A regular marriage in Scotland requires, first, the publication of banns; and, second, that the ceremony shall be performed by a clergyman, before at least two credible witnesses. Banns are proclaimed on three several Sundays in the parish churches of the parties, while the people are met for divine service. They announce a purpose of marriage between them by their names and designations or descriptions; requiring all concerned to state any objection which they may know to the union. The only express regulations relating to banns are ecclesiastical, and have been recognized by the legislature no farther than by general statutory prohibitions against clandestine and unorderly marriages, under pecuniary penalties. (e) A certificate of the session clerk is received as legal evidence of proclamation of banns on three different Sundays.(f) Although it is not required to a regular marriage in fucie ecclesiae that the ceremony shall be performed in church, it is requisite that it shall be performed by a clergyman. The want of his presence does not indeed affect the validity [ *87 ] of the marriage,(g) *but it exposes the parties and celebrator to penalties.(h) The clergyman must be either of the Kirk of Scotland,(i) or of Episcopal Communion, duly qualified by the taking of the oaths of allegiance and abjuration.(k)

By stat. 4 & 5 Will. 4, c. 28, s. 1, so much of certain acts of the parliament of Scotland therein mentioned (/) as prohibited the celebration of marriages in Scotland by Roman Catholic priests or other ministers, not belonging to the established church of Scotland, or imposed any fine or penalties on persons so married, or on the priests or ministers celebrating such marriages or marrying such persons, was repealed.

The second section enacts, "that it shall be lawful to all persons in Scotland, after due proclamation of banns there, to be married by priests or ministers not of the established church, and also for such priests or ministers to celebrate marriages without being subject to any punishment, pains, or penalty whatever."

Two witnesses legally capable of giving testimony must be present, who know the parties. No special form of words is necessary to be used in the ceremony. But there is generally, 1st, a solemn admonition to the parties; 2nd, the question of mutual acceptance solemnly put, and an answer required, as in the Roman stipulatio; and 3d, a declaration made by the clergyman that the parties are married.(m)

2. OF THE CAPACITY OF Parties to marry.

Age of Consent.]-By the laws of Scotland the capacity of consenting to marriage commences at the age of fourteen in males, and of twelve in females, but under those ages they are incapable of consent,

(e) Bell's Principles of the Law of Scot. land, 414, 3d ed.; Ersk. book 1, tit. 6, s. 10; Ferg. Cons. Law, 108.

(f) Ersk. b. 1, tit. 6, s. 10.

(g) 1 Ersk. 6, s. 11; Ferg. Cons. Law, 111; Canons of Perth Act, 65. Carruthers, Dec. 11, 1705; Mor. 2252; Crawfurd's Trustees v. Hart's relict, Mor. 12698.

(h) 1661, c. 34; 1672, c. 9; 1690, c. 27;

1698, c. 6.

(i) 1661, c. 34; 1695, c. 12. See 2 Hume's Crim. Law, 327; Ivory's Ersk. p. 125, n. 143. (k) 10 Anne, 7.

() 1 Parl. Car. 2. sess. 1, c. 34; An. 1661, 1 Parl. Will. sess. 7, c. 6, An. 1698.

(m) Bell's Principles of the Law of Scot. land, 414, 415, 3d ed.

and therefore of marriage; but minors may, after puberty, marry, or by solemn consent ratify a previous marriage, without consent of parents or guardians.(n)

*The father's consent was by the Roman law, essential

to the marriage of children in familia; but by the law of [*88] Scotland children may enter into marriage without the knowledge and even against the remonstrance of a father.(0)

The law which, in both England and Scotland, allows a minor to marry, attributes to the party, in a way which cannot be legally averred against upon the mere ground of youth and inexperience, a competent discretion to dispose of himself in marriage; he is arrived at years of discretion as to this, whatever he may be with respect to other transactions of life; and he cannot be heard to plead the indiscretion of minority, still less can the habits of a particular profession exonerate a man from the general obligations of law. And with respect to any ignorance arising from foreign birth and education, it is an indispensable rule of law, as exercised in all civilized countries, that a man who contracts in a country, engages for a competent knowledge of the law of contracts in that country. If he rashly presumes to contract without such knowledge, he must take the inconveniences resulting from such ignorance upon himself, and not attempt to throw them upon the other party, who has engaged under a proper knowledge and sense of the obligation, which the law would impose upon him by virtue of that engagement. The law of Scotland binds a party, though a minor, a soldier, and a foreigner, as effectually as it would do if he had been an adult living in a civil capacity, and with an established domicile in that country.(p)

