jealous care over the completeness of the evidence by which it is alleged to be established. Moreover, the circumstance of its being constituted in the same manner does not place the contract of marriage in all respects on a footing of equality with other civil contracts. Being, as Lord Stair observes, "a divine and not a human contract," the obligations arising from it are not. like those which "take their rule and substance from the will of man." (Stair, i. 4. 1.) It cannot, for example, be arbitrarily limited in its duration (ib. i. 4. 5); it cannot be so framed as to invert the relative position which nature has assigned to the sexes; it cannot be entered into by parties within certain degrees of relationship (Confess. of Faith, xxiv. 4), and the like.

13. In consequence of this peculiarity in its nature, there are certain impediments to marriage which are not impediments to the formation of other contracts. In other respects, the following observations are general, and may be regarded as a statement of the principles by which all contracts are governed.

14. Legal consent must be voluntary and intelligent; and persons who are either actually, or whom the law presumes to be, incapable of such consent, are consequently incapable of marriage. (Stair, i. 4. 6; Ersk. iii. 1. 16; Fraser, 415.) The Canon Law held that a pupil could marry, if able to procreate children; but our law has not accepted that principle.

15. For this reason, neither idiots, madmen, nor pupils can marry; and a marriage will be invalidated by fraud, force, fear, error in substantials, or extreme intoxication. (Fraser, 51 and 444; Johnston v. Brown, Nov. 15, 1823; and Ferg. Rep. p. 229; Sullivan v. Sullivan, 2 Hagg. p. 246.)

16. Twelve in females, and fourteen in males, being the ages at which their pupilarity ceases, are the ages at which they may respectively marry. This arrangement, which was probably borrowed by us from the Roman law, and which may have been suited to the climate of Italy, can scarcely ever have been free from inconvenience in this country. It is to be remarked,

however, that twelve was the legal age of majority for certain public purposes among the Anglo-Saxons, and seems to have been so generally amongst the Teutonic tribes. (See Kemble's Saxons in England, vol. ii. p. 35, and note.)

17. Extreme youth of one of the parties, even where the years of pupilarity have been passed, has always been regarded in Scotland as raising a presumption that he has been the victim of fraud; and circumstances which, in the case of persons more advanced in life, would not be listened to, will be regarded as important in judging whether a very young person has given that free and intelligent consent which alone constitutes marriage. (Cameron v. Malcolm, M. 12,586; Allan v. Young, Dec. 9, 1773, Ferg. Rep. p. 37; and Fraser, 51.)

18. Persons above the age of puberty can marry without the consent of their parents or guardians; but if under the age of puberty, their marriage, even with such consent, is not valid.

19. The consent which constitutes marriage must be to a present act; and, consequently, all ante-nuptial contracts, sponsalia, and other promises to marry, whatever may be the form of their expression, may be resiled from. (Stair, i. 4. 6; Ersk. i. tit. 6. 3; Fraser, 484 et seq.) They then become grounds for actions of damages.

20. Where the promise has been followed by sexual intercourse, the Court, on proof of both, will declare that the marriage has actually taken place; because, though the promise was only to marry at some future date, yet the intercourse is presumed to have been consented to only on a present interchange of consent. The promise, when founded on for this purpose, can be proved only by the writ or oath of the defender; but when founded on for the purpose of securing damages only, it may be proved like any other fact. (Fraser, 322 et seq.) To constitute marriage, the promise must have been given and the copula have commenced in Scotland, and

the latter must be connected with the former. (Longworth, 1864, 2 M. H. L. 49.)

