Chapter 33

[1358]Lecky,op. cit., I, 532. See the examples inFriedberg,op. cit., 343, extracted fromBurn,Fleet Marriages, 94 ff.;Jeaffreson,op. cit., II, 174, 175; andAshton,op. cit., 381, 361, 387. Even Lord Chancellor Ellesmere and Sir Edward Coke, Chief Justice of England, had contracted secret marriages:Friedberg,op. cit., 344; citingMacqueen,Treatise of Marriage, Divorce, &c. (London, 1860), 6.

[1359]There seems to have been much dislike for the publicity of banns even on the part of the aristocracy: see the letter of Horace Walpole to Henry Seymour Conway, May 24, 1753,Letters, II, 334-36;Friedberg,Eheschliessung, 342;idem,Geschichte der Civilehe, 15;Fry,Considerations on ... Clandestine Marriages, 8.

[1360]"Therefore there were in the Fleet a number of men who placed themselves at the disposal of female prisoners for marriage; as Armstrong, who, within fourteen months, married four women, and, as an entry in the register reads, received eight shillings 'for his trouble.'"—Friedberg,Eheschliessung, 342.Gally,Some Considerations upon Clandestine Marriages(London, 1750), 14-16, appears to believe that women could thus escape their debts.Cf.Norton,Die Frauen in England(Berlin, 1855), 267; andBurn,Fleet Marriages, 83.With this should be compared the companion error that a man is not liable for his bride's debts if he takes her only in her "smock" or "shift":Burn,Parish Registers, 153, 154, note;Ashton,The Fleet, 386, 387;idem,Social Life in the Reign of Queen Anne, 41; and further notices of "smock marriages" inBrand,Popular Antiquities, III, 205, 380;Notes and Queries, 1st series, VI, 485, 561; VII, 17, 84;Tegg,The Knot Tied, 299-301;Wood,The Wedding Day, 115, 116; andRadcliffe,The Parish Registers of St. Chad, Saddlworth, 58."Another error, common amongst the lower orders, is, that a man may lawfully sell his wife to another, provided he deliver her over with a halter about her neck.—And another, that a woman's marrying a man under the gallows, will save him from the execution. 'While we lay here (New York, A. D. 1784), a circumstance happened which I thought extremely singular. One day, a malefactor was to be executed on a gallows, but with a condition that if any woman, having nothing on but her shift, married the man under the gallows, his life was to be saved. This extraordinary privilege was claimed, a woman presented herself, and the marriage ceremony was performed' (Life of Oulandah Equiano, vol. ii, p. 224).—If this took place, our American cousins must have jumbled the two popular errors together."—Burn,Parish Registers, 154, note.Cf.Brand,op. cit., III, 379; alsoBarrington,Observations on Our Ancient Statutes, 475, who traces the error to the ancient right of the woman to "appeal" for murder of her husband.

With this should be compared the companion error that a man is not liable for his bride's debts if he takes her only in her "smock" or "shift":Burn,Parish Registers, 153, 154, note;Ashton,The Fleet, 386, 387;idem,Social Life in the Reign of Queen Anne, 41; and further notices of "smock marriages" inBrand,Popular Antiquities, III, 205, 380;Notes and Queries, 1st series, VI, 485, 561; VII, 17, 84;Tegg,The Knot Tied, 299-301;Wood,The Wedding Day, 115, 116; andRadcliffe,The Parish Registers of St. Chad, Saddlworth, 58.

"Another error, common amongst the lower orders, is, that a man may lawfully sell his wife to another, provided he deliver her over with a halter about her neck.—And another, that a woman's marrying a man under the gallows, will save him from the execution. 'While we lay here (New York, A. D. 1784), a circumstance happened which I thought extremely singular. One day, a malefactor was to be executed on a gallows, but with a condition that if any woman, having nothing on but her shift, married the man under the gallows, his life was to be saved. This extraordinary privilege was claimed, a woman presented herself, and the marriage ceremony was performed' (Life of Oulandah Equiano, vol. ii, p. 224).—If this took place, our American cousins must have jumbled the two popular errors together."—Burn,Parish Registers, 154, note.Cf.Brand,op. cit., III, 379; alsoBarrington,Observations on Our Ancient Statutes, 475, who traces the error to the ancient right of the woman to "appeal" for murder of her husband.

