which declares that no person can be a minister without episcopal ordination, takes it for granted, that marriage celebrated by a person who is not ordained by a bishop, is valid, 1672, C. 9. Marriage may be also, without doubt, perfected by the consent of parties declared by writing, provided the writing be so conceived as necessarily to import their present consent 159. 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 seriously and with deliberation. Thus a marriage was sustained against the husband, Feb. 1739, Arrot, (not reported), chiefly on his owning it to the midwife whom he had called to assist his wife in the birth, and to the minister whom he had desired to baptize the child, without any actual proof, either of the marriage, or of the parties cohabiting together as married persons *. 6. Marriage A variety of cases have been decided on similar grounds; and judgment has varied according to the degree of evidence which appeared of the solemn and deliberate consent of the parties. See, on the one side, Feb. 23. 1714, Anderson, Dicт. p. 12676.; Fac. Coll. March 3. 1786, Inglis, affirmed on appeal, Feb. 14. 1787, in which marriage was found proved, Dicт. p. 12689. On the other hand, see Fac. Coll. Nov. 18. 1766, Johnston, Dicт. p. 12681.; Nov. 18. 1785, White, Dicт. p. 12686.; Nov. 13. 1795, Anderson, &c. Dicr. p. 12690. the celebrator and parties, the genuineness of which was supported by reference to the oath of the husband; Wyche, 27th June 1801, Fac. Coll. DICT. v. FORUM COMP. App. No. II.; -again, in another case, where the parties had mutually" acknowledged themselves to "be married persons" before a Justice of the Peace; Crawford's Trustees, 20th Jan. 1802, Fac. Coll. Dicт. p. 12698;-again, in the case of a written declaration, Edmestone, 15th May 1804, Fac. Coll., App. DICT. v. PROOF, App. No. II. ;—and, finally, under very peculiar and rather unfavourable circumstances, in the case of a mere verbal declaration; Walker, 4th March 1807, Fac. Coll. DICT. v. PROOF, App. No. IV.; affirmed on appeal, 21st May 1813, 1. Dow, p. 148. In this last case, indeed, the Lord Chancellor took occasion to observe, in express allusion to the whole train of decisions, and, among the rest, to those commented on in the earlier part of this Note, that "it was a position again and again clearly recognised in them, that the contract "de præsenti formed very marriage, ipsum matrimonium; and the judgments of the "House of Lords had not trenched on the general doctrine." The decision of the English consistory court, in the case of Dalrymple already referred to, affords another very strong illustration to the same effect. And perhaps a more valuable exposition of our whole law, in reference to the important question of the constitution of marriage, is nowhere to be found than in the clear and able judgment delivered by Sir William Scott in that case, accompanied as it is, in Dr Dodson's report, by the detailed opinions of so many of the most eminent among our own lawyers. It is true, that in one recent case, Macgregor, 28th Nov. 1801, Fac. Coll. DICT. p 12697, there was found to be no marriage, notwithstanding an apparent acknowledgment of the parties. But the decision here just falls under the same class with those pronounced in the cases of Macinnes, Taylor, &c.;-the Court were satisfied, from the whole circumstances, that there had been no intention, on either side, to contract marriage, and that any show of acknowledgment that had taken place was intended merely as some sort of excuse to the world." In fact, the woman had "demanded wages and livery meal as a servant to the period of Campbell's (her alleged hus"band's) decease; and when called before the kirk-session of Comrie, she did not "claim the character of widow and lawful mother of the child." It remains only to be added, that, notwithstanding the contrary has sometimes been pleaded, it seems now settled, 1. That a verbal acknowledgment, or declaration of marriage per verba de præsenti, may competently be proved by parole testimony; Walker, supr. 1. Dow, p. 182, 189. 2. That although consummation may perhaps add, in a doubtful case, to the strength of evidence as to the true intent of parties, it is by no means an essential :-a, marriage constituted de præsenti, by mutual declarations, "does not require consummation in order to become very matrimony;" it does "ipso facto et ipso "jure constitute the relation of man and wife;" Dalrymple, supr., Dodson, p. 58., et passim; Walker, supr. 1. Dow, p. 181. et seq. 3. That a first marriage, although private and irregular, can in no degree be affected by a second, how regular and public soever. There can, in fact, properly speaking, be no second marriage: there may be a ceremony, but it is a mere nullity; Dalrymple, supr. Dodson, p. 87. et seq.; Pennycook, 15th Dec. 1752, Fac. Coll. Dicт. p. 12677. VI TITLE N BOOK I. 6. Marriage may be also entered into, where the consent is not express, but is discovered rebus ipsis et factis. In this way it is presumed or inferred from cohabitation, or the parties living togestances presume ther at bed and board, joined to their being habite, or held and re What circum consent. Marriage is null where there is an incapacity of procreation. Computation of the degrees of propinquity and affinity. puted, man and wife. Cohabitation therefore does not by itself establish this presumption; for a man and woman may thus cohabit to gratify their unlawful desires, without any intention of being bound by marriage 140. This legal presumption is grounded not only on the nature of things, but on statute, 1503, C. 77., which provides, that a woman who has been reputed the wife of a man till his death, shall be entitled to and enjoy the terce as his widow, till it be proved that she was not his lawful wife. Hence it may be observed, that the presumption of habite and repute is not so strong an evidence of marriage as to exclude a contrary proof; it only throws the burden of it on him who denies the marriage *141. -Hitherto of the consent of the parties themselves. By the Roman law, the father's consent was so necessary to the marriage of his son, while he continued in his family, that it was doubted whether his subsequent approbation could ratify that marriage to which he had not given an antecedent consent. But this duty, of consulting parents on so important an article, is one of those which our legislature hath not thought fit to enforce, either by annulling the undutiful act, or by inflicting any penalty on the actor, though the marriage should be entered into even against the express remonstrances of the father. The consent of curators is not necessary to the minor's marriage, either by the Roman law, or the usage of Scotland. 