CHAPTER X

RISE OF CIVIL MARRIAGE

[BIBLIOGRAPHICAL NOTE X.--The beginning of the Puritan

conception of marriage as a civil contract is best seen in

Whitgift's "Defence of the Answer," _Works_ (Parker Society,

Cambridge, 1851-53), comprising Cartwright's _Reply to the

Answer_, as well as extracts from the _Answer_ itself, and

from the original _Admonition_ of 1572 which gave rise to the

whole controversy. The views of the Independents, when fully

developed, find their fullest expression in the writings of

Milton on marriage and divorce, constituting, besides scattered

allusions, Vol. III of his _Prose Works_ (Bohn ed., London,

1888); the _Likeliest Means to remove Hirelings out of the

Church_, and the version of Bucer's _De regno Christi_, entitled

_The Judgment of Martin Bucer_, being of special interest in

this connection. For the early period some useful material is

afforded by Prothero's _Statutes and Constitutional Documents_

(Oxford, 1894); Brereton's _Travels in Holland_, 1634-35:

"Chetham Society Publications," Vol. I; Hallam's _Constitutional

History_ (New York, 1880); and Ranke's _England in the

Seventeenth Century_ (Oxford, 1875).

The act of 1653 is contained in Scobell's _Collection of

Acts and Ordinances, 1640-1656_ (London, 1658); and in the

contemporary newspaper entitled _Several Proceedings of

Parliament_, No. 6; but, like all the acts of the revolutionary

period, it is omitted in every edition of the _Statutes at

Large_. Original material for a study of the administration

of this law may be found in the parish registers covering

the interregnum edited by Bulwer, _Parish Registers of St.

Martin-cum-Gregory in the City of York_, Part IV (York, 1895);

Cowper, _The Booke of Register of the Parish of St. Peter in

Canterbury_ (Canterbury, 1888); _Parish Registers of Ellough,

Suffolk_ (privately printed, 1886); Hoveden, _The Register

Booke ... of the Cathedral and Metropoliticall Church ... of

Canterburie_ (Harleian Society, London, 1878); Margerison,

_The Registers of the Parish Church of Calverley, in the West

Riding of ... York_ (Bradford, 1880-87); Moore, _Registers

of Broad Chalke, County Wilts_ (London, 1880); Phillimore,

_Gloustershire Parish Registers_ (London, 1896); Radcliffe,

_The Parish Registers of St. Chad, Saddlworth in County of

York_ (Uppermill, 1887); Sanders, _The Parish Registers

of Eastham, Cheshire_ (London, 1891); _idem_, _The Parish

Registers of Bebington, County Chester_ (Liverpool, 1897);

Stavert, _The Parish Registers of Burnsall-in-Craven_ (Skipton,

1893); and Turner, _The Non-Conformist Register_ (Brighouse,

1881). There is an interesting table in Graunt's _Natural

and Political Observations_ (Oxford, 1665); and examples of

marriage certificates and other records under the act of 1653

may be found in _The Register Booke of Inglebye iuxta Grenhow_

(Canterbury, 1889); Burn's _Parish Registers_; Friedberg's

_Eheschliessung_; _Notes and Queries_ (London, 1850 ff.);

and the _Gentleman's Magazine_ (London, 1731 ff.). The two

periodicals just mentioned, like the _Monthly Review_ (London,

1749 ff.), contain a great deal of matter--curious antiquities

as well as serious discussion--relative to Fleet marriages, the

Hardwicke act, and other phases of the subject. Inderwick's

_Interregnum_ (London, 1891) has an instructive discussion

of some questions connected with the marriage act; and like

Jenk's _Constitutional Experiments_ (Cambridge, 1890) it is

valuable for appreciating the legislation of the Commonwealth.

Lathbury's _History of the Book of Common Prayer_ (Oxford and

London, 1859) describes the operation of the act; and some cases

noted in Jeaffreson's _Middlesex County Records_ (London, n.

d.) prove the need of the safeguard against abduction or fraud

afforded by the act; and there are a number of useful documents

in the _Reports of the Historical Manuscripts Commission_.

Illustrations of the ridicule called out by banns in the

market-place and the justices' celebration may be found in

Butler's _Hudibras_ (Boston, 1864), and Flecknoe's _Diarium_

(London, 1656).

On the Fleet and Mayfair celebrations Burn's now very scarce

_Fleet Marriages_ (2d ed., London, 1834) is the chief authority.

It is supplemented by his _Parish Registers_; and these books

as well as the original sources have been used for Friedberg's

excellent account in the _Eheschliessung_, which on this topic

and the whole ground covered by the present chapter is a

trustworthy guide. A famous contemporary book is Brady's _Some

Considerations upon Clandestine Marriages_ (2d ed., London,

1750). There is an article by Ewald, "Fleet Marriages," in his

_Paper and Parchment_ (London, 1890); and Waters's excellent

_Parish Registers_ (new ed., London, 1883) is more reliable than

the similar work of Burn. Fleet marriages are also discussed,

with interesting extracts from the contemporary newspapers,

by Tegg, _The Knot Tied_ (London, 1877); Ashton, _The Fleet_

(London, 1889); and Jeaffreson, _Brides and Bridals_ (London,

1872), whose book, like Brand's _Observations on the Popular

Antiquities of Great Britain_ (London, 1873-77), contains a mass

of information relating to every phase of marriage customs.

On these marriages and on the Hardwicke act see also Horace

Walpole's _Letters_ (London, 1880); and Lecky, _History of

England in the 18th Century_ (New York, 1879).

Many illustrations of matrimonial usage and folklore may be

found in Howlett, "Marriage Customs," in Andrews's _Curious

Church Customs_ (London, 1895); Edgar, "Marriage in Olden

Times," in his _Old Church Life in Scotland_ (London,

1886); Vaux, "Marriage Customs," in his _Church Folklore_

(London, 1894); Ashton, _Social Life in the Reign of Queen

Anne_ (London, 1882); and Hutchinson, _Chronicles of Gretna

Green_ (London, 1844). In England as well as in Germany the

question of polygamy was much debated. A version of Ochino was

brought out by Garfeild, _A Dialogue of Polygamy_ (London,

1657). This was followed by the anonymous _Concubinage and

Polygamy Disproved_ (London, 1698); Turner, _Discourse on

Fornication with an Appendix on Concubinage_ (London, 1698);

Delany, _Reflections upon Polygamy_ (London, 1737), opposing

the practice; Hamilton, _A Treatise on Polygamy proving it to

be the Will of God_ (Dublin, 1786); especially the notorious

work of Madan, _Thelyphthora; or a Treatise on Female Ruin_ (2d

ed., London, 1781); answered by Towers, _Polygamy Unscriptural;

or two Dialogues between Philalethes and Monogamus_ (London,

1780); by Hill, _The Blessings of Polygamy_ (London, 1781); and

more elaborately by Cookson, _Thoughts on Polygamy_ (Winchester,

1782). See also Dwight, _The Hebrew Wife_ (Glasgow, 1837); and

Colenzo, _A Letter to the Archbishop of Canterbury_ (Cambridge,

1862).

The development of contemporary sentiment and opinion may be

traced in _The Lawes Resolutions of Womens Rights_ (London,

1632); Courtin, _A Treatise of Jealousie_ (London, 1684);

Salmon, _A Critical Essay Concerning Marriage_ (London, 1724);

De Foe, _Religious Courtship_ (London, 1729); Astell's sensible

and liberal _Reflections upon Marriage_ (4th ed., London,

1730); the critical and vigorous _Hardships of the English Laws

in Relation to Wives_ (London, 1735); Dove, _Dissertations

on Marriage, Celibacy_, etc. (1769); Giles, _A Treatise on

Marriage_ (London, 1771); the anonymous _Considerations on

the Causes of the present Stagnation of Matrimony_ (London,

1772), alleging the unreasonable authority of parents; _The

Laws respecting Women, as they regard their Natural Rights_

(London, 1777); Wollstonecraft, _A Vindication of the Rights of

Men_ (London, 1790); her more celebrated _A Vindication of the

Rights of Woman_ (London, 1792); Jay, _Essay on Marriage, or the

duty of Christians to marry Religiously_ (2d ed., Bath, 1807);

_Observations on the Marriage Laws_ (London, 1815); Thompson,

_Marriage: Two Sermons_ (London, 1837); and Wardell-Yerburgh

(ed.), _Marriage Addresses and Marriage Hymns_ (London and New

York, 1900). For the socialistic marriage doctrines of Robert

Owen and others see Bibliographical Note XVIII.

For the debates on the act of 1753 see Cobbett, _Parliamentary

History_, XV; the lively comments of Horace Walpole in his

_Letters_; and the same writer's account of the proceedings in

his _Memoirs of the Reign of George the Second_ (2d ed., London,

1847). The act is harshly criticised by Madan; and among the

writings which it called forth are _Considerations on the Bill

for preventing Clandestine Marriages_ (London, 1753); Fry,

_Considerations on the Act to prevent Clandestine Marriages_

(London, 1754); Merrick, _Marriage a Divine Institution_

(London, 1754), approving the conservative views of Stebbing,

_An Enquiry into the Force and Operation of the Annulling

Clauses_ (London, 1754); _idem_, _A Dissertation on the Power

of States to deny Civil Protection to the Marriage of Minors_

(London, 1755); both papers being criticised by Sayer, _A

Vindication of the Power of Society to Annull the Marriage of

Minors_ (London, 1755). The acts of 1753 and 1836 are noticed

also by Mahon, _History of England_ (New York, 1849); Knight,

_History of England_ (New York, 1880); Lecky, _Democracy and

Liberty_ (New York, 1896); and Spencer Walpole, _History of

England_ (London, 1890).

