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

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

Various

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

THE SCOTTISH MARRIAGE AND REGISTRATION BILLS

About two years ago, we found it necessary to draw the attention of our readers to certain alterations which our Whig rulers, or at least a section of them, proposed to make in the existing law of marriage, as applicable to Scotland. We stated our views moderately, not denying that in some points it might be possible to effect a salutary change; but utterly deprecating the enforcement of a bill which was so constructed as to uproot and destroy the ancient consuetudinal law of the kingdom, to strike a heavy and malignant blow at morality and religion, and which, moreover, was regarded by the people of Scotland with feelings of unequivocal disgust. So widely spread was that feeling amongst our countrymen, of every shade of political opinion and form of religious faith, that we believed this ill-advised attempt, once arrested in its progress, would be finally withdrawn. Popularity, it was quite clear, could never be gained from persisting in a measure so unpalatable to the whole community; nor had England, save in the matter of Gretna-green marriages, any visible interest in the question. It is just possible – for self-conceit will sometimes betray men into strange extravagancies – that a few individual legislators had more confidence in the soundness of their own opinions than in that of the opinions of the nation; but, even if we should give them credit for such honest convictions, it still remains a doubtful point how far individual opinions should be allowed to override the national will. There may be parliamentary as well as regal despotism; and we are much mistaken if the people of Scotland are inclined to submit to the former yoke, even at the hands of those who claim honour for their party on the strength of traditionary denunciations of the latter. We think it is pretty clear that no private member of parliament would have attempted to carry through a bill, the provisions of which had been encountered by such general opposition in Scotland. No ministry would have lent its support to such a case of insolent coercion; and we confess we cannot see why the crotchets, or even the convictions, of an official are to be regarded with greater favour. In a matter purely Scottish, it would, indeed, be gross despotism if any British cabinet should employ its power and its interest to overwhelm the voice of Scotland, as fairly enunciated by her representatives. That has not been done, at least to the last unpardonable degree; yet, whilst grateful to Lord John Russell for having, at the last moment, stopped the progress of these bills, we may very fairly complain that earlier and more decided steps were not taken by the premier for suppressing the zeal of his subordinates. Surely he cannot have been kept in ignorance of the discontent which has been excited by the introduction of these bills, three several times, with the ministerial sanction, in both houses of parliament? Had a bill as obnoxious to the feelings of the people of England, as these avowedly are to the Scots, been once abandoned, it never would have appeared again. No minister would have been so blind to his duty, or at all events to his interest, as to have adopted the repudiated bantling; since, by doing so, he would have inevitably caused an opposition which could only terminate in his defeat, and which, probably, might prove fatal to the existence of his cabinet. And yet, in the case of these bills, we have seen three separate attempts deliberately made and renewed – first in the House of Commons, and afterwards in the House of Peers – to thrust upon Scotland measures of which she has emphatically pronounced her dislike. No wonder if, under such circumstances, when remonstrance is disregarded, and the expression of popular opinion either misrepresented or suppressed, men begin to question the prudence of an arrangement which confides the chief conduct of Scottish affairs to a lawyer and judge-expectant, whose functions are so multifarious as to interfere with their regular discharge. No wonder if the desire of the Scottish nation to have a separate and independent secretary of state, altogether unconnected with the legal profession, is finding an audible voice at the council-boards of the larger cities and towns. Of late years it has been made a subject of general and just complaint, that the public business of Scotland is postponed to everything else, huddled over with indecent haste at untimeous hours, and often entirely frustrated for the want of a parliamentary quorum. This arises from no indisposition, on the part of the House of Commons, to do justice to the internal affairs of the northern kingdom, but it is the natural result of the system, which virtually leaves Scotland without an official representative in the cabinet. Every one knows that Sir George Grey is not only an able, but a most conscientious home-secretary; but, in point of fact, he is home-secretary for England alone. It is impossible to expect that, in addition to the enormous labour attendant upon the English home administration, any man can adequately master the details of Scottish business. The fundamental difference which exists in the laws of the two countries would of itself prove an insurmountable barrier to this; and consequently, like his predecessors, Sir George Grey has no personal knowledge either of our wishes or our requirements. He cannot, therefore, take that prominence in a Scottish debate which his position would seem to require; and the duty which ought to be performed by a member of the cabinet is usually intrusted to a subordinate. In this way Scottish public business receives less than its due share of attention, for the generality of members, observing that cabinet ministers take little share in such discussions, naturally enough attribute their silence to a certain degree of indifference, and are careless about their own attendance. All this, which involves not only scandal, but positive inconvenience, would be cured, if a return were made to the older system, and a secretary of state for Scotland numbered in the roll of the cabinet. The want of such an arrangement is positively detrimental to the interests of ministry; for, during the last session, they have assuredly gained but few laurels from their northern legislation. Four or five bills, purporting to be of great public importance, have been withdrawn, and one only, which establishes a new office connected with the Court of Session, has been graced by the royal assent. Among the lapsed bills are those which form the subject of the present paper; but they have not yet lost their vitality. On the contrary, we are led to infer that, in the course of next session, they will again be introduced, in some form or other, before parliament.

