its several editions; and it thus constitutes the Scottish lawbook of modern times which has brought together the greatest quantity of lucid and systematic matter from undigested materials.

The position which legal treatises hold as authoritative announcements of the law is not easily defined. In the first place, no dictum of a commentator or digester of the law, however high his reputation, can be stated on that account to be law, and indeed the position of being binding law, like the clauses of an act of parliament, is not even conceded to the principles embraced in the decisions of the supreme court. There are at the same time legal propositions, to be found only in the institutionalists and commentators, which are as firmly established law as any provisions in an act of parliament. This arises, however, from its being known or believed that the author has merely given words to old established principles, the acknowledgment of which as law goes back to remote and perhaps unknown ages. The older is the law-book, the greater quantity of superseded law will it in general be found to contain; but at the same time those principles which are still in daily practice, and have continued to be acknowledged since the book was published, are to be found in more authoritative form in these ancient announcements than in modern versions. It is generally said that no writer is an authority until he is dead; but the real principle at work is, that the dictum of a lawyer, to be absolutely admitted as fixed law, must have stood the test of a certain period of practice. In modern books, which are of small authority, there is more actual practical law than in the old institutionalists; but whatever in the writings of the latter is still matter of practice, is more authoritatively stated by them than by modern writers. Between these two extremes the strength and applicability of legal dicta vibrates, and some are in their transition from being merely statements worthy of respect, to be either superseded, or to become fixed principles of law. It would at once be an absurd and dangerous rule, that every one who writes a law-book is to be held an authority on law; but at the same time it is a general principle, that the court rejects no light which may be brought to bear upon the law it is about to embody in a decision;

1 English writers feel this principle so distinctly, and their system professes so much respect for whatever is old and fixed, that modern lawwriters, when laying down the ancient established principles of the law, scarcely vary from the very words in which they have been laid down by Coke, or at latest by Blackstone.

and elucidations obtained from impartial commentators may be at least as clear as those derived from lawyers whose duty it is to work for the interests of their respective clients. In this view, appropriate remarks made by persons who are not professional lawyers; the proceedings of the legislatures of other countries; the decrees of foreign courts; and treatises on other laws and institutions, may all be brought to bear on the proper application of the general principles of law. In applying the rules of international law, and in those mercantile questions to which it is so serviceable to commerce that a system of law as nearly uniform as is practicable should be adopted throughout Europe, the law-books of other countries-particularly of England, France, and the United States, are sometimes of great service.

66

Decisions. Of the decisions of the Court of Session, the earliest recorded in print are to be found in Balfour's Practicks. Some of the cases which he narrates are indeed anterior to the present constitution of the court, and bear to have been given before the close of the fifteenth century. In Morison's Dictionary, several decisions bearing date during the sixteenth century and the earlier part of the seventeenth, have been collected from manuscripts. The earliest published collection of decisions is the folio volume by Gibson of Durie, from 1621 to 1642. The decisions of the court continued to be collected on the responsibility of individuals, until the Faculty of Advocates took the system of reporting under their patronage. In 1705, the faculty gave a salary to a reporter, and Forbes's Journal of the Session," published in 1714, was the first fruit of this patronage; but it was not till the year 1752 that the series commonly called "The Faculty Collection" commenced.1 This series was conducted by successive reporters until 1841, when the field was left to public competition. The tendency of the system at the present day has been towards an increase of the length of the reports. The opinions of the judges, sometimes occupying a large space, are generally given at length, and they may be looked upon as so many detached legal treatises. It is the reporter's peculiar duty so to connect the decision come to with those facts in reference to which it was pronounced, as to derive from the union a general legal principle. This is generally embodied in an analysis of the report, supplying the place of all that the older reporters used to afford. The valuable

In Tait's "Index to the Decisions," a work of great value in economizing time to those who are in the habit of turning up many decisions, may be found a full bibliographical account of the various reports.

analysis of the reports during the present century, embodied in Mr Shaw's Digest, is of inestimable service to those who are searching for decisions in reference to particular points, and who desire to have the principles of all the decisions on any one branch of the law laid before them at one view. To the admissibility of any particular decision as an authority to the court to administer its principle as fixed law, two objections may lie-the one, that it is not rightly reported, and the other, that it is not in conformity with law. As decisions recede into antiquity, any ground there may be for holding the former objection will generally become less and less substantial, but at the same time the decision will be becoming less applicable to modern occurrences. A single decision of the Court of Session is not necessarily admitted as embodying the law, though it is very strong evidence of what the law is, and a series of decisions in favour of any one principle will approach within an imperceptible distance of being a fixed embodiment of the law. When there is but one decision in favour of any principle, it is open to show that it has proceeded on mistaken views-in some instances it has been shown that a decision has rested on a mistaken reading of an act of parliament; but a whole series of connected decisions are so nearly conclusive evidence of what the law is, that they may be said to make it.

