it appeared to enable her to draw a military pension, he had written a letter acknowledging her to be his wife, which was deposited with his law-agent. As in other contracts, that a party was intoxicated at the time of giving consent, and repudiates it on restoration to sobriety, is a ground for nullifying a marriage. An intelligent consent, in the full knowledge of what is undertaken, is so essential to the constitution of marriage in Scotland, that it is held that even a marriage celebrated with the usual ecclesiastical solemnities may be null, if its absence be distinctly shown. In one remarkable case, a certificate of proclamation of banns had been obtained by the alleged husband, though no proclamation had taken place. The parties went with it before a clergyman, who was subsequently banished for celebrating clandestine marriages, and the marriage ceremony was performed. It was denied on the woman's part, and was not proved on the man's, that there had been connexion. She said she had been concussed into the proceeding, but this was not proved, and she was twenty-six years of age. She went to live with her father. All the parties were of dissolute habits, and much rude familiarity was attested, out of which the man attempted to prove, but without success, that they had sometimes lived as husband and wife. She was afterwards regularly married to a young man, who had paid his addresses to her, and this marriage was acknowledged by the general conduct of the friends of the parties, and particularly by the person with whom the previous ceremony had taken place. It was not until she had succeeded to some property that this party claimed to be her husband. The House of Lords found, on the ground that the whole conduct of the parties showed that there was no deliberate intention to be married, that the earlier ceremony made no marriage.*

A very loose method of constituting marriage in Scotland is by inferring it "from cohabitation, or the parties living together at bed and board, joined to their being habite, or held and reputed man and wife."5 The cohabitation must be in Scotland, and the repute that the parties are man and wife must be general, and not the opinion of but a few individuals. It is, perhaps, more correct to consider that such circumstances are merely evidence of the existence of a

! Hamilton v. Hamilton, 22d Nov. 1839, affirmed 1 Bells App. 736.— 2 Johnston v. Brown, 15th Nov. 1823. Fraser, i. 48.-3 M. S. xiv. Jolly v. M'Gregor, 3 W. S. 85. Fraser i. 219.-5 É. i. 4, 6.6 Ferguson, 116.

marriage, leaving to a party impugning it the right of proving that a marriage did not exist. In these irregular marriages all circumstances must be taken into consideration and weighed. Although it has been justly observed that before any inquiry can be founded as to the repute, it must first appear that the parties have been cohabiting as man and wife; it having been ascertained that a marriage has once really existed, no subsequent conduct of the parties can tend to invalidate it.

SECT. 2.-Who may Marry.

Idiots, insane persons, and pupils, cannot lawfully marry.3 It is said, however, that the marriage of a pupil may be validated by the homologation inferred in deliberate cohabitation after the period of pupillarity. In the case of insanity, a marriage during a lucid interval may be valid, but if the person have been cognosced, the fact of a lucid interval will require special proof, unless the verdict be set aside by course of law. A marriage is null where one of the parties had an existing spouse at the time of the marriage, though the other may have acted in ignorance of the fact. It is held for this reason to be expedient for a married person whose spouse has been absent for many years, and is supposed but not known to be dead, to obtain a decree of divorce for desertion before marrying again.

Propinquity in relationship, if within certain forbidden degrees, bars legal marriage. The act 1567, c. 15, by appealing to the limits, "as the law of God has permitted the samen," is understood to have incorporated the limitations of the 18th chapter of Leviticus into the law of Scotland, systematizing them according to the principles presumed to be there developed; for there are relationships, such as uncle and niece, which are not expressly prohibited by that chapter, but are so by the Scottish law. The general rule is, that all ascendants and descendants in the direct line are prohibited from intermarrying, and likewise collaterals where one of the parties is brother or sister to the direct ascendant or descendant of the other.8* It has to be observed that this rule rests rather upon the general under

1

Jolly v. M'Gregor, 2d Dec. 1825, App. 20th June 1828, 3 W. & S. 85. Farrel v. Barrie, 1st Feb. 1828. Adair v. Adair, 14th May 1829. Thomas v. Gordon, 8th July 1829.- Lourie v. Mercer, 28th May 1840.3 E. i. 6,2. Ferguson, 107.- 4 Fraser, i. 44.-5 Fraser, i. 48.-6 Fraser, i. 81. -7 E. i. 6, 7.-8 Ib. 8, 9. Ferguson, 107. For farther explanation of these terms, see Part III. Chap. I. Sect. 1.

standing of lawyers than on express decisions; the legal principle being so precisely identified with the social feeling of the country, that a sufficient number of breaches of the principle have not occurred to enable its practical boundaries to be marked. The general rule is as broad in cases of relationship by affinity or marriage, that is, in the relationship between a person who has been married and the blood relations of the spouse ;2 but doubts are entertained of the extent to which this restriction would be carried in practice.3 There is no restriction either theoretical or practical in a relation either by blood or consanguinity of one spouse marrying a relation of the other. Thus, if a son marry a widow, there is nothing to prevent his father, a widower, from marrying his son's step-daughter.

