REGISTERING BIRTHS, &c. (SCOTLAND) BILL. (Hansard, 7 June 1847)

§ The LORD ADVOCATE

said, that although the debate just closed had occupied some time longer than was anticipated, he did not regret having given way to the hon. Member for Birmingham, who had so ably vindicated the character of a deceased Member of that House. He rose now with reluctance when he considered that the Motion he had to propose was that the House resolve itself into a Committee that day three months, and that, consequently, the debate could not lead to any direct practical result. But as he had not yet had any opportunity of calling the attention of the House to measures of great importance to Scotland, and as the state of the public business had prevented him from explaining the grounds upon which he introduced these Bills, or which induced him to adopt the present course, he trusted the House would, for a short time, extend to him its indulgence. The first of these measures had for its object to establish in Scotland a proper system of registration of births, deaths, and marriages. The importance of such a measure was a matter upon which it was unnecessary for him to say a single word. As furnishing statistic information of the greatest value, its importance could not be doubted; and as regarded the interests of individuals and families, it was equally great. It was with this view, and bearing in mind the utility of such a system in a public and private sense (although the Bill had met considerable opposition in Scotland), that he wished to introduce a complete system of registration of births, deaths, and marriages. In considering the course to be taken upon the introduction of such a measure, it was impossible to overlook the circumstance that for ten years a system of registration had been carried on in this country. To the working of that system he had turned his attention, and had availed himself of the experience gained through its operation, in order to apply it to Scotland with greater effect. He proposed to have a head department in Edinburgh, under the charge of a registrar general, where the most important registers should be kept, and where parties seeking information might consult them, and obtain cheap and authentic certificates. Connected with this, he proposed following the system in England, that there should be districts, placed under superintending registrars, and sub-districts, in which the registration should be effected by the local registrars. The districts would consist of 231 counties, and of some large towns: the sub-districts, of divisions of those, consisting, in most instances, of parishes, according as the convenience of registration might require. In all this he followed the English system; but with some advantages, because he proposed to make the sheriffs' clerks the superintending registrars—persons fully qualified for the discharge of that duty, and who were already provided with offices proper for the custody of important papers—by which there would be a considerable saving of expense. This brought him to the question of expense— the most important, perhaps, of all—and in which originated the opposition to the Bill. On that subject he necessarily conferred with his right hon. Friend the Chancellor of the Exchequer, who had said, "I will do for Scotland what has been done for England. Part of the expense of the system —that portion which in England is borne out of the Consolidated Fund—shall be so defrayed in Scotland; but I will not go further, for I cannot authorize payments out of the Treasury for Scotland which in England are not borne by the Treasury, but by local taxation." That answer, he much feared, was conclusive. However anxious he was to lighten the burdens of the people of Scotland, he owned that, whether as connected with Government or as a Member of Parliament, he did not see that his right hon. Friend could have done more. But he knew he was not to be moved on that point. The portion of the expenses paid in England out of the public treasury were the expenses of the central department—the important item of stationery, and the payment of the superintendent registrars. With respect to marriages in the sub-districts, as the expense of registering a marriage was paid by the contracting parties, no portion would have to be paid by the Treasury or by local taxation, and thus they were brought to the only part of the expense to be raised by local taxation, and that was the expense of registering, in the first instance, births and deaths. He wished again to observe, that this was the only expense to be provided for by local taxation—every other expense being paid out of the Treasury, or, in the case of marriage, by the parties— and it was because of the local taxation that the Bill had latterly been opposed. Now, before stating the manner in which he proposed to raise the funds necessary for registering births and deaths by taxation, in the manner of a parochial rate, 232 or, in short, by assessment on the principle of the poor-rate, he would draw the attention of the House to the utmost amount of that taxation. The Registrar General of England reckoned on an aver-age of years, from 1838 to 1846, that, for every thirty-one of the population, there was one birth, and that for every forty-five there was one death. He supposed it would not be a very extravagant assumption to imagine the average births