L A w. 
light than that of a nullity? Oil him who commits this 
Offence, fo difficult to be prevented, fo deftructive to the 
interests of fociety, the judges may inflict a capital pu- 
niihment; they are not, however, conftrained to do fo, 
but poffefs a difcretionary power, as in the cafe of theft, 
to accommodate the pain to the whole circumftances of 
the offender and of the trailfgreflion. 
To the following law, created by the ftatute 1661. cap. 
20, we are acquainted with nothing in our law at all 
fimilar. The aft ordains “That whofoever, foil or daugh¬ 
ter, above the age of flxteen years, not being diffracted, 
Thall beat or curie either father or mother, (hall be put 
to death without mercy; and fuch as are within the age 
of flxteen years, and paft the age of pupillarity, to be pu- 
jiifhed at the arbitriment of the judge, according to their 
defervings; that others may hearand fear, and not do the 
like.” The objeft of this enaftment was, as Mr. Hume 
obferves, not only to guard the parent againlt the vio¬ 
lence of perfons who have fo many opportunities of in¬ 
dulging their hatred, if once, unhappily, they (hall be 
pofleffed with it; but alfo, and perhaps chiefly, for the 
interefts of morality and order which are fo deeply 
wounded by the unnatural fpeCtacle of the hand of the 
child lifted againft the parent, or his tongue directing 
curfes againft thofe whom molt he ought to cherifli and 
revere. In fome meafure, we mult confider the crimes of 
inceft, adultery, fornication, and blafphemy, (being con¬ 
nected with the prefervation of religion and morality,) 
and their refpeftive punifliments, as allied to the laft-men- 
tioned tranfgreflion. In all of tliefe delinquencies the law 
of Scotland is much more fevere than with us; inceft is pu- 
nifliahle with death; adultery and fornication are (till 
viewed in the light of crimes, and as fuch are cognifable 
and punifhable in the temporal courts, though the feve- 
rity of that puniihment is of late years much mitigated. 
Blafphemy is in Scotland puniihable capitally; in England, 
by fine and imprifonment, or other infamous corporal 
puniihment. Of perjury and fubornation of perjury 
the puniihment is difcretional in the judges, who have it 
in their power to fentence capitally for the commiftion of 
thefe crimes. 
The following particulars are felefted front the elabo¬ 
rate treatife on the Law of Scotland in the Encyclopaedia 
Britannica. 
Of Hufband and Wife .—As no perfon is prefnmed capa¬ 
ble of confent within the years of pupillarity, which, by 
the Scots law, lafts till the age of fourteen in males, and 
twelve in females, marriage cannot be contracted by pu¬ 
pils ; but, if the married pair fhall cohabit after puberty, 
fuch acquiefcence gives force to the marriage. Marriage 
is fully perfected by confent; which, without confumma- 
tion, founds all the conjugal rights and duties. The 
confent requilite to marriage mult be de prafenti. A pro- 
mife of marriage (flipulatiofponfalitia) may be refiled from, 
as long as matters are entire; but, if anything be done by 
one of the parties, whereby a prejudice arifes from the 
non-performance, the party refiling is liable in damages 
to the other. 
It is not neceffary that marriage Ihould he celebrated 
by a clergyman. The confent of parties may be declared 
before any magiftrate, or limply before witnelfes; and, 
though no formal confent Ihould appear, marriage is pre¬ 
fumed from the cohabitation, or living together at bed 
and hoard, of a man and woman who are generally re¬ 
puted hufband and wife. One’s acknowledgment of his 
marriage to the midwife whom he called to his wife, and to 
the minilter who baptized his child, was found fufficient 
prefumptive evidence of marriage, without the aid either 
of cohabitation or of habit and repute. The father’s con¬ 
fent was, by the Roman law, effential to the marriage of 
children in familia ; hut, by our law, children may enter 
into marriage, without the knowledge, and even againft 
the remonftrances, of a father. 
