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

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.

This is a most unfair mode of reasoning. Unless it can be shown, which we maintain it cannot, that the law of Scotland, with regard to matrimony, is so loose that a party may really be married without knowing it, the argument utterly fails. Without distinct matrimonial consent there is no marriage, and no one surely can be ignorant of his own intention and act upon an occasion of that kind. He may try to suppress proofs, but for all that he is married, and if, during the lifetime of the other party, he shall contract a second marriage, he has committed bigamy, and is guilty of a criminal offence. Lord Campbell, in his evidence, admits that the marriage law of Scotland has been perfectly well ascertained upon most points – that there can be no doubt what is, and what is not, a marriage; but that the real difficulty consists in getting at the facts. Armed with this testimony, we may fairly conclude that unintentional bigamy is impossible; but that bigamy, when it takes place, is the deliberate act of a party.

Bigamy is beyond all dispute a crime of a heinous nature. Its consequences are so obviously calamitous, that no power of oratory can make them appear greater than they are; and we should rejoice to see any legislative measure introduced which could render its perpetration impossible. But, unfortunately, the eradication of bigamy, like that of every other crime, is beyond the power of statute. It may perhaps be lessened by decreasing facilities, or by augmenting its punishment, but we cannot see how it is to be prevented altogether by any effort of human ingenuity. But if the marriage law of Scotland is to be assailed upon this ground, it is incumbent upon its opponents to show that it really tends to promote bigamy. If the wrongs so pathetically deplored have a real existence, let us be made aware of that fact, and we shall all of us be ready to lend our assistance towards the remedy. No paltry scruples shall stand in the way of such a reformation, and we shall willingly pay even for registration, if it can be made the means of averting an actual social calamity.

But here again we find, on examination, that we are dealing with a pure hypothesis. We are told of horrible private injuries that may occur under the operation of a law which has been in force for centuries: we ask for instances of those injuries; and, as in the former case, it turns out that they have no existence save in the imagination of the promoters of the new bills. If the present law of Scotland has a tendency to promote bigamy, surely by this time it would have been extremely fruitful in its results. On the contrary, we are told by Lord Campbell that the Scots are a very virtuous people; and certainly, in so far as bigamy is concerned, no one will venture to contradict that opinion. One case, it appears, has occurred, in which a man of high rank, having previously contracted a private marriage under peculiar circumstances, married a second time, and that union was found to be illegal. The case is a notorious one in the books and in the records of society, and it occurred forty years ago. "About forty years ago," said the Dean of Faculty, "a gentleman of high position in society, so far forgot for the time what was worthy of, and due to that position in point of honour, and truth, and observance of the law, as to marry a lady in England, while he had a wife living in Scotland – and so he might have done if he had had a wife living in France or Holland. In short, he committed bigamy. And this one case of bigamy, forty years ago, without even an allegation of any similar case since that time, is brought forward at the present day, as a reason for now altering the law of Scotland in regard to the constitution of marriage." The individual in question lived and died in exile, and the case is never quoted without expressions of deep reprobation. It is the only one of the kind which can be brought forward; and surely it cannot be taken as any ground for altering the established law of the country. But does registration prevent bigamy? Unfortunately it is shown by numerous instances in England that it does not. In that country, registration is already established, but, notwithstanding registration, bigamy is infinitely more prevalent there than in Scotland. It is, indeed, impossible by any means of legislation to prevent imposition, fraud, and crime, if men are determined to commit them. Registration at Manchester will not hinder a heartless villain from committing deliberate bigamy in London. The thing is done every day, and will be done in spite of all the efforts of law-makers. Why, then, make the law of Scotland conformable to that of England, since, under the operation of the latter, the very grievance complained of flourishes fourfold? We pause for a reply, and are likely to pause long before we receive any answer which can be accepted as at all satisfactory.

Under the Scottish law, it is admitted that there is far less seduction, and far less bigamy, than under the English law, which is here propounded as the model. And having come to this conclusion – which is not ours only, but that of the witnesses examined in favour of the bill, all evidence against it having been refused – what need have we of saying anything further? Surely there is enough on the merits of the question to explain and justify the unanimous opposition which has been given to the Marriage Bill by men of every shade of opinion throughout Scotland, without exposing them to the imputation either of obstinacy or caprice: indeed we are distinctly of opinion that the promoters of the bill have laid themselves palpably open to the very charges which they rashly bring against their opponents.

