HC Deb 21 June 1876 vol 230 cc183-224

Order for Second Reading read.


The object of the Bill which I shall to-day ask the House to read a second time is to amend the law of Scotland on a point in relation to which it is admitted on every side—by those who oppose this Bill as well as by those who support it—to stand urgently in need of reform. English and Irish Members will be surprised to learn that no person, of whatever religion he may be, can in Scotland be married by a clergyman without submitting himself to what has been held by the highest Courts of Law to be a sacred ordinance of the Established Presbyterian Church, and having the banns of marriage publishedin the church of the parish in which he resides. Under the laws of England and Ireland this is not so, and any person who chooses can lodge his notice with the district registrar, and obtain the requisite certificate or licence for the celebration of the marriage. But in Scotland a religious marriage can only be celebrated after proclamation of banns in the Established Church, and any minister—Presbyterian, Roman Catholic, or Episcopal—celebrating a marriage except upon production of a certificate of such proclamation of banns, is liable, according to Acts still unrepealed, to banishment furth the kingdom under pain of death, and to such pecuniary and corporal pains as the Lords of the Privy Council shall be pleased to inflict. The only exception from this rule that no regular marriage can be celebrated without the proclamation of banns, is to be found in the Jewish communion and the Society of Friends, in whose case the necessity for the customary proclamation of banns has been by statutedone away with. Before proceeding further it may be well to explain that any person may be married without banns who chooses to dispense with the services of a clergyman and content himself with an irregular marriage. But happily now-a-days irregular marriages are considered more or less discreditable, and few persons care to incur the stigma attaching to a marriage which, however binding, has to be registered as irregular. Persons may, to speak popularly, be married by a Sheriff or by a registrar, but no marriage can be registered as regular which has not been celebrated by a minister after the publication of banns in an Established Church. Were it only irregular marriages contracted before a Sheriff or registrar and subsequently registered which were recognized by the law of Scotland, this stigma would not attach. But in the great majority of cases irregular marriages, whether arising out of verba de præsenti, habit and repute, or promise cum copula, are never registered at all, and there is so much difficulty in proving them, that not only do constant disputes spring out of them respecting successions, but in cases of bigamy and desertion arising in connection with them, the laws for the prevention of these very serious crimes against society cannot be enforced. Whatever diversity of opinion, therefore, exists as to the desirability of continuing to recognize irregular marriages, it is universally agreed throughout Scotland that everything should be done to encourage regular marriages, and to render these irregular marriages as little frequent as possible. Now the existing practice as regards the proclamation of banns has directly the opposite tendency. In the first place, while any person who has resided three weeks in Scotland can contract an irregular marriage, no person can contract a regular one who has not lived in the parish in the church of which the banns are proclaimed during the preceding six weeks. Then the charges are high. A Return presented to the House within the last few months, onthe Motion of my hon. Friend the Member for Dumfries (Mr. Noel), shows that the fees paid for proclamations during the year 1874 amounted to upwards of £17,000, and that the average cost was 10s. 10d. per proclamation, or about twice that sum per marriage. In most parishes it is customary to charge a certain sum for the regular proclamation, on three successive Sundays, a considerably larger one for the ceremony if compressed into two Sundays, and a still larger one for it if compressed into one. In a few parishes no such distinction is made, and in a few, proclamations extending over three Sundays are charged at the highest rate; but even the lowest rate inmany parishes is as high as 10s. or 12s., and in a case of a bride and bridegroom who may have the misfortune to reside in separate parishes where such a high minimum is fixed, it is impossible to obtain a regular marriage without the preliminary disbursement of £1, or even more for proclamation fees. Throughout Scotland, the average minimum charge shown in the Return is somewhat lower, but I do not think I am above the mark when I say that where persons about to marry reside in separate parishes, the average minimum fees for proclamation, which they must pay if they wish to be married regularly, amounts to between 10s. and 12s. 6d. Now the result of this high charge, according to the concurrent testimony of a large number of most reliable witnesses before the Marriage Laws Commissioners of 1865, is to encourage concubinage, or, to speak more correctly, and to use the language of my hon. Friend the senior Member for Edinburgh (Mr. M'Laren,) who was one of the witnesses referred to, to encourage "a kind of concubinage which is called marriage, and perhaps is intended to be marriage"—to encourage, I may add, a form of irregular marriage of the very worst description. If we look for any counterbalancing advantages in the present system, we look in vain. The object of the proclamation of banns is, of course, to secure publicity, and to prevent the contraction of bigamous and illegal marriages. The plan at present pursued was adopted in Roman Catholic times, when, and for long after Roman Catholicism had given way to Presbyterianism, it doubtless answered its purpose excellently. There were then no large centres of population such as have since sprung into existence. There was then no machinery by means of which so effective a publicity could be attained. The people of Scotland almost in one body belonged to the Established Church. No regular marriage could be celebrated but by a minister of the Established Church, and the session clerk, to whom was entrusted the direction of the proclamation of banns, was also practically the registrar of marriages. Moreover, in those days the Kirk sessions were entrusted with the charge of the poor, and the fees received for proclamations went towards their maintenance. Now every one of these circumstances has been changed. The Established Church of Scotland no longer comprises a majority of the population. Ministers of every denomination are allowed to celebrate regular marriages, the registration of marriages is conducted by the civil registrar, and the proportion of the fees which finds its way into the pockets of the poor is infinitesimally small. As to the uselessness of the ceremony, I might quote abundant evidence; but as this point is hardly likely to be disputed, it will, I think, sufficiently support my position to quote a single sentence from the Report of the Marriage Laws Commissioners before referred to. In England they say the practice of proclaiming the banns— Is practically useless and inconvenient in very populous places. In Scotland, being confined by law to the Established Church, and being performed three times over on a single Sunday, just before the commencement of divine service, it can be of very little, if any, use, particularly in great towns or cities; and it is not unreasonably complained of by the Scottish Nonconformists, who are married by their own ministers, as being in their case vexatious as well as useless. This brings me to another branch of the subject, and leads me to ask the question, How came matters into this condition? How came it that while in no part of the United Kingdom is there the same opportunity for contracting irregular marriages as in Scotland, in no part of it is the contracting of regular marriages fenced round with the same restrictions?—for in no part of the United Kingdom is it necessary for a person who desires an ecclesiastical marriage to reside six weeks in one parish before he can obtain a licence to be married, and in no part of it must he, to whatever persuasion he may belong, as the indispensable preliminary to it, submit to what has been pronounced by the very highest authority—by the Court of Session and by the House of Lords—to be a purely ecclesiastical ordinance of the Established Church. Well, the history of the present state of things is this. The Scottish law being founded on the Roman law, from the very earliest times embodied the maxim that consent constitutes matrimony. But in the olden days of ecclesiastical intolerance, whatever Church happened for the time being to be supreme claimed a monopoly in the celebration of marriages accompanied with any religious ceremony, and did everything in its power to procure the legal suppression and punishment of clandestine marriages by the ministers of every other persuasion. Thus, before the Reformation the Roman Catholics had secured a monopoly of regular marriages, and this monopoly was seized as part of the privileges of the National Church, as the Episcopalians or Presbyterians respectively succeeded in acquiring ecclesiastical supremacy. The system of proclaiming banns of marriage in the Established Church survived through all the different régimes, and as each régime succeeded its predecessor, each asserted its claim to the sole right of celebrating regular marriages. Each stigmatized all marriages celebrated otherwise than by one of its own ministers, after proclamation of banns in one of its own churches, as irregular and clandestine, and enacted against them sundry pains and penalties. During the long reign of the present Established Church of Scotland this monopoly in regular marriages remained in force practically down to the year 1834. It is true that more than a century previously an exception had been made in favour of Episcopalians who had taken the oath to Government, but with that small exception no clergyman of any other denomination than the Established Church—no Dissenting Presbyterian, or Methodist, or Roman Catholic could celebrate a regular marriage in Scotland. I need not here enter into a discussion of the effect which this piece of ecclesiastical tyranny had upon the Scottish people, or how it drove them into the very system of irregular marriages which it was intended to suppress. Suffice it to say that in 1834 this ancient disability was repealed, and the power of celebrating regular marriages was thrown open to ministers of every persuasion. But the reform then effected stopped short half way. It left unrepealed the Clandestine Marriage Acts of 1661 and 1698, according to which any clergyman celebrating a marriage otherwise than after the proclamation of banns is liable to be banished from the kingdom and to such pecuniary and corporal penalties as the Lords of the Privy Council may choose to inflict. This law, it is true, has not been lately enforced, simply because it has not of late been broken. But when, shortly after 1834, some of the newly-enfranchised Dissenting clergymen attempted to set it at defiance, intimation was conveyed to them from the Crown Office that it would be put in force against them, unless their irregular proceedings were at once discontinued. The anomaly has been greatly aggravated by a decision pronounced only last year by the Court of Session and confirmed a few months since by the House of Lords—Harper v. Hutton. Up to the date of that decision it was practically supposed that the proclamation of banns, although a duty entrusted to the officials of the parish church, was really a civil ceremony, and in accordance with that supposition the right of proclaiming banns of marriage was up to last year confined to the parish churches of parishes quoad omnia. Thus it occurred that it was in a comparatively small proportion only of Established Churches that these proclamations were made; and any disability which might attach to ministers belonging to other denominations to marry persons who had not been proclaimed in the parish churches was shared by the ministers of the quoad sacra Established churches and chapels of ease. The recent decision has, however, altered this, and according to it the proclamation of banns in the eye of the law is a purely ecclesiastical institution, and consequently not only is every quoad sacra parish entitled to proclaim the banns of every person residing within it, but every person living within a quoad sacra parish, desirous of marrying, must have his banns of marriage proclaimed in the church of that quoad sacra parish. The language adopted by the Judges in the case to which I refer declares in the most unmistakable terms the purely ecclesiastical nature of the ceremony. Thus, the Lord President, in the course of his speech, said— The Reformers, though they rejected the idea of marriage being a sacrament, and assumed it to be a civil contract, always claimed the right to regulate the preliminaries to marriage as being an ordinance of the Church, and so inter sacra, and I can find no distinction drawn by the Reformers in this respect between marriage and baptism or any other sacrament of the Church….In any aspect, this matter of the proclamation of banns is essentially ecclesiastical, not in the sense of consistorial, but as being within the regulation and control of the Church, and particularly of the minister of the parish. Now we have seen that even under the old theory, the Marriage Laws Commissioners, referring to the fact of proclamations being in Scotland confined to the Established Church, stated that the system was— not unreasonably complained of by the Scottish Nonconformists, who are married by their own ministers, as being in their case vexatious as well as useless. Is it to be wondered that, now that proclamation has been authoritatively pronounced to be not a civil ceremony, but a sacred ordinance of the Established Church, the Dissenting bodies of Scotland should feel their repugnance to it greatly increased? Is it to be wondered that the discontent and dissatisfaction which had so long slumbered broke forth into open agitation? The decision in Harper v. Hutton will, however, clear away a great practical difficulty. Hitherto the officials of the parish churches had enjoyed a monopoly of the fees derived from the proclamation of banns and supposed themselves to have a vested interest in them. Now as these fees amounted to £17,000 a-year, the sum necessary to buy them up was the first obstacle in the way of a reformer. Now, however, Harper v. Hutton decided that no such vested interest exists. And what has taken place since then will have a still more serious effect in dispelling any lingering idea as to the vested rights of kirk sessions or session clerks in the matter which may still remain. For the General Assembly of the Established