On the existing law as developed since 1753, especially the acts

of 1836, the _Parliamentary History_ and the _Parliamentary

Debates_ are of course necessary; and for this topic, as

well as for the entire chapter, the _Statutes at Large_ are

in constant requisition. There are contemporary notices of

the acts of 1823 and 1836 in the _Annual Register_, LXV and

LXXVIII; while the sources have been carefully examined by

Oppenheim in his valuable monograph, "Ueber die Einführung der

Civil-Ehe in England," in _ZKR._, I (Berlin, 1861). The temper

and arguments with which the efforts to secure justice were

opposed are disclosed in _A Letter to the ... Earl of Liverpool_

(London, 1827) by a "Presbyter of the Church of England;" Le

Geyt, _Observations on the Bill now before Parliament_ (London,

1827); and Griffin-Stonestreet, _Nuptiæ Sacræ: Objections

to the Amended Unitarian Marriage Bill_ (London, 1828). See

further Phillimore, _Substance of the Speech ... on moving ...

to amend the Marriage Act_ (2d ed., London, 1822); and Lawton's

edition of _The Marriage Act, 4 Geo. IV., c. 76_ (London, 1823);

Beard, _Notes on Lord John Russell's Marriage Bill_ (London,

1834); and in particular the "Report of the Royal Commission

on the Laws of Marriage," in _British Documents_, 1867-68,

XXXII (London, 1868). Of service also are Cooke, _A Report of

the Case of Horner against Liddiard_, Consistorial Court of

London, 1799 (London, 1800); Poynter, _Doctrine and Practice of

the Ecclesiastical Courts in Doctors Commons_ (London, 1822);

Robertson, _The Law of Legitimation by Subsequent Marriage_

(London, 1829); Moodie, _Principles, Changes, and Improvements

in the Law of Marriage_ (London, 1849); Wilks, _Present Law of

Banns a Railroad to Marriage_ (London, 1864), with which may be

compared Ewen, _Proclamation of Banns in Scotland_ (Edinburgh,

1877).

The best short technical treatises on the English marriage

laws as a whole are Hammick's _The Marriage Law_ (London,

1887); Geary's _Marriage and Family Relations_ (London, 1892);

Ernst's _Treatise on Marriage and Divorce_ (London, 1879); and

the concise discussions in Brett's excellent _Commentaries

on the Laws of England_ (London, 1891). Of some service also

is Tegg's popular book, _The Knot Tied_, already mentioned;

and the compact manual of Moore, _How to Be Married_ (London,

1890), is convenient for ready reference. Useful likewise in

this study are the works of Blackstone, Toulmin Smith, Bishop,

Evans, Fischel, Burn (_Ecclesiastical Laws_), Bohn (_Political

Cyclopædia_), all of which have been mentioned in preceding

Notes; as well as Campbell, _Chancellors_ (4th ed., London,

1856-57); Howell, _State Trials_ (London, 1809-28); Molesworth,

_History of England_ (London, 1877); May, _Constitutional

History_ (New York, 1880); Taswell-Langmead, _Constitutional

History_ (London, 1880); Green, _English People_ (New York,

1880); and the valuable article on "Marriage" by Robertson in

the _Encyclopædia Britannica_, XV.]

I. CROMWELL'S CIVIL MARRIAGE ACT, 1653

It was not until the middle of the seventeenth century that the

ideas of the early German[1280] Reformation relating to the temporal

nature of marriage gained ascendancy in England, and then only for

the brief period of the Commonwealth. Yet the civil-marriage act

of 1653 is of extraordinary historical interest, not only as an

example of the statesmanship of Cromwell, so often anticipating the

reforms of our own age, but especially as being mainly the result of

the revolt of the Puritans, more particularly of the Independents,

against the unnatural union of church and state produced by the

compromise of the sixteenth century, and of their intense hatred

of the formalism and ceremonial of the "Romanizing" party in the

established church. The act is of special significance for our

present purpose, since it reveals the conceptions which shaped the

matrimonial laws of New England. Paradoxical as it may at first

glance appear, it cannot be doubted that the first establishment

of obligatory civil marriage in England owes its origin chiefly to

the desire of an intensely religious party to separate all things

worldly from the functions of the clergy and the church.[1281]

True, a foreign people, closely related by blood and speech, with

whom England had long had intimate relations and to whom the

Puritans were drawn through sympathy with their heroic resistance

to ecclesiastical oppression, had already provided a model, which

may have had a certain influence. For in the Netherlands, on April

1, 1580, after the independence from Spain had been declared,

the provinces of Holland and West Friesland had established a

civil-marriage form, permissively even for the members of the

Reformed church; and in principle this was adopted by the States

General for the United Provinces in 1656, three years after the

appearance of the English statute under consideration.[1282]

[1280] FRIEDBERG, _Eheschliessung_, 324; WEBER,

_Geschichte d. akathol. Kirchen und Secten von Grossbrittanien_

(Leipzig, 1845), I, 1, 106 ff.; RICHTER, _Geschichte der

deutschen Kirchenverfass._ (Leipzig, 1851), 175 ff.

[1281] _Cf._ FRIEDBERG, _Geschichte der Civilehe_, 12;

_idem_, _Eheschliessung_, 322-25; RANKE, _Hist. Eng. in

17th Century_, III, 89; BLACKSTONE, _Commentaries_, I,

440.

[1282] By this act the civil-marriage form was permitted, but

not made obligatory. Members of the established church might

solemnize their marriages before their own clergy; but the

Lutherans and Catholics were not allowed a similar liberty;

they must put up with the lay ceremony or accept the offices

of a Reformed minister. This law remained in force until 1795,

when, under the Batavian Republic, obligatory civil marriage was

instituted, which is still in force in the kingdom of Holland

by the statutes of 1833: see FRIEDBERG, _Geschichte

der Civilehe_, 10-12; and his more elaborate treatment of civil

marriage in Holland, _Eheschliessung_, 478-99.

Familiar as many Englishmen probably were with Dutch

institutions,[1283] and close as had been the relations of

Dutch and English Puritans,[1284] so important an event as the

introduction of civil marriage can hardly be due primarily to

imitation. Though Holland may have provided a model, it must be

essentially the product of English religious history. Already in

the reign of Elizabeth there are signs of discontent with the

established ritual and with the quasi-sacramental character of

marriage as conceived by the Anglican clergy. Especially obnoxious

to the Protestant non-conformists, as appears from the well-known

controversy between Whitgift and Thomas Cartwright, leader of

the English Presbyterian party, are the use of the ring, the

"worshipping" of the bride by the bridegroom, requiring the newly

married pair to partake of the communion, and certain customs

popularly connected with the wedding celebration, but not enjoined

by the liturgy. "As for matrimony," runs a passage in the celebrated

_Admonition to the Parliament_, published in 1572, "that also hath

corruptions, too many. It was wont to be counted a sacrament; and

therefore they use yet a sacramental sign, to which they attribute

the virtue of wedlock, I mean the wedding-ring, which they foully

abuse and dally withal, in taking it up and laying it down: in

putting it on they abuse the name of the Trinity, they make the

new-married man, according to the popish form, to make an idol of

his wife, saying 'with this ring I thee wed, with my body I thee

worship,' etc. And because in popery no holy action may be done

without a mass, they enjoin the married persons to receive the

communion (as they do their bishops and priests when they are made),

etc. Other petty things out of the book we speak not of, as that

women, contrary to the rule of the apostle, come, and are suffered

to come, bareheaded, with bagpipes and fiddlers before them, to

disturb the congregation, and that they must come in at the great

door of the church, else all is marred [with divers other heathenish

toys in sundry countries, as carrying of wheat-sheaves on their

heads, and casting of corn, with a number of such like, whereby

they make rather a May-game of marriage than a holy institution of

God]."[1285]

[1283] SIR WILLIAM BRERETON, who visited the Netherlands

in 1634-35, gives an interesting notice of the religious wedding

service. "Marriage," he notes, "likewise solemnized by the

English and Dutch reformed churches, without the use of the ring

or any ceremony, only an admonition precedes, directing how

these married persons should demean themselves each to other,

and for that end those Scriptures read hereunto most pertinent;

as also a large discourse precedes, touching the institution of

this sacred ordinance, and those texts hereunto pertinent also

read." He mentions the marriage of a couple "who used the ring,

and it was as long in solemnizing as our marriages, but I saw no

other ceremony used but the ring and joining hands; after this

concluded, all the bride's kindred, friends and acquaintances

that are present, or meet with her, kiss her, even in the Church,

when groom leaves her, and her own friends bring her near his

house, when he meets, salutes her, and receives her. Among the

Lutherans I observed that they bowed always at the name of Jesus,

so often as it was used in the solemnity of their marriage,

which was very often."--"Travels in Holland, etc., 1634-5,"

_Chetham Society Publications_, I, 63, 64. It is noticeable

that Sir William says nothing of the civil-marriage ceremony,

permitted in some provinces at this time. Between 1580 and 1656,

in many cities, the Lutherans had gained the right to solemnize

marriage according to their own rites: FRIEDBERG,

_Eheschliessung_, 484.

[1284] See CAMPBELL, _The Puritan in Holland, England,

and America_, I, 485 ff.

[1285] _Admonition_, the Ninth: WHITGIFT, "Defence of

the Answer," _Works_, III, 335.

In his _Answer to the Admonition_ Whitgift denies that the ring is

looked upon as a "sacramental sign," and admits that "it is not

material" whether it "be used or not;" while he quotes with approval

Bucer's opinion[1286] that the "ceremony is very profitable, if the

people be made to understand what is thereby signified, as that

the ring and other things, first laid upon the book, and afterward

by the minister given to the bridegroom to be delivered to the

bride, do signify that we ought to offer all that we have to God

before we use them, and to acknowledge that we receive them at his

hand to be used to his glory. The putting of the ring upon the

fourth finger of the woman's left hand, to which, as it is said

there cometh a sinew or string from the heart, doth signify that

the heart of the wife ought to be united to her husband; and the

roundness of the ring doth signify that the wife ought to be joined

to her husband with a perpetual band of love, as the ring itself

is without end." Cartwright in his _Reply_ declares that "if it be

M. Bucer's judgment which is alleged here for the ring, I see that

sometimes Homer sleepeth. For, first of all, I have shewed that it

is not lawful to institute new signs and sacraments. And, then, it

is dangerous to do it, especially in this which confirmeth the false

and popish opinion of a sacrament." Next he ridicules Bucer for his

"fond allegories" touching the ring, and thinks that having "the

minister to preach upon these toys" savoureth not of his learning

and sharpness of judgment.[1287] Whitgift, however, further defends

the practice on the score of "convenience" and because it is "void

of all manner of superstition."[1288] Moreover, he sustains the

requirement of communion, again quoting Bucer in its favor; accuses

Cartwright of weak argument and of trying to make "schism in the

church" by bringing forward popular customs, "mere trifles" not

sanctioned by the "book" which is the real object of his attack;

and rightly points out that "worship" implies not idolatry, since

it signifies merely to "honor" and not to "adore" according to the

more modern devotional sense.[1289] Indeed, it is historically

instructive that already in the sixteenth century the original

meaning of "worship" should have passed out of common use.