This mode of treatment is so unprecedented, that we cannot pass it over in silence. It may not be unconstitutional, according to the letter of the law; but if it be true, as we maintain it to be, that the people of Scotland have already protested against these measures, it does seem rather tyrannical that for the fourth time they should be compelled to organise a resistance, and to make themselves heard through petitions, lest the very absence of these should be held as an intimation of passive acquiescence. This kind of reasoning has actually been resorted to; and a very pregnant instance of it is to be found in the reported speech of the Lord Advocate upon the third reading of the Marriage Bill. "With respect to the dissenters in Scotland, there was not a single petition from them against the bill; therefore they were to be taken as being in favour of it!" This is a notable sequitur. In the first place, it is quite a new doctrine to maintain that because men do not organise meetings, or go out of their way to petition parliament against any measure, they must therefore be held as assenting. In the second place, it is rather a startling thing to find that men are expected to petition in a religious rather than in a social character. If this view be correct, no individual Anabaptist has any right to express his political opinions unless he petitions along with his congregation. No member of the Episcopal Church ought to have a voice in a secular matter unless he goes along with his diocesan. We are almost tempted to ask the question, whether congregations in Scotland are to be regarded as mere political clubs, or as associations for praise and worship? The town-councils of most of the large towns of Scotland have petitioned against the bills – are there no dissenters at any of those boards? One hundred and thirty parishes have separately recorded their detestation of the bills, not one parish has made the smallest demonstration in their favour, yet, according to the logic of the Lord Advocate, those that are silent must be held as acquiescing! It is remarkable, however, that if these bills really tend to confer such inestimable boons upon the people of Scotland, that stubborn race have been singularly reluctant to acknowledge the extent of the benefit. Nay more, it is certainly a most striking fact, that notwithstanding the religious divisions, which are more numerous here than elsewhere, it has been impossible to procure one isolated testimony, by an ecclesiastical body, in direct support of these singularly unfortunate bills. Lord Campbell, in his evidence given before the Committee of the House of Commons – of which more anon – indicates an opinion that the clergy of the Established Church of Scotland have been actuated in their unanimous and decided Opposition to the Marriage Bill by the desire to preserve a monopoly of celebrating formal marriages. If so, how is it that none of the dissenting clergy, in whose favour this monopoly was to be broken up, came forward in support of the measure? But the truth is, as we shall presently show, that no such monopoly exists at all, save in the imagination of the noble lord. By the law of Scotland, there is no distinction in favour of any sect, and clergymen, of whatever denomination they may be, have the right, and are in the daily practice, of celebrating formal marriages.