Church, taking advantage of the principle so clearly laid down in the recent decision, with the object of meeting that objection raised to the expense of the present system has in an overture to the presbyteries of the Church recommended that henceforth no fee exceeding 2s. 6d. shall be charged for the proclamation of banns, thereby reducing, at a stroke of the pen, the previous average charge of 10s. 10d. to less than a fourth of that sum. This, however, was not the only change in the present system enjoined by the Established Assembly at its last meeting. Its overture to the presbyteries, in fact, proposes a change in that system quite as sweeping as anything proposed in this Bill. The Assembly virtually admitted that the old practice, in which proclamations were, in a very large number of cases, made three times on one day, was illegal, for it recommended that henceforth they should be made on three separate Sundays. It further admitted that for purposes of securing publicity the system was altogether unsatisfactory, for it recommended that henceforth a list of the notices should be posted on the church doors for 14 days before the last day of proclamation. Now, Sir, so far as regards the first of these changes—the recommendation that henceforth proclamation must be made in every case on three successive Sundays—its effect would be to aggravate the obstacles at present placed in the way of regular marriages. For, whereas it is possible under the whole system for two persons to get married after a residence of six weeks and two days in their respective parishes, it would not be possible if this proposal were adopted for them to get through the prescribed preliminaries under eightweeks and two days. When it is remembered that the only restriction upon irregular marriages is a residence of one of the couple for three weeks in Scotland, it is easy to perceive the impolicy of throwing any additional obstacle in the shape of parochial residence in the way of regular marriages. Having said so much on the subject generally, I may dispose of the provisions of the measure now before the House in a few words. The Bill proposes to do away with those pains and penalties which at present attach to the celebration of a religious marriage without the publication of banns, and to substitute for the present system as the legal preliminary of all regular marriages, a notice published through the district registrar. It may be asked why not simply abolish the necessity for any preliminary notice, if, as appears to be universally admitted, the system of proclamation pursued for so many years has been utterly inefficient as a means of ensuring publicity? Well, there are very good reasons, it appears to me, for not adopting this course. In the first place, the distinction between a regular and an irregular marriage in Scotland consists not in the fact of registration—for irregular marriages may be registered as well as regular ones—but in the twofold fact of publication of notice of the intention of marriage, and the celebration of the marriage by the minister of a recognized religious sect. It seems to me, therefore, that it would be going altogether in the wrong direction to reduce that distinction by eliminating the element of notice of intention and recognizing solely the element of religious celebration. Especially would it be so, where, as in Scotland, that celebration does not take place in church or according to a prescribed form, but ordinarily at the house of the minister or that of the bride, and according to any form which the celebrator may think fit to adopt. Moreover, I think that an effective publication of intention to marry is most desirable as a preventive of illegal and bigamous marriages, and in this I am so completely borne out by public opinion in Scotland, that I am not aware of any serious proposal from any section of the community to simplify matters by abrogating these preliminary notices altogether. Now, publicity is provided for in the Bill before us by enacting that notice shall be given to the district registrar, who shall expose all such notices in a part of his office accessible to the public, and leave them thus exposed for a week before issuing the certificate upon which a marriage may take place. This, it will be observed, is very much the plan which the General Assembly proposes to adopt, and it is probably the most effective means by which publicity could be secured. I have been asked, Why not advertise the notices in the local papers? My reply is, that to do so would entail expense, whereas according to my plan the notices will be advertised in the most effectual manner, and that without expense. For if ordered to be advertised, the expense would prevent the notices being inserted in more than one paper circulating in each town or district, and the fact of their being there paid for as advertisements would prevent their free insertion by the other papers of the district. On the other hand, I believe that if it were put within the power of every local paper to publish them or not, as it chose, the great majority of papers would consider such announcements as of quite as much interest as those of bankruptcies, and would insert them as news. But not only will this publicity be attained through the newspapers, but from what I have heard I think it more than probable that various of the churches would, if the work were thrown open, proclaim banns of intended marriages in which their own congregations were interested. In preparing this Bill, my object has been, in the first place, carefully to abstain from any interference with the Scottish marriage law; and, in the second, bearing in mind the facilities with which irregular marriages can be contracted in Scotland, to avoid the imposition of any avoidable impediment in the way of regular marriages. With this view, the fee which registrars are authorised to charge in connection with each notice is 2s., or considerably less than half the sum now charged as a minimum in the great majority of parishes. Then the Bill proposes to curtail the total period of residence in a district from six weeks, as it now stands, to 21 days, as is the case with registrars'certificates in England. Twenty-one days seem to me quite long enough for all practical purposes, and if a person may under Lord Brougham's Act contract an irregular marriage after 21 days' residence in Scotland, I cannot conceive what advan- tage is to be gained by requiring of both the man and woman six weeks' residence in their respective parishes as an indispensable preliminary to a regular marriage. In dealing with the subject I propose to amend the present law in one or two points in which it is at present very defective. At present, for instance, there is no machinery for dealing with the objections raised by persons who "forbid the banns"—no punishment for making wilfully false statements in filling up the schedule for the session clerks. This Bill proposes to deal with these points; but as they are mere matters of detail, and as, if the House accords the Bill a second reading, I intend considerably to modify its details in Committee, I shall not further allude to them at present. Now, Sir, as I said in starting, every section of the community is agreed that the old law of banns is altogether unsatisfactory and that it must be reformed. So far as I am aware, only three plans of reform have been proposed—(1) That which has been proposed by the Established General Assembly; (2) the throwing open of the right of proclaiming banns to Dissenting Churches; and (3) the plan proposed in the Bill now before the House. The plan adopted by the General Assembly, and which I have already described, will, I venture to say, satisfy no one. It is a significant commentary upon it that it was never heard of until it was hurriedly concocted by a Committee of the Assembly, called into existence by the fact of this Bill being before Parliament. The members of the Assembly were allowed no time for its consideration. Judging from the reports of the proceedings, the rev. gentleman who seconded the adoption of the plan could not have known of its existence half-an-hour before he acted as its sponsor. It was read over to him, and some 34 other ministers and elders who were present, only after he had made a speech in defence of this very Bill; and after a short discussion in that meagre house it was adopted, after a division, by a majority of but 24. Compare that with the expression of opinion in favour of my Bill, which has been before the country for months, which has been discussed in almost every Free and United Presbyterian Presbytery in the country, and which both the Free Assembly and the United Presbyterian Synod by unanimous resolutions resolved to support. The lowering of the fees would certainly be a step in the right direction, but in other respects the plan proposed by the Established Assembly aggravates the grievance of which not merely Dissenting Bodies but the marrying public generally have so long complained. The abolition of the convenient irregularity of proclamation three times on one day would prove very annoying in many cases. But the great objection to the scheme of the General Assembly is, that it places more plainly before the country than it has ever been placed since clergymen outside the pale of the Establishment were allowed to celebrate marriages, the fact that no person in Scotland can obtain a regular marriage without undergoing what a member of the Edinburgh Presbytery lately characterised as "if not exactly a sacrament, at least a very holy thing," and that no clergyman—Presbyterian, Episcopal, Roman Catholic, Methodist, or Baptist—can celebrate a marriage except on the production of a certificate that this sacred ordinance of the dominant Church has been complied with, under pain of banishment and fine. Not only so, but the action of the General Assembly brings out this most remarkable fact—that, as the law at present stands, if a majority of the Established Presbyteries throughout the country adopt the overture which has been sent down to them, the General Assembly will next year, without appealing to Parliament, and without consulting a single individual outside its own sect, be able to effect an entire change in the law relating to the proclamation of banns, and affecting not merely members of its own Church, but those of every other persuasion in Scotland. The second proposal—namely, that proclamation of banns should be allowed to take place in any recognized place of worship—is free from the objections to which the General Assembly's makeshift plan is open, but it is open to two objections equally fatal. In the first place, as many persons, especially those belonging to the smaller denominations, attend churches which are situated neither in their registration districts nor in the parishes in which they reside, it would be difficult to devise machinery which would enable the proposal to be worked out satisfactorily. In the second place, while a cumbrous and objectionable system would thus be inaugurated for the purpose of conciliating the Dissenting Bodies, it would be a system for which none of these Bodies have expressed the smallest desire. So far back as 1866, the accredited representatives both of the Free and the United Presbyterian Churches laid their views before the Marriage Laws Commissioners, and in both cases what they recommended was the plan embodied in this Bill—namely, that publicity should be given to the intention to marry through the agency of the officer entrusted with the duty of registering marriages—the district registrar, to wit. If this proposal were carried out, its effect would be to relieve Dissenters, lay and clerical, of an invidious and degrading disability. It has been attempted in some quarters to connect this Bill with the questions of the secularization of marriage and of disestablishment. It has nothing to do with either. The proclamation of banns in an Established Church may be an ordinance very sacred to the members of that Church, and there cannot be the smallest objection to its being voluntarily continued in their case, but it can do no more good to force every Free Churchman or United Presbyterian, every Episcopalian or Roman Catholic, to partake of that ordinance than it could do to make them, one and all, sign the Thirty-nine Articles as an indispensable preliminary to marriage. With the question of disestablishment, this Bill has nothing whatever to do. The Church of England possesses no such monopoly—has no such powers of regulating the preliminaries of religious marriages of Dissenters as that which the recent decisions has shown to lie in the hands of the Scottish Established Church. But no one will pretend to say that the want of that invidious control in any way weakens its real power or threatens to bring its existence to an end. The hon. and gallant Member for East Aberdeenshire (Sir Alexander Gordon) has, I perceive, at the very last moment put down a hostile Motion against this Bill, and proposes to refer the law of the subject to a Select Committee. The law of the subject has been before the county session and the House of Lords for the last six months, and what possible legal light the hon. and gallant Gentleman can expect to result from an investigation by a Committee of this House I confess I am at a loss to conceive. Had he proposed to refer the Bill to a Select Committee I should have desired nothing better. It is too late in the Session to allow us to hope that this Bill can this year become law—nor am I particularly anxious that it should pass until the most ample time has been afforded to discover and rectify every flaw in its details; but, Sir, I would earnestly ask the House to affirm its principle by reading it a second time. The time for a change is most opportune. The old system has been overturned within the last few months; the new system of quoad sacra proclamations has not had time to acquire the consistency of a recognized or familiar practice. While another change is contemplated by the Established Assembly next year, the present is the time for reform. I need hardly invoke the vote of Protestant Dissenting Members to remove an uncalled-for and insulting disability against which their brethren in Scotland, of whatever denomination, have long protested. I call, however, upon every Episcopalian who sits here to vote with me, unless he would brand Episcopalians in Scotland as unfit to be allowed to marry, without first submitting themselves to a sacred ordinance of the Established Presbyterian Church; and I call upon every Roman Catholic to support me, unless he would rivet upon his co-religionists in Scotland the necessity which the law at present imposes on them to participate in a quasi-sacrament of the Established Presbyterian Church as the one portal through which they can be admitted to their own sacrament of marriage—the one condition on which their priests are allowed to administer that sacrament of their Church. In conclusion, Sir, I beg to move the second reading of the Bill.