[1286] BUCER, _Script. anglic. basil., 1577, Censur. in

ordinat. eccles._, c. xx, 488, 489: WHITGIFT, _Works_,

III, 353, 354, note. Bucer is the great Protestant authority

on the question of marriage and divorce. Milton calls him the

"pastor of nations" (_Works_, III, 285), and congratulates

himself on having independently reached similar conclusions

(_ibid._, 282 ff.). See especially MILTON'S "Judgment

of Martin Bucer concerning Divorce" (_ibid._, 274-314), being a

partial translation of the second book of BUCER'S _De

regno Christi_, addressed to Edward VI.

[1287] CARTWRIGHT'S _Reply to the Answer_, in

WHITGIFT, _Works_, III, 354.

[1288] Thus in his "Defence of the Answer" (_Works_, III, 355)

WHITGIFT apologizes for the use of the ring, seeing the

"church hath thought it convenient," and since it is likewise

"void of all manner of superstition, necessity of salvation,

opinion of worshipping, and all other circumstances, that should

take away the lawfulness of using it."

[1289] WHITGIFT, _op. cit._, III, 355-57.

But the attack of the sixteenth-century reformers was not directed

solely against the ceremonies and phrases of the marriage ritual. A

bold step was taken toward civil marriage when resistance was made

to ecclesiastical jurisdiction in matrimonial causes on the ground

that these belong to the temporal judge. On this subject Cartwright

has a characteristic passage, disclosing his usual ignorance of

history and his confusion of mind--of which Whitgift does not fail

to take advantage--but nevertheless revealing plainly enough the

new ideas which more and more came to the front during the Puritan

revolution. "Another thing," he says, "is that in these courts

(which they call spiritual) they take the knowledge of matters which

are mere civil, thereby not only perverting the order which God hath

appointed in severing the civil causes from the ecclesiastical, but

justling also with the civil magistrate, and thrusting him from

the jurisdiction which appertaineth unto him, as the causes of the

contracts of marriage, of divorce, of wills and testaments, with

divers other such like things. For, although it appertain to the

church and the gouvernors thereof to shew out of the word of God

which is a lawful contract or just cause of divorce, and so forth,

yet the judicial determination and definitive sentences of all these

do appertain unto the civil magistrate. Hereunto may be added, that

all their punishments almost are penalties of money, which can by no

means appertain to the church, but is a thing merely civil."[1290]

[1290] CARTWRIGHT'S _Reply to the Answer_, p. 150, sec.

3, in WHITGIFT, _Works_, III, 267.

So far as England is concerned, to assign the unfortunate "severing

the civil causes from the ecclesiastical" under William the

Conqueror to the "order which God hath appointed" may seem to the

historical student a trifle bold; and Whitgift may well retort, if

"'it pertain to the church to declare what is a lawful contract,

and which be the just causes of divorce,' by what reason can you

prove 'that the judicial determination and definitive sentence of

those matters doth pertain to the civil magistrate only'? For is

not he most meet to judge in these causes which best understandeth

them?" But Whitgift himself undoubtedly begs the question when he

advances the counter-statement that the civil magistrate already

has authority in ecclesiastical cases, since "all jurisdiction

that any court in England hath or doth exercise, be it civil or

ecclesiastical," is "executed in her majesty's name and right,"

and comes "from her as supreme governor," so that in effect "we"

make no "such distinction betwixt civil and ecclesiastical causes

as the pope and you do;"[1291] for this very blending of church

and state under the "defender of the faith" is really the root of

the whole matter in controversy. Yet Cartwright represents a good

cause, however lame his defense of it may be. Again returning to

the charge, in effect he attacks the notorious character[1292]

of the spiritual courts themselves, referring to the "unfitness

of those which are chief officers" in them; for "the most" of

these officials, he affirms, "are either papists, or bribers, or

drunkards (I know what I write), or epicures, and such as live of

benefices and prebends in England and in Ireland, doing nothing of

those things which appertain unto them."[1293] Dilatory action in

matrimonial causes was a standing grievance against the spiritual

courts; and many "lamentable complaints and petitions" for redress,

especially in cases where "summary hearing and speedy relief" are

necessary, were addressed to the privy council. For this reason, in

1613, complaints from wives alleging desertion, cruel treatment, or

"breach of the bonds of holy wedlock" on the part of their husbands

were relegated to the High Commission for settlement.[1294]

[1291] WHITGIFT, "Defence of the Answer," _Works_, III,

267.

[1292] The Reformers charged that the throng of greedy

place-hunters, attracted by fees and emoluments, corrupted the

courts as well as the entire ecclesiastical administration of

the bishops: see particularly MILTON'S "Likeliest Means

to remove Hirelings out of the Church," _Works_, III, 1-41: Sir

Henry Spelman, he says, "proves that fees exacted or demanded for

sacraments, marriages, burials, and especially for interring, are

wicked, accursed, simoniacal, and abominable" (_loc. cit._, 21).

"Nor did other abuses imputed to these obnoxious jurisdictions

fail to provoke censure, such as the unreasonable fees of their

officers, and the usage of granting licenses and commuting

penances for money. The ecclesiastical courts indeed have

generally been reckoned more dilatory, vexatious, and expensive

than those of the common law."--HALLAM, _Const. Hist._,

I, 115; _cf._ 454.

"At Durham, at Lancaster, and at Ely, the Bishops sitting

each as a Pope in his own dominions professed to exercise

temporal as well as spiritual power, but they had in fact

permitted gross abuses to corrupt and obstruct the fountain of

justice."--INDERWICK, _The Interregnum_, 184.

[1293] CARTWRIGHT'S _Reply to the Answer_, p. 151, sec.

1, in WHITGIFT, _Works_, III, 268. WHITGIFT

(_ibid._, 269) rebukes Cartwright for his "slanderous and

opprobrious speeches." _Cf._ the further discussion of the

question of spiritual jurisdiction in matrimonial causes in

WHITGIFT, _loc. cit._, 543-46, where Cartwright quotes

Beza, Calvin, and Peter Martyr in his favor.

In convocation, 1580, proposals were made to reform the

ecclesiastical courts, but nothing was done. Again in 1594 a

commission to inquire into abuses was appointed: HALLAM,

_Const. Hist._, I, 215 n. 1; STRYPE'S _Grindal_, 259,

App., 97; and STRYPE'S _Whitgift_, 419.

[1294] See secs. xx-xxii of the commission of James I. to the

High Commission, in PROTHERO'S _Statutes and Const.

Docs._, 431-33. The signers of the "Millenary Petition," 1603,

likewise pray for the restraint of the "longsomeness of suits in

ecclesiastical courts (which hang sometimes two, three, four,

five, six, or seven years)": PROTHERO, _op. cit._, 415.

But adding to the powers of the "Ecclesiastical Star Chamber"

would scarcely be regarded by the Puritans as even a satisfactory

palliation for such a grievance. The policy of the Stuarts tended

swiftly to mold their opinions into organized resistance; and the

marriage question became at last one of the cardinal issues in

the reform program. Thus in the "Millenary Petition" of 1603 the

Puritan ministers, while objecting to the "cross in baptism," the

"cap and surplice," profanation of the Lord's day, "double-beneficed

men," "popish opinions," and "longsomeness of service," pray also

for the reversal of "divers popish canons," such "as the restraint

of marriage at certain times;" for greater caution in granting

"licenses for marriage without banns;" and for the correction of

"divers terms of priests and absolution and some other used, with

the ring in marriage, and other such like in the book."[1295] On

the other hand, if the Puritan loathed the so-called "popish"

tendencies of the established church, as these became more and more

pronounced under the rule of Laud, both the Puritan and the Anglican

united in merciless persecution of the adherents of Rome. The act

of 1606, "to prevent and avoid dangers which may grow by Popish

recusants," is one of the most barbarous of those which for ages

disgraced the English statute book. By this law a "popish recusant

convict," or a man whose wife alone is convicted of recusancy, is

forbidden to "exercise any public office in the commonwealth,"

except "such husband himself and his children ... above the age of

nine years abiding with him and his servants in household shall

once every month at the least, not having any reasonable excuse to

the contrary, repair to some church or chapel" of the establishment

and "there hear divine service;" and unless, with his children and

servants of meet age, he receives the sacrament of the Lord's

Supper when required by law, and "bring up his children in the true

religion." Every married woman convicted of recusancy, her husband

not being so convicted, who shall not "conform herself ... by the

space of one whole year next before the death of her said husband,

shall forfeit to the King's Majesty ... the issues and profits of

two parts of her jointure and two parts of her dower, ... and also

be disabled to be executrix or administratrix" of her husband, "and

to have ... any part of his goods and chattels." Any child[1296]

sent abroad without the king's license, to prevent his "good

education in England or for any other cause," may have "no benefit

by any gift, conveyance, descent, devise or otherwise of any lands

... goods or chattels," until he reach the age of eighteen or more,

when, as a condition of recovering his property, he must take an

iron-clad oath of allegiance[1297] and partake of the sacrament.

In the meantime--and here a broad way was opened up for fraud and

wickedness--all the rights mentioned are to pass to the "next of kin

which shall be no Popish recusant." Moreover, this infamous statute

imposes harsh penalties upon every recusant who shall hereafter be

"married otherwise than according to the orders of the Church of

England by a minister lawfully authorized." The man is "utterly

disabled to have any estate of freehold in any the lands ... of

his wife as a tenant by curtesy of England," or in case she have

no lands he must forfeit a hundred pounds. The woman is not only

disabled from claiming her dower or jointure, but is also denied her

"widow's estate and frank-bank in any customary lands whereof her

husband died seized," as well as any part of her husband's goods

"by virtue of any custom." Should a child be born to them, it must

within a month be baptized in open church according to Anglican

rites, under penalty of one hundred pounds for refusal.[1298] In

all other essential features during the first two Stuart reigns the

law of espousals and marriage remained the same as during the age

of Elizabeth.[1299] After Laud gained control there was a strong

tendency to accent those parts of the nuptial ceremonial which gave

offense to the Puritans.[1300] The civil war brought all this to an

end; and "on January 3, 1644-5, a few days before the execution of

Archbishop Laud, the Directory was by a solemn ordinance substituted

for the Book of Common Prayer." But the form prescribed in the

latter remained valid, "although the celebrant was liable to a fine

of £5 for not using the form inserted in the Directory of Public

Worship. Still many people clung to the ancient service, and amongst

others Stephen Marshall the Preacher, who had a chief hand in

compiling the Directory, deliberately made use of the Prayer Book in

marrying his own daughter, when he paid down to the churchwardens

the legal fine which he had incurred."[1301]

[1295] _Ibid._, 414, 415.

