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was and is valid without banns, licence, residence, or consent.*
(iii.) Special Licence.—The same mutatis mutandis as the special licence granted by the bishops of the Protestant Episcopalian Church. 3. Presbyterian Marriages.
These marriages are regulated by 7 & 8 Vict., c. 81, passed to counteract the effect of the decision of the House of Lords in the Queen v. Millis (10 Cl. and Fin. 534). The rules governing them are analogous to those of the late Established Church in like matters. They may be celebrated by a Presbyterian minister in a certified Presbyterian meeting-house, between two Presbyterians, or one Presbyterian and another of a different denomination.
(i.) Publication of Banns.--These must be published on three consecutive Sundays in the certified meeting-house [or in each of such, if more than one] frequented by the congregation (or congregations] of which the parties are members.
(ii.) Notice.-A six days' notice in writing must be delivered to the minister of the parties' true Christian and surnames, of the congregation or congregations to which they belong, of their respective abodes, and the time which they have dwelt in them.
(iii.) Licences Granted by Ministers appointed to issue such.If both parties desiring to marry are Presbyterians, they have choice of banns or licence; if one only, the latter is necessary. The preliminaries for the application of this licence are similar for the most part to those needed in a like application in England. But the person applying for this licence must, seven days before it is issued, produce to the licensing minister a certificate from the minister of the congregation of which he or she shall have been a member
* This is contrary to the discipline of the Roman Church, but as it is not contrary to the law of the land as affecting Roman Catholic marriages, a marriage so celebrated is valid.
for at least one month previously, stating that he or she has duly entered a notice of the intended marriage in a book kept for the purpose in that congregation; and that he or she is a member of that congregation, and knows of no lawful impediments, &c., &c. It does not appear that any period is fixed within which a marriage either upon
the publication of banns or a licence must take place.
(iv.) Special Licence.—This is issued by the heads of the different Presbyterian bodies, and is identical with those granted by the bishops of the Episcopal Church.
4. Marriages of Quakers and Jews.
The rites and usages of these religious societies are preserved to them as in England.
5. Marriages on the Registrar's Certificate or Licence.
(a.) No exhibition of the notice is required to be suspended in the Superintendent Registrar's office, unless the marriage is to take place in it.
(b.) The presence of the Registrar is now dispensed with when the marriage is celebrated at the place mentioned in the certificate or licence, and not in his office.
(c.) When the marriage does not take place in his office, the Superintendent Registrar must send to the person officiating as minister at the church, chapel, or place of public worship which the parties or either of them usually attend, a copy of the notice signed by him.
(d.) When the marriage takes place in the Registrar's office, he is to publish, at the expense of the parties, once at least in two consecutive weeks next after he has received the notice, a copy of such notice in some newspaper circulating either in the district or county in which they reside.
Although the law of Ireland on such matters as the marriage of minors, consent of guardians, caveats, and prohibitions is substantially the same as that of England, yet it does not touch the marriages of Roman Catholics, who are legibus soluti in such things; and as such marriages form a large
majority, the mischief of which we complain is widely spread throughout the country, though the Roman Catholic authorities are diligent in promoting proper and in discouraging irregular marriages, and in procuring all necessary publicity by registering the same.
Marriage Laws of Scotland. When we come to treat of some of these laws we find that we are as it were in a quite different atmosphere. The rules governing the marriage contract date back to times anterior to the Council of Trent. The decrees of this Council, though accepted by and now prevailing in most Roman Catholic countries in which the Canon law obtained, were never received and acted upon in Scotland; where, by the laws of other countries, witnesses are strictly required to constitute a valid marriage contract, by those of Scotland they are not indispensable. Mere consent of the parties to become husband and wife is enough ; and in some cases it has been held that the consent of both is not a necessity. The danger most to be apprehended arises from the terrible uncertainty of the married state.
There are two kinds of marriages by Scots law : (i.) Regular; (ii.) Irregular.
