would be absurd to hold him bound, contract, and so requires the consent of more especially to a contract of such the purties, of which infra b. iii. tit. 1. magnitude and importance as that of § 16.” Of the essentialia of that consent marriage. Accordingly, the Court of which is necessary to give validity to Session has found, where an idiot had marriage, and every other contract, he entered into a marriage, and a child says, in the passage to which he before had been born before the validity of expressly refers, “ There can be no the marriage was challenged, and consent where the words or writings by where, too, the idiot had not been pre- which it is said to be expressed, are viously cognosced; that the marriage drawn from either of the parties by was nevertheless null and void.-Blair fraud, against his real inclination. v. Blair, June 1748.

Fraud or dole is defined a machination In the third place, the consent must or contrivance to deceive ; and when it be full, free, and explicit, such as to appears that the party would not have leave no doubt of the deliberate and so- entered into the contract had he not lemn intention of the parties to enter been fraudulently led into it ; or, as it into the married state with each other, is expressed in the Roman law, ubi doindependently of the mere form or lus dedit causam contractui, he is justly manner of giving the consent. said not to have contracted, but to be

1st. A marriage is not binding, how- deceived. Hence, if he who has been ever formal the manner in which the guilty of the fraud, shall sue for perconsent has been interposed, if it can formance, the other party may be rebe shown that it was given by either lieved by an exception of dole,” &c. of the parties through compulsion, or The consent to marry, therefore, must in consequence of such a degree of be full, free, and deliberate. In other violence as would compel the assent of words, it must not have been obtained a person of ordinary consistency. by force, fear, or gross fraud.

2d. A marriage is not binding where Lord Stair goes even farther; for the consent to enter into it has been he says that “ Error also in the subgiven through Fear; and in this term, stantials makes void the consent, uni apprehend, there is included not less future consent intervene, as it did merely the fear of violence to the in- in Jacob, who supposed that he had dividual herself, but of violence or married and received Rachel, but, by even disgrace to those with whom she is mistake, got Leah, yet was content to most nearly and dearly related. Fear retain her, and serve for the other also.” may be induced in a vast variety of Fraud and error are commonly uniways which it is unnecessary to men- ted; and accordingly, in treating of tion, independently of the mere fear what his Lordship calls “ the congearising from actual or threatened vio- nerous alledgeances," errore lapsus et lence to the person of the individual. dolo circumventus, he says, " it were a Lord Stair says, “ Just fear is infere hard thing to determine whether Jacob red not only by positive acts inferring were errore lapsus or dolo circumvenconstraint, but by restraint, as by long tus, when Leah came to his bed instead and unlawful imprisonment, or by of Rachel ; but certainly he might hindering of necessary food, sleep, rest, have repudiated Leah, as not being clothing, or by affording only corrupt his wife, if he had not ratified the meat and drink, &c.” Consent given marriage by continuing therein ; and under such circumstances cannot be no doubt he was not only dolo circumconsidered free and deliberate ; and ventus by Leah and her father, but he therefore, to hold that the party who was also errore lapsus ; yet it was by gave it, is, in any contract, bound as his own fault ; for though she came to effectually as if she had given her free him in the dark, yet if he had but and deliberate consent, appears to be spoken to her, her voice could not but contrary to every principle both of law have discovered who she was to him, and reason.

who had so long conversed with her.” 3d. A marriage is not binding when Lord BANKTON goes so far as to the consent of one of the parties has say, that " when a man ignorantly been obtained by means of gross fraud marrics a woman that is with child to and imposition. Lord Stair, the great- another at the time, it would seem est authority in the law of Scotland, lawful for him to insist that the marsays, that " Fraud is excepted in all riage be declared void, as being frauhuman actions.” Mr Erskine, in like dulently contracted on the part of the manner, says, Marriage is truly a

This is conform to the Mo

saie law, the civil law, and that of Each of the grounds which have other Protestant countries at this day; been mentioned, if fully and distinctand there is little doubt of our follow- ly proved, will, I apprehend, be sufing these authorities strongly founded ficient to exclude the idea of a true on the common sense of mankind,” &c. consent having been given, and there

It is not, however, I apprehend, forè sufficient to set a marriage, obevery species or degree of fraud that tained by its means, aside. But it will annul a marriage. A man believing may happen that the consent has been the wife he had chosen to be chaste, obtained by the instrumentality of and she turns out otherwise; or that more of these qualities than one, she was possessed of a large fortune, through a combination of them, and which turns out comparatively no- therefore, though anyone, per se, might thing, is nevertheless bound by the not be sufficient to set aside the marmarriage ; for these are qualities which riage, the whole taken together would are not essential to the existence of have that effect. . There may be rethe contract; and were such circum- straint to a certain extent-fear, though stances as morals, fortune, or temper, not of violence to the person, yet for held sufficient to annul a marriage, it the reputation, honour, and happiness would be in the power of either party of parents, forgery and gross fraud, to break the connexion at any time, all combined, to obtain consent; and and involve society in the most cala- upon a complex view of the whole cir. mitous confusion.

