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

THE SCOTTISH MARRIAGE AND REGISTRATION BILLS

About two years ago, we found it necessary to draw the attention of our readers to certain alterations which our Whig rulers, or at least a section of them, proposed to make in the existing law of marriage, as applicable to Scotland. We stated our views moderately, not denying that in some points it might be possible to effect a salutary change; but utterly deprecating the enforcement of a bill which was so constructed as to uproot and destroy the ancient consuetudinal law of the kingdom, to strike a heavy and malignant blow at morality and religion, and which, moreover, was regarded by the people of Scotland with feelings of unequivocal disgust. So widely spread was that feeling amongst our countrymen, of every shade of political opinion and form of religious faith, that we believed this ill-advised attempt, once arrested in its progress, would be finally withdrawn. Popularity, it was quite clear, could never be gained from persisting in a measure so unpalatable to the whole community; nor had England, save in the matter of Gretna-green marriages, any visible interest in the question. It is just possible – for self-conceit will sometimes betray men into strange extravagancies – that a few individual legislators had more confidence in the soundness of their own opinions than in that of the opinions of the nation; but, even if we should give them credit for such honest convictions, it still remains a doubtful point how far individual opinions should be allowed to override the national will. There may be parliamentary as well as regal despotism; and we are much mistaken if the people of Scotland are inclined to submit to the former yoke, even at the hands of those who claim honour for their party on the strength of traditionary denunciations of the latter. We think it is pretty clear that no private member of parliament would have attempted to carry through a bill, the provisions of which had been encountered by such general opposition in Scotland. No ministry would have lent its support to such a case of insolent coercion; and we confess we cannot see why the crotchets, or even the convictions, of an official are to be regarded with greater favour. In a matter purely Scottish, it would, indeed, be gross despotism if any British cabinet should employ its power and its interest to overwhelm the voice of Scotland, as fairly enunciated by her representatives. That has not been done, at least to the last unpardonable degree; yet, whilst grateful to Lord John Russell for having, at the last moment, stopped the progress of these bills, we may very fairly complain that earlier and more decided steps were not taken by the premier for suppressing the zeal of his subordinates. Surely he cannot have been kept in ignorance of the discontent which has been excited by the introduction of these bills, three several times, with the ministerial sanction, in both houses of parliament? Had a bill as obnoxious to the feelings of the people of England, as these avowedly are to the Scots, been once abandoned, it never would have appeared again. No minister would have been so blind to his duty, or at all events to his interest, as to have adopted the repudiated bantling; since, by doing so, he would have inevitably caused an opposition which could only terminate in his defeat, and which, probably, might prove fatal to the existence of his cabinet. And yet, in the case of these bills, we have seen three separate attempts deliberately made and renewed – first in the House of Commons, and afterwards in the House of Peers – to thrust upon Scotland measures of which she has emphatically pronounced her dislike. No wonder if, under such circumstances, when remonstrance is disregarded, and the expression of popular opinion either misrepresented or suppressed, men begin to question the prudence of an arrangement which confides the chief conduct of Scottish affairs to a lawyer and judge-expectant, whose functions are so multifarious as to interfere with their regular discharge. No wonder if the desire of the Scottish nation to have a separate and independent secretary of state, altogether unconnected with the legal profession, is finding an audible voice at the council-boards of the larger cities and towns. Of late years it has been made a subject of general and just complaint, that the public business of Scotland is postponed to everything else, huddled over with indecent haste at untimeous hours, and often entirely frustrated for the want of a parliamentary quorum. This arises from no indisposition, on the part of the House of Commons, to do justice to the internal affairs of the northern kingdom, but it is the natural result of the system, which virtually leaves Scotland without an official representative in the cabinet. Every one knows that Sir George Grey is not only an able, but a most conscientious home-secretary; but, in point of fact, he is home-secretary for England alone. It is impossible to expect that, in addition to the enormous labour attendant upon the English home administration, any man can adequately master the details of Scottish business. The fundamental difference which exists in the laws of the two countries would of itself prove an insurmountable barrier to this; and consequently, like his predecessors, Sir George Grey has no personal knowledge either of our wishes or our requirements. He cannot, therefore, take that prominence in a Scottish debate which his position would seem to require; and the duty which ought to be performed by a member of the cabinet is usually intrusted to a subordinate. In this way Scottish public business receives less than its due share of attention, for the generality of members, observing that cabinet ministers take little share in such discussions, naturally enough attribute their silence to a certain degree of indifference, and are careless about their own attendance. All this, which involves not only scandal, but positive inconvenience, would be cured, if a return were made to the older system, and a secretary of state for Scotland numbered in the roll of the cabinet. The want of such an arrangement is positively detrimental to the interests of ministry; for, during the last session, they have assuredly gained but few laurels from their northern legislation. Four or five bills, purporting to be of great public importance, have been withdrawn, and one only, which establishes a new office connected with the Court of Session, has been graced by the royal assent. Among the lapsed bills are those which form the subject of the present paper; but they have not yet lost their vitality. On the contrary, we are led to infer that, in the course of next session, they will again be introduced, in some form or other, before parliament.

