Blackwood's Edinburgh Magazine, Volume 66, No. 407, September, 1849

by Various

"An opportunity had been afforded to the counties of Scotland to take the measure into consideration at their annual meetings on the 30th April. They had done so, and, with very few exceptions, had petitioned against this measure; and of those that had not actually petitioned this year, some had petitioned last year; and some had contented themselves this year with reiterating, in resolutions passed at public meetings, their continued dissatisfaction with the measure. The county which he had the honour to represent (Argyleshire) had not sent up a petition; but they had, at a public meeting, passed resolutions, temperately, yet firmly expressed, in reference both to the Marriage and the Registration Bills. No county, he believed, had passed resolutions in favour of this bill. So much for the counties. Next as to the burghs. The burghs comprehended about one-third of the population of Scotland. There was an institution recognised by law called the Convention of Royal Burghs, and which consisted of delegates from all the burghs in Scotland, who assembled once a-year or oftener in Edinburgh, and deliberated on matters affecting their interests. At the convention of 1849, the matter of these bills was taken into consideration. They were disapproved of, and a petition against them was voted unanimously. Thus you had all, or nearly all, the counties petitioning, and you had the assembled delegates from all the burghs petitioning. Then there were separate petitions from the popularly elected town-councils of most of the large towns in Scotland. The town-councils of Edinburgh, of Dundee, of Perth, of Greenock, of Leith, of Inverness, of Stirling, of Kilmarnock, of St Andrews, of Haddington, and many others, had petitioned against this bill. There was also another body of persons, popularly elected to a great extent, and who had a very material interest in the probable effects of this measure, especially with a knowledge of the fearful extent of bastardy in some parts of England—he meant the parochial boards of populous parishes. Petitions against this measure had been presented from the parochial boards of many of the most populous parishes in Scotland—the parochial board of the city parishes of Edinburgh—of the great suburban parish of St Cuthberts—of the city of Glasgow—of the great suburban parish of the Barony—of the parishes of Dundee, Paisley, Greenock, Leith, Port-Glasgow, Campbelton, and several others."

Such is the demonstration which the Lord Advocate of Scotland, without any counter display of opinion to back him, ventures to characterise as worthless and insignificant! Counties, burghs, town-councils, parochial boards, presbyteries, and General Assembly, which also represents the opinion of the universities, all combine to denounce the hated measure; still their remonstrance is to be cast aside as worthless and insignificant, and as in no way representing the feeling of the people of Scotland! A more extraordinary statement, we venture to say, was never made within the walls of the House of Commons; but the premier very properly refused to homologate its extravagance, and withdrew the bill on account, as he expressly said, of the opinion that had been expressed in the house regarding the sentiments of the Scottish people. Indeed, as Lord Aberdeen afterwards remarked, had the bill not been withdrawn, "representative government would become a farce; for the whole kingdom of Scotland was universally against it."

Some of our readers may naturally wonder why so much perseverance should be shown in this reiterated attempt to force an obnoxious bill upon the acceptance of the nation. It is, to say the least of it, an unusual thing to find a professing physician so clamorously and importunately insisting upon his right to practise on the person of a patient, who vehemently denies the existence of any bodily ailment. It is true, that we are accustomed to hear crotchety people crying up the efficacy of their peculiar remedies, and we admit the right even of Paracelsus to dilate upon the value of his drugs. But the case becomes widely different when the empiric requires that, nolens volens, you shall swallow them. Such, however, for the last three sessions, has been the conduct of the promoters of this bill; and as it is now plain beyond all dispute that nobody wanted it, this sudden rage for legislation becomes proportionally wonderful. Hitherto we have rather complained of the apathy than of the over-zeal of our representatives. Sometimes we have grumbled at their want of spirit for not watching more closely over our immediate interests, and in not protesting more loudly against the injustice of that neglect to which Scottish charities, foundations, and institutions are consigned, whilst a very different mode of treatment is adopted by government upon the other side of the Irish Channel. But we have seldom had reason to deprecate an excess of legislative activity, and it therefore becomes matter of curiosity to discover the motives for the present fit.

