September 2004 Anne Cameron 1

A Long Gestation: The Delayed Establishment of General Registration in

Anne Cameron Centre for the History of Medicine University of Glasgow

After considerable pressure from various medical bodies, the actuarial profession, the Statistical Society and the dissenting churches, an Act for Registering Births, Deaths, and in England was passed in 1836, along with an Act for Marriages in England. These measures replaced the old parochial system of registration with under a General Register Office. However, equivalent legislation for Scotland was only achieved in 1854, after no fewer than six failed attempts. 1 As shown in the Appendix, Registration Bills for Scotland were introduced to Parliament in 1834, 1835, 1837, 1847, 1848, 1849 and 1854; significantly, those of 1837, 1847, 1848 and 1849 were linked to measures for amending the Scots law of . The Lord Advocate, who was the Crown law officer for Scotland with effective charge of Scottish parliamentary business, 2 participated in the preparation of each of these registration and marriage Bills.

The need for legislation to improve vital registration in Scotland had long been recognised. As in England, registration before the mid-nineteenth century was carried out by the Established Church. The Kirk Session Clerk of each parish recorded baptisms, burials, and the proclamation of marriage banns in the parish register, but there was no uniformity and the quality and regularity of the registers varied greatly from parish to parish. According to the population abstract of 1801, only 99 of the 850 parishes in Scotland that made returns to Government possessed regular registers; the remainder either kept no register at all, or made only sporadic entries. 3 The customary payment for registration deterred the poorer classes, and even when no fee was charged, as in the parish of Kirkpatrick-Durham in Kirkcudbrightshire, the

1 The Bills of 1848 and 1849 were brought into, and passed by the House of Lords, but they did not pass the House of Commons. 2 G. W. T. Omond, The Lord Advocates of Scotland: Second Series, 1834-1880 , (London: Andrew Melrose, 1914), p.vi. 3 William B. Turnbull, Scottish Parochial Registers. Memoranda of the State of the Parochial Registers of Scotland, whereby is clearly shown the imperative necessity for a National System of Regular Registration , (Edinburgh: Thomas George Stevenson, 1849), p.xiii. September 2004 Anne Cameron 2

Minister found that ‘unless I ascertain a child’s birth when I baptize it, the parents never think it worth their while to give me a note of it’. 4 The Minister of Bunkle and Preston in Berwickshire similarly observed that the lower classes never registered vital events because ‘they have no rich friends to leave them or their families money and property’; and when it did occasionally happen that a family member became prosperous and left property at home or abroad, ‘the want of a registration is…inconveniently felt’. 5 Furthermore, the fact that the registers were kept by the Established Church meant that dissenters usually went unrecorded – in 1845, the Minister of South Uist in Inverness-shire acknowledged that ‘[t]wo-thirds of the population are Roman Catholics; and, without an Act of Parliament, it is impossible to keep a regular register of the whole population in a parish so circumstanced’. 6

Medical practitioners and others interested in population statistics emphasised that the registration of baptisms rather than births, and burials rather than deaths did not constitute an accurate record of the numbers born and dying in a parish. Dr James Stark of Edinburgh considered the baptism registers ‘positively worthless for any statistical information they contain’, since those for Edinburgh, Glasgow, Aberdeen, Perth and Dundee ‘never registered annually more than a third of the total Births’ that occurred. 7 Nor did the registration of marriage banns – in other words, of the intention to marry - represent the actual number of marriages. If a man lived in a different parish to that of his prospective wife, the banns required to be proclaimed in both parishes, and were thus recorded twice; but the marriage would only be celebrated in one parish or, if the couple changed their minds, might not take place at all. The church could advise couples to register their marriage after the ceremony but there was no legal compulsion to do so. Thus Dr Stark pointed out that in 1845, there were 478 entries of proclamations of banns in Edinburgh, but only 250 of these were entered on the Registers as having been followed by marriage. 8

Both medical and legal practitioners argued that Scotland’s lack of a proper system of civil registration placed her far behind other civilised countries in Europe. The