cumstances, it may appear clear, that Whether that full, free, and deli- but for the use of such a combination berate consent which the law requires of illegal means not even the form of to constitute a valid marriage, has been consent would have been given. And interposed, is a question of circum- if, so soon as the means used were disstances. What is sufficient proof that covered by their victim, she cut the has been given in one case, may not be connexion, there is an additional cire. sufficient in another. For exam- cumstance of proof of the consent haple, when the contracting parties are ving been nominal, and not real and both of mature age, and of course less true. liable to compulsion, fraud, or fear, Accordingly, it is upon a complex very different evidence will be requi- view of the whole circumstances of site to set the marriage aside from each particular case that the Court what will be sufficient for that pur- decides; and in order to show the pose when one of the parties is in the length to which our Judges have gone prime of life, and knowing in the ways in setting aside marriages where the of the world and arts of fraud and de- consent was apparently most solemnly ception ; and the other so young and adhibited, and where there was no inexperienced as merely to be legally allegation even that force or violence capable of entering into the bonds of had been used, I shall quote a case matrimony—the more especially if the which is reported by Lord Kaimes. minor be the female. It is a fit question for a jury to decide, in each par- “ CAMERON v. Miss MALCOLM, ticular case, and on a complex view

29th June, 1756. of all its circumstances, whether the “Cameron of Kinnaird, living in the consent to marry has been given with neighbouring of Mrs Malcolm, wiall the essential qualities which are re- dow of James Malcolm, merchant, quisite, or whether, though the form cast his eyes upon her daughter, Miss of consent had been given, it was not Malcolm, A CONSIDERABLE FORTUNE, extracted by means of fraud and cir- as an advantageous marriage for his cumvention, fear, or violence, and son. The two families set out together when in truth there was no real intens from Fife, in order to pass the winter tion or disposition on the part of one at Edinburgh. Upon their landing at of the individuals to enter into the al- Leith, Mrs Malcolm and her daughliance. The jury must be satisfied ter were invited to the house of Mrs not merely of the existence of fraud, Cousnen, Kinnaird's mother-in-law. but that the fraud, fear, or compulsion They supped there, and after supper, was of such a nature and extent as to without any previous concert, a minister exclude the idea of deliberate consent was brought in by Mr Cameron, in on the part of one of the individuals order to marry his son to the said Miss to become the wife or husband of the Malcolm, at that time just turned of other.

twelve years of age. The mother, for

lawyers, that if a consent to marry has which that force, fear, or fraud had once been given, (a consent in prem 'induced her to go, after she is made sence of witnesses to become man and acquainted with the fact of their ha, wife de presenti,) the marriage is bindving been used. If, for instance, a ing, although that consent has been ob- woman, under the false impression of tained through the grossest fraud and her father's ruin or death, and in the deception on the part of one of the par- belief that her consenting to marry a ties. To such a proposition, however, man whom she never before saw or I cannot subscribe. It is not every piece beard of, would avert that fate, even on of fraud and deception which is practi- being told of the falsehood and fraud sed in the affairs of marriage, (and they on the man's part in making such false are many,) that will annul the con- stories, nevertheless continues to live tract ; but if the consent of one of the with him as his wife, she would be held parties has been obtained by a fraudu, to be so to all intents and purposes. lent conspiracy, I cannot bring myself But she would be his wife, not because to think that to such consent, accords of the original consent which she gave ing to the law of any civilized coun. to become so, which was apparent try, “ the party trepanned," as the merely, and not real, but because of her old phrase is, would be bound. I ap- consenting to remain in the condition prebend, that the case I have quoted of his wife after she was aware of the was decided on the ground of fraud arts or violence which had been pracand circumvention ; that the “ cir- tised against her. In such a case, the cumstances laid together” proved there true consent is given at the period was not the full, free, and deliberate when, in the knowledge of the truth, consent which is requisite to consti- she freely consented to remain with tute a valid marriage. Lord Stair him as his wife. says, “ fraud is excepted in all human To the doctrine which I have staactions," -- Lord Bankton, “that the ted, that consent obtained by the grossmarriage may be declared void as being est fraud is no true consent ; or that

fraudulently contracted on the part of gross fraud will annul marriage so the woman;"(and a man may beguilty contructed, it has been objected, that of fraud surely as well as a woman, it must still be a legal marriage, bethough not perhaps of the same spe- cause the party using the fraudulent cies of it ;) and Mr Erskine expressly means must nevertheless be bound; refers to fraud as one of the grounds on and that it is a principle of all conwhich the contract may be set aside. tracts, that both parties must be bound

To these, the greatest authorities in or both free. the law of Scotland, I may add that of But the argument implied in the Lord Stowell (Sir William Scott) who, objection is fallacious. First, Because, in giving judgment in the case of Dale I apprehend, if the objection taken rymple v. Dalrymple, says, that if con- had been, that force was used to obtain sent de presenti was given fairly and the consent, it would come to the same without fraud, the parties were legally thing; and

force is confessedly a ground married by the law of Scotland. of nullity. Secondly, The objection of

I may mention that the case of Dal- fraud or force is only pleadable by the rymple regarded the effect of a pro- party who has been violently or fraumise of marriage de futuro, with a dulently wronged. That no man can copula following on that promise. The profit by, or plead his own fraud, is a law of Scotland has held, where a maxim in the law and equity of every woman has surrendered her person on state where law and equity are recogthe faith of a promise of marriage, that nised. An individual, therefore, who the parties have, at the period of the has been “ trepanned,” or circumcopula, actually interposed the consent vented into marriage, may, rather which is requisite to constitute them than expose herself and her friends to married persons.

the talk of the world, submit to her In conclusion, allow me to observe, fate, and her faudulent circumventer that though the consent of one of the be unable to withdraw from the conparties may have been illegally ob- tract; yet, because she will, if she tained, and the marriage consequent chooses, be allowed to remain in her ly set aside, that that result will deplorable connexion, that is surely only follow when the party forced, or no reason why the other party should fraudulently deceived, does not con- be allowed to profit by his own gross tinue in the state and condition into fraụd.

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 obedient servant. T. P.

THE SHEPHERD'S calendar.
Dreams and Apparitions, containing Smithy Cracks, &c.
PART III.

"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

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