Certainty is desirable in all transactions,
and is especially desirable in regard to marriage; and the
means of preserving evidence of such contracts is also
desirable; but although these objects are desirable, they
should not be prized so highly, or pursued so exclusively, as
to endanger other advantages not less valuable."
We think it is impossible for any one to peruse the foregoing
extract from the speech of the Dean of Faculty, without being
forcibly impressed by the soundness and strength of his argument.
He is not contending against registration; he simply demands that
through no pedantic desire for uniformity or precision, shall the
general principle of the law of Scotland regarding marriage be
virtually repealed. We are indeed surprised to find a lawyer of great
professional reputation attributing to the established clergy of the
Church of Scotland a desire to arrogate to themselves the functions
of the Church of Rome, whilst, in the same breath, he asks the
legislature to constitute itself into an ecclesiastical court, and to
enact new preliminaries, without the observance of which there shall
henceforward be no marriage at all. If the old principle of the law is
to be abandoned, if consent is no longer to be held as sufficient for
the contraction of a marriage, but if some further ceremony or means
of publication are thought to be essential, we have no hesitation in
saying that we would infinitely prefer the proscription and annulment
of all marriages which are not performed _in facie ecclesiæ_, with
the previous proclamation of the banns, to a hybrid measure such as
this, which neither declares marriage to be the proper subject of
ecclesiastical function, nor permits it to remain a civil contract
which may be established and proved by any mode of evidence within the
reach of either of the parties. If marriage is not a sacrament, but a
civil contract, why take it out of the operation of the common law? Why
make it null without the observance of certain civil ceremonies, unless
it is intended virtually to confer upon the legislature regulating
powers which have been claimed by none of the reformed churches,
and which, when arrogated by that of Rome, have been bitterly and
universally opposed?
Public-domain text, read in full here on John Shaqi.
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