This mode of treatment is so unprecedented, that we cannot pass it over in silence. It may not be unconstitutional, according to the letter of the law; but if it be true, as we maintain it to be, that the people of Scotland have already protested against these measures, it does seem rather tyrannical that for the fourth time they should be compelled to organise a resistance, and to make themselves heard through petitions, lest the very absence of these should be held as an intimation of passive acquiescence. This kind of reasoning has actually been resorted to; and a very pregnant instance of it is to be found in the reported speech of the Lord Advocate upon the third reading of the Marriage Bill. "With respect to the dissenters in Scotland, there was not a single petition from them against the bill; therefore they were to be taken as being in favour of it!" This is a notable sequitur. In the first place, it is quite a new doctrine to maintain that because men do not organise meetings, or go out of their way to petition parliament against any measure, they must therefore be held as assenting. In the second place, it is rather a startling thing to find that men are expected to petition in a religious rather than in a social character. If this view be correct, no individual Anabaptist has any right to express his political opinions unless he petitions along with his congregation. No member of the Episcopal Church ought to have a voice in a secular matter unless he goes along with his diocesan. We are almost tempted to ask the question, whether congregations in Scotland are to be regarded as mere political clubs, or as associations for praise and worship? The town-councils of most of the large towns of Scotland have petitioned against the bills – are there no dissenters at any of those boards? One hundred and thirty parishes have separately recorded their detestation of the bills, not one parish has made the smallest demonstration in their favour, yet, according to the logic of the Lord Advocate, those that are silent must be held as acquiescing! It is remarkable, however, that if these bills really tend to confer such inestimable boons upon the people of Scotland, that stubborn race have been singularly reluctant to acknowledge the extent of the benefit. Nay more, it is certainly a most striking fact, that notwithstanding the religious divisions, which are more numerous here than elsewhere, it has been impossible to procure one isolated testimony, by an ecclesiastical body, in direct support of these singularly unfortunate bills. Lord Campbell, in his evidence given before the Committee of the House of Commons – of which more anon – indicates an opinion that the clergy of the Established Church of Scotland have been actuated in their unanimous and decided Opposition to the Marriage Bill by the desire to preserve a monopoly of celebrating formal marriages. If so, how is it that none of the dissenting clergy, in whose favour this monopoly was to be broken up, came forward in support of the measure? But the truth is, as we shall presently show, that no such monopoly exists at all, save in the imagination of the noble lord. By the law of Scotland, there is no distinction in favour of any sect, and clergymen, of whatever denomination they may be, have the right, and are in the daily practice, of celebrating formal marriages.

