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.
Public-domain text, read in full here on John Shaqi.
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