PART I.

PERSONS IN THEIR RELATIONS TO EACH

OTHER.

CHAPTER I.

HUSBAND AND WIFE.

SECT. 1.-Constitution of Marriage.

1

IN conformity with the civil law and the custom of the greater part of Europe, marriage is in Scotland merely a civil contract between the parties. Our law on this point differs materially from that of England, where a sufficient marriage requires by statute to be celebrated with certain solemnities. It is essential to the existence of a marriage that by the terms of the contract it is to commence at the moment when the contract is entered into; so, an obligation to hold a marriage as contracted at any future period is a mere promise of marriage, which cannot by any process of law be converted into a marriage,3 but may afford ground for an action of damages for a breach of the promise. On the same principle, a declaration of marriage, however distinctly applicable to the present time, if it incorporate words which make it conditional, is insufficient as where the man wrote to the woman thus, "you and I having lived together as man and wife for some time, I hereby declare you to be my lawful wife, in the event of a child being born in consequence of the present connexion betwixt us.' It has sometimes however been necessary, where the meaning of written documents

1 E. i. 6, 2. Br. St. 25, n. Aitchison v. Solicitors at Law, 20th November 1838. Adam v. Walker, 24th May 1813. 1 Dow, 148.2 Bl. i. 439. 26 Geo. II. c. 33.-3 E. i. 6, 3. Fraser on the Domestic Relations, i. 152.- 59 Geo. III. c. 35, § ́ 1.—5 Stewart v. Menzies, 6th October 1841. 2 Rob. App. 547.

was equivocal, to gather from other circumstances the intention and view with which parties subscribed or wrote them.'

By a practice also derived from the Roman law, a promise of marriage, if followed by connexion between the parties, constitutes a marriage, which may be judicially declared to exist by a decree in an action of declarator.2 The promise to have this effect must be in writing, or admitted by the oath of the party,3 or proved by circumstantial evidence, i. e. "by a train of conduct and proceedings, leaving no doubt that there was a serious matrimonial purpose in view at the time." The promise must not be conditional, as, a promise to marry in the case of a child being born; but absolute. It is not yet decided whether such a marriage while undeclared by a decision of the court, will hold so as to prejudice a subsequent marriage formally solemnized.

5

The agreement between the parties to consider themselves man and wife may be proved in the ordinary manner by writing or witnesses, or it may be held to have taken place where there is a serious and deliberate acknowledgment by the parties of the existence of a marriage. As in other

cases of evidence, words and actions are here given effect to only in as far as they are considered to be the indications of intentions or professions, and so words or expressions will not suffice, if it appear that, however clearly they may indicate a marriage, they were used by parties not intending to consider themselves man and wife.7 In Hamilton's case, there was conflicting evidence as to the ostensible position which the parties held to each other. The husband was a decayed gentleman, with some pride of family and station, and he concealed altogether from his relations and his friends of the upper class any circumstance indicating his being married, while among poor people, of the same rank as the mother of his children, he seemed to encourage the opinion that he was married. The marriage, as sanctioned by a decision in favour of the legitimacy of the children, rested, not on the evidence of habite and repute, but on the circumstance that "to please and satisfy their mother," and also as

1 Edmestone v. Cochrane, 15th May 1804. Inglis v. Robertson, M. 12689. Fraser, i. 136, et seq.-2 E. i. 6, 4. Ferguson's Consistorial Law, 115. Fraser, i. 164, et seq.-3 Smith v. Grierson, 27th June 1755, M. 12391. Campbell v. Honyman, 9th July 1830. Harvie v. Inglis, 19th Feb. 1839.5 Fraser, 194. Stewart v. Menzies, App. 6th October 1841. 2 Rob, 547.-6 E. i. 6, 5.-7 Iv. Er. 120, n. 139. Br. St. 27, n. Fraser, i. 149. Aitchison v. Solicitors at Law, 20th Nov. 1838. M'Innes v. More, M. 12683, reversed on App. Fraser i. 213. M'Gregor v. Campbell, M. 12697.