[1361]Marriages were often antedated (see especially the case of John Mottram, 1717:Burn,Fleet Marriages, 11, 12, note;Ashton,The Fleet, 343, 344;Friedberg,Eheschliessung, 337;Tegg,The Knot Tied, 204); and false oaths were common. The notorious parson Walter Wyatt complains that "if a clark or plyer tells a lye, you must vouch it to be as true as yeGospel; and if disputed, you must affirm with an oath to yetruth of a downright damnable falsehood.—Virtus laudatur & alget."—Burn,op. cit., 7;Ashton,op. cit., 337. TheGrub Street Journal, July 20, 1732, says: "On Saturday last a Fleet parson was convicted before Sir Ric. Brocas of forty-three oaths, (on the information of a plyer for weddings there) for which a warrant was granted to levy4l. 6s.on the goods of the said parson; but, upon application to his Worship, he was pleased to remit1s.per oath; upon which the plyer swore he would swear no more against any man upon the like occasion, finding he could get nothing by it."—Burn,op. cit., 7 n. 1; also inAshton,op. cit., 338.

[1362]In 1690 James Campbell, brother of the Duke of Argyle, caused to be abducted and then married Mrs. Wharton. For managing this abduction Sir John Johnston was executed at Tyburn: this case is inReports of the Historical Manuscripts Commission, V, 380, XIII, App. V, 217.Cf. ibid., IV, 345, for a case of abduction in Ireland, 1801.

[1363]On the tout or plyer seeBurn,op. cit., 7,passim;Ashton,op. cit., 337, 338, 344, 350, 357;Jeaffreson,op. cit., II, 142, 143.

[1364]

[1365]Occasionally someone was committed for complicity in procuring Fleet marriages: see cases inAshton,op. cit., 379, 380; and at least one Fleet marriage was declared illegal:General Evening Post, June 27/29, 1745:Ashton,op. cit., 382.

[1366]Friedberg,op. cit., 337. See similar remarks inGally,Considerations upon Clandestine Marriages, 28, 29.

[1367]See the names of several places inBurn,Parish Registers, 146.

[1368]Laud had put an end to these irregular marriages in the Tower. At his trial in 1644 he was for this accused of interfering with popular liberty, and ably defended himself by showing the legality of his action:Jeaffreson,op. cit., II, 116, 117;Burn,op. cit., 145 n. 2.

[1369]Letters of Horace Walpole, II, 337 (Letter to George Montagu, Esq.).

[1370]Lecky,Eng. in 18th Cent., I, 531;Friedberg,op. cit., 344;Knight,Hist. of England, V, 586;cf.Burn,Fleet Marriages, 143.

[1371]Letters of Horace Walpole, II, 337;Burn,op. cit., 145, note;Lord Mahon,Hist. of England(New York, 1849), II, 280. On Keith seeBurn,op. cit., 141-45;Jeaffreson,op. cit., II, 158 ff.

[1372]Not the least evil connected with the Fleet marriages was the promotion of unions between the indigent and those morally unfit for the marriage relation: see Bond's speech on the Hardwicke act,Cobbett,Parliamentary History, XV, 46, 47. But, of course, as Ashton suggests, the lighter expense may have induced respectable people to seek the Fleet parson, or otherwise to marry privately. "A public marriage had come to be a very expensive affair. There was a festival, which lasted several days, during which open house had to be kept; there were the marriage settlements, presents, pin money, music, and what not."—Ashton,The Fleet, 333, 334, who also quotes Misson's description of a private marriage in the time of William III. For Misson's account, see alsoJeaffreson,op. cit., II, 109 ff.In his speech against the Hardwicke act Mr. Nugent, to show how "fond our people are of private marriages, and of saving a little money," says that in a year six thousand were married in Keith's Chapel as against fifty in the neighboring St. Anne's Church, in a populous parish and convenient for private marriages by license, though the difference in expense was only 8 or 10 shillings:Cobbett,Parliamentary History, XV, 19;cf.ibid., 41.

