413 
MARRIAGE, 
Laws of Scotland, fays, The public folemnity of marriage 
is a matter of order, juftly introduced by pofitive law, for 
the certainty of fo important a contra ft; but not effential 
to marriage. Thence arifes the diftinftion of public or 
folemn, and private orclandeftine, marriages. And, though 
perfons who aft contrary thereto may be juftly punifhed, 
(as in fome nations by the exclufion of the iffue of fucli 
marriages from fucceflion,) yet the marriage cannot be 
declared annulled ; and fucli exclufions feein very un¬ 
equal againft the innocent children. But, by the cuftom 
of Scotland, cohabitation, and being commonly reputed 
man and wife, validate the marriage, give the wife a right 
to her thirds, who cannot be excluded therefrom, if flie 
■was reputed lawful wife, and not queftioned during the 
liufband’s life, till the contrary be clearly proved. Mr. 
Erfkine, in his Principles of the Law of Scotland, fays. 
It is not neceffary that marriage be celebrated by a cler¬ 
gyman ; the confent of parties may be declared before 
any magiftrate or fimply before witneffes. When the or¬ 
der of the church is obferved, the marriage is called re¬ 
gular; when otherwife, clandeftine. Towards a regular 
marriage, the church requires proclamation of banns in 
the churches, where the bride and bridegroom refide; for¬ 
merly, not only bifhops, but prefbyteries, affumed a power 
of dil'penfing with proclamation of banns, on extraordi¬ 
nary occaiions ; but this hath not been exercifed fince the 
revolution. But whether clandeftine marriages in Scot¬ 
land, of Englifh parties, who refort thither to evade the 
Englifh law, (hall be fuftained in England, hath been 
doubted ; and very learned men have queftioned, notwith- 
ftanding fuch marriages are valid by the law of Scotland, 
whether they are effeftivein England. Where parties are 
bound, by the laws of their country, to execute any im¬ 
portant aft or contraft with certain folemnities, it is 
doubted whether they can elude their own law, by going 
purpofely to another country where fuch folemnities are 
Slot effential, and then returning immediately, when the 
aft is done. It is a queftion of public law; and the moft 
celebrated writers on public law have holden, that fuch 
an aft is fraudulent; it is fraudem facere lege , which the 
laws of all nations difallow. In a cafe that occurs in 
Buller’s Law of Nifi Prius, an appeal was made to the 
delegates; the appellant and refpondent both Englifh lub- 
jefts ; the appellant, being under age, ran away without 
the confent of her guardian, and were married in Scot¬ 
land ; and, on a fuit brought in the fpiritual court to annul 
the marriage, it was holden that the marriage was good. 
So, it has been fince taken as an undoubted propofition, 
that a marriage celebrated in Scotland is fuch a marriage 
as would entitle the woman to dower in England. See 
the article Law, vol. xii. p. 392. To complete which 
fubjeft, it may be proper juft to add, that, in the cafe of 
W. M. Lolly, who was convifted of bigamy at the Lan- 
cafter aftifes, (1813,) the twelve judges decided, that a di¬ 
vorce obtained in Scotland could not be pleaded in bar of 
an aftion for bigamy in England, where the marriage took 
place in the latter country. The Scotch judges, i. e. the 
commilfaries for Scotland, upon a revilion of the whole 
feufinefs, and after again hearing counfel at great length, 
unanimoufiy adhered to their former fentence of divorce, 
finding that, “according to the common and ftatute law 
of Scotland, if there be no collufion between the parties, 
or other valid exception againft the purfuer’s right of ac¬ 
tion, adultery committed in Scotland is a legal ground for 
divorce, without diftinftion as to the country where, or 
form in which, the marriage was celebrated : therefore 
find, that, whatever may be the views which the law of 
England takes of the indiffolubility of marriage contrafted 
there, or whatever effect the decrees of this court may re¬ 
ceive in foreign countries, all fuch foreign views and con- 
fequences, especially where, as in the prefent cafe, thefe 
are direftly a-dverfe to the fettled diftates of the law of 
Scotland, can have no effeft in regulating or influencing 
the decifions of this court.” 