and deaths bore in Scotland the same relative proportion to the whole population. Taking, therefore, that average, and assuming that the population in Scotland was 3,000,000, which was 400,000 more than appeared by the census of 1841, they would have most probably in the year, of births 96,700, and of deaths 66,600, making a total of 163,300 entries in the year. In each sub-district, for the first twenty entries there was to be paid 2s. 6d. The further entries were to be charged at 1s. Then, assuming the number of parishes or sub-districts to be 900, there would be 18,000 entries at 2s. 6d. each, and requiring 2,250l The other entries, at Is. each, would require about 7.260l; and the total expense of registration amounted to the sum of 9,500l. If they took the population as it appeared in the census of 1841, they would find that the total expense would not exceed 8,500l. Now, if they took another view of the question and referred to parishes, they would find there were 268 parishes out of 900 in which the population was under 1,000, and the average population of which was 711. The expense of registering the probable number of births and deaths in those 268 parishes could not exceed 3l. 10s. for each parish per year. Upon the same principle, in 275 other parishes in which the population varied from 1,000 to 2,000, and the average of the population might be taken at 1,818, the whole expense of registering only amounted to 6l. 10s. per annum. Those two numbers, viz., 268 and 275, exhausted one-half of the parishes in Scotland. Going a step higher, he took 217 parishes in which the population varied from 2,000 to 4,000, and where the average was 2,764, and he found the expense of registering would amount to a sum not exceeding 9l. 10s. per annum. The local taxation for the purpose of registering would of course be higher in large towns and populous places; but he had shown that, in 760 parishes, containing one-half of the entire population of Scotland, the expense was as low as 233 3l. 10s. to 6l. 10s. and 9l. 10s. per annum. The question then arose, "How is the money to be raised?" He could not get it from the Consolidated Fund, neither could he get it from the Treasury. If he had proposed to raise it by a tax upon landed property, the landlords would have said, "It is a great hardship upon us: why should personal property be exempted?" But if he put it upon personal property, he appealed to hon. Gentlemen connected with Scotland whether there was any other mode of assessment, except that provided for the poor rate, by which personal property could be charged. He would not object, if the landed proprietors preferred that course, to lay the whole burden on them; but if they objected, it appeared to him, under the circumstances, most legitimate that the tax should take the shape of a parochial rate: 1st, because the poor could not afford to register themselves; 2ndly, because the registration was for the service of the poor law, as the registers would give the most important evidence on questions of settlement; and, 3rdly, because, finding the machinery already in operation for the collection of the poor rate, it appeared to him that he followed the best, the cheapest, the most convenient, and the fairest course when he assimilated the system to that pursued in England, and made the rate a parochial one. He should have been exceedingly glad to have received suggestions with respect to any other kind of assessment, but none were made to him; and he found himself fortunate in having already the model of a cheap and easy assessment for so small a purpose. The objections of those who considered the system open to exceptions, on the ground that it would occasion confusion, would be easily overcome by the providing that separate and distinct accounts should be kept of the moneys so collected and applied. He had asked those who objected to the measure, "What better mode of assessment can be devised?" He had said, "Do you realty mean to say that, not being able to propose a better mode of assessment—hopeless of relief from the Treasury—do you mean to say we are to have no registration in Scotland, because you will not consent to raise this small sum by means of a parochial rate?" To this direct appeal he could get no satisfactory answer. It was said, indeed, that any additional burden on the poor rate would make it more unpopular than it was. The reply was, do not put it on the rate. 234 Only levy the expense on the principle of a parochial rate, and by the same collectors, though for the separate purpose. In deciding who should be qualified to become district registrars, he had at first excluded schoolmasters; but he had not done so from any desire not to encourage that most meritorious class of the community, but solely from the belief that their multifarious duties would not permit them to discharge the duty. Those persons had too many duties to perform already; and by a return furnished to him, he found that in 800 parishes there were belonging to the profession 706 session-clerks, and 423 inspectors of the poor, obliged, in the discharge of their duty, to walk through the entire parish. He also found that a great number of them discharged various duties independently of those connected with their profession as teachers; and his attention had been directed to one case in which the schoolmaster was session-clerk, inspector