In his speech against the Hardwicke act Mr. Nugent, to show how "fond our people are of private marriages, and of saving a little money," says that in a year six thousand were married in Keith's Chapel as against fifty in the neighboring St. Anne's Church, in a populous parish and convenient for private marriages by license, though the difference in expense was only 8 or 10 shillings:Cobbett,Parliamentary History, XV, 19;cf.ibid., 41.

[1373]Keith'sObservations on the Act for Preventing Clandestine Marriages:Ashton,The Fleet, 363, 364; also inBurn,Fleet Marriages, 144, 145.

[1374]This "poem," in twenty eight-line stanzas, is given byAshton,op. cit., 369-72.

[1375]Quoted byBurn,Fleet Marriages, 14, 15, note;Ashton,op. cit., 372-75; also byFriedberg,Eheschliessung, 338, 339, note; andJeaffreson,op. cit., II, 176, 177.

[1376]On the preservation of the Fleet registers seeAshton,op. cit., 382-88;Burn,op. cit., 66 ff.;Hammick,Marriage Law, 11, 12; andWhitaker, in theCornhill Magazine, May, 1867. By 3 and 4 Vict., c. 92, the Fleet and Mayfair registers, twelve hundred books of various sizes, are deposited in the office of the registrar-general at Somerset House (Hammick,op. cit., 12).

[1377]An example of the "smock" marriage; see p. 441 n. 3, above.

[1378]For these entries seeBurn,Parish Registers, 153-55; and there are many others inidem,Fleet Marriages, 73 ff.

[1379]Hammick,Marriage Law of Eng., 11.

[1380]See the chronology of these bills to prevent clandestine marriages inFriedberg,Eheschliessung, 346-48; and compareBurn,Fleet Marriages, 11 ff. Three of them introduced respectively in 1677, 1685, and 1691, may be found in theReports of the Historical Manuscripts Commission, IX, App. II, 91-99; XI, App. II, 276-80; XIII, App. V, 253 ff. The first declares that "notwithstanding all provisions by law ... several minors have ... been clandestinely married without consent of parents, and other irregular marriages have been made;" therefore it is enacted that it "shall not be in the power of any son, being under the age of twenty-one years, nor ... of any daughter ... under ... eighteen, to marry ... or to make a matrimonial contract of any kind whatsoever;" except the father or guardian "shall have given consent in writing attested by two credible witnesses at the least, ... or shall be present and consenting thereto," under penalty of nullity of the marriage. After the death of father and mother, the same restriction is put upon the contracts of males under eighteen and females under fourteen without the guardian's consent. "If any guardian shall be privy to any such pretended marriage," he shall lose "all his right, title, and interest to the custody of any such minors" and "shall also forfeit one moiety of his whole estate, both real and personal," one-half to the king and the other to the informer. If "any domestic or menial servant shall make any pretended marriage or matrimonial contract" with "any of the children or pupils of his or her mistress during their minority, and in such manner as ... is by this act declared to be ... null and void," such servant shall suffer three years' imprisonment. "Every ecclesiastical person who celebrates such a marriage or any marriage whatsoever whereof the banns had not been published as required by the ecclesiastical law, shall be adjudged deprived ipso facto of all benefices, dignities, pensions, and spiritual promotions which he had at time of such offence or at any time after." Personating a priest in such cases is constituted felony without benefit of clergy, punishable by death. For violating the act in the issue of a license, the offender shall forfeit his office and be incapable of holding office in church or state. The bill of 1691 is very similar in its provisions.

[1381]The evil results of these blundering statutes are vigorously stated byJeaffreson,Brides and Bridals, II, 167 ff., 130 ff., 84. The effects of 7 and 8 W. III., were especially bad. Before its enactment "it was in the power of any rogue married at a tavern-wedding to inform against the officiating clergyman, without rendering himself liable to punishment for his part in the irregular transaction. Any clerk or other person who assisted at a marriage without license or banns, could also with impunity turn informer against the lawless priest;" but by placing a penalty on all these persons "the mouths of individuals who were best qualified and most likely to give conclusive evidence against the peccant clergyman" were closed:ibid., 170, 171.