"I admit," says the Lord Advocate, "that the clergymen of Scotland are generally against this measure; but surely the house will think that, by this time, the third year of the discussion of this bill, these reverend gentlemen ought to have come forward with some substantial grounds for their opposition." We must fairly confess our inability to fathom the meaning of this remark. Two hundred and twenty-five petitions against this bill have emanated from the Established Church – at almost every meeting of presbytery and synod, the matter has been fully and thoroughly discussed – the moral and political objections to its enactment have been over and over again brought forward – yet still, in the eyes of the learned lord, there is a want of "substantial grounds." It is not enough, therefore, to say that a measure is unnecessary, immoral, and impolitic – it is not enough to assign reasons why these opinions are entertained, and to repeat them year after year. Something more must be done, according to this remarkably liberal view, before it becomes the duty of the legislature to give any weight to the general remonstrance – something "substantial" is required, but no intelligible definition has been vouchsafed of that substantiality. Nor does the following sentence by any means tend to sharpen the edge of our apprehension. "If they (the clergy) meant to say that they came here to assert that they had the power or right to supersede the interference of the legislature, they would put forward a right in them much greater than the Church of Rome asserted, because they took their right to interfere in reference to the rules of marriage, on the ground that it was a sacrament, which carried with it a degree of plausibility; and they required no witness to their marriage, or proof of the marriage, beyond that of the parish priest who performed the ceremony." Now, if any kind of meaning whatever is to be extracted from this sentence, it must be taken as an inuendo that the Church of Scotland, in petitioning against the bill, is directly or occultly preferring some ecclesiastical claim to interfere in the celebration of regular public marriages. The Church of Scotland asserts no claim of the kind, nor has it ever been so much as hinted that such a right was inherent in that body. The church does not seek to interfere with the legislature. It neither has, nor claims ecclesiastical dominion or preference in the matter of marriage. As a Christian communion and a Christian church, it has entreated parliament not to pass a measure which, justly or not, it considers as hurtful to the moral character of the people, and in doing so, it has been actuated by no motive save a due regard to its high and holy functions. If such considerations as these are not sufficient to justify the right of petitioning, it is difficult to understand why that right should be exercised at all. Must a pounds-shillings-and-pence interest be established, before the Church of Scotland can be allowed to approach the legislature on such a question? In our mind, the absence of all pecuniary interest, and the utter abnegation of any kind of ecclesiastical monopoly, are the strongest reasons why the opinion of the Church of Scotland, in a matter such as this, should be listened to with reverence and respect.

Having thus disposed of the church, though in a manner, we should think, scarcely satisfactory to himself, and not at all to his auditory, the Lord Advocate summarily remarks of the petitions against the bill, that "as proof to be relied on of a general feeling throughout Scotland, they were worthless and insignificant." It may be useful for intending petitioners to know what sort of demonstration they must be prepared to make, if they wish their remonstrances against any government measure to pass the limits of worthlessness. It is always advantageous to learn what is the last definition of the true vox populi, in order that there be no mistake or misinterpretation of its extent. We turn to the admirable speech of Mr M'Neill, the learned Dean of Faculty, and we find the following analysis of the extent of the lay opposition: —

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

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

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

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

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

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

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

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

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

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

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.

The bill declares that henceforward marriage shall be contracted in Scotland in one of the following modes, and not otherwise: – 1st, By solemnisation in presence of a clergyman; or, 2d, by registration, the parties proposing so to marry appearing "in presence of the registrar, and there and then signing, before witnesses, the entry of their marriage in the register."

It is evident, however, that without some precaution for publicity, the registrar's office would be as much a temple of Hymen as the blacksmith's forge at Gretna-green, and accordingly, previous to registration – that is, legal marriage – residence for fourteen days was required; and, besides that, a written notice to the registrar, with the names and designations of the parties, seven days previous to the fated entry. A copy of such notice was to be affixed upon the door of the parish church for one Sunday, and this was to be the whole of the publication. Notwithstanding this, if the registrar chose to take the risk of a penalty, and allow the parties to sign the register without their having proved their residence or given notice of their intention, the marriage was, nevertheless, to be valid and effectual.

Worse regulations, we are bound to say, never were invented. Why select the church door? Why post up the names amidst lists of candidates for registration, notices of roups, and advertisements of the sale of cattle? Is not the present mode of announcing the names within the church more decent than the other, and likely to attract greater notice? But the whole thing is a juggle. The bill gives ample facility for evasion, should that be contemplated; for it is easy to divine that, with the whole proof in his own hand, and no check whatever placed upon him, no registrar would be hard-hearted enough to refuse dispensing with the preliminaries in any case where the amorous couple were ready and willing to remunerate him for the risk of his complaisance.

