MARRIAGE-LAW REFORM.
LORD CAMPBELL charges Lord Brougham with introducing a new element of doubt as to regular and irregular marriages in Scotland, because Lord Brougham has proposed to place a certain modified restriction upon the special use of the Scottish marriage-law by English runaway couples desiring marriage. It is rather curious that another experienced authority on the subject of Scottish law, Mr. Alexander M'Neill, rather finds fault with Lord Brougham for not having attempted " to amend the law of Scotland as to the constitution of the marriage by any cases which are known as irregular, that is, non in facie eecksace." Mr. M'Neill proceeds to show the mass of doubt engendered by the Scotch law as to the actual position of persons that suppose themselves to be married. We have already noticed the number of projects which are before the public and the Parliament for the purpose of amending the law of matrimony,—the Lord Chancellor's bill for amending the law mazhinery in divorce, and matrimonial causes; Sir Erskine Perry's for amending the law relative to the property of married women ; and, besides Lord Brougham's bill, we have the project of the society for procuring such an amendment of the law as would legalize the marriage with a deceased wife's sister ; the same society already suggesting to the English public how they may procure themselves to be married byproceeding to certain places on the Continent or to Scotland, for a recent case has thrown a doubt whether that marriage is not recognized in Scot- land. There is something about these several projects so conflict- ing, that the majority naturally tend to create prejudice against each one in turn ; and we must admit that if all were enacted, they would tend to increase doubts which exist as to the opera- tion of the present law in the several parts of the United King- dom; while by multiplying the diversities of the law throughout the British islands, they would increase the uncertainties with respect to the actual position of married couples and their pro- geny who might be brought under the conflicting operation of varying local laws. This class of uncertainties necessarily be- comes more numerous and more complicated from the facilities of transit which now exist in different parts of the United Kingdom, and the habits of locomotion which cast doubt upon the residence or domicile of a continually increasing class of British subjects. In England, the essential of marriage is the performance of the _ceremony before a person authorized according to the Registration Act ; ministers under most of the recognized forms of worship having procured authority under the statute law. Practically, however, we recognize in England the validity of marriage per- formed according to the law of Scotland, which is of an entirely different character ; and some doubt exists as to the validity or invalidity of marriage between a widower and his wife's sister performed in certain Continental countries or in Scotland. The balance of opinion at present is against the validity ; but the legal question is in some degree perplexed, while the social question is cast entirely into doubt by the moral support which a portion of society gives to such marriages, by the supposed sanction of the Scotch law and of the Continental law, and by the expectation that the Legislature will one day mend the law with a retrospect- iVe clause redressing the prospective injustice of Lord Lynd- hurst's act. To the uncertainty with regard to the position we must add the uncertainty with regard to property. Our common law, defined by the records of a period emerging from the feudal time, regards the wife's right of property as entirely sunk in the husband's rights ; while the law of equity has long rejected the legal fiction of a married woman's having no personality, and has
recognized that she may possess certain property, that she may contract respecting it, and therefore that she may be sued on her own account. A woman may now hold separate property in equity, with many practical legal consequences ; but she may not hold it at common law. In law she has no right in her own earnings, and no liability in her own debts, with a consequent confusion that is frequently illustrated in the courts of law.
But the confusion in England is augmented by the confusion which exists in the actual law of Scotland which Mr. Alexander M'Neill wishes Lord. Brougham to revise. In Scotland the principle is " consensus, non concubitus, facit matrimonium "- "et non sacramentum' it might be added ; yet even here there is a confusion. Lord Campbell tells us that all marriages not per- formed by the Established Church are " illegal " subjecting the persons so married to be summoned before the kirk-Session and to be rebuked for living as man and wife without being regularly married. Lord Aberdeen adds, that such parties are subject to penalties, although the marriage is valid in law. The most irregular " form of marriage binds fast, notwithstanding even instantaneous repentance : a love-letter, an acknowledgment be- fore servants, passing as married at an inn, a marriage for a rt as part of a Christmas game • as in the Irish case also of worth, who married a young lady with the door-key, and found, to the chagrin of both parties, that the ceremony was binding. The ordinary cause of divorce may become in Scotland an invalid plea from its very excess ; as in a case stated by Mr. M'Neill, which came before the Lord Ordinary Fullerton. An old man was se- duced into a marriage with a notorious woman, and subsequently endeavouring to procure a divorce, was met by the plea of actual notoriety ! The difficulty was solved in the particular instance by the use of a large lump of money, which induced the wo- man to give up her rights, but left the law in a state of con- fusion. The marriage may be effected by correspondence, ithich may at once record the change of feeling and the binding pledge. A lady of much accomplishment and unspotted vir- tue, as Mr. M'Neill records, is made a wife by letters addressed to " my dearest" and " my adorable " in 1813 ; the husband find- ing himself unable in 1821 to disunite himself from " that bitch of a woman that torments me." The practical consequences are serious. In the case of Dalrymple and Dalrymple, a youth of nineteen goes down to Scotland, falls desperately in love with a Scotch lady, promises marriage, never performs the ceremony, and subsequently marries the sister of an English Duchess : Sir Wil- liam Scott establishes the first marriage, and the progeny of the second marriage are illegitimate. In the case of Belly, which re- sembles Edgeworth's case, the consequences were at once more ab- surd and more deplorable. A man is married to the daughter of an eccentric old gentleman ; they go through the ceremony, appa- rently in private, and there is an end of it ; no cohabitation en- sues; no consummation was even intended. Subsequently the lad' is formally and publicly married to a person with the know-
1 and apparent approbation of her first wooer : in that mar-
she has a number of children ; she succeeds to the property of er father ; and then the first husband steps in, claiming her property and illegitimating the second marriage and her progeny. But the decision of the Court of Session was reversed by the HOuse of Lords, with an increase to the confusion of the case.
Now what is the effect of Lord Brougham's restriction of the application of Scotch law to English persons ? It is already the law that a runaway couple can be married in Scotland : Lord Brougham would impose the barrier of a three-weeks residence; introducing a new question into any future matrimonial inquiry. He would also grant divorce, after a twelvemonth's residence, ac- cording to the law of Scotland ; enabling those persons who can affefd it to choose their own residence, to select the law by which they will be married or divorced, but adding to the question of lo- cal law the question of domicile and its duration. The whole of this confusion is further increased by a number of uncertainties resulting from judicial decisions, from the review of those de- cisions, and from legal compromises. It becomes, then, a question anterior to any reform, What is the actual state of the marriage-law, and what are the practical effects of its operation throughout the islands forming the United Kingdom ? Possibly, if we had a complete survey of the law and its effects brought within such compass that the whole might be viewed, we might extract from the inquiry the essential prin- ciples which are more or less common to the whole of the British
islands, and base upon those principles a more simple and com- prehensive law. It would appear, therefore, that anything like a safe amendment of the law, in which the parts should correspond with' the whole, ought to be preceded by an inquiry into the matter of fact.
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