MARRIAGE (SCOTLAND) BILL. (Hansard, 25 July 1848)

The EARL of HADDINGTON
was understood to oppose the Bill, on the ground that it recognised for the first time by statute marriages not solemnised in the face of the Church. No doubt the common law of the country admitted irregular marriages; but the Church had uniformly censured them, and Parliament had never hitherto given its sanction to them. The tendency of the Bill would be to tranfer the celebration of marriages from the Church to the registrar, and it was on this account that the General Assembly of the Church of Scotland had petitioned against it. He protested against forcing a Bill of 780 this sort upon an unwilling country, and hoped that at least it would be postponed till another Session, when the views of those interested in the matter would have been ascertained. He concluded by moving that the Bill be read a third time that day three months.

LORD BROUGHAM
hoped the noble Earl would withdraw his Amendment, and allow the Bill to pass; for really, he must say, that a more groundless prejudice than that which had been raised against it he had never known. He considered it to be a most beneficial measure—a measure which would greatly amend the law of Scotland, and lead to an improvement in the social condition of the people. He knew that great ignorance as well as great prejudice existed in regard to this Bill. Indeed, the amount of ignorance which had prevailed in different quarters in reference to it was wholly unexampled in his experience. He was sorry to hear his noble Friend (the Earl of Haddington) say, that the tendency of the present measure would be to do away with marriage as a religious ceremony, and to take the celebration of marriage out of the hands of that exemplary body the Scottish clergy. It would be all very well to make these sort of objections if the law of Scotland in regard to marriage were different from what it was; but let their Lordships only consider what the law really was on that subject at present. It did not require a clergyman of any denomination; it did not require a registrar, or any ceremonial whatever. It merely required a man and a woman of the age of consent—the one being fourteen and the other twelve. By a law taken from oriental climates—by a law taken from Constantinople—any girl of twelve and any boy of fourteen—without going before a clergyman—without going before a registrar or witness of any kind, beyond any postboy or chambermaid that might be at hand, or any peasant they might meet on the highway—for it was not necessary that the parties should go into a house for any purpose—it was not necessary that they should go into a church for any purpose—all that was necessary was, that before any sort of witness the man should say to the woman, "I take you for my wife," and that the woman should say to the man, "I take you for my husband;" and, this being proved, constituted as valid a marriage, under the civil law of Scotland, as any that had ever been celebrated by the Archbishop of Canterbury. Such was the law 781 of Scotland at present: and could anything be more barbarous? No time or space was given for reflection—away they went, and before they could count two on their fingers they were married. The present Bill, on the contrary, required not only that a marriage should be contracted either by solemnisation in presence of a clergyman, or before a registrar; but it also imposed certain restrictions, such as that there should be previous residence in the parish for a certain time, as well as previous notice to, and a certificate from, the registrar. And yet there were parties who said that the tendency of the Bill would be to put an end to marriages by the Church! At present a marriage solemnised by a clergyman was a perfectly valid marriage; it would be an equally valid marriage after this Bill had passed. In that respect there would be no change, So far as any alteration was effected in the existing law, it seemed to him to be a decided improvement. The provision of previous residence was in his opinion a very material improvement. The present measure would prevent the scandal which at present attached to the Scotch marriage law, and which was made the means of evading the English law of marriage. At, present Lord Hardwicke's Act was every day evaded by means of the existing Scotch law. He confessed he looked with great satisfaction to the present measure. He had long endeavoured to provide some remedy for the bad state of the Scotch law on this subject; and he thought the present Bill fully met the wants of the case. This Bill, and a little amendment of Lord Hardwicke's Act, would in his opinion, place the marriage law of the two countries on a satisfactory footing.