So much for marriage by registration, which, instead of throwing any obstacle in the way of ill-advised or hasty unions, would, in effect, have a direct tendency to increase them. But the case is absolutely worse when we approach the other form of marriage, which was to supersede that solemnity which is at present in every case preceded by the formal proclamation of banns. The provisions of the bill were as follows: —

No clergymen could solemnise a marriage, unless,

1st. Both or one parties should have been resident for fourteen days within the parish in which the marriage was to take place; or,

2d. In some other parish in Scotland: the certificate in both cases to be granted by the Registrar; or,

3d. Unless both or one of the parties had been for a fortnight a member or members of the congregation resorting to the church or chapel in which the clergyman solemnising the marriage usually officiates; or,

4th. Unless they had similarly attended some other place of worship; the same to be certified by the minister of such congregation; or,

5th. Unless they could produce the registrar's certificate of a week's notice; or

6th. Unless they had been regularly proclaimed by banns.

Such is the species of hotch-potch, which it was seriously proposed to substitute, instead of the present clear, simple, cheap, and decent mode of celebrating regular marriages; and it is not at all surprising that hardly one native of Scotland could be found to raise his voice in favour of such an enormity. So far from publicity being obtained or increased, it would have afforded the most ample facilities for the celebration of marriage without the slightest warning given to the friends of either party. In reality, this pretended mode of marriage in facie ecclesiæ, would have been far more objectionable than the simple method of registration; for, in the latter case, the registrar, if he did his duty, was bound to give some kind of notice; in the former, none whatever was required by the clergyman. What is a member of a congregation? Abounding as Scotland is in sects, we apprehend that any one who pays for a sitting in any place of worship is entitled to that denomination. For ten shillings, or five shillings, or half-a-crown, a seat may be readily purchased in some place of worship; and if any one held that seat for a fortnight, he was to be entitled, according to this bill, to ask the officiating minister to marry him, without any further process whatever. If it should, however, be held, that no one is a member of a congregation unless he is in full communion, all difficulty could have been got over, by resorting to the fourth method. The member of the Established Church had simply to ask from his minister a certificate of his membership, and, armed with that, he might be legally married anywhere, and by any kind of clergyman, without the slightest notice to the public! We confess that, when we arrived at this portion of the provisions of the bill, we could scarcely credit the testimony of our eyesight. We have heard it proclaimed, over and over again, by those who supported the measure, that its principal aim was to put an end to hasty and ill-advised marriages; and on perusing the evidence, we found Lord Brougham most clamorous against the facilities given by the present law of Scotland for tying the nuptial knot, without due warning afforded to parents, more especially when young noblemen were concerned. We look to the remedy, and we find that, without the assistance of the registrar, marriages might, under the provisions of this bill, have been contracted before a clergyman, at a minute's notice, without any banns at all, and no formality, beyond payment of seat-rent for a single fortnight in any chapel, or a certificate to the same effect! A proposal more preposterous than this – more irreconcilable with decency – more injurious to the interests of society and of religion, it is really impossible to conceive; and if the language which has been used regarding it throughout Scotland has been generally temperate, we apprehend that the temperance has been entirely owing to a somewhat inaccurate estimate of the full extent of its provisions. It is, in our judgment, emphatically a bad bill; and we trust that after this, its third defeat, it will never again be permitted to appear in either house of parliament. Our representatives have done no more than their duty in giving it their most strenuous opposition; and, though a few individuals may mourn over the frustrated hopes, occasioned by the ruthless blight of a crop of expected offices, they can look for no sympathy from the people. We can assure Lord John Russell, that he never acted more wisely than in refusing to force through the final stages such unpalatable bills as these; and we hope that, in future, he will give the Scottish people credit for understanding their own affairs, and not suffer their deliberate and expressed opinion to be treated with undeserved contempt, simply because it may be possible, by "making a house," to swamp the suffrages of their representatives.

