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

But here again we find, on examination, that we are dealing with a pure hypothesis. We are told of horrible private injuries that may occur under the operation of a law which has been in force for centuries: we ask for instances of those injuries; and, as in the former case, it turns out that they have no existence save in the imagination of the promoters of the new bills. If the present law of Scotland has a tendency to promote bigamy, surely by this time it would have been extremely fruitful in its results. On the contrary, we are told by Lord Campbell that the Scots are a very virtuous people; and certainly, in so far as bigamy is concerned, no one will venture to contradict that opinion. One case, it appears, has occurred, in which a man of high rank, having previously contracted a private marriage under peculiar circumstances, married a second time, and that union was found to be illegal. The case is a notorious one in the books and in the records of society, and it occurred forty years ago. "About forty years ago," said the Dean of Faculty, "a gentleman of high position in society, so far forgot for the time what was worthy of, and due to that position in point of honour, and truth, and observance of the law, as to marry a lady in England, while he had a wife living in Scotland – and so he might have done if he had had a wife living in France or Holland. In short, he committed bigamy. And this one case of bigamy, forty years ago, without even an allegation of any similar case since that time, is brought forward at the present day, as a reason for now altering the law of Scotland in regard to the constitution of marriage." The individual in question lived and died in exile, and the case is never quoted without expressions of deep reprobation. It is the only one of the kind which can be brought forward; and surely it cannot be taken as any ground for altering the established law of the country. But does registration prevent bigamy? Unfortunately it is shown by numerous instances in England that it does not. In that country, registration is already established, but, notwithstanding registration, bigamy is infinitely more prevalent there than in Scotland. It is, indeed, impossible by any means of legislation to prevent imposition, fraud, and crime, if men are determined to commit them. Registration at Manchester will not hinder a heartless villain from committing deliberate bigamy in London. The thing is done every day, and will be done in spite of all the efforts of law-makers. Why, then, make the law of Scotland conformable to that of England, since, under the operation of the latter, the very grievance complained of flourishes fourfold? We pause for a reply, and are likely to pause long before we receive any answer which can be accepted as at all satisfactory.

Under the Scottish law, it is admitted that there is far less seduction, and far less bigamy, than under the English law, which is here propounded as the model. And having come to this conclusion – which is not ours only, but that of the witnesses examined in favour of the bill, all evidence against it having been refused – what need have we of saying anything further? Surely there is enough on the merits of the question to explain and justify the unanimous opposition which has been given to the Marriage Bill by men of every shade of opinion throughout Scotland, without exposing them to the imputation either of obstinacy or caprice: indeed we are distinctly of opinion that the promoters of the bill have laid themselves palpably open to the very charges which they rashly bring against their opponents.

We cannot, however, take leave of the subject, without making a few remarks upon the evidence of a noble and learned lord, who was kind enough to take charge of this bill during its passage through the upper house. Lord Campbell is not a Scottish peer, nor, strictly speaking, a Scottish lawyer, though he is in the habit of attending pretty regularly at the hearing of Scottish appeals. But he is of Scottish extraction; he has sat in the House of Commons as member for Edinburgh, and he ought therefore to be tolerably well conversant with the state of the law. Now we presume it will be generally admitted, that any person who undertakes to show that an amendment of the law is necessary, ought, in the first place, to be perfectly cognisant of the state of the law as it exists. That amount of knowledge we hold to be indispensably necessary for a reformer, since he must needs establish the superiority of his novel scheme, by contrasting its advantages with the deficiencies of the prevalent system. But in reading over the evidence of Lord Campbell, as given before the Committee of the House of Commons, a very painful suspicion must arise in every mind, that the learned peer is anything but conversant with the Scottish marriage law: nay, that upon many important particulars he utterly misunderstands its nature. Take for example the following sentence: —

