§ Order for Second Reading read.
having presented petitions praying for an amendment of the present law respecting border marriages, moved the second reading of this Bill; and said, that, in asking the House to agree to the measure, his object was, not to make any trifling, unimportant, or mere theoretic change in the marriage law of Scotland, but he desired, in the most practical manner possible, to redress an evil the magni- 230 tude of which could scarcely be described without an appearance of exaggeration, and which was at present lowering the character, injuring the habits, and destroying the morality of the people of the northern counties of England. He thought he should able to prove satisfactorily to the House that the measure which he now proposed would not interfere in any way with the established principles of the Scotch law—that it would not alter the constitution of the marriage law as established in Scotland—and would not render penal or prohibit any act which was not rendered penal or prohibited by the existing law: all he sought was to give effect to the principles of that law, because those principles had in some respects become obsolete, and having become obsolete, it was necessary to renew them in accordance with the forms of modern legislation, in order that the evils he had hinted at might be redressed. According to the present Scotch law, a marriage might be effected in Scotland simply by a declaration of consent in the presence of witnesses. There was not the slightest investigation as to the condition of the parties giving that consent; and the consequence was, that minors, children, boys and girls in their teens, in the north of England, were constantly going over the Border to contract these marriages. There was no inquiry as to whether the parties had been married before or not, and in numberless instances persons were remarried again and again. A strong feeling was entertained in Scotland against marriage with a deceased wife's sister; but, under the present law, a man might marry with perfect impunity, not merely his deceased wife's sister, but his own sister, or the sister of his wife while his wife was living. Many marriages were contracted while the persons contracting them were in a state of intoxication, and had only known each other a few hours before the ceremony took place. No public record was kept, and a man was enabled to desert his wife and children and to leave them chargeable to the parish without the parish having any means of redress against him. He had received numerous letters complaining of the present law; in one of which, from a poor man in one of the Border towns, it was stated that servants on the hiring day, becoming intoxicated, finished the day's carouse by a marriage, which generally only lasted for that term. When the next hiring day came round either the man 231 wanted another woman, or the woman another man. In one town, where the writer of this letter resided, one man had five wives, with whom he had contracted marriages of this description, all of whom were living. Other men in the same town had four, some three, and others two wives. The fact was, that, as soon as any difference occurred, one or other of the parties contracted another marriage. He had also received communications from clergymen and others in the Border counties, all complaining of the evils of the present system, showing how it operated in the several districts, and urging him to proceed with this Bill. As a general rule, it might be said that the irregular marriages to which he referred were contracted principally by the people on the English side of the Border, who crossed over to Scotland for the purpose, and he believed that the fact of the people of Scotland not following the practice to any great extent was to be attributed to the efforts made by the parish ministers to prevent such marriages. According to a statement published by the governor of the General Assembly, the marriages of this description in eighteen parishes, where both parties were resident Scotch, were twenty-five in 1850, twenty-six in 1851, and twenty-nine in 1852; of parties one of whom was Scotch, there were eleven in 1850, six in 1851, and fifteen in 1852; and of parties both of whom were English, 1,091 in 1850, 1,093 in 1851, and 1,110 in 1852. It appeared from the report of a committee of the General Assembly of the Church of Scotland that, in 1850, 6,207 couples contracted marriage in England before the registrars, while during the same year 1,091 English couples were married on the Scotch Borders; and the committee recommended that, in order to repress the evil, all judges and magistrates should be requested to carry out the Clandestine Marriage Act of 1601. He wished the House to understand that the present Bill would not violate in the slightest degree the principles of the law of Scotland with respect to marriage. According to the Scotch law there were four different forms in which marriage might be contracted. One was by a regular public marriage performed by the Church, which was the mode by which ninety-nine in every hundred were celebrated; the second was by consent before witnesses, which was the mode he wished to prevent; the third was by declaration in the court of session; and 232 the fourth was by cohabitation as man and wife. His measure referred only to marriage by exchange of consent, or the mere declaration of consent in the presence of witnesses. All he proposed to do was to impose penalties upon persons contracting these marriages, and upon public-house keepers and others who made a trade of celebrating such marriages. A Scotch Act of Parliament of 1698 provided that the celebrators of marriages of this description should be punishable by pecuniary fine, by imprisonment, or by banishment; and therefore he was not violating the principle of the Scotch law in proposing to visit similar offences with moderate penalties. The Bill provided that any persons—blacksmiths, innkeepers, toll-gatekeepers, or others—celebrating these clandestine marriages upon the Border should for the first offence be punished by a fine of 10l., and, in the event of non-payment, by imprisonment for three months; and for a second offence, which would show that the person charged made a practice of celebrating such marriages, by a fine of 50l., or six months' imprisonment. The Bill would also impose a moderate penalty upon parties who contracted marriages of this kind. He hoped the House would assent to the principle of the Bill, which he believed would have the effect of preventing these clandestine marriages.
