HL Deb 19 February 1849 vol 102 cc857-67

LORD CAMPBELL moved the Second Reading of the Bill to amend the Law of Marriage in Scotland. In doing so, he need only remind their Lordships of the great importance of the marriage contract, and of the absolute necessity that there should be, in every well-governed country, both facility and safety secured to those entering into it. To do this it was necessary to take care that the evidence of the contract should be, in all cases, clear and decisive, so that the status of the woman might be ascertained, and no question raised as to the legitimacy of the children. The present law of Scotland did not meet any of those conditions. By the law of Scotland one mode of marriage was recognised, which was very ordinarily adopted and very laudable. Marriages might be celebrated in the church or other place by a regularly ordained clergyman; but, for all civil purposes, there might be a marriage contracted in Scotland by a simple acknowledgment of the parties that they were married; there might be a valid marriage by a promise of completion de futuro; there might be a valid marriage by cohabitation and custom. The consequence of this state of things was to place the woman in a degrading situation; it was most unjust to her; the law operated disadvantageously for all parties, for nobody who had lived a short time in Scotland could know whether he was married or not. Their Lordships must have heard a great deal of Gretna-green marriages; but it was not only the blacksmith of Gretna-green who operated as a priest of Hymen; for all along the border there were a set of functionaries who carried on a very thriving trade in that line. The hierophant of Gretna-green, he understood, had declared before his death, that he had united in his time 30,000 couples. He believed many of those who wont to Gretna-green were carried away by the feeling of fun, and in their ecstasies never considered that the ceremony was binding upon them, but merely as a joke, and thought, when the year came round, they might make the same excursion in company with a new partner. This Bill would enact that marriage should only be valid in one of two ways—either by a religious ceremony performed before the clergyman, or by the parties appearing before a public officer, and signing with their names a public document, attesting that they were man and wife, which should be preserved in evidence. The measure thus proceeded on the same principle as the Marriage Act of 1836, which had operated most beneficially. In England a marriage might now be constituted before either a clergyman or a magistrate. He was happy to say that the facility of going before the magistrate had not in very many instances been taken advantage of, for in the great majority of instances the marriage took place in the presence of the clergyman; and he believed that in Scotland, in like manner, marriages would almost always be celebrated before the pastor of the parish. The publication of banns would not be required under this Bill, but there were provisions to effect the same object; all that it was proposed to require was that there should be either proclamation of banns, or that due notice of the marriage should be given to the registrar, which would effect all the purposes of banns. It had been said that this Bill would, for the first time, establish clandestine marriages in Scotland. He owned it was with the greatest astonishment he had heard that allegation. At present indeed, in Scotland, persons might be made man and wife by what was in fact a clandestine marriage, or little better than no marriage at all; but hereafter, all persons contracting marriage must go before a clergyman in orders, or a magistrate. The noble Earl opposite (the Earl of Aberdeen) contended that there had been no complaints of the present law; but upon such a subject could you expect any? A great many petitions, it was true, had been presented against the Bill, but this arose from a misunderstanding, as there was a clause originally placed in it, of disqualifying schoolmasters from being registrars. The moment he (Lord Campbell) saw that clause, it was expunged. That clause did not appear now; it had been erroneously thought to be directed against the Established Church, for which he (Lord Campbell) had the greatest respect: hence the petitions. A Select Committee had last Session examined the Bill, which was attended by all the noble Lords Members of that House who were connected with Scotland, and the opposition had now very much subsided. There was another Bill respecting registration, for which the noble Earl opposite had called, and to which he believed the noble Earl did not intend to offer any opposition; that also stood for a second reading.


