PRINTED BY WILLIAM BLACKWOOD AND SONS, EDINBURGH.
BLACKWOOD'S
EDINBURGH MAGAZINE.
No. CCCCVII.
SEPTEMBER, 1849.
Vol. LXVI.
THE SCOTTISH MARRIAGE AND REGISTRATION BILLS.
About two years ago, we found it necessary to draw the attention of our readers to certain alterations which our Whig rulers, or at least a section of them, proposed to make in the existing law of marriage, as applicable to Scotland. We stated our views moderately, not denying that in some points it might be possible to effect a salutary change; but utterly deprecating the enforcement of a bill which was so constructed as to uproot and destroy the ancient consuetudinal law of the kingdom, to strike a heavy and malignant blow at morality and religion, and which, moreover, was regarded by the people of Scotland with feelings of unequivocal disgust. So widely spread was that feeling amongst our countrymen, of every shade of political opinion and form of religious faith, that we believed this ill-advised attempt, once arrested in its progress, would be finally withdrawn. Popularity, it was quite clear, could never be gained from persisting in a measure so unpalatable to the whole community; nor had England, save in the matter of Gretna-green marriages, any visible interest in the question. It is just possible—for self-conceit will sometimes betray men into strange extravagancies—that a few individual legislators had more confidence in the soundness of their own opinions than in that of the opinions of the nation; but, even if we should give them credit for such honest convictions, it still remains a doubtful point how far individual opinions should be allowed to override the national will. There may be parliamentary as well as regal despotism; and we are much mistaken if the people of Scotland are inclined to submit to the former yoke, even at the hands of those who claim honour for their party on the strength of traditionary denunciations of the latter. We think it is pretty clear that no private member of parliament would have attempted to carry through a bill, the provisions of which had been encountered by such general opposition in Scotland. No ministry would have lent its support to such a case of insolent coercion; and we confess we cannot see why the crotchets, or even the convictions, of an official are to be regarded with greater favour. In a matter purely Scottish, it would, indeed, be gross despotism if any British cabinet should employ its power and its interest to overwhelm the voice of Scotland, as fairly enunciated by her representatives. That has not been done, at least to the last unpardonable degree; yet, whilst grateful to Lord John Russell for having, at the last moment, stopped the progress of these bills, we may very fairly complain that earlier and more decided steps were not taken by the premier for suppressing the zeal of his subordinates. Surely he cannot have been kept in ignorance of the discontent which has been excited by the introduction of these bills, three several times, with the ministerial sanction, in both houses of parliament? Had a bill as obnoxious to the feelings of the people of England, as these avowedly are to the Scots, been once abandoned, it never would have appeared again. No minister would have been so blind to his duty, or at all events to his interest, as to have adopted the repudiated bantling; since, by doing so, he would have inevitably caused an opposition which could only terminate in his defeat, and which, probably, might prove fatal to the existence of his cabinet. And yet, in the case of these bills, we have seen three separate attempts deliberately made and renewed—first in the House of Commons, and afterwards in the House of Peers—to thrust upon Scotland measures of which she has emphatically pronounced her dislike. No wonder if, under such circumstances, when remonstrance is disregarded, and the expression of popular opinion either misrepresented or suppressed, men begin to question the prudence of an arrangement which confides the chief conduct of Scottish affairs to a lawyer and judge-expectant, whose functions are so multifarious as to interfere with their regular discharge. No wonder if the desire of the Scottish nation to have a separate and independent secretary of state, altogether unconnected with the legal profession, is finding an audible voice at the council-boards of the larger cities and towns. Of late years it has been made a subject of general and just complaint, that the public business of Scotland is postponed to everything else, huddled over with indecent haste at untimeous hours, and often entirely frustrated for the want of a parliamentary quorum. This arises from no indisposition, on the part of the House of Commons, to do justice to the internal affairs of the northern kingdom, but it is the natural result of the system, which virtually leaves Scotland without an official representative in the cabinet. Every one knows that Sir George Grey is not only an able, but a most conscientious home-secretary; but, in point of fact, he is home-secretary for England alone. It is impossible to expect that, in addition to the enormous labour attendant upon the English home administration, any man can adequately master the details of Scottish business. The fundamental difference which exists in the laws of the two countries would of itself prove an insurmountable barrier to this; and consequently, like his predecessors, Sir George Grey has no personal knowledge either of our wishes or our requirements. He cannot, therefore, take that prominence in a Scottish debate which his position would seem to require; and the duty which ought to be performed by a member of the cabinet is usually intrusted to a subordinate. In this way Scottish public business receives less than its due share of attention, for the generality of members, observing that cabinet ministers take little share in such discussions, naturally enough attribute their silence to a certain degree of indifference, and are careless about their own attendance. All this, which involves not only scandal, but positive inconvenience, would be cured, if a return were made to the older system, and a secretary of state for Scotland numbered in the roll of the cabinet. The want of such an arrangement is positively detrimental to the interests of ministry; for, during the last session, they have assuredly gained but few laurels from their northern legislation. Four or five bills, purporting to be of great public importance, have been withdrawn, and one only, which establishes a new office connected with the Court of Session, has been graced by the royal assent. Among the lapsed bills are those which form the subject of the present paper; but they have not yet lost their vitality. On the contrary, we are led to infer that, in the course of next session, they will again be introduced, in some form or other, before parliament.