Motion made, and Question proposed,

"That the Bill be now read a second time."—(Dr. Cameron.)


said, the hon. Member who introduced the Bill (Dr. Cameron) had given an interesting history of the penal laws on the Statute Book with reference to irregular marriages in Scotland; but he (Mr. Orr Ewing) did not see within the four corners of the Bill any provisions to remedy this evil. The object of the Bill was to abolish the ancient system of proclamation of banns of marriage in Scotland, which had existed for centuries under various Christian Churches. It was a custom that was not confined to Scotland; the same law prevailed in England and Ireland; and he was not aware that the Episcopal Church in England, or the Roman Catholic Church in other countries, stood in that respect in a more favourable position than Scotland. Neither of those Churches would marry until they had proclaimed to the world the intended marriage. The Bill proposed not only to abolish the present law, but to substitute for it another—namely, that of simply registering the intention of marriage in the books of the Registrar appointed for registering births, deaths, and marriages. The reason given for this great change was stated in the Preamble of the Bill to be publicity. The hon. Member had said in addition that his object was likewise to secure economy. He (Mr. Orr Ewing) thought he should be able to show that the method proposed by the hon. Member would not secure greater, but rather less, publicity than at present; while it would entail additional expense upon those who were contemplating marriage. The hon. Member for Glasgow had stated that the present system did not give publicity, because proclamations were made before the congregation had met, and were read over three times so hurriedly that few people knew what was taking place. Now, that was not his experience of the manner in which the law was carried out.


said, that what the hon. Member referred to was to be found in the Report of the Commissioners.


