§ The LORD ADVOCATE
, in moving the Second Reading of these Bills, said, he was not aware that any distinct objection had been taken to the principle of them. As to the complaints which had been made of the time at which they had been brought forward, he begged to remind the House that both the principle of the measures and the machinery by which it was proposed to carry them out had been already fully discussed. Bills had been introduced, read a second time, and passed through Committee pro formâ, and then withdrawn for certain alterations. The present Bills had been introduced in the House of Lords at the beginning of the year, and copies of them had been sent, by his direction, to every town and borough in Scotland. Since March not fewer than 300 copies had been so distributed. With respect to the principle of the measures, the same considerations which in 1837 had led to the introduction of a system of registering births, deaths, and marriages in England, must equally lead to the adoption of such a system for Scotland; and the object was to establish there what had been found to work so advantageously in this country. The expense for the whole of Scotland would not exceed 9,500l., It would be regulated in the same manner as in England, and would be subject to 1165 the control of Parliament by an annual vote. One ground of opposition to the Bill was, that it was proposed to connect the payment of the expenses with the; charges for the relief of the poor. If the rate were large, he should not he prepared to connect it with the poor-rate; both the establishments would be distinct, and there would be no mixture of accounts; and if there was a proper machinery, and if the accounts of what was to be applied to the poor, and what was to be applied to registration, were kept distinct, there could be no objection to the connexion. No one denied that the expense of registration should be borne by a parochial rate the re was another Bill, for altering and amending the law of marriage in Scotland. It would he useless to introduce a Bill for registering marriages without altering the law of marriage. The law of Scotland as to marriage was this—it adopted the principle that consent alone made marriage. That was the principle of the general law of Europe, and at one time was the law of England. The law of Scotland did not require the presence of a priest, nor the intervention of any religious ceremony. The law of Scotland considered marriage to be a civil contract, but it did not provide any particular mode by which that contract was to be proved. Marriages in Scotland might be had in this way—parties might say to each other, no witnesses being present—" We agree to marry;" that would be a good marriage if the parties acknowledged their marriage afterwards, or without such acknowledgment if witnesses were present at the agreement. Or writings might be interchanged between the parties, which would constitute a valid marriage, and this was often done, not for the legitimate purpose of marriage, but in order to enable a woman to establish her status as a widow, and thereby to obtain a large sum from an insurance office, or other funds. There were other modes of marriage. If a man promised a woman to marry her, and if intercourse took place between the parties, that gave effect to the promise, and the marriage was hold to be rendered effectual by consummation. Formerly the oath of the party was required, but now consummation alone was held sufficient. A looser marriage law, he believed, was not known in any civilised country, and it was a reproach to Scotland that such uncertainty should exist. Cases occurred of conflicting decisions of the courts as to the validity of Scotch marriages. 1166 There was a recent case upon which the Lord Ordinary decided (me way, and the Court of Session another; and when the case went before the House of Lords last Session, after hearing an argument which lasted a fortnight or three weeks, the House of Lords overruled the decision of the Court of Session, and affirmed that of the Lord Ordinary, whereby the validity of the marriage was established, whereas the parties in that case never intended to contract a marriage, and the decision led to the grossest hardship. There was a case in which a man in the presence of his servants said of a woman with whom he lived, "This is my wife, she saying nothing, and a few hours afterwards he shot himself. It was decided that he was sane, and after a litigation of many years it was decided by the House of Lords that the marriage was good; and under that decision an estate of 20,000l. a year went from the heir-at-law. He did not mean to interfere with the principle of the marriage law of Scotland or with those parties who chose to go through a religious ceremony before a clergyman—he left that as it was; but with regard to other marriages, called irregular marriages, what he proposed to do was this:—Here was a registry; if parties did not wish to marry before a clergyman—and he did not propose to compel them—they must go to the registrar, and have their marriage recorded, and thereby secure themselves and their issue, as well as the public, against the evils which did and must arise from marriages so loosely and easily contracted. Was the Legislature to encourage clandestine marriages? He had never heard a person bold enough to say that such a relation might be contracted and the contract concealed, and that each of the parties might have an opportunity of denying it. Wishing not to interfere with the principle, but only to establish a record, he said that if parties did not go before a clergyman, they should not resort to an equivocal mode of proving their marriage; they should go before the registrar, and if they did neither, he said all other modes should be excluded, and the marriage should he no marriage. It had been objected that he was giving validity to irregular marriages. What was an irregular marriage? If bans were not proclaimed in church, and if, without proclaiming bans, the parties went to a clergyman and he married them, that was an irregular marriage; and, in that case, the contriver of the marriage was 1167 liable to a certain penalty. What were these bans? It was not said that the bans should be published in a certain manner; they might be read three times on one Sunday, when only servants were present in the church, or nobody might hear them, and if a certificate were given that the bans had been proclaimed, the marriage might be celebrated by a clergyman, who was not subject to a penalty. That was the security which the law of Scotland afforded to marriages, and that was called encouraging regular marriages, and discouraging irregular ones. Suppose the bans were not proclaimed, and no clergyman was applied to, and the marriage was absolutely irregular. Suppose two parties stopped a man in the street, and said, "This is my wife," and "this is my husband;" or suppose they went before a magistrate—all these were irregular modes of marriage; but there was no penalty by the law of Scotland. But if some of the decencies of life were preserved—if a clergyman married the parties—the law of Scotland said, because you resorted to any religious ceremony at all, the clergyman shall be liable to a heavy penalty because the bans were not proclaimed. If you resort to religion without proclaiming the bans, the clergyman is subject to penalties; but if you give up religion altogether, and have nothing to do with a clergyman, it is no matter; the marriage is good, though irregular, and there is no penalty. It could not be said that he encouraged clandestine marriages by putting down all modes of marriage except by a clergyman or before a registrar; yet petitions had been sent to that House complaining that this Bill encouraged clandestine and irregular marriages. The learned Lord concluded with moving that the Bill be read a second time.