"I admit," says the Lord Advocate, "that the clergymen of Scotland are generally against this measure; but surely the house will think that, by this time, the third year of the discussion of this bill, these reverend gentlemen ought to have come forward with some substantial grounds for their opposition." We must fairly confess our inability to fathom the meaning of this remark. Two hundred and twenty-five petitions against this bill have emanated from the Established Church – at almost every meeting of presbytery and synod, the matter has been fully and thoroughly discussed – the moral and political objections to its enactment have been over and over again brought forward – yet still, in the eyes of the learned lord, there is a want of "substantial grounds." It is not enough, therefore, to say that a measure is unnecessary, immoral, and impolitic – it is not enough to assign reasons why these opinions are entertained, and to repeat them year after year. Something more must be done, according to this remarkably liberal view, before it becomes the duty of the legislature to give any weight to the general remonstrance – something "substantial" is required, but no intelligible definition has been vouchsafed of that substantiality. Nor does the following sentence by any means tend to sharpen the edge of our apprehension. "If they (the clergy) meant to say that they came here to assert that they had the power or right to supersede the interference of the legislature, they would put forward a right in them much greater than the Church of Rome asserted, because they took their right to interfere in reference to the rules of marriage, on the ground that it was a sacrament, which carried with it a degree of plausibility; and they required no witness to their marriage, or proof of the marriage, beyond that of the parish priest who performed the ceremony." Now, if any kind of meaning whatever is to be extracted from this sentence, it must be taken as an inuendo that the Church of Scotland, in petitioning against the bill, is directly or occultly preferring some ecclesiastical claim to interfere in the celebration of regular public marriages. The Church of Scotland asserts no claim of the kind, nor has it ever been so much as hinted that such a right was inherent in that body. The church does not seek to interfere with the legislature. It neither has, nor claims ecclesiastical dominion or preference in the matter of marriage. As a Christian communion and a Christian church, it has entreated parliament not to pass a measure which, justly or not, it considers as hurtful to the moral character of the people, and in doing so, it has been actuated by no motive save a due regard to its high and holy functions. If such considerations as these are not sufficient to justify the right of petitioning, it is difficult to understand why that right should be exercised at all. Must a pounds-shillings-and-pence interest be established, before the Church of Scotland can be allowed to approach the legislature on such a question? In our mind, the absence of all pecuniary interest, and the utter abnegation of any kind of ecclesiastical monopoly, are the strongest reasons why the opinion of the Church of Scotland, in a matter such as this, should be listened to with reverence and respect.

Having thus disposed of the church, though in a manner, we should think, scarcely satisfactory to himself, and not at all to his auditory, the Lord Advocate summarily remarks of the petitions against the bill, that "as proof to be relied on of a general feeling throughout Scotland, they were worthless and insignificant." It may be useful for intending petitioners to know what sort of demonstration they must be prepared to make, if they wish their remonstrances against any government measure to pass the limits of worthlessness. It is always advantageous to learn what is the last definition of the true vox populi, in order that there be no mistake or misinterpretation of its extent. We turn to the admirable speech of Mr M'Neill, the learned Dean of Faculty, and we find the following analysis of the extent of the lay opposition: —

"An opportunity had been afforded to the counties of Scotland to take the measure into consideration at their annual meetings on the 30th April. They had done so, and, with very few exceptions, had petitioned against this measure; and of those that had not actually petitioned this year, some had petitioned last year; and some had contented themselves this year with reiterating, in resolutions passed at public meetings, their continued dissatisfaction with the measure. The county which he had the honour to represent (Argyleshire) had not sent up a petition; but they had, at a public meeting, passed resolutions, temperately, yet firmly expressed, in reference both to the Marriage and the Registration Bills. No county, he believed, had passed resolutions in favour of this bill. So much for the counties. Next as to the burghs. The burghs comprehended about one-third of the population of Scotland. There was an institution recognised by law called the Convention of Royal Burghs, and which consisted of delegates from all the burghs in Scotland, who assembled once a-year or oftener in Edinburgh, and deliberated on matters affecting their interests. At the convention of 1849, the matter of these bills was taken into consideration. They were disapproved of, and a petition against them was voted unanimously. Thus you had all, or nearly all, the counties petitioning, and you had the assembled delegates from all the burghs petitioning. Then there were separate petitions from the popularly elected town-councils of most of the large towns in Scotland. The town-councils of Edinburgh, of Dundee, of Perth, of Greenock, of Leith, of Inverness, of Stirling, of Kilmarnock, of St Andrews, of Haddington, and many others, had petitioned against this bill. There was also another body of persons, popularly elected to a great extent, and who had a very material interest in the probable effects of this measure, especially with a knowledge of the fearful extent of bastardy in some parts of England – he meant the parochial boards of populous parishes. Petitions against this measure had been presented from the parochial boards of many of the most populous parishes in Scotland – the parochial board of the city parishes of Edinburgh – of the great suburban parish of St Cuthberts – of the city of Glasgow – of the great suburban parish of the Barony – of the parishes of Dundee, Paisley, Greenock, Leith, Port-Glasgow, Campbelton, and several others."