7. Marriage is in itself null, where either of the parties is, at the time of contracting it, naturally incapable of procreation; for such marriage is inconsistent with the propagation of mankind, which is at least one great design of its institution; yet where the disability proceeds, not from nature, but from some temporary infirmity of body, or even from old age, the law allows such persons to assume to themselves perpetual companions in the way of marriage, in solatium vitæ. 2dly, Marriage is null, where either of the parties stands already married to a third person; for as one cannot be married to two persons at once, the marriage to the first being valid, the other must be void: But of this, infr. B. 4. T. 4. § 54. It is also null, 3dly, when it is contracted within the degrees of propinquity or affinity forbidden by law †. 8. Propinquity is distinguished by its different lines, and measured by degrees. A line in propinquity is a series of persons descended * The cohabitation must have lasted for a considerable time; Stair, B. 4. Tit. 45. § 19., and have happened within Scotland, Fac. Coll. Feb. 10. 1759, Macculloch, Dicт. p. 459). In this case the cohabitation and habite and repute took place in the Isle of Man; and the marriage was found proved by the court of session; but their decision was reversed in the House of Lords. + See another impediment to marriage, infra, § 43. h. t. 140 In a late case, where the decision of the courts here sustaining the marriage was reversed in the House of Lords, it seems to have been held, that in cases of cohabita"tion the presumption was in favour of its legality,-secus, if the connexion is known "to have been in its origin illicit;" Cuninghams, 20th July 1814, 2. Dow, p. 483, 502. In the same case, it was also thrown out, ib. p. 483, 511, “that repute, to raise "presumption of marriage, must be founded on general, not singular opinion; and "that a divided repute is, on such a subject, no evidence at all." 141 Marriage having once been constituted by habite and repute, no regard will be paid to a subsequent writing, acknowledging that the parties did not live together as man and wife; Stair, B. iv. t. 45. § 19.; Mackenzie, 8th March 1810, Fac. Coll. See also infr. § 37. h. t. pro descended from the same stock or root. That line where the 9. As to the degrees in which marriage is prohibited, the law of Scotland has adopted the Jewish law, by act 1567, C. 15., declaring that marriage shall be as free as God hath permitted it; and that seconds in the degrees of consanguinity and affinity, and all degrees farther removed, contained in the word of God, may lawfully marry; by which manner of reference it would seem, that our legislature hath considered the law of Moses in that matter to be obligatory upon all nations. By Levitic. C. 18. the following rules are established, either expressly, or by consequence. First, Intermarriage between ascendents and descendents in the direct line is forbidden in infinitum, let the degrees of propinquity between the parties be ever so distant; for such marriages are universally agreed to be repugnant to the law of nature, and destructive to the ties BOOK I. Proclamation of bans is requisite to a regular marriage. ties of birth, Grot. De jur. bell. L. 2. T. 5. § 12. vers. 2. 2dly, Marriage, even in the collateral line, is forbidden in infinitum, where one of the parties is loco parentis to the other, i. e. where he is brother or sister to the direct ascendent of the other party. Thus, one cannot intermarry with his grand-niece, though he be as far removed from her in degree as first cousins are, both by the computation of the Civil and of the Canon law. 3dly, In every instance which falls not under either of these two rules, marriage is lawful in the second degree according to the Canon law, or in the fourth according to the Roman; and consequently cousins-german may intermarry, and all that are farther removed than they. It may be observed, that the act 1567, which was enacted not long after the Reformation, has followed the rule of the Canon law, as it was the common way of computing degrees in Scotland at that time, and continues to this day among the vulgar. 4thly, The degrees prohibited by the law of Moses in consanguinity, are, in every case, virtually prohibited in affinity; and, by the aforesaid act 1567, the prohibition is equally broad in the degrees of affinity as in those of consanguinity. Thus one cannot marry his wife's sister, more than he can marry his own 142. In all this matter, the rules are the same by the law of Scotland, whether the parties be related by full or by half blood *. 