§ Motion made and Question proposed, "That the Bill be now read a second time."
§ THE LORD ADVOCATE
agreed with many of the remarks of his hon. and learned Friend, and would admit that the Bill would not make any alteration in the principle of the law of Scotland, but would only increase the penalties which were imposed by the existing law upon parties contracting these irregular marriages. Indeed it was so far from being the case that these irregular marriages were not punishable by the existing law, that one of the most usual modes of preserving a record of such marriages was for parties who had contracted them to go before a justice of the peace to declare their offence, and, having been subjected to the small fine inflicted under the law, to obtain a certificate of the conviction. The object of the hon. and learned Member was, to render a penalty which was now merely nominal a real punishment, and therefore it could not be said the Bill violated the law of Scotland. According to the law of Scotland, marriage was constituted by con- 233 sent of the parties, and the feeling of the people was, that it was contrary to the interests of morality to throw obstacles in the way of marriage. There could be no doubt that on the borders of Scotland the law was in many instances abused, especially in the case of natives of England who were not aware of the effect of the marriage law of Scotland. He (the Lord Advocate) entertained no objection to the principle of the Bill; but he certainly doubted whether it would have the effect of preventing these irregular marriages. The Bill had been objected to, and he thought with some justice, on the ground that it was directed against the poor, and would not affect the rich; but the real evil which his hon. and learned Friend desired to suppress was not so much deliberate clandestine marriage as that kind of union which took place upon the Border, and which could hardly be called marriage at all in a proper and legitimate sense, but which was, in point of fact, merely a mode of producing and prolonging immorality. He regarded the clause in this Bill which imposed penalties upon persons who made a trade of celebrating these irregular marriages as one which would be productive of very beneficial results; for he was ashamed to say that instances had occurred where men holding Her Majesty's commissions of the peace had been engaged in this traffic. Although he could not pledge himself to support the Bill in its future stages, he hoped that, as it was a meritorious endeavour to remedy an unquestionable evil, the House would consent to read it a second time.
§ MR. ELLIOT
considered, that the Bill proposed to deal in a very petty manner with a question of vast importance to the people of Scotland. There was no doubt that the marriage law of Scotland required amendment, and he regretted that the general measure for the amendment of that law which was introduced by Lord Rutherford when he was Lord Advocate, had not been adopted. If this Bill would merely affect the Border marriages, which took place at Gretna-green, Coldstream-bridge, Lamberton-toll, and Berwick, he (Mr. Elliot) would not object to it; but the terms of the first clause were so general that the measure would interfere with the current practice of marriage throughout Scotland. He considered that a matter of so much importance ought to be dealt with by a large and comprehensive measure, and he hoped the Lord Advocate would at an 234 early period be prepared to propose such a measure. The present Bill imposed a penalty upon the parties to irregular marriages, but it did not render such marriages void. Then, what real remedy would it apply to the existing evil? He (Mr. Elliot) believed that these irregular marriages would never be checked unless they were made void. There were at this moment in Scotland many persons who did not know whether they were really married or not. In many cases marriage was contracted by a man giving what were called "lines" to a woman declaring her to be his wife, and if the woman lost these "lines" she had no legal evidence of the marriage. He begged to move, as an amendment, that the Bill be read a second time that day six months.