said, that in that case the Report of the Commissioners, and not the hon. Member, was wrong. The law was that the proclamation should be on three different Sundays; but there were some cases in which that was not insisted upon. Nor was it insisted upon in England—because special privileges might be obtained by the payment of a fine. But according to the regulations of the Established Church in Scotland, there ought to be a proclamation upon three Sundays; and that was the rule invariably followed in the case of 99 marriages out of every 100. It was only a great swell, who did not begrudge to pay an extra pound or two, who could secure the thing being hurried over and done in one day. But the hon. Member for Glasgow was aware that the Church of Scotland had issued instructions to all congregations belonging to that communion to the effect that all proclamations should be for three days, and it had reduced the fee to a uniform sum of 2s. 6d. He had no doubt that in quoad sacra churches that was to be the maximum; and he believed the day not to be far distant when the proclamation of banns would be done for nothing. Moreover, it was necessary in the case of parties intending to get married who resided in different parishes that the proclamation should be made in each parish. Now, what was the intent of this Bill? It was to enable parties to register their intended marriage in the common register, a copy of the proclamation to be placed outside the walls of the registry office. Now, he (Mr. Orr Ewing) would ask any hon. Member who was acquainted with registry offices in great towns—small offices situated in obscure streets through which the people seldom passed—whether it was at all likely that the general community or those interested in a particular marriage would know anything about it? By the rules of the Church, the proclamation of banns would now be made for three Sundays, when the congregation was gathered together and the clergyman had ascended the pulpit, and he must say he did not know of any system which could be adopted that would give greater publicity than that. He thought his hon. Friend the Member for Glasgow stated that the expense incurred was upon an average 10s. 8d. He (Mr. Orr Ewing) did not know where he got his information, but that which he had himself received did not agree with it. He could assure the House that in the country districts such fees were altogether unknown. But whatever fees might have been charged hitherto, hon. Members knew that it was the resolution of the Church that they should be cut down to 2s. 6d.—and under his hon. Friend's Bill they would amount to 2s. 1d. But his hon. Friend stated in his speech that he did not intend to interfere with the Church making such regulations as they thought proper, regarding the proclamation in the Church. If that were so, would it not entail an additional expense? The fact was that the real object of this Bill was to take away the privilege which belonged to the Established Church of Scotland in order to put Dissenting bodies on terms of equality with it. Now, he was perfectly prepared to put Dissenting Churches upon terms of perfect equality with the Established Church upon every question which did not affect the principle of an Established Church, and had the hon. Member brought in a Bill to give to the Dissenters of Scotland the same privilege enjoyed by the Church of Scotland to proclaim the intention of marriage on the part of their own members, he would have given it his most hearty support. But the hon. Member did not like the system of levelling up—what he sought was a levelling down:—and accordingly he had brought in this measure to do what could not help proving to be very injurious. Although the people of Scotland did not believe that marriage was a sacrament, yet they did feel that it was the holiest union that could exist between human beings; and that while it was a solemn ceremony and ought to be conducted by religious service, still that every facility should be given by the law to persons to be married. Nevertheless, very few irregular marriages took place, for the people preferred to be married by a clergyman in a regular way. He thought the present system had worked well in Scotland, and that they ought not to make this revolutionary change without some far stronger ground being shown for it than that relied upon by the hon. Member for Glasgow. He would also point out that the House, in approving the principle of this Bill, would invade the spiritual right of the Church. Parliament and the State had never interfered with the Church in laying down its own regulations as to how its members should be married. If it were thought desirable to make a change in the marriage laws of this country, it was the duty of the Government to introduce a Bill for that purpose; but he must protest against that being done by a side wind. His hon. and gallant Friend the Member for East Aberdeenshire (Sir Alexander Gordon) had put down an Amendment that, while not refusing to read this Bill a second time, it was desirable that a Committee should be ap- pointed to inquire into the subject. But he (Mr. Orr Ewing) felt so strongly in regard to the principle of this Bill—that it proposed to alter a system which had worked well hitherto, and which the people did not desire to see changed—that he felt bound to oppose the second reading. He desired to see the marriage service in Scotland remain as it had hitherto been, a religious service, and that the ministers of all denominations should take a deep interest in the union of the members of their respective flocks in marriage. He did not desire to see that which he looked upon as a holy service secularized by the simple registration of the intentions of the people in a registry office. For these reasons, he begged to move that the Bill be read a second time that day three months.


seconded the Amendment.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day three months."—(Mr. Orr Ewing.)


said, there could be no reason for referring the law respecting the proclamation of banns of marriage to a Select Committee or any other tribunal. The law was perfectly well known, and the question was an extremely simple and plain one. His hon. Friend the Member for Glasgow (Dr. Cameron) in a very interesting address had entirely exhausted the subject, both as regarded its history and the present position of the law. He therefore had not the slightest intention of troubling the House with a long speech upon that occasion; but he must say that he had long thought that the law with respect to the proclamation of banns in Scotland was in a very unsatisfactory state. Indeed, he thought it was some reflection on Scotch Members that not one amongst them had taken up the question long ago. The hon. Member for Dumbartonshire (Mr. Orr Ewing) said the proclamation of banns in churches was an ancient and time-honoured institution. Well, probably when it was instituted it was not only the best, but the only mode of securing publicity. But his hon. Friend altogether passed over the fact that circumstances had entirely changed in Scotland. So far from considering that the proclamation was of any use, his experience of it was that it was something very like a farce. The practice was established at a time when there were no registries and no newspapers, and when the whole population of Scotland attended the national Church. The hon. Member knew as well as he did that the population of Scotland no longer attended the national Church. He would probably not admit it, but he (Mr. Baxter) maintained that the Dissenters were in the majority, and therefore circumstances had completely changed. But, moreover, he entirely agreed with the hon. Member for Glasgow, that the great majority who did attend the Established Church did not hear these proclamations. The hon. Member for Dumbartonshire said that it was not so; but the General Assembly had admitted it, because they had passed a series of resolutions, one of which was that the proclamation should in future be made after the clergyman had taken his place in the pulpit.


That was only because the practice was not followed out in all churches.


It was because it had not been the practice in Scotland that the General Assembly had issued an instruction to put matters in a more satisfactory position; but he joined issue with the hon. Member altogether, and would go further than his hon. Friend the Member for Glasgow in this matter. To his mind, these proclamations were very much out of place—and he had often thought they rather savoured of an offence against good manners. They often saw a man get up immediately before the solemn worship of God commenced, and bawl out in stentorian tones the banns of marriage between certain parties. These announcements were possibly necessary in barbarous times, when there was no other mode of obtaining publicity, and that was the only possible thing that could be said in their defence; but to his mind the whole system, now that they had other means of obtaining publicity, was very much like a farce. The hon. Member for Dumbartonshire (Mr. Orr Ewing) let the cat out of the bag when, after objecting to some of the provisions of the Bill, he said the reason why he opposed it was that he believed it to be a covert attack upon the privilege of the Church of Scotland. Now, he (Mr. Baxter) was not going to say a word against the Church of Scotland, which had a grand and noble history, and which he admitted had still some claims upon the sympathies of the Scotch people—and more especially as it seemed probable now that that party in the Church to which the hon. Member for Dumbartonshire probably did not belong—powerful in talent, but probably not very influential as yet in numbers—might gain the upper hand. He meant that party in the Church which did not believe in strict Confessions and exclusive Creeds, but which was setting a noble example in favour of liberality of sentiment and Catholicity of spirit. He (Mr. Baxter) looked forward to that party gaining the upper hand in the General Assembly. Be that as it might, he totally objected to the General Assembly of the Established Church, or of any other Church, having it in its power to fix fees, or to amend or alter the law of Scotland in any respect with regard to the law of marriage. It was entirely a civil affair. It was very proper that all the ecclesiastical denominations should have their own rules and arrangements with regard to marriage; but the publication of the intention was an affair which concerned not the religious persuasions only, but the whole body of the people, and it was the duly of the Legislature to secure to the whole body of the people means of becoming aware of that intention. And he knew no better means than was proposed in the Bill of his hon. Friend. The Bill had received the sanction of the General Assembly of the Free Church; and, surely, the registrar of the district was the proper party to receive the notice and grant the certificate in the case of marriage. It had been proposed frequently that that privilege, which was at present monopolized by the Established Church of Scotland, should be given to the Dissenters; and he was rather sorry to hear the hon. Member for Glasgow say that in the event of that privilege being conceded, he thought that some of the Dissenting denominations in Scotland might well avail themselves of it. [Dr. CAMERON explained that he spoke of purely voluntary action.] He (Mr. Baxter) believed that Dissenting Bodies did not want the extension of this privilege—what they asked for was the Bill of his hon. Friend. He thought that to extend this privilege, either by law or voluntarily, would be a sort of aggravation of the evil. As to the Bill which the hon. Member for Dumbartonshire said was a revolutionary measure—if every simple Bill of that sort was to be considered a revolutionary measure, the term would be greatly misapplied. He thought it was an extremely well-drawn Bill, and that it afforded the best remedy for the grievance which was on all sides admitted.