4 Ibid , p.99. 5 Ibid , pp.33-34. 6 Ibid , p.93. 7 National Archives of Scotland, AD58/126: Letter from James Stark to James Martin, 20 May 1847. 8 Ibid . September 2004 Anne Cameron 3

Society of Advocates in Aberdeen complained of ‘experiencing great difficulties in tracing pedigrees and otherwise ascertaining questions of succession to both real and personal estates, in consequence of the Registers…not having hitherto been kept on a complete, regular and uniform plan’. 9 The Managers of the Life Assurance Offices of Scotland likewise petitioned Parliament to extend the registration system of England and Wales to Scotland. 10 The Royal Colleges of Physicians and Surgeons of Edinburgh repeatedly called for a Registration Act to provide accurate data about the number and causes of deaths, while the Sub-Inspector of Factories for the West of Scotland pointed out that it was illegal for factory owners to employ children under 16, but without a proper system of registration there was no reliable way to prove an applicant’s age. 11

Accordingly, it was proposed to establish a system of civil registration for Scotland based upon that of England, but with several essential differences. The 1836 Act had divided England into registration districts based upon the Poor Law Unions, and appointed the Clerk to the Board of Guardians as Superintendent Registrar in each district. These large units were further divided into sub-districts, each with a local Registrar appointed by the Superintendent. 12 However, there were no Poor Law Unions in Scotland; the different administrative structure instead required that the counties form the registration districts, the Sheriffs or Sheriff Clerks serve as Superintendent Registrars, and the parishes or large towns form the sub-districts.

The Scottish Bills were also intended to go further than the English Act in certain respects. The English measure did not make registration compulsory, and imposed no fine for failure to register births or marriages, though penalties were incurred for failure to register deaths. 13 By contrast, all the Scottish Bills made registration obligatory with penalties for non-compliance. It will be noted, however, that both the English legislation and the Scottish Bills of the and ‘40s allowed the old ecclesiastical system of registering baptisms, burials and the proclamation of banns to

9 NAS, AD58/126: Memorial of the President and Society of Advocates in Aberdeen, 29 January 1847. 10 NAS, AD56/301: Petition of the Managers of the Life Assurance Offices of Scotland, 1847. 11 NAS, AD58/126: Letter from Charles Balfour to the Lord Advocate, 1 June 1847. 12 J. M. Eyler, Victorian Social Medicine: the Ideas and Methods of William Farr , (Baltimore and London: Johns Hopkins University Press, 1979), p.43. 13 Ibid, p.44. September 2004 Anne Cameron 4 carry on alongside the new civil system. 14 The Scottish Bills of the 1840s further aimed to record more information on births, deaths and marriages than the English Registers, and to record the cause of death differently. The Royal College of Physicians of Edinburgh believed that the English manner of registering cause of death was fundamentally flawed, and in 1847 they persuaded the Lord Advocate to divide the ‘cause of death’ column in the Scottish schedule into two: one column for the ‘ascertained’ cause, and one for the ‘conjectured’ cause. They also wished that the Schedule should record the ‘seat of the disease’. This difference between the Scottish and English approach to nosology is something that will be examined in detail during the next stage of our project.

The Lord Advocate’s Bill of 1847 was introduced with the benefit of having observed the workings of the English Act, and he asked the English Registrar General, George Graham, for his opinion on the measure. 15 Graham identified 12 deficiencies in the English system, including the fact that not every birth and death was registered; that medical practitioners were not compelled to provide a written statement of cause of death for registration purposes, and that the Schedules for recording Births, Deaths, and Marriages did not contain sufficient particulars for statistical or inheritance purposes. 16 He was anxious that such deficiencies should not mar the Lord Advocate’s Bill, which presented an opportunity to [quote] ‘make experiment in Scotland of…more stringent enactments, which afterwards, if they are found to answer, I should hope to see introduced throughout Great Britain and Ireland’. Graham produced a few private copies of the Bill showing two extra clauses and some additional columns in the Schedules, which he hoped would be incorporated when the Bill was discussed in the House of Commons Committee. These copies were distributed to the Lord Advocate, the Home Secretary, the Prime Minister and three or four gentlemen in the General Register Office for England, but may later have been destroyed, as I have yet to discover any of them in the Archives. 17