[1296] Unless the child be a soldier, mariner, merchant, or a

merchant's apprentice or factor.

[1297] Prescribed by 3 and 4 James I.: PROTHERO, _op.

cit._, 259; _Statutes at Large_, II, 653.

[1298] 3 and 4 James I., c. v: PROTHERO, _op. cit._,

262-68; _Statutes at Large_, II, 656-62.

[1299] For a concise and accurate account of the law of marriage

as it stood under Charles I. see _The Lawes Resolutions of Womens

Rights_ (London, 1632), 51-115, 231 ff. Marriages on account of

_disparitas cultus_ were prohibited. "Amongst the hinderances of

marriage note this also, that by Constitution of holy Church,

marriage is forbidden betwixt persons of divers Religions, as

Jews and Christian" (59). It does not appear, however, that such

unions were invalid; nor is anything said of "mixed" marriages.

There was no action, as in Germany, to compel the fulfilment of

the _sponsalia_ (54).

[1300] CARDWELL, _Documentary Annals_, II, 200-207,

gives Bishop Wren's "Orders and Directions" for the diocese of

Norwich, 1636:

"XI. That they go up to the holy table at marriages at such time

thereof as the rubric so directeth, and that the new married

persons do kneel without the rail, and do at their own charge, if

the communion were not warned the Sunday before, receive the holy

communion that day, or else to be presented by the minister and

churchwardens at the next generals for not receiving.

"XII. That no minister presume to marry any persons, whereof

one of the parties is not of his parish, unless it be otherwise

expressly mentioned in the license; nor that he marry any by

virtue of any faculties or license, wherein the authority of an

archdeacon or official is mentioned, _sub poena suspensionis_."

[1301] WATERS, _Parish Registers in England_, 11, 16.

_Cf._ LATHBURY, _Hist. of the Book of Common Prayer_,

310, and the authorities there cited. JEAFFRESON,

_Brides and Bridals_, II, 69, gives the form of marriage contract

prescribed by the Directory.

With the triumph of Cromwell the hour had come for realization

of the new ideals. The act of 1653, though marking the end of a

century of religious controversy in which not a little of bigotry

and fanaticism on both sides is mingled, and though passed by

the much-abused "Barebone's Parliament,"[1302] is nevertheless a

measure wise and clear, resting on principles which two centuries

and a half of subsequent history have fully sanctioned. For, like

so much of the legislation and experimentation of the period, it is

anticipatory of the best reforms of the present age. With remarkable

clearness and brevity, but with adequate fulness of detail, the form

of celebration, the exercise of matrimonial jurisdiction, and the

machinery of administration are provided for.[1303]

[1302] For a fair estimate of the character of the "Barebone's

Parliament," see INDERWICK, _The Interregnum_, 15-17;

JENKS, _Const. Experiments_, 69-75.

[1303] This marriage act of August 24, 1653, is contained in

SCOBELL'S _Acts and Ordinances of Parliament_, 236-38,

though, to the disgust of the historical student, not in any

of the various editions of the _Statutes_. I have here used a

copy of the act contained in a contemporary newspaper entitled

_Several Proceedings of Parliament, from Tuesday the twenty-third

of August, to Tuesday the thirtieth of August, 1653_, found

in the fine collection of seventeenth-century pamphlets in

the Sutro Library, San Francisco. An inaccurate copy of the

principal provisions of the act is given by BURN,

_Parish Registers_, 26-29; and there is a good summary in

FRIEDBERG, _Eheschliessung_, 322, 323. On this act and

the views of the Independents see COOK, "The Marriage

Celebration in Europe," _Atlantic Monthly_, LXI, 255-57.

An obligatory civil ceremony before a justice of the peace

is prescribed. After due publication of banns, with a proper

certificate thereof obtained from the parish register, the persons

to be married are to come before "some justice of peace within and

of the same county, city, or town corporate" where publication was

made. If either of them is under the age of twenty-one, "sufficient

proof of the consent of their parents or guardians" must be

presented. The magistrate is required to "examine by witness upon

oath, or otherwise ... concerning the truth of the certificate,

and due performance of all the premises;" and he is also to take

cognizance of any "exceptions" to the marriage "made or arising." If

"no reasonable cause to the contrary" appear, "the marriage shall

proceed in this manner: The man to be married, taking the woman to

be married by the hand, shall plainly and distinctly pronounce these

words:

'I A. B. do here in the presence of God the Searcher of all Hearts,

take thee C. D. for my wedded wife; and do also in the presence of

God, and before these witnesses, promise to be unto thee a Loving

and Faithful Husband.'" The woman in like manner taking the man by

the hand accepts him for her husband, promising to be his "Loving,

Faithful, and Obedient Wife."

The ceremony thus consists merely in the expression of mutual

consent, accompanied by the interlocking of hands, the old

handfasting; but the use of the ring is not permitted.[1304] All

legal requirements being satisfied, the justice pronounces the

parties husband and wife; and their simple declaration, as above

given, is to be taken "as to the form of marriage" to be "good

and effective in law; and no other marriage whatsoever within the

Commonwealth," after September 29, 1653, "shall be held or accompted

a marriage according to the Laws of England."[1305] But this

restriction was omitted when the act was confirmed in 1656.[1306]

[1304] Hence the ridicule of BUTLER, _Hudibras_, Part

III, c. 2, 303-10 (Boston, 1864), II, 18:

"Others were for abolishing

That tool of matrimony, a ring,

With which th' unsanctify'd bridegroom

Is marry'd only to a thumb

(As wise as ringing of a pig,

That us'd to break up ground and dig),

The bride to nothing but her will,

That nulls the after-marriage still."

[1305] _Cf._ FRIEDBERG, _Eheschliessung_, 322, 330.

After the restriction was removed in 1656, marriages were

frequently solemnized before the mayor and the minister of the

parish jointly: BURN, _Parish Registers_, 162, 163,

note; WATERS, _Parish Registers in England_, 16. In

1658, according to the register of St. Giles in the Fields,

a marriage was celebrated by William Jervis, D.D., before

witnesses, and then follows this entry: "That also the sd.

marriage ... hath its consummation before John Lord Berksted,

Lord Lieutenant of the Tower of London" according to the act of

parliament, and before Sir Jno. Sedley of the county of Kent.

Apparently this was a double celebration: _Notes and Queries_,

3d Series, I, 228. For this case see also JEAFFRESON,

_Brides and Bridals_, II, 71, who affirms that usually the

"wedding was religiously solemnized in church, after or

before the performance of the purely civil affirmation in the

magistrate's parlour, ... in accordance with the instructions

of the 'Directory of Public Worship;'" and it seems that the

celebration was sometimes conducted according to the Book of

Common Prayer: LATHBURY, _Hist. of the Book of Common

Prayer_, 310.

[1306] SCOBELL, _Acts and Ordinances_, 1656, c. 10, p.

394. _Cf._ also BURN, _Parish Registers_, 29. In 1658

it was permitted to use the "accustomed religious rites" if the

parties preferred: WOOD, _The Wedding Day_, 279.

In thorough harmony with the doctrine that marriage is a "worldly

thing" is the provision of this act depriving the clergy of

jurisdiction in matrimonial causes and placing it in the hands of

the justices of the peace. It is provided that all "matters and

controversies touching contracts and marriages, and the lawfulness

and unlawfulness thereof; and all exceptions against contracts and

marriages, and the distribution of forfeiture within this act, shall

be in the power, and referred to the determination of the justices

of peace in each county, city, or town corporate, at the general

quarter sessions," or to such "other persons" as the "parliament

shall hereafter appoint." All offenses against the act committed

on or beyond the sea are in like manner to be tried in the places

where the offenders are taken. Jurisdiction in cases of divorce is

not, however, mentioned in this act; nor was any provision made for

the trial of such causes during the Commonwealth. Indeed, a strong

religious prejudice still survived against divorce, even among the

Independents. "Thus," says Mr. Inderwick, "while on the one hand

they treated marriage as a civil contract, on the other they gave

to it all the inviolability of a sacrament, an inconsistency which

is, however, to be found in many other acts of this period. The

Jewish law, to which they much adhered, provided for and regulated

divorces. They were recognized by most Protestant communities, and

Milton, oppressed by his own domestic difficulties, had written

powerfully on the subject, but through all the minutes of the

various parliaments and councils of state I find, what I conceive

to be somewhat surprising, no trace of any proposal to introduce

into England any system of divorce. And, indeed, the prejudice

against divorce appears to have been so strong that the laxity

of the Jews in this respect was found in 1655 to be one of the

strongest arguments against their proposed admission to the rights

of citizenship."[1307] Nor is there any clear provision for the

determination of cases of separation and alimony; although the

consistory and other ecclesiastical courts having been abolished,

these questions in practice were managed by "delegates appointed

by the Commissioners of the Great Seal[1308] or by justices of

the peace in quarter sessions--a course which would seem to have

been the reasonable outcome" of the civil marriage act.[1309] On

similar grounds the county justices probably dealt with "matrimonial

squabbles," though in one case at least the intervention of the

Council of State was sought.[1310]

[1307] INDERWICK, _The Interregnum_, 46.

[1308] The act of 1650, c. 43: SCOBELL, _Acts and

Ordinances_, 150, 151, contains a general provision for such a

commission in cases of pretended marriages.

[1309] INDERWICK, _op. cit._, 183, 184.

[1310] See the case of "John Buck and Mary his wife" in

INDERWICK, _op. cit._, 183. That the justices took a

hand in these cases appears to be a reasonable conjecture.

On the other hand, the act of 1653 grants authority to the justices

in cases of the marriage of minors through fraud or forcible

abduction. According to Inderwick, the attempt to check this abuse

was entirely novel. The Commonwealth, he says, "interfered in a

manner[1311] hitherto unknown for the protection of women from

those forcible abductions and marriages which were but too common

under the former and later reigns of the Stuarts. Fraudulent

marriages, induced by needy men or intriguing women, formed the

common staple of the plays and interludes which the puritans so

heartily condemned. In these comedies, while the unhappy father or

deluded guardian was not infrequently the subject of mirth or of

contempt, the lucky intriguer was made the hero of the play. From

this species of offense, carried from the play-house into private

life,[1312] the middle class peculiarly suffered, and while the

wealthy merchant or the prosperous tradesman had to endure as best

he might the entrapping of his daughter or the abduction of his

ward, the gay cavalier or dashing spark who carried her off was the

lion of the hour. Of this phase of society the puritan party had

long and loudly proclaimed their horror and detestation, and the

Commonwealth was not long installed before an occasion arose which

enabled them to give practical effect to their expressed opinions."