[1382]For these cases seeHowell,State Trials, XIV, 559 ff., 1327 ff. The facts are summarized byFriedberg,Eheschliessung, 344-46. The case of "Barbara late Dutchess of Cleaveland" against Feilding, with much concerning Feilding's other adventures, may be found inCases of Divorce for Several Causes(London, 1715). Elopement with heiresses is discussed byAshton,Social Life in the Reign of Queen Anne, I, 29 ff. Of Haagen Swendsen, "who was, in 1702, convicted and executed for stealing Mrs. Rawlins," he says: "Nowadays, he would have been unhesitatingly acquitted, even if he had ever been presented, as there was no real case against him, and Mrs. Rawlins married him of her own free will."In theReport of the Royal Commission, 1868, xxi-xxiii, it is estimated that one-third of all the marriages in the eighteenth century were "irregular;" whereas, after 1834, when the ministers of all denominations could solemnize, irregularity became a "stigma," the number of such contracts now (1868) being in the ratio of 1 to 1,000.

In theReport of the Royal Commission, 1868, xxi-xxiii, it is estimated that one-third of all the marriages in the eighteenth century were "irregular;" whereas, after 1834, when the ministers of all denominations could solemnize, irregularity became a "stigma," the number of such contracts now (1868) being in the ratio of 1 to 1,000.

[1383]Gally,Some Considerations upon Clandestine Marriages(2d ed., London, 1750). The first edition of this work appeared in 1730. It is strong evidence of the slow progress of opinion on social questions that, a century after the enlightened legislation of Cromwell, the author should have found it necessary to enter into an elaborate argument to establish the right of the state to make the observance of prescribed forms and conditions essential to a valid marriage. Sec. i assigns "some general reasons for a law to annul clandestine marriages;" sec. ii presents "what the civil law has done on this subject;" sec. iii shows "what has been done in France;" and in sec. iv six objections to the adoption of such a law are answered. Dr. Gally's book was referred to in the debates on the Hardwicke act.

[1384]CochranealiasKennedyv.Campbell:Paton'sReports of Cases decided in the House of Lords on Appeal from Scotland, I (1726-57), 519-32; andWilson and Shaw'sCases, III, 135, note. The appeal of the claimant was dismissed by the Lords for want of evidence; and only on this ground was that tribunal spared the cruel necessity of declaring void the marriage of persons who for many years had lived together openly as husband and wife. There are notices of the case inWalpole,Memoirs of the Reign of George II.(2d ed., 1847), I, 336 ff.;Cobbett,Par. History, XV, 8;Jeaffreson,Brides and Bridals, II, 181.

[1385]Friedberg,Eheschliessung, 349. Friedberg states erroneously that the Lords declared the marriage void.

[1386]"Lord Bath invented this Bill, but had drawn it so ill, that the Chancellor was forced to draw a new one—and then grew so fond of his own creature, that he has crammed it down the throats of both Houses, though they gave many a gulp before they could swallow it."—Walpoleto Conway, May 24, 1753:Horace Walpole'sLetters, II, 334-36; also inCobbett,Parliamentary History, XV, 33.

[1387]For contemporary discussions seeGentleman's Magazine, XXIII, 399, 400, 452, 453, 538; XXIV, 145; XXV, 212;Monthly Review, XII, 111 ff., 438-46 (notices of various pamphlets including some by Dr. Stebbing);ibid., XIII, 92-95, 394 ff.; XVI, 371; XXXII, 233; XL, 226, 425-56. CompareFriedberg,Eheschliessung, 352 n. 1, who gives the titles of several pamphlets relating to the act;Madan,Thelyphthora, II, 38-90, "cannot mention or even think" of it "without indignation," because it "strikes at a divine institution."