THE DUKE of ARGYLL
said, that although, considering the great importance of the subject, and the interests, opinions, and prejudices which would be affected by the Bill now under consideration, he could not help thinking that it would have been a wiser course for Government to have given a little more time for public discussion on it; and although with this view he had the honour of suggesting that the Bill should be referred to a Select Committee, for the purpose of receiving evidence with regard to the practical operation of the existing law; and although he had afterwards supported a Motion which was made by a noble Earl (the Earl of Aberdeen) who was not then present, recommending the postponement of the Bill for another 782 Session; yet, he felt bound to confess that, so far as he could see, if there was to be any change in the law of marriage at all, no Bill could proceed on safer or sounder principles than those upon which the present Bill proceeded. With respect to the opposition which had been offered to this Bill by the Established Church—with respect to the petition which had been presented to their Lordships' House from the General Assembly of the Church of Scotland—he was anxious to say a word. He had not seen the petition, but he thought he had heard it read when it was presented by a noble Lord at an earlier period of the Session; and, if he was not mistaken, the objection of the General Assembly to the Bill was, that for the first time it recognised formally by a statute of the Legislature marriages which were not celebrated in facie ecclesiœ. They admitted that the existing law had provided innumerable modes of contracting irregular marriages, not by statute law, but by the common law of Scotland. Their objection then came down to this, that for the first time there was put upon paper and sanctioned by that House that which by judicial decisions had been, from time immemorial, recognised as the common law of Scotland. Now, this Bill did not recognise all the irregular modes of contracting marriage which were admitted under the common law. It recognised marriages which were celebrated in facie ecclesiœ, by a clergyman of any denomination, and, beyond this, it recognised marriages by civil contract which were performed before a public functionary—the registrar. It did appear to him that the Bill afforded every possible scope for the contraction of marriages in Scotland. One objection raised to the Bill by a noble Earl (the Earl of Aberdeen) was, that it did away too much with irregular modes of marriage—that it placed too much restriction on the law of mariage; and the noble Earl held, that besides marriages by a clergyman of any denomination, and besides marriages before a registrar, there should be a statutory recognition of some other, although irregular mode, which the present law recognised. Now, no one was more inclined to pay the greatest deference and respect to the opinions of the General Assembly of the Church of Scotland than he was—he only wished their Lordships had paid more deference to those opinions at a time when that body represented a larger portion of the people of Scotland than it did at present, 783 and when its opinions were peculiarly valuable; but he felt bound to say that, considering the objections which the Assembly had brought against the present Bill, and looking to the specific reasons on which those objections were founded, he regarded them as quite untenable. He should, therefore, give his vote for the third reading of the Bill.

LORD CAMPBELL
said, it give him sincere pleasure to have the support of the noble Duke on this occasion, and he trusted that that support would have a powerful effect in doing away with the prejudices which at present existed against this great improvement in the law. They had been considering the subject for some years, and he did not think that any advantage could possibly result from further postponement. As to examining witnesses he could not see what information could be laid before them of which they were not already possessed. He appealed to his noble and learned Friends (Lords Brougham and Lyndhurst) whether they had not in the course of their legal experience found the most multiplied evils arising from the existing law? He believed that this Bill would do much to remove these evils; and that, so far from encouraging clandestine marriages, it would put an end to them, as there could in future be no marriage in Scotland except before a clergyman or before a registrar. He regretted very much that the Bill should have been opposed by the clergy of the Church of Scotland. He was himself descended from a minister of that Church, and had always entertained the greatest possible respect and affection for it; but he must say that on this occasion he thought the objections of that body altogether unreasonable. He trusted, however, that upon further consideration those objections would gradually die away, and that the Bill would be received by the people of Scotland in the manner it deserved to be received, as a great improvement in their social condition.

LORD BROUGHAM
expressed his astonishment to find the clergy of the Church of Scotland objecting to the Bill, as recognising marriage by civil contract for the first time, in the face of the notorious fact that it had been so recognised by the Judges of England for the last sixty or seventy years, and uniformly so by the Judges of Scotland.

The EARL of HADDINGTON
assured their Lordships that he was by no means attached to the present system of irregular 784 marriages, nor unfavourable to any well-considered measure of reform which should have the sanction of the Church and those whose opinions were entitled to weight on the subject; but he did not consider the present to be a measure of that description. He begged to say that his noble and learned Friend (Lord Brougham) had misstated the objection of the Church of Scotland. That objection was not that marriage would be recognised for the first time as a civil contract, but that this would be its first recognition by statute. Seeing the feeling of the House, however, he would not press his Amendment.