"With regard to this bill which has been introduced, I am very much surprised and mortified to find the grounds upon which it has been opposed; for it has been opposed on the ground that it introduces clandestine marriages into Scotland. I think, with deference to those who may have a contrary opinion, that its direct tendency, as well as its object, is to prevent clandestine marriages. I may likewise observe, that I am very sorry – being the son of a clergyman of the Church of Scotland – to find that it is opposed, and I believe very violently opposed, by the clergy of the Established Church of Scotland. I think that they proceed upon false grounds; and I am afraid , although I would say nothing at all disrespectful of a body for whom I feel nothing but respect and affection, that they are a little influenced by the notion, that a marriage by a clergyman who is not of the Established Church, is hereafter to be put upon the same footing with a marriage celebrated by a clergyman of the Established Church : but I should be glad if they would consider, that they are placed nearly in the same situation as the clergy of the Church of England, who, without the smallest scruple or repining, have submitted to it, because a marriage before a Baptist minister, or before a Unitarian minister, is just as valid now as if celebrated by the Archbishop of Canterbury; and I should trust that, upon consideration, they would be of opinion that their dignity is not at all compromised, and that their opposition to it may subside."

We can conceive the amazement with which a minister of the Established Church, could he have been present at the deliberations of the select committee, must have listened to the reasons so calmly assigned for his opposition, and that of his brethren, to the progress of the present bill! Never for a moment could it have crossed his mind, that a marriage celebrated by him was of more value in the eye of the law than that which had received the benediction of a dissenter; and yet here was a distinct assumption that he was in possession of some privilege, of which, up to that hour, he had been entirely ignorant. "At present," continued Lord Campbell, "a marriage by a dissenting clergyman, I rather think, is not strictly regular!" Here a hint was interposed from the chair to the following effect: – "He cannot marry without banns; he is subject to punishment if he marries without banns?" But the hint, though dexterously given, fell dead on the ear of the ex-chancellor of Ireland. He proceeded deliberately to lay down the law, – "There are statutes forbidding marriages unless by clergymen of the Established Church."

This is, to say the least of it, a singular instance of delusion. No such statutes are in force; they have long been repealed; and every clergyman is free to perform the ceremony of marriage, whatever be his denomination, provided he receives a certificate of the regular proclamation of the banns. So that Lord Campbell, if he again girds himself to the task, must be prepared to account on some more intelligible grounds for the opposition which his father's brethren have uniformly given to this bill. But, to do him justice, Lord Campbell does not stand alone in error with regard to the present requirements for the celebration of a regular marriage. Unless there is a grievous error in the reported debate before us, the Lord Advocate of Scotland is not quite so conversant with statute law as might be expected from a gentleman of his undoubted eminence. Whilst advocating a system which is to entail the inevitable payment of a fee to the registrar, he at the same time considers the fee which is presently exigible for proclaiming the banns a grievance. "He was astonished to hear the honourable baronet opposite (Sir George Clerk) state that it was the first time he had heard it considered a grievance, that persons could not marry without proclamation of banns in the parish church, by the payment of a large fee to the precentor or other officer of the church. That had always been considered a very great grievance by the dissenting body throughout Scotland, so far as he understood. The members of the Episcopal communion were, however, saved from that grievance, because they were in possession of an act of parliament, which provided that the proclamation of banns made in their own chapel was sufficient to authorise a clergyman to solemnise the marriage." We should like very much indeed to know what act of parliament gives any such dispensation from parochial proclamation to the Episcopalians. Certain we are that the statute 10 Anne, cap. 7, confers no such privilege; for though it allows proclamation of banns to be made in an Episcopal chapel, it at the same time enjoins, under a penalty, that proclamation shall also be made "in the churches to which they belong as parishioners by virtue of their residence;" and accordingly, in practice, no Episcopalian marriage is ever celebrated without previous proclamation of the banns in the parish church. We do not attribute much importance to this error, though it is calculated to mislead those who are not conversant with the law and practice of Scotland. We were rather impressed, on reading the debate, with the circumstance, that the old system of proclaiming by banns in the parish church was denounced, and we therefore directed our attention the more closely to the provisions of the bill, in order to discover the exact nature of the new method by which it was to be superseded. The bill is singularly ill-drawn and worded; but we comprehend it sufficiently to see that, had it passed into law, regular marriages could have been contracted under its sanction without any difficulty, and with no publicity at all.