14 Conversely, the Bill of 1854, which passed into law as An Act to Provide for the Better Registration of Births, Deaths, and Marriages in Scotland, abolished the old mode of registering baptisms and burials. 15 NAS, AD58/126: Letter from George Graham to the Lord Advocate, 25 February 1847. 16 NAS, AD58/126: Letter from George Graham to the Lord Advocate, 20 March 1846 [sic; 1847]. 17 Ibid . September 2004 Anne Cameron 5

If, as the evidence suggests, significant Scottish opinion was broadly in favour of compulsory registration of births, marriages and deaths, why, to quote the Scotsman newspaper, were the six Bills of the 1830s and 1840s ‘smothered in the birth’? 18 The answer lies in the objections raised by certain sections of the community to particular clauses in the Bills, which failed on substantially the same grounds each time. These included the expense and complexity of the administrative machinery required; the nomination of local Registrars and the proposal to pay them from a parochial rate, and the penalties imposed for non-registration. The fact that four of the Bills were linked to measures to amend the Scots law of marriage also figured largely in their failure.

Administrative machinery

Each of the bills provided for the creation of a General Register Office in Edinburgh staffed by a Registrar General, a Secretary and various clerks, and for the appointment of a Superintendent Registrar for each county. As in England, the Treasury agreed to pay these officers’ salaries and the general office expenses. The Bills also provided for the appointment of a Registrar for each parish. However, the Church of Scotland argued that such a vast and expensive administration was unnecessary - all that was needed was to make the existing system of parochial registration under the Session Clerks compulsory and uniform, ‘and to appoint a Registrar-General in Edinburgh, to whom copies of the district registries should be transmitted’. 19 Debating the 1848 Bill in the House of Lords, the Earl of Eglinton likewise objected to ‘the great number of officers to be appointed under it…which could scarcely be calculated at less than 2,000…[when] the present machinery, with the addition of a clerk here and there, would be quite sufficient for the purpose’. 20 Political opponents argued that the creation of so many new offices would give the government too much patronage; others feared that the cumulative expense would greatly exceed that estimated by the Lord Advocate. The Reverend Bisset of Aberdeenshire, for example, declared that [quote] ‘All the oil for keeping in motion this great central machine, and the 44 county and burgh machines, and the 12 or 1500 parochial machines, is to cost, says

18 Scotsman , 27 March 1847, p.3. 19 Scotsman , 13 March 1847, p.3. 20 Hansard , 3 rd Series, vol.99 (1848), cols.571-572. September 2004 Anne Cameron 6 the Lord Advocate, £10,000 a-year. Multiplying the sum tenfold, others think, will be under the truth’. 21 Incidentally, it is interesting to note the vague conception of the actual number of parishes in Scotland – ‘12 or 1500’ according to the Reverend Bisset, but 900 or 1,000 according to the Lord Advocate and Lord Campbell. 22 [New Statistical Account (1845) = 938 PARISHES; ACT OF 1854 = 1027 DISTRICTS. 23 ]

Paying Registrars from a parochial rate

The provision in the Bill of 1847 that Parochial Boards should remunerate the local Registrars ‘out of the monies in their hands’ – in other words, from the parish assessment for the support of the poor – caused considerable agitation. 24 Many local authorities feared that this would create a precedent for diverting the poor’s money to other purposes, while the Commissioners of Supply of the County of Banff considered the clause ‘most objectionable…as it would entail a heavy expense upon Property which is already highly taxed’. 25 Even the Scotsman , one of the staunchest supporters of the Bills, conceded that ‘To throw upon the Poor-rates any charge which does not exclusively refer to the maintenance of the poor, is defensible or even explainable on no other ground than that it is an easy escape from a difficulty’. 26

The Lord Advocate explained to Parliament that the clause had been misconstrued, and that he in fact intended a separate rate for the payment of the Registrars to be raised in the same manner as the poor rate, but kept distinct from it. His speech, in which he estimated the total amount of local taxation required for the working of the measure at £9500 – ‘somewhat less than 4 per cent on the average amount of our present poor assessment’ – persuaded the Scotsman that ‘this can scarcely be called a high price to pay for being on a par with our English neighbours in the possession of a

