[1355] LECKY, _Eng. in 18th Century_, I, 5-31;

BURN, _op. cit._, 8; FRIEDBERG, _op. cit._,

341, who quotes the following from the _Weekly Journal_,

1723, June 29: "Several of the above mentioned brandy-men and

victualers keep clergymen in their houses at 20 shillings per

week each, hit or miss, but its reported that one there will

stoop to no such low conditions, but makes at least 500 pounds

per annum of Divinity-jobs after that manner." _Cf._ also

TEGG, _The Knot Tied_, 205, note, for the same extract.

[1356] John Gainham, the "wrynecked parson," as he is

frequently called in the contemporary newspapers, rejoiced

in the significant title of "Bishop of Hell." When asked by

an advocate whether he was "not ashamed to come and own a

clandestine marriage in the face of a court of justice," he

blandly replied: _Video meliora, deteriora sequor_. The following

lines from the "Morning Walk, 8°, 1751" (BURN, _Parish

Registers_, 155), may be compared with similar lines reprinted by

ASHTON (_op. cit._, 345, 346):

Where lead my wand'ring footsteps now? the _Fleet_

Presents her tatter'd sons in Luxury's cause:

Here venerable _Crape_ and scarlet Cheeks,

With nose of purple hue, high eminent

And squinting leering looks, now strike the eye.

B-sh-p of Hell, once in the precincts call'd

Renown'd for making thoughtless Contracts, here

He reign'd in bloated reeling majesty

And passed in Sottishness and Smoke his time--

Rever'd by _Gins_ adorers, and the tribe

Who pass in brawls, lewd jests, and drink, their days,

Sons of low, groveling riot and debauch.

Here Cleric grave from _Oxford_ ready stands

Obsequious to conclude the Gordian knot,

Entwin'd beyond all dissolution sure;

A Reg'lar this from _Cambridge_; both alike

In artful Stratagem to tye the noose,

While women 'Do you want the Parson?' cry."

[1357] On Gainham see BURN, _Parish Registers_, 155,

156; _idem_, _Fleet Marriages_, 49-53; ASHTON, _The

Fleet_, 344-47; FRIEDBERG, _Eheschliessung_, 339, 340;

JEAFFRESON, _Brides and Bridals_, II, 151.

[1358] LECKY, _op. cit._, I, 532. See the examples

in FRIEDBERG, _op. cit._, 343, extracted from

BURN, _Fleet Marriages_, 94 ff.; JEAFFRESON,

_op. cit._, II, 174, 175; and ASHTON, _op. cit._, 381,

361, 387. Even Lord Chancellor Ellesmere and Sir Edward Coke,

Chief Justice of England, had contracted secret marriages:

FRIEDBERG, _op. cit._, 344; citing MACQUEEN,

_Treatise of Marriage, Divorce_, &c. (London, 1860), 6.

[1359] There seems to have been much dislike for the publicity

of banns even on the part of the aristocracy: see the letter of

Horace Walpole to Henry Seymour Conway, May 24, 1753, _Letters_,

II, 334-36; FRIEDBERG, _Eheschliessung_, 342; _idem_,

_Geschichte der Civilehe_, 15; FRY, _Considerations on

... Clandestine Marriages_, 8.

[1360] "Therefore there were in the Fleet a number of men who

placed themselves at the disposal of female prisoners for

marriage; as Armstrong, who, within fourteen months, married

four women, and, as an entry in the register reads, received

eight shillings 'for his trouble.'"--FRIEDBERG,

_Eheschliessung_, 342. GALLY, _Some Considerations upon

Clandestine Marriages_ (London, 1750), 14-16, appears to believe

that women could thus escape their debts. _Cf._ NORTON,

_Die Frauen in England_ (Berlin, 1855), 267; and BURN,

_Fleet Marriages_, 83.