[1388]Burn,Fleet Marriages, 16;Tegg,The Knot Tied, 206. For the debates in the Commons seeCobbett,Parliamentary History, XV, 2-86; and compare the excellent analysis byFriedberg,Eheschliessung, 350-52; alsoHorace Walpole,Letters, II, 334-36;idem,Memoirs of George II., I, 336-49;Burn,Parish Registers, 32, 33;idem,Fleet Marriages, 16 ff., 22-31 (entire account of Lord Orford quoted);Lecky,Eng. in 18th Cent., I, 539;idem,Democracy and Liberty, II, 174-77;Spencer Walpole,Hist. of Eng., IV, 69, 70;Knight,Hist. of Eng., V, 585;Lord Mahon,Hist. of Eng., II, 280-82;Hammick,Marriage Law, 12, 13; andOppenheim, "Die Verhandlungen des Eng. Parliaments über Einführung der Civil-Ehe,"ZKR.,I, 9 ff., 14, 15, 20-22.

[1389]Jeaffreson,Brides and Bridals, II, 183, 174, 175, note. Royal marriages were not comprehended by the Hardwicke act; hence irregular marriages of royal persons were still legal. On September 6, 1766, in a mansion in Pall Mall, Maria, Countess-Dowager of Waldgrave, niece of Horace Walpole, contracted a clandestine marriage, without witnesses, banns, license, or record, with the Duke of Gloucester, brother of George III. Her private chaplain performed the ceremony; hence, except in form, this was not strictly a Fleet marriage. A few years later, on Oct. 2, 1771, another brother of the king, the Duke of Cumberland, formed a similar irregular alliance with Anne Horton; but in this case there were a witness and a memorandum. Both marriages were declared legal by a special commission: see the chapter ofJeaffreson, on "Two Royal Marriages,"op. cit., II, 234-49.

[1390]All the amendments "were designed to aggravate the aversion which the populace had conceived for a measure that appeared to them an attempt to deprive them of cheap and convenient marriage, with a view to preserve the children of the aristocracy from the misfortune of premature and imprudent matrimony.... The main object of the bill was, in the first instance, to abolish the law of matrimonial pre-contract throughout the kingdom." Therefore Henry Fox, to render it unsatisfactory to its promoters and "so ridiculous to the whole country," managed to have Scotland exempted from the operation of the law, although the suit which gave rise to the measure originated there:Jeaffreson,op. cit., II, 183 ff.;cf.Burn,Fleet Marriages, 19.

[1391]Cobbett,Par. Hist., XV, 3.Cf.similar expressions by Mr. Bond,ibid., 41 ff.

[1392]Mr. Bond appears in this statement to be somewhat in error; for optional civil marriage existed in the Netherlands since 1656: see p. 409, above.

[1393]Speech of Mr. Bond, inCobbett,op. cit., XV, 43, 44. Townshend (ibid., 57, 58) replies to the argument based on the laws of the Dutch. The people and the institutions are very different from the English and therefore afford no precedent. "In Holland not only every province but every town is a sort of sovereignty within itself; and their religion, especially with regard to marriage, is much the same as it was in this country in the days of Oliver Cromwell, when neither the marriage contract, nor the ceremony was supposed to have any sanctity or religion in its nature." Then follows this delicious bit of comparison: "The Dutch, sir, are naturally a cool, patient people, and not given to sudden changes, either in their tempers or passions; therefore the rendering a proclamation of banns necessary may do very well in that country; but in this, where the people are naturally sanguine, impatient, and as apt to change as the air they breathe, I am convinced that such a regulation would be the cause of numberless mischiefs."

[1394]Fox (Cobbett,loc. cit., 73) deprecates "making so free with the laws of God and nature." See also Nugent (ibid., 12-14) and Beckford (ibid., 82, 83). On the other side, the Earl of Hillsborough asks whether even the "vulgar can believe, that there is anything sacred in a ceremony performed in a little room of an ale-house in the Fleet, and by a profligate clergyman whom they see all in rags, swearing like a trooper and higgling about what he is to have for his trouble, and half drunk at the very time he is performing the ceremony."

[1395]Ryder, inCobbett,loc. cit., 6, 7.Cf.the speech of Lord Barrington,ibid., 27, 28, who thinks the state as much justified in requiring that a marriage to be valid shall depend upon the observance of certain prescribed forms, as it is in demanding that a legally binding oath shall be taken before duly authorized persons. These arguments are criticised by Nugent (ibid., 22, 23) and by Beckford (ibid., 82, 83).