In this place it will not be inapplicable to notice the of- 
VOM XIV. No. 984, 
fence of the forcible abdudlion ard marriage of women ; a crime 
vulgarly called Jlealing an heirefs. By flat. 3 Hen. VII. c. 2; 
it is enafted, that, if any perfon fhall for lucre take any wo¬ 
man, being maid, widow, or wife, and having fubffance 
either in goods orlands, or being heir apparent to her ancef- 
tors, contrary to her will, and afterwards fire be married to 
fuch mifdoer, or by his confent to another, or defiled ; fuch 
perfon, his procurers and abettors, and fuclfas knowingly 
receive fuch woman, fhall be deemed principal felons; 
and by flat. 39 Eliz. c. 9. the benefit of clergy is taken 
away from all fuch felons who fhall be principals, pro¬ 
curers, or acceffories before the faft. In the conftruftion 
of this ftatute it hath been determined, 1 ft. That the in- 
diftment muff allege that the taking was for lucre, for 
fuch are the words of the ftatute. 1 Hawk. P. C. c. 42. ad. 
In order to fhow this, it muff appear that the woman has 
fubffance either real or perfonal, or is an heir apparent. 
1 Hal. P.C. 660. 1 Hawk. P.C. c. 42. 3bly. It muff ap¬ 
pear that flie was taken away againft her will. 4thly. It 
muff alfo appear, that fire was afterwards married, or de¬ 
filed. And, though poffibly the marriage or defilement 
might be by her fubfequent confent, being won thereunto 
by flatteries after the taking, yet this is felony, if the firfl 
taking were againft her will. 1 Hal. P. C. 660. And fo 
vice verfd , if the woman be originally taken away with her 
own confent, yet, if flie afterwards refufeto continue with 
the offender, and be forced againft her will, fhe may, from 
that time, as properly be faid to be taken againft her wffll 
as if fhe had never given any confent at all ; for, till the 
force was put upon her, flie was in her own power. 
1 Hawk. P. C. c. 42. It is held, that a woman, thus taken 
away and married, may be fworn and give evidence againft 
the offender, though he is her liufbancl de faElo, contrary 
to the general rule of law ; becaule he is no hufband de jure , 
in cafe the aftual marriage was alfo againft her will. 
1 Hal. P. C. 661. 
An inferior degree of the fame kind of offence, but not 
attended with force, is punifhed by flat. 4 and 5 Phil, and 
Mary, c. 8. which enafts, that, if any perfon above the age 
of fourteen unlawfully fhould convey or take away any 
woman child unmarried, (which is held to extend to baf- 
tards as well as legitimate children,) within the age of fix- 
teen years, from the poffeffion and againft the will of the 
father, mother, guardians, or governors, he fhall be im- 
prifoned two years, or fined at the difcretion of the juf- 
tices ; and, if he deflowers fuch maid or woman child, or 
without the confent of parents contrafts matrimony with 
her, he fhall be imprifoned five years, or fined at the dif- 
cretion of the juftices; and flie fhall forfeit all her lands 
to her next of kin during the life of her faid bufband. 
But this latter part of the aft is now rendered almoft ufelefs 
by the provifionsof the marriage-aft, which makes the mar¬ 
riage [unlefs by banns] totally void. 4 Comm. c. 15. p. 208, 9. 
Matrimonial, caufes, or injuries refpefting the rights of 
marriage, are one branch of the ecclefiaftical jurifdiftion 3 
and caufes matrimonial are now fo peculiarly ecclefiaflical, 
that the temporal courts will never interfere in contro- 
verfies of this kind, unlefs in fome particular cafes. 
Of matrimonial caufes one of the firfl and principal is, 
cauja jadiitationis matrimonii ; when one of the parties boalls 
or gives out, that he or flie is married to the other,.whereby 
a common reputation of their matrimony tnay enfue. On 
this ground the party injured may libel the other in the 
fpiritual court; and, unlefs the defendant undertakes and 
makes out a proof of the aftual marriage, he or (he is en¬ 
joined perpetual filence oil»- that head ; which is the only- 
remedy ecclefiaflical courts can give for this injury. 
The fuit for rejlitution of conjugal rights is alfo another 
fpecies of matrimonial caufes ; which is brought whenever 
either the hufband or wife is guilty of the injury of fub- 
traftion, or lives feparate from the other without any fuf- 
ficient reafon ; in which cafe the ecclefiaflical jurifdiftion 
will compel them to come together again, if either party 
be weak enough to defire it contrary to the inclination of 
the other. See 3 Comm, c. 7. p. 93, 4. 
S N Conditions 