With this should be compared the companion error that a man is

not liable for his bride's debts if he takes her only in her

"smock" or "shift": BURN, _Parish Registers_, 153, 154,

note; ASHTON, _The Fleet_, 386, 387; _idem_, _Social

Life in the Reign of Queen Anne_, 41; and further notices of

"smock marriages" in BRAND, _Popular Antiquities_, III,

205, 380; _Notes and Queries_, 1st series, VI, 485, 561; VII,

17, 84; TEGG, _The Knot Tied_, 299-301; WOOD,

_The Wedding Day_, 115, 116; and RADCLIFFE, _The Parish

Registers of St. Chad, Saddlworth_, 58.

"Another error, common amongst the lower orders, is, that a

man may lawfully sell his wife to another, provided he deliver

her over with a halter about her neck.--And another, that a

woman's marrying a man under the gallows, will save him from

the execution. 'While we lay here (New York, A. D. 1784), a

circumstance happened which I thought extremely singular. One

day, a malefactor was to be executed on a gallows, but with a

condition that if any woman, having nothing on but her shift,

married the man under the gallows, his life was to be saved.

This extraordinary privilege was claimed, a woman presented

herself, and the marriage ceremony was performed' (_Life of

Oulandah Equiano_, vol. ii, p. 224).--If this took place, our

American cousins must have jumbled the two popular errors

together."--BURN, _Parish Registers_, 154, note. _Cf._

BRAND, _op. cit._, III, 379; also BARRINGTON,

_Observations on Our Ancient Statutes_, 475, who traces the error

to the ancient right of the woman to "appeal" for murder of her

husband.

As a matter of course, frightful abuses grew out of this system.

Registers were kept, but they were often falsified and were of

little value as evidence. False oaths by the score were taken by

parsons.[1361] Young girls were abducted and carried before some

clerical scoundrel of the Fleet and forcibly married for the sake of

the fees.[1362] Persons were enticed by "plyers" or touts[1363] into

ale-houses, made drunk, and married while in this condition.[1364]

Of course, now and then a case of unusual flagrancy attracted

the attention of the public, and the criminals were brought to

justice. But it is a sad commentary on the moral debasement and

utter formalism of the English church during the first half of the

eighteenth century that no serious attempt seems to have been made

to deprive these monsters of their priestly character. The existing

civil laws were powerless to remedy the evil. The Fleet parson

could practically bid them defiance.[1365] In the lively words of

Friedberg, "what could befall him according to existing legislation?

Ought the bishop to remove him from office? That had already

occurred when he was dragged from his living to prison. Ought his

spiritual superior to have him locked up? He was already a prisoner.

Should he be mulcted in a sum of money? He had none."[1366]

[1361] Marriages were often antedated (see especially the case

of John Mottram, 1717: BURN, _Fleet Marriages_, 11, 12,

note; ASHTON, _The Fleet_, 343, 344; FRIEDBERG,

_Eheschliessung_, 337; TEGG, _The Knot Tied_, 204);

and false oaths were common. The notorious parson Walter Wyatt

complains that "if a clark or plyer tells a lye, you must

vouch it to be as true as y^e Gospel; and if disputed, you

must affirm with an oath to y^e truth of a downright damnable

falsehood.--Virtus laudatur & alget."--BURN, _op. cit._,

7; ASHTON, _op. cit._, 337. The _Grub Street Journal_,

July 20, 1732, says: "On Saturday last a Fleet parson was

convicted before Sir Ric. Brocas of forty-three oaths, (on the

information of a plyer for weddings there) for which a warrant

was granted to levy _4l. 6s._ on the goods of the said parson;

but, upon application to his Worship, he was pleased to remit

_1s._ per oath; upon which the plyer swore he would swear no

more against any man upon the like occasion, finding he could

get nothing by it."--BURN, _op. cit._, 7 n. 1; also in

ASHTON, _op. cit._, 338.