§ Amendment proposed, to leave out the word "now" and at the end of the Question to add the words, "upon this day six months."
§ LORD LOVAINE
thought the hon. Member for Roxburgh (Mr. Elliot) had not shown any sufficient grounds for the rejection of this measure, the object of which was merely to define and to enforce practically the existing law of Scotland. No one who saw the state of things on the Border could deny that the Bill was necessary. All the English Members wanted was protection for England, and it would be too hard to compel them to wait for a revision of the whole marriage law of Scotland. It had been said that the Bill was levelled against the poor; but the same thing had been done with success in England in the suppression of the Fleet marriages, which were analogous to irregular marriages in Scotland, in the reign of George II. A doubt had been expressed as to whether the Bill would effect the object at which it aimed. On that point he must remind the hon. Gentleman that the punishment imposed by this Bill upon the parties to irregular marriages was not confined to a pecuniary penalty, but that in default of paying the penalty such parties would be liable to imprisonment; and he believed that regulation would have a material effect in checking clandestine marriages, for the great majority of the persons who now contracted these marriages were not in a position to pay a penalty of 10l., and, therefore, he had no doubt, that the alternative punishment of imprisonment would act as a powerful check in preventing such marriages. He (Lord Lovaine) considered that there was the greatest necessity for amending the law of marriage in 235 Scotland, which, in its present state, was a scandal to a Christian country. It had been said very truly that this Bill would affect the poor—but in what way? Its object was to endeavour to promote their morality, to prevent them from contracting marriages which led to misery and debauchery, and to cause them to respect the law of God and man. He hoped, therefore, that the House would not assent to the amendment, but would allow the Bill to go into Committee.
§ MR. NAPIER
was of opinion that this Bill would not have any effect in repressing the evil against which it was directed. He considered that the proper course would be to declare that if persons not domiciled in Scotland went to that country in order to contract marriages there, according to the Scotch law such marriages should be void. In Scotland, although a religious ceremony was not deemed essential to the constitution of marriage, yet the custom among the respectable classes was to have the religious ceremony, and this consequently created a difficulty in the way of legislation on the subject. But by far the greater number of irregular marriages were those of persons from England and Ireland, who went to Scotland for the purpose of availing themselves of the privileges of the Scotch law. The Bill did not prohibit or prevent those marriages, because it required no licence; neither did it meet the case of minors declaring themselves of age—a case of which had recently occurred where one of the parties was only fourteen years of age, and which had introduced inconceivable misery into a family. He thought one practice in Scotland with respect to marriage demanded speedy amendment. He alluded to the custom of betrothing young persons by declaration of marriage, even at the early ages of twelve or fourteen, and thus irrevocably binding them to a conjugal union. He believed that this Bill, which merely imposed penalties upon parties to irregular marriages, without declaring those marriages void, would not prevent any but persons who were too poor to pay the penalty from violating the law; and they would, therefore, by adopting the measure, practically subject the poor to the operation of a law which would not affect the rich. He would on these grounds give his support to the Amendment.
said, he felt bound to oppose the Bill of his hon. and learned Friend, which, while its professed object 236 was to prevent the irregular marriages which took place on the Borders of Scotland, would have the effect of throwing the whole marriage law of Scotland into confusion. The measure was quite as likely to produce as great an excitement in Scotland as that of the late Lord Advocate (Mr. Rutherford). The penalties contained in the Bill, 10l. or 50l., as the case might be, would be cheerfully and at once paid by rich people; whereas, with respect to the poor (the question of illegitimate children being taken into consideration) those penalties might prevent marriages that would be highly expedient. Any Bill calculated to remove the evils that were admitted to exist should receive his cordial support; and it was only because the Bill now before the House would not only remove those evils, but would increase and aggravate them, that he must refuse to consent to the second reading of it.