This was the case of the forcible abduction of Jane Pickering, "who

was the only daughter and heiress of Sir Thomas Pickering, knight

and baronet, deceased." While "walking in Greenwich Park with her

maids in October of 1649, she was seized by one Joseph Walsh and his

companions" and transported to Flanders; "after which Walsh asserted

a marriage to have taken place between them and was prepared to

claim his pecuniary rights as her husband." The Council of State

took speedy action. The lady was eventually brought back to England.

Under authority of an act of Parliament,[1313] the case was tried

in 1651 by a special court consisting of delegates appointed by the

Lords Commissioners of the Great Seal; "and it is to be presumed

that she had judgment in her favour, and her marriage set aside;"

for subsequently an "indictment of felony was found against Walsh

and his companions."[1314] Accordingly the marriage act declares

that if anyone by violence or fraud steal or cause to be stolen any

person under the age of twenty-one years, "with intent to marry the

said person," the offender shall forfeit his whole estate, one-half

to the Commonwealth and one-half to the aggrieved, and besides

"suffer strict and close imprisonment, and be kept to hard labor ...

during life." Severe punishment likewise is prescribed for those

aiding or abetting the crime; and any guardian or overseer who

shall abuse his trust "by seducing, selling, or otherwise wilfully"

promoting the marriage of his ward with another without such ward's

free consent "shall forfeit double the portion which of right"

belongs to the child.[1315]

[1311] Something had, however, been done to check this evil

by Tudor legislation. The act of 3 H. VII., c. 2, _Statutes

at Large_ (Ruffhead), II, 69, provides that if anyone take

away against her will any woman, whether maid, widow, or wife,

"having substances, some in Goods moveable, and some in Lands and

Tenements, and some being Heirs apparent unto their ancestors,"

and marry her or cause her to be married or deflowered, or in any

way aid or abet the same, he shall be guilty of felony; and the

act of 39 Elizabeth, c. 9, _Statutes at Large_, II, 689, deprives

such offenders of benefit of clergy. Again by 4 and 5 Philip and

Mary, c. 8, _Statutes at Large_, II, 515, the abduction of a

maid under sixteen is punishable by two years' imprisonment or

a fine to be fixed by the Star Chamber; while the taking away

and marrying or deflowering any woman child under that age is

punishable with five years' imprisonment or a fine as in the

first case. For these and the earlier statutes regarding rape see

_The Lawes Resolutions of Womens Rights_, 376-90.

These acts, it should be noted, are quite restricted in

their range and besides, by 1653, they seem to have become

practically a dead letter; although in 1753 Attorney General

Ryder declares they are still in force: HANSARD,

_Parliamentary History_, XV, 3-5; and so does the act of 1650, c.

43: SCOBELL, _Acts and Ordinances_, 151. On the other

hand, the act of the Commonwealth applies to all minors under

twenty-one, men or women, whether heirs or possessors of property

or not; the penalties were severe; and the fraudulent or forcible

marriage is void.

[1312] The MSS. of the Duke of Northumberland in _Reports of the

Hist. Manuscript Commission_, III, 55, 59, 61, show entry before

the Star Chamber of three such cases: On June 3, 1608, "Atty Gen.

_v._ Thos. Mollineux, Riot and other Misdemeanors in marriage of

daughter of Mr. Brooke against his will." Feb. 5, 1611-12, "Atty

Gen. _v._ Humphry and Margaret Chatterton et al. Conspiring to

deceive Lord Cavendish of his son, Sir William, aged 14, and

King of his Wardship. Supposed contract of marriage between Sir

William Cavendish and Margaret Chatterton, a waiting maid." Jan.

1612-13, "Elizabeth de la Fountaine, widow, _v._ Stephen Harvie

et al. Practicing to steal away and marry plaintiff's daughter,

aged 8."

[1313] The act (1650, c. 43) in SCOBELL'S _Acts and

Ordinances_, 150, 151.

[1314] INDERWICK, _op. cit._, 40-43: citing _State

Papers_, 1649-50; and WHITELOCK, _op. cit._, III, 293,

319.

[1315] For examples of marriages annulled by the quarter sessions

under this act see JEAFFRESON, _Middlesex County

Records_, III, 233, 234, 264; also INDERWICK, _op.

cit._, 43, 45.

The change in matrimonial jurisdiction effected by this measure of

the Commonwealth has a twofold significance. Not only is judicial

authority thus vested in civil rather than spiritual tribunals; but

it is placed in the hands of local judges. It is an illustration

of the democratic or decentralizing tendency which marks the

legislation of the seventeenth-century Puritans on both sides of

the Atlantic. It was, moreover, natural that the county magistrates

should be vested with these new functions. In the exercise of

their general peace authority they had already performed duties

not wholly dissimilar to some of those called for under the act. In

certain instances, before as well as after the reign of Cromwell,

one may be surprised to find the justices exercising a sort of

jurisdiction in cases of alleged breach of promise. "Forasmuch,"

declare the magistrates of Devon in 1626, "as it hath apeared unto

this court that Bridget Howsley of Langton, spinster, liveth idly

and lewdly at home, not betaking herself to any honest course of

life, and hath lately falsely and scandalously accused" a certain

man of Honiton, "challenging a promise of marriage from him, which

tended much to his disgrace, and that she is a continual brawler

and sower of strife and debate between neighbors;" therefore it is

ordered that the said Bridget "be forthwith committed to the House

of Correction there to be set on work and remain for the space of

six whole months," and thereafter until she find good sureties or a

"master that will take her into service."[1316] Here the justices

may have acted merely as peace officers, though it is plain that

as a precedent their sentence is far-reaching in its consequences.

As late as 1835 we find the magistrates at Exeter, following the

principle of the Roman law, "obliging a faithless swain to return a

damsel's watch, and the latter to return half the value of a broach"

which he had given her.[1317]

[1316] ROBERTS, _The Social History of the People of the

Southern Counties of England in past Centuries_ (London, 1856),

204, 205.

[1317] BURN, _Parish Registers_, 140 n. 1. By the code

of Theodosius, already cited (above, p. 295), when the betrothal

was sealed with a kiss, the lover received one-half of the gifts;

but the woman, "whether kissing or not kissing, whatsoever she

gave, she may ask and have it again": _ibid._, 140. Compare _The

Lawes Resolutions of Womens Rights_, 71, 72 (on "Wooing" and the

"Condiments of Love").

In no respect is the essential "modernness" of Cromwell's marriage

act more strikingly shown than in its provisions to secure

publicity, with a safe and perfect record. Nothing so wise and

practical in this regard was again seen in England until the law of

1836. It is provided that in each parish a register of marriages,

births, and deaths shall be elected for three years by the

contributors to the poor rate. The register is to be an "able and

honest person," such "as shall be sworn and approved" by a justice

of the peace, who is to enter the fact of election and qualification

in the register book of the parish;[1318] and he is removable either

by the justice or by the parish with the justice's consent. A "Book

of good Vellum or Parchment" is to be provided by each parish, in

which it is the duty of the register to enter all marriages, births,

and burials of "all sorts of people."[1319]

[1318] The following is a specimen of such entry by a justice,

taken from the parish register of Shudy Camps, in Cambridgeshire

(BURN, _op. cit._, 26):

"Cambsh.--These are to certifie all whom it may concern y^t Jn^o

Wignald Clerke (being elected Register of y^e parish of Shudy

Camps by y^e Inhabit^{ts}. of y^e same Parish as hath appear'd

unto me by a Certificate under y^e hands of y^e Inhabitants

thereof) did come before me Tho. Benett Esq^r. one of y^e

Justices for y^e peace of y^e s^d Countie and did take his oath

for y^e due Execution of his office acc^g to y^e late Act of

Parliam^t in y^t case made and provided. Which s^d John Wignald

I do hereby constitute Register thereof. Accordingly witness my

hand and seal this 10 of Jan. 1653. Tho. Benett."

For similar certificates see STAVERT, _Parish Register

of Burnsall-in-Craven_, 88; COWPER, _The Booke of

Register of the Parish of St. Peter in Canterbury_, 89; and

WATERS, _Parish Registers in England_, 14.

[1319] The fees for registration authorized are for each marriage

12d.; publication and certificate of marriage, 12d.; each birth

or death, 4d.; and no charge in case of persons living by alms.

Careful provision is also made for the publication of banns. All

marriages must be announced either for three successive Sundays in

church, or at the pleasure of the parties, during the same interval,

in the market-place[1320] "next to the said church or chappel."

Before the publication the parties must file with the register a

written statement of their names and places of residence, together

with those of their parents or guardians; and these facts are

then included in the notice. The register also enters the fact of

publication and all objections brought forward against the marriage,

with the names of those objecting. After publication the persons to

be married are to obtain the register's certificate of the fact

and proceed to a justice of the peace. As already seen, they must

also find witnesses, give evidence of the consent of parents or

guardians, and cause to be confirmed by oath, or otherwise in the

discretion of the magistrate, the genuineness of the certificate.

After the ceremony, if desired by the parties, the officiating

justice is required to give them a certificate of the solemnization

properly signed by himself and the witnesses; and this certificate,

if produced, shall be recorded by the clerk of the peace in each

county in a book of parchment provided for the purpose.[1321] The

register of the parish is to "attend the said justice" to "subscribe

the entry of every such marriage."

[1320] The parish register of Boston, Lincolnshire, shows

"that during the years 1656, 1657, and 1658 respectively the

number of marriages proclaimed in the market-place were 102,

104, and 108, and of those announced in the church, 48, 31,

52."--WOOD, _The Wedding Day_, 278, 279.

[1321] The English clerk of the peace keeps the records of the

quarter sessions and in a measure corresponds to the county

clerk in the United States; _cf._ HOWARD, _Local Const.

Hist._, I, 315.

