$ 3. CLANDES TINE BRATOR. Irregular marriages Excepting a few Cameronians, of no note or confideration scattered over the fouthern mountains, the only diffenters i the reign of queen Anne, were papifts, on the one hand who were exposed to many disabilities, and epifcopals, o the other, in favour of whom the ftatute in queftion wa paffed. It is not the practice of the legislature ever to exten relief beyond the evil exifting at the time, and which attracte their attention. BUT queen Anne's act seems to have fixed the principle and determined the public mind. For when, in procefs o time, feceders and other fects arose, they were not perfecu ed for receiving the nuptial benediction from their respectiv priests; banns taking place in the diffenting as well as th established congregations. Even at the first, when the recenc of the fchifm moft embittered men's minds, the mother churc did not attempt to hinder diffenting clergymen from per forming such clerical functions any more than from baptif ing and celebrating the facrament. An irregular marriage is a punishable offence. The par punishable. ties, as well as the celebrator and witnesses, are liable in pain and penalties; and equally, whether the defect lie in th omiffion of banns, or in the incompetency of the celebra -PENAL TY. tor. THE parties, by the act 1661, c. 34, are punished with three months imprisonment, befides certain penalties. An a A fect of prefbyterians who first appeared in the reign of Cha. II, fo called from Cameron their leader. See Laing's Hift. Vol. ii, p. 699. b Parl. i, Car. II. The penalties are, for each nobleman, 1000l. Scots; each baron and landed gentleman, 1000 merks; each gentleman and burgefs, sool. Scots and to "remain in prison aye an "until they make payment of the "respective penalties." And, if an perfon refiding in Scotland, mar ries with a perfon refiding in Eng land or Ireland, without previou proclamation of banns, the penalt by the ftatute 1698, c. 6, the penalties are made still higher, in cafe of their not declaring, when requested, the names of the person who celebrated, and of fuch as were witnesses to the irregular and clandeftine marriage. THE penalty by the last act, on the witneffes, is to be 1ool. Scots, each, to be applied in like manner with the other penalties. THE perfon, again, who celebrates fuch clandeftine or irregular marriage, is, by the first act ", " to be banished the "kingdom, never to return therein under the pain of death;" and by the other ftatute, he is liable to be fummarily feized and imprisoned by any ordinary magiftrate or juftice of peace, and is further punishable by the privy council, not only by perpetual imprisonment, but by " fuch pecunial or corporal pains as the faid lords of privy council fhall think fit to inflict.” THE charge, fo far as it relates to the omiffion of the banns, involves the proof of a negative. It is therefore attended with this peculiarity, that the profecutor has fufficient "and pecunial, fhall no ways be pre judicial to, or derogate from, the is, for each nobleman, 1000l. Scots; "cafe of the poor condition of any The penalties are, in that cafe, for a nobleman, 2000l. Scots; each baron and landed gentleman, 2000 merks; each gentleman and burgese, Iocol. Scots; each other person, 200 merks: to be applied to pious ufes within the parishes: and farther, to be imprisoned till payment of the penalties, and till they declare the names. d 1661, c. 34. § 3. CLANDES. TINE -PENAL TY. §3. ly made out his cafe, if he prove the "celebration of the "marriage, and that no certificate of proclamation of banns -PENAL-❝ was on that occafion produced to the minister £.” CLANDES TINE TY. Proof. By whom punishable. 1695, by whom to be executed. when incurred. $4. PARENTAL THE general statute gives the juftices of peace no power to inflict the penalties incurred by the irregular celebration of marriage. The act 1661, c. 34, appoints the penalties to be pursued for by the lord advocate, and procurator for the church, before the civil judge; which cannot well be supposed to mean justices of peace, who, unless by special ftatute, have no civil jurisdiction. THE execution of the act 1695, punishing with banishment all outed ministers who marry or baptize, is intrusted to the privy council, and all other magistrates, judges and officers of juftices, which, no doubt, includes juftices of the peace; and the act 1698, c. 6 ordains the celebrator to be fummarily feized and imprifoned, by any ordinary judge or juftice of peace; fo that the jurifdiction of juftices of peace would feem to be limited to that special cafe. IT is the religious act of pronouncing the nuptial benediction that is here punishable if performed by an unqualified perfon. For, " if a