21 J. Bisset, Speech on the Scotch Marriage & Registration Bills, presently before Parliament, delivered in the Synod of Aberdeen , (Aberdeen: Lewis Smith, 1849), pp.8-9. 22 Hansard , 3 rd Series, vol.99 (1848), col.569; vol.93 (1847), col.232; vol.107 (1849), col.17. 23 First Detailed Annual Report of the Registrar General for Scotland , (1855; published 1861), p.xi. 24 Registrars were to receive 2s 6d for each of the first 20 births or deaths, and 1s for every subsequent birth or death they recorded each year. 25 NAS, AD58/126: Extract from the Minutes of the Annual General Meeting of the Commissioners of Supply and Landholders of the County of Banff, 30 April 1847. 26 Scotsman , 22 May 1847, p.2. September 2004 Anne Cameron 7 great body of national statistics, and we will venture to say that a far greater sum is expended annually on litigations regarding questions of marriage or descent, which a good system of registration would have obviated’. 27 However, this argument failed to appease municipal authorities such as the Commissioners of Supply for the County of Edinburgh, who maintained that the registration system was a public measure, not a parochial one, and ought therefore to be funded entirely by the government. 28

Appointment of Registrars

Established Church opposition to the Scots Registration Bills hinged upon the matter of appointing local Registrars of births, marriages and deaths, as the Kirk Session Clerks sought to protect their ‘vested rights’ to the income from recording vital events in the old parochial registers. The Bills of 1834 and ‘35 would have appointed the Parochial Schoolmasters as Registrars, reflecting the difficulty of finding candidates of suitable education and in the absence of a flexible official such as the Clerk to the Board of Guardians in England. This raised no objections in rural parishes where the shortage of qualified men meant that the Parochial Schoolmaster often doubled as the Session Clerk, but in the towns the two offices were generally kept separate and the Presbytery of Edinburgh resented ‘the clause of taking the duty of registration from the Session Clerks, and giving it to parochial schoolmasters’. 29 The Bill of 1837 altered this clause by empowering the Registrar General to nominate the Registrars, but that of 1847 sought to completely exclude Schoolmasters from the office of Registrar, because the then Lord Advocate considered that they already had too much to do and that the duties of registration would ‘withdraw them from school’. 30

27 Scotsman , 12 June 1847, p.2. The Bill of 1848, as amended by the House of Lords Select Committee, explicitly stated that the assessment for paying the Registrars would ‘be levied in the same Way and Manner as the Assessment is made and levied for the Support of the Poor, but separately from such last Assessment’. A Bill [As Amended by the Select Committee] Intituled An Act for Registering Births, Deaths, and Marriages in Scotland , Registering Births &c. (17 July 1848), clause XXXVIII. 28 Scotsman , 28 March 1849, p.3. 29 Scotsman , 2 May 1835, p.4: report of the Presbytery of Edinburgh’s meeting on 29 April 1835. 30 Hansard , 3 rd Series, vol.93 (1847), col.234; NAS, GD45/14/667 (Dalhousie Muniments): Letter from A. M. to Fox Maule, 25 March 1847. The Bill of 1847 would have empowered the Parochial Boards to appoint the Registrars. September 2004 Anne Cameron 8

The exclusion clause provoked a flood of petitions from every level of the Established Church, as well as from the Session Clerks and Schoolmasters themselves. The Session Clerks of Scotland sent a collective petition in March 1847, and on the following month a deputation of parochial schoolmasters met with the Lord Advocate. They claimed that, discounting the large towns in which the offices of session clerk and schoolmaster were held separately, there was an average of 2,125 people and 17 marriages, 69 births and 47 deaths per year in each parish. This produced an annual average of 133 registrations - hardly enough, they thought, to interfere with the schoolmasters’ duties. The deputation pointed out that in rural areas, the Schoolmaster was often the only person capable of undertaking the duty of registration. 31 They further emphasised their dependence upon the income from making registrations, and offered to drop their opposition to the Bill in return for a measure to augment their salaries, but the Lord Advocate refused to entertain this suggestion. 32