10. Marriage is either regular or clandestine. That is regular marriage, where bans have been regularly published, according to the rules of the church. Proclamation of bans is the ceremony of publishing with an audible voice in the church, immediately before divine service, the names and designations or additions of those who intend to intermarry, and inviting all who know of any sufficient objection against the marriage to offer it before it be too late. This ceremony has probably been intended, not only as a guard against bigamy and incestuous marriages, but that the parties themselves might have time to think seriously, before they entered into engagements that were to last for life. Publication of bans was first introduced by the Lateran council which was holden in 1216, in general terms, without specifying in what churches or how often the publication was to be made, Decretal. L. 4. T. 3. C. 3. pr. Afterwards the council of Trent, Sess. 24. De reform. matr. C. 1., ordained bans to be proclaimed on three successive holidays, in the parish-church or churches of the persons contracting; and this canon was adopted by our first Reformers, and hath been ever since observed by our church †. A certificate signed by the clerk of the kirk-session, * Mr Hume, in treating of the crime of incest, has some very important observations on the subject of the text.-Description and Punishment of Crimes, chap. 18. (vol. i. p. 441. et seq. 2d edit.) By statute 10. Ann. c. 7. it is enacted, that no Episcopal minister residing in Scotland shall marry any persons, "but those whose bans have been duly published three "several Lord's days in the Episcopal congregations which the two parties frequent, "and in the churches to which they belong as parishioners, by virtue of their resi"dence." 142 Doubts have been entertained how far the statute 1567 includes this case, 1. Hume, 444, 5. On the other hand, it has been observed, "that the Confession of "Faith, ratified by Parliament "in the haill heads, articles and clauses thereof," (1690, "c. 5. and 1700, c. 2.) expressly declares, (c. 24. Of Marriage and Divorce,) that "the "man may not marry any of his wife's kindred nearer in blood than he may of "his own; nor the woman, of her husband's kindred nearer in blood than of her "own" Ersk. Princ. Mr More's edition, § 4. h. t. note 47. kirk-session, that the bans were duly published, is received as legal evidence that they were proclaimed on three different Sundays; not to be traversed by positive proof, that all the three proclamations were made on the same day. Not bishops only, but presbyteries, were indulged, by act of assembly 1638, Sess. 23. C. 21., with a power of dispensing with this form on extraordinary occasions: But the presbyterian clergy have not exercised it since the Revolution. 11. Clandestine marriages, which are contracted without the previous solemnity of publishing bans, are as valid as regular marriages are; but certain penalties have been annexed to them from time to time by statute, affecting not only the parties, but the celebrator and witnesses. By 1661, C. 34., whoever shall marry, or procure themselves to be married, without proclamation of bans, or by persons not authorised by the established church, are subjected to imprisonment for three months, and to the payment of the sums specified in the act, in name of fine, higher or lower according to their station and quality; and the celebrator is to be condemned to perpetual banishment 143. After the re-establishment of Presbytery, the prohibition to solemnize marriages was pointed against ministers who were not ordained by presbyteries, 1695, Č. 12. This restraint, in so far as it affected the Episcopal clergy, was taken off by 10. Ann. C. 7., which gave such of them liberty, both to baptize, and to celebrate marriages, as should take the oaths of allegiance and abjuration, and pray in express words for the Sovereign and all the royal family, at some time during divine service. The parties who are clandestinely married, must, by 1698, C. 6., declare the names of the celebrator and witnesses, under high pecuniary penalties, and the witnesses are also to be fined in L. 100 Scots each. Those whose marriages were celebrated by persons not authorised by the church, had been also subjected by a prior act, 1672, C. 9., to the loss of some of the rights consequent on marriage; the husband lost his jus mariti, and the wife her jus relicta; which statute, with several others enforcing conformity, that had passed in the reigns of Charles II. and James VII., were, after the Revolution, rescinded, by 1690, C. 27., in the gross, without mentioning any of their contents: And it was adjudged, Fount. Dec. 11. 1705, Carruthers, (DICT. p. 2252.), that the first act 1672 was rescinded in all its parts by the last; and that consequently neither of these rights are now forfeited by a clandestine marriage 144. This judgment may receive some support from the favour of marriage, and the strict interpretation which ought to be applied to penal statutes; and likewise from this negative argument, VOL. I. 2 I that 143 There have been several recent convictions in cases of this kind; Rutherford and Hoggan, 15th April 1812; Rev Joseph Robertson, 18th March 1818; Macdiarmid, April 1818,-cited 2. Hume, p. 461-3. Interlocutor of relevancy was also pronounced on an indictment against a Catholic Priest, for celebrating a marriage between a Protestant man and Catholic woman; he, as a Catholic priest, not being qualified to celebrate marriage. The case was actually carried to trial, but happily issued in a verdict of not proven; Lamont, Sept. 1815, 2. Hume, p. 461. It is impossible not to join in the censure which this last case forces from Mr Hume. "Doubts," says he, "may "reasonably be entertained respecting both the justice and policy of such a prosecution, "which places the members of the two communions in a very strange and distressing "condition." The question, however, being brought before the Court, it does not appear, that, upon the statutes, any other than an interlocutor of relevancy could have been pronounced. 144 The widow's claim to her jus relicta was again sustained in the case of a clandestine marriage; Crawford's Trustees, 20th Jan. 1802, Fac. Coll., Dicr. p. 12698. TITLE VI. Clandestine marriage. |