HL Deb 09 June 1848 vol 99 cc567-73

said, that he must now earnestly entreat their Lordships' attention for a short time whilst he explained the provisions of these two Bills, which were of the greatest importance to that part of the United Kingdom to which he belonged. It was not often that Scotland demanded much of their Lordships' time. Ireland occupied a great deal more, and therefore he hoped that the House would not grudge him a few minutes whilst he called their Lordships' attention to these two Bills. It was the more necessary that he should make some detailed statement on this occasion, as both these measures had been greatly misunderstood or greatly misrepresented in Scotland. They could not be regarded in any political aspect—their consideration involved no party dispute—they were simply two Bills intended for the improvement of the social condition of Scotland. The object of one—the Bill for the Registration of Births, Deaths, and Marriages in Scotland—was to extend to that country the measure of 1836, which had been found to work so beneficially in England. At that time he had the honour to be Attorney General, and it was his duty to carry the measures on those subjects in reference to England through the House of Commons. He found very little difficulty in that task, for the English people almost unanimously agreed that those measures were necessary; and he was utterly unable to understand and to account for the number of petitions which had been presented against the present Bills from the northern part of the kingdom. In every parish of Scotland there was, it was true, what was called a registry, but it was utterly useless; and it must be superseded, and a different system established. In every parish there was a parish registry kept by the session-clerk; but that did not contain a registration of births, but only of baptisms, and only of such baptisms as took place under the superintendence of the clergy of the Established Church of Scotland; and he was sorry to say that he could hardly venture to state that now the majority of the population of Scotland existed within the pale of the Established Church. According to the law of Scotland no religious ceremony was necessary for the purpose of rendering a marriage complete; and it so happened that no perfect registry of marriages existed in that part of the United Kingdom. Even in those cases in Scotland where religious ceremonies were used at marriages, the number of religious denominations into which Scotland was divided rendered the maintenance of such a register a matter of no small difficulty, for the population was divided into Presbyterians, Episcopalians, Free Churchmen, Independents, and several other divisions; the marriage register therefore, as it now existed, was not of much use. According to the measure before their Lordships, there would be in Scotland a general registry for every county presided over by a superintendent, and the whole registry of Scotland would be under the direction of a general superintendent at Edinburgh. Under this Bill, also, measures would be taken to render compulsory a registration of births, deaths, and marriages; and when any such registration should be effected, it would impose upon the party making it no expense beyond a penny for the postage of a letter, or the trouble of sending a messenger a short distance. When he said that no expense was to be incurred, he thought that the fitting opportunity to notice some rumours that had gone abroad upon this subject. It was said that a very heavy assessment was to be laid upon the people of Scotland for the purpose of defraying the expenses of the proposed plan. What was the fact? The Chancellor of the Exchequer consented, as he had done with regard to England, that all the expenses should be paid out of the public Treasury, except the sum of 2s. 6d. compensation to the registrar: that expense it was intended should be borne by Scotland; and what did the House suppose it was estimated that those charges would amount to? No more than 8,500l. for the whole of Scotland. In that part of the United Kingdom there were 900 or 1,000 parishes, and that sum distributed amongst them would not be much to each. Here he thought it right to observe that, by the measure now before their Lordships, the session-clerks would not in any respect be affected. The Bill would not affect their emoluments; but as to awarding compensation to other parties who might suffer, it would he impossible to award anything in the shape of compensation until the amount of loss could previously be ascertained. He now came to the Marriage Bill, which was a matter still more misunderstood. Upon this subject he need scarcely remind their Lordships that it was necessary so to legislate for Scotland, as that the measure before them should carry out in the most effectual manner possible the main purpose for which marriage was instituted. They ought so to legislate as that there should be no doubt whatever of the fact—no uncertainty as to whether in a particular case a marriage did or did not exist; and every facility should be given for proving it at any time. In Scotland at present a man could scarcely tell whether he was married or not. Boys of fourteen, and girls of twelve, might contract matrimony without the consent of their parents or guardians, and without being resident in the locality where they were so married. The law of marriage in Scotland was most anomalous; there was nothing like it in any civilised country. There were four modes of effecting marriages in Scotland. The first was a religious rite, before a minister; the second was, without a clergyman, the parties acknowledging themselves before witnesses to be man and wife; the third, by a promise proved; and there was yet a fourth, marriage by repute, where, if parties were believed to be man and wife from their conduct, they were held, at any distance of time, to be married. He knew it had often been said, that under this system the Scotch were still a moral people. No one could feel a greater pride or pleasure than he did in repeating the assertion that the people of Scotland were a moral community; but their morality existed, not in consequence, but in despite, of their marriage law. Although cases of seduction were not frequent in Scotland, yet he fully believed that the existing state of the marriage law greatly facilitated seduction. Again, persons who cohabited together without being married, did often for decency sake give to each other the title of husband and wife, and to all appearance did stand towards each other in that relation, and after the lapse of a short time—say a few years—such parties ceased to live together, declaring that they never had been married; hence a vast amount of litigation, as the appeals which came before their Lordships from Scotland abundantly testified. It was therefore proposed by this Bill to institute a fixed and known process by which this rite might he accomplished. There would, in future, if this Bill ever passed, he only two ways by which marriage could be contracted. The first, a religious rite, celebrated by a clergyman; and the second, a civil contract, entered into before a public functionary—the registrar. In the first case special licenses would only be allowed after a certain residence, and with the consent of guardians—a process which would put a stop to all clandestine marriages; and in the second case, due notice would be required to be posted in various public places. Now, his countrymen, the Scotch, had such a horror of innovation, that it was scarcely possible to effect any improvement; and, accordingly, there had been a strenuous opposition raised on various grounds, strong enough to prevent the passing of a similar Bill last Session. This opposition had now, however, much subsided, and he hoped the measures would this Session be passed. The noble Lord opposite had proposed that the Bills should be referred to a Select Committee, and to that course he should not object, as there were several verbal alterations which were required. His Lordship concluded by moving that the Bills be now read a second time.