[1362] In 1690 James Campbell, brother of the Duke of Argyle,

caused to be abducted and then married Mrs. Wharton. For managing

this abduction Sir John Johnston was executed at Tyburn: this

case is in _Reports of the Historical Manuscripts Commission_,

V, 380, XIII, App. V, 217. _Cf. ibid._, IV, 345, for a case of

abduction in Ireland, 1801.

[1363] On the tout or plyer see BURN, _op. cit._, 7,

_passim_; ASHTON, _op. cit._, 337, 338, 344, 350, 357;

JEAFFRESON, _op. cit._, II, 142, 143.

[1364] LECKY, _Eng. in 18th Cent._, I, 532;

FRIEDBERG, _op. cit._, 339, note.

[1365] Occasionally someone was committed for complicity in

procuring Fleet marriages: see cases in ASHTON,

_op. cit._, 379, 380; and at least one Fleet marriage was

declared illegal: _General Evening Post_, June 27/29, 1745:

ASHTON, _op. cit._, 382.

[1366] FRIEDBERG, _op. cit._, 337. See similar remarks

in GALLY, _Considerations upon Clandestine Marriages_,

28, 29.

There were also other places in which the same irregularities

existed.[1367] Among these were Tyburn, the Tower,[1368] the

King's Bench prison, and a chapel in Mayfair. In the latter place

Rev. Alexander Keith, whom Horace Walpole styles the "marriage

broker,"[1369] performed each year on the average six thousand

marriages, while in the neighboring church of St. Anne only

fifty regular contracts were solemnized. We can easily credit

the statement that he derived therefrom a "very bishopric of

revenue."[1370] When finally the Hardwicke act put an end to his

traffic, he declared, with many oaths, that he would not be outdone

by the bishops, but would buy a piece of ground and "under-bury

them."[1371] Keith himself has left behind what Ashton thinks is a

"plain unvarnished tale" of Fleet marriages. In a pamphlet written

at the time Lord Hardwicke's act was under discussion he says: "As

I have married many thousands, and, consequently, have on these

occasions seen the humour of the lower class of people, I have often

asked the married pair how long they had been acquainted; they would

reply, some more, some less, but the generality did not exceed the

acquaintance of a week, some only of a day, half a day, etc....

Another inconvenience which will arise from this Act will be, that

the expence[1372] of being married will be so great, that few of the

lower class of people can afford; for I have often heard a Flete

parson say, that many have come to be married when they have but

half-a-crown in their pockets, and sixpence to buy a pot of beer,

and for which they have pawned some of their cloaths.... I remember

once on a time, I was at a public house at Radcliffe, which was

then full of Sailors and their girls, there was fiddling, piping,

jigging, and eating; at length one of the tars starts up" and swore

he would "be married just now," with a rough jest. "The joke took,

and in less than two hours ten couple set out for the Flete. I staid

their return. They returned in coaches; five women in each coach;

the tars, some running before, others riding on the coach box, and

others behind. The Cavalcade being over, the couples went up into

an upper room, where they concluded the evening with great jollity.

The next time I went that way, I called on my landlord and asked him

concerning this marriage adventure: he at first stared at me, but,

recollecting, he said those things were so frequent, that he hardly

took any notice of them; for, added he, it is a common thing, when a

fleet comes in, to have two or three hundred marriages in a week's

time, among the sailors."[1373]

[1367] See the names of several places in BURN, _Parish

Registers_, 146.

[1368] Laud had put an end to these irregular marriages in

the Tower. At his trial in 1644 he was for this accused of

interfering with popular liberty, and ably defended himself by

showing the legality of his action: JEAFFRESON, _op.

cit._, II, 116, 117; BURN, _op. cit._, 145 n. 2.

[1369] _Letters of Horace Walpole_, II, 337 (Letter to George

Montagu, Esq.).

[1370] LECKY, _Eng. in 18th Cent._, I, 531;

FRIEDBERG, _op. cit._, 344; KNIGHT, _Hist. of

England_, V, 586; _cf._ BURN, _Fleet Marriages_, 143.

