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]