Sir, I had intended moving that this subject should be referred to a Select Committee, but as I have not, as I expected, been called upon from the Chair, I have missed my opportunity of moving that Amendment at present. I shall therefore content myself with stating my objections to the Bill. I find some difficulty in dealing with the question brought before us by the hon. Member for Glasgow (Dr. Cameron), in consequence of the vagueness of the 4th clause. The House is asked to repeal all laws, statutes, and usages, so far as they require proclamation of banns of marriage between persons intending to contract marriage; but the hon. Member has not said in the Bill what those laws are—what Acts or parts of Acts he refers to. As far as my limited experience of this House goes, it is the invariable practice, when a Bill for repealing Acts is brought before the House, that those Acts should be specified. We are now called upon to repeal—we know not what—the laws relating to marriage and banns of marriage in Scotland. When we consider what some of those Acts contain, we should be cautious how we repeal them without knowing exactly what we are about. Now, there is one Act to which all Scotchmen attach importance—namely, the Act of Union, which only obtained the consent of the Scotch Nation upon certain conditions. In that Act will be found the words— That the Presbyterian form of Church government, so ratified and established, shall continue without any alterations," &c. Without the Acts which it is proposed to repeal being specified, I think it would be a very imprudent step on the part of this House to say that they should be repealed; and on that ground alone I think I shall be justified, if the opportunity is afforded me, of moving that this question should be referred to a Select Committee. I should like to correct an error into which the hon. Member for Glasgow fell when he informed the House that Episcopalian ministers could only celebrate a marriage in an Episcopalian church after the banns had been published in the parish church of the Establishment. He will find that the Act 10 Anne, c. 7, s. 6, runs as follows:— And provided likewise that no Episcopalian minister residing in Scotland may presume to marry any person but those whose banns have been published three successive Lord's Days in the Episcopal congregations which the two parties frequent, and in the church to which they belong. Parishioners by virtue of their residing for," &c. Then it goes on to recite— And the ministers of the parish church are hereby obliged to publish the said banns, and in the case of neglect or refusal, it shall be sufficient to publish the said banns in any Episcopal congregation alone, any law, statute, or custom to the contrary notwithstanding. That shows that so far back as 1711, Episcopalians could be married by banns published in their own churches only. The House will bear in mind that in 1711 the Episcopalians were the only Dissenting Body in Scotland. At the present time they only amount to something like 60,000 out of a population of3,500,000, and in those days they must have been, I imagine, very much fewer; and it only shows what Parliament did 150 years ago in regard to giving facilities for Dissenters publishing banns of marriage. Now, the Preamble of this Bill states that it is brought before the House in order to make better provision for giving publicity to the intentions of persons about to marry; and unless the hon. Member for Glasgow and those who support him can show that greater publicity will be obtained, I say that they have not proved to the House that the Bill ought to be read a second time. The hon. Member for Dumbartonshire (Mr. Orr Ewing) has anticipated me in a great deal of what I was going to say, and I will not repeat his arguments to the House. Anyone who knows my countrymen will know that they do not waste their time going about to registry offices to find out who is going to be married:—if they know a marriage is going to take place they do not require to come to the registrar's office to get the information; and if they do not know it, they will not waste time in going to the registry. Therefore, I consider that the proposed mode of publishing the banns will not give the publicity which the hon. Member seeks. I admit a great deal of what the hon. Member for Glasgow stated, as to the objectionable nature of the present system. The high charges in many cases have been most improper. The publishing of the banns thrice on one Sunday is also in my opinion most improper. I wish to remind the House, however, that this proposed step is an important one which affects not Scotland only, but the other two Kingdoms. I hope the House will be cautious before such a step is taken, for we are asked to alter in this hurried way a system which has existed for 300 years. I should like to see this question further inquired into before we legislate upon it, for many reasons—one of which is the recent decision in the House of Lords. I should like myself to see the practice of publishing the banns of marriage extended to all religious bodies, and made as valid in their places of worship as in the Established Church; and I should like to see the certificate of any of their ministers as valid as that of the ministers of the Establishment; but I think further inquiry is necessary. The Bill does not provide for one defect which the hon. Member for Glasgow stated was in the existing law—namely, the absence of registration of marriage. The Bill provides for the registration of the publication of banns, but does not, as far as I can see, make provision for the registration of the marriage when it takes place.


If the hon. Gentletlemanwill allow me to explain, I would say my position is that the registration of marriages after they take place is at present amply provided for by the existing Act.


Then there is no alteration in the law—the Bill does not provide the remedy which I understood the hon. Gentleman to say was required. It repeals the old law. Perhaps I may have an opportunity of moving the Amendment I have on the Paper on a future stage; but, in the meantime I have only spoken to that of the hon. Member for Dumbartonshire.


said, he thought the alteration proposed by this Bill was one which could not be said to affect in any serious way the Church of Scotland. The Church would flourish and be as strong after the Bill passed as before; and those hon. Gentlemen who had spoken against the Bill had refuted their own arguments by exposing the defects of the existing law and their willingness to accept changes of equal importance to those proposed by the Bill. The hon. Mover of the Amendment (Mr. Orr Ewing) admitted that the present state of the law afforded no security for that proper publication of the intention of the marriage which the public had a right to expect. This question was not merely one of expediency; it was a question of urgency, for while Parliament was deliberating, the General Assembly was acting—it had already proposed a resolution on this subject; and the question they had to consider was whether this was not an Imperial question, which Parliament should take cognizance of, and which they could deal with in a far more effective manner than the General Assembly. He trusted there would be no obstacle interposed which would prevent this House taking the question up and dealing with it effectively. While saying that much, he honestly confessed that although there was great inconvenience in the present state of the law in populous districts, where the different denominations divided the population, the law afforded a very easy and simple mode of giving publicity to marriage in thinly populated districts. He rose for the purpose of suggesting that the second reading should be assented to, and that the Bill should be put into shape in a Select Committee. The hon. Member opposite (Mr. Orr Ewing) was apparently unnecessarily alarmed at the repeal of existing usages proposed in the Bill. It would not repeal any usage the Church of Scotland chose to insist upon among its own churches—it would only repeal those statutory enactments which established certain preliminaries as a condition of legal marriage. It did not interfere with any privilege which the Church of Scotland could justly claim; but he did think that there was here a fair opportunity of bringing the law more in accordance with that of England, under which banns were proclaimed in churches, but power was given to Nonconformists or others to proceed by another process through the registrar—that being an equally legal mode of giving publicity to the marriage. He had felt one difficulty on this subject—namely, with reference to the vested interests that might exist. But here he had come to the conclusion that the General Assembly had cut the ground from their own feet, for in most important cases they had proposed to cut down fees to a third or a fourth of those at present levied. He therefore cordially supported the Bill.


