lawyers, that if a consent to marry has once been given, (a consent in presence of witnesses to become man and wife de presenti,) the marriage is binding, although that consent has been obtained through the grossest fraud and deception on the part of one of the parties. To such a proposition, however, I cannot subscribe. It is not every piece of fraud and deception which is practised in the affairs of marriage, (and they are many,) that will annul the contract; but if the consent of one of the parties has been obtained by a fraudu lent conspiracy, I cannot bring myself to think that to such conse, according to the law of any civilized country, "the party trepanned," as the old phrase is, would be bound. I apprebend, that the case I have quoted was decided on the ground of fraud and circumvention; that the "circumstances laid together" proved there was not the full, free, and deliberate consent which is requisite to constitute a valid marriage. Lord Stair says, "fraud is excepted in all human actions,"-Lord Bankton, "that the marriage may be declared void as being fraudulently contracted on the part of the wom in" (and a man may be guilty of fraud surely as well as a woman, though not perhaps of the same species of it ;) and Mr Erskine expressly refers to fraud as one of the grounds on which the contract may be set aside. To these, the greatest authorities in the law of Scotland, I may add that of Lord Stowell (Sir William Scott) who, in giving judgment in the case of Dalrymple v. Dalrymple, says, that if consent de presenti was given fairly and without fraud, the parties were legally married by the law of Scotland. I may mention that the case of Dalrymple regarded the effect of a promise of marriage de futuro, with a copula following on that promise. The law of Scotland has held, where a woman has surrendered her person on the faith of a promise of marriage, that the parties have, at the period of the copula, actually interposed the consent which is requisite to constitute them married persons. In conclusion, allow me to observe, that though the consent of one of the parties may have been illegally obtained, and the marriage consequently set aside, that that result will only follow when the party forced, or fraudulently deceived, does not continue in the state and condition into which that force, fear, or fraud had induced her to go, after she is made acquainted with the fact of their having been used. If, for instance, a woman, under the false impression of her father's ruin or death, and in the belief that her consenting to marry a man whom she never before saw or heard of, would avert that fate, even on being told of the falsehood and fraud on the man's part in making such false stories, nevertheless continues to live with him as his wife, she would be held to be so to all intents and purposes. But she would be his wife, not because of the original consent which she gave to become so, which was apparent merely, and not real, but because of her consenting to remain in the condition of his wife after she was aware of the arts or violence which had been practised against her. In such a case, the true consent is given at the period when, in the knowledge of the truth, she freely consented to remain with him as his wife. To the doctrine which I have stated, that consent obtained by the grossest fraud is no true consent; or that gross fraud will annul marriage so contracted, it has been objected, that it must still be a legal marriage, because the party using the fraudulent means must nevertheless be bound; and that it is a principle of all contracts, that both parties must be bound or both free. But the argument implied in the objection is fallacious. First, Because, I apprehend, if the objection taken had been, that force was used to obtain the consent, it would come to the same thing; and force is confessedly a ground of nullity. Secondly, The objection of fraud or force is only pleadable by the party who has been violently or fraudulently wronged. That no man can profit by, or plead his own fraud, is a maxim in the law and equity of every state where law and equity are recognised. An individual, therefore, who has been " trepanned," or circumvented into marriage, may, rather than expose herself and her friends to the talk of the world, submit to her fate, and her fraudulent circumventer be unable to withdraw from the contract; yet, because she will, if she chooses, be allowed to remain in her deplorable connexion, that is surely no reason why the other party should be allowed to profit by his own gross fraud. While I think it is manifest that in Scotland, force, fear, or fraud will, if sufficiently proved, annul a marriage obtained by their means, I need scarcely say, that no one case of this kind can be taken as a rule for the determination of another; and therefore, in speaking of force, fear, and fraud as sufficient to set aside any marriage which has been obtained by their means, I always mean such force, fear, or fraud as any jury of intelligent men are satisfied preclude the idea that the consent which was given by one of the parties was not that full, free, and deliberate consent, without the interposition of which there can be no valid marriage by the law of Scotland. On the policy of the Scotch law of marriage I shall say nothing. The facilities, in so far as regards