We must premise that the Scottish Marriage and Registration Bills are indissolubly linked together. The object of the Registration Bill is to secure a perfect record of all births, marriages, and deaths; and no reasonable objection can be taken to this upon the score of principle. It is admitted on all hands that our registers are at present defective—that is, they are not sufficiently minute to satisfy the cravings of the scrupulous statist. To have a perfect record is unquestionably desirable: the main objection to the scheme lies in the expense with which it must be attended. It is not our present purpose to examine the details of this bill, which we have nevertheless perused with much attention. We shall therefore merely remark that it seems to us quite possible to realise the same results with a far less expensive machinery. The present bill would create not only a well-salaried staff of officials in Edinburgh, but registrars in every county and town, whose services would fall to be defrayed by local assessment; and we need hardly say that, under present circumstances, the imposition of any new burden, especially in the shape of direct taxation, would be felt as an especial grievance. There is no prospect of relief from the income and property tax, though Sir Robert Peel gave the country a direct assurance that the measure was merely proposed to supply a temporary deficiency. It is now quite clear that neither the right hon. baronet, nor his successors, will ever attempt to redeem that dishonoured pledge. The poor-rates are increasing in Scotland at a frightful ratio, and are already so high as, in the opinion of many, to constitute an intolerable burden. It is now evident that, in a very short while, the inexpediency of the new system will be submitted to a serious review, or at least that some such attempt will be made. Other burdens are by no means decreasing, whilst the general wealth and prosperity of the country has, within the last three years, received a violent check. It is, therefore, not in the least surprising, if men hesitate to accept the proffered boon of a perfect registry at the price of a new assessment. Isolated cases of inconvenience which have occurred, from the want of such a register, may no doubt be pointed out; but, upon the whole, there is no general grievance, since the means of effective registration are at present open to all who choose to avail themselves of it. The present bill proposes to do nothing more than to substitute imperative for voluntary registration: its provisions are not only costly, but in some respects they are highly penal, and therefore, for a double reason, it is regarded with general dislike. Men do not like to be taxed for the alteration of a privilege which is already sufficiently within their power; and they are jealous of exposing themselves to fines, for omitting to do that which is no duty at all, except it is made so by the force of statute. They do not see any weight or shadow of reason in the argument, that Scotland must necessarily have a registration act, because England has already submitted herself to such a measure. On the contrary, they are not fond of uniformity, because, under that pretext, many inroads have of late years been made upon laws and institutions which hitherto have worked well, and against which, intrinsically, it was impossible to bring any tangible ground of complaint. Nor is it without some reason that they view with jealousy that endless multiplication of offices which the Whigs seem determined to effect. No doubt it is convenient for a political leader to extend the sphere of his patronage; but the public have, at the present time, too many stringent motives for economy, to acquiesce in the creation of a new staff as the indispensable consequence of every ministerial bill. They do not want to be visited by a fresh flight of locusts, whose period of occupation is to be everlasting, whenever it is thought expedient to make some change in the form and not the essence of our institutions. And therefore it is that the Registration, apart altogether from its connexion with the Marriage Bill, has been regarded as a measure not strictly objectionable in principle, but exceedingly ill-timed, inconvenient, and unlikely to produce any results commensurate with the cost which it must entail.