said, he did not wish togive an absolutely silent vote upon a question of this importance. He did not regret that the division was to be taken on the Motion for the rejection of the Bill, rather than on the issue which the Amendment of the hon. and gallant Member for Aberdeenshire (Sir Alexander Gordon) would have raised. He did not see that they could have expected any useful results from the appointment of a Committee. The Royal Commission which sat as lately as 1866, and of which Lord Chelmsford was the Chairman, elicited everything which the Committee of the hon. and gallant Gentleman could hope to elicit. If any gentleman would study the evidence taken by that Commission and their Report, he would have but little difficulty in arriving at the conclusion that sooner or later it would be desirable to repeal the law requiring the proclamation of banns in order to make a marriage lawful. He really thought that the law had little else beyond its antiquity to recommend it. He would readily concede the point of antiquity, for he found that in the Western Church the practice of proclaiming banns was universal from an early period, and canons were promulgated enjoining the thrice repeated banns both by King Edward II., and again by Edward III. In 1200 they found Archbishop Walter ordaining that no marriage should be contracted without banns thrice published in the church, nor between persons unknown. About the same time the Bishop of Paris issued a similar order, and in 1215 Pope Innocent III. made the law apply to the whole Church. But while banns were common to the United Kingdom there was a considerable difference in the circumstances affecting their publication in the two countries of England and Scotland. In England banns might be published in Dissenting as well as in parish churches, although no doubt the marriage must be celebrated in the place where the banns had been published; whereas in Scotland, on the other hand, although the publication of banns must, by the recent decision of the House of Lords, take place either in a parish or in a quoad sacra church, still a marriage might be celebrated after publication of the banns in any place and by any minister. Again, in England and Ireland, where licences were cheap, banns were frequently dispensed with: but in Scotland, although, he believed, it was quite true that the presbyters inherited the ancient powers of the Bishops to grant licences, they had never to this day exercised these powers. It was true, therefore, as the hon. Member for Glasgow (Dr. Cameron) said, that in every regular marriage in Scotland banns were required. There was a very learned legal authority in Scotland, Baron Hume, who said— Our practice holds none for right or inoffensive but that which is celebrated by a priest duly ordained by the Church and after publication of banns. In Scotland there were marriages which were not regular, though not in a greater proportion than 20 in every 20,000. These were celebrated by people other than ministers of the Church and Dissenting ministers. The hon. Member for Edinburgh (Mr. M'Laren) had placed it on record, he believed, that on two occasions he joined couples together in holy matrimony. That occurred when he was Lord Provost of Edinburgh, and when he had some scruples about performing the same kind office for a third couple, a brother magistrate volunteered his services. "I feel greatly relieved, "said the hon. Member for Edinburgh; "by all means you shall marry them, "and they were married accordingly. The hon. Gentleman had given interesting details of these marriages which he celebrated. He said the young lady came to him nicely dressed, as if she were going to be married in a church, and the couple went away after the ceremony apparently very happy; and he said—"I believe that to be as legal a marriage as any that ever was celebrated." [Mr. M'Laren assented.] The main object of proclamation of banns was to secure publicity; but the evidence given before the Royal Commission went entirely to prove that publicity was not attained. The remarks of the Royal Commission on this head referred to England as well as Scotland; but they said that publication created great disquietude to people who were apprehensive of temporary annoyance. The Report was suggestive on this head. It said— As we have been informed, some who have been living in concubinage, and who otherwise might have been disposed to marry, have abstained from doing so in consequence of the notoriety attending the publication of the banns. And the Commissioners added— It seems universally agreed that no really valuable publicity is attained by the banns. They afford no safeguard against improvidence, illegality, and fraud, and they are often productive of greatly inconvenient and unseemly interruption to Divine service. That last remark, of course, applied more to England than Scotland. In England the banns were at any rate duly proclaimed by the minister from the reading desk, and hence were done decently and in order, and on three successive Sundays; but in Scotland, notwithstanding what was said by the hon. Member for Dumbarton (Mr. Orr Ewing), the banns, as a general rule, were proclaimed by the precentor, in the absence of the minister, and before the congregation assembled for Divine worship, and he maintained, in opposition to the hon. Member, that oftener than not a triple proclamation was made on one Sunday. The pay was much or little in different parishes, according to the will of the session clerk. The hon. Member for Edinburgh (Mr. M'Laren) said on this point— It had come to this—the session clerk in one parish may say, 'My fee is 10s.;'another will say in another parish, 'My fee is 15s.;' and a third in a third parish will say, 'My fee is a pound;' "— And then his hon. Friend went on to tell the Royal Commission that the people did not dispute the charges, for they could not help themselves. In return for these exorbitant fees, the session clerk did nothing or next to nothing. In the evidence before the Commission it was recommended that a fee of 2s. 6d. should be the general and legitimate charge, and this sum the General Assembly now rather tardily had proposed in substitution for the present exorbitant fees. He had the greatest respect for that venerable body, which had certainly done good work in the past, and he hoped would do good work again; but he thought they had a good right to ask what had been the reason of their delay in this matter? A document had been issued by that body to Members of this House, which he could only characterize as one of the most extraordinary that ever emanated from so distinguished an assembly. This document was entitled "The Banns of Marriage (Scotland) Bill—Statement against." He ventured to think that nothing more deplorable, nothing more disingenuous, than that statement was it possible to conceive. There was a great deal in it about the great desirability of celebrating marriages in facie ecclesiæ, and about the right of the Assembly alone to regulate the publication of banns of marriage, orotherwise amend regulations which they had entirely neglected to amend. The document went on to say that the General Assembly had already proposed to amend regulations. That word "already" would lead any inattentive observer to think that they met this question long ago; whereas they never took any action in the matter until it was suggested to them by the Bill introduced by the hon. Gentleman opposite (Dr. Cameron). The Royal Commission sat 10 years ago, and notwithstanding that it was proved by not only Dissenters, but the most eminent men of the Church of Scotland, that the present lax practice was productive not only of hardship and of discontent, but also of positive immorality, it was only now that the General Assembly roused itself from its lethargy, and proposed the abolition of the triple proclamation, and to limit the fee to 2s. 6s.—which, if they had the power to do—and that he very much doubted—they ought to have done long ago. Of the many questions discussed by the General Assembly, he ventured to say that none could be more important to the country than this. Doubtless the General Assembly was very much occupied; but as long as it neglected this and other great kindred questions affecting the welfare of the whole people, their best motto would be Strenua nos exercet inertia. Why, then, should he not vote for the Bill of the hon. Gentleman? Simply, because there should be a locus penitentiæ;, even to such an august body as this—because although their concessions were tardy, they were valuable; because they had got rid of the fee, which was productive of discontent and immorality. Above all, he objected to the Bill on the ground that it was confessedly piecemeal legislation, and that it only touched a fringe of perhaps the greatest question upon which a statesman could have power to legislate.


supported the Bill. In illustration of the want of publicity in the present system of proclamation of marriages, he said that on occasions when there was no worship in a parish church, or before a single member of the congregation had arrived, the banns were often proclaimed by a precentor or other officer going to the door of the church and reading them aloud. The question at issue was really whether Parliament should leave it to the General Assembly of the Church of Scotland to determine what regulation should be made to secure publicity of marriage, or whether Parliament should take upon itself to determine what these laws should be. The objection that the General Assembly had already reduced the fees was no reason why this Bill should not be passed, and was far from satisfactory to him. To Dissenters it was an aggravation of the offence of the Assembly for them to say that they were to take upon themselves to administer or regulate the law of marriage in Scotland. It had been said that Dissenters did not wish for the Bill. This was contrary to the fact, they might well take for granted that the United Presbyterian Church and the Free Church, knew their own minds when they had passed their resolutions in its favour.


was bound to say that, having read very carefully the provisions of the Bill, he was convinced that it would not do anything to increase the publicity that now existed for proclamation of marriages. On the contrary, he felt it almost impossible for any man who had considered the matter fairly, and apart from the religious question, not to believe that it was much more likely that people in a neighbourhood would hear who were going to be married, if that intention was proclaimed (it might be only once in a few cases, and he thought it ought always to be thrice) in church, than if the intention were announced in writing in a document on the door of the registrar's house or office, which many of the people, no doubt, most affected by this Bill could not read. Even if it did, however, secure the publicity at which it professed to aim, there were many persons who by no means entirely approved of publicity. For instance, where a man and a woman had been for some time without notoriety living in a state of concubinage, and wished to legalize their union, they would have a very strong objection to have that fact made known to the world, as it must be were there to be a general system of publicity. He had no interest whatever in the jealousies of the various Churches. The Established Church might be very far wrong in this matter. Undoubtedly, it was a great mistake that the fees were so high, and he hoped that would be remedied. There might be difficulties also in parties being required to reside so long a time in the place where they were to be married, but whatever need there was for reform in this matter, he did not think the proposals in this Bill would do the thing it professed to do; and on that ground he felt unable to support it.


said, it seemed to him curious that the most convincing speech in favour of the Bill had been made on this side of the House by his hon. and gallant Friend the Member for Ayrshire who intended to vote against it, and the most convincing speech against had been delivered by the hon. Member who had just sat down, who intended to vote in its favour. He entirely agreed with the last speaker in believing that publicity was of greater importance, and generally agreed with him in all he said against the proposal. He did not intend to follow him through his speech; his object in rising was to reply to a remark made by a previous speaker, who said there was no alternative but either to accept this Bill or to have no reform at all, and that the question really was whether the whole matter should be left to the General Assembly, or whether Parliament should undertake it on the lines of this Bill. He (Sir William Cuninghame) considered there was another alternative, which was to reject this Bill and hope for a less objectionable proposal at some future day, which step he ventured to urge the House to take as he did not consider the plan of reform proposed in the Bill was such as ought to be accepted by the House. He entirely agreed with what was said on both sides of the House, that the hon. Member for Glasgow (Dr. Cameron) had done good service by bringing this question forward; and he also agreed with a good deal of what he said as to the reform required, especially on the question of fees, which he considered were perfectly disgraceful. If the Church of Scotland had been rightly put in the position it occupied, as he thought it had, of proclaiming marriages within its walls, it ought to have the fees merely nominal, or so small as only to cover the expense. In that direction reform was needed; and he was not opposed to the idea of extending the permission to proclaim marriages to the other Churches of Scotland. But he saw some risk of marriages so proclaimed being hole-and-corner affairs, and it might be necessary to post up a notice on some conspicuous place, or to advertise in the papers, or some other way. His idea would be to reject this Bill, with the hope of getting some more useful and more palatable measure in the future.


said, that although he intended to vote for the Bill, he had much less to say in its favour than some hon. Members who intended to vote against it—such as the hon. and gallant Member for Ayrshire (Colonel Alexander,) whose speech, he maintained, was in favour of the Bill. There was a grievance, and in his opinion the exclusive right of proclaiming marriages in the Established Church ought to be done away with. When he said that, he had said all that could be saidin favour of the Bill. At the same time, he did not believe the present system gave the publicity it required. As far as he had read the Bill, it appeared to him that to ask the registrar to hear all the objections laid before him, and to come to a decision as to whether he should postpone the marriage to an indefinite time or not, was highly objectionable. That would be placing the registrar in an entirely false position. All that should be required of the registrar was to keep an accurate register of the marriages which took place. It ought not to be his duty to state whether they ought to take place or not. He admitted there was some evil in the extreme facility for marriage in Scotland, but in his opinion the good greatly preponderated, and undoubtedly that facility acted as a great check on the system of irregular connections that was so common elsewhere. Therefore he would be extremely sorry to see any law passed that would interfere with the facility of marriage, whether with or without any religious ceremony.


