THE SCOTCH MARRIAGE BILL.

We trust we have no blind or bigoted admiration of our native

institutions, and we willingly allow that the marriage law of Scotland

is not incapable of amendment. Any measure, therefore, professing to

have that object, would receive our attentive consideration; but we

should expect it to be framed with a care and caution corresponding to

the grave importance of the social relations which are to be affected,

and in a spirit congenial to the deep moral and religious convictions

which have always been cherished among our countrymen, and which, on

this subject above all others, it is important to preserve unimpaired.

The Bill recently introduced into Parliament "to amend the law of

Scotland affecting the constitution of marriage," appears to us not to

possess the recommendations which we think essential to such an attempt.

We consider it, though well intended, to proceed on a partial and

imperfect view of the subject, and to threaten us with the introduction

of greater evils than those which it professes to remedy. We regard it

as calculated to destroy or deaden the sacred character of the conjugal

union, and to diminish the solemnity of its obligations; to give new and

dangerous encouragements to precipitate and improper connections; and,

more especially as regards young persons, to create formidable

temptations to imprudence or immorality, and fatal facilities to the

designs of adventurers who may seek by marriage to obtain wealth or

advancement.

As the Bill is short, we shall insert it as the text of our

observations:

"_A BILL to amend the Law of Scotland affecting the Constitution of

Marriage._

"Whereas it is expedient that the law of marriage in Scotland should be

amended as far as the same affects the constitution of marriage in that

country; be it enacted, by the Queen's most excellent Majesty, by and

with the advice and consent of the Lords spiritual and temporal, and

Commons, in this present Parliament assembled, and by the authority of

the same, that from and after the last day of March, One thousand eight

hundred and Forty-eight, excepting as hereinafter excepted and provided,

_no marriage_ to be contracted in Scotland _shall be valid or effectual_

unless it shall be registered by the parties contracting the same, in

terms of an act passed in the present session of Parliament, intituled,

"An Act for registering births, deaths and marriages in Scotland," by

the said parties appearing in presence of the registrar, and then and

there signing before witnesses the entry of their marriage in the

register, and having the same otherwise registered in the manner

provided by the said act, in the case of the registration of marriages

by the parties themselves contracting marriage; _upon which registration

only_ the marriage shall be held to be contracted or valid or effectual

to any effect or purpose whatever; and it is hereby declared that _such

registration shall of itself constitute marriage_, and such parties

shall thereafter be held and deemed to be married parties to all effects

and purposes whatever.

"Provided always, and be it enacted, that nothing herein contained shall

affect or be held or construed to affect the validity of any marriage

where the marriage has been solemnised in presence of a clergyman, or of

a party professing to be acting as, and believed to be a clergyman, or,

in the case of Jews, has been solemnised according to the rites observed

by persons professing the Jewish religion, or, in the case of Quakers,

according to the rites or form observed by persons belonging to the

Society of Friends commonly called Quakers.

"And be it enacted, that the word 'clergyman' shall include all

clergymen or ministers of religion authorised to solemnise marriage,

whether belonging to the established church, or to any other church, or

to any sect or persuasion by whatever name or denomination known.

"And be it enacted, that this act may be amended or repealed by any act

to be passed during the present session of Parliament."

The operation of this Bill, it will be seen, depends so far on the

machinery provided by another Bill which is also now before Parliament,

"for registering births, deaths, and marriages, in Scotland." Into the

details of that Bill, it is unnecessary here to enter; find we shall

only mention that it provides for the establishment of resident officers

in various districts and subdistricts in Scotland, who are to keep a

book for the formal registration of the events specified in the title of

the Bill. We are no enemies of a judicious system of registration,

though we do not approve of all the enactments of the Bill in question,

and we think that they will require special and close examination before

they shall be sanctioned by the Legislature. But we shall merely insert

at present the clause that seems most material for discussing the merits

of the Marriage Bill.

"And be it enacted, that in all cases of marriage contracted in Scotland

from and after the last day of December one thousand eight hundred and

forty-seven, the persons contracting such marriage, at the time of the

contraction thereof, or within two months thereafter, shall sign along

with two witnesses, in the presence of the registrar, the entry of such

marriage in the register-book to be kept by the registrar, and the

registrar shall make such entry according to the form of Schedule (C.)

hereunto annexed; and if the person so contracting marriage, together

with two witnesses as aforesaid, shall, within ten days thereafter,

attend upon the registrar for the purpose of signing the entry in the

register, the registrar shall for such entry be entitled to a fee of

five shillings; and if such persons shall so attend after ten days and

within two months of contracting the marriage, the registrar shall be

entitled to a fee of ten shillings, or it shall be competent to the

persons so contracting marriage to _require the registrar of the

subdistrict within which such marriage has been contracted to attend at

the contraction_, or within two months thereafter, at any place within

such subdistrict; and such registrar is hereby required, upon a written

notice of forty-eight hours given to him to that effect, to attend with

the register-book accordingly, and to make the proper entry therein, and

for such attendance and entry, if at the contraction or within ten days

of the contraction of such marriage, the registrar shall be entitled to

a fee of one guinea, besides the sum of sixpence for each mile which

such registrar shall be obliged to travel in going from his place of

abode to the place of such marriage; and if such attendance shall be

required after ten days but within two months of the contraction of such

marriage, the registrar shall for such attendance and entry be entitled

to a fee of two guineas, besides the sum of sixpence for each mile which

such registrar shall be obliged to travel as aforesaid; and any person

contracting marriage and failing to register the same, and sign the

entry thereof in manner herein prescribed during the period of two

months thereafter, shall be liable in a penalty of fifty pounds, and in

default of payment thereof to suffer imprisonment for one month."