This mode of treatment is so unprecedented, that we cannot pass it over in silence. It may not be unconstitutional, according to the letter of the law; but if it be true, as we maintain it to be, that the people of Scotland have already protested against these measures, it does seem rather tyrannical that for the fourth time they should be compelled to organise a resistance, and to make themselves heard through petitions, lest the very absence of these should be held as an intimation of passive acquiescence. This kind of reasoning has actually been resorted to; and a very pregnant instance of it is to be found in the reported speech of the Lord Advocate upon the third reading of the Marriage Bill. "With respect to the dissenters in Scotland, there was not a single petition from them against the bill; therefore they were to be taken as being in favour of it!" This is a notable sequitur. In the first place, it is quite a new doctrine to maintain that because men do not organise meetings, or go out of their way to petition parliament against any measure, they must therefore be held as assenting. In the second place, it is rather a startling thing to find that men are expected to petition in a religious rather than in a social character. If this view be correct, no individual Anabaptist has any right to express his political opinions unless he petitions along with his congregation. No member of the Episcopal Church ought to have a voice in a secular matter unless he goes along with his diocesan. We are almost tempted to ask the question, whether congregations in Scotland are to be regarded as mere political clubs, or as associations for praise and worship? The town-councils of most of the large towns of Scotland have petitioned against the bills—are there no dissenters at any of those boards? One hundred and thirty parishes have separately recorded their detestation of the bills, not one parish has made the smallest demonstration in their favour, yet, according to the logic of the Lord Advocate, those that are silent must be held as acquiescing! It is remarkable, however, that if these bills really tend to confer such inestimable boons upon the people of Scotland, that stubborn race have been singularly reluctant to acknowledge the extent of the benefit. Nay more, it is certainly a most striking fact, that notwithstanding the religious divisions, which are more numerous here than elsewhere, it has been impossible to procure one isolated testimony, by an ecclesiastical body, in direct support of these singularly unfortunate bills. Lord Campbell, in his evidence given before the Committee of the House of Commons—of which more anon—indicates an opinion that the clergy of the Established Church of Scotland have been actuated in their unanimous and decided Opposition to the Marriage Bill by the desire to preserve a monopoly of celebrating formal marriages. If so, how is it that none of the dissenting clergy, in whose favour this monopoly was to be broken up, came forward in support of the measure? But the truth is, as we shall presently show, that no such monopoly exists at all, save in the imagination of the noble lord. By the law of Scotland, there is no distinction in favour of any sect, and clergymen, of whatever denomination they may be, have the right, and are in the daily practice, of celebrating formal marriages.
"I admit," says the Lord Advocate, "that the clergymen of Scotland are generally against this measure; but surely the house will think that, by this time, the third year of the discussion of this bill, these reverend gentlemen ought to have come forward with some substantial grounds for their opposition." We must fairly confess our inability to fathom the meaning of this remark. Two hundred and twenty-five petitions against this bill have emanated from the Established Church—at almost every meeting of presbytery and synod, the matter has been fully and thoroughly discussed—the moral and political objections to its enactment have been over and over again brought forward—yet still, in the eyes of the learned lord, there is a want of "substantial grounds." It is not enough, therefore, to say that a measure is unnecessary, immoral, and impolitic—it is not enough to assign reasons why these opinions are entertained, and to repeat them year after year. Something more must be done, according to this remarkably liberal view, before it becomes the duty of the legislature to give any weight to the general remonstrance—something "substantial" is required, but no intelligible definition has been vouchsafed of that substantiality. Nor does the following sentence by any means tend to sharpen the edge of our apprehension. "If they (the clergy) meant to say that they came here to assert that they had the power or right to supersede the interference of the legislature, they would put forward a right in them much greater than the Church of Rome asserted, because they took their right to interfere in reference to the rules of marriage, on the ground that it was a sacrament, which carried with it a degree of plausibility; and they required no witness to their marriage, or proof of the marriage, beyond that of the parish priest who performed the ceremony." Now, if any kind of meaning whatever is to be extracted from this sentence, it must be taken as an inuendo that the Church of Scotland, in petitioning against the bill, is directly or occultly preferring some ecclesiastical claim to interfere in the celebration of regular public marriages. The Church of Scotland asserts no claim of the kind, nor has it ever been so much as hinted that such a right was inherent in that body. The church does not seek to interfere with the legislature. It neither has, nor claims ecclesiastical dominion or preference in the matter of marriage. As a Christian communion and a Christian church, it has entreated parliament not to pass a measure which, justly or not, it considers as hurtful to the moral character of the people, and in doing so, it has been actuated by no motive save a due regard to its high and holy functions. If such considerations as these are not sufficient to justify the right of petitioning, it is difficult to understand why that right should be exercised at all. Must a pounds-shillings-and-pence interest be established, before the Church of Scotland can be allowed to approach the legislature on such a question? In our mind, the absence of all pecuniary interest, and the utter abnegation of any kind of ecclesiastical monopoly, are the strongest reasons why the opinion of the Church of Scotland, in a matter such as this, should be listened to with reverence and respect.
Having thus disposed of the church, though in a manner, we should think, scarcely satisfactory to himself, and not at all to his auditory, the Lord Advocate summarily remarks of the petitions against the bill, that "as proof to be relied on of a general feeling throughout Scotland, they were worthless and insignificant." It may be useful for intending petitioners to know what sort of demonstration they must be prepared to make, if they wish their remonstrances against any government measure to pass the limits of worthlessness. It is always advantageous to learn what is the last definition of the true vox populi, in order that there be no mistake or misinterpretation of its extent. We turn to the admirable speech of Mr M'Neill, the learned Dean of Faculty, and we find the following analysis of the extent of the lay opposition:—