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.