporary purpose. Undoubtedly, if Burns had married anybody else he would have been guilty of bigamy."

The presence of a Justice of Peace or other civic dignitary was not an essential part of the irregular ceremony, though, like that of the blacksmith at Gretna Green, it ensured disinterested testimony to the fact. In Burns's case, we have his own declaration (No. 31) that a Justice of Peace was present, and that a fine was paid; the intention of which probably was to facilitate probation, if the need arose, in the Courts of Law. The records of the Session of Mauchline contain many instances of irregular marriages under discipline; so much so as to lead to the belief that the Civil Court was seldom or never appealed to in such cases. The minister and elders in almost every parish were then the only accredited overseers—nay, in many places they were the only local authority vested with powers to control and direct local affairs. Much,

therefore, depended on the personnel of these local tribunals, whose powers were bounded only by their own conception of them. The result was, in many instances, an oligarchic tyranny of the most inquisitorial sort, extending to the minutest details of daily life, whose rigour often defeated the ends in view. Thus, in 1788, the year in which Burns and Jean were reproved for their irregular marriage, the Session Clerk, who apparently had recently been treated to a chorus of sarcastic remarks on the morality of Mauchline, took the opportunity of appending this ludicrous note to the minute of that date: "N.B.-Notwithstanding the great noise, there are only twenty fornicators in this parish since last Sacrament." Dr Edgar tells us that this form of sin lay "very heavy on the minds of Mr Auld and his Kirk-Session," though, it would appear, the "Poacher Court" had nothing to reproach themselves with on the score of lack of alertness on the part of their gamekeepers. What kind of a man was Mr Auld, on whose shoulders rested the responsibilities of this omniscient and omnipotent local adjudicature? We cannot do better than quote again from Dr Edgar:

DADDIE AULD.

"Mr Auld's name is a household word wherever the poems of Burns are read. From the way in which that minister is spoken of in the writings, and in some of the biographies of the Poet, it is not unlikely that the opinion entertained of him by the public generally is neither very exalted nor very favourable. William Auld was, nevertheless, a man of far more than common force of character, besides being a minister of exemplary faithfulness. Of all the ministers that ever lived in Mauchline . . . I am inclined to say that Mr Auld is the one that was most abundant in pastoral labours, and that left on the parish the clearest and most enduring mark of himself. He was a grave, solemn man-an ultra Sabbatarian-and a bishop, who not only looked over his parish, but ruled with apostolic rigour in his own house. While a terror to evil-doers, he was the praise of those that did well.... He was settled in Mauchline in the year 1742, and died at Mauchline in December, 1791, in the 81st year of his age. In 1763, the number of communicants rose to 700; in 1780, to 1300; and in 1786 and 1788 (the two

years in which Burns figured in the Kirk-Session), to 1400. After his death, the numbers went down in a few years to 500.... He is said to have been a man of considerable learning; but, except that he was fairly well informed in Church law and Church procedure, we have no evidence that his acquirements were more than ordinary. ... Some of Burns's biographers have called him a leader of the Old Light party in the Church. He certainly belonged to that party, and he may have been considered an outstanding member of it in the upper district of Kyle; but in no legitimate sense of the term could he be called a leader either of that or of any other party. He made no figure in Church Courts."

Despite an occasional strained note of brotherly sympathy, Dr Edgar's estimate of Mr Auld is, on the whole, an unprejudiced and just review of the qualities of the man, and his work as Minister of Mauchline for the long period of fifty years. He was a stern and unbending Calvinist, conscientious and courageous in the discharge of what he conceived to be his duty; but he was not devoid of charity and benevolence. There is no trace of vindictiveness or revenge in his dealings with Burns; on the contrary, the Poet himself confesses that he treated him with consideration. He showed great zeal in providing for the poor of the parish, and it was his consuming regard for their interests. which led to the quarrel between him and Gavin Hamilton. The "stent," or assessment for the poor, was at that period voluntary, and consequently often fell into arrears; and it was his dictatorial persistence in enquiring after the defaulters which forced Mr Hamilton, as Heritors' Clerk, into a position of antagonism to him and his Session. The subsequent charges brought against Mr Hamilton of Sabbath breaking, &c., undoubtedly savour of persecution; still, Mr Auld had the authority of the binding instructions of the Presbytery in acting as he did. Broader views of Christian life and practice were becoming prevalent, but he was an old man of seventy-five, and clung tenaciously to the old order of things. "His lot was cast," says Dr Edgar, "in a rude, rough age, in which gross licentiousness and shameless perfidy prevailed to an extent that many people have no idea of "-a remark, be it observed, which

has a much wider application to the men and manners of the period of Scottish history between the birth and death of Robert Burns.

THE SUMMING UP.

Before proceeding to examine the evidence, it is necessary to set down clearly the issues involved.

are :

These

(a) Did an irregular marriage take place in 1786 before competent witnesses ?

(b) Did Burns consider himself a married man between 1786 and 1788 ?

(c) Did a second irregular marriage take place in 1788 before competent witnesses ?

All authorities are agreed that a marriage of some kind or other took place in 1786; the points in dispute are its nature and effects. It would be a straining of the language employed in No. 1 to say that the disagreeable news referred to was Burns's hasty marriage to Jean; this much, however, is made certain, his troubles in connection with the Armours began previous to 17th February, 1786. Unfortunately, the exact dates of letters 2, 3, and 5 are unknown; but it is generally agreed that they were all written in the month of April, 1786. Lockhart assigns

first place to No. 3, and writes as if the irregular marriage took place at a subsequent date, though in the letter itself Burns swears, with an imprecation, that he will never "own her conjugally "-an expression, by the way, suggestive of more than the bare idea of marrying her in the future. The "proposals" mentioned in No. 2 were the prospectus of the Kilmarnock edition, the manuscript of which was dispatched on 3rd April, the printed sheets being dated 14th April following. In this letter we have the story of the mutilation of the proofs of the marriage, which must therefore have taken place between the middle of February and the second week of April of the same

year, as we shall see further on in more detail. That the Armours were very much alive to the importance of “the unlucky paper" goes without saying, and Burns's estimate of it can be gauged by the perturbed frame of mind into which he was thrown when he heard of its destruction. By destroying the document or documents, the Armours vainly hoped to annul the marriage; and Burns's resentment of their boorish treatment of him rendered him quite as eager to move in the same direction. Neither he nor his friends were at all likely to insist on the binding nature of the marriage; they therefore deliberately preserved a discreet silence, which took the point off whatever gossip may have gained currency. In no other way can the strange procedure of the Kirk-Session which followed be explained. In No. 8 Burns informs Richmond that Mr Auld was willing to give him a clearance certificate as a single man if he complied with the rules of the Church; and he further says that it was for that very reason he had resolved to submit himself to censure. He writes in the same strain to Brice (No. 9), adding that Mr Auld had promised him a certificate as a bachelor, the inference being that an interview had taken place between them. None knew the laws of the Church better than Mr Auld, and he was the veriest martinet in insisting on their observance. As a party to an irregular marriage Burns had incurred double censure- for ante-nuptial fornication and breach of Church order. Appearing as a single man, his case was simplified; after public reproof, the certificate in every case was granted as a matter of course. Did Mr Auld lend himself to this passive deception on the part of Burns? Dr Edgar, who had convenient access to all the Mauchline records, does not hesitate to say that "he was too upright a man to do anything of the sort; he must have believed that Burns was not married." We are shut up to this conclusion, unless we are prepared to believe that Mr Auld was a man utterly unworthy to hold the * Gilbert testifies that Burns concurred latterly in the destruction of the lines."