Virtually every petition reiterated that in country parishes, well-qualified men could only afford to accept the position of Schoolmaster because it was associated with the more remunerative office of Session Clerk. 33 Although the Registration Bills left in place the old ecclesiastical system of registering baptisms, burials and marriage banns with the Session Clerks, the latter argued that no one would still pay to register baptisms and burials if they were compelled to register births and deaths under the new system, therefore ‘the [old] parochial registers would soon become useless, to the great loss of their present keepers’. 34

In the face of such opposition, this contentious clause was removed when the Bill went into Committee. 35 The next two Bills of 1848 and ‘49 reverted to appointing the Session Clerks as Registrars, but only if they were individually approved by the Registrar General . The Established Church now objected that this left the Session Clerks [quote] ‘dependant on the will of a single individual…who under any pretext,

31 NAS, AD58/126: Memorial to the Lord Advocate of Scotland in reference to ‘An Act for Regulating the Registration of Births, Deaths and Marriages’, from the Parish Schoolmasters and Session Clerks resident within the Presbytery of Dundee [1847]. 32 Scotsman , 17 April 1847, p.2. 33 NAS, AD58/126: Letter from James A. MacIvor to George Traill, M.P., 31 March 1847; Journals of the House of Lords , vol.80 (1848), p.464. 34 Scotsman , 13 March 1847, p.3. 35 Hansard , 3 rd Series, vol.91 (1847), col.1364. September 2004 Anne Cameron 9 or without any pretext; might, even without the sanction of the Home Secretary deprive these respectable and meritorious individuals of all the emoluments of their offices’. 36

On the other hand, the dissenting churches, having seen no reason to automatically appoint the Schoolmasters-cum-Session Clerks of the Established Church as Registrars in the Bills of 1834 and ‘35, made the same objection to the measures of 1848 and ‘49. One enraged member of the Free Presbytery of Edinburgh remarked that this ‘savoured a little of the spirit of the test and corporation acts’ and would unfairly enhance the Session Clerks’ salaries, while another called it ‘a manifest act of injustice, and an insult to the whole Dissenters of Scotland, being two-thirds of the inhabitants of the kingdom’. 37 The United Presbyterian Presbytery of Cupar likewise argued that it ‘disqualifies every person for the office except members of the Established Church, and goes far to confer on the kirk-sessions the power of appointing to the office’. 38

Ecclesiastical unrest over who should serve as Registrars undoubtedly helped to bring down the Bills of 1847, ‘48 and ‘49. The Lord Advocate believed that were he ‘to give up that principle [of making the Session Clerks Registrars], which he could not do in justice to the session clerks…there was not one of the dissenting body, whether of the clergy or the laity, but would support the measures under discussion’. 39 Dr George Bell, who subsequently became a District Examiner for the General Register Office of Scotland, also thought that [quote]

The public feeling of Scotland would have thoroughly gone along with the Lord Advocate, had he kept the nomination of this office open for the election of the party best qualified…Why peril the passage of a Bill so much required…by attaching to it a clause which tampers with the rights, violates the convictions, and wounds some of the deepest feelings of two-thirds of the whole Scottish community? 40

36 NAS, AD58/126: Letter from William Black, Convener of Presbytery of Glasgow to Lord Advocate, 8 December 1847; Bisset, Speech , p.5. 37 Scotsman , 24 March 1849, p.3: report of a meeting of the Free Presbytery of Edinburgh, 23 March 1849. 38 Scotsman , 8 March 1849, p.2. 39 Hansard , 3 rd Series, vol.107 (1849), col.17. 40 G. Bell, ‘The Registration Bill’ (reprinted from the North British Review , May 1849), p.18. September 2004 Anne Cameron 10

