Scots can Never be Sure whether they’re Married or Not?

[Currie]

From the Dundee Courier & Argus, Wednesday, July 27, 1864.

MARRIAGE LAWS.

ENGLISH lawyers, English journalists, and English Statesmen, have sometimes—and not unfrequently—spoken of the Scotch Marriage Laws as a code which stands sadly in need of alteration, or, as the modern phrase goes, "reform." The most current argument has taken the form of a piece of satire. It is to the effect that a man on this side of the Border can never be sure whether he is married or not. Curiously enough, that is something rather more absurd than the traditional absurdity of "the pot calling the kettle black." The accusation is one which is less applicable to the Scotch law than to that of England, which is set up as a model for the imitation of the northerns. In this country a man can never be married, unless be has consented and done some act which gives evidence of his consent; but when he has done that, he may be pretty sure he is really married. There is as little as possible uncertainty about the matter, and when we come to examine minutely the English case against the Scotch marriage laws, we are very near being forced to the inference that the true objection to them is their too great certainty. "An imprudent matrimonial connection" is not here to be broken through because it has been contracted irregularly, or with the want of some form. If a man chooses to put his head "into the noose," it closes round his neck, grips him fast, and defies his efforts to escape, and the exertions of his friends to drag him out. He is there "for good and aye," and there he must keep. He may not have intended to be there, but, if so, what he did intend must have been to take the advantages of marriage without assuming its responsibilities, and in most cases to injure and deceive the woman. That may be occasionally very inconvenient to ambitious relatives and noble families, but it is better that now and then a young man should make a fast match which is deemed discreditable or disadvantageous by aspiring or aristocratic friends, than that women should be left without the protection which they receive in a greater degree from the more chivalric Scotch law, than from the complicated and confused one of England. A fair statement of the difference between the codes would be this:—In Scotland people may be married without intending it, though not without consenting to it; while in England, people may both consent and intend to be married, and go through ceremonies for the purpose, and yet remain single. Here there may be individuals who suppose themselves bachelors, but yet are husbands; there there may be persons, thinking themselves husbands and wives, who do not stand in that legal relationship to each other.

An illustrative case, and one of a remarkable character, was tried the other day in the Court of Probate and Divorce, presided over by Sir J. WILDE. A young man named GEORGE HENRY WELLS, a clerk in London, had formed an attachment for a young woman of about his own age. It was alleged that she was a person of bad character, and had been one of the class known as "unfortunates;" but of that no proof was offered. The connection was distasteful to the family of the young man, and they were decidedly opposed to his project of marrying; but the banns were proclaimed, the marriage took place, and GEORGE HENRY WELLS left his family and resided for some time with his wife. Then the wedded pair parted, and the supposed husband returned to his father. The cause of the separation does not appear, but we do not find in the report of the case that, whatever the character of the woman before marriage, any misconduct subsequent to that event was even imputed to her. The father of the reputed husband then instituted a suit for the dissolution of the marriage, on the ground that in the proclamation of banns and at the marriage the name was given of HENRY WELLS, instead of GEORGE HENRY WELLS, and that the woman, knowing what the real name was, connived at the suppression. Of course, here such a pretext for dissolving a marriage would not for a moment be tolerated. The woman would have married the man whether by one name or another, and he, as he ought in reason to be, would have been her husband. There the case was very different. This marriage was actually dissolved on the ground stated, and it is worth while to notice the character of the evidence on which that conclusion was come to. There were some letters of the supposed wife written before marriage, from which it appeared that she had been accustomed to call her reputed husband "GEORGE," and he, his father being the petitioner, was called as a witness, and deposed that she consented to that name being suppressed. Now, that strikes us, is evidence of a very dangerous kind; and if such proof is in future to be admitted and acted upon, there may be many women in England deeming themselves wives and their offspring entitled to the father's name who will be legally merely mistresses, and their children no better than illegitimate.

Let us imagine the case of a scoundrel knowing the state of the English law, and intending to take advantage of it. He might, during the period of courtship, contrive to get himself called, say WILLIAM, and to have letters written to him in that name. Then, on the eve of the wedding, he might say that though he had been in the habit of being called William, that was not his real name, but had been substituted for some less euphonious one—say, ZACHARIAH. The banns would accordingly be proclaimed, and the register signed in the name of ZACHARIAH, and then, at any time, the letters might be produced to prove the wife's cognisance of what the law deems a fraud; and the vagabond who would carry out such a plot would have but little scruple about swearing that she consented to the deception. Of course we do not say that anything of that kind happened in the case of Mr. GEORGE HENRY WELLS, but it is obvious that the law, as applied to his case, opens up a danger to which the marriageable women of England should not be exposed. Whatever may be said of the likelihood or the unlikelihood of such a case as we have imagined, and for which the English law gives the opportunity, at all events, here were two people who consented to be married—went through a marriage ceremony, thought they were married, and lived together as man and wife, and yet the marriage is dissolved by the mere suppression of a Christian name. We put the alleged character of the discarded wife on one side, because it had nothing to do with the decision. If she had been as pure as the untrodden snow, that would not have made the slightest difference. The most virtuous woman would have met precisely the same fate if her reputed husband had married her without giving his full name, and it could be proved, or the inference raised, that she was aware of the fact. We beg the attention to this case of those who are so loud in the assertion of the superiority of the English over the Scotch Marriage Law, that they would "reform" the latter, and have one uniform marriage law for the whole island; and we would suggest to them that if they are as fond of improvement as they are of uniformity, the better course would be to sweep away the mass of statutes which have over laid the simplicity of the ancient English law, and allow it to return to the condition in which the Scotch law, happily for the protection of women and the honour of families, has been preserved.

Hope that’s interesting,
Alan

[Wee Ann]

Fascinating!

[joette]

Wonderful scoundrels & blaggards would be confounded-the course of love for the Bennett family of Pride & Predjudice fame may have been altered if that scoundrel Mr Wickham had eloped with Miss Bennett from Fife to Edinburgh instead of from Brighton to London! It would have been suppossed under Scots Law that they were wed & Mr Darcy would have had no need to protect the reputation of the family by bribing Mr Wickham to marry the silly young lady.

[AnneM]

Nice idea Joette but unfortunately I think poor old Lydia would still be in the soup. She ran off with the dastardly Mr Wickham believing that they were going to be married but continued to live with him when no such marriage took place. Fairly good evidence that they had not consented from that moment to be man and wife and they did not stay together long enough for a marriage by cohabitation with habit and repute to be constituted and anyway everyone knew they were not married. Her only hope would be a marriage by sexual intercourse depending on the promise of marriage but again that never really caught on and Lydia continued to live with Wickham once the promised had evaporated a bit!

[trish1]

Some years ago in the 1861 census of England and Wales, I found a distant relative living in an establishment containing a large number of "unfortunates". This was my first introduction to the term and I then realised that his occupation was probably also a euphemism.

Trish

[AnneM]

Faintly reminiscent of the Armstrong and Miller Show and the sketch where Alexander Armstrong is spoofing being on WDYTYA (sorry Trish, this is probably UK specific) and finds his ancestor listed as a prostitute. The 'expert' says encouragingly "Look, 10 years on she's gone up in the world" and she then appears as a brothel keeper! The genuine Alexander Armstrong episode of WDYTYA was pretty interesting, I thought.......though not a prostitute in sight.

Anne

[sheilajim]

That was really interesting. I have to agree with the author; the Scottish Marriage laws were superior to the English ones.