Nor did the system so well planned exist merely upon paper. The

plain men chosen to the office of register did their work well,

though they were sneered at as "mere laymen," and though they

sometimes substitute rather harsh English for the worse Latin of

their clerical predecessors. Greater publicity and more orderly

records were secured during the Commonwealth than existed before

it or after the Restoration. "It has been frequently asserted by

writers on this subject," remarks Burn, a thoroughly competent

judge, "that the registers during the time of Oliver Cromwell, were

very badly kept;" but, on the contrary, "they were unusually well

kept" where "a lay register was appointed according to the act of

parliament." Such deficiencies as exist, he suggests, may result

either from the destruction of the records or from neglect to turn

them over at the Restoration or when the lay registers entered

upon their functions.[1322] Waters agrees with Burn;[1323] and an

examination of the published parish registers entirely confirms this

view.[1324] It is hard, therefore, to understand the following

curious statement by a contemporary writer who is clearly no admirer

of Cromwell.[1325] Referring to certain "bills of mortality" for

Romsey in Hampshire and Tiverton in Devonshire,[1326] he remarks

"that in the years 1648 and 1649, being the time when the people of

_England_ did most resent the horrid Parricide of his late Sacred

Majesty, ... there were but nine weddings ... in the same places,

when there were ordinarily between 30 and 40 _per Annum_; and but

16, when there were ordinarily ... between 50 and 60. And it may

also be observed that something of this black murther appeared in

the years 1643 and 1644 when the Civil war was at the highest,

but the contrary [in the] years 1654, 1655, etc., to prevent the

new way of Marriage then imposed upon the people." Just how the

increase in the number of weddings recorded in the years 1654-58

may be explained as due to a desire "to prevent the new way of

Marriage," we are not informed. It cannot be inferred that people

hurried to get married in anticipation of the new law, for it was

put in force the next month after its passage; nor that through

zeal they married more rapidly according to the Book of Common

Prayer, in defiance of the new civil forms, although in some cases

the religious celebration may have been still employed. But it is

useless to speculate as to the sense of the passage. The statistical

tables for the two parishes submitted by this writer afford very

strong evidence that the apparent increase in the number of weddings

is mainly due to the fact that the records were better kept. It

will be noticed that there is a corresponding rise in the number of

christenings and burials; and this fact can scarcely be accounted

for by assuming that people hastened to get born or to die through

opposition to an ordinance of the Barebone's Parliament. After the

Restoration there is a decided falling off in the registration.

[1322] BURN, _Parish Registers_, 52.

[1323] WATERS, _Parish Registers of England_, 17.

[1324] The registration for the period of the act is very full

in HOVEDEN, _The Register Booke ... of the Cath. and

Met. Church of Christe of Cant._, 58, 59; MARGERISON,

_The Registers of the Parish Church of Calverly_, II, 117-24;

STAVERT, _The Parish Register of Burnsall-in-Craven_,

87-104. In PHILLIMORE'S _Gloustershire Parish

Registers_, I, 9, there are no entries for 1653-54 and for

several years before, while they are relatively full thereafter.

BULWER'S _Parish Registers of St. Martin-cum-Gregory

in the City of York_, II, 78-87, have a full record both

before and after 1660. The same is true of COWPER'S

_Booke of Register of the Parish of St. Peter in Canterbury_,

89-92, for the period 1640-60; while before 1640 there are

fewer entries, and after 1660 a much less complete record. In

SANDERS'S _Registers of Eastham, Cheshire_, 75-85, the

record begins in 1654 after an interval of ten years; but his

_Registers of Bebington, County Chester_, 129, show a blank

for the years 1654-56. RADCLIFFE'S _Registers of St.

Chad, Saddlworth_, supplement, 450-53, 444-49; and the _Register

Booke of Inglebye iuxta Grenhow_, 165-69, are full and very

interesting. Compare the other registers named in Bibliographical

Note X, showing a few entries each year.

[1325] JOHN GRAUNT, _Natural and Political Observations_

(3d ed., Oxford, 1665), 158, 159 (Appendix). For calling my

attention to this passage I am indebted to the kindness of

Professor Charles H. Hull. In the "Introduction" to his edition

of PETTY'S _Economic Writings_ (Cambridge, 1899),

I, xxxiv ff., lxxv ff., lxxx ff., may be found an account of

Graunt's life and works.

[1326] "The Table of the Parish of Tiverton" (GRAUNT,

_Natural and Political Observations_, 158, 159):

==========================================================

| | CHRISTENED | BURIED

YEARS | WEDDINGS +-----+-----+---------+-----+-----+------

| | M. | F. | Both | M. | F. | Both

------+----------+-----+-----+---------+-----+-----+------

1650 | 9 | 66 | 79 | 145 | 7 | 9 | 16

1651 | 9 | 50 | 63 | 113 | 5 | 10 | 15

1652 | 9 | 80 | 73 | 153 | 48 | 51 | 99

1653 | 21 | 89 | 219 | 208[A] | 47 | 78 | 125

1654 | 108 | 105 | 101 | 206 | 72 | 68 | 140

1655 | 140 | 87 | 104 | 191 | 87 | 114 | 201

1656 | 109 | 107 | 90 | 197 | 56 | 86 | 142

1657 | 102 | 94 | 101 | 195 | 67 | 59 | 126

1658 | 60 | 70 | 83 | 153 | 77 | 85 | 162

1659 | 37 | 77 | 78 | 155 | 72 | 80 | 152

------+----------+-----+-----+---------+-----+-----+------

| 604 | 815 | 891 | 1716 | 538 | 640 | 1178

| | | | | | |

1660 | 27 | 61 | 68 | 129 | 70 | 69 | 139

1661 | 38 | 83 | 93 | 176 | 73 | 85 | 158

1662 | 36 | 73 | 56 | 129 | 91 | 95 | 186

1663 | 35 | 68 | 64 | 132 | 72 | 74 | 146

1664 | 41 | 68 | 72 | 140 | 98 | 114 | 212

------+----------+-----+-----+---------+-----+-----+------

| 177 | 353 | 353 | 706 | 404 | 437 | 841

------+----------+-----+-----+---------+-----+-----+------

[A] Error in the original.

GRAUNT'S "Table for the Country Parish"--identified

by Hull with Romsey in Hampshire (PETTY, _Economic

Writings_, II, 412)--affords similar evidence. The table for

Cranbrook in Kent ends in 1649.

The great success of this early attempt at reform in matrimonial

administration cannot, however, be thoroughly appreciated unless one

reflects that throughout the ages the matter of registration had

been shamefully neglected and the record books recklessly destroyed.

Their custody being "frequently committed to ignorant parish clerks,

who had no idea of their utility beyond their being occasionally

the means of putting a shilling into their pockets for furnishing

extracts;" and "at other times being under the superintendence of an

incumbent, either forgetful, careless, or negligent, the result has

necessarily been that many registers are miserably defective."[1327]

This judgment applies to the times following the Commonwealth as

well as to the period falling between 1538 and the act of 1653.[1328]

[1327] BURN, _Parish Registers_, 40; _cf._

WATERS, _Parish Registers of England_, 10, 11.

In some books many entries are lacking, or there are breaks for

several years together. Often the record is so carelessly made as

to be of little value, even when not entirely illegible. Thus at

St. Ewe, the "parishioners refusing to allow 5s. per annum for

keeping a register, there was none kept for the years 1675-6-7,"

except two entries: BURN, _op. cit._, 41. The clerk

of Plungar, Leicestershire, made use of the registration book

for wrapping paper; and BURN gives many other similar

illustrations in his unique volume: _ibid._, 41 ff.

[1328] See chap. viii, pp. 359 ff., above.

Many specimens of the marriage records of the Commonwealth have been

discovered, representing each phase of procedure.[1329] Of these the

following entry of the marriage of Oliver Cromwell's daughter, taken

by Waters from the register of St. Martin's in the Fields, may serve

as an example:

"These are to certifie whom it may concerne, that according to a

late Act of Parliament ... Publication was made in the publique

meeting place, in the Parish Church of the parish of Martins in

the Fields in the county of Middlesex, upon three several Lord's

Days, at the close of the morning exercise, namely, upon the

XXV. day of October MDCLVII., as alsoe upon the I. and VIII.

day of November following, of a marriage agreed upon between

the Honorable Robert Rich of Andrew's Holborn, and the Right

Honorable the Lady Frances Cromwell, of Martins in the Fields,

in the county of Middlesex. All which was fully performed

according to the Act without exception.

"In witness whereof I have hereunto set my hand the IX. day of

November, MDCLVII.

William Williams,

Register of the Parish of Martins in the Fields."

[1329] The most interesting published records of the period

which I have seen are those contained in the _Register Booke

of Inglebye iuxta Grenhow_ (Canterbury, 1889), extending from

March 13, 1654, to May 3, 1659. They are written in English.

The next entry thereafter, without a word of comment on the

change, is in Latin, as if appropriately to mark the return

of the _ancien régime_. Extracts from various records will be

found also in BURN, _op. cit._, 25, 26, 52, 54, 160

ff.; and of these several are reproduced by FRIEDBERG,

_Eheschliessung_, 327, 328. See also _Reports of the Hist.

Manuscripts Commission_, V, 594 (Par. Registrar, Mendlesham,

Suffolk, 1653-57); _Notes and Queries_, 2d series, III, 306,

307; 3d series, V, 526 (from WILKINSON'S _Hist. of

the Parochial Church of Burnly_, 1856); 3d series, I, 228;

_Gentleman's Magazine_, LIV (1784), 8, giving a certificate of a

marriage at Stratfield Saye, Southampton, October 2, 1654. It is

printed in JEAFFRESON, _Brides and Bridals_, II, 68, 69,

note. Compare the registers cited in Bibliographical Note X.

Then follows this entry "in the hand of Henry Scobell" who was

doubtless the officiating magistrate:[1330]

[1330] Henry Scobell was clerk to the Parliament until 1658,

and compiler of the "Collections of Acts and Ordinances" of the

revolutionary period.

"Married, XI. Novemb., MDCLVII, in the presence of His Highness

the Lord Protector, the Right Honble. the Earls of Warwick

and Newport, Robert Lord Birch, the Lord Strickland, and many

other."[1331]

[1331] WATERS, _op. cit._, 16, 17; BURN, _op.

cit._, 160; quoted also by FRIEDBERG, _op. cit._, 328,

note; and JEAFFRESON, _op. cit._, II, 72, 73, note.

