"Fœcunda culpæ sæcula nuptiasPrimum inquinavere, et genus et domos;Hoc fonte derivata cladesIn patriam populumque fluxit."
"Fœcunda culpæ sæcula nuptiasPrimum inquinavere, et genus et domos;Hoc fonte derivata cladesIn patriam populumque fluxit."
In the discussion on this subject out of doors, reference has been made, to the English registration act. It is not necessary for us to pronounce an opinion on the merits of that measure. But we will merely say that its character and provisions are essentially different from those of the Scotch Bill we have been considering.
The English marriage act, which introduced a system of registration, is the 6 & 7 William IV., c. 85. It is at least a well-digested and well-developed measure, complete in itself, and laying down the grounds on which it proceeds, and the precise mode of its operation. It was introduced as a concession of religioustoleration, being intended to relieve the scruples of Dissenters, who objected to being married according to the ritual of the Church of England. In that light the present bill is wholly unnecessary. The fullest religious freedom already exists in Scotland; the celebration of marriage by a clergyman of any denomination, after proclamation of banns, being equally valid and regular as when the ceremony is performed by a minister of the Establishment. But the English registration act, so far from throwing ecclesiastical marriages into the shade, shows a studied anxiety to promote and encourage them, and contains numerous provisions directed to that object, as well as intended to give publicity and deliberation to the matrimonial contract to be entered into. It further provides a system by which the scruples of Dissenters are saved without destroying the religious character of the contract, by allowing sectarian places of worship to be registered for the purpose of solemnising marriage therein. It is only after all these provisions, and in order expressly to meet further religious scruples, that a marriage before the registering officer is sanctioned. But in this case also, the statutory period of public premonition is required, as well as the observance of the other precautions against precipitate and clandestine marriages. The clause on this subject is as follows:—
"And be it enacted, that any personswho shall object to marry under the provisions of this Act, in any such registered building, may,after due notice and certificate issuedas aforesaid, contract andsolemnisemarriage at the office and in the presence of the superintendent registrar, and some registrar of the district, and in the presence of two witnesses,with open doors, andbetween the hours aforesaid, making the declaration, and using the form of words herein before provided in the case of marriage, in any such registered building."
A statute of this kind was not likely to undermine the public feeling in favour of the religious celebration of marriage; and we believe that it has not done so. But the Bill now proposed for Scotland is framed on a very different principle, and would in all probability involve very different results.
But indeed it is needless here to refer to the law of England, which in one essential respect is so widely distinguished from that of our own country. The restraints that, on the other side of the Tweed, have been provided against the marriage of minors without the consent of their parents and guardians, have no existence with us, and the merits of the Bill under consideration must be estimated in reference to that most material fact.
By the theory of the law of Scotland, a boy of fourteen and a girl of twelve may validly contract marriage by mutual consent, without the sanction, and in spite even of the opposition of their guardians. If such be the case, it may be asked, whether and why they do not actually marry at present as rashly and as indiscriminately as they are likely to do under the new bill? The answer is, that such is not the case, and the reason is to be found in the considerations we have already suggested. The law is neutralised, and made nearly a dead letter, by the state of feeling that prevails on the subject, and by the other obstacles to which we have referred. Some are preserved from the danger by ignorance, others by the scandal and discredit attaching to irregular marriages, and others by the doubt and difficulty attending them. If these preventives be taken away, what protection remains? If a statutory marriage by the registrar is not looked upon as discreditable—and why should it be so, since the law enacts it?—then the position of the young is indeed most hazardous. The feelings of shame and fear most likely to operate on youthful minds are withdrawn; and instead of difficulties being thrown in the way, facilities for the evil are created. An encouragement is held out—an office is opened,—a sure and certain method is provided andadvertisedfor indulging precipitately the caprice of a moment at the expense of family peace and happiness and respectability for the rest of life.
We might say much more upon this subject had we not, as we believe, sufficiently suggested the mischiefs with which this measure isfraught. We are not satisfied that, as far as the young are concerned, the existing law as to seduction under promise of marriage can be safely abrogated, unless some other protection is provided in its place; and we suspect that the apparent facility of registration at any time might be used as a means of temptation in the first instance, while it might afterwards be evaded with the most unjust consequences. Neither are we clear that long repute and cohabitation should not, at least, afford aprima faciepresumption of marriage, so as to supply the want of due evidence of celebration, which may in some cases be lost, particularly by persons coming from other countries to reside in Scotland. We see difficulties, too, as to the effect of registration of marriage under feigned names, which will often be resorted to where there is a desire for concealment. If a marriage so registered is to be bad, what a door is to be opened for deception! If it is to be good, how little security may the registration afford! But we recur to the more comprehensive and radical objections which we have already stated to this Bill, that it destroys the sanctity and reverence attending marriage as a religious engagement, and that it affords dangerous facilities and temptations to the hasty contraction of improper marriages, which, more especially in the case of persons under age, may have a very wide and pernicious operation.
We are glad to see that the Church of Scotland has earnestly taken up this question in the same light with ourselves. But it equally concerns the parents and guardians of youth of every religious denomination. We shall not be suspected of claiming for the Established Church alone the religious right to sanctify the marriage obligation. Every Christian Church in the land has a good claim and a deep interest to give its blessing and its sanction to its own members when so contracting. But all, indeed, who have the moral character and welfare of their country sincerely at heart, must feel as we do, if they share in the anticipations which we have expressed. Neither is the interest of the subject confined to those who are residents in Scotland. It also concerns every one whose children may enter or remain within our territory at a marriageable age; and if the Scotch law is ever to be thoroughly amended, it will be but imperfectly done unless the feelings and rights of our English neighbours are specially attended to in this important point.
If we were to offer our own views as to a measure that might be safely adopted on this subject, we should be disposed to make the following suggestions for consideration: 1st, That registration should be necessary to validate irregular marriages, but should not constitute marriage; 2d, That the registrar should not attend at the contraction of any irregular marriage; 3d, That a certain period of public cohabitation, in the same residence, as married persons, should constitute or presume marriage; 4th, That, at least in reference to young females, marriage by promise and subsequent connexion should be valid, if steps to declare it were taken within a certain time; 5th, That the marriage of English parties under age should be subjected to some reasonable restraint by requiring prior residence of some duration.
In the mean time however, we trust the Bill will not receive the countenance of the Legislature. Minor amendments upon it may be proposed, but we do not expect that the principle can be corrected. It has been introduced, no doubt, with a laudable desire to obviate the uncertainty at present attending irregular marriages. But in mitigating that evil, it appears to us to involve others of a much more serious and sweeping kind, which it must be the duty of all religious and reflecting men who see the danger to use every exertion to avert.
Printed byWilliam Blackwood and Sons, Edinburgh.