said, not- withstanding the reasons offered by the noble and learned Lord for the Bills of which he had moved the second reading, he regretted that he must venture to state some objection to that affecting the constitution of marriage; to the Registration Bill he did not intend to offer any. His opposition to the former Bill did not arise from any blind admiration of the law now existing, nor from any unwillingness to agree to large and sweeping amendments of the law where these were necessary. The noble and learned Lord would perhaps recollect that last Session he had given his humble and zealous support to a measure for carrying through large alterations in the law of Scotland. His opposition to the present measure arose entirely from a conviction that it was uncalled for, that it was most impolitic, and he thought likely to be very injurious to the people of Scotland. Everybody must admit that a complete registration of births, deaths, and marriages was highly desirable. At the same time the advantages of such a system might be over-rated—we might pay too dearly for them; but at all events he must complain that this great alteration in the law of the country affecting marriages should be made, as a means of perfecting the sys-tem of registration. If the noble and learned Lord thought the marriage law in Scotland so defective as he stated, let him, quite irrespectively of registration, introduce a Bill for improving it. But to take this Bill by way of perfecting a Registration Bill appeared to him quite preposterous. The case was not at all similar to that of the alteration of the marriage law in England some years back. The alteration effected in this country by the registration of marriages arose from the intolerable grievance arising from Lord Hardwicke's marriage law, by which Dissenters were so much aggrieved that it was thought right to relieve them from the necessity of coming to the Established Church for the purpose of effecting a marriage. In Scotland, nothing of that kind existed. The person was married by the minister of the religious sect to which he belonged, and there was no occasion to establish any court of registration for the purpose of constituting marriage. Clandestine marriages were extremely few; and the worst that could happen from passing a Registration Bill, with the existing law of marriage in Scotland, would only be, that to a certain extent the registration would be imperfect where clandestine marriages were in ques- tion. Who had ever asked for the measure? Where were the complaints against the existing law? Certainly two or three learned Lords in that House had urged some; but, with great deference to them, he begged to say that the united opinion of the country, repeatedly pronounced for two years consecutively, in a multitude of petitions against the proposition, whilst there were none in its favour, deserved some attention on a question which affected the social condition of every man. The existing law had worked well in Scotland. For centuries no complaint had been made against it; and under its operation the people would bear comparison with any of their neighbours upon all moral and religious qualifications. For these reasons, he was not one of those who concurred with the noble and learned Lord as to the necessity of the measure. If it so happened that offences against the existing law were extensive, it would be the duty of Parliament to apply a remedy to counteract them; but the fact was, they were extremely restricted, so much so that the feeling of the country upon such a subject deserved to be respected. He would remind the noble and learned Lord of the terms of the 18th Article of the Act of Union with Scotland. It was there specially engaged, that laws affecting civil public right, policy, and civil government, might be made the same in all parts of the united kingdom; but that laws concerning private rights should only be altered for the evident utility of the subject within Scotland. He must say, upon the principle of this Article, that some further proof was required of this measure being for the utility of the subject in Scotland, than had been offered by the noble and learned Lord, after the almost innumerable petitions that had been presented against it. He entreated the House to consider that they were not legislating for persons governed by the same laws, and influenced by the same opinions and prejudices, as the people of England. They were legislating for a country under an entirely different system of law; for a people whose feelings and prejudices were altogether at variance with their own; and to which, nevertheless, it was their duty to give every attention. The foundation of the law of Scotland was the foundation of the law of all civilised Europe; the law from which this country was continually borrowing, with the view of rendering its own more perfect; and it was one deserving the highest respect and honour. But the Bill before the House imposed restraints upon the celebration of marriage in Scotland which that law did not recognise. It was essential to the happiness and morality of the country that marriage should be made as easy as possible. In England marriage was considered to be indissoluble. He did not enter into the question whether that principle was right or wrong; but he must say that the practice was entirely at variance with the principle. Every Session marriages were dissolved, not only by an exceptional and legislative proceeding, but by a judicial Act; and any person coming to that House for a divorce, upon proof of his wife's adultery, obtained it ex debito justitiœ. A man in such circumstances would be treated with the height of injustice if their Lordships did not grant him a divorce from that marriage which they said was indissoluble. Yet what was more