Whatever is left to depend on consuetudinary law, will derive its character from the feelings of the people, among whom the law has been formed and preserved. The one custom, in its growth and progress, is checked and qualified by others of an opposite and counteracting tendency. As matters now stand in Scotland, marriages celebrated without the presence of a clergyman, or without the proclamation of banns, though held to be valid, are denounced as irregular and improper. All the feelings of the people are against them. No one, with any remains of decent pride, or a sense of propriety, would contract marriage in that way; and such a step would infer a loss of social position and respectability, even in the humblest ranks of life.
But, how long would this feeling last under the new bill? Could we rely on its continuance in reference to marriages, which can no longer be called contraband or clandestine, which are recognised and regulated by an Act of Parliament, as being on an equal footing with marriages in facie ecclesiæ, and which are henceforward to be performed by a statutory officer, intrusted with important and honourable duties? Are we sure that a change in this respect would not soon come over all but the very best among us; and at least that many thoughtless, and rash, and presumptuous persons, might not give to the registrar's book a position somewhat approaching to the clergyman's benediction? The statute is a clear and intelligible warrant for such a feeling, and may be cited as lending a stamp and currency to unclerical marriages, which they do not possess at present, but which it would afterwards be difficult to deny them.
If this change of opinion or practice takes place, and the framers of this bill cannot wonder or find fault if such a result should follow, let us consider what a safeguard would in that way be removed, and how deeply the national character might in time be deteriorated. At present, besides other obstacles and drawbacks, to be immediately noticed, there exists a strong barrier against irregular marriages in their disreputable character. The stigma that attaches to them, both in law and in fact, deters all but the licentious from resorting to them. But let this reluctance once be diminished, and we cannot fail to see that extra-ecclesiastical marriages will be more frequent, particularly under the facilities afforded by this bill, and a wide opening will be made for the admission of all the evils attending them. The bill will thus have a double operation of a detrimental kind, first by removing the legal and moral objections to the marriages now called irregular, and next by providing the means of easily and safely contracting those marriages, by converting the registrar into a marrying officer, and, as has been truly said, establishing a popular Gretna-green in every parish.
And here it is proper to remark, that by the present law, irregular marriages are subject to other disadvantages, which operate to prevent them, but which will now be taken away. The very uncertainty which attaches to them under the existing law, though an evil in one way, is beneficial in another. Every apparent consent to marry, if irregularly declared out of the presence of the church, is at present liable to inquiry and explanation. The most formal written engagement or verbal declaration is of itself inconclusive; it being always competent to inquire, whether it was not interchanged in jest or in error, or for some other purpose than that of constituting marriage; and several cases have occurred where, upon evidence that there was no genuine and serious intention to marry, such documents or declarations have been wholly disregarded. It is obvious that the very fear of such contingencies, carries with it; some degree of good to the morals and welfare of society. Designing persons seeking to form matrimonial connexions for sordid purposes, cannot be sure that their plan will succeed even if they should entrap their victim into an apparent acquiescence in it; and females possessed of any principles or prudence, will not surrender their persons upon the faith of private contracts, which are not only disreputable in point of character, but doubtful in point of security. Under this Bill, however, all such difficulties would be removed. No interchange of consent, however hasty, however ill considered, however improperly obtained, could ever be got the better of when once it was registered. A half-tipsy lad and a giddy lass, passing the registrar's house, after a fair, may be irrevocably buckled in three minutes, though they should change their minds before they are well out of the door. A fortune-hunter has only to prevail on a silly girl, who has a few thousand pounds, to walk with him to the office, and there, with two of his associates, make her sign her name in a book, and his purpose is fully and effectually accomplished; while the lady's maid of the family will find it as easy, on the other side, to make a match with her master's son, at any favourable moment that offers.
We do not pretend to know what sort of man the registrar is to be. But his office does not require him to be either a minister or a magistrate. It is not, therefore, necessary that he should offer any advice or remonstrance as to the necessity of due deliberation, or the consent of friends, in entering into the holy state of matrimony. And, indeed, such interference would be an impertinence and a breach of duty. We presume, at the same time, that, as he must be a mortal man, and is to be paid by fees, he will have no objection to encourage every thing that brings grist to the mill. He is not likely to grudge being knocked up at night when a gratuity is to be the result. And thus we conclude that all observance of canonical hours will be dispensed with; and that the great work of matrimonial registration will be practicable at any period of the civil day.
If we were to indulge in the ludicrous on such a subject, we should only have to imagine a marriage bazaar of this kind, opened at a watering-place or at the sea-side, where young ladies might be attended or waylaid by amorous exiles of Erin, watching the mollia tempora to wile the confiding fair one from the library to the pastry-cook's, and from the pastry-cook's to the registrar's shop, or else taking shelter within the statutory office during a shower of rain, or arranging to meet at that happy rendezvous after the concert or ball. Or take the converse case, of gawky country lads, hooked in by knowing widows or other female adventurers, and the chain riveted in an unguarded moment, before their unhappy parents, or even the witless victims themselves, had dreamed that it was forging. But even this kind of publicity is not necessary. As far as we see, the registrar may, at any hour, be summoned to attend at the most private spot of his district, and there be compelled to witness and legalise the most monstrous match that could be imagined, or the most infamous advantage that duplicity ever gained over simple folly or unsuspecting inexperience.
Who can doubt that scenes of this kind are not unlikely to occur under such a change of the law? When the restraints of moral customs and habits have been broken through by the interference of the legislature; and when an invitation is thus held out, and a mechanism provided for precipitate marriages, who can calculate the infinite evils that will ensue? The obvious fruits of such a system will be conjugal unhappiness and consequent infidelity, the neglect of children, and the weakening of all domestic affections. The worst mischiefs to the personal and social character of a people have always sprung from a disregard of the serious and solemn nature of the marriage tie; and the least risk of such laxity is to be deprecated.
"Fœcunda culpæ sæcula nuptias
Primum inquinavere, et genus et domos;
Hoc fonte derivata clades
In patriam populumque fluxit."
In the discussion on this subject out of doors, reference has been made, to the English registration act. It is not necessary for us to pronounce an opinion on the merits of that measure. But we will merely say that its character and provisions are essentially different from those of the Scotch Bill we have been considering.
The English marriage act, which introduced a system of registration, is the 6 & 7 William IV., c. 85. It is at least a well-digested and well-developed measure, complete in itself, and laying down the grounds on which it proceeds, and the precise mode of its operation. It was introduced as a concession of religious toleration, being intended to relieve the scruples of Dissenters, who objected to being married according to the ritual of the Church of England. In that light the present bill is wholly unnecessary. The fullest religious freedom already exists in Scotland; the celebration of marriage by a clergyman of any denomination, after proclamation of banns, being equally valid and regular as when the ceremony is performed by a minister of the Establishment. But the English registration act, so far from throwing ecclesiastical marriages into the shade, shows a studied anxiety to promote and encourage them, and contains numerous provisions directed to that object, as well as intended to give publicity and deliberation to the matrimonial contract to be entered into. It further provides a system by which the scruples of Dissenters are saved without destroying the religious character of the contract, by allowing sectarian places of worship to be registered for the purpose of solemnising marriage therein. It is only after all these provisions, and in order expressly to meet further religious scruples, that a marriage before the registering officer is sanctioned. But in this case also, the statutory period of public premonition is required, as well as the observance of the other precautions against precipitate and clandestine marriages. The clause on this subject is as follows:—