forms at least, for entering into that state, on this side the Tweed, are as great as the heart of man can wish. But the greater the facilities, and the more simple the form and ceremony of marriage, the more room is there for the practice of every base and fraudulent art; and therefore, the greater necessity ought there to be for the most indubitable proofs of the interposition of that full, free, and deliberate consent, which alone can be held sufficient to constitute the parties interchanging it man and wife. I am, Sir, your obe dient servant. THE SHEPHERD'S CALENDAR. "HAVE you heard anything of the apparition which has been seen about Wineholm place?" said the Dominie. "Na, I never heard o' sic a thing as yet," quoth the smith; "but I wadna wonder muckle that the news should turn out to be true." The Dominie shook his head, and uttered a long "h'm-h'm-h'm," as if he knew more than he was at liberty to tell. "Weel, that beats the world," said the smith, as he gave over blowing the bellows, and looked over the spectacles at the Dominie's face. The Dominie shook his head again. The smith was now in the most ticklish quandary; eager to learn particulars, and spread the astounding news through the whole village, and the rest of the parish to boot, but yet afraid to press the inquiry, for fear the cautious Dominie should take the alarm of being reported as a tatler, and keep all to himself. So the smith, after waiting till the wind-pipe of the great bellows ceased its rushing noise, and he had covered the gloss neatly up with a mixture of small coals, culm, and cinders; and then, perceiving that nothing more was forthcoming from the Dominie, he began blowing again with more energy than before-changed his hand-put the other sooty one in his breeches-pocket-leaned to the horn-looked in a careless manner to the window, or rather gazed on vacancy, and always now and then stole a sly look at the Dominie's face. It was quite immovable. His cheek T. P. was leaned on his open hand, and his eyes fixed on the glowing fire. It was very teazing this for poor Clinkum the smith. But what could he do? He took out his glowing iron, and made a shower of fire sweep through the whole smithy, whereof a good part, as intended, sputtered upon the Dominie, but he only shielded his face with his elbow, turned his shoulder half round, and held his peace. Thump, thump! clink, clink! went the hammer for a space; and then when the iron was returned to the fire," Weel, that beats the world!" quoth the smith. "What is this that beats the world, Mr Clinkum?" said the Dominie, with the most cool and provoking indifference. "This story about the apparition," quoth the smith. "What story?" said the Dominie. Now really this insolence was hardly to be borne, even from a learned Dominie, who, with all his cold indifference of feeling, was sitting toasting himself at a good smithy fire. The smith felt this, for he was a man of acute feeling, and therefore he spit upon his hand and fell a clinking and pelting at the stithy with both spirit and resignation, saying within himself, "These dominie bodies just beat the world!" "What story?" reiterated the Dominie. "For my part I related no story, nor have ever given assent to a belief in such story that any man has heard. Nevertheless, from the results of ratiocination, conclusions may be formed, though not algebraically, yet corporately, by constituting a quantity, which shall be equivalent to the difference, subtracting the less from the greater, and striking a balance in order to get rid of any ambiguity or paradox." At the long adverb, nevertheless, the smith gave over blowing, and pricked up his ears, but the definition went beyond his comprehension. "Ye ken that just beats the whole world for deepness," said the smith; and again began blowing the bellows. "You know, Mr Clinkum," continued the Dominie," that a proposition is an assertion of some distinct truth, which only becomes manifest by demonstration. A corollary is an obvious, or easily inferred consequence of a proposition; while an hypothesis is a supposition, or concession made, during the process of demonstration. Now, do you take me along with you? Because if you do not, it is needless to proceed ?" "Yes, yes, I understand you middling weel; but I wad like better to hear what other fo'ks say about it than you." "And why so? Wherefore would you rather hear another man's demonstration than mine?" said the Dominie sternly. "Because, ye ken, ye just beat the whole world for words," quoth the smith. Ay, ay! that is to say, words without wisdom," said the Dominie, rising and stepping away. "Well, well, every man to his sphere, and the smith to the bellows." "Ye're quite wrang, master," cried the smith after him. "It isna the want o' wisdom in you that plagues me, it is the owerplush o't." This soothed the Dominie, who returned, and said mildly-" By the by, Clinkum, I want a leister of your ma king, for I see there is no other tradesman makes them so well. A fivegrained one make it; at your own price." "Very weel, sir. When will you be needing it?" "Not till the end of close-time." Ay, ye may gar the three auld anes do till then." "What do you wish to insinuate, sir? Would you infer, because I have three leisters, that therefore I am a breaker of the laws? That I, who am placed here as a pattern and VOL. XXII. monitor