Various - Blackwood's Edinburgh Magazine, Volume 66, No. 407, September, 1849

The existence of this law effectually interfered with the establishment of such a system of registration as was contemplated by the reforming Whigs. So long as it stood intact, their efforts in behalf of uniformity, additional taxation, and increased patronage, were hopeless; and no alternative remained save the desperate one of deliberately smiting down the law. It was not difficult for men so purposed and inspired to find out defects in the marriage law, for never yet was law framed by human wisdom in which some defect could not be detected. It was, first of all, urged, that the state of the Scottish law gave undue encouragement to the contract of Gretna-green marriages by fugitive English couples. The answer to that was obvious – Pass a law prohibiting such marriages until, by residence, English parties have obtained a Scottish domicile. That would at once have obviated any such ground of complaint, and such a measure actually was introduced to parliament by Lord Brougham in 1835, but never was carried through. Next, the whole fabric of the law was assailed. The facilities given to the contraction of irregular marriages were denounced as barbarous and disgraceful to any civilised country. Old cases were raked up to show the uncertainty of the law itself, and the difficulty of ascertaining who were and who were not married persons. According to one noble and learned authority, the time of the House of Peers, while sitting in its judicial capacity, was grievously occupied in considering cases which arose out of the anomalous condition of the Scottish law with regard to marriage; and yet, upon referring to an official return, it appeared very plainly that, for the last seventeen or eighteen years, only six cases of declarator of marriage or legitimacy had been brought before that august tribunal, and that of these six, three had no connexion with the subject-matter of the proposed bill! Lord Brougham, who entertains strong opinions on the subject, felt himself compelled to admit, in evidence, that most of the hypothetical abuses which might take place under the existing system, did not, in practice, occur amongst natives and residenters in Scotland. Lord Brougham is to this extent a Malthusian, that he thinks minors ought to be, in some way or other, protected against the danger of an over-hasty marriage. His lordship's sympathies are strongly enlisted in behalf of the youthful aristocracy, more especially of the male sex; and he seems to regard Scotland as an infinitely more dangerous place of residence for a young man of rank and fortune than Paris or Vienna. In the latter places, the morals may be sapped, but personal liberty is preserved; in the former, the heir-expectant is not safe, for at any moment he is liable to be trapped like vermin. The red-haired daughters of the Gael, thinks Lord Brougham, are ever on the watch for the capture of some plump and unsuspecting squire. Penniless lads and younger sons may be insured at a reasonable rate against the occurrence of the matrimonial calamity, but wary indeed must be the eldest son who can escape the perfervidum ingenium Scotarum . This is, no doubt, an amusing picture, and the leading idea might be worked out to great advantage in a novel or a farce; but, unfortunately, it is not drawn from the usual occurrences of life. Isolated cases of hasty marriages may, no doubt, have taken place, but our memory does not supply us with a single instance of a clandestine marriage having been contracted under such circumstances as the above. In Scotland, a stranger may, for the base purposes of seduction, pledge his solemn faith to a woman, and so obtain possession of her person. If he does so, the law most justly interferes to prevent him resiling from his contract, and declares that he is as completely bound by the simple interchange of consenting vows, as though he had solicited and received the more formal benediction of the priest. Will any man gravely maintain that in such a case the tenor of the law is hurtful to morals, or prejudicial to the interests of society? Even if the woman should happen to be of inferior rank in life to the intending seducer, is she on that account to be consigned to shame, and the man permitted to violate his engagement, and escape the consequences of his dastardly fraud? In England, it is notorious to every one, and the daily press teems with instances, that seduction under promise of marriage is a crime of ordinary occurrence. We call it a crime, for though it may not be so branded by statute, seduction under promise of marriage is as foul an act as can well be perpetrated by man. In Scotland, seduction under such circumstances is next to impossible. The Scottish people are not without their vices, but seduction is not one of these; and we firmly believe that the existing law of marriage has operated here as an effectual check to that license which is far too common in England. Would it be wise, then, to remove that check, when no flagrant abuse, no common deviation even from social distinctions, can be urged against it? If seduction does not prevail in Scotland, still less do hasty and unequal marriages. Lord Brougham is constrained to admit that it is most unusual for Scottish heirs, or persons possessed of large estates, or the heirs to high honours, to contract irregular marriages when in a state of minority. The law, in the opinion of Lord Brougham, may be theoretically bad, but its very badness raises a protection against its own mischiefs – it ceases, in fact, to do any harm, because the consequences which it entails are clearly and generally understood. We confess that, according to our apprehension, a law which is theoretically bad, but practically innocuous, is decidedly preferable to one which may satisfy theorists, but which, when we come to apply it, is productive of actual evil. It requires no great stretch of legal ingenuity to point out possible imperfections in the best law that ever was devised by the wit of man. That is precisely what the advocates of the present measure have attempted to do with the established marriage law of Scotland; but when they are asked to specify the practical evils resulting from it, they are utterly driven to the wall, and forced to take refuge under the convenient cover of vague and random generalities.

It is said that, under the operation of the present law, persons in Scotland may be left in doubt whether they are married or not. This is next thing to an entire fallacy, for though there have been instances of women claiming the married status in consequence of a habit-and-repute connexion, without distinct acknowledgment of matrimony, such cases are remarkably rare, and never can occur save under most peculiar circumstances. The distinction between concubinage and matrimony is quite as well established in Scotland as elsewhere. Nothing short of absolute public recognition, so open and avowed that there can be no doubt whatever of the position of the parties, can supply the place of that formal expressed consent which is the proper foundation of matrimony. If the consent once has been given, if the parties have seriously accepted each other for spouses, or if a promise has been given, subsequente copulâ , there is an undoubted marriage, and the parties themselves cannot be ignorant of their mutual relationship. It is, however, quite true that proof may be wanting. It is possible to conceive cases in which the contract cannot be legally established, and in which the actual wife may be defrauded of her conjugal rights. But granting all this, why should the whole character of marriage be changed on account of possible cases of deficient evidence? For if this bill were to pass into law, consent must necessarily cease to be the principal element of marriage. No marriage could be contracted at all unless parties went either before the priest or the registrar; and the fact of the mutual contract would be ignored without the addition of the imposed formality. Upon this point the commentary of Mr M'Neill seems to us peculiarly lucid and quite irresistible in its conclusions.