[1396]Townshend, inCobbett,loc. cit., 51-53.

[1397]The bill is to bring upon the people all these evils "that my young lord, or the young rich squire, forsooth, may not be induced to marry his mother's maid, or a neighbouring farmer's daughter, who may probably make him a better wife and render him more happy, than if he had married the richest heiress in the kingdom; or that young miss may not run away with her father's footman, who may make her a better husband, than any lord or rich squire she, or even her father, could have chosen." Such marriages "are rather an advantage than a prejudice to the community."—Nugent, inCobbett,loc. cit., 20;cf.Fox,ibid., 71.

[1398]Nugent, inCobbett,loc. cit., 15, 16;cf.the similar argument of Fox,ibid., 68, 69.

[1399]Haldane, inCobbett,loc. cit., 35-39;cf.Townshend,ibid., 61.

[1400]This argument is also used by a writer in theMonthly Review, XL, 425, 426, who makes a violent attack on the bill: "Sir Robert Walpole" is declared to be "the first fool of a statesman who thought a kingdom might be too populous" (426).Mr. Nugent, in the Commons, appears to think that increase of population among the poor must be promoted at all hazards. Even the judicially enforced marriages between wenches and their reluctant seducers are blessings which he fears the bill will put an end to:Cobbett,op. cit., XV, 18. With these conceits of the opposition compare the sound views of the Earl of Hillsborough (ibid., 63): "Poor servants and labourers ... are but too apt to run into matrimony, before they have considered how they are to support either themselves or their children ...; for the prosperity and happiness of a country does not depend upon having a great number of children born, but upon having always a great number well brought up, and inured from their infancy to labour and industry." Essentially modern opinions are likewise expressed by Mr. Bond: "For as to those rash and inconsiderate marriages ... between two poor creatures, sometimes before they have got clothes to their backs" or a lodging or means of support, "I think they ought all, if it were possible, to be prevented." Fleet marriages, he believes, have propagated "beggars, rogues, and the most abandoned sort of prostitutes;" and he appeals to the stricter laws of Holland which have not checked the growth of an industrious population:ibid., 46, 47.

Mr. Nugent, in the Commons, appears to think that increase of population among the poor must be promoted at all hazards. Even the judicially enforced marriages between wenches and their reluctant seducers are blessings which he fears the bill will put an end to:Cobbett,op. cit., XV, 18. With these conceits of the opposition compare the sound views of the Earl of Hillsborough (ibid., 63): "Poor servants and labourers ... are but too apt to run into matrimony, before they have considered how they are to support either themselves or their children ...; for the prosperity and happiness of a country does not depend upon having a great number of children born, but upon having always a great number well brought up, and inured from their infancy to labour and industry." Essentially modern opinions are likewise expressed by Mr. Bond: "For as to those rash and inconsiderate marriages ... between two poor creatures, sometimes before they have got clothes to their backs" or a lodging or means of support, "I think they ought all, if it were possible, to be prevented." Fleet marriages, he believes, have propagated "beggars, rogues, and the most abandoned sort of prostitutes;" and he appeals to the stricter laws of Holland which have not checked the growth of an industrious population:ibid., 46, 47.

[1401]A writer in theMonthly Review, XII, 115, speaks of the "minor's inalienable right to marriage as the proper remedy for chastity."

[1402]According to Mr. Haldane, banns are required by the bill "in order to render licenses necessary; and the only use of a license I take to be that of putting money into the pockets of our clergymen or some of their officers."—Cobbett,op. cit., XV, 40. On the too high cost of licensescf.Townshend,ibid., 57, 58; and Fox,ibid., 70.

[1403]Haldane, inCobbett,loc. cit., 39. He continues: "In my opinion the certain consequence will be that of rendering common whoring as frequent among the lower sort of people, as it is now among those of the better sort; and multitudes of wenches in all parts of the country, when they find they cannot get husbands according to law, will set up the trade; so that the Bill ought really to be called a Bill for the increase of fornication in this kingdom."—Ibid., 39.Cf.the similar arguments of Nugent (ibid., 17, 18), Townshend (ibid., 55, 58), Fox (ibid., 68-70), and Beckford (ibid., 80-82).