21. It has been keenly discussed amongst lawyers, whether promise followed by copula is itself a completed marriage, or is only a ground on which either of the parties may force the other to complete a marriage, by raising an action the object of which is to call upon the Court to declare that it is already completed. This absurd question, which, if answered in accordance with the second alternative, assumes that the Court can add to the consent of the parties, is still seriously agitated, and may come to be of great importance in determining the legitimacy of children, if raised after a second marriage, or after the death of either of the parents has rendered solemnization impossible. Apart from the confusion in which the subject is usually involved by the manner in which it is discussed, it seems plain that the promise and copula are simply tokens of consent which the law recognises, that the declarator can go no further than to determine whether or not they are present in the special case, and consequently that the date of the marriage is the date of the copula. The best informed opinion seems to be, that marriages of this kind required to be declared; for, at best, the consent is merely an inference from the behaviour of the parties. The result of a declarator being necessary, is that the marriage could not be set up to any effect after the death of one of the parties. (Lord Moncreiff's opinion in Browne v. Burns, June 30, 1843, 5 D. 1288.) 22. It is competent, where there has been sexual intercourse, to insert in the summons of an action of declarator of marriage by the woman, an alternative conclusion for damages for seduction. (Fraser, 504.)

II. OF REGULAR MARRIAGE.

23. The ordinary form in which express consent is given, in Scotland as elsewhere, is by a solemn vow of the parties,

uttered before a clergyman, in the presence of at least two witnesses.

24. It is not the practice for Presbyterian marriages to be celebrated in church, though the Westminster Directory requires that they shall be publicly solemnized by the minister "in the place appointed by authority for public worship." To the civil law, the place of celebration is a matter of perfect indifference. 25. A regular marriage must be preceded by the publication of banns.

26. This proclamation, by which a purpose of marriage is announced, and all concerned are required to state any valid objection which they may know to the proposed union, takes place in church, when the people are met for divine worship, either on three several Sundays, or (as is now more usual) three times on the same Sunday. The session-clerk cannot proclaim banns until the parties have resided six weeks in the parish. (Act of Assembly viii. 1784; Ersk. i. 6. 10.) Where the parties reside in different parishes, proclamation must be in both. (Act of Assembly 1699, c. 5; and Regulations of 1782 and 1784, c. 8; see also Cook's Styles of Procedure, p. 32.) In populous parishes, where the session-clerk must often have no personal knowledge of the parties, they must bring him a certificate, signed by two householders or by an elder, stating that one or both of them have been residenters in the parish for six weeks or more, and that they are unmarried. (Cook's Styles of Procedure in Church Courts, p. 33.) It has been decided that banns are inter sacra, and, for persons residing in districts erected into quoad sacra parishes under 7 and 8 Vict. c. 44, fall to be proclaimed in the quoad sacra church. (Hutton, 1875, 2 R. 893; aff. 3 R., H. L. 9; Fraser, 286.)

27. The proclamation of banns is now-from 1st January 1879 (41 and 42 Vict. c. 43)-no longer the sole legal form of preliminaries to a regular marriage, and, in place of the production of a certificate by the session-clerk of their due proclama

tion, it is now lawful for a clergyman of any Church to celebrate a marriage, which shall be deemed a regular marriage, on production of a certificate by the registrar of the parish or district of the publication of notice of marriage according to the requirements of the Act.

28. The parties must give notice of their intention to the registrar of the district in which he or she has resided for fifteen days previously, one notice sufficing where they reside in the same district. The notice is then entered in the Marriage NoticeBook, and posted in the registrar's office for seven days, at the end of which time, if no objections to the marriage have been stated to him, it is his duty to issue to the parties a certificate of publication of notice, which shall be of equal validity with that of a session - clerk of the proclamation of banns in authorizing a clergyman to marry the parties producing it; but no minister of the Church of Scotland shall be obliged to celebrate a marriage unpreceded by the due proclamation of banns. If no marriage takes place within three months of the date of the certificate, the latter becomes void.

29. Registration.-It is required by 17 and 18 Vict. c. 80, that in all cases of regular marriages, when the certificates of the proclamation of banns are given out, they shall be accompanied by a copy of the schedule (C.); and that, upon the solemnization of the marriage, such schedule, having all the information thereby required inserted, shall be produced to the minister, or the person solemnizing the marriage according to the rites of Jews or Quakers; or shall be filled up in the presence of the minister, and signed by the parties contracting the marriage, and by the witnesses, male or female, present thereat, not being less than two, and also by the minister; and shall be delivered to the parties, who, within three days, shall either deliver it or send it by post, to the registrar of the parish wherein the marriage was solemnized. (Sec. 46.)

30. In an English Aet (19 and 20 Viet. c. 119) it is provided