There have been cases of marriage where the young man was fourteen and the young lady twelve, in which more effect has been given to the supposed operation of deceit and fraud upon such persons, than perhaps can be fully justified, recollecting, that the law has said, that at their ages, they are perfectly capable of giving full and deliberate and sufficient consent; though some allowance must be made for the difference of discretion between 21 and 14, yet with respect to the particular contract of marriage, the law, strictly speaking, has *held them equally capable as older persons of giving their [ *89]

consent.(q)

A girl of twelve years of age is capable of marriage, but being very susceptible of undue influence, and liable to be unjustly trepanned, her marriage at that age, under circumstances of suspicion, must be proved by more accurate evidence of consent than is necessary between adult parties.(r)

A marriage in facie ecclesiæ, the girl being just turned twelve years, was annulled, on the ground of her extreme youth, deception, undue influence, and fraud, which had been practised by the man to obtain her consent.(s)

(n) Ersk. b. 1, tit. 6, s. 2; Erskine's Principles of Law of Scotland, 67, 11th ed.; see 2 Addams R. 375.

(0) Ersk. Principles of the Law of Scot land, 11th ed. p. 69.

(p) Dalrymple v. Dalrymple, 2 Hagg. Cons. R. 60, 61.

(q) 2 Bligh N.S. 499, 500. See Honyman v. Campbell, 2 Dow & Clark, 280.

(r) Cameron v. Malcolm, Mor. p. 12680. (s) Allan v. Young, 1 Halk. Dig. of the Law, relating to Marriage in Scotland, 318, pl. 3.

Idiots, &c.]-Idiots are incapable of marriage; and madmen, except during a lucid interval.(t)

Former Marriage undetermined.]-There can be no second marriage where the parties to the first are alive and undivorced; and neither bona fides nor personal exception will protect the second marriage against challenge. In a case which occasioned much discussion, the question was, whether a lady, who was alleged to have been privately married, having afterwards, during the lifetime of her husband, contracted a second marriage with a gentleman ignorant of the first, the child of that second marriage was, or was not legitimate, on account of the bona fides or ignorance of its father.

No proof was taken of the averments of the parties, but the alleged private marriage of the lady was denied; and the facts which were assumed, by the direction of the court, for the purpose of raising the question of law, were, that a young lady, an heiress, was, while several years under the age of twenty-one, prevailed on by a gentleman, then also under age, to consent to a marriage, which, though the forms required by the church were complied with, was private, in so far as it was concealed from the knowledge of her relations; that she returned to her mother's house immediately after the ceremony was performed; that her husband, who very soon thereafter (or, according to the defender's statement, next day) left the king

[ *90 ] dom, never appeared, or claimed her as his wife; and that the marriage never was communicated to any of her relations till after his death; that a few years afterwards the lady entered into a second marriage, with a gentleman who was entirely ignorant of the first; that they immediately went home to her mother's house, where they resided (with the exception of a few months, during which they lived at the husband's seat in the country,) till the following year, when she was delivered of a son, and that she died within a few days thereafter.

After her death, on a question whether her son or a collateral relation was intitled to take up the succession to her estate, in a declarator of nullity of marriage and bastardy, against the second husband and the child of that marriage, the judges were equally divided in opinion, and ordered the case to be further discussed; but one of the parties having died soon after that order was issued, the matter was settled extra-judicially.(u)

Incapacity for Conjugal Duties.]-The incapacity of the parties to perform conjugal duties, is a ground on which marriage may be declared void, at the instance of either of the parties, but not of itself a nullity which can be pleaded by others.(x)

Consanguinity and Affinity.]-Another impediment is from relationship, either of consanguinity or of affinity. In consanguinity or relationship by blood, the forbidden degrees comprehend ascendants and descendants to the most remote degree; collaterals in loco parentis,

(t) Blair Mor. p. 6293; M Adam v. Walker, 1 Dow, 148.

(u) Bell's Report of a case of legitimacy under a putative marriage before the Court of Session, in Feb. 1811. It seems that the children of the second marriage are clearly

legitimate, where no consummation of the first marriage had taken place. Ib. p. 6. Cameron's case, select decisions, No. 109.

(x) Erkskine, b. 1, tit. 6, s. 7; Mor. 13915. See post, Ch. III. s. 3.

also in infinitum those of the whole or half-blood who are within the second degree; whereby cousins-german and all of more remote degree may intermarry.(y)

In affinity or relationship by marriage the husband and wife being one, the blood relations of each are held as related *by affinity in the same degree to the one spouse as by con[ *91 ] sanguinity to the other. The view on which, in England, it has been considered as lawful for a husband to marry his sister-in-law, after the death of his wife, was not admitted in Scotland, where a marriage contracted within the degrees of propinquity or affinity forbidden by law is void.(*)

3. OF IRREGULAR MARRIAGES.

Modes of contracting Irregular Marriages.

