MARRIAGE 



59 



other nations for the freedom which it allows to 

 the contracting parties. If their present consent 

 to marry is proved, the law requires no special 

 form of proof, imposes no restrictions as to time 

 and place, and enjoins no special mode of cele- 

 bration. The Messing of the church is not required 

 by the law of the land to make a marriage good ; 

 although all marriages celebrated without the 

 assistance of a clergyman are called irregular 

 marriages. It is enough that the parties give 

 their free consent to marry each other. If a man 

 and woman have lived together as husband and 

 wife, and have had the reputation among their 

 neighbours of l>eing married to one another, and 

 this reputation is general in the neighbourhood, 

 uncontrodicted by any one and of considerable 

 duration in point of time, these parties will be 

 held to have exchanged a consent to marry, 

 atid the courts will declare them to be married. 

 This is called marriage by habit and repute. 

 Where a promise to marry has been given and 

 sexual intercourse between the parties lias fol- 

 lowed in Scotland, upon the faith of the promise, 

 the court, upon proof of the promise by the writing 

 or the oath of a defender, will declare the parties 

 to have been married, the presumption of the law 

 being that the intercourse has taken place only on 

 an interchange of consent to marry. This is called 

 marriage by promise subsequente copula. Cases of 

 marriage by nabit and repute or by promise sub. 

 cop. are very rare. In the general case, the fact of 

 the interchange of consent to marry is not left to 

 l>e presumed by law, but is proved in the most 

 unequivocal way either by writing or witnesses. 

 These cases are distinguished as marriages by 

 words of present consent per vtrba de presentt. 

 According to this form persons may marry by 

 declaring, with or without witnesses, that they 

 then consent to marry and do marry, or by mak- 

 ing a written declaration to that effect, and acting 

 upon their declaration. This method of inter- 

 change of words of present consent was the one 

 followed in the Gretna Green (q.v.) or 'over the 

 iKirder' marriages by runaways from England. They 

 were checked by tord Brougham's Act of 1856, re- 

 quiring residence in Scotland for twenty-one days 

 as a p re -requisite to the validity of an irregular 

 marriage. But if this condition be fulfilled they 

 are still possible. Persons who marry in this way 

 may lie convicted lefore a magistrate or justice 

 of the peace of having contracted an irregular 

 marriage ; and, as the conviction is recorded in 

 the books of the court and stands as evidence of 

 the marriage, this way of getting married by 

 declaration and a police-court conviction has 

 l>een thought to be the cheapest known way of 

 securely tying the bonds of wedlock, since it 

 entails no necessary fees to any functionary. But 

 jiersons convicted of an irregular marriage are 

 required to register their marriage, and the 

 registrar is entitled to a fee of twenty shillings. 

 Parties to an irregular marriage may apply within 

 three months after its date to the sheriff for a 

 warrant to register their marriage. The sheriff 

 grants warrant upon proof of the marriage by 

 written declaration ; and a certified copy of the 

 entry in the register is declared by statute to be 

 evidence of the marriage. The proceeding of 

 applying to the sheriff for warrant to register is 

 often believed by the parties to be a civil ceremony 

 of marriage, and popular language speaks of 

 couples having been married by the sheriff. By 

 a mistaken notion and confusion with the English 

 forms of marriage this ' marriage by the sheriff' 

 it sometimes referred to as ' marriage by special 

 license,' sometimes as ' marriage before the 

 registrar,' while the truth is that the parties have 

 married themselves, and only apply to the public 



functionaries to make their marriage a matter of 

 public record. 



Cases of irregular marriage by interchange of 

 words of consent, though much more common 

 than those of marriage by habit and repute or by 

 promise and copula, are rare in comparison with 

 marriages celebrated by clergymen. These are 

 forms of marriage by the interchange of words of 

 consent ; the law not regarding the presence of 

 a clergyman or the sanction of the church as 

 necessary to marriage. If a clergyman officiates 

 at a marriage he may do so only after the publi- 

 cation of Banns (q.v.) or publication of notice by a 

 registrar as in England. If he do so without these 

 preliminaries the marriage becomes a clandestine 

 marriage, and the clergyman and the parties are 

 subject to penalties. Wnen notice to the registrar 

 of an intention to marry takes the place of banns, 

 the notice is entered in a Marriage Notice Book, 

 and publicly posted on the registrar s office for seven 

 days, after wliich time, if no objections are taken, 

 the registrar issues a certificate of publication of 

 notice which authorises a clergyman to marry the 

 parties producing it. There is now no provision of 

 ! law restraining clergymen of other churches than 

 i the Established Church of Scotland from celebrating 

 ' regular marriages. While regular marriages are 

 always treated in law as marriages 'in the face of 

 the church,' it is not the practice to solemnise 

 Presbyterian marriages in church, nor is such 

 a solemnisation necessary to make a marriage 

 regular and lawful. The ceremony is usually con- 

 ducted by a clergyman at tlie house of the bride's 

 father ; although of late years there have been 

 signs that Presbyterians may come to adopt the 

 custom of marrying within the church walls. The 

 proceedings ought to include, and usually do in- 

 clude, an express inquiry whether the parties con- 

 sent to marry ; a declaration by them, given 

 generally by a nod or a curtsy, that they do 

 consent ; a solemn admonition by the clergy- 

 man ; a declaration by him that tlie parties are 

 married ; and the nuptial benediction. The cere- 

 mony should take place in the presence of wit- 

 nesses who know the parties, and who are capable 

 of giving evidence. After the marriage is solem- 

 nised (which may take place any hour of the 

 day ), a schedule, which is given out to the parties 

 along with the certificate of publication of l>anns, 

 ! or of publication of notice by a registrar, has to 

 be presented, filled up, to the clergyman ; signed 

 by the parties, the clergyman, and at least two 

 witnesses, and delivered to the parties, who must 

 I transmit it within three days, under penalties, to 

 the registrar of the parish in which the marriage is 

 solemnised. See HUSBAND AND WIFE, DIVORCE. 

 Ireland. The law of Ireland as to the constitu- 

 tion of marriage is substantially the same as that 

 of England. The form of celebration may differ 

 according as the marriage is solemnised in the 

 Disestablished Church of Ireland, the Roman 

 Catholic, or the Presbyterian Church ; or between 

 pei-sons of different religious persuasions ; but the 

 legal rights and duties of the several churches with 

 regard to marriages are now practically the same 

 to provide for publication of a marriage and for 

 its solemnisation l>etween certain hours in a build- 

 ing set apart for divine service. 



united States. In the United States the general 

 rule in almost all the states is that no specific form 

 is necessary to the constitution of marriage if the 

 consent of the spouses is proved. But marriage 

 differs from contract in that it cannot be modified 

 or dissolved by consent, nor rescinded on proof of 

 fraud. The law in some states requires that mar- 

 riages be authorised by taking out a license, and 

 solemnised before a magistrate or a clergyman. 

 Pennsylvania provides that marriages must be 