of the poor, collector of poor rates, clerk of inheritors, and holder in all of no less than seven offices, besides that of schoolmaster. It was said that there were registers kept in Scotland; so also there were in England previous to the Registration Act; but that was no reason why a more efficient system should not be established; and he proposed to do what had been done in England, to leave all those registers as they were. It would be found impossible to use them with advantage for the establishment of a general register in Scotland more than in England. Then, for the other measure before the House, it was impossible for any person acquainted with the law of Scotland not to see the facilities which a system of registration would afford for amending the law of marriage, as regarded its constitution. The law of Scotland required nothing but the consent of the parties to constitute a marriage. The requisite age was 14 in males, and 12 in females. There was no need of the consent of parents or guardians, nor the least necessity for the intervention of the ministers of religion. But what was still more important was, that, even as respected consent, there was no fixed rule of evidence. It might be proved by parol evidence, by writing, or even by circumstances. The law was right in principle when it made the constitution of marriage depend on consent. But in requiring no special form of interchanging such consent —in admitting it to be proved in modes much more loose and vague than those al- 235 lowed in any other contract, it gave room to the most serious and scandalous abuses; and courts of law were every day obliged to decide in lowed in any other contract, it gave room to the most serious and circumstances of such difficulty, and upon proof so equivocal, that it was not too much to say that a party might find himself married against his will by the sentence of a court. Then the law requiring no public ceremony—no public acknowledgment — contenting itself with latent consent—gave the most fatal encouragement to clandestine marriages—all the more dangerous that such marriages, though concealed from all the world, though known only to the parties, were as obligatory as the most formal marriages made in facie ecclesiæ. Nor could cither party, by silence, or by allowing the other party to contract without objection a second marriage, bar himself or herself from asserting their status, and setting up the first, though to the annulment of the second. Any other doctrine would give occasion to voluntary divorce. The evils arising from this uncertainty in the mode of contracting marriage, and from the obligatory nature of the contract, though kept altogether latent—could not be exaggerated, and was of daily experience. To show this, he would advert to one or two cases by way of illustration. The first was one of great importance, and had given rise to one of the ablest judgments that had ever been delivered by one of the most distinguished Judges on the English bench, the late Sir W. Grant. A gentleman, who was afterwards of high title and princely estate, contracted marriage, by writing, with a lady in Scotland, in 1802 or 1803 —the only contract was an interchange of writings; and the marriage was kept strictly private—known only to the parties themselves. The gentleman subsequently came to England; and in 1808— being a man in that respect of no honour, and thinking perhaps that the evidence of his marriage had been lost, whereas it had been carefully preserved—paid his addresses to a lady belonging to one of the first families in England, and was accepted and married; but the lady was not married a year when the marriage was annulled at the suit of the lady who was the consenting party to the first marriage. Fortunately there was no issue of the second marriage; but the English lady was reduced to a state of distress and degradation, if there could be degradation where there was no moral guilt, by discovering that she married the husband 236 of another living wife. The second case was that of a gentleman, who had lived for many years in concubinage with one of his domestic servants, and had several children by her. One day he called up all his servants, and this woman and her children, and without any religious ceremony, said, in the presence of his household, "I acknowledge this woman to be my wife, and these to be my children." It was not proved that she made any similar declaration; but she did not dissent from it. He then left the room, wont about his grounds, gave some directions to his overseer, returned to his own room, and shot himself dead. Various questions arose —first, as to the sanity of the man, and it was proved that he was perfectly sane; next, as to the validity of the marriage, which turned upon whether it was his intention to many the woman, or only to leave her a widow, and entitle his children to his estate, to the disherison of those who would otherwise have been entitled to it. The question was closely argued, but ultimately the House of Lords decided the marriage to be good, and his child now possessed the estates, which were worth upwards of 20,000l a year. He could cite many other instances, but he thought these were enough to prove that the law of Scotland on this subject was most disgraceful, and without a parallel in the civilized world. In another case, a party had been married in the presence