We believe that the above is a fair statement of the public feeling with regard to the Registration Bill; but, notwithstanding all these objections, it might very possibly have been carried had it stood alone. The ministerial phalanx in the House of Commons would probably have regarded the advantages of uniformity as a thorough answer to the arguments which might be adduced on the other side; and English members might naturally have been slow to discover any valid objections to the extension of a system already in full operation within their own domestic bounds. But the promoters of the bill had, at the very outset, to encounter a difficulty of no ordinary weight and magnitude. That difficulty arose from the peculiar position of the law of Scotland with regard to marriage. There could be no mistake about births and death, for these are distinct contingencies; but how to register marriages, which required no legal formality at all, save consent, to render them binding, was indeed a puzzle, which even the wisest of the innovators could not pretend to solve. There stood the law as it had done for ages; not demanding any ceremony to render the deliberate consent of contracting parties binding; shielding the weaker sex against the machinations of fraud, and interposing an effectual barrier to the designs of the unscrupulous seducer. There it stood, so merciful in its provisions that it left open a door to reparation and repentance, and did not render it imperative that the birthright of the child should be irretrievably sacrificed on account of the error of the parents. At the same time, that law drew, or rather established, a wide distinction in point of character between regular and irregular marriages. It had wrought so upon the people that instances of the latter were of comparatively rare occurrence, except, perhaps, upon the Border, which was crossed by English parties, less scrupulous in their feelings of decorum. Irregular marriages were discountenanced by the church, not by the establishment only, but by every religious body; and, to constitute a regular marriage, publication of the banns was required. No complaint had been heard from Scotland against the law; on the contrary, it was considered, both by jurists and by the people, as equitable in its principle, and less liable than that of other nations to abuse in the mode of its operation.

The existence of this law effectually interfered with the establishment of such a system of registration as was contemplated by the reforming Whigs. So long as it stood intact, their efforts in behalf of uniformity, additional taxation, and increased patronage, were hopeless; and no alternative remained save the desperate one of deliberately smiting down the law. It was not difficult for men so purposed and inspired to find out defects in the marriage law, for never yet was law framed by human wisdom in which some defect could not be detected. It was, first of all, urged, that the state of the Scottish law gave undue encouragement to the contract of Gretna-green marriages by fugitive English couples. The answer to that was obvious—Pass a law prohibiting such marriages until, by residence, English parties have obtained a Scottish domicile. That would at once have obviated any such ground of complaint, and such a measure actually was introduced to parliament by Lord Brougham in 1835, but never was carried through. Next, the whole fabric of the law was assailed. The facilities given to the contraction of irregular marriages were denounced as barbarous and disgraceful to any civilised country. Old cases were raked up to show the uncertainty of the law itself, and the difficulty of ascertaining who were and who were not married persons. According to one noble and learned authority, the time of the House of Peers, while sitting in its judicial capacity, was grievously occupied in considering cases which arose out of the anomalous condition of the Scottish law with regard to marriage; and yet, upon referring to an official return, it appeared very plainly that, for the last seventeen or eighteen years, only six cases of declarator of marriage or legitimacy had been brought before that august tribunal, and that of these six, three had no connexion with the subject-matter of the proposed bill! Lord Brougham, who entertains strong opinions on the subject, felt himself compelled to admit, in evidence, that most of the hypothetical abuses which might take place under the existing system, did not, in practice, occur amongst natives and residenters in Scotland. Lord Brougham is to this extent a Malthusian, that he thinks minors ought to be, in some way or other, protected against the danger of an over-hasty marriage. His lordship's sympathies are strongly enlisted in behalf of the youthful aristocracy, more especially of the male sex; and he seems to regard Scotland as an infinitely more dangerous place of residence for a young man of rank and fortune than Paris or Vienna. In the latter places, the morals may be sapped, but personal liberty is preserved; in the former, the heir-expectant is not safe, for at any moment he is liable to be trapped like vermin. The red-haired daughters of the Gael, thinks Lord Brougham, are ever on the watch for the capture of some plump and unsuspecting squire. Penniless lads and younger sons may be insured at a reasonable rate against the occurrence of the matrimonial calamity, but wary indeed must be the eldest son who can escape the perfervidum ingenium Scotarum. This is, no doubt, an amusing picture, and the leading idea might be worked out to great advantage in a novel or a farce; but, unfortunately, it is not drawn from the usual occurrences of life. Isolated cases of hasty marriages may, no doubt, have taken place, but our memory does not supply us with a single instance of a clandestine marriage having been contracted under such circumstances as the above. In Scotland, a stranger may, for the base purposes of seduction, pledge his solemn faith to a woman, and so obtain possession of her person. If he does so, the law most justly interferes to prevent him resiling from his contract, and declares that he is as completely bound by the simple interchange of consenting vows, as though he had solicited and received the more formal benediction of the priest. Will any man gravely maintain that in such a case the tenor of the law is hurtful to morals, or prejudicial to the interests of society? Even if the woman should happen to be of inferior rank in life to the intending seducer, is she on that account to be consigned to shame, and the man permitted to violate his engagement, and escape the consequences of his dastardly fraud? In England, it is notorious to every one, and the daily press teems with instances, that seduction under promise of marriage is a crime of ordinary occurrence. We call it a crime, for though it may not be so branded by statute, seduction under promise of marriage is as foul an act as can well be perpetrated by man. In Scotland, seduction under such circumstances is next to impossible. The Scottish people are not without their vices, but seduction is not one of these; and we firmly believe that the existing law of marriage has operated here as an effectual check to that license which is far too common in England. Would it be wise, then, to remove that check, when no flagrant abuse, no common deviation even from social distinctions, can be urged against it? If seduction does not prevail in Scotland, still less do hasty and unequal marriages. Lord Brougham is constrained to admit that it is most unusual for Scottish heirs, or persons possessed of large estates, or the heirs to high honours, to contract irregular marriages when in a state of minority. The law, in the opinion of Lord Brougham, may be theoretically bad, but its very badness raises a protection against its own mischiefs—it ceases, in fact, to do any harm, because the consequences which it entails are clearly and generally understood. We confess that, according to our apprehension, a law which is theoretically bad, but practically innocuous, is decidedly preferable to one which may satisfy theorists, but which, when we come to apply it, is productive of actual evil. It requires no great stretch of legal ingenuity to point out possible imperfections in the best law that ever was devised by the wit of man. That is precisely what the advocates of the present measure have attempted to do with the established marriage law of Scotland; but when they are asked to specify the practical evils resulting from it, they are utterly driven to the wall, and forced to take refuge under the convenient cover of vague and random generalities.