To prevent bigamy and inceftuous marriages, the 
church has introduced proclamations of banns, which is 
the ceremony of publiffiing the names and defignations 
of thofe who intend to intermarry in the churches where 
the bride and bridegroom refide, after the congregation is 
affembled for divine fervice; that all perfons who know 
any objection to the marriage may offer it. When banns 
are publilhed, as with 11s, the marriage is called regular ; 
when otherwife, clandejlim. But marriage is valid when 
entered into in either of thefe ways; only, when clandef- 
tine, there are certain penalties impofed upon the parties, 
as well as the celebrator and witnelfes. 
If the hufband fhould either withdraw from his wife, 
or turn her out of doors ; or if, continuing in family with 
her, he fhould by fevere treatment endanger her life; the 
commifl'aries will authorize a feparation a menfa et thoro , 
and give a feparate alimony to the wife, luitable to her 
hufband’s eftate, from the time of fuch feparation until 
either a reconciliation or a fentence of divorce. 
A hufband who fufpefts that his wife may hurt bis 
fortune by high living, may ufe the remedy of inhibition 
againft her; by which all perfons are interpelled from con- 
trafting with her, or giving her credit. Inhibition may 
pafs at the fuit of the liulband againft the wife, though 
he Ihould not offer to juftify that meafure by an aCtual 
proof of the extravagance or profufion of her temper. 
Marriage is diffolved by death, either within year and 
day from its being contracted, or after year and day. If 
it is diffolved within year and day, all rights granted in 
confideration of the marriage (unlefs guarded againft in 
the contract) become void, and things return to the fame 
condition in which they flood before the marriage ; with 
this reftriftion, that the hufband is confidered as a bona- 
fde poffelfor, in relation to what he has confumed, upon 
the faith'of his right; but he is liable to repay the tocher, 
without any deduftion, in confideration of his family-ex- 
penfe during the marriage. If a living child be procre¬ 
ated of the marriage, the marriage has the fame effeft as 
if it had fublifted beyond the year. A day is adjefted to 
the year, in majorem evidentiam, that it may clearly appear 
that the year itfelf is elapfed ; and therefore, the "running 
of any part of the day, after the year, has the lame effect 
as if the whole were elapfed. 
Divorce is fuch a feparation of married perfons, during 
their lives, as loofes them from the nuptial tie, and leaves 
them at freedom to intermarry with others. But neither 
adultery, nor wilful defertion, are grounds which mult 
neceffarily diffolve marriage; they are only handles, which 
the injured party may take hold of to be free. Cohabita¬ 
tion, therefore, by the injured party, after being in the 
knowledge of the a£ts of adultery, implies a palling from 
the injury; and no divorce can proceed which is carried 
on by collufion betwixt the parties, left, contrary to the 
firft inftitution of marriage, they might difengage them- 
felves by their own confent; and though, after divorce, 
the guilty perfon, as well as the innocent, may contract 
fecond marriages; yet, in the cafe of divorce upon adul¬ 
tery, marriage is by fpecial ftatute prohibited betwixt the 
two adulterers. A divorce obtained in Scotland does not 
qualify either party to contraft a fecond marriage in Eng¬ 
land. 
Where either party has deferted from the other for four 
years together, that other may fue for adherence. If this 
has no efteCl, the church is to proceed, firft by admoni¬ 
tion, then by excommunication ; all which previous fteps 
are declared to be a fufficient ground for purfuing a di¬ 
vorce. The commifl'aries pronounce fentence in the ad¬ 
herence after one year’s defertion; but four years muft 
intervene between the firft defertion and the decree of 
divorce. 
Baflards may be legitimated, x. By the fubfequent in¬ 
termarriage of the mother of the child with the father ; 
and this fort of legitimation entitles the child to all the 
rights of lawful children. The fubfequent marriage, which 
produces legitimation, is confidered by the law to have 
been entered into when the child legitimated was begot¬ 
ten ; and hence, if he be a male, he excludes, by his right 