Penalties for non-compliance

The financial penalties prescribed for failing to register births, marriages and deaths were another source of objection to the Scottish Registration Bills. Opponents claimed that these fines were unreasonably high, that people would suffer when they had not intended to offend, 41 and that the obligation upon clergymen officiating at marriages and medical men present at a birth or death to notify the Registrar of these events under penalty would expose them ‘to much unnecessary annoyance, and even to vexatious prosecutions’. 42 It was also felt that in making many individuals responsible for registering the same event, rather than placing sole responsibility on one person, the Bills increased the likelihood of registration being neglected. 43 A birth, for instance, had not only to be notified by the parents, but by the medical man or midwife in attendance, the householder, and anyone else present at the birth. As the Reverend Bisset pointed out, ‘the Doctor may trust to the Midwife, and the Midwife to the Parent, and the Parent or Parents to the Occupier of the house, or he may say there are plenty of others to do this besides me, and thus, what is every one’s business comes to be no one’s business’. 44 If none of these people notified the birth, every one of them would be fined. Consequently, Bisset predicted that [quote]

if this Bill pass, we shall all, clergy and laity, be daily walking amidst the snares and pitfalls of law…as the burden of working the Bill must unquestionably be borne by every one who burns a fire, so may its penalties come to every man’s door. 45

Opposition to the Marriage Bills

The Registration Bills of 1837, 1847, 1848 and 1849 were introduced alongside measures to reform the law of marriage. Marriage in Scotland was constituted solely by the mutual exchange of consent. Though regularly celebrated by clergymen

41 NAS, AD58/126: Petition of the General Kirk Session of the Town and Parish of Dundee [1847]. 42 NAS, AD58/126: Petition of the Ministers and Elders of the City of Glasgow, 18 March 1847. 43 NAS, AD58/126: Petition of the General Kirk Session of the Town and Parish of Dundee [1847]. 44 Bisset, Speech , p.9. 45 Ibid , p.11. September 2004 Anne Cameron 11 following the publication of banns in the parish church, marriage could also be contracted irregularly by means of a private written promise and subsequent copulation; or by habitually living together as man and wife; or by verbally acknowledging each other before witnesses as husband and wife. Though they incurred ecclesiastical censure, irregular marriages were considered binding under the common law. 46

Andrew Rutherfurd, the Lord Advocate of Scotland who framed the three Registration and Marriage Bills of the 1840s, believed that a Registration Act would be futile without a parallel reform of the marriage law to ensure that all marriages – regular and irregular - were properly recorded. 47 The Scots marriage law was in any case ‘a disgrace to any semi-barbarous nation’, 48 for it permitted males of 14 and females of 12 to marry irregularly by mutual consent at any time, in any place, without parental approval or prior residence in the parish. 49 Lord Campbell, who brought Rutherfurd’s Bills into the House of Lords, argued that the law facilitated clandestine, hasty, ill- assorted and bigamous unions, especially at the infamous Gretna Green; that it encouraged the seduction of women, 50 and was altogether such that [quote] ‘nobody who had lived a short time in Scotland could know whether he was married or not’. 51 Most importantly, the lack of written evidence for irregular marriages made them extremely difficult to prove for inheritance purposes. Rutherfurd concluded that ‘A looser marriage law…was not known in any civilised country, and it was a reproach to Scotland that such uncertainty should exist’. 52

His Marriage Bills aimed to remove this ‘uncertainty’ and to assimilate the Scots law to that of England by permitting only two modes of marriage: regular marriage celebrated by a clergyman following the publication of banns, with the union afterwards registered according to the Registration Bill; and irregular marriage

46 NAS, AD58/126: Letter from J. MacKenzie to the Lord Advocate, 12 April 1847. 47 Moving for the second reading of the Marriage and Registration Bills of 1848 in the House of Commons, the Lord Advocate declared that ‘It would be useless to introduce a Bill for registering marriages without altering the law of marriage’. Hansard , 3 rd Series, vol.100 (1848), col.1165. 48 Hansard , 3 rd Series, vol.107 (1849), col.5. 49 Scotsman , 21 March 1849, p.2. 50 Hansard , 3 rd Series, vol.99 (1848), col.570. 51 Hansard , 3 rd Series, vol.102 (1849), col.857. 52 Hansard , 3 rd Series, vol.100 (1848), col.1165. September 2004 Anne Cameron 12 constituted by appearing before the Registrar and signing the Marriage Register. No other form of irregular marriage would be recognised.