briefly seconded the Motion. With regard to marriages by registrars, he took the opportunity of saying, that he considered that in England that innovation had been a failure, or nearly so. The people generally—and the Dissenters, for whose relief the measure was passed particularly—preferred being married in the good old way in the churches of their forefathers. He ridiculed the system of publishing bans, and considered the posting of the bans on the church and meeting-house doors, as enacted by the present Bill, a great improvement, and one which he himself had suggested in a Bill introduced in 1835. The noble Lord took the opportunity of stating, with relation to Gretna Green marriages, the curious fact, that at one period, the Lord President of the Council, the Lord Chancellor, and the Lord Privy Seal, the three highest officers of the Crown, were all married at Gretna Green.


said, that though it was not his intention to put their Lordships to the trouble of dividing upon the subject, yet, in regard to the Registration Bill, he should, with a view to placing hereafter his protest against that measure on the journals of the House, move that it be read a second time that day six months. The Bill inflicted penalties on parties for not doing that which it was physically impossible to accomplish; and he must say that he thought the object of the Bill might be obtained by some other measure than this—that, for instance, the parish register might be made quite efficient for the purpose required at much less cost, and without the vast addition of machinery provided by the measure under discussion. The noble Earl then moved the Amendment, repeating that it was not his intention to divide the House.


observed, that though he did not object to the principle of a registration, still he did object to the principle on which it was proposed that this registration should be carried out. He had very great objection to the vast amount of patronage that would be created under the Bill; to the great number of officers to be appointed under it, and which could scarcely be calculated at less than 2,000. But another reason for his objections to this measure of registration was, that he could not but think that the present machinery, with the addition of a clerk here and there, would be quite sufficient for the purpose, although he was quite ready to admit that registration, to be effectual, should be compulsory. The noble Earl was understood to entertain no material objection to the Marriage Bill. He hoped that great alterations, however, would be made in the registration measure by the Committee; if not, he should offer opposition to it on the third reading.


did not see that there was any such connexion between these two measures as to make it necessary for the noble and learned Lord (Lord Campbell) to move them both together. He admitted that it was desirable to have a complete system of registration of births, deaths, and marriages in Scotland; but they should take care that they were not made, as they might be, to pay too dearly for that advantage. If the Marriage Act was defective, let it be improved; but by no means let them interfere with a subject of such vital importance as the law of marriage for the mere purpose of improving registration. The noble Earl recommended the postponement, for the present, of the Bill relating to marriages, as he was not aware that, so far as Scotland was concerned, there was any general complaint of the working of the present law on that subject. At all events, it was not at all necessary to proceed with the Marriage Bill with the view to the success of the other measure.


in reference to the Registration Bill, objected greatly to the principle of centralisation which it embodied. The measure as it stood, in fact, would destroy all local power, and confer nearly unlimited powers on the central authority. Let him remind their Lordships, too, that in England the introduction of the centralisation principle into the administration of the poor-law had added greatly to the expenses of the poor-rates; and they would find, he feared, that this Bill would produce a similar effect in Scotland. With respect to the Marriage Bill, he objected to the clause which provided that parties, after being married by a clergyman, should be under the necessity of going before the registrar at all, inasmuch as that would tend to reduce marriage to a mere civil contract. He thought that the certificate of the clergyman, in clerical marriages, should be sufficient to authorise the registration.


was understood to say that he did not see why persons married by the clergy should have to go before the registrar at all, and to express his hope that the measure would be much improved in Committee.

Amendment negatived,

Bills read 2a.

House adjourned.