Marriage Laws and Customs in Scotland


The laws relating to marriage differ so much in Scotland from those under which dwellers south of the Tweed live, that no comparison of social and religious life in the two countries can be made without knowledge of them. In no part of Christendom have the ecclesiastical laws relating to the relations of the sexes been more strict, or more strictly enforced, than in Scotland, and in no other have there been more irregularities. It was not until more than twenty years after the Reformation that the custom of “handfasting,” which had come down from old Celtic times, fell into disrepute and consequent disuse. By this term was understood cohabitation for a year, the couple being then free to separate, unless they agreed to make the union permanent. Lindsay, the chronicler, says of Alexander Dunbar, son of the sixth Earl of Moray, and Isobel Innes,—“This Isobel was but handfast with him, and deceased before the marriage.” When Margaret, widow of James IV., sued for a divorce from the Earl of Angus, she pleaded that he had been handfasted to Jane Douglas, “and by reason of that pre-contract could not be her lawful husband.” How such marriages were regarded at that time is shown by the fact that the marriage was dissolved by the Pope, though the issue of the Queen’s marriage with Angus was pronounced legitimate.

Sir John Sinclair’s “Statistical Account of Scotland” contains a report from the minister of Eskdale Muir, referring to the practice of handfasting as existing in that parish, under ecclesiastical sanction, at a period anterior to the Reformation. At a fair held there, unmarried men chose women to be handfasted with them, and a monk from Melrose Abbey visited the place annually, to marry those couples who wished the union to be made permanent. The first check given to the practice appears to have been the decree of the Kirk Session of Aberdeen, in 1562, that persons cohabiting under the sanction of a handfast contract of marriage should be united in lawful wedlock. But though this practice was discontinued, and those who wished to be thought respectable obtained the blessing of the Church on their marriage, irregularities continued to exist, and even to be permitted. An acknowledgment by a couple that they were husband and wife, either orally or in writing, followed or preceded by cohabitation, was regarded as a valid marriage, both by the Church and by society. In 1563, however, the General Assembly of the Church ruled that no contract of marriage so made should be recognised until the parties had submitted themselves to the discipline of the Church, and the contract had been verified by witnesses of good repute.

The custom of betrothal was very general, but it varied in form in different parts of the kingdom. The presentation of an “engagement ring,” as in England, is not found among these forms, nor does it appear that the sanction of parents was thought necessary; but after the contract was made it was usual for them to be informed and their sanction sought. Among the upper and middle classes there was usually a betrothal feast, but among the classes living by manual labour this was dispensed with. Dr Rogers says, in his “Social Life in Scotland,” that—“In betrothal, the parties usually moistened with the tongue the thumbs of their right hands, and then pressed them together. The violation of a contract so consecrated was considered tantamount to an act of perjury.” Another form of betrothal was the clasping of hands across a stream. In this way Burns, the laureate of the Scottish peasantry, and Mary Campbell vowed fidelity. In some counties silver coins were exchanged by plighted lovers, or a worn one was broken between them, each retaining one of the halves.

Marriages regarded by the ecclesiastical courts and Kirk Sessions as “regular” have always, from a long period anterior to the Reformation, been preceded by the publication of banns. In 1569 a case came before the General Assembly which shows the successive steps taken at that time before the solemnisation of a marriage. It is recorded that “ane promise of marriage made, before the readers and elders, in ane reformit church, the parties contractit compeirs before the minister and session, and requires their banns to be proclaimit.” In 1575 the question came before the General Assembly, whether the form of mutual declaration prior to the publication of banns should be longer continued; and it was ruled that it should be considered sufficient for the names of the parties desiring proclamation of banns to be given to the session clerk. Banns were ordered to be published, as in England, on three successive Sundays; but, after the Reformation, it was ruled that, on payment of a larger fee, one public announcement should be held sufficient, the words “for the first, second, and third time” being used.

It became customary towards the close of the sixteenth century for security to be given, with the notice of banns, for the solemnisation of the marriage, two friends of the parties depositing with the clerk a sum of money as a guarantee, and that for more than one purpose. In 1570 the Assembly ordered that “promise of marriage shall be made according to the order of the reformed Kirk to the minister, exhorter, or reader, taking caution for abstinence till the marriage be solemnised.” The minutes of Kirk Sessions show that, in numerous instances, during the latter half of the seventeenth century, such deposits were retained for the space of nine calendar months after the marriage. The Kilmarnock Kirk Session was not so strict. It was there ordered, in 1670, that the deposit should be returned to the parties on the expiration of half a year. Whatever the term was, if scandal arose before it expired, the deposit became forfeited.

Kirk Sessions in some cases accepted personal security in lieu of cash, the bondsmen in such cases becoming liable in the event of scandal arising, or the non-solemnisation of the marriage. But this system, so convenient for those who could not raise the caution money, or “pawn,” as it was commonly called, was in course of time abandoned. The Kirk Session of Mauchline instructed the clerk, in 1691, “to take neither bond nor cautioner for consignation money, but to require that the money be laid down, to remain in his hand for the space of three-quarters of a year.” The example was followed by other Kirk Sessions, but the custom continued for a long time afterwards, and was never formally abolished, falling into abeyance gradually. Dr Edgar, in his “Old Church Life in Scotland,” states that “on a page at the end of a small volume of scroll minutes still extant there is a writing, under date 23rd November, 1771, which has all the appearance of being a genuine matrimonial consignation bond.”