Both clergy and laity vigorously protested that to sanction irregular marriage under Statute law, as opposed to common law, would place it on an equal footing with the ecclesiastical ceremony. This would both devalue the Sacrament of marriage and render it obsolete, as people would come to prefer the Registrar to the Minister. 53 The Dean of Faculty further objected that it would alter the fundamental principle of Scots marriage law, as consent would not now constitute marriage unless ‘given in presence of a clergyman, or by signing the register’. 54 Many commentators insisted that there was no need to change the law and that clandestine, hasty and bigamous unions were actually ‘of very rare occurrence, for no persons in Scotland, of any credit or character, would conceive themselves properly married unless they were married by a clergyman’, 55 and ‘The stigma that attaches to [irregular marriages], both in law and in fact , deters all but the licentious from resorting to them’. 56 Accordingly, Blackwood’s Edinburgh Magazine warned that sanctioning irregular unions under Statute law and appointing the Registrar as a marrying officer would de-stigmatise such marriages and establish ‘a popular Gretna-green in every parish’.

It was similarly argued that the Scots law was a bulwark against, rather than an incitement to the ruination of women because anyone using a promise of marriage to seduce a female in Scotland had to abide by that promise. 57 Indeed, cases of seduction appeared to be far more prevalent in England, and most of those who married at Gretna Green, Lamberton Toll and the other ‘temples of Hymen’ in the Borders had crossed over from the North of England to evade the strictures of the English marriage law. Popular opinion held that this should be stopped by a passing a measure requiring English couples to reside in Scotland for a certain period before they could

53 The General Assembly of the Church of Scotland petitioned on this point - see Hansard , 3 rd Series, vol.100 (1848) col.782. For an example of lay opposition, see the report of a meeting of the Commissioners of Supply for the County of Edinburgh in the Scotsman , 28 March 1849, p.3. 54 [W. E. Aytoun], ‘The Scottish Marriage and Registration Bills’, Blackwood’s Edinburgh Magazine , vol.66 (September 1849), p.271. 55 Hansard , 3rd Series, vol.107 (1849), col.5; see also vol.102 (1849), col.859. 56 [C. Neaves], ‘The Scotch Marriage Bill’, Blackwood’s Edinburgh Magazine , vol.61 (May 1847), p.649. 57 Hansard , 3rd Series, vol.107 (1849), col.7. September 2004 Anne Cameron 13 marry there, rather than by altering the Scottish law. 58 The vehement opposition to the Marriage Bill certainly had unfortunate consequences for the Registration Bill. As the two measures were publicly viewed as indivisible, to oppose one was to oppose the other, 59 prompting Blackwood’s Edinburgh Magazine to remark that the Registration Bill of 1849 ‘might very possibly have been carried had it stood alone’. 60

After six failed measures, what was different about the Bill introduced by Lord Elcho in 1854 that make it acceptable to everyone and successful in delivering a Registration Act for Scotland after a gestational period of twenty years? Having carefully observed the fates of the preceding Bills, Elcho deliberately framed his measure to avoid the major pitfalls. Lord Rutherfurd’s Bills of the 1840s had been attacked for their complex and expensive administrative machinery, therefore Elcho ‘combine[d] the utmost degree of efficiency with the utmost degree of economy’ by utilising the existing administrative structure as far as possible. 61 Rather than build an expensive new facility, he proposed to locate the General Register Office within the existing Register House, which was the depository for the property deeds of Scotland, and to appoint its Deputy Clerk Register as the Registrar General. He made further economies by not paying the Sheriffs anything extra for serving as Superintendent Registrars, pointing out that the Treasury had only recently increased the Sheriffs’ salaries and that their duties under the Registration Bill would not be onerous. 62

Elcho also tried not to re-ignite ecclesiastical opposition concerning the appointment of local Registrars. His Bill provided that all Session Clerks holding office when the Registration Act came into force on 1 January 1855 would, if deemed competent, be appointed Registrars during their lifetime. However, they would have no vested rights in the office, could be dismissed for misconduct, and on their death or removal the parochial board would appoint a successor, subject to the approval of the Registrar