said, this Bill had been considered in almost every district in Scotland, and it was a matter well worthy the attention of the House, that in the course of the last year as many as two hundred and thirty-nine petitions from various parts of Scotland were presented against the Bill, and in favour of it only five petitions. At present there existed but one feeling on the subject, and that was decidedly opposed to the measure. Now, supposing that there was not clear evidence of that fact, he would ask the House, did their experience of the Scottish people load them to think that that portion of Her Majesty's subjects were so fickle as to entertain 1168 strong opinions at one side of such a question last year, and change those opinions to the other side in the present Session? He thought he had very strong grounds for complaining that at this period of the Session the Bill now before them was hurried forward with unseemly haste. It was only on the 28th of July, that it had been printed, and it was therefore impossible that copies could even by this time have been transmitted to the north of Scotland. He was not opposed to a Registration Bill, but he was decidedly opposed to the Bill then before them; and he should now move as an Amendment that it be read a second time that day three months.
§ MR. HUME
said, that as he was not opposed to the principle of either Bill, he should rather not vote in favour of the Amendment. He should wish to take the second reading of the Marriages Bill then, and postpone further proceeding on the subject until next Session. He did not deny many of the inconveniences which had been pointed out by the learned Lord, and he felt no indisposition to support a measure the object of which would be to make people cautious; but he thought it extremely unfair at such a period of the Session as the present, to press forward a measure of this kind, without giving the parties principally interested an opportunity of being heard. They were proceeding with this Bill without any request from the people of Scotland to that effect. The learned Lord, in bringing this Bill forward, plainly wished to carry the House with him; but what sort of a House did he address? Throughout the whole of his speech there were not forty Members present. It was like the manner in which it was endeavoured to pass the Bank Bill last year; and what was the result—a universal condemnation of the whole proceeding. He wished registration to take effect; but he objected to the first Bill, because he did not think it would furnish a fair and honest registration. Under it any man might register his own death or the birth of a child, or that of a child which was dead. He wanted to see something like the system of registration which prevailed on the Continent, where no registration was effected till witnesses were examined, and every species of fair investigation instituted. It was really too bad thus at the close of a Session to bring in such a measure. The Bill, in its present form, had been submitted to the Statistical Society—a body 1169 very competent to judge of its merits and its demerits. By them very serious imperfections had been pointed out; and the learned Lord agreed then to refer Bill to a Committee upstairs, after which the Bill was for a time at least withdrawn. That, certainly, was not an inexpedient proceeding, for the society had detected and exposed many grave errors. Let them make it a perfect measure, and it should have his support, but not otherwise. He could not assent to an imperfect measure, which was to be worked at an expense of 10,000l.; and he thought that the people of Scotland were fairly entitled to have such a Bill considered by a Committee upstairs. He should be well pleased, therefore, if the Lord Advocate did not at present call upon them to go into Committee, especially when it was recollected that during the present year not one petition had come from Scotland in favour of the Bill. He should vote against the further progress of the Bill in every stage; but as he was not against the principle, he should agree to the second reading upon the understanding that they were in the present Session to proceed no further, otherwise he should vote in favour of the Amendment.
was most anxious to carry out the wishes of his constituents by opposing the Bill which the learned Lord had brought under their consideration. But, however desirous he might be to resist every stage of the measure, he could not remain in town for that purpose, for a corps of yeomanry to which he had the honour to belong had been called out upon service in the disturbed districts, and he therefore must bring his Parliamentary attendance to a close. Serious opposition had been raised against the measure, and though many persons approved of the Bill, and admitted the soundness of its principle, yet they had never been told what the expenses of it were to be. Ought they, under such circumstances, to proceed to deliberate upon the details of such a measure? The Session was just closing—he saw by the newspapers that the Ministerial Gentlemen were to have their fish dinner on the 19th. Was it reasonable, then, to ask them to go on discussing such a Bill when there was not even a quorum present? He should move that the House be counted.