By an old statute a marriage between a person divorced for adultery, and the individual with whom the adultery was committed, is declared to be null, and the issue incapable of succeeding. No case has occurred, however, in which a party has endeavoured to have such a marriage declared null; and as to the effect on the succession of the issue, the question seems to have arisen only in one old case, in which it was found unnecessary to decide it.5

SECT. 3.-Solemn and Clandestine Marriages.

Although marriage is in Scotland merely a contract in which the ability of the parties to consent to it, and their having actually consented, are all that are requisite to its validity; yet there is a particular method of solemnizing marriage, a departure from which renders the parties liable to penalties. In a solemn marriage, the banns must be proclaimed for three several Sundays in the parish church where each party resides. Of the due proclamations, the certificate of the parish clerk is evidence, excluding proof, if it should be profered, that all the proclamations were made in one day. It was until a late period necessary that the ceremony should take place before an ordained minister of the Church of Scotland, or an Episcopal clergyman who had taken the oaths of allegiance and abjuration. In the latter case, it was and still is in the letter of the law necessary that the banns, besides being proclaimed in the parish church, should be proclaimed in the Episcopal chapel attended by the party.

See Fraser, i. 70, et seq.-2 E. i. 8, 9. Ferguson, 107.-3 Fraser, 74. 1600, c. 20.-5 Douglas v. Douglas, 12th June 1670, Stair.- E. i. 6, 10. Ferguson, 109.- Ibid. 110.— E. i. 6, 11.—9 10 Anne, c. 7, § 6.

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1

The restriction against the clergy of other communions officiating was removed in 1834 by an act, which provided that marriages by Roman catholic priests, or other clergymen not of the establishment, should not subject the celebrator or parties to fine or other punishment, provided there had been due proclamation of banns. From analogy as to the old exception in favour of the Episcopal communion, it might appear that the latter provision requires banns to be celebrated both in the parish church of each party and in the churches attended by them respectively, but no cases have occurred to show that this is necessary, and it is not conformed to in practice. The punishment incurred by the parties to a clandestine marriage belongs to the subject of criminal law. The danger of this law as an instrument of religious persecution has been removed by the act above noticed; and the question, whether the penalties have been incurred, will depend more on the religious ceremonies being complete or not, than on the quality of the person who performs them.

SECT. 4.-Contracts of Marriage.

It is usual in contracts of marriage, not only to make arrangements for the interest of the respective spouses, but to provide for the contingency of children of the marriage, either by destining to them existing property, or by engaging to make some particular provision for them. Such documents are in a great measure family settlements, and in that shape they are considered elsewhere. On the present occasion they will be viewed as contracts between the married parties, and their effect, as giving the issue of the marriage any right arising out of contract superior to that which they would enjoy as mere destinees in a family settlement, will

be considered.

It is a general rule, that the dissolution of the marriage by death within a year and a day, without issue, defeats the conventional as well as the legal provisions arising out of marriage, unless there be a stipulation in the contract to the contrary. Provisions to wives are frequently made by annuity, and such annuities have this peculiarity, that if there be no stipulation to the contrary they are payable in advance-an arrangement which provides them with the half year's aliment to which, as stated below, they are entitled in the absence of contract.3 A policy of insurance is

1 4 & 5 Wm. IV, c. 28.- E. i. 6, 38-40. See below, § 10.-3 E. ii. 9, 67. Fraser, i. 755.

a usual method of providing either an annuity or a fixed payment to a surviving spouse. The obligation to pay the periodical premium will, in such a case be, in questions with creditors, in the same position with other pecuniary stipulations in marriage-contracts. When there is heritable property, a provision may be made by an annuity, on which there is an obligation to infeft. An annuity so provided to a wife is commonly called a Jointure; while, when instead of a fixed annuity, the wife is secured in the liferent of a particular estate, the provision is called a Locality. On entailed estates, provision must be made under the restrictions specially created by statute (see Part III. Chap. III. § 3). It is not unusual for the destination of estates to be made conjunct between husband and wife, with provision for the children or other subsequent heirs-the effect of these arrangements is considered in connexion with succession. It is a general rule, that in cases of doubt, and where there are not expressions to a different effect, the husband is fiar and proprietor both of the property which has come from his own side, and of the wife's tocher, and that it goes to his heirs. Where the provision is to the spouses in conjunct fee and liferent, a spouse having a liferent by survivance is in the same position, and has the same ample proprietary authority, as one reserving a liferent to himself in the settlement of an estate. "It is considered as a limited fee or property rather than a liferent." 2 A common method of arranging the application of property in contemplation of marriage, is by putting it into the hands of trustees for the benefit of the respective parties. If the trustees obtain an absolute right of property, and the transference to them is not affected by the bankrupt laws, this description of settlement is, according to the principles stated below, the most effectual which can be made to preserve moveable property from the claims of creditors. Claims founded on the general legal rights arising out of the marriage may interfere with the disposal of the property by trust. Thus, where the wife had before marriage conveyed a fund to trustees, and her husband became unable to aliment her, the trustees were ordained to apply the interest of the fund towards alimenting her, instead of to the purposes of the trust.3

Questions with Creditors.-The main difficulties with which marriage-contracts have to contend, especially in regard to

St. ii. 6, 10. E. iii. 8, 36.- E. ii. 9, 42. Fraser, i. 809.-3 Gibb v. Pitcairn, 8th June 1839.