Another objection to our present law of marriage has been frequently
urged, and great use has been made of it to prejudice the minds
of English members in favour of the proposed alteration. We have
already shown that there is in reality no doubt of what constitutes
a Scottish marriage; that parties so contracting know very well what
they are about, and are fully sensible of the true nature of their
obligations. If any doubt should by possibility exist, it can be set
at rest by a simple form of process--a form, however, which is never
resorted to, unless there has been gross intention to deceive on the
one part, or a most unusual degree of imprudence on the other. But it
is said that the possible existence of a private marriage may entail
the most cruel of all injuries upon innocent parties--that it is easy
for a man who has already contracted a private marriage, to present
himself in the character of an unfettered suitor, and to enter into a
second matrimonial engagement, which may be, at any moment, shamefully
terminated by the appearance of the first wife. No ordinary amount
of rhetoric has been expended in depicting the terrible consequences
of such a state of things; the misery of the deceived wife, and the
wrongs of the defrauded children, have, in their turn, been employed as
arguments against the existing marriage law of Scotland.
This is a most unfair mode of reasoning. Unless it can be shown,
which we maintain it cannot, that the law of Scotland, with regard
to matrimony, is so loose that a party may really be married without
knowing it, the argument utterly fails. Without distinct matrimonial
consent there is no marriage, and no one surely can be ignorant of
his own intention and act upon an occasion of that kind. He may try
to suppress proofs, but for all that he is married, and if, during
the lifetime of the other party, he shall contract a second marriage,
he has committed bigamy, and is guilty of a criminal offence. Lord
Campbell, in his evidence, admits that the marriage law of Scotland
has been perfectly well ascertained upon most points--that there can
be no doubt what is, and what is not, a marriage; but that the real
difficulty consists in getting at the facts. Armed with this testimony,
we may fairly conclude that unintentional bigamy is impossible; but
that bigamy, when it takes place, is the deliberate act of a party.
Public-domain text, read in full here on John Shaqi.
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