We cannot help thinking that the Registration Bill, from which we have

just quoted, has been framed without any view to the purpose which its

machinery is to serve under the Marriage Bill, of not merely registering

a marriage otherwise constituted, but also of actually constituting the

marriage that is to be registered. There is a gap apparently left

between the two Bills, and at least there is something that appears very

blank and meagre in the provision made for extra-ecclesiastical

marriages to be contracted in the registrar's presence. We presume that

this officer is not to judge what ceremony or declaration shall

constitute a marriage; if he were to do so new difficulties would arise:

but we take it for granted that if asked by the contracting parties to

register them as married persons, the registrar must immediately obey,

when the entry will of itself marry them, whether they were married or

not before.

There is certainly something startling in a system of registration which

does not precisely settle the antecedent matter on which it is to act;

and it is still more singular to consider mere registration as

constituting in itself the very thing that is to be registered. But it

seems to be so written in the Bill before us.

Various other observations will occur as to the imperfect structure of

the two Acts thus taken in connexion; but we pass over these minor

matters to point out the characteristic principles of this measure, and

the consequences which we think it involves.

It will be seen, first, that it declares marriage to be constituted by

mere registration to all effects and purposes, so that two parties thus

entered in the register, are conclusively and irrevocably united by that

simple fact. Second, that it professes no preference, and shows no

favour for ecclesiastical marriages over those constituted by simple

contract or mere registration, the old-fashioned mode of solemnising,

them by a clergyman being merely saved from abolition, but shorn of all

its privileges, and left, as it were, to die out in due time. Third,

that in registration marriages, no proclamation of banns is required,

and no notice of any kind is given to the public, nor any interval for

deliberation forced upon the parties. Fourth, that no locality is

assigned within which the parties may thus marry by registration, it

being competent apparently to carry out the arrangement in any district

however distant from their ordinary abode, by requiring, in a somewhat

Irish fashion, "the registrar of the subdistrict within which such

marriage HAS BEEN contracted to attend _at the contraction_."

Now we think it can require little argument to show that a system of

this kind, introduced as the basis of _the marriage law of the land_,

is, as has been predicted, much more likely to prove a bane than a

blessing. Marriage is undoubtedly a civil contract, but in all

enlightened Christian countries it has been looked upon as a solemn

engagement, over which the church ought to preside, in order duly to

impress the contracting parties with the religious origin from which it

sprung, with the religious duties which it involves, and with the

religious sanctions by which those duties are guarded. Considered as the

foundation of society itself, as the source of all pure and kindly

affections, as the introduction to the parental as well as to the

conjugal relation, it is impossible that it can be lightly treated or

hurried over as a matter of mere routine or ordinary business, without

lowering its character, and weakening its obligations, and relaxing

generally the moral tone of the community.

That under such a system, also, facilities must be given for the hasty

contraction of imprudent or improper marriages, is too obvious to be

pointed out. A transient resolution, a half frolic, a moment's

submission to undue influence, may at once and for ever create the

status of matrimony by the simple act of registration, from which there

is to be no room for repentance or escape.

But we shall be told that these evils are not introduced for the first

time by the present Bill, but already exist in their full extent under

the common law. If this were the case, it would be a serious objection

to the Bill, that while it professed to amend the law, it left such

evils untouched. But on further examination, it will be found that the

mischievous consequences to which we have alluded are wholly or almost

wholly unknown under the law as now existing, and will either be called

into operation by the present Bill, if it should pass into an Act, or

will be fearfully aggravated by such a measure.

In the first instance, it must be observed that the law as it stands

gives _no countenance_ and _no facility_ to extra-ecclesiastical

marriages. It tolerates but it does not give the sanction of its

approval to them. On the contrary, it considers them to be irregular and

contrary to good order, and it provides punishment for those who

celebrate or engage in them. The present act places them on an entirely

new footing. It makes them part and parcel of the statute law. It

provides a machinery and pays an officer, according to a settled and

moderate tariff, for actually carrying through those summary connexions

hitherto deemed irregular, but which can now be deemed irregular no

longer. This change of itself involves a serious danger.

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 ecclesiae_, 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.

"Foecunda culpae saecula 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:--

"And be it enacted, that any persons _who shall object to marry under

the provisions of this Act, in any such registered building_, may,

_after due notice and certificate issued_ as aforesaid, contract and

_solemnise_ marriage at the office and in the presence of the

superintendent registrar, and some registrar of the district, and in the

presence of two witnesses, _with open doors_, and _between the hours

aforesaid_, making the declaration, and using the form of words herein

before provided in the case of marriage, in any such registered

building."

