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

"The law of Scotland being now as heretofore, that consent, given in the way he had described, makes marriage – that it is, in the language of Archbishop Cranmer, 'beyond all doubt ipsum matrimonium ' – the present bill says that henceforth it shall not make marriage, whatever may have followed upon it, unless the consent is given in presence of a clergyman, or by signing the register. It does not say that all marriages must be celebrated in presence of a clergyman; but, professing to recognise the principle that consent, though not given in presence of a clergyman, may constitute marriage, it says that the consent shall be of non-avail whatever may have followed upon it, unless it was given in the particular form of signing the register, and can be there pointed out. No matter how deliberately the consent may have been interchanged, and how completely susceptible of proof. No matter although the parties may have lived all their lives as man and wife – may have so published themselves to the world every day, by acts a thousand times more public than any entry in a register can possibly be – by a course of life more clearly indicating deliberate and continued purpose than a single entry in a register can do. All that shall not avail them or their families; they are to be denied the rights and privileges of legitimacy unless they can point to their names in the journal kept by the registrar. To borrow the language of a high authority, relied upon in support of the bill, 'It may be according to the law of Scotland that it is a complete marriage, and so it may be by the law of God; but if the woman is put to prove that marriage after the birth of children, of that she is or may be without proof.' That which, by the law of Scotland and by the law of God, is a marriage, the people of Scotland wish to be allowed to prove by all the evidence of which it is susceptible. They do not wish that parties should be allowed to escape from such solemn obligations undertaken towards each other, to their offspring, and to society. They are unwilling that any man should be enabled, with the confidence of perfect impunity, to impose upon an unsuspecting community, by wearing a mask of pretended matrimony, behind which is concealed the reality of vice. I do not wonder that the people of Scotland have no liking to this measure. There may occasionally be cases in which the proof of marriage is attended with difficulty; and so there may be with regard to any matter of fact whatever. So there may be in regard to the fact of marriage under the proposed bill, even where the marriage has been celebrated in the most solemn manner in presence of a clergyman. Occasional difficulty of proof is not a satisfactory or adequate reason for so great a change in the law. Certainty is desirable in all transactions, and is especially desirable in regard to marriage; and the means of preserving evidence of such contracts is also desirable; but although these objects are desirable, they should not be prized so highly, or pursued so exclusively, as to endanger other advantages not less valuable."

We think it is impossible for any one to peruse the foregoing extract from the speech of the Dean of Faculty, without being forcibly impressed by the soundness and strength of his argument. He is not contending against registration; he simply demands that through no pedantic desire for uniformity or precision, shall the general principle of the law of Scotland regarding marriage be virtually repealed. We are indeed surprised to find a lawyer of great professional reputation attributing to the established clergy of the Church of Scotland a desire to arrogate to themselves the functions of the Church of Rome, whilst, in the same breath, he asks the legislature to constitute itself into an ecclesiastical court, and to enact new preliminaries, without the observance of which there shall henceforward be no marriage at all. If the old principle of the law is to be abandoned, if consent is no longer to be held as sufficient for the contraction of a marriage, but if some further ceremony or means of publication are thought to be essential, we have no hesitation in saying that we would infinitely prefer the proscription and annulment of all marriages which are not performed in facie ecclesiæ , with the previous proclamation of the banns, to a hybrid measure such as this, which neither declares marriage to be the proper subject of ecclesiastical function, nor permits it to remain a civil contract which may be established and proved by any mode of evidence within the reach of either of the parties. If marriage is not a sacrament, but a civil contract, why take it out of the operation of the common law? Why make it null without the observance of certain civil ceremonies, unless it is intended virtually to confer upon the legislature regulating powers which have been claimed by none of the reformed churches, and which, when arrogated by that of Rome, have been bitterly and universally opposed?

Another objection to our present law of marriage has been frequently urged, and great use has been made of it to prejudice the minds of English members in favour of the proposed alteration. We have already shown that there is in reality no doubt of what constitutes a Scottish marriage; that parties so contracting know very well what they are about, and are fully sensible of the true nature of their obligations. If any doubt should by possibility exist, it can be set at rest by a simple form of process – a form, however, which is never resorted to, unless there has been gross intention to deceive on the one part, or a most unusual degree of imprudence on the other. But it is said that the possible existence of a private marriage may entail the most cruel of all injuries upon innocent parties – that it is easy for a man who has already contracted a private marriage, to present himself in the character of an unfettered suitor, and to enter into a second matrimonial engagement, which may be, at any moment, shamefully terminated by the appearance of the first wife. No ordinary amount of rhetoric has been expended in depicting the terrible consequences of such a state of things; the misery of the deceived wife, and the wrongs of the defrauded children, have, in their turn, been employed as arguments against the existing marriage law of Scotland.

This is a most unfair mode of reasoning. Unless it can be shown, which we maintain it cannot, that the law of Scotland, with regard to matrimony, is so loose that a party may really be married without knowing it, the argument utterly fails. Without distinct matrimonial consent there is no marriage, and no one surely can be ignorant of his own intention and act upon an occasion of that kind. He may try to suppress proofs, but for all that he is married, and if, during the lifetime of the other party, he shall contract a second marriage, he has committed bigamy, and is guilty of a criminal offence. Lord Campbell, in his evidence, admits that the marriage law of Scotland has been perfectly well ascertained upon most points – that there can be no doubt what is, and what is not, a marriage; but that the real difficulty consists in getting at the facts. Armed with this testimony, we may fairly conclude that unintentional bigamy is impossible; but that bigamy, when it takes place, is the deliberate act of a party.

Bigamy is beyond all dispute a crime of a heinous nature. Its consequences are so obviously calamitous, that no power of oratory can make them appear greater than they are; and we should rejoice to see any legislative measure introduced which could render its perpetration impossible. But, unfortunately, the eradication of bigamy, like that of every other crime, is beyond the power of statute. It may perhaps be lessened by decreasing facilities, or by augmenting its punishment, but we cannot see how it is to be prevented altogether by any effort of human ingenuity. But if the marriage law of Scotland is to be assailed upon this ground, it is incumbent upon its opponents to show that it really tends to promote bigamy. If the wrongs so pathetically deplored have a real existence, let us be made aware of that fact, and we shall all of us be ready to lend our assistance towards the remedy. No paltry scruples shall stand in the way of such a reformation, and we shall willingly pay even for registration, if it can be made the means of averting an actual social calamity.