said, that the Bill did not propose that.


said, that though he was an English Member, he was born in Scotland and his relatives were Scotch, so that he might perhaps be entitled to say a word on the question. He was astonished that the Bill contained no provision for altering what was a crying scandal in the Scotch marriage law. At present, if a man and woman in Scotland, perhaps half tipsy, said before a witness, "This is my wife," "This is my husband," it was a lawful marriage. Thus the most important questions of legitimacy and of property depended upon hasty statements made in that way. There was a well-known story of the eldest son of a Scotch Peer who, having quarrelled with his father, went into a house of bad repute in Edinburgh and acknowledged a woman there as his wife. This was held to be a good marriage, and he was tied to the woman for life. Such a state of the law ought to be amended in any measure dealing with the marriage law of Scotland. As to the Bill itself, he thought it went too far, for it took away from the Established Church of Scotland the right of publishing banns in the case of those who were members of that church, and who would have no objection to such publication, but he suggested that Dissenting ministers might be enabled to publish banns in their own chapels.


remarked that he had not heard a word on the other side of the House of any objection to this Bill which could not be removed in Committee. Under the present law, he would venture to say, publicity was not obtained. In the Established Church, in nine cases out of ten, the banns were proclaimed before the greater part of the congregation were assembled, and when great noise was going on: the announcements were never heard except in a few isolated cases, when the clergyman was in the pulpit. Therefore, under the present law they did not get publicity. There could be no argument against this Bill as giving sufficient publicity. It was a great step in that direction. He confessed he was surprised at the assertion of the hon. Member for Dumbartonshire (Mr. Orr Ewing,) that the publication of banns was confined to a few isolated cases of "swells." In the chief town of the hon. Member's own county he found that 33 out of 90 must be "swells," and in the village of Row the number of cases proclaimed once on Sundays was 29 out of 66. He denied that the Bill would take away any privilege of the Church. Either the publication of the banns was a religious act, or it was not. If it was a religious act, then they were placed in the extraordinary position in Scotland, that Protestant Episcopalians or members of the Roman Catholic Church must needs go through the religious rite of the Presbyterian Body before the rite of their own Church could be performed. Could any Member representing an English constituency vote for such a principle as that? If it was a religious act, why was this privilege to be given to one Church? If it was not a religious act, why were not the Dissenters allowed the privilege? He should have been disposed to support the proposition of the hon. and gallant Member for Aberdeenshire (Sir Alexander Gordon) if this subject had not already been fully investigated: but there had been investigation. In 1866 there was a Report issued by a Commission appointed to inquire into the Marriage Laws, and he wished to call the attention of the House to that Report, believing that when hon. Members opposite heard the names of the Commissioners, they could not refuse their votes to this Bill. The Commission said— Without proposing that the publication of banns should be prohibited or interfered with in the Established Church, when desired by the parties, or any other Churches when required by their particular discipline and usage, we recommend that such publication should not henceforth be required by law as a condition either of lawfulness or regularity of marriage. This Bill went on the lines of that recommendation. The hon. Member for Dumbartonshire (Mr. Orr Ewing) said this was a revolutionary measure. Who were the revolutionists? The first Commissioner was the right hon. Gentleman the Member for the University of Cambridge (Mr. Beresford Hope)—a name that would command the universal respect of the House. The recommendation was concurred in by Lord Chelmsford, a Conservative ex-Lord Chancellor, and by Lord Hatherley. Was he a revolutionist? Was he one who wished to deprive the Church of her privileges? Would he do anything to secularize marriage? These were the words also of Lord Selborne. Was he one who would do anything to secularize marriage, or do away with anything that made marriage sacred? But, more than that, these were the words of one who must command the highest respect—the present Lord Chancellor. When such men as those had made this recommendation, it would be a very strong measure indeed for hon. Gentlemen opposite to vote against it. The Nonconformists of Scotland not unreasonably complained that the existing regulations were vexatious as well as useless. Yet the hon. Member for Dumbartonshire, and Conservative noblemen in the country, called this Bill revolutionary, and wished to preserve the existing law! In his own part of the country, where a river divided the town, parties marrying on the one side were made to pay a fine of £2. To a poor man that was a very hard case. Holding marriage to be a religious act, he believed the law a bad one which imposed a fine on persons who wished to be married religiously; and he supported this Bill because it would enable people to be married by sacred rite and in proper order.


felt certain that if a division were taken on the second reading of the Bill there would be a good deal of cross voting. The strongest arguments against the Bill had come from the hon. Member for Glasgow (Mr. Anderson), and yet he intended to vote for the Bill. The strongest speech in favour of the Bill had been made by his hon. and gallant Friend behind him (Colonel Alexander), and he did not intend to vote for the second reading. He (Mr. Dalrymple) felt no doubt about the course he should take. He disliked the Bill; and while admitting that there was a great deal of truth in the statements of the hon. Member who moved the second reading, he did not think the machinery he proposed was of a kind the House ought to sanction. The hon. Member who had just spoken (Mr. Noel) quoted high authorities in favour of some changes in the direction of the Bill; but did he mean to assert that the ex-Chancellors and others whom he had quoted had recommended the particular proposals of this Bill? He believed that there was sufficient publicity obtained for marriages under the present system; but he was at the same time of opinion that the present discussion would be of some use in drawing attention to irregularities in the proclamation of banns, and to the unevenness in the imposition of fees. The Bill was similar in one respect to the legislation said to have been characteristic of the measures of the late Liberal Government—it bristled with pains and penalties. In more than one clause were penalties of £50 awaiting persons about to marry. He clearly objected to placing the duty proposed in the hands of the Registrar. The proclamation at present was sufficient for the purpose, and he very much doubted whether the proclamation through a Registrar's office would be as effectual. Statements had been made to the effect that because there were many different religious bodies now in Scotland, there was not the same publicity as formerly in proclamation of banns in the parish Church. Would anyone really assert that, at all events, sufficient publicity was obtained, and that was all that could be expected. He was unable to see that there was anything "revolutionary" in the Bill; it would not do to use that word so lightly—they might need it for other and more serious matters—he himself was simply opposed to the machinery of the Bill, and he should therefore vote against the second reading.


rose chiefly to make a suggestion—that the Government should allow the Bill to be read a second time, not as approving it, but for the purpose of its being sent to a Select Committee. He had no doubt that any Committee that might be appointed would come to an agreement. If the Lord Advocate did not take up the Bill as a matter of principle he advised him to take it up out of sympathy with his own friends, who had made such strong speeches condemnatory of the present system. If there had been any difference in the condemnation between the two sides of the House, it had been stronger on the Conservative than on the Liberal side of the House.


said, he did not approve of the details of the Bill, but he thought the time had come when a change was necessary. When the law was passed which insisted that there should be a proclamation of banns in connection with the Church of Scotland, the greater number of the people of Scotland belonged to that Church. That time had passed: now at least one-half of the people of Scotland belonged to Dissenting Churches, and it was therefore absurd to talk of greater publicity being obtained by the proclamation. But the time had come when there should be a change, and if the Bill should be read a second time, he should prefer a scheme like that which had been recommended by the hon. Member for Dumbartonshire (Mr. Orr Ewing). He thought such a scheme would be more in accordance with the religious feelings of the people of Scotland than the scheme in the present Bill. He hoped the Lord Advocate would allow the Bill to be read a second time, for to refer it to a Select Committee would be simply to shelve it.


