662 



L A \V. 



Law 



..(Scotland. 



celebration 

 necessary. 

 Presumed 

 marriage. 



Consent of 

 parents not 

 necessary. 



Marriage 

 v;ithin cer- 

 tain de- 

 grees of 

 blood null ; 



and in the 

 direct tine, 

 in itifini- 



tuin. 



Other 

 grounds of 

 nullity. 



Proclama- 

 tion of 

 banns to 

 what effect 

 necessary. 



Clandestine 

 marriage. 



courts of justice, explain a copula subsequent to a pro- 

 mise of marriage into actual marriage. 



3. It is not necessary that marriage should be celebrat- 

 ed by a clergyman. The consent of parties may be 

 declared before any magistrate, or simply before wit- 

 nesses. And though no formal consent should appear, 

 marriage is presumed from the cohabitation, or living 

 together at bed and board, of a man and woman who 

 are generally reputed husband and wife. One's ac- 

 knowledgment of his marriage to the midwife whom 

 he called to his wife, and to the minister who baptized 

 his child, was found sufficient presumptive evidence of 

 marriage, without the aid either of cohabitation or of 

 habile and repute. 



The father's consent was, by the Roman law, essen- 

 tial to the marriage of children infamilia. But by our 

 law, children may enter into marriage without the 

 knowledge, and even against ,the remonstrances of a 

 father. 



4. Marriage is forbidden within certain degrees of 

 blood. The Romans reckoned a degree for every per- 

 son generated ; by which rule, a father and a son are 

 in the first, brothers in the second, and first cousins in 

 the fourth degree of consanguinity. The canon law 

 computes by the persons generated upon one side only, 

 which, in the direct line of ascendants and descendants, 

 comes to the same account with the Roman computa- 

 tion ; but in the traverse or collateral line, makes a 

 considerable variation from it. By 1567, c. 15, which 

 adopts the law of Moses, Levit. c. 18, into ours, se- 

 conds in blood, and all remoter degrees, may lawfully 

 marry. By seconds in blood are meant first cousins, 

 according to the computation of the canon law, which 

 was at that time the common way in Scotland of reckon- 

 ing degrees. Marriage in the direct line is forbidden 

 in infinitum ; as it is also in the collateral line in the 

 special case where one of the parties is loco parent is to 

 the other, as grand-uncle, great-grand-uncle, &c. with 

 respect, to his grand-niece, &c. The same degrees that 

 are prohibited in consanguinity are prohibited in affi- 

 nity ; which is the tie arising from marriage betwixt 

 one of the married pair and the blood relations of the 

 other. Marriage, also, where either of the parties is 

 naturally unfit for generation, or stands already married 

 to a third person, is ipsojure null. 



5. To prevent bigamy and incestuous marriages, the 

 church has introduced proclamation of banns ; which is 

 the ceremony of publishing the names and designations 

 (addition ) of those who intend to intermarry, in the 

 churches of the parishes where the bride and bridegroom 

 reside, after the congregation is assembled for divine 

 service, that all persons who know any objection to the 

 marriage may offer it. Not bishops only, but presbyte- 

 ries, assumed formerly a power of dispensing with pro- 

 clamation of banns on extraordinary occasions, Act Ass. 

 1638, Sess.'2S, 21, which has not been exercised since the 

 Revolution. When the ordel- of the church is observed, 

 the marriage is called regular ; when otherwise, clan- 

 destine. Clandestine marriage, though it be valid, has 

 statutory penalties annexed to it, affecting not only the 

 parties, but the celebrator and witnesses, 1661, c. 34 

 1695, c. 12 16'98, c. 6 : and, over and above, the par- 

 ties were punished with the loss of certain conjugal 

 rights ; the husband lost his jus mariti, and the wife 

 her jus relicla; by 1672, c. 9. This last act, which 

 also inflicted penalties against the then non-conforming 

 clergy, was rescinded in the lump with other acts for 

 conformity by 1690, c. 27; in respect of which the 



penalties of the act 1672 against clandestine marriages 

 were found to be taken off. FountainhaJI, 1 1th Dec. 

 1705, L'arrnthcrs. 



6. By marriage, a society is created beftreen the 

 married pair, which draws alter it a mutual communi- 

 cation of their civil interests, in as far as is necessary 

 for maintaining it. As the society lasts only for the 

 lives of the socii, therefore rights that have the nature 

 of a perpetuity, which our law styles heritable, are not 

 brought under the partnership or communion of goods, 

 as a land estate, or bonds bearing a yearly interest : it 

 is only moveable subjects, or the fruits produced by 

 heritable subjects during the marriage, that become 

 common to man and wife. 



7. The husband, as the head of the wife, has the 

 sole right of managing the goods in communion, which 

 is called jus mariti. This right is so absolute, that it 

 bears but little resemblance to a right of administering 

 a common subject; for the husband can, in virtue 

 thereof, sell, or even gift at his pleasure, the whole 

 goods falling under communion ; and his creditors may 

 affect them for the payment of his proper debts; so that 

 the jus mariti carries all the characters of an assigna- 

 tion by the wife to the husband, of her moveable estate. 

 It arises ipso jure from the marriage, and therefore 

 needs no other constitution. 



8. From this right are excepted paraphernal goods, 

 which, as the word is understood in our law, compre- 

 hends the wife's wearing apparel, and the ornaments 

 proper to her person, as necklaces, ear-rings, breast or 

 arm jewels, &c. These are neither alienable by the 

 husband, nor aft'ectable by his creditors. 



9. The right of the husband to the wife's moveable 

 estate, is burdened with the moveable debts contracted 

 by her before marriage: And as his right is univer- 

 sal, so is his burden ; for it reaches to her whole move- 

 able debts, though they should far exceed her move- 

 able estate. Vet the husband is not considered as the 

 true debtor in his wife's debts. In all actions for pay- 

 ment she is the proper defender : the husband is only 

 cited for his interest, that is, as curator to her, and ad- 

 ministrator of the society goods. As soon, therefore, 

 as the marriage is dissolved, and the society goods 

 thereby suffer a division, the husband is no farther 

 concerned in the share belonging to his deceased wife ; 

 and consequently is no longer liable to pay her debts, 

 which must be recovered from her representatives, or 

 her separate estate. 



10. The husband, by marriage, becomes the perpe- 

 tual curator of the wife. From this right it arises, 1. 

 That no suit can proceed against the wife till the hus- 

 band be cited for his interest: And if she is married 

 during the dependence of a process against her before 

 an inferior court, and if the husband dwells within 

 another territory, he must be called by letters of sup- 

 plement, which are granted of course by the Court of 

 Session. 2. All deeds done by a wife, without the 

 husband's consent, are null ; neither can she sue in 

 any action without the husband's concurrence. When 

 the husband refuses, or by reason of forfeiture, &c. 

 cannot concur, or where the action is to be brought 

 against the husband himself for performing his part of 

 the marriage-articles, the judge will authorise her to 

 sue in her own name. To prevent the necessity of 

 applying for the court's authority, care is generally 

 taken in marriage-contracts, to name certain trustees, 

 at whose instance execution may pass against the hus- 

 band. The effects arising from this curatorial power 



Law 

 of Scotland". 



Commu- 

 nion of 

 goads. 



Jus mariti. 



Parapher- 

 nalia ex- 

 cepted from 

 this right. 



Burdens 

 affecting 

 thej'm 

 mariti. 



Husband 

 is the 

 wife's cu- 

 rator. 



Conse- 

 quences of 

 this right. 