of a clergyman, who pronounced the nuptial benediction; but the validity of the marriage was challenged, on the ground that the parties never intended to be married. The want of intention was not proved either precedently or contemporaneously; but the marriage was declared by the House of Lords to be invalid, not from any circumstances preceding the marriage, or contemporaneous, but solely upon inferences drawn from the conduct of the parties subsequent to the ceremony. He would now call attention to the statute law. By an Act passed in 1661, and another in 1695, clergymen were prevented, under pains and penalties, from celebrating marriage. Under these Acts the Episcopal clergy first assailed the Presbyterian clergy; the latter, when they got the upper hand, used the Acts against the Episcopalian and Roman Catholic clergy. These last, with the exception of an Act passed in favour of the Episcopal clergy, continued subject to these disabilities down to 1833 or 1834, when an Act was passed allowing clergymen of all persua- 237 sions to celebrate marriage, only there must be a proclamation of the banns. In Scotland, however, the proclamation of the banns is read by the session-clerk in an inaudible voice, before the service begins, and when very few persons are present to hear them, and all this not on three consecutive Sundays, but on the same day; and it often happened that the banns were proclaimed in a church not attended by the parties, or their friends, or acquaintances. If, however, the session clerk gave a certificate that the banns were duly proclaimed, you can make no further inquiry. It was said that the statute law discouraged all marriages not made in presence of a clergyman, and countenanced those only where a religious ceremony was performed. But how stood the fact? If you do not resort to the clergyman —if you leave him entirely out, and make a simple declaration before witnesses, you are subject to no pains and penalties; but if you should resort to a clergyman, or employ a religious ceremony—if you read at your marriage the ritual of the Church of England or the Church of Rome—if you go through any form of celebrating a marriage—but have not got your proclamation of banns, the celebrator of that marriage, though unquestionably a clergyman, is liable to a prosecution. The only chance of a prosecution in the matter was, when a religious ceremony was used; if the marriage was without religious ceremony, the statute law of Scotland imposed no penalty. Now, in the Bill before the House, he did not propose to affect any marriage celebrated in a place of worship. He was quite content that the clergy of the Church of Scotland, Roman Catholics, and all Dissenters, should celebrate marriages as they had been heretofore accustomed. But the Bill required that when the parties did not choose to be married by a clergyman, they should be married before the registrar; and where the marriage was to be so contracted, provision was made for much greater publicity than was or could be obtained by proclamation of banns. Leaving out of question the marriages contracted by Quakers and Jews, which stood upon grounds of their own, he reduced the forms of marriage to be used in Scotland to two—viz., marriage by clergymen, and marriage before the registrar. It had been said that he proposed to make marriages valid only for a certain time, and that their validity should depend upon registration previous to a certain period. 238 He proposed nothing so absurd—his proposal was, that the marriages to be celebrated, either by a clergyman or by the registrar, should be accompanied by certain forms; and when those forms were complied with, the marriage was legal and binding. The forms to be gone through in the case of marriages before the registrar, he had made very stringent; great preliminary publicity was required; and the marriage was contracted by the parties signing on the register a declaration of their marriage—such a declaration, by the law of Scotland as it now stood, constituted marriage; but if that rendered such a form of marriage less acceptable to the people of Scotland—if they would prefer the ceremony to be performed by a clergyman, because such a marriage was less public, he did not regret that parties should be so compelled to have recourse to the church, and even thought that some good would be accomplished. He was sorry that, from the manner in which the objects of the Bills had been misrepresented, he had found it necessary to enter at such length into the subject, because his intention was then to move that the two Bills be committed on that day three months. The reason why he had come to this conclusion was not so much pressure of other business, or the late period of the Session, still less was it the force of the objections which had been made against the measure; but because he believed there was a strong opinion throughout the whole of Scotland in favour of delay. He should employ the interval between the present time and the assembling of next Parliament in fully considering such of the objections as were worthy of attention, though he should not bestow a thought on some he had lately heard, which savoured more of ignorance and bigotry than of a fair consideration founded on a desire for the amendment of the law. The right hon. Gentleman concluded by moving, that the Bill be committed that day three months.