It is said that, under the operation of the present law, persons in Scotland may be left in doubt whether they are married or not. This is next thing to an entire fallacy, for though there have been instances of women claiming the married status in consequence of a habit-and-repute connexion, without distinct acknowledgment of matrimony, such cases are remarkably rare, and never can occur save under most peculiar circumstances. The distinction between concubinage and matrimony is quite as well established in Scotland as elsewhere. Nothing short of absolute public recognition, so open and avowed that there can be no doubt whatever of the position of the parties, can supply the place of that formal expressed consent which is the proper foundation of matrimony. If the consent once has been given, if the parties have seriously accepted each other for spouses, or if a promise has been given, subsequente copulâ, there is an undoubted marriage, and the parties themselves cannot be ignorant of their mutual relationship. It is, however, quite true that proof may be wanting. It is possible to conceive cases in which the contract cannot be legally established, and in which the actual wife may be defrauded of her conjugal rights. But granting all this, why should the whole character of marriage be changed on account of possible cases of deficient evidence? For if this bill were to pass into law, consent must necessarily cease to be the principal element of marriage. No marriage could be contracted at all unless parties went either before the priest or the registrar; and the fact of the mutual contract would be ignored without the addition of the imposed formality. Upon this point the commentary of Mr M'Neill seems to us peculiarly lucid and quite irresistible in its conclusions.