Such is the demonstration which the Lord Advocate of Scotland, without any counter display of opinion to back him, ventures to characterise as worthless and insignificant! Counties, burghs, town-councils, parochial boards, presbyteries, and General Assembly, which also represents the opinion of the universities, all combine to denounce the hated measure; still their remonstrance is to be cast aside as worthless and insignificant, and as in no way representing the feeling of the people of Scotland! A more extraordinary statement, we venture to say, was never made within the walls of the House of Commons; but the premier very properly refused to homologate its extravagance, and withdrew the bill on account, as he expressly said, of the opinion that had been expressed in the house regarding the sentiments of the Scottish people. Indeed, as Lord Aberdeen afterwards remarked, had the bill not been withdrawn, "representative government would become a farce; for the whole kingdom of Scotland was universally against it."

Some of our readers may naturally wonder why so much perseverance should be shown in this reiterated attempt to force an obnoxious bill upon the acceptance of the nation. It is, to say the least of it, an unusual thing to find a professing physician so clamorously and importunately insisting upon his right to practise on the person of a patient, who vehemently denies the existence of any bodily ailment. It is true, that we are accustomed to hear crotchety people crying up the efficacy of their peculiar remedies, and we admit the right even of Paracelsus to dilate upon the value of his drugs. But the case becomes widely different when the empiric requires that, nolens volens, you shall swallow them. Such, however, for the last three sessions, has been the conduct of the promoters of this bill; and as it is now plain beyond all dispute that nobody wanted it, this sudden rage for legislation becomes proportionally wonderful. Hitherto we have rather complained of the apathy than of the over-zeal of our representatives. Sometimes we have grumbled at their want of spirit for not watching more closely over our immediate interests, and in not protesting more loudly against the injustice of that neglect to which Scottish charities, foundations, and institutions are consigned, whilst a very different mode of treatment is adopted by government upon the other side of the Irish Channel. But we have seldom had reason to deprecate an excess of legislative activity, and it therefore becomes matter of curiosity to discover the motives for the present fit.

