has become uninhabitable, during the rebuilding of a new one, a minister has a claim either to a suitable house, or such annual allowance, as will enable him to procure a commodious residence. The sum for this purpose, must depend upon the accommodation requisite for a minister's family, and the rent of houses in the particular part of the country. A presbytery cannot decern for manse rent; the process must be an action before the civil court.

-

Mode of the designation of a Manse. When there is no manse, or it has become ruinous, the minister applies to the presbytery by petition, craving a visitation and a decree for a new manse. The presbytery appoint a visitation, order proper intimation thereof to be made, as in the case of Glebes, attend on the spot upon the appointed day, where either some of the heritors or their agents are present. Where an old manse is complained of as ruinous, the tradesmen appointed to inspect it are put upon oath, and required to say, whether a new manse has become necessary or not. If they report that a new manse is necessary, the presbytery procure plans and estimates, contract with a builder, proportion the total expense of the building upon the heritors, decern against each for the sum respectively due by him, and appoint a collector to uplift the money. If there have been no manse before, the presbytery proceed in a similar manner, to provide for one being built; and also in repairs. This mode of proceeding has been approved of by the court of session', and they have found, that presbyteries may proceed to the designation of a manse, though the heritors either do not appear before them, or withdraw their appearance; that presbyteries may fix the situation of a manse; and that the clause requiring men of skill and integrity to assist the presbytery, cannot be dispensed with.

The rest of the procedure in the designation of manses, is precisely the same with that of glebes,-quod vide.

Steel.

• Fountainhall, 31st Jan. 1712. Lochmaben, 31st Jan. 1712.

u Ibid.

▾ Act 1663. c. 21.

MARRIAGE.

Marriage is a union of man and woman for life, for the purpose of living in family, and procreating and rearing children. It is a civil contract constituted by mutual consent, which must be real, not nominal. A regular marriage must be celebrated by a clergyman under the usual solemnities; in which two things are essentially requisite by our law: -Publication of banns, a ceremony originally intended to prevent improper marriages; by which all persons are invited to appear and state any objection to the proposed union. This must be done three several Sundays before divine service, in the parish churches where the parties reside, and before the marriage takes place. The parties must afterwards appear before a clergyman to express their consent, to enter into the nuptial vow, and receive his matrimonial benediction.

Every marriage made contrary to these rules is irregular, and denominated clandestine. By an act of the general assembly ", no banus can be regularly published, except by express orders given by the minister of the parish to the clerk. By a statute of Queen Ann *, the clergy, regular or episcopal, are specially authorised to marry, provided banns are published in the parish church, as well as in the episcopal chapel.

Penalties are annexed by several statutes to clandestine marriages. By one statute, penalties are ordained to be levied on the parties and the celebrator. The minister is liable to be banished the kingdom, never to return under pain of death: The parties are subjected to three months imprisonment, besides payment of certain arbitrary fines, proportioned to their respective ranks in life. By a later statute 2, witnesses are subject to a fine of L. 100 Scots each;

w Vide Acts of Assembly, Marriage, 6.

Y Act 1661. c. 34.

Z Act 1698. c. 6.

Act 10 Anne, c. 7.

or to corporal punishment when insolvent, if they refuse to disclose the name of the parties. But in this case, if they pay the fine, they are not liable for other punishments. This is also the case with respect to the principals.

A certificate must be produced from the session clerk. In a case, it was found, that no action of damages can lie against a clerk for a false certificate; but deprivation and prosecution before the criminal courts in Scotland at common law for the crime of falsehood. There however, it was declared, that if they pay the fine, they are not liable in any other punishment. But no certificate however, knowing it to be false, can save the parties from the penalties.

The penalties were directed to be applied to pious uses. The right of prosecuting was claimed by the kirk-session, though it belongs to the procurator for the church. The minister generally gives a certificate of the celebration of the marriage; but for this there is no absolute necessity. The marriage, in most cases at least, may be proved by the oath of the minister and the two witnesses. In one case, proof of the celebration of the marriage, was allowed after the death of one of the parties. But these penal statutes, though they impose fines upon clandestine marriages, do not affect their validity.