[1404]Compare the statements of Nugent, inCobbett,loc. cit., 21.

[1405]Townshend, inCobbett,loc. cit., 55-58.

[1406]Banns and license are unnecessary; while clandestine marriages of the "scandalous or infamous" variety are so unimportant as to call for no legislation. Bigamy and the hardships arising in difficulty of proof may be remedied, it is alleged, by a law merely providing for proper registration and making it a rule that the "legitimacy of children should never be questioned, after the death of their parents who lived together as husband and wife, and were generally reputed to be so."—Townshend, inCobbett,loc. cit., 49, 50.Cf.the similar plan of Haldane,ibid., 40, 41.

[1407]Friedberg,Geschichte der Civilehe, 20,15.

[1408]Horace Walpole,Letters, II, 334-36;Cobbett,op. cit., XV, 32, 33.

[1409]Nugent, inCobbett,loc. cit., 19.Cf.the extracts from the Report of the "Marriage Laws Commission," 1868, inHammick,Marriage Law, 354 ff., where the inadequacy of banns and the popular dislike of them are mentioned.

[1410]The act of 26 Geo. II., c. 33. For the text, seePickering'sStatutes at Large, XXI, 124-30;Evans,Statutes, I, 155-60. For analysis and discussion of its provisions seeBurn(R.),Ecclesiastical Laws, II, 433;Hammick,Marriage Law, 12-15;Geary,Marriage and Family Relations, 9, 12-15;Burn(J. S.),Parish Registers, 32, 33;Blackstone,Commentaries, I, 438, 440; IV, 163;Lecky,Eng. in 18th Cent., I, 531-40;idem,Democracy and Liberty, II, 174, 176 ff.;Taswell-Langmead,Eng. Const. Hist., 750;Campbell,Chancellors, VI, 262;May,Const. Hist., II, 362;Friedberg,Geschichte der Civilehe, 16, 17;idem,Eheschliessung, 355-58;Oppenheim, "Ueber Einführung der Civil-Ehe in Eng.,"ZKR., I, 9-11.

[1411]From 8 to 12 in the morning.

[1412]Cf.Hammick,Marriage Law, 13. CompareSayer,A Vindication of the Power of Society to annull the Marriages of Minors(1754), 2 ff., who answers the arguments ofStebbingin the works mentioned in Bibliographical Note X. This is important in tracing the rise of sound opinions regarding the proper sphere of social control; and with it may be read to advantageSalmon,Critical Essay Concerning Marriage, 59 ff. On the ecclesiastical law as to consent to the marriage of minors seePoynter,Doctrine and Practice of the Ecc. Courts, 29 ff.; and in this connection may also be readCooke,Report of the Case of Horner against Liddiard upon ... Consent nec. to the mar. of illegit. Minors(London, 1800).

[1413]The clause of the act providing for license is vigorously attacked byFry,Considerations on the Act, 7 ff., who declares that "it gives liberty (for a little money) to revive Clandestine Marriages." On the spiritual law as to license comparePoynter,Doctrine and Practice of the Ecc. Courts, 21 ff.

[1414]The act took effect on March 25, 1754; and between its passage on June 6 and that date these parsons did a roaring good business. TheGentleman's Magazine, XXIV, 141 (Sunday, March 24, 1754), has the following:"Being the last day before the commencement of the marriage act before 11 o'clock 45 couple were married at Mr. Keith's chapel, and when they ceased, near 100 pair had been joined together; two men being constantly and closely employed in filling up licenses for that purpose." See Keith's appeal for charity, because the act had reduced him "from a great Degree of Affluence" to "such a deplorable state of misery in the Fleet Prison," inAshton,The Fleet, 364, 365.Clandestine contracts, however, were not entirely put an end to by the Hardwicke act. In the Savoy chapel Dr. John Wilkinson and his representatives solemnized many hundreds of marriages contrary to the provisions of the law; but these were, of course, absolutely void:Jeaffreson,Brides and Bridals, II, 192-202;Burn,Fleet Marriages, 139-41. Burn is in error when he says (139) "there does not appear to have been any clandestine marriages" at the Savoy "until after the Marriage Act." Such a marriage took place there in 1596. Under date of June 14, in that year, W. Monne, Master of the Savoy, writes to Lord Cobham, whose grandchild and ward was a party to this contract, that he has "conferred with Archb. of Canterbury concerning Mr. Bigge, the chaplain of the Savoy who performed the marriage. Bigge said he thought he might well do it because his fellow chaplains were in the habit of marrying people without license. Archb. committed Bigge to the Gate House pending Cobham's pleasure, also ordered that 'no such disorderly marriage shall be offensively in the Savoy performed.'"—Reports of the Hist. Manuscripts Commission, V, 136, 139.

