that, where one of the parties intending to marry without licence is resident in Scotland, a certificate of proclamation of banns in Scotland, by the session-clerk, shall be valid and effectual for authorizing the solemnization of marriage in England. (Sec. 8.) There is no reciprocal Act; but the invariable practice in Edinburgh is to make the proclamation if one of the parties has been resident for the requisite period. The same rule is followed in the case of soldiers and sailors.

31. Dissenters.-Till a recent period, only the clergy of the Established Church of Scotland could celebrate regular marriages. The statute 10 Anne, c. 7, allowed Episcopal clergymen, who had taken the oaths to Government, to do so; and this privilege was extended by 4 and 5 William IV. c. 28, to all persons in holy orders, of whatever communion, after proclamation of banns in the Established churches of the parishes of both parties. In the case of Episcopalians, the statute requires that proclamation shall also be made in the chapel.

32. The form of the marriage service, both in the Presbyterian and Episcopalian Churches, is in strict accordance with the principle of the marriage being the result, not of the ceremony, but of the expressions of mutual consent. In the Presbyterian Church the clergyman declares the parties to be married; in the Episcopal Church he is instructed to say, "Forasmuch as these two have consented together, I pronounce that they be man and wife together."

III. OF IRREGULAR AND CLANDESTINE MARRIAGE.

33. All marriages which are not celebrated by a clergyman after proclamation of banns, are irregular; and such of these irregular marriages as are entered into before a person professing to act as a religious celebrator, without being a minister of religion, or by a minister of religion without proclamation of

banns, are clandestine, and expose the parties, the celebrator, and the witnesses, to certain penalties. (Fraser, 250.)

34. Express consent may be either in words before witnesses, or in writing by the parties. No particular form is required either for a verbal or written declaration, the only indispensable requisite being, that the fact of present resolve shall be rendered indisputable. But mere words of present consent are not sufficient to constitute marriage where the general circumstances at the time and the subsequent conduct of the parties is inconsistent with the belief that they are married. (Robertson, 1874, 1 R. 532; rev. 1875; 2 R., H. L. 80; Fraser, 424.)

35. A single example in illustration of the preceding section may be given. In one case, the parties had corresponded during a period of upwards of thirty years-first as "betrothed husband" and "betrothed wife," and then as "husband" and "wife." No one ever knew of their being married; and the man, who was a minister of the Church of Scotland, subscribed to the Widows' Fund, and registered himself as a bachelor. No copula was proved. After the man's death the woman brought a declarator of marriage, founding on the correspondence, and the Court found that the marriage was proved. (Leslie v. Leslie, March 16, 1860.)

36. Matrimonial consent will be inferred from "habit and repute," that is, from cohabitation of the parties, and from their having the reputation of being married. (Stair, i. 4. 6, iii. 3. 42; Fraser, 391 et seq.) The cohabitation must have been in Scotland (Ersk. i. tit. vi. note to Ivory's ed. p. 122); and the repute must not be founded on a single circumstance, or confined to a few individuals, but must be general in the neighbourhood, unequivocal, consistent throughout, and of considerable duration.

37. If the connection has begun in concubinage or adultery, a very palpable change of purpose, and in the case of adultery a clearly established repute of marriage after the impediment has

been removed, will be required in aid of the proof of public opinion. (Campbell, 1866; 4 M. 826; aff. 5 M., H. L. 115.)

38. By 19 and 20 Vict. c. 96 it is enacted, "That, after the 31st December 1856, no irregular marriage shall be valid in Scotland, unless one of the parties has lived in Scotland for the twenty-one days next preceding the marriage, or has his or her usual residence there at the time." It is further enacted, that the parties to such a marriage may apply within three months, jointly, to the Sheriff or Sheriff-Substitute of the county for a warrant to register it. Upon proof that one of them had lived for twenty-one days, or had his usual residence in Scotland, and that they have contracted marriage, the Sheriff is to grant a warrant to the registrar of the parish to record the marriage. A certified copy of the entry, signed by the registrar, which he is bound to give for 5s., is declared to be evidence of a valid marriage.