Sometimes the entries are fuller in details, and more ingenious

in orthography. Here is one from the register of "Inglebye iuxta

Grenhow":

"George Middleton of the Parish of Carleton husbandmā, son

of William Middleton of the same parish husbandman & Isabell

Easebie of Green-howe in the parish of Inglebye spinster

daughter of Isabell Easbie of the said Greenhowe; having agreed

to be married did deliver to me Williā Boweston of Inglebie

aforesaid parish Register of the said Inglebie their names

sirnames additions and places of aboade, & the same of their

parents likewise in writeing upon the 19th of ffebruarie 1654.

which was published in the publick meeting place of the said

Inglebye commonly called the Church or chappell upon the 25th of

februarie and the 4th & 11th of March 1654 at the Close of the

morning exercise by me William Boweston Register.

"And the said George Middleton & Isabell Easbie expressed their

consēt unto Marriage by the words of the Act before George

Marwood Esquire one of the Justices of the peace of the Countie

of York & were by the said Justice declared to be husband & wife

the 13th of March 1654

Geo: Marwood."[1332]

[1332] _Register Booke of Inglebye iuxta Grenhow_, 75.

Each of the two documents just presented, it will be noticed,

consists of two parts: the certificate of the register to the

magistrate; and the magistrate's entry in the register book after

the ceremony has been performed. The following is an example of the

marriage certificate which by the act the justice is to deliver to

the parties, when required, to be filed by them with the county

clerk of the peace, if they see fit:

"Fforasmuch as I, having received a certificatt of the date

of the xiij of this month, under the hand and seale of Owen

Perkins, Gent., Register of the consolidated Churches of Mathry,

that Publicacon was made of an intencon of marriage three lord's

days thenbefore in the said parish Church between Phillip Harry

and Ann Harry, if not anything objected to the contrary, These

are therefore at the desire of the Said parties to certify all

whome it may concern, that according to the Act of Parliament

for marriages, the Said Phillip and Anne this present day came

before me, and taking each other by the hand did plainly and

distinctly pronounce the words in the said Acte mencōēd to be

pronounced by them, And thereupon, according to the said Acte, I

pronounce them to be husband and wife. Given under my hand and

seale the ffourteenth day of July, 1655

Thomas Davis."[1333]

[1333] _Notes and Queries_, 2d series, III (1857), 306, 307. For

another certificate of the same kind, of a marriage published

in the market-place, see _Gentleman's Magazine_ (1784), 8;

also quoted by FRIEDBERG, _op. cit._, 327, 328, note;

and other examples may be found in SANDERS'S _Parish

Registers of Eastham_, 76, note; and JEAFFRESON'S

_Middlesex County Records_, III, 223.

The law of 1653, it thus appears, constitutes a singularly

important episode in the social and religious history of England.

It remained in force, with a modification in 1656, during the

seven years preceding the fall of the Commonwealth, and called

forth the fierce opposition and hatred of the royalist party.

It was ridiculed by the pamphleteer[1334] and satirized by the

poet.[1335] Every provision drew forth a sneer. Marriage is made

a "traffic" because published in the market-place; "matrimony and

hanging" join hands before the same justice; and the "lay register"

comes in for his full share of abuse. "Levellers and phanaticks,"

sadly complains one writer, "blush not at their own rushing into

other men's offices,--a bold but witless Justice of y^e Peace,

makes his neighbouring ministers cyphers, whilst he forceth y^e

King's subjects (quite against the graine) to elect and he to

confirm a mere layman in the office of Parish Register--_Proh pudor

fronti enim, nulla fides_."[1336] The recorder of Cirencester in

Gloucestershire charges the lack of entries for several years to the

account of the act passed by the "Rump," the "said Parliament ...

consisting of Anabaptists and Independents;"[1337] while in 1659,

the clerical register of Christ's Church, Hants, spitefully declares

that "maryinge by justices, election of registers by Parishioners,

and the use of ruling elders, first came into fashion in the time

of rebellion, under that monster of nature and bludy tyrant, Oliver

Cromwell."[1338]

[1334] The output of controversial literature on this subject

may have been great, as FRIEDBERG (_op. cit._, 328 n.

2) suggests; but the number of pamphlets preserved does not seem

to be large. In the valuable collection of the Sutro Library,

containing thousands of pamphlets covering nearly every possible

question debated at the time, I have been able to discover but

two pieces on the civil-marriage law. One of these, a copy of

the periodical entitled _Several Proceedings of Parliament_,

publishes the act, which had just passed, without a word of

comment. Friedberg had a similar experience in the Berlin Library.

[1335] FLECKNOE'S _Diarium_ (1656), 83, contains

the following, quoted also by BURN (_op. cit._,

163), JEAFFRESON (_op. cit._, II, 74, 75), and

FRIEDBERG (_op. cit._, 329):

"On the Justice of Peace's Making Marriages And the Crying Them

in the Marcket.

1

Now just as 'twas in Saturn's Reign

The Golden Age is returned again

And Astrea again from heaven is come

When all the Earth by Justice is done.

2

Amongst the rest, we have cause to be glad

Now Marriages are in marckets made

Since Justice we hope will take order there

We may not be cousened no more in our ware

3 and 4

[Indecent stanzas.]

5

So all incommodities would be prevented

And every one would hold them contented,

And all debates in Marriage would cease

When things were done by Justice of Peace.

6

Besides each thing would fall out right

And that old Proverb be verified by't

That Marriage and Hanging both together

When Justice shall have disposing of either.

7 and 8

[Two stanzas with indecent references.]

9

Let Parson and Vicar then say what they will

The Custome is good (God continue it still).

For Marriage being now a Trafique and Trade

Pray where but in Marckets should it be made.

10

Twas well ordain'd they should be no more

In Churches and Chapels then as before

Since for it in Scripture we have example

How buyers and sellers were drov'n out o' th' Temple.

11

Meantime God blesse the Parliament

In making this Act so honestly meant

Of these good marriages God blesse the breed

And God blesse us all, for was never more need."

[1336] WOOTTON, _Linc._: BURN, _Parish

Registers_, 26 n. 1.

[1337] BURN, _op. cit._, 161.

[1338] _Ibid._, 161. See similar examples in WATERS,

_Parish Registers in England_, 18, 19.

On the other hand the principles of this measure found a mighty

champion in Milton, in whose writings, says Friedberg, the religious

tendencies of his party were molded almost into a "scientific

system."[1339] The following extract from "The likeliest means to

remove Hirelings out of the Church" is interesting as epitomizing

the views of the Independents, showing that they were grounded upon

the fundamental principles of Old English custom:

"As for marriages, that ministers should meddle with them, as not

sanctified or legitimate without their celebration, I find no

ground in scripture either of precept or example. Likeliest it

is (which our Selden hath well observed l. II, c. 58, ux. Eb.)

that in imitation of heathen priests, who were wont at nuptials

to use many rites and ceremonies, and especially, judging it

would be profitable, and the increase of their authority, not to

be spectators only in business of such concernment to the life

of man, they insinuated that marriage was not holy without their

benediction, and for the better colour, made it a sacrament;

being of itself a civil ordinance, a house hold contract, a thing

indifferent and free to the whole race of mankind, not as religious,

but as men: best, indeed, undertaken to religious ends, and, as

the apostle saith, I Cor. VII., 'in the Lord.' Yet not therefore

invalid or unholy without a minister and his pretended necessary

hallowing, more than any other act, enterprise, or contract of civil

life, which ought all to be done also in the Lord and to his glory:

all which, no less than marriage, were by the cunning of priests

heretofore, as material to their profit, transacted at the altar.

Our divines deny it to be a sacrament; yet retained the celebration,

till prudently a late parliament recovered the civil liberty of

marriage from their encroachment, and transferred the ratifying and

registering thereof from the canonical shop to the proper cognizance

of civil magistrates."[1340]

[1339] FRIEDBERG, _Eheschliessung_, 325; _Geschichte der

Civilehe_, 13, 14.

[1340] MILTON, _Prose Works_ (Bohn, 1848), III, 21,

22. This volume contains a series of discussions on marriage

and divorce, which together embody all the learning which the

Puritan could produce in support of his theories: _The Doctrine

and Discipline of Divorce_; _The Judgment of Martin Bucer_;

_Tetrachordon_; _Colasterion_, etc.

Milton does not anywhere discuss the _form_ of solemnization

(_cf._ FRIEDBERG, _op. cit._, 327, note). In his

"Exposition on Places of Scripture which treat of Marriage"

(_Works_, III, 341-46), after considering the definitions given

by many writers, he produces one of his own. "Marriage," he says,

"is a divine institution, joining man and woman in a love fitly

disposed to the helps and comforts of domestic life." But he

rejects the doctrine of the Fathers and canonists that marriage

is a "remedy." The "internal Form and soul of this relation is

conjugal love arising from a mutual fitness to the final causes

of wedlock, help and society in religious, civil, and domestic

conversation, which includes as an inferior end the fulfilling of

natural desire, and specifical increase."--_Ibid._, 342.

After the Restoration, though not expressly repealed, the act of

Cromwell was at once superseded by the laws in force before the

Revolution. The more revengeful faction of the royalists even strove

to have all marriages contracted under the act made null and void.

But a proposition so monstrous could not prevail; and a statute

legalizing civil marriages was passed during the first year of

Charles II.[1341]

[1341] 12 C. II., c. 33: _Statutes at Large_, III, 24. _Cf._

FRIEDBERG, _op. cit._, 330. It is curious to see

ASHTON, _The Fleet: Its River, Prison, and Marriages_

(London, 1889), 332, referring to this act as designed merely to

legalize common law or private marriages before witnesses, making

no mention whatever of the act of 1653.

II. FLEET MARRIAGES AND THE HARDWICKE ACT, 1753

In order to understand the cumulative influences which finally in

the middle of the eighteenth century produced the next English

statute prescribing a definite form for marriages, it will be

necessary to point out the anomalies of the old system which during

the period between the Restoration and that time led to abuses of a

most startling character.