The First Book of Discipline makes it peremptory that no persons should be married without the consent of the parents, unless it should appear that there was no reasonable ground for the refusal of their consent. The Westminster Directory qualifies this by ruling that the consent of parents should be obtained to first marriages, especially if the parties were under age. It is not clear whether non-age means under the age of twenty-one, or is to be interpreted by the decree of the General Assembly of 1600 that, “considering that there is no statute of the kirk,... defining the age of persons which are to be married, ordain that no minister within this realm presume to join in matrimony any persons in time coming, except the man be fourteen years of age, and the woman twelve complete.” The same ages are given in the First Book of Discipline.

Deviations from even this rule sometimes occurred, and may be classed among the permitted irregularities referred to at the beginning of this paper. The marriage of heiresses under the age of twelve was not infrequent, the plea of the guardians, that they feared the abduction of their wards if longer unmarried, being admitted. There is a record of the marriage of a girl in her eleventh year to a boy of fourteen in 1659; and no longer ago than 1859 a girl was married at Edinburgh, who was entered by the registrar as in her eleventh year. The official inspector thought there must have been an error in the registration, but inquiry proved that the entry was correct.

There was no laxity, however, in the matter of prohibited degrees of relationship. In 1731, an irregular marriage came before the Presbytery of Ayr. The banns had been forbidden on the ground that the woman’s first husband had been grand-uncle to the second bridegroom. The lovers thereupon proceeded to Carlisle, and were there united in marriage. The Presbytery pronounced them guilty of incest, prohibited them from cohabitation, and the interdict being disregarded, passed sentence of excommunication.

Marriage might be refused in former times when either of the parties was found to be “under scandal.” In 1565, the General Assembly enacted that “such as lie in sin under promise of marriage, deferring the solemnisation, should satisfy publicly, in the place of repentance, upon the Lord’s day before they be married.” Many instances are recorded of persons appearing before the Kirk Session, and denying upon oath that they had committed the sin of which they were accused. The Kirk Sessions were equally diligent in their endeavours to prevent scandals. In 1621, it was reported to the Kirk Session of Perth “that Janet Watson holds house by herself, where she may give occasion of slander,” wherefore an elder was directed “to admonish her in the Session’s name either to marry or to pass to service.”

But while the Church authorities were so zealous for the morals of the nation and the prevention of scandal, they appear to have sometimes thrown impediments in the way of lawful marriage. In the early years following the Reformation, it was a very frequent ordinance of Kirk Sessions that no persons should be allowed to marry until they were able to repeat to the minister or reader the Lord’s Prayer, the Apostles’ Creed, and the Ten Commandments. Either a “pawn” was required for the fulfilment of this condition or a fine was exacted in case of failure. In some parishes the Kirk Sessions went beyond this requirement, and insisted on regular attendance at public worship. In 1700, the Kirk Session of Galston, “considering that there were some who lived within the parish who did not join with the congregation in public worship, nor submit themselves to discipline, and yet craved common privileges of members of this congregation, such as proclamation in order to marriage, concluded that none such should have privileges, until they should engage to live orderly for the time to come.” And a further entry, of the same date, states that one of the persons referred to applied for proclamation of banns, and, on the resolution being communicated to him, he “engaged, through God’s grace, to live orderly, and to wait upon gospel ordinances more particularly, and was then allowed to be proclaimed.”

There was some difference of opinion in the early days of the Reformed Church as to whether a pre-contract should be an impediment to marriage with another person. The minutes of the Westminster Assembly show that some of the divines maintained that a promise of marriage was a “covenant of God,” and could not be broken, even by mutual consent. The Church of Scotland did not adopt this view. In 1570, the General Assembly directed that persons desiring to withdraw from a contract of marriage should, if nothing had followed, be allowed to do so. In the same year, an appeal was made to the Assembly from the decision of a Kirk Session that a man should not be allowed to marry any woman other than a former servant of the appellant, whom he had seduced. He had applied to the Kirk Session for proclamation of banns, putting in the document known as a “discharge of marriage,” signed by the woman he had wronged, for three or four successive years, but it was persistently refused recognition. The Assembly sustained his appeal, gave him the liberty he sought, and added, “yea, and there is injury done to him already.”

Sometimes, however, contracted persons declined to set each other free, and forbade the publication of banns with any other person. In 1689, one John Meikle was cited to appear before the Presbytery of Ayr, to show cause why he forbade the banns of Janet Campbell. He pleaded that Janet had been engaged to him, and on that ground he objected to her becoming the wife of any other man. The Presbytery decided that Janet was free to do so. In 1777, a woman applied to the Kirk Session of Mauchline to have her banns stopped, on the ground that she had changed her mind, and had become engaged to another man. The first lover opposed the application, pleading that she was his “by the covenant of God.” The Kirk Session did not admit his plea. The publication of banns was stopped, and a minute of the Session justifies this decision, on the ground that “there would be an obvious impropriety in proceeding further in the proclamation, after being certified by the woman of her resolution not to marry the petitioner.”