§ Upwards of forty Members were present.
§ The debate proceeded.
said, a question before the House, connected with this Marriage 1170 Bill, was, whether it was politic and wise to cut off the outlet for hasty, and it might be irregular, marriages, which existed in consequence of the actual state of the law in Scotland? The point for a father of a family to decide, was, whether, if his daughter was unhappily carried off in the way that sometimes happened, he would wish she should be married within twelve hours, or kept for a fortnight. Both English and Irish Gentlemen were interested in this subject; and it appeared extremely likely that it would be for the welfare of the female part of the community that the law should continue as it was. He knew that hon. Gentlemen on the opposite side were anxious for what an English classic called "the preservation of the female game;" but if they would suppose the case applied to themselves, they would discover that they had a countervailing interest in maintaining the law as it stood.
§ MR. F. SCOTT
said, the religious ceremony ought to be that portion of the proceedings connected with marriage which the House should especially recognise, and he wished that they could enforce a greater degree of strictness than had yet been put into operation with respect to the law of marriage. He believed that no one now denied the necessity of registration; at the same time, he hoped the House would not at so advanced a period of the Session proceed further with the Bill.
MR. HENRY DRUMMOND
observed, that every one agreed in this, that the Bill then before them was the same measure that had been before the people of Scotland since last April twelvemonth, and, although everybody agreed in the principle, yet hon. Members seemed to contend that there was not now time to consider the measure—they agreed in the principle, but they did not like the machinery; and that reasoning, if good for anything, went to show that they ought at once to go into Committee on the Bill. He felt considerable suprise that hon. Members did not appear to be aware of the inconvenience which resulted from the present state of the law upon all occasions where it became necessary to inquire into cases of disputed succession. One case he might mention, it was that of a woman, who for some time was known in Glasgow by a particular name; she afterwards went to America, and in consequence of some legal proceedings which had been taken, as many as 300 persons of the same name started into existence, which stopped the whole of 1171 the proceedings that had been instituted with regard to the property that had in the first instance occasioned the litigation. Marriage consisted of two parts, the religious part and the civil contract. With the latter alone had the State to do, in order that it might know to whom property should descend, leaving every person of right feeling, who desired also to receive the Messing of God in respect to the act of marriage, to decide where he would go for that blessing. He therefore thought it would he necessary to leave out of the Bill all the religious part; but he trusted that the learned Lord would press both Bills through Parliament during the present Session.
§ MR. ELLIOT
The law of marriage in Scotland was disgraceful, and attended with serious consequences, particularly to the female part of the community. He thought that the statements of the learned Lord must convince the House of the absolute necessity of some change in respect to it. He saw no reason for putting off the Bills, as their nature was perfectly well known by the people of Scotland.
§ MR. STUART WORTLEY
was sensible of the mischiefs experienced by the present state of the marriage law in Scotland, and of the imperious necessity of some change. Therefore, if the learned Lord would be satisfied simply with the affirmation of the principle, that some alteration of the nature proposed should take place, both in respect to marriages and registration in Scotland, he would readily assent to the second reading of each of the Bills; but, thinking it would be difficult, if not impossible, to give anything like due consideration to the details of the measures in the present Session, he felt bound to urge the hon. and learned Lord not to press them beyond the second reading. If the Marriage Bill stood alone, so great was the necessity of some change in the law, that it might possibly pass during the present Session; but, mixed up as it was with the machinery of the other Bill, it would require an elaborate discussion; and he would ask whether there was any reasonable prospect of an opportunity for such discussion being afforded at that period?
§ The LORD ADVOCATE
said, in reference to the course suggested by the right hon. Member for Buteshire, that he must press the second reading of the Bills unconditionally. At the same time he did not mean to say that he was not aware of 1172 the importance of some observations which had fallen from Scotch Members; and he should consider whether those observations were such as to induce him, in reference to the period of the Session or the state of the House, not to proceed with the Bills. He must, however, be understood as not pledging himself not to proceed with them.