inconsistent? He knew that in this country marriage was not considered a sacrament The only rational explanation of marriage ever having been considered indissoluble in England was, that it was held as a sacrament by the Roman Catholic Church, and that, therefore, it was indissoluble. But in the early period of the Reformation, marriages could be dissolved, although no ecclesiastical court now existed by which such dissolution could be pronounced. The fact of marriage being considered a sacrament by the Roman Catholic Church, arose, he believed, from a mistake in the translation of the words of Scripture: the words which ought to have been translated, "this is a great mystery," being given in the Vulgate, "this is a great sacrament." England, however, was the only Protestant country in Europe in which marriage was held indissoluble. The law of Scotland, in this respect, which he trusted the noble and learned Lord would not think it necessary to alter, for it was preferable to the supposed indissolubility professed in England, permitted only two causes for divorce—namely, adultery and wilful desertion for the length of four years. Believing it was of great importance to the morality of the country that marriage should be easy, he also thought it of equal importance that divorce should be difficult; and the law of Scotland, in that respect, stood upon a most rational and safe foundation. Marriage, by the law of Scotland, was a civil contract, the essence and whole character of which de- pended upon mutual consent. This was also the doctrine of the civil and the canon law, consensus facit matrimonium. He could see no reason why proof of that consent should be different from the evidence afforded in any other civil contract. The noble and learned Lord had referred to the other irregular modes of marriage, all of which, however, were equally valid according to the law of Scotland. The first of these was marriage according to written promise, followed by intercourse. This, be it remembered, was acknowledged as a binding contract in every civilised country. It might be proved by the writing of the man, or by oath. Then, why should a man be allowed to take advantage of a fraud, and abandon the woman whom he had contracted to marry? He contended that the present laws and customs of marriage in Scotland, so far from having a demoralising effect, tended materially to promote good morals in that country. The crime of seduction was of very rare occurrence in Scotland; but in England, where a promise of marriage did not constitute in any practical sense a marriage contract, the cases of seduction were innumerable, or, at least, they enormously exceeded the proportion of similar cases in Scotland, proving that this law was a protection to females. He knew the noble and learned Lord would say, that by it many men had been entrapped by artful and designing-women. He did not pretend to deny that cases of that sort occasionally occurred; but he maintained, that for one man entrapped by an artful woman, hundreds of women were ruined by artful men. It was for the female that the interests and sympathies of the House ought to be called forth, and not exclusively for the protection of men, who were so much better able to protect themselves. For these reasons he saw no ground why this mode of contract should not be allowed to continue. The same with a declaration before witnesses. Where a mutual declaration was made before witnesses, he did not see any reason why it should not be admitted as proof of a consent having been given, as well as a written promise. So also with marriages by repute. No length of cohabitation would constitute a marriage by repute, if anything appeared by which it was shown the parties did not intend to contract marriage. No doubt cohabitation was primâ facie evidence of such an intention, but twenty years living together would not necessarily constitute it, if there was evidence of such not being the intention; whilst six months was sufficient if it were proved that mutual consent had been given. He had no objection to sonic provision to define the legal effect of cohabitation; but as to saying that a man could not tell whether he was married or not, such a case was impossible; because if it was clearly shown that cohabitation was the effect of mutual consent, repute would constitute marriage. However, he wished it to be understood that while he was unwilling to disturb the present methods of marriage in Scotland, he was quite ready to agree to any measure to prevent the law of Scotland from being abused by being made subsidiary to the purposes of natives of England who might desire to repair to that country in order to evade the law of England. To such a measure he could have no objection; for, although the people of Scotland were perfectly satisfied with their own law, they had no desire to extend it elsewhere. On the whole, he was inclined to think that the noble and learned Lord opposite had failed to make out a case to show that the present Bill was required. To the Registration Bill he had no objection whatsoever, but he thought the Marriage Bill would impose restraints which would be inconvenient and burdensome to the poorer classes of the community. As the system of compulsory registration was now in Scotland, it might be well to see how it worked before they ventured to interfere with the law of marriage. If they found that the Registration Bill worked well, he should not be disposed to offer any opposition to any measure which it might be deemed judicious hereafter to introduce to remedy any imperfections that might be proved to exist in the present marriage system. The Bill before the House, however, provided that marriage should only be solemnised in one or other of two ways in Scotland, and to that provision he could not consent.


