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

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      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.

      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 СКАЧАТЬ