IV. OF THE IMPEDIMENTS TO MARRIAGE.

39. There are certain incapacities to marriage which do not affect other contracts.

40. Impotency, being an incapacity to perform the duties of this contract, is a bar to its formation. Impotency cannot be pleaded by a third party. (Bell, Prin. 1524; Hume, Com. 456.) When judicially established by either of the parties themselves, it is held by the Court to be a ground, not for dissolving the contract, but for declaring that no contract ever existed. (Ersk. i. 6. 7; Fraser, 80 et seq.)

41. Previous marriage, whilst subsisting, forms an incapacity, which will not be removed by the fact that the party may have believed in its dissolution by the death of his partner. (Dalrymple v. Dalrymple, 2 Hagg. p. 63; Fraser, 135.)

42. Adultery is a statutory impediment to marriage between the adulterers. (1600, c. 20.) As to whether this statute is in desuetude, see Fraser, 140 et seq.

43. Relationship within certain degrees, either of consanguinity or affinity, renders the parties incapable of contracting matrimony.

The forbidden degrees are the following:

1. Ascendants and descendants-i.e. parents and children, grandparents and grandchildren, etc., to the most distant degree.

2. Collaterals in the first degree-i.e. brothers and sisters. 3. Collaterals who stand in loco parentis-i.e. where the one party is brother or sister to the direct ascendant of the other; thus one cannot marry his grandniece though he is as far removed from her in degree as are first

cousins.

44. There is no difference between full and half blood. 45. The degrees which are prohibited in consanguinity are so in affinity.

46. The question of the validity of a marriage with the sister of a deceased wife has been decided in Scotland in the negative (Fenton, January 24, 1861); the Court holding that such marriage is not lawful according to the statute law of Scotland, and the issue are illegitimate, the relationship by affinity being the same as by consanguinity. This is the only case, however, in which this important point has come up for decision in the Scotch Courts, and from the specialties of the case cannot safely be regarded as finally setting the matter at rest. (See Lord Deas in the above case, and Fraser, 124 et seq.) The connection, when occurring in the wife's lifetime, has been held to be incest by the Court of Justiciary. (John Oman, Inverness, April 14, 1855; Irvine, ii. p. 149.) But the sentence of transportation for fourteen years which was pronounced in this case, was remitted, on application to the Home Secretary, conditionally on the panel not living in Scotland during that

time.

V. EFFECTS OF MARRIAGE ON THE PERSONAL STATUS

AND PROPERTY OF THE SPOUSES.

47. In the eye of the law, the person of the wife is sunk in that of the husband. It is in obedience to this principle that she assumes his name and rank, that she becomes legally subject to him in all domestic and conjugal affairs, and that he is her curator, with powers in some respects more extensive than those which belong to the curator of a minor. With the exceptions mentioned in the following section, the husband is still the sole and absolute manager of the proceeds of the heritable property of the wife, and of the common fund which is created by the union of the moveable property which belonged to the spouses before, or which may accrue to them during, the marriage. (Fraser, 507.)

48. This doctrine was somewhat modified by the 16th sec. of the recent Conjugal Rights Act (24 and 25 Vict. c. 86), which provides that, "when a married woman succeeds to property, or acquires right to it by donation, bequest, or any other means than by the exercise of her own industry, the husband and his creditors, or any person claiming under or through him, shall not be entitled to claim the same as falling within the communio bonorum, or under the jus mariti, or husband's right of adminis tration, except on condition of making therefrom a reasonable provision for the support and maintenance of the wife, if a claim therefor be made on her behalf;" and, in case of desertion, by the 1st sec., which empowers the wife in such circumstances to apply for an order of Court to protect such property as she has or may acquire by her own industry, or which she may succeed to, against her husband and his creditors. It has been held competent for a wife suing an action of separation a mensa et toro to conclude for the provision in sec. 16 in her summons. By 37 and 38 Vict. c. 31 such applications may be made to, and orders of protection granted by, the Sheriff. Now by 40 and 41