"The law of Scotland being now as heretofore, that consent, given in the way he had described, makes marriage—that it is, in the language of Archbishop Cranmer, 'beyond all doubt ipsum matrimonium'—the present bill says that henceforth it shall not make marriage, whatever may have followed upon it, unless the consent is given in presence of a clergyman, or by signing the register. It does not say that all marriages must be celebrated in presence of a clergyman; but, professing to recognise the principle that consent, though not given in presence of a clergyman, may constitute marriage, it says that the consent shall be of non-avail whatever may have followed upon it, unless it was given in the particular form of signing the register, and can be there pointed out. No matter how deliberately the consent may have been interchanged, and how completely susceptible of proof. No matter although the parties may have lived all their lives as man and wife—may have so published themselves to the world every day, by acts a thousand times more public than any entry in a register can possibly be—by a course of life more clearly indicating deliberate and continued purpose than a single entry in a register can do. All that shall not avail them or their families; they are to be denied the rights and privileges of legitimacy unless they can point to their names in the journal kept by the registrar. To borrow the language of a high authority, relied upon in support of the bill, 'It may be according to the law of Scotland that it is a complete marriage, and so it may be by the law of God; but if the woman is put to prove that marriage after the birth of children, of that she is or may be without proof.' That which, by the law of Scotland and by the law of God, is a marriage, the people of Scotland wish to be allowed to prove by all the evidence of which it is susceptible. They do not wish that parties should be allowed to escape from such solemn obligations undertaken towards each other, to their offspring, and to society. They are unwilling that any man should be enabled, with the confidence of perfect impunity, to impose upon an unsuspecting community, by wearing a mask of pretended matrimony, behind which is concealed the reality of vice. I do not wonder that the people of Scotland have no liking to this measure. There may occasionally be cases in which the proof of marriage is attended with difficulty; and so there may be with regard to any matter of fact whatever. So there may be in regard to the fact of marriage under the proposed bill, even where the marriage has been celebrated in the most solemn manner in presence of a clergyman. Occasional difficulty of proof is not a satisfactory or adequate reason for so great a change in the law. Certainty is desirable in all transactions, and is especially desirable in regard to marriage; and the means of preserving evidence of such contracts is also desirable; but although these objects are desirable, they should not be prized so highly, or pursued so exclusively, as to endanger other advantages not less valuable."

We think it is impossible for any one to peruse the foregoing extract from the speech of the Dean of Faculty, without being forcibly impressed by the soundness and strength of his argument. He is not contending against registration; he simply demands that through no pedantic desire for uniformity or precision, shall the general principle of the law of Scotland regarding marriage be virtually repealed. We are indeed surprised to find a lawyer of great professional reputation attributing to the established clergy of the Church of Scotland a desire to arrogate to themselves the functions of the Church of Rome, whilst, in the same breath, he asks the legislature to constitute itself into an ecclesiastical court, and to enact new preliminaries, without the observance of which there shall henceforward be no marriage at all. If the old principle of the law is to be abandoned, if consent is no longer to be held as sufficient for the contraction of a marriage, but if some further ceremony or means of publication are thought to be essential, we have no hesitation in saying that we would infinitely prefer the proscription and annulment of all marriages which are not performed in facie ecclesiæ, with the previous proclamation of the banns, to a hybrid measure such as this, which neither declares marriage to be the proper subject of ecclesiastical function, nor permits it to remain a civil contract which may be established and proved by any mode of evidence within the reach of either of the parties. If marriage is not a sacrament, but a civil contract, why take it out of the operation of the common law? Why make it null without the observance of certain civil ceremonies, unless it is intended virtually to confer upon the legislature regulating powers which have been claimed by none of the reformed churches, and which, when arrogated by that of Rome, have been bitterly and universally opposed?

Another objection to our present law of marriage has been frequently urged, and great use has been made of it to prejudice the minds of English members in favour of the proposed alteration. We have already shown that there is in reality no doubt of what constitutes a Scottish marriage; that parties so contracting know very well what they are about, and are fully sensible of the true nature of their obligations. If any doubt should by possibility exist, it can be set at rest by a simple form of process—a form, however, which is never resorted to, unless there has been gross intention to deceive on the one part, or a most unusual degree of imprudence on the other. But it is said that the possible existence of a private marriage may entail the most cruel of all injuries upon innocent parties—that it is easy for a man who has already contracted a private marriage, to present himself in the character of an unfettered suitor, and to enter into a second matrimonial engagement, which may be, at any moment, shamefully terminated by the appearance of the first wife. No ordinary amount of rhetoric has been expended in depicting the terrible consequences of such a state of things; the misery of the deceived wife, and the wrongs of the defrauded children, have, in their turn, been employed as arguments against the existing marriage law of Scotland.