"Being the last day before the commencement of the marriage act before 11 o'clock 45 couple were married at Mr. Keith's chapel, and when they ceased, near 100 pair had been joined together; two men being constantly and closely employed in filling up licenses for that purpose." See Keith's appeal for charity, because the act had reduced him "from a great Degree of Affluence" to "such a deplorable state of misery in the Fleet Prison," inAshton,The Fleet, 364, 365.

Clandestine contracts, however, were not entirely put an end to by the Hardwicke act. In the Savoy chapel Dr. John Wilkinson and his representatives solemnized many hundreds of marriages contrary to the provisions of the law; but these were, of course, absolutely void:Jeaffreson,Brides and Bridals, II, 192-202;Burn,Fleet Marriages, 139-41. Burn is in error when he says (139) "there does not appear to have been any clandestine marriages" at the Savoy "until after the Marriage Act." Such a marriage took place there in 1596. Under date of June 14, in that year, W. Monne, Master of the Savoy, writes to Lord Cobham, whose grandchild and ward was a party to this contract, that he has "conferred with Archb. of Canterbury concerning Mr. Bigge, the chaplain of the Savoy who performed the marriage. Bigge said he thought he might well do it because his fellow chaplains were in the habit of marrying people without license. Archb. committed Bigge to the Gate House pending Cobham's pleasure, also ordered that 'no such disorderly marriage shall be offensively in the Savoy performed.'"—Reports of the Hist. Manuscripts Commission, V, 136, 139.

[1415]Hammick,Marriage Law, 13, 14;cf.Geary,Mar. and Fam. Rel., 33.

[1416]Walpole,Hist. of Eng., IV, 69.

[1417]Cf.Green,Hist. of English People, IV, 212, 124, 176 ff., 257;May,Const. Hist., I, 15 ff., 263 ff. By the Toleration Act of 1 Will. and Mary dissenters were formally recognized and relieved from the pains and penalties attaching to non-conformity; hence thereafter marriages "according to their own forms and usages" were "treated as marriagesde facto." The Hardwicke act robbed them of this privilege:Hammick,Marriage Law, 14.

[1418]In favor of the dissenters bills were introduced, either in the Commons or in the Lords, in 1782 (Hansard,Par. Debates, 2d series, 1825, XII, 1236 ff.), 1819 (ibid., XL, 1200 ff., 1504 ff.), 1823 (ibid., IX, 967 ff.), 1834 ("Bills, Public," 1834, II); and by Sir Robert Peel in 1835 ("Bills, Public," 1835, III). A bill for registration of marriages, births, and deaths was brought forward in 1834 ("Bills, Public," III); and already in 1833 a special committee to report on the state of the parochial registers and the necessary legislation was appointed by the Commons. This committee reported on Aug. 15 of the same year ("Reports, Committees," 1833, XIV). See the history of the attempts to grant relief to dissenters byOppenheim, "Über Einführung der Civil-Ehe in England,"ZKR., I, 8-33.

[1419]The Unitarians could not conscientiously make the declaration of belief in the Trinity contained in the Anglican marriage ritual: "I thee wed," etc., "in the name of the Father and of the Son and of the Holy Ghost":Walpole,Hist. of England, IV, 69-71, who discusses the efforts of William Smith and Lansdowne in their behalf.

[1420]The same argument is advanced by a writer in theQuarterly Review, LI (1834), 493 ff., 513, 514.

Back to Index Next