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