Marriages in Scotland may be effectually enterered into, without the intervention of any religious ceremony, in any of the three following ways:

1. By a promise of marriage given in writing, or proved by a reference to the oath of the party, followed by a copula.

2. By a solemn and deliberate mutual declaration exchanged between a man and a woman, either verbally or in writing, expressed per verba de præsenti, bearing that the parties consent to take each other for husband and wife, a marriage may be formed without any copula cohabitation, or celebration in facie ecclesia. Such mutual declaration of consent, whether oral or written, and however expressed, must unequivocally import immediate consent to hold each other thenceforth as man and wife. But as consent is the essence of the contract, it must be real. Words uttered in jest, or with a different object, cannot, whatever their literal signification, be obligatory.

3. Marriage may be established by public cohabitation as man and wife alone.(a)

General Principles as to Constitution of Marriage.]-" Marriage is considered in Scotland as an ordinary civil contract, which is completed by the interposition of the consent of parties, provided this take place unequivocally, seriously, and deliberately, and with a genuine purpose immediately to establish the relation of husband and wife, and not to engage only, or betroth themselves to [ *92 ] marry at some future time. That a marriage may thus be effectually made in Scotland without the form of celebration by a clergyman, and without the use of any precise ceremony or solemnity, even of a civil nature, and in any way wherein the explicit and mature consent of parties is gravely exchanged. That with respect to the evidence of the proper matrimonial consent having passed between the parties,

(y) Stair's Inst. b. 1, tit. 4. s. 4; Ers. Ins. b. 1, t. 6, ss. 8, 9; 1 Hume's Crim. Law, 447; Bell's Principles of Law of Scotland, 419, 3d

ed.

(z) Ersk. Inst. b. 1, tit. 6, s. 7; Fergus son's Cons. Law, 171; 1 Hume's Crim. Law, 449, 450; 2 Phill. R. 16; Bell's Principles of

Law of Scotland, 419, 3d ed; Bayley v. Snelham, 1 Sim. & Stu. 78; 5 Ves. 534 a, 2d ed. See post, Ch. III. s. 1, as to marriages within the prohibited degrees in England, and stat. 5 & 6 Will. 4, c. 54.

(a) See Cameron v. Malcolm, Mor. p. 12680; 2 Hagg. Cons. R., App. 17.

the practice of the law of Scotland is not limited by strict or scrupulous rules, but allows the fact to be vouched or inferred in sundry modes of evidence-by public cohabitation under the character, or, as it is termed, the habit and repute of man and wife-by writings of mutual acceptance as spouses de præsenti-by mutual written declarations or acknowledgments of marriage-by a series of letters, such as in their contents and mode of address and subscription either express or virtually imply an acknowledgment of marriage-by verbal declaration before a magistrate, or made on some suitable and serious occasion before credible witnesses called by the parties for that purpose. That whether the writings executed by the parties are in the form of mutual and present acceptance of each other as spouses, or in that of a declaration of marriage, as already made, is nowise material, for still such writings are evidence under the hand of parties, and to each against the other, that the just matrimonial consent has passed between them in substance though not in form; the voluntary execution of such declarations is a virtual consent of the parties as at that date to stand in the relation of married persons. That more especially regard is paid to declarations or acknowledgments of marriage, whether oral or written, where it appears that they have been followed with, or accompanied by the parties carnal knowledge of each other; not that such intercourse is regarded as the seal or accomplishment of the contract, or indispensable to its validity, but as a material ingredient of evidence to show that it was meant and understood between the parties that they were actually man and wife from that time, and not engaged or under promise only. That it is however carefully to be observed with respect to all these several modes of evidence, *whether oral or written, that they [ *93 ] are liable to be controlled and expounded by other writings, if such there be, of a contrary import, which have passed between the parties, or by facts and circumstances of a different tendency in the after-conduct and proceedings of parties, whereby it becomes necessary for the judge to take a complex view of the whole case, and to determine on the whole series of evidence and circumstances, whether by the writings and acknowledgments which passed between the parties, they did or did not truly intend to become man and wife, and did or did not consider themselves as being in that relation to each other. That among other circumstances which weigh in this point of view the absence of carnal intercourse is always one of some moment, but that although unfavourable to the plea of marriage, this circumstance is not of itself decisive, but may be made amends for by the other evidence in the case, and more especially where reasonable motives of prudence or the like can be assigned for such forbearance."(b)

Particular Instances of Irregular Marriages.]-By the canon law, the distinction between the contract de præsenti and the promise de futuro was well known; the former constituting a good marriage of itself, the other not, unless followed by copula, or some other act which is held in law to amount to the carrying the promise into effect. But if the contract de præsenti, as well as the promise de futuro, had

(6) Evidence of D. Hume, 2 Hagg. Cons. R., App. 64, 65; Dodson, Appen. 77, 78.