Previous to the reign of William III. only spiritual punishment had

been imposed for secret marriages; but under that monarch begins a

series of acts which, though chiefly intended as revenue measures,

in effect prescribed also temporal penalties. The first of these

statutes[1342] was that of 1694 which imposed on all marriages a

direct tax, graduated according to the rank of the parties. To

facilitate the enforcement of the law the clergy were required to

keep registers to which the tax collectors should have access. But

there were certain churches which had long claimed to be exempt

from the episcopal visitations, and therefore they now claimed to

be free from the operation of the statute which had only made the

marriage business of their incumbents more profitable by removing

competition.[1343] A supplementary act was therefore passed in the

following year,[1344] including such places and requiring that all

marriages should be solemnized only after publication of banns or

obtaining the bishop's license, under penalty of one hundred pounds

for the first and three years' suspension from office for the

second violation of the law by any clergyman.[1345] But even this

measure was inadequate. It had not been foreseen that there were

clergymen not comprehended under the titles "parsons, vicars, and

curates" enumerated in the statute. These were actually benefited

by the act.[1346] By connivance on the part of the regular clergy

such ministers were able to evade the law. They "do substitute and

employ," runs the act of 1696, "and knowingly and wittingly suffer

and permit, diverse other Ministers to marry great Numbers of

Persons in their respective Churches and Chapels without Publication

of Banns or Licenses of marriage first had and obtained; many of

which Ministers so substituted, employed, permitted and suffered to

marry, as aforesaid, have no Benefices or settled Habitations, and

are poor and indigent, and cannot easily be discovered and convicted

of the Offences aforesaid: And whereas Ministers, being in Prison

for Debt or otherwise, do marry in the said Prisons, many Persons

resorting thither for the Purposes aforesaid, and in other Places

for Lucre and Gain to themselves,"[1347] therefore the one hundred

pounds' penalty prescribed in the former statute is extended to

these cases,[1348] and a fine of ten pounds is imposed on every man

married without banns or license.

[1342] 5 and 6 W. III., c. 21: _Statutes at Large_, III, 358-62.

[1343] It should be remembered that even in case of the secret

or irregular marriages the priest often officiated. The great

object was to avoid publicity. Hence churches which were or

claimed to be free from the visitations or oversight of the

bishop allowed marriage without banns or license. This became a

lucrative source of revenue. For example, in the church of St.

James, Duke's Place, between 1664 and 1691, about forty thousand

marriages were thus celebrated; and many were celebrated at

Trinity Minores: BURN, _Fleet Marriages_, 2-5; _idem_,

_Parish Registers_, 146; FRIEDBERG, _Eheschliessung_,

332-35. _Cf._ also JEAFFRESON'S chapter on "Prisons and

'Lawless' Churches," in _Brides and Bridals_, II, 115-21.

[1344] 6 and 7 W. III., c. 6, § 52: _Statutes at Large_, III,

370. _Cf._ HAMMICK, _Marriage Law of England_, 10; also

JEAFFRESON'S chapter on "Taxes on Celibacy," _op. cit._,

II, 78 ff., and 131 ff., 167 ff.

[1345] Violations of the law did not, however, invalidate the

marriage: LECKY, _England in the 18th Century_, I, 531.

[1346] _Cf._ JEAFFRESON, _op. cit._, II, 168, 169.

The last paragraph of the above quotation is interesting as being

perhaps the first statutory reference to the celebrated "Fleet"

marriages, which constitute one of the most astonishing chapters

that the history of ecclesiastical administration can produce.

The Fleet, as is well known, was the prison in which formerly

all prisoners for debt from the entire kingdom were, or could

demand to be, confined. On account of the scant accommodation for

the vast number congregated there, it became customary to allow

those who could give security for appearance in the prison when

summoned to take private lodgings or set up a private establishment

anywhere within the "rules of liberties" of the Fleet--a portion

of London of considerable area and well defined limits.[1349]

The Fleet had a chapel with a regular chaplain of its own, who

sometimes eked out his income through fees for fraudulent and

clandestine marriages.[1350] But here were confined among others

many clergymen, some of whom made a regular business of celebrating

marriages; and they had to compete with other parsons, often

disreputable men, perhaps deprived of their places or benefices for

misconduct, who took up their abode in the precincts of the Fleet to

gain a living from the disgraceful traffic in matrimony. Even laymen

may have sought a share in the profits; and these, like the others,

did not fail to wear the priestly "cassock, gown, and bands,"[1351]

in order to impose upon the unwary. The ceremony was not performed

in church, but in the private rooms of the parson. Often an office

or marriage shop was opened and a big sign-board hung out announcing

the business and commending the quality of service rendered

within,[1352] while standing advertisements were also kept in the

newspapers. The following notice of his business by parson Lando is

quoted by Friedberg from the _Daily Advertiser_, 1749:

"Marriages with a Licence, Certificate and a Crown Stamp, at a

Guinea, at the New Chapel, next door to the China Shop, near Fleet

Bridge, London, by a regular bred Clergyman, and not by a Fleet

Parson as is insinuated in the public papers; and that the Town may

bee freed mistakes, no Clergyman being a prisoner in the Rules of

the Fleet dare marry; and to obviate all doubts, this chapel is not

in the verge of the Fleet, but kept by a Gentleman who was lately

Chaplain on board one of his Majesty's men-of-war, and likewise has

gloriously distinguished himself in defence of his King and Country,

and is above committing those little mean actions that some men

impose on people, being determined to have every think conducted

with the utmost decency and regularity, such as shall be always

supported in law and equity."[1353]

[1347] Extract from 7 and 8 W. III., c. 35: _Statutes at Large_,

III, 422.

[1348] "But this penalty was not renewed at each violation of

the act, and the offender was able by a writ of error to obtain

a delay of about a year and a half, during which time he carried

on his profession without molestation, made at least 400 l. or

500 l. and then frequently absconded."--LECKY, _Hist. of

Eng. in the 18th Century_, I, 533; _cf._ BURN, _Fleet

Marriages_, 6.

[1349] For full details as to the history of the Fleet, see

ASHTON, _The Fleet: Its River, Prison, and Marriages_,

especially 233 ff., 237 ff., 331 ff. "The rules of liberties of

this comprehend all Ludgate-Hill to the Old Bailey on the north

side, and to the Cock-alley on the south; both sides of the Old

Bailey to Fleet-lane; all Fleet-lane and the east-side of the

marcket, from Fleet-lane to Ludgate Hill."--HARRISON,

_New and Universal Hist. of London_ (London, 1776), II, 447;

FRIEDBERG, 336 n. 4. _Cf._ also JEAFFRESON,

_op. cit._, II, 122 ff.

[1350] BURN, _op. cit._, 7, 8; ASHTON, _op.

cit._, 332, 338; TEGG, _The Knot Tied_, 202. These

chaplains "of course, married people after publication of banns

in their own chapels according to law;" and doubtless some of

the weddings before them were entirely respectable. Such was

probably the marriage in the Fleet of George Lester and Mistress

Babbington as early as 1613: BURN, _op. cit._, 5;

ASHTON, _op. cit._, 335, 338; TEGG, _op. cit._,

199. But in these chapels as well as out of them clandestine

marriages were solemnized. Here is an example from the _Original

Weekly Journal_ of Sept. 26, 1719: "One Mrs. Anne Leigh, an

heiress of £200. per annum and £6000. ready cash, having been

decoyed away from her friends in Buckinghamshire, and married

at the Fleet chapel against her consent; we hear the Lord Chief

Justice Pratt hath issued out his warrant for apprehending the

authors of this contrivance, who had used the young lady so

barbarously, that she now lyes speechless."--BURN,

_op. cit._, 7 n. 2; also ASHTON, _op. cit._, 338, 339.

Celebration in the Fleet chapel, not elsewhere, was put an end

to by the act of 10 Anne, c. 19. _Cf._ HAMMICK, _The

Marriage Law of England_, 11; BURN, _op. cit._, 8.

[1351] ASHTON, _op. cit._, 340.

[1352] The following is a copy of the "hand-bill" of Peter Symson

taken from BURN'S _Fleet Marriages_, 54:

G. R.

At the true Chapel

at the old red Hand and Mitre, three doors from Fleet Lane

and next Door to the White Swan;

Marriages are performed by authority by the Reverend Mr.

Symson educated at the University of Cambridge, and late

Chaplain to the Earl of Rothes.

N.B. Without Imposition

Symson, as he says, was not a prisoner. Like "many of his

fellows," he was witness in a bigamy trial in 1751. He was asked:

"Why did you marry them without license?"

"_Symson_--Because somebody would have done it, if I had not....

Never had a benefice in my life. I have had little petty curacies

about £20 or £30 per year. I don't do it for lucre or gain.

"_Court_--You might have exposed your person had you gone on

the highway, but you'd do less prejudice to your country a

good deal. You are a nuisance to the public; and the gentlemen

of the jury, it is to be hoped, will give but little credit

to you."--BURN, _op. cit._, 55; ASHTON,

_op. cit._, 357, 358. On Symson (or Symsen) see also

JEAFFRESON, _op. cit._, II, 152.

[1353] FRIEDBERG, _op. cit._, 341; quoted also by

ASHTON, _op. cit._, 359; and BURN, _op. cit._,

59.

Pennant, in his _Account of London_, written "at the end of the

last century," gives us a realistic picture of the Fleet parson.

"In walking along the street, in my youth, on the side next to the

prison, I have often been tempted by the question, _Sir, will you be

pleased to walk in and be married?_ Along this most lawless space

was hung up the frequent sign of a male and female hand conjoined,

with, _Marriages performed within_, written beneath. A dirty fellow

invited you in. The parson was seen walking before his shop; a

squalid profligate figure, clad in tattered plaid night gown, with

a fiery face, and ready to couple you for a dram of gin, or roll of

tobacco."[1354]

[1354] PENNANT, _Some Account of London_ (3d ed., 1793),

232; ASHTON, _op. cit._, 344; also in BURN,

_op. cit._, 16, note.

Moreover, various taverns, for the sake of the profit derived

from the festivities connected with weddings, kept salaried Fleet

parsons or others in their employ and made announcement of this

extra accommodation also by a sign containing the businesslike

inscription: "Marriages performed here."[1355] Literally thousands

of marriages were celebrated by Fleet parsons every year. A single

priest, John Gainham,[1356] between the years 1709 and 1740, during

which he was confined, "solemnized" thirty-six thousand marriages,

though he had many competitors.[1357] Not only the Fleet prisoners

and the lower classes of the city, but many persons of noble titles

and illustrious names are enumerated among their customers.[1358]

The question naturally arises: What were the causes of this singular

phenomenon? There were several inducements to the patronage of Fleet

parsons, chief of which were the superior cheapness and avoidance of

publicity.[1359] Smaller fees and no banns were required. Besides

parental consent, which was indispensable for minors in regular

marriages, was unnecessary in the Fleet. Moreover, it was a popular

error of the times that a woman by marriage ceased to be liable for

debts previously contracted.[1360]

A History of Matrimonial Institutions, Vol. 1 of 3 · 第 6 / 7 章