58 [Aytoun], ‘Scottish Marriage and Registration Bills’, p.269. A similar point is made in NAS, AD58/126: Report of the Committee of the Presbytery of Glasgow on the Marriage and Registration Bills [1848]. 59 For instance, the Established Presbytery of Edinburgh voted to petition against the Marriage Bill and also against the Registration Bill if the two measures could not be disjoined. Scotsman , 3 March 1849, p.3. Conversely, ’no person who voted for the Marriage Bill could, with consistency, refuse to pass the Registration Bill’. Hansard , 3rd Series, vol.107 (1849), col.22. 60 [Aytoun], ‘Scottish Marriage and Registration Bills’, p.268. 61 Hansard , 3rd Series, vol.132 (1854), col.572. 62 Hansard , 3rd Series, vol.132 (1854), cols 573-574. September 2004 Anne Cameron 14

General and Sheriff. The Bill originally required the appointment of a successor within 6 days, but the Government heeded a request from the General Assembly of the Established Church to extend this to 4 months so that if the former registrar had been the parish schoolmaster, there would be time to appoint a replacement teacher who could then be considered for the Registrar’s post.

Finally, and perhaps decisively, Elcho made no attempt to alter the marriage law, having learned from Lord Rutherfurd’s efforts that [quote] ‘the people of Scotland regarded with jealousy and suspicion any attempt to interfere with a law to which they were so wedded’. 63

In contrast to the English legislation, then, the ‘Act to Provide for the Better Registration of Births, Deaths, and Marriages’ established compulsory registration of vital events in Scotland. The new Scottish registers also recorded more details about individual births, deaths and marriages than their English counterparts, although some of the required categories of information proved problematic and were dropped after the first year of operation. The birth register, for example, initially required the ages and birthplaces of the child’s father and mother, and the number of other children of the parents, whether living or deceased, 64 which was simply too burdensome on the registrars. Contrary to Lord Elcho’s assertion, the duty of checking and certifying the registers of births, marriages and deaths for each parish in their District also proved too onerous and time-consuming for the Sheriffs, and in 1855 they were replaced as Superintendent Registrars by salaried District Examiners. Essentially, however, the nascent system of general registration in Scotland was the better for its ‘long gestation’, as the twenty-year interval between the first Bill of 1834 and the Act of 1854 allowed successive Lords Advocate to observe and learn from the positive and negative features of the English Act, and to iron out most of the contentious aspects of their own proposals for Scotland.

63 Hansard , 3rd Series, vol.132 (1854), col.575. 64 C. Sinclair, Jock Tamson’s Bairns: A History of the Records of the General Register Office for Scotland , (Edinburgh: General Register Office, 2000), pp.40-41. September 2004 Anne Cameron 15

APPENDIX

Scottish Registration and Marriage Bills, 1834-1854

1834 A Bill to Establish in Scotland a Uniform and Efficient System of Registration of Births, Marriages and Deaths

1835 A Bill to Establish in Scotland a Uniform and Efficient System of Registration of Births, Marriages and Deaths

1837 A Bill for Registering Births, Deaths and Marriages in Scotland

*A Bill to Explain and Amend the Laws Concerning Clandestine Marriages in Scotland, and to Provide for the Registration of Marriages There

1847 A Bill for Registering Births, Deaths, and Marriages in Scotland

*A Bill to Amend the Law of Scotland Affecting the Constitution of Marriage

1848 A Bill Intituled an Act for Registering Births, Deaths, and Marriages in Scotland

*A Bill Intituled an Act to Amend the Law of Scotland Affecting the Constitution of Marriage

1849 A Bill Intituled an Act for Registering Births, Deaths, and Marriages in Scotland

*A Bill Intituled an Act to Amend the Law of Scotland Affecting the Constitution of Marriage

1854 An Act to Provide for the Better Registration of Births, Deaths, and Marriages in Scotland

September 2004 Anne Cameron 16