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