of the young and rising generation, should be the first to set them an example of insubordination ?" "Yeken, that just beats a' in words! but we ken what we ken, for a' that, master." "You had better take a little care what you say, Mr Clinkum; just a little care. I do not request you to take particular care, for of that your tongue is incapable, but a very little is a necessary correlative of consequences. And mark you don't go to say that I said this or that about a ghost, or mentioned such a ridiculous story." "The crabbitness o' that body beats the world!" said the smith to himself, as the Dominie went halting homeward. The very next man who entered the smithy door was no other than John Broadcast, the new laird's hind, who had also been hind to the late laird for many years, and who had no sooner said his errand than the smith addressed him thus:-"Have you ever seen this ghost that there is such a noise about?" "Ghost? Na, goodness be thankit, I never saw a ghost in my life, save aince a wraith. What ghost do you mean?" "So you never saw nor heard tell of any apparition about Wineholmplace, lately?" "No, I hae reason to be thankfu' I have not." "Weel, that beats the world! Whow, man, but ye are sair in the dark! Do you no think there are siccan things in nature, as fo'k no coming fairly to their ends, John?" "Goodness be wi' us! Ye gar a' the hairs o' my head creep, man. What's that you're saying?" "Had ye never ony suspicions o' that kind, John?" "No; I canna say that I had.” "None in the least? Weel, that beats the world!" "O, haud your tongue, haud your tongue! We hae great reason to be thankfu' that we are as we are!" "How as you are?" "That we are nae stocks or stones, or brute beasts, as the Minister o' Traquair says. But I hope in God there is nae siccan a thing about my master's place as an unearthly visitor." The smith shook his head, and uttered a long hem, hem, hem! He had felt the powerful effect of that himself, and wished to make the same appeal. I to the feelings and longings after immortality of John Broadcast. The bait took; for the latent spark of superstition was kindled in the heart of honest John, and there being no wit in the head to counteract it, the portentous hint had its full sway. John's eyes stelled in his head, and his visage grew long, assuming meanwhile something of the hue of dried clay in winter." Hech, man, but that's an awsome story!" exclaimed he. "Fo'ks hae great reason to be thankfu' that they are as they are. It is truly an awsome story." "Ye ken, it just beats the world for that," quoth the smith. "And is it really thought that this laird made away wi' our auld master?" said John. The smith shook his head again, and gave a strait wink with his eyes. "Weel, I hae great reason to be thankfu' that I never heard siccan a story as that!" said John. "Wha was it tauld you a' about it?" "It was nae less a man than our mathewmatical Dominie, he that kens a' things," said the smith ;" and can prove a proposition to the nineteenth part of a hair. But he is terrified the tale should spread; and therefore ye maunna say a word about it." "Na, na; I hae great reason to be thankfu' I can keep a secret as weel as the maist part o' men, and better than the maist part o' women. What did he say? Tell us a' that he said." "It is not so easy to repeat what he says, for he has sae mony langnebbit words. But he said, though it was only a supposition, yet it was easily made manifest by positive demonstration." "Did you ever hear the like o' that! Now, have we na reason to be thank fu' that we are as we are? Did he say it was by poison that he was taken off, or that he was strangled?" "Na; I thought he said it was by a collar, or a collary, or something to that purpose." "Then, it wad appear, there is no doubt of the horrid transaction? I think, the Doctor has reason to be thankfu' that he's no taken up. Is not that strange?" "O, ye ken, it just beats the world." "He deserves to be torn at young horses' tails," said the ploughman. "Ay, or nippit to death with red hot pinchers," quoth the smith. "Or harrowed to death, like the children of Ammon," said the plough man. "Na, I'll tell you what should be done wi' him-he should just be docked and fired like a farcied horse," quoth the smith." Od help ye, man, I could beat the world for laying on a proper poonishment." John Broadcast went home full of terror and dismay. He told his wife the story in a secret-she told the dairymaid with a tenfold degree of secrecy; and as Dr Davington, or the New Laird, as he was called, sometimes kissed the pretty dairymaid for amusement, it gave her a great deal of freedom with her master, so she went straight and told him the whole story to his face. He was unusually affected at hearing such a terrible accusation against himself, and changed colour again and again; and as pretty Martha, the dairymaid, supposed it was from anger, she fell to abusing the Dominie without mercy, for he was session-clerk, and had been giving her some hints about her morality, of which she did not approve; she therefore threw the whole blame upon him, assuring her master that he was the most spiteful and malicious man on the face of God's earth;" and to show you that, sir," said Martha, wiping her eyes, has spread it through the hale parish that I am ower sib wi' my master, and that you and I