Blackwood's Edinburgh Magazine
The following is from Blackwood's Edinburgh Magazine:
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:
"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 ecclesiæ, 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.
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.