A statute of this kind was not likely to undermine the public feeling in

favour of the religious celebration of marriage; and we believe that it

has not done so. But the Bill now proposed for Scotland is framed on a

very different principle, and would in all probability involve very

different results.

But indeed it is needless here to refer to the law of England, which in

one essential respect is so widely distinguished from that of our own

country. The restraints that, on the other side of the Tweed, have been

provided against the marriage of minors without the consent of their

parents and guardians, have no existence with us, and the merits of the

Bill under consideration must be estimated in reference to that most

material fact.

By the theory of the law of Scotland, a boy of fourteen and a girl of

twelve may validly contract marriage by mutual consent, without the

sanction, and in spite even of the opposition of their guardians. If

such be the case, it may be asked, whether and why they do not actually

marry at present as rashly and as indiscriminately as they are likely to

do under the new bill? The answer is, that such is not the case, and the

reason is to be found in the considerations we have already suggested.

The law is neutralised, and made nearly a dead letter, by the state of

feeling that prevails on the subject, and by the other obstacles to

which we have referred. Some are preserved from the danger by ignorance,

others by the scandal and discredit attaching to irregular marriages,

and others by the doubt and difficulty attending them. If these

preventives be taken away, what protection remains? If a statutory

marriage by the registrar is not looked upon as discreditable--and why

should it be so, since the law enacts it?--then the position of the

young is indeed most hazardous. The feelings of shame and fear most

likely to operate on youthful minds are withdrawn; and instead of

difficulties being thrown in the way, facilities for the evil are

created. An encouragement is held out--an office is opened,--a sure and

certain method is provided and _advertised_ for indulging precipitately

the caprice of a moment at the expense of family peace and happiness and

respectability for the rest of life.

We might say much more upon this subject had we not, as we believe,

sufficiently suggested the mischiefs with which this measure is

fraught. We are not satisfied that, as far as the young are concerned,

the existing law as to seduction under promise of marriage can be safely

abrogated, unless some other protection is provided in its place; and we

suspect that the apparent facility of registration at any time might be

used as a means of temptation in the first instance, while it might

afterwards be evaded with the most unjust consequences. Neither are we

clear that long repute and cohabitation should not, at least, afford a

_prima facie_ presumption of marriage, so as to supply the want of due

evidence of celebration, which may in some cases be lost, particularly

by persons coming from other countries to reside in Scotland. We see

difficulties, too, as to the effect of registration of marriage under

feigned names, which will often be resorted to where there is a desire

for concealment. If a marriage so registered is to be bad, what a door

is to be opened for deception! If it is to be good, how little security

may the registration afford! But we recur to the more comprehensive and

radical objections which we have already stated to this Bill, that it

destroys the sanctity and reverence attending marriage as a religious

engagement, and that it affords dangerous facilities and temptations to

the hasty contraction of improper marriages, which, more especially in

the case of persons under age, may have a very wide and pernicious

operation.

We are glad to see that the Church of Scotland has earnestly taken up

this question in the same light with ourselves. But it equally concerns

the parents and guardians of youth of every religious denomination. We

shall not be suspected of claiming for the Established Church alone the

religious right to sanctify the marriage obligation. Every Christian

Church in the land has a good claim and a deep interest to give its

blessing and its sanction to its own members when so contracting. But

all, indeed, who have the moral character and welfare of their country

sincerely at heart, must feel as we do, if they share in the

anticipations which we have expressed. Neither is the interest of the

subject confined to those who are residents in Scotland. It also

concerns every one whose children may enter or remain within our

territory at a marriageable age; and if the Scotch law is ever to be

thoroughly amended, it will be but imperfectly done unless the feelings

and rights of our English neighbours are specially attended to in this

important point.

If we were to offer our own views as to a measure that might be safely

adopted on this subject, we should be disposed to make the following

suggestions for consideration: 1st, That registration should be

necessary to validate irregular marriages, but should not constitute

marriage; 2d, That the registrar should not attend at the contraction of

any irregular marriage; 3d, That a certain period of public

cohabitation, in the same residence, as married persons, should

constitute or presume marriage; 4th, That, at least in reference to

young females, marriage by promise and subsequent connexion should be

valid, if steps to declare it were taken within a certain time; 5th,

That the marriage of English parties under age should be subjected to

some reasonable restraint by requiring prior residence of some duration.

In the mean time however, we trust the Bill will not receive the

countenance of the Legislature. Minor amendments upon it may be

proposed, but we do not expect that the principle can be corrected. It

has been introduced, no doubt, with a laudable desire to obviate the

uncertainty at present attending irregular marriages. But in mitigating

that evil, it appears to us to involve others of a much more serious and

sweeping kind, which it must be the duty of all religious and reflecting

men who see the danger to use every exertion to avert.

* * * * *

Printed by WILLIAM BLACKWOOD AND SONS, Edinburgh.

Blackwood's Edinburgh Magazine, Volume 61, No. 379, May, 1847 · 第 34 / 34 题