MINISTERS.

After the reformation great care was taken to prevent any scandal from being thrown upon the new religion by the lives of the clergy, to keep the church pure in its pastors, and guard their persons from external violence. Some early statutes prohibit irregularities in ministers under severe penalties. By these it is declared, that ministers, who are guilty of heresy, or erroneous doctrine, blasphemy, fornication, com

a

Ramsey v. Brown, 18th Feb. 1779, N. R.

Kirk-session of Dundee v. Hackney, 14th Nov. 1761.

© M'Turk v. Martha Dykes, 18th Nov. 1789, N, R.

mon drunkeness, plurality of benefices, simony, and non-residence, are liable in deposition: And non-residence is declared to be a minister's absenting himself from his parish, without leave asked and obtained, for four sundays in the year, without lawful cause or hindrance: And that ministers who shall be regularly convicted of a capital crime, and for which they are deprived of their function by an ecclesiastical court, shall lose their beneficed. By a later enactment, it is stated, that ministers who swear and drink to excess are to be fined in one fifth of their benefices. Ministers are incapable of engaging in any civil office: They are prohibited from being judges, either in a civil or criminal court, commissaries, ad vocates, clerks in any court, or notaries, except in the making of testaments, under the same penalty, that of deposition .

Whoever assaults or lays violent hands on a minister, or commands or directs others to do so, for demanding his stipend, or in the discharge of his duty, or for any other cause than by order of law, is to be punished by forfeiture of moveables; one half to the king, the other to the party offended . This is extended to all ministers whatever, who have power by lawful warrant, to preach and administer the sacraments h

Every minister and preacher is ordered to wear black, or grave apparel, or such as becomes their state and professioni: And that ministers may not lose their books during their life-time it is declared, that they are not to fall under the executry of their predeceasing wives'.

Every minister must take the oaths to government; and subscribe the confession of faith, declaring it to be the confession of his faith, and that he owns the doctrine therein contained, to be the true doctrine of the church to which he will constantly adhere; and that he acknowledges presbyteri

d Acts 1585, c. 132. and 1587, c. 32. f Act 1584, c. 135,

Act 1609, c. 8.

e Act 1661, c. 38.

g Act 1587, c. 27.
Act 1664, c. 19.

h Act 1663, c. 7.

an church government, to be the only government of this church, and that he will submit thereto, and concur therewith, and never directly or indirectly endeavour the prejudice or subversion thereof. Every minister and preacher must during divine service, pray in express words for the king and royal family, under the penalty of £20 sterling, for the first offence, half to the informer, and half to the poor of the parish; and for the second offence, he is declared incapable of officiating for three years; This is extended to all clergymen and preachers of the episcopal communion; and it is declar ed, that any person present twice in the year, in any chapel where the royal family are not properly prayed for, for the first offence forfeits £5. sterling, half to the king, half to the informer, and may be imprisoned for six months, unless the forfeiture is sooner paid; and for any subsequent offence, he may be imprisoned two years from the date of the conviction'.

The widows and children of ministers and of the heads, principals, and masters of the universities of Scotland having often been left in indigent circumstances, and the charitable designs for their relief having proved ineffectual, a statute was passed, ordaining them to pay out of their stipends or sala, ries, at their option, some one of these rates, £2. 12s. 6d. ; £3. 18s. 6d.; £5. 5s.; £6. 11s. 6d. sterling, to be applied for life-rent anniuties to their respective widows, amounting to the following sums of £10, £15, £20, £25, sterling, in proportion to such of the above annual rates as they respectively choose: And to make provision respectively for their children, amounting to the sums of £100, £150, £200, £250, sterling, in like proportion, provided the minister or other contributor leave no widow m. But from the decrease of the value of money, expense of living, and other causes this ordination was found defective, and therefore another was made to amend and render it more effectual. The former annual

k Act 1693, c. 22.

19 Geo. III. c. 20.

10 Anne. c. 6.; 32 Geo. III. c. 65.