couple go into the presence of a "magistrate, and there exchange the matrimonial confent, "in this there does not feem to be any thing unlawful on "the part of the magiftrate, who does not pretend to marry "them, or at all to officiate in the matter, but merely serves "as a reputable witnefs of the act and civil contract of the " parties 8." IV. TOUCHING the constitution of marriage, that nice and CONSENT. most interesting subject of human legislation, so stands the law of Scotland; in unifon with found policy and the genuine principles of natural jurifprudence. f Hume, Vol. ii, p. 329. Hume, Vol. ii, p. 327. MARRIAGE, without the confent, or against the inclination, $4. PARENTAL of parents and guardians, is not merely not invalid: it is not coNSENT. even punishable by any penalty or disability whatever; fuch confent not being put on the fame footing with any of those folemnities which are neceffary to conftitute a regular marriage. YET the law of Scotland is not exceeded by that of any other nation, ancient or modern, in tender and jealous regard for parental authority and anxious endeavours to difcountenance all appearances of difobedience or difrepect by children to their parents. BUT in regard to marriage, it wifely deems parental authority beft intrufted to its natural fanctions; esteem, gratitude, affection, and the legal power of parents in the difpofal of their property. La douce perfuafion doit l'imfrimer dans les coeurs et non pas la force y contraindre. If love prove too ftrong for these motives to withstand it, the law of Scotland deems the evil already too defperate to admit of any remedy but the speedy marriage of the lovers. "If the father, friend, or master, gainftand their request, "and have no other cause than the common fort of men "have, to wit, lack of goods, and because they are not fo high "born as they require," the law of Scotland difapproves of the oppofition of parents, as an unlawful exertion of authority: For (to use the homely but fignificant words of the venerable authors of our ecclefiaftical polity) "God's work "ought not to be hindered by the corrupt affections of worldly men. The work of God we call, when two hearts, "without filthinefs before committed, are fo joined and both. require and are content to live together in the holy bond " i First book of Difcipline, tit. Marriage. PARENTAL $4 "of matrimony *." This union of hearts, the writers on CONSENT. general law term marriage, foro poli; and from fuch marriage, the law of Scotland deems it unjuft, unwise, and impolitic, on account of the difinclination of parents, to withhold the fanction of human authority. Tada quoque jure coiffent; Sed vetuere patres, quod non potuere vetare..... Quaque magis tegitur, tectus magis æftuat ignis. $5. DISSOLU- V. IF either of the parties die within year and day, the tocher returns to the wife, or those from whom it came; and all the intereft, either legal or conventional, arifing to -DEATH, the wife in the husband's estate, returns to the husband or his heirs, unless the contract of marriage contain a special day, its ef- claufe to the contrary. But " a provision of land or money fects. "made by the husband's father, not to the wife or to the within a year and "have charge over them, they mufl "declare it to the minifter, or to the "civil magistrate, requiring them to "travel with their parents for their "confent, which to do they are "bound. And if they, to-wit, the "minifter or magiftrate, find no "cause, that is juft, why the mar k Ibid. "they have opened their minds to But while thefe liberal fentiments" their parents, or fuch others as were expreffed for the encouragement of youthful attachments, it was far from the attention of these good men to encourage hafty and clandeftine marriages, or to represent the approbation of parents as a thing of no moment-on the contrary, they confidered the diffent of parents as a ferious evil, to remove which no pains fhould be fpared. The whole paffage runs as follows: "If the ther, friend, or master, "gainstand their requeft, and have "no other caufe than the common "fort of men have, viz. lack of goods, "and because they are not fo high "born as they require, yet must not "the parties whofe hearts are touch"ed, make any covenant till farther declaration be made unto the kirk "of God; and, therefore, after that riage required may not be fulfilled, "then, after fufficient admonition, "to the father, friend, mafter or fu«perior, that none of them resist the "work of God, the minifter or ma giftrate may enter in the place of "parents, and be consenting to their "just requests, may admit them to "marriage, for the work of God "ought not to be hindered by the corrupt affections of worldly men." a Erfk. B. i, c. 6, § 38, |