THE CAXTONS. – PART XVI

CHAPTER XCV

The stage-scene has dropped. Settle yourselves, my good audience; chat each with his neighbour. Dear madam in the boxes, take up your opera-glass and look about you. Treat Tom and pretty Sal to some of those fine oranges, O thou happy-looking mother in the two-shilling gallery! Yes, brave 'prentice boys, in the tier above, the cat-call by all means! And you, "most potent, grave, and reverend seigneurs," in the front row of the pit – practised critics and steady old play-goers – who shake your heads at new actors and play-wrights, and, true to the creed of your youth, (for the which all honour to you!) firmly believe that we are shorter by the head than those giants our grandfathers – laugh or scold as you will, while the drop-scene still shuts out the stage. It is just that you should all amuse yourselves in your own way, O spectators! for the interval is long. All the actors have to change their dresses; all the scene-shifters are at work, sliding the "sides" of a new world into their grooves; and, in high disdain of all unity of time as of place, you will see in the playbills that there is a great demand on your belief. You are called upon to suppose that we are older by five years than when you last saw us "fret our hour upon the stage." Five years! the author tells us especially to humour the belief by letting the drop-scene linger longer than usual between the lamps and the stage.

Play up, O ye fiddles and kettle-drums! the time is elapsed. Stop that cat-call, young gentleman! – heads down in the pit there! Now the flourish is over – the scene draws up: – look before.

A bright, clear, transparent atmosphere – bright as that of the East, but vigorous and bracing as the air of the North; a broad and fair river, rolling through wide grassy plains; yonder, far in the distance, stretch away vast forests of evergreen, and gentle slopes break the line of the cloudless horizon; see the pastures, Arcadian with sheep in hundreds and thousands – Thyrsis and Menalcas would have had hard labour to count them, and small time, I fear, for singing songs about Daphne. But, alas! Daphnes are rare; no nymphs with garlands and crooks trip over those pastures.

Turn your eyes to the right, nearer the river; just parted by a low fence from the thirty acres or so that are farmed for amusement or convenience, not for profit —that comes from the sheep, – you catch a glimpse of a garden. Look not so scornfully at the primitive horticulture; such gardens are rare in the Bush. I doubt if the stately King of the Peak ever more rejoiced in the famous conservatory, through which you may drive in your carriage, than do the sons of the Bush in the herbs and blossoms which taste and breathe of the old fatherland. Go on, and behold the palace of the patriarchs – it is of wood, I grant you, but the house we build with our own hands is always a palace. Did you ever build one when you were a boy? And the lords of that palace are lords of the land, almost as far as you can see, and of those numberless flocks; and, better still, of a health which an antediluvian might have envied, and of nerves so seasoned with horse-breaking, cattle-driving, fighting with wild blacks – chases from them and after them, for life and for death – that if any passion vex the breast of those kings of the Bushland, fear at least is erased from the list.

See, here and there through the landscape, rude huts like the masters' – wild spirits and fierce dwell within. But they are tamed into order by plenty and hope; by the hand open but firm, by the eye keen but just.

Now, out from those woods, over those green rolling plains, harum-scarum, helter-skelter, long hair flying wild, and all bearded as a Turk or a pard, comes a rider you recognise. The rider dismounts, and another old acquaintance turns from a shepherd, with whom he has been conversing on matters that never plagued Thyrsis and Menalcas, whose sheep seem to have been innocent of foot-rot and scab, and accosts the horseman.

Pisistratus. – My dear Guy, where on earth have you been?

Guy (producing a book from his pocket with great triumph.) – There! Dr Johnson's Lives of the Poets. I could not get the squatter to let me have Kenilworth, though I offered him three sheep for it. Dull old fellow, that Dr Johnson, I suspect; so much the better, the book will last all the longer. And here's a Sydney paper too, only two months old! (Guy takes a short pipe or dodeen from his hat, in the band of which it had been stuck, fills and lights it.)

Pisistratus. – You must have ridden thirty miles at the least. To think of your turning book-hunter, Guy!

Guy Bolding, (philosophically.) – Ay, one don't know the worth of a thing till one has lost it. No sneers at me, old fellow; you, too, declared that you were bothered out of your life by those books, till you found how long the evenings were without them. Then, the first new book we got – an old volume of the Spectator!– such fun!