§ MR. DUNLOP
denied that the Bill would introduce confusion into the law of Scotland; it would not effect any alteration in the existing law, but would render it more efficient. According to the present Scotch law, if a clergyman married parties without the previous proclamation of banns, he was liable to a most serious punishment; whereas if a blacksmith or a toll-keeper, or any other person in the same station of life, married persons without a religious ceremony, he experienced little inconvenience in consequence. This was a distinction which ought not to exist, and the Bill would in some degree tend to remove it. To throw out the Bill altogether when the second clause was universally admitted to be a good one, would be highly inexpedient. It would be much better to let it go to a Committee. He admitted that the general state of the law required consideration, but that was no reason why this partial remedy should be refused.
§ MR. WALPOLE
did not think it possible to make such alterations in Committee as would in reality improve this Bill. What was the evil which the Bill proposed to remedy? Its object was to prevent persons domiciled in England going to Scotland, and there contracting marriages in a way which they could not do in England; and the mode by which it was proposed to prevent this was to impose on such persons a penalty of 10l.; and on any person who solemnized such marriage a penalty also of 10l., or, in case of a second offence, a penalty of 50l. Now the effect would be, that a very large proportion of the class of 237 offenders to whom the Bill would apply would pay the penalty, not only for themselves but for the persons officiating, and would thus be able to carry out these marriages notwithstanding the state of the law. Thus, the mischief which it was desired to prevent would not be remedied, while a greater anomaly than now existed between the law of the two countries would be created. The learned Lord said the present law of Scotland subjected the solemnisers of these marriages to a fine of so many marks, and that it was now only proposed to extend the penalty so as to prevent them being solemnized in future. But it was obvious that the Bill would not have this effect. It might prevent the poor from contracting such marriages, but it would not stand in the way of the rich. Then, instead of putting down immorality, it was practically saying that, for the sum of 10l. or 20l. a man might contract one of these irregular marriages. This being the essence of the Bill, he did not see how it could be improved in Committee. At the same time he concurred with those who were anxious that the Government should undertake the settlement of this question on broad and comprehensive grounds, and endeavour, as nearly as possible, to put the marriage law of the two countries on the same footing. The anomalies now existing were very great. By the law of Scotland you might now contract a marriage in that country that would have the effect of transmitting personal property in one direction and landed property in another, in consequence of the difference which existed in the laws of the two countries. The law of divorce was also so materially different that a man and woman might be made no longer husband and wife on the one side of the Tweed, while they would remain husband and wife on the other. These were evils which the Government would do well to endeavour to remedy; and he hoped they would consider the subject with a view to the introduction of a better and more comprehensive measure than the present.
said, that had the Lord Advocate held out any hope that a larger measure of amendment of the Scotch marriage law would be introduced by the Government he should not have pressed the present Bill upon the House; but he did not see the slightest sign of such a result, though it might be easily effected by the introduction of a clause in the Scotch Registration Bill. Two or three 238 years ago a larger measure was submitted to the House, which was opposed in the strongest terms by the Scotch Members and stifled; and there was not the slightest reason for supposing that any such large measure would now receive the support of those Members or of the Government. Was it not most improper to stifle a large measure because it was too large, and strangle a small one because it was too small, when it was admitted on all hands that the marriage law of Scotland was in a bad state, and that any improvement was desirable? The rejection of the Bill he held in his hand would encourage the grossest immorality and cause the greatest unhappiness among the people of the Border counties. Hon. Members had in their eye what were commonly known as Gretna Green marriages. Among people of the middle and upper classes those marriages, however, were perfectly notorious, and the parties were generally married again in a regular way. What the Bill sought to redress was an evil of another kind altogether. At the fairs and markets of Carlisle and other towns in the North, neighbouring people met for the first time in their lives, drank together, and then went over the Border by hundreds at a time, where they got married by a blacksmith, and were thus plunged into lifelong misery and unhappiness. This was the evil the Bill sought to prevent, and the penalties it contained would be sufficient for the purpose. It did not at all prevent any parties who might be so inclined from being married in a regular way at their own churches. The evil of which he complained had been very much increased by the facilities for getting over the Border presented by the railways. He could not undertake to say that the Bill would entirely put a stop to that evil, but it would certainly decrease it to a very great extent; and he had not heard one argument to prove that it would produce the least evil to the people of Scotland, with whose laws it did not in any way interfere; and he should certainly press the second reading of the Bill.