expressed his cordial approval of the Bill, but regretted that its ill-assorted marriage with the Registration Bill had led to this result, as in other unions, that the objections which were thought to prevail against the one measure, had been communicated to the other. The impression appeared to have gone abroad that the Marriage Bill had been brought in to complete the Registration Bill; but the very reverse was the fact. It was the Registration Bill that was designed to be auxiliary to the Marriage Bill. The Scottish law in the ab- stract was a good one, but it was nevertheless open to objections which he trusted the present measure would be efficient to remove. The Bill would be decidedly salutary in this respect, that it would throw impediments in the way of clandestine marriages, which were, for the most part, ill-considered and mischievous. There were many persons in Scotland who were in utter ignorance as to whether they were married or not—who could not tell whether they were free to marry again, or whether they might not be liable to indictment for bigamy. It was, in fact, sometimes a most difficult thing, as the law now stood, for a man to ascertain whether he was married or single. Some of the most perplexing and intricate cases that had ever been presented for adjudication at the bar of that House, were those in which the question was raised, whether A. B. was married to C. D. It was acknowledged all over Europe that the contract of marriage was a civil contract, and even the Council of Trent did not render it imperative that a priest should assist at the ceremony. In France, although the nuptials were performed with all the ceremonious splendour of the Roman ritual and mass—or oven high mass might be celebrated on the occasion—the marriage was, in point of fact, not worth anything unless it was attested before a notary or magistrate, because it was the civil contract that constituted the marriage. The disputes as to legitimacy or illegitimacy, which were continually arising in this country, because of the imperfect state of the marriage law, were numerous and most perplexing. There was no end to the doubts upon the question. If a man went into the Court of Chancery to claim personal property, he was declared to be legitimate; but if he went into the Queen's Bench or Common Pleas, to lay claim to lands by the process of ejectment, he was declared to be a bastard: if, however, he went back to Chancery, then he became legitimate again. He entirely concurred with the noble Earl who had spoken last in the opinion that in Scotland, as in England, it was highly desirable that the marriage contract should have a heavenly sanction, and that it should be celebrated with solemnity. He cordially responded to the sentiment Nee Dens intersit nisi dignus vindice nodus; and it was because he believed this Bill would promote so desirable an end, that he was prepared to give it his warm support. The noble Earl thought it was a hardship that a man should be compelled to comply with the provisions of the Act, instead of being married at once; but it should be home in mind that this measure gave him a little time to consider; and surely that was desirable when there was a question of engaging in the most solemn and responsible of all earthly compacts. No other measure except that now under consideration had been suggested to remedy evils which he believed to be most serious; and he, therefore, should not hesitate to give his cordial support to the Bill.