We cannot, however, take leave of the subject, without making a few remarks upon the evidence of a noble and learned lord, who was kind enough to take charge of this bill during its passage through the upper house. Lord Campbell is not a Scottish peer, nor, strictly speaking, a Scottish lawyer, though he is in the habit of attending pretty regularly at the hearing of Scottish appeals. But he is of Scottish extraction; he has sat in the House of Commons as member for Edinburgh, and he ought therefore to be tolerably well conversant with the state of the law. Now we presume it will be generally admitted, that any person who undertakes to show that an amendment of the law is necessary, ought, in the first place, to be perfectly cognisant of the state of the law as it exists. That amount of knowledge we hold to be indispensably necessary for a reformer, since he must needs establish the superiority of his novel scheme, by contrasting its advantages with the deficiencies of the prevalent system. But in reading over the evidence of Lord Campbell, as given before the Committee of the House of Commons, a very painful suspicion must arise in every mind, that the learned peer is anything but conversant with the Scottish marriage law: nay, that upon many important particulars he utterly misunderstands its nature. Take for example the following sentence: —

"With regard to this bill which has been introduced, I am very much surprised and mortified to find the grounds upon which it has been opposed; for it has been opposed on the ground that it introduces clandestine marriages into Scotland. I think, with deference to those who may have a contrary opinion, that its direct tendency, as well as its object, is to prevent clandestine marriages. I may likewise observe, that I am very sorry – being the son of a clergyman of the Church of Scotland – to find that it is opposed, and I believe very violently opposed, by the clergy of the Established Church of Scotland. I think that they proceed upon false grounds; and I am afraid, although I would say nothing at all disrespectful of a body for whom I feel nothing but respect and affection, that they are a little influenced by the notion, that a marriage by a clergyman who is not of the Established Church, is hereafter to be put upon the same footing with a marriage celebrated by a clergyman of the Established Church: but I should be glad if they would consider, that they are placed nearly in the same situation as the clergy of the Church of England, who, without the smallest scruple or repining, have submitted to it, because a marriage before a Baptist minister, or before a Unitarian minister, is just as valid now as if celebrated by the Archbishop of Canterbury; and I should trust that, upon consideration, they would be of opinion that their dignity is not at all compromised, and that their opposition to it may subside."

We can conceive the amazement with which a minister of the Established Church, could he have been present at the deliberations of the select committee, must have listened to the reasons so calmly assigned for his opposition, and that of his brethren, to the progress of the present bill! Never for a moment could it have crossed his mind, that a marriage celebrated by him was of more value in the eye of the law than that which had received the benediction of a dissenter; and yet here was a distinct assumption that he was in possession of some privilege, of which, up to that hour, he had been entirely ignorant. "At present," continued Lord Campbell, "a marriage by a dissenting clergyman, I rather think, is not strictly regular!" Here a hint was interposed from the chair to the following effect: – "He cannot marry without banns; he is subject to punishment if he marries without banns?" But the hint, though dexterously given, fell dead on the ear of the ex-chancellor of Ireland. He proceeded deliberately to lay down the law, – "There are statutes forbidding marriages unless by clergymen of the Established Church."

This is, to say the least of it, a singular instance of delusion. No such statutes are in force; they have long been repealed; and every clergyman is free to perform the ceremony of marriage, whatever be his denomination, provided he receives a certificate of the regular proclamation of the banns. So that Lord Campbell, if he again girds himself to the task, must be prepared to account on some more intelligible grounds for the opposition which his father's brethren have uniformly given to this bill. But, to do him justice, Lord Campbell does not stand alone in error with regard to the present requirements for the celebration of a regular marriage. Unless there is a grievous error in the reported debate before us, the Lord Advocate of Scotland is not quite so conversant with statute law as might be expected from a gentleman of his undoubted eminence. Whilst advocating a system which is to entail the inevitable payment of a fee to the registrar, he at the same time considers the fee which is presently exigible for proclaiming the banns a grievance. "He was astonished to hear the honourable baronet opposite (Sir George Clerk) state that it was the first time he had heard it considered a grievance, that persons could not marry without proclamation of banns in the parish church, by the payment of a large fee to the precentor or other officer of the church. That had always been considered a very great grievance by the dissenting body throughout Scotland, so far as he understood. The members of the Episcopal communion were, however, saved from that grievance, because they were in possession of an act of parliament, which provided that the proclamation of banns made in their own chapel was sufficient to authorise a clergyman to solemnise the marriage." We should like very much indeed to know what act of parliament gives any such dispensation from parochial proclamation to the Episcopalians. Certain we are that the statute 10 Anne, cap. 7, confers no such privilege; for though it allows proclamation of banns to be made in an Episcopal chapel, it at the same time enjoins, under a penalty, that proclamation shall also be made "in the churches to which they belong as parishioners by virtue of their residence;" and accordingly, in practice, no Episcopalian marriage is ever celebrated without previous proclamation of the banns in the parish church. We do not attribute much importance to this error, though it is calculated to mislead those who are not conversant with the law and practice of Scotland. We were rather impressed, on reading the debate, with the circumstance, that the old system of proclaiming by banns in the parish church was denounced, and we therefore directed our attention the more closely to the provisions of the bill, in order to discover the exact nature of the new method by which it was to be superseded. The bill is singularly ill-drawn and worded; but we comprehend it sufficiently to see that, had it passed into law, regular marriages could have been contracted under its sanction without any difficulty, and with no publicity at all.