§ SIR GEORGE GREY
said, he was afraid, considering the result of past attempts to remove the anomalies existing in the marriage laws of the two countries, that Her Majesty's Government would not have much encouragement in any efforts they might make in that direction. No doubt there were parts of the law of Scotland with reference to marriage which were productive of much inconvenience both in 239 England and Scotland; and to those parts of the law his hon. and learned Friend the Lord Advocate would be ready to apply a remedy, when the Government should see that there was a disposition on the part of the Scottish Members and the House generally to support such a measure. His late lamented Friend (Lord Rutherford), when Lord Advocate, introduced a Bill to amend the marriage law of Scotland, but there was such a general outcry against the measure that it was abandoned by the Government, and he did not think they were very likely at any early period to introduce a similar measure. With reference to the Bill before the House, great weight, no doubt, attached to the objections taken by the right hon. Gentleman the Member for Midhurst; but he did not think that his hon. and learned Friend who brought in the measure had in view the class of marriages to which the right hon. Gentleman referred. He rather suspected that the hon. Member for Newcastle, in proposing an increase of the fine, aimed at the real cause of many of those marriages—namely, the very cheap means of conveyance afforded by the railway, and the very low fees for which the marriages in question were celebrated. It was well known that in some of the northern parishes the clergyman was so much underbid by the blacksmith, that sometimes a whole year passed with scarce a single marriage taking place in church, to the great annoyance of the incumbent. For the prevention of clandestine marriages of the higher class the penalties proposed in the Bill would be utterly insufficient, and therefore it was a formidable objection to the Bill, that it was directed against the marriages of the poor, while it would leave unchecked those of the higher classes. Still, the evil was one very much felt among the lower classes in the north of England, where young people could cross the Border with the greatest ease by means of the railway train and enter into hasty marriages, which they repented of when they came to years of discretion. The system also naturally led to prosecutions for bigamy, and was in other respects productive of evil. At the same time, though the Bill might operate as a check on these local marriages, there was much weight in the objection that the check would be felt by only one class of society. Under all the circumstances, he put it to his hon. and learned Friend whether it was worth while to press the Bill to a division?
begged to corroborate the statements of the hon. and learned Member for Newcastle respecting the facility with which marriages were made up in the northern counties. They were scarcely considered valid, and hardly a single fair took place without several cases of bigamy resulting from it. He hoped the House would apply an effective remedy to so great an evil.
§ MR. INGHAM
said, that, in addition to the facility of being married, there was also to be considered the facility of deception afforded by the present state of the law. The boundary line between England and Scotland was, in many districts, an imaginary one, and he knew cases in which honest women were deceived into the belief that they were being married in Scotland according to the Scotch law, whereas they were on the English side of the Border; and the marriage was consequently invalid. He thought that the enactments would be greatly improved if the penalties were extended to every one who was accessory to an irregular marriage. He thought that the Bill might be made an extremely valuable one by means of a few alterations in Committee.
§ MR. J. G. PHILLIMORE
must oppose the Bill; for he objected to partial, incomplete, and local legislation. Instead of applying a great remedy to a great evil, the House was asked to pass a measure of trifling legislation to an evil of very minor importance.
§ MR. J. FORSTER
trusted the House would consent to a second reading of the Bill, and allow it to be referred to a Select Committee.
§ Question put, "That the word 'now' stand part of the Question.
§ The House divided:—Ayes 40; Noes 143: Majority 103.
§ Words added; Main Question, as amended, put, and agreed to.
§ Second Reading put off for Six Months.