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ducing the law to a hindrance of trespassing. Yet as a license is easily acquired at a moderate price, and a permission is in general not difficult to be procured, the former qualification only acts as a source of public revenue, and as such is the object of a very unobjectionable tax.

NOTE.-Statutes prohibitive of public or private gaming by lottery, betting, and otherwise, extend to Scotland. Besides, there still exists an old Scottish act of the year 1621, which gives magistrates a power of interfering to prevent gaming by cards or dice either in a public or private house. The penalty is L. 3:6:8, but when the master of the private house takes a hand in the game, no challenge can be made. This is one of those ridiculous old Scotch acts, which, of course, is never put in force.

PROMINENT AND PECULIAR LAWS AND USAGES
CONTINUED.

MARRIAGE-BASTARDY-DIVORCE.

What, shall the curate controul me? Tell him that he shall marry the couple himself.-GAY's What d'ye call it.

FEW of the laws of Great Britain require to be so much revised and equalized in some degree over both kingdoms, as those relative to the subject now coming under our notice. While the statutes of England possess several peculiarities of a nature not consonant with justice or expediency, and of a strictness which injures society, those of Scotland are liable to objections of a somewhat contrary description, and are discreditable on account of their looseness.

The Scotch law, following the spirit of Roman jurisprudence, considers matrimony purely a civil contract, implying certain conditions on either party, which may be reduced to the expedient principles of perpetual cohabitation and protection of children. Though the law gives the church the management of the ceremonial of union, all idea of a spiritual relationship is excluded; and the contract may be binding without such a practice. The English statute law recognizes similar principles; but unfortunately they are obscured, and in practice no law appears so remarkable for its contradictions.

SCOTCH LAW OF MARRIAGE.

213

The Scotch have fallen into the error of making the negociation of a matrimonial union too simple and indistinct. The process has been rendered so intangible and flimsy, that a word spoken in jest may form the basis of an action to enforce cohabitation. The following are the written provisions of the law on the subject. A marriage may be constituted between males of fourteen and females of twelve years of age; neither guardians nor parents having the power of preventing it in a legal manner. The ceremony may be performed by the church, in a manner immediately to be described; by an interchange of missive letters, or by a letter from the male to the female, if followed or preceded by cohabitation,-by living together under the reputation of married persons,-by the acknowledgement of a man to the clergyman who baptized his child, that he was the husband of the mother, if strengthened by other circumstantial evidence, -and by confession of parties before witnesses. These are the most prominent pleas in law for certifying that marriage exists; but so widely can presumptions be stretched, that almost every new case before the courts constitutes another dogma for its establishment. It is generally supposed that justices of the peace in Scotland can celebrate matrimony, which is a mistaken notion, only based on the consideration that a justice of peace may act the part of a common witness, that a declaration of marriage has been made in his presence. By causing a justice to subscribe a confession of this nature, a hue of legal accuracy is given to the transaction.

Marriage being thus of easy accomplishment, it acts retrospectively, and if acknowledged at any distance of time after cohabitation, it renders all the children legitimate, it being presumed that matrimony was contemplated from the first, and that certain private reasons only prevented its publication. This dangerous but humane provision is of great consequence to children born under those circumstances. However, their legitimacy will be refused, if the father desert

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GRETNA GREEN MARRIAGES.

their mother before declaring his marriage-marry another woman, and at her death, revert to the first ; the intention of marriage being supposed never to have existed. By reason of this very benevolent construction of the law, it does not infrequently happen that the father of illegitimate children declares his marriage to their mother before witnesses on his death-bed. Should the mother die before the confession, no marriage can take place; her assent being necessary.* The principles of the marriage of parties at Gretna, Coldstream, or any other accessible point on the borders, will be at once comprehended from the above: The priest, blacksmith, or whatsoever person acts the part of clergyman, only doing so on the grounds of being a witness of the confession. The reading of prayers, or the service of the church, is only thrown in to give the ceremony the air of an English marriage, without which the lady might raise objections. Any two persons, therefore, whom the parties should meet after passing the boundary line, are competent to act the part of a clergyman in the same manner. All attempts to put down irregular marriage ceremonies at the fashionable resorts of eloping parties from England, have consequently proved unsuccessful.

Strangers, reasoning abstractly on these peculiarities in the configuration of the law of marriage in Scotland, might be led to imagine, that in most instances no regular clerical ceremony would be used, and that all arrangements regarding the matrimonial connexion would be settled by the simple confession of parties. On examining daily usages, he would, however, find that very few marriages were thus established. No penalty is attached to the subscribing of witnes

There is a common traditionary prejudice among the people, that when retrospective marriages are celebrated, the mother, during the ceremony or confession, must gather all her children beneath her apron ; and that for this purpose a very large apron is procured. Though, from the prevalence of the legend, it is likely such a custom has once been acted upon, no practice of the kind is now necessary.

HALF-MERK MARRIAGES.

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ses, nor does the law interfere to impede the transaction in any way whatever; still, as such marriages are always liable to litigation by one of the parties, and may have a chance of reduction after decease, to the injury of children, a wish for security as well as respectability induces parties to undergo a regular marriage ceremony. The church may also censure its adherents for irregularity, and this, likewise, checks the practice. Irregular matrimonial transactions obtain the popular name of half-merk marriages, that sum in Scots money being the usual charge at one time made for enacting the part of priest on the occasion. They are also known by the name of ower bogie marriages.

A regular marriage is expeded in Scotland the same as in England, by proclamation in the parish church, and the interference of an established clergyman. The law on this point is, nevertheless, remarkably lax, and in almost every instance its provisions are abused with impunity. The proclamation of banns ought to take place on three several Sundays in the parish church, in an audible voice, in presence of the congregation. In general, this duty is huddled up into three several mutterings in one day, while nobody is present but the old women who usually take up their station on the pulpit stairs. These mutterings are made by the precentor, and he is ordinarily feed in proportion to the expedition he uses. When one of the parties is an Episcopalian, the proclamation must also be made in the chapel he attends, provided he is to be married by the clergyman of that place. If he be to be married by the parish minister, this is not requisite ; and we are rather of opinion, that this provision is never now acted upon in any case. If the parties live in different parishes, the proclamation must be made in the church of both. Six weeks give a settlement.

On an extract being procured of the proclamations, it is carried as a warrant to the parish clergyman, who is bound to unite the parties gratuitously. The law distinctly prescribes that no clergyman but those pertaining to the kirk or the Episcopal church shall celebrate matrimony, and these not without an extract of true proclamations, under the penalty of deportation

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