(i.) Regular Marriages.—(a.) On the Publication of Banns : These marriages are such as are solemnized by ministers of religion, whether those of the Established Church or not. The banns of the parties must be published in the Church [i.e., the Established Church) of the parish* in which each of the parties resides, whether either or both belong to the Established Church, or to any other denomination. Application for publication must be made to the session clerk, accompanied by a statement verified by the certificate of two householders or one elder of the parish that the parties, or one of them, have or has resided for six weeks in the
* Whether original or quoad sacra, Hutton v. Harper, 1 App. Cas. 464.
parish; that they are unmarried, and not within the prohibited degrees. The publication should be made when the congregation is assembled for divine service; but as a rule banns are cried before the assembling of the congregation ; and generally, by the payment of larger fees, three times, one after the other, on the same Sunday, though they ought properly to be published on three consecutive Sundays. For such marriages there is not any particular form or ceremony, or any particular time or place. The only thing needful is the presence of some minister of religion, or in the case of Jews and Quakers, of their proper and ordinary officers. Indeed, for the most part, except among Roman Catholics and Episcopalians, marriages are celebrated in private houses.
(b.) Marriages after Notice to Registrar in lieu of Banns.This partial assimilation of the law of Scotland to that of England and Ireland was effected only as recently as the session of last year—[41 & 42 Vict., c. 43). The chief provisions of this statute are to enable ministers, clergymen, or priests in Scotland to celebrate marriages on a Registrar's certificate ; but that no minister of the Church of Scotland shall be bound to celebrate upon it alone. Such certificate is to have equal authority with a session clerk's certificate as to authorizing a regular marriage. The notice of a marriage under this certificate must be posted on the door or outer wall of the Registrar's office for seven days; and if no objection is made against such intended marriage, the Registrar must grant the certificate as of right.
(ii.) Irregular or Clandestine Marriages.—(a.) Marriage per verba de præsenti, or sponsalia per verba de præsenti; this is a present interchange of consent between man and woman to become thenceforth husband and wife without publication of banns, or the intervention of a minister of religion. Such interchange of consent is a valid marriage, whether the consent is declared—(a.) Openly before a Justice of the Peace, a civil Registrar, or any person professing to celebrate
marriages * (B.) Or in the most secret or private manner between the parties themselves, with or without witnesses, or any subsequent acknowledgment, or matrimonial cohabitation.
(b.) Promise subsequente copula, or sponsalia de futuro cum copula.t-This is a written promise given by the man of future marriage, or a promise afterwards confessed upon oath of either party, followed by carnal intercourse. Such intercourse, unless accompanied by such written or confessed promise, is no more in Scotland than in England or Ireland than mere concubinage. The oaths of witnesses in whose presence such promise might have been given are not sufficient to constitute such intercourse marriage ; nor will the oath of either party be taken for such purpose, when the effect would be to invalidate a subsequent marriage ; in this last case the only means of proof is writing.
(c.) Habit and Repute.—These are merely evidence of a marriage, but do not constitute it.
It is only fair and necessary to mention that the authorities are divided as to whether sponsalia per verba de præsenti and sponsalia de futuro cum copula are, without more, marriages or not. One school hold that though irregular, they are valid marriage contracts, as far as they go; the other, that they are not marriage contracts proper, but rather espousals, or binding pre-contracts, which require a judicial sentence to be pronounced in the lifetime of the parties before they can become actual marriages. It would, however, be foreign to our purpose, and occupy much more time and space than are at our disposal, to discuss these rival theories, and the arguments which form their basis. But as the pre
* It was the last kind of marriage which used to be celebrated by the Gretna Green Blacksmith, until Lord Brougham's Act (19 & 20 Vict., c. 96] ruined his trade and occupation by compelling parties who were seeking marriage to have resided at least 21 days in Scotland.
+ These are the only true espousals, for the others operate as a valid matrimonial contract without more.