There were some superstitions connected with marriage as to lucky and unlucky days and seasons. Perthshire couples refrained from wedlock in January, and everywhere it was declined in May. In the Lowlands, Friday was considered an unlucky day for weddings, but in the Highlands, it was the day generally chosen for the ceremony. These notions had no weight with the compilers of the First Book of Discipline, who expressed their opinion that Sunday was the day “most expedient.” On the other hand, the Westminster Assembly advised that marriages should not be solemnised on the Lord’s day. The latter may have been influenced by the same reason that moved the Kirk Session of Perth to adopt, in 1584, a resolution that “forasmuch as sundry poor desire to, because they have not to buy clothes, nor to make bridals, marriages should be as well celebrated on Thursday, within our Parish Kirk in time of sermon, as on Sunday.” The former, on the other hand, probably had in view the disorderly scenes to which a wedding was often the prelude. The General Assembly, in 1645, adopted the view of the Westminster Directory, and marriages from that date were generally solemnised on the day of the weekly lecture.

In former times, and down to the first quarter of the present century, the celebration of a marriage otherwise than in church was regarded as irregular and clandestine. In 1581, the General Assembly “concluded by common consent of the whole brethren, that in times coming no marriage be celebrated, nor sacraments administered, in private houses.” At that time, and long afterwards, ministers were liable to deposition, and were actually deposed, for marrying persons in private houses. It is a fact, nevertheless, that though the law of the Church remains as settled in 1581, marriages celebrated in private houses have not been regarded as irregular since the beginning of the last century; and the records of the General Sessions of Edinburgh show that, as long ago as 1643, private marriages were not infrequent in that city, where, however, they were restricted to the well-to-do classes by a fine of twenty marks.

Weddings were usually followed by great festivities, which were generally on a scale so extensive, and carried to so great an excess, that the records of Kirk Sessions during the seventeenth century show numerous regulations for their restriction. They fixed the number of guests who might be lawfully entertained on such occasions, and the hour at which the festivities should cease. Many of the customs observed were peculiar to the country, or to certain parts of it. In the Highlands, until about a century ago, the bride walked round the wedding party at the close of the ceremony, saluting each with a kiss. A dish was then passed round, in which each deposited a coin, the amount collected being given to the bride. The term “penny wedding” appears to have arisen from this custom. Owing to the large number of guests entertained, which Kirk Sessions did not venture to reduce to less than forty, it was usual for the neighbours to assist in providing for them. Landowners gave beef, mutton and venison; farmers, poultry and dairy produce; and the minister and the schoolmaster lent cooking utensils. The bridal feast was followed by a dance.

Some peculiar rites, of ancient and pagan origin, were practised at the home-coming of the bride. The guests assembled at the door, on the threshold of which a sieve containing bread and cheese was held over her head, and, as she entered the house, a cake of shortbread was broken over her head, the young folk present scrambling for the fragments. The ceremony was completed by the bride sweeping the hearth with a broom.

This paper would not be complete without some notice of an aspect of the matter with which it deals, which has not received the attention to which it is certainly entitled. The law relating to marriage remains unsettled. It has been so constantly regarded as a matter for ecclesiastical regulation, that it has been practically left to be dealt with by Presbyteries and Kirk Sessions. “As far back as any living man remembers,” says Dr Edgar, “it has taken very few formalities to constitute in Scotland a marriage that is binding in law. A man and a woman have only had to take up house together, and declare themselves husband and wife. The law thereupon pronounced them married persons. But this was not always understood to be the law of the land in Scotland, and the Church of Scotland did not always recognise such unions as marriages.” But while writing of what was or was not understood to be the law, he tells us nothing as to what the law really was or is.

It seems to have been the practice of the Church, in former times, to pronounce her own judgment, and then to ask the State to confirm it. In the first General Assembly held in Scotland, that of 1560, there was a declaration made concerning marriages within certain degrees of relationship, and “the authority of the Estates was craved to be interposed to that finding as the law.” There were many of the ministers of the Reformed Church who held that a religious ceremony was not necessary to constitute a valid marriage. One of the members of the Westminster Assembly, in 1644, expressed the opinion, previously given by Luther, that only the consent of the parties was necessary. This view appears to have prevailed very generally among the laity, notwithstanding the action taken so frequently by Kirk Sessions in opposition to it.

The question continued to be disputed throughout the last century. Writers on legal questions held one view, and judges on the bench pronounced contrariwise. Erskine argued that, in Scotland, the consent of the parties was all that was necessary to constitute a valid marriage. Lord Braxfield affirmed the opposite in 1796. Lord Fraser, on a later occasion, said that the view set forth by Erskine was never judicially pronounced to be the law of Scotland until 1811. Can we wonder, therefore, when lawyers and judges disagree, at the haziness of mental vision displayed by Kirk Sessions, and the frequent want of uniformity in their decisions?