We must premise that the Scottish Marriage and Registration Bills are indissolubly linked together. The object of the Registration Bill is to secure a perfect record of all births, marriages, and deaths; and no reasonable objection can be taken to this upon the score of principle. It is admitted on all hands that our registers are at present defective – that is, they are not sufficiently minute to satisfy the cravings of the scrupulous statist. To have a perfect record is unquestionably desirable: the main objection to the scheme lies in the expense with which it must be attended. It is not our present purpose to examine the details of this bill, which we have nevertheless perused with much attention. We shall therefore merely remark that it seems to us quite possible to realise the same results with a far less expensive machinery. The present bill would create not only a well-salaried staff of officials in Edinburgh, but registrars in every county and town, whose services would fall to be defrayed by local assessment; and we need hardly say that, under present circumstances, the imposition of any new burden, especially in the shape of direct taxation, would be felt as an especial grievance. There is no prospect of relief from the income and property tax, though Sir Robert Peel gave the country a direct assurance that the measure was merely proposed to supply a temporary deficiency. It is now quite clear that neither the right hon. baronet, nor his successors, will ever attempt to redeem that dishonoured pledge. The poor-rates are increasing in Scotland at a frightful ratio, and are already so high as, in the opinion of many, to constitute an intolerable burden. It is now evident that, in a very short while, the inexpediency of the new system will be submitted to a serious review, or at least that some such attempt will be made. Other burdens are by no means decreasing, whilst the general wealth and prosperity of the country has, within the last three years, received a violent check. It is, therefore, not in the least surprising, if men hesitate to accept the proffered boon of a perfect registry at the price of a new assessment. Isolated cases of inconvenience which have occurred, from the want of such a register, may no doubt be pointed out; but, upon the whole, there is no general grievance, since the means of effective registration are at present open to all who choose to avail themselves of it. The present bill proposes to do nothing more than to substitute imperative for voluntary registration: its provisions are not only costly, but in some respects they are highly penal, and therefore, for a double reason, it is regarded with general dislike. Men do not like to be taxed for the alteration of a privilege which is already sufficiently within their power; and they are jealous of exposing themselves to fines, for omitting to do that which is no duty at all, except it is made so by the force of statute. They do not see any weight or shadow of reason in the argument, that Scotland must necessarily have a registration act, because England has already submitted herself to such a measure. On the contrary, they are not fond of uniformity, because, under that pretext, many inroads have of late years been made upon laws and institutions which hitherto have worked well, and against which, intrinsically, it was impossible to bring any tangible ground of complaint. Nor is it without some reason that they view with jealousy that endless multiplication of offices which the Whigs seem determined to effect. No doubt it is convenient for a political leader to extend the sphere of his patronage; but the public have, at the present time, too many stringent motives for economy, to acquiesce in the creation of a new staff as the indispensable consequence of every ministerial bill. They do not want to be visited by a fresh flight of locusts, whose period of occupation is to be everlasting, whenever it is thought expedient to make some change in the form and not the essence of our institutions. And therefore it is that the Registration, apart altogether from its connexion with the Marriage Bill, has been regarded as a measure not strictly objectionable in principle, but exceedingly ill-timed, inconvenient, and unlikely to produce any results commensurate with the cost which it must entail.

We believe that the above is a fair statement of the public feeling with regard to the Registration Bill; but, notwithstanding all these objections, it might very possibly have been carried had it stood alone. The ministerial phalanx in the House of Commons would probably have regarded the advantages of uniformity as a thorough answer to the arguments which might be adduced on the other side; and English members might naturally have been slow to discover any valid objections to the extension of a system already in full operation within their own domestic bounds. But the promoters of the bill had, at the very outset, to encounter a difficulty of no ordinary weight and magnitude. That difficulty arose from the peculiar position of the law of Scotland with regard to marriage. There could be no mistake about births and death, for these are distinct contingencies; but how to register marriages, which required no legal formality at all, save consent, to render them binding, was indeed a puzzle, which even the wisest of the innovators could not pretend to solve. There stood the law as it had done for ages; not demanding any ceremony to render the deliberate consent of contracting parties binding; shielding the weaker sex against the machinations of fraud, and interposing an effectual barrier to the designs of the unscrupulous seducer. There it stood, so merciful in its provisions that it left open a door to reparation and repentance, and did not render it imperative that the birthright of the child should be irretrievably sacrificed on account of the error of the parents. At the same time, that law drew, or rather established, a wide distinction in point of character between regular and irregular marriages. It had wrought so upon the people that instances of the latter were of comparatively rare occurrence, except, perhaps, upon the Border, which was crossed by English parties, less scrupulous in their feelings of decorum. Irregular marriages were discountenanced by the church, not by the establishment only, but by every religious body; and, to constitute a regular marriage, publication of the banns was required. No complaint had been heard from Scotland against the law; on the contrary, it was considered, both by jurists and by the people, as equitable in its principle, and less liable than that of other nations to abuse in the mode of its operation.