, in explanation, remarked, that any one who should judge of the results of the existing state of the law of marriage in Scotland from the speech which had been just delivered by his noble and learned Friend, might be induced to imagine that the greater portion of their Lordships' time was passed in hearing and determining upon appeals from decisions of the courts of Scotland on cases of contested marriages and descent, on account of being clandestinely or illegally celebrated, and so on. Now, he (the Earl of Aberdeen) had been at the trouble of calling for returns from the Courts of Session, touching the results of all such proceedings as those during the last eighteen years. And from these documents it appeared that, in all that period, and since the extinction of the old exclusive jurisdiction of the ancient consistorial courts in such questions, 104 cases had been brought before the court, of which sixty-eight had been followed up to judgment; of these only six such appeals from the Courts of Session had been prosecuted to that House; and of those six, in one only had the sentence of the court below been reversed.


begged to explain, for the further information of noble Lords, that of the 104 cases alluded to, the marriages in thirty-four had been declared to be valid; in thirty-seven, sentence had established their invalidity; and the other cases were left in such a position as that, in all human probability, it would never be found possible to determine whether the marriages in dispute were good or bad.


signified his intention to give the Bill his cordial support. It was not correct to say that the Marriage Bill had been brought in to complete the Registration Bill: it was only true that they had been introduced coincidentally or contemporaneously, and the noble Earl seemed to have some objection to the measure now under discussion on that account. But he (the Duke of Argyll) would entreat noble Lords to judge of the important measure which they were now considering on its own merits, and without reference to any other Bill. If he understood aright the noble Earl who had opposed the measure, his principal objection to it was that it tended to limit in a dangerous degree the existing facilities to contract marriage; but he (the Duke of Argyll) did not believe it would have any such operation. He begged to call their Lordships' attention to the provisions of the Bill. Under the existing law, in Scotland, marriages were legal if performed before a clergyman; but there were also several irregular modes of contracting matrimony, which were likewise legal. The present Bill purposed to recognise all marriages performed before ministers of religion of all denominations whatsoever, and, in addition, it contemplated that those few persons who might have an objection to be married before a clergyman might be married, if they preferred, before a secular functionary, who was to be called a registrar. He was at a loss to understand how the noble Earl opposite could entertain grave objections to the practical working of the measure, for the Bill provided every facility for marriages which would otherwise have to be proved. There could be no doubt that consent was the principal element of the marriage contract; but assuredly it ought to be a consent, not given in a moment of passion, but a consent the result of mature deliberation, and which might be avowed freely in the face of the world, and more especially in the presence of those who ought to be the best judges of the propriety of the contract. He trusted that there would be no misapprehension in Scotland as to the true object of this measure. It would make no difference to the people of Scotland. They were a people of high moral feeling, and were usually married with consent of all concerned, and by a minister of religion. The present Bill would not prevent them from doing so for the future—on the contrary, it would have a decided tendency to encourage marriages before a clergyman, for it provided that the fee to be paid to the registrar should be considerably larger than that paid to the clergyman, and thus there would be a pecuniary as well as a moral advantage in favour of marriage before a clergyman. In conclusion, he would only state that, being of opinion that the Bill was calculated to do much good, and not perceiving the force of the objections urged against it by the noble Lord opposite, he should not hesitate to support the measure.


regretted that a suggestion for the postponement of this Bill, which he had thrown out on a former evening, had not been attended to. To him, the main objection to the Registration Bill appeared to consist in the great staff which would be required for its machinery. If he was rightly informed, this must embrace some 2,000 registrars and other officers in Scotland, who would be nominated under this measure, and at a very heavy expense indeed—an expense which would be the more felt, coming as it did in addition to the increased expenditure on the poor, caused by the New Poor Law Act. As for the Marriage Bill, nothing assuredly could be more reprehensible in principle, or more objectionable in its effects, than the law of marriage as hitherto existing in Scotland; and on that account he was disposed to give every chance to these attempts to remedy or modify it. If this Bill could have the effect of driving people away from their clergymen, he would most certainly oppose it; but he did not think that it would be attended with such consequences; and though he preferred the minister to the registrar, he preferred the registrar to the blacksmith.

LORD CAMPBELL in reply, complained that he had been greatly misunderstood by his noble and learned Friend (Lord Brougham) in what he had said as to what ought to be the nature of the contract. Now, all he (Lord Campbell) had contended for was that the contract of marriage ought to be entered into with great deliberation, and that it should be recorded with all due care and solemnity, in legal form.

Bill read 2a.

House adjourned till To-morrow.