HL Deb 05 March 1849 vol 103 cc157-62

LORD CAMPBELL moved the Third Reading of this Bill.


said, that the noble and learned Lord, without making any observations, had now moved the third reading of this Bill. As he (the Earl of Aberdeen) had already addressed the House on the subject, it was not his intention to trespass on the attention of their Lordships at any length on the present occasion. He must, however, state, that he had received many letters from various parts of Scotland, complaining of the haste with which this Bill, and that for the Registering Births, had been pressed through the House, and expressing the desire of the writers that an opportunity should be afforded them of petitioning against them. He was rather surprised at this desire, seeing the entire neglect and inattention with which, for the last two years, the petitions on this subject had been received by the House. He would admit that, of late years, the right of petitioning had been so much abused that it was not wonderful that their Lordships should not receive these petitions with all that respect and interest which they would otherwise command. But this was no party question. It was one affecting the social condition of the people of Scotland, and one on which a great unanimity of opinion had been expressed, and still existed at this moment in that country. The more he considered the two Bills introduced by the noble and learned Lord, particularly the Marriages Bill, the more he was at a loss to ascertain the grounds on which it was introduced. He could discover no reason for it, and He could only consider it an attempt to make more perfect a general system of registration, without considering the evils which the alteration would inevitably produce. The alteration was supported by the most flimsy and wretched arguments. They were told that there was a system of registration of marriages provided for England, and therefore it was fitting that there should be a similar system established for Scotland. But those who urged these arguments, entirely forgot that there was no resemblance between the circumstances of the two countries. In England the system of registration and of marriages before the registrar was established in consequence of the numerous petitions which were presented by Dissenters, who formerly were obliged to go to the Established Church to be married, and against which they entertained conscientious scruples. Nothing of the kind was the case in Scotland. There was no compulsion there to go to the Established Church. Each party was married by the minister of the sect to which he belonged; and on this head, therefore, there was no practical grievance whatever. When he looked at the evils to the morals of the country that were likely to arise from the measure, he thought the present subject was one which deserved the most serious consideration of the House. They did not propose to interfere with the principle of the marriage law of Scotland. Under the present Act, marriage was still to be a civil contract, perfected by the consent of the parties. Although, fortunately, irregular marriages were not very frequent in Scotland, yet, when they did take place, their validity was unquestionable. A written promise given by the party, followed by cohabitation, was a valid marriage. He maintained that this was just. He said, that when a man gave a written promise, and thereby effected the ruin of a woman, it was only a matter of common justice that such a contract should be considered a binding one. This rule prevailed in every country of Europe; it was the law of Scotland at the present moment, and had been so for ages; and perhaps it would be quite as well if it prevailed in England. Now, this alteration would have the effect of holding out an indemnity and encouragement for seduction; for he believed he might take it for granted that seduction was generally effected by moans of some such promise. It generally appeared so in cases of actions for seductions in England. Let them look at any circuit in England. The cases of seduction in one circuit in England were often more in number than those which occurred in Scotland in the course of fifty years; and now, in spite of that which had been the law in Scotland time out of mind, Parliament was to say, that such a promise, followed by cohabitation, was no longer to be binding. Such a course would lead to an incalculable amount of guilt and misery. When he saw the institutions of his country overthrown, without the slightest show of reason, and contrary to the wishes of the people, he must say, that the feelings with which he viewed such an attempt were those of indignation. If their Lordships now wished to alter the law, they should appoint a Committee of Inquiry—they should call evidence, and see what the evils and advantages of the existing law were—they should inquire deliberately into the subject before they ventured to interfere with a matter which affected the welfare of the people of Scotland in the highest degree. But the system proposed to be established by the present measure was quite new, and had never yet been attempted. His noble and learned Friend (Lord Brougham) some years ago introduced a Bill on this subject; but what was the nature of that measure? That measure was one in which the noble and learned Lord attempted to remedy the evils which arose in consequence of the difference between the English and Scotch laws on the subject of marriage. His noble and learned Friend on that occasion stated truly, that the people of Scotland were exceedingly attached to this portion of their jurisprudence; and that, for his part, he had no intention of interfering with it; and he added, that one system might be advantageous in Scotland, and another in England, yet that was no reason why the people of this country should take advantage of the Scotch law to evade the provisions of their own law. On that occasion he (the Earl of Aberdeen) expressed his concurrence in the views of; his noble and learned Friend; but now it appeared that a change had come over him, and that he was prepared to sweep away, without hesitation, that law which he said before he had no intention whatever of interfering with. On this subject, he could only appeal to Philip sober. The law of marriage in Scotland had been frequently referred to in both Houses of Parliament during the debates on Lord Hardwicke's Act, but no one thought of proposing any alteration in it. He had heard Lord Eldon and Lord Stowell on the subject of the Scotch marriage law, and they had never suggested any alteration in this respect, however much they might desire to correct the evils arising from the evasion of the law of England. Neither Lord Hardwicke nor anybody else had ever hinted at the propriety of altering the law. Dr. Lushington had spoken of this law with respect, and had never intimated the slightest idea of any such alteration. He might be permitted to say, that a measure of such importance as to its objects, and the extent to which it might be carried, deserved to be approached with much more caution than had hitherto been shown, seeing that there could not be the least necessity for it, except to complete, and to render somewhat more perfect, a general system of registration. He had expressed himself strongly, because he felt deeply on the subject; and finding that it would be vain for him to contend against the domination to which he was exposed, he should merely add, that he never valued more highly than he now did the privilege which every Peer possessed of recording in a protest his opinion of any measure which he considered inexpedient and unjust.


was surprised at the complaint made by the noble Earl against these Bills. The present was the third Session during which they had been before the House; and both in principle and in detail they had been most deliberately discussed. It was on account of the very condition of the law of marriage in Scotland, described by the noble Earl, that he (Lord Campbell) bad introduced the Marriage Bill as an attempt to remedy its evils. Its object was to register those promises of which the noble Earl had spoken, in order that the marriages might be legalised and declared, for the sake of the wife and the offspring, so that if the marriage were ever questioned, the promise could be shown to have been made. No one could enter into a bargain for the sale of goods or lands without a written contract; and if his noble Friend would not part with any of his numerous estates without having a contract in writing, how could he object to a written contract of marriage between persons—involving so deeply as it did the peace and character of females and their families, the morality of the people, and the possession of property—being made so publicly as to render any denial of it impossible? The mode of marriage required to be carefully attended to. It was peculiar to Scotland, and the power of declaration or concealment lay with the parties themselves. They might live together for years as man and wife, and finally either declare their marriage, and legalise their children, or say they were never married, and so illegitimise their offspring. The noble Earl had referred to the custom of other countries, and had stated that no country in Europe refused to recognise a written promise of marriage otherwise than as a good marriage. He would venture to contradict the noble Lord, and to state that in no Christian country in Europe did a written promise of marriage constitute a marriage. In France, and every part of Christendom where the Council of Trent prevailed, no marriage was lawful unless it were entered into in the presence either of the parish clergyman or the officer appointed by law for the purpose. It was the object of the present Bill to assimilate the law of Scotland in this respect to that of every other Christian country, and to put an end to f. state of doubt as to what was, and what was not, a legal marriage.

Bill read 3a and passed; as was also the REGISTERING BIRTHS, &c., (SCOTLAND) BILL.

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