baith deserve to sit wi' the sacking-gown on us." "he This enraged the Doctor still farther, and he forthwith dispatched Martha to desire the Dominie to come up to the Place and speak with her master, as he had something to say to him. Martha went, and delivered her message in so exulting a manner, that the Dominie suspected there was bad blood a-brewing against him; and as he had too much self-importance to think of succumbing to any man alive, he sent an impertinent answer to the laird's message, bearing, that if Dr Davington had any business with him, he would be so good as attend at his class-room when he dismissed his scholars. And then he added, waving his hand toward the door, "Go out. There is contamination in your presence. What hath such a vulgar fraction ado to come into the halls of uprightness and science?" When this message was delivered, the Doctor being almost beside himself with rage, instantly dispatched two village constables with a warrant to seize the Dominie, and bring him before him, for the Doctor was a justice of the peace. Accordingly, the poor Dominie was seized at the head of his pupils, and dragged away, crutch and all, up before the new laird, to answer for such an abominable slander. The Dominie denied everything anent it, as indeed he might, save having asked the smith the simple question, if he had heard ought of a ghost at the Place? But he refused to tell why he asked that question. He had his own reasons for it, he said, and reasons that to him were quite sufficient, but as he was not obliged to disclose them, neither would he. The smith was then sent for, who declared that the Dominie had told him of the ghost being seen, and a murder committed, which he called a rash assassination, and said it was obvious, and easily inferred that it was done by a collar. How the Dominie did storm! He even twice threatened to knock down the smith with his crutch; not for the slander, he cared not for that nor the Doctor a pin, but for the total subversion of his grand case in geometry; and he therefore denominated the smith's head the logarithm to number one, a term which I do not understand, but the appropriation of it pleased the Dominie exceedingly, made him chuckle, and put him in better humour for a good while. It was in vain that he tried to prove that his words applied only to the definition of a problem in geometry, he could not make himself understood; and the smith maintaining his point firmly, and apparently with conscientious truth, appearances were greatly against the Dominie, and the Doctor pronounced him a malevolent and dangerous person. "O, ye ken, he just beats the world for that," quoth the smith. "I a malevolent and dangerous person, sir!" said the Dominie, fiercely, and altering his crutch from one place to another of the floor, as if he could not get a place to set it on. "Dost thou call me a malevolent and dangerous person, sir? What then art thou? If thou knowest not I will tell thee. Add a cipher to a ninth figure, and what does that make? Ninety you will say. Ay, but then put a cipher above a nine, and what does that make? ha-ha-ha-I have you there. Your case exactly in higher geometry! for say the chord of sixty degrees is ra dius, then the sine of ninety degrees is equal to the radius, so the se cant of 0, that is nickle-nothing, as the boys call it, is radius, and so is the co-sine of 0. The versed sine of 90 degrees is radius, (that is nine with a cipher added, you know,) and the versed sine of 180 degrees is the diameter; then of course the sine increases from 0 (that is cipher or nothing) during the first quadrant till it becomes radius, and then it decreases till it becomes nothing. After this you note it lies on the contrary side of the diameter, and consequently, if po sitive before, is negative now, so that it must end in 0, or a cipher above a nine at most." "This unintelligible jargon is out of place here, Mr Dominie, and if you can show no better reasons for raising such an abominable falsehood, in representing me as an incendiary and murderer, I shall procure you a lodgement in the house of correction." "Why, sir, the long and short of the matter is this-I only asked at that fellow there, that logarithm of stupidity! if he had heard ought of a ghost having been seen about Wineholmplace. I added nothing farther, either positive or negative. Now, do you insist on my reasons for asking such a question?" "I insist on having them." "Then what will you say, sir, when I inform you, and depone to the truth of it, that I saw the ghost myself? yes, sir-that I saw the ghost of your late worthy father-in-law myself, sir; and though I said no such thing to that decimal fraction, yet it told me, sir-Yes, the spirit of your fatherin-law told me, sir, that you were a murderer." "Lord, now what think ye o' that?" quoth the smith. "Ye had better hae letten him alane; for od, ye ken, he's the deevil of a body that ever was made. He just beats the world." The Doctor grew as pale as a corpse, but whether out of fear or rage, it was hard to say at that time. "Why, sir, you are mad! stark, raving mad," said the Doctor; "therefore for your own credit, and for the peace and comfort of my amiable young wife and myself, and our credit among our retainers, you must unsay every word that you have now said regarding that ridiculous falsehood." |