The question involved in this Bill is one that deals with a matter of very great delicacy. It relates to the law of marriage in Scotland, which differs from that in England especially in this respect, that it undoubtedly affords facilities for irregular marriages. Although I believe there is a general concurrence amongst the people of Scotland in preferring their marriage law to that of England, yet, at the same time, looking at the substantial difference which exists between the law of the three countries—for there is a difference in the law of Ireland and England as well as in the law of Scotland—it becomes a very delicate matter indeed to interfere in anything that enters into the marriage ceremony of any of the countries. Further, it is the interest of Scotchmen not to secularize more than there may be necessity for the marriage ceremony in Scotland. At present, both in England and Ireland, as well as in Scotland, the law provides for proclamation of banns in each country. No doubt it is not essential in England and Ireland that the proclamation should be in the parish church, but it is a matter of some difficulty to arrive at a correct conclusion as to the precise provisions which are there in force as to the mode of proclaiming the intention of marriage, and how far it is afterwards to be completed by a religious ceremony. Assuming, however, that it is the law in England and Ireland—at all events, it was in Ireland before the Irish Church was disestablished—that there should be a proclamation of banns in a church or building licensed for that purpose, is it not important that the House should do nothing by this Bill to shake the rules which prevail in England and Ireland with reference to the proclamation of banns? Yet it will be observed that the effect of the machinery proposed to be established by the present Bill is to set up a new mode of proclamation which does not exist in either of the two other countries. I caution the House against hastily interfering with the Marriage Laws. Although they have been the subject of a Report of the Marriage Commission in 1866, that Report has been laid aside at present—it has been laid aside by successive Governments, who have not yet thought proper to take up the question. It is a very difficult question indeed—one of the most difficult which can engage the attention of Government. I have reason to know that it was under the consideration of the present Lord Chancellor to take up the question of the Marriage Laws; but he found that the amount of business required to be transacted in the course of this Session was so great that he was afraid to bring forward any measure. But I think that it is not at all improbable that before long there will be some measure introduced by the Government which will comprehend the whole law connected with marriage, and in particular deal with this matter of proclamation of banns. I therefore think it is of great importance that we should not by any Resolution of this House adopt a principle which may produce a totally different system in Scotland from that which exists at present in England and Ireland, or which might fetter the Legislature hereafter, by adopting the machinery set forth in this Bill. It is said that this question of the notice of marriage is really of a civil character. Reference has been made to the case in the House of Lords; but in that case it was regarded as a Church regulation, and was not looked upon merely as a civil question. What is proposed by this Bill is to lay down a contrary rule on the question. I do not say that it is not in the power of the State to control the Church in this particular, for I can conceive that if there is any abuse, the State is quite right to control the Church. But the first point to consider is this—has there been such a practice permitted as would justify the House in coming to a conclusion that the mode proposed by the hon. Member for Glasgow should be supported in preference to that which exists at present? There is no doubt that occasionally, in particular churches, there may not be that attention called to the proclamation of banns which there ought to be; but, as a general rule, I venture to think there is no part in the Church proceedings which is more attended to than that which gives notice of a most important event connected with the personal and social prospects of young men and young women. Without venturing to say that you cannot have a better mode than the present of securing publicity, I have no doubt that the present is much better than the plan of the hon. Member for Glasgow. The hon. Member took occasion to refer to a Report by the Free Church to the Royal Commission, and he said that the system which he proposes is that which was recommended by the Free Church. At page 43 of the Appendix to the Report of the Commission will be found the statement on behalf of the Free Church. They say "the present system is now admitted to be inefficient as a means of proclamation." Secondly, "it is much complained of in consequence of the fees exigible by the session clerks," and "the exaction of these fees prevents many poor persons from going through the ceremony of marriage before a minister." That is a matter which is being remedied by a resolution of the Church—the modification of fees being very considerable indeed, the fee mentioned in the Resolution of the General Assembly being "not exceeding half-a-crown, "which is below the amount charged in England. Lastly, in the recommendations of the Free Church there is no reference made to a notice being given in the registrar's office. On the contrary, what is suggested is that "it should be published on the doors of the parish church or otherwise." I cannot say that that would secure adequate publicity, as there are already a great many notices required to be posted on the church doors—such as Militia notices, Income Tax notices, and so on; and if the names of those intending to marry were simply stuck upon a board at the church door, many persons would fail to see them unless they went for the special purpose. Therefore, I submit that neither the plan suggested by the Free Church nor the plan proposed by the hon. Member would provide sufficient publicity. But I return to the consideration which I venture to think is sufficient to determine the action of the House at the present moment, why should there be laid down for Scotland a new rule entirely different from that which prevails in England and Ireland? That would fetter you when you came to deal with the question of proclamation of banns in other parts of the Kingdom. I have expressed the opinion that the Bill does not provide sufficient machinery for notice being given to all parties, and that the present system is preferable to that which is proposed by the hon. Member for Glasgow. But without going into detail, I submit that on the general ground to which I have referred the Bill ought not to pass; and indeed the hon. Member himself did not think that there was any chance for the Bill this Session. There will be no loss, in dealing with the question, by postponing this Bill until we have an opportunity of considering the whole law of marriage, at least in so far as connected with the proclamation of banns in the three countries, as well as in Scotland. I do not dispute that there may be some room for improvement; but then I think in a matter of so delicate a character as that connected with the law of marriage, we ought not to rush into a scheme which evidently has not commended itself to Members on either side of the House.


thought the Government must feel that some change was absolutely necessary, and he rose to express his disappointment at the declaration of the Lord Advocate, which he must think somewhat feeble. He told them that some day or other the whole law of marriage would be considered. They did not want a radical revolution of the marriage laws in Scotland; and if they did, they would not be likely to get it for a long time, for was it not the case that the House was glutted with business of all kinds? Were they to be satisfied in the hope that a real practical grievance of that kind would be remedied merely by the declaration that the whole law of marriage was likely to be considered? That statement was equivalent to a denial of justice in the matter. It might be that the machinery proposed by the Bill was not the best; but in justice both to the Dissenters of Scotland and to those who wished to preserve the Established Church, it would be just and prudent for the Government to propose a proper remedy for that particular matter. He knew nothing so likely to be injurious to the Church of Scotland or to the whole question of Establishment than the keeping up of an irritating and unjust privilege of this kind. On that account, although he would not pledge himself to the machinery of the Bill, he should vote for the second reading.


in reply, pointed out that the right hon. and learned Lord Advocate was in error in supposing that the system proposed by the Bill was something entirely different from what existed in England or Ireland. It was a system perfectly well known in England—where, as his Lordship would see if he referred to Page 8 of the Marriage Laws Commissioners' Report, in all marriages between Dissenters notice was required to be given to the district registrar and a licence obtained from him. In fact, what the Bill proposed was really that the law of Scotland should be assimilated to the law of England on this point. In England the proclamation of banns was made by the officer entrusted with the registration of the subsequent marriage. In England all marriages celebrated in an Established church were registered in a church register of marriages. In Scotland there were no such registers, and the duty of registering marriages in all cases devolved upon the district registrars. In England whenever it did so, the duty of receiving notices of intention to marry and of issuing licences devolved upon these officials also. This was exactly what the Bill before the House proposed. It had been said that the proposal in the Bill was not that which was proposed in the Report of the Commissioners; but without wearying the House with quotations, he had no hesitation in saying that the Report of the Commissioners completely embraced the proposals of the Bill. He was not wedded to the mere machinery of his Bill. He did not care whether the notice was put upon the registrar's door or any other accessible place. What he sought was to get rid of a disability which no one justified, and of which everyone complained. It was useless to argue in favour of the present system, for it was doomed. If Parliament did not deal with it another body would. An hon. Member had objected that the Bill only touched the fringe of the subject; but this was the only part of the marriage question which was certain to be legislated upon by others if Parliament neglected it. The rest of the Marriage Law could be allowed to stand over; but as regarded this part, unless Parliament interfered the result of the action of the General Assembly would be to impose a new law upon members not only of their own Church, but upon the members of every Dissenting Body in the country. The fact that an ecclesiastical Body should thus be permitted to frame a law for persons outside its own communion—to lay down rules, any infraction of which laid the offender open to heavy penalties—at this period of the 19th century was such an obvious anachronism and absurdity that it constituted the strongest argument which could be brought forward in favour of the Bill. His hon. Colleague (Mr. Anderson) had said in the course of the debate that there was no necessity for any publicity being given to the intention of marriage. If he would turn to the evidence given before the Marriage Laws Commissioners by the late Roman Catholic Bishop of his own constituency he would see that he was in error; for Bishop Murdoch stated that although during an experience of over 40 years he had never known any instance of the discovery of an impediment to an intended marriage by the calling of banns as at present practised in the Established Church, discoveries had again and again resulted from the simultaneous publication in Roman Catholic churches and chapels, thus at once showing the need for publicity and the uselessness of the present system in securing it. As to the proposal to refer the Bill to a Select Committee, he desired nothing better. All he wished the House to do was to affirm the principle of the Bill; and thinking it was not too much to ask the House to pronounce an opinion on the subject, he must press his Motion to a division.

Question put, "That the word 'now' stand part of the Question."

The House divided:—Ayes 141; Noes 166: Majority 25.

Words added.

Main Question, as amended, put, and agreed to.

Second Reading put off for three months.