[1371] _Letters of Horace Walpole_, II, 337; BURN, _op.

cit._, 145, note; LORD MAHON, _Hist. of England_ (New

York, 1849), II, 280. On Keith see BURN, _op. cit._,

141-45; JEAFFRESON, _op. cit._, II, 158 ff.

[1372] Not the least evil connected with the Fleet marriages was

the promotion of unions between the indigent and those morally

unfit for the marriage relation: see Bond's speech on the

Hardwicke act, COBBETT, _Parliamentary History_, XV,

46, 47. But, of course, as Ashton suggests, the lighter expense

may have induced respectable people to seek the Fleet parson,

or otherwise to marry privately. "A public marriage had come to

be a very expensive affair. There was a festival, which lasted

several days, during which open house had to be kept; there were

the marriage settlements, presents, pin money, music, and what

not."--ASHTON, _The Fleet_, 333, 334, who also quotes

Misson's description of a private marriage in the time of William

III. For Misson's account, see also JEAFFRESON, _op.

cit._, II, 109 ff.

In his speech against the Hardwicke act Mr. Nugent, to show

how "fond our people are of private marriages, and of saving a

little money," says that in a year six thousand were married in

Keith's Chapel as against fifty in the neighboring St. Anne's

Church, in a populous parish and convenient for private marriages

by license, though the difference in expense was only 8 or 10

shillings: COBBETT, _Parliamentary History_, XV, 19;

_cf. ibid._, 41.

[1373] KEITH'S _Observations on the Act for Preventing

Clandestine Marriages_: ASHTON, _The Fleet_, 363, 364;

also in BURN, _Fleet Marriages_, 144, 145.

Several other interesting descriptions of these disgraceful

"operations" have been handed down. Such are the sprightly verses

entitled the "Bunter's Wedding;"[1374] and especially the realistic

account of the abduction of her friend given by an anonymous writer

in the _Grub Street Journal_ for January 15, 1735.[1375] But the

most eloquent testimony of all is afforded by the Fleet registers,

many of which are still preserved.[1376] The notes appended to the

entries are at once amusing and very suggestive. The following

examples are selected from Burn:

"N. B. they had liv^d together 4 years as man and wife: they were so

vile as to ask for a Certifycate to be antidated."

"Quarrelsome people."

"N. B. they wanted an antidate from 45 to 41."

"N. B. Both y^e man and woman were exceeding vile in their

behaviour."

"N. B. the woman was big w^{th} child, and they wanted a Certifycate

antidated; and because it was not comply'd with, they were abusive

w^{th} a Witness."

"N. B. the person belonging to y^e house aloud me only 2^s out of

8^s."

"Had a noise foure hours about the money."

"N. B. stole a silver spoon."

"Stole my cloathes brush."

"The person who was with them I believe knew it to be a made

marriage."

"Her eyes very black, and he beat about y^e face very much."

"The woman ran across Ludgate Hill in her shift. 10^s."[1377]

"N. B. A coachman came and was half married, and wou'd give but 3^s

6^d and went off."[1378]

[1374] This "poem," in twenty eight-line stanzas, is given by

ASHTON, _op. cit._, 369-72.

[1375] Quoted by BURN, _Fleet Marriages_, 14, 15, note;

ASHTON, _op. cit._, 372-75; also by FRIEDBERG,

_Eheschliessung_, 338, 339, note; and JEAFFRESON, _op.

cit._, II, 176, 177.

[1376] On the preservation of the Fleet registers see

ASHTON, _op. cit._, 382-88; BURN, _op.

cit._, 66 ff.; HAMMICK, _Marriage Law_, 11, 12; and

WHITAKER, in the _Cornhill Magazine_, May, 1867. By

3 and 4 Vict., c. 92, the Fleet and Mayfair registers, twelve

hundred books of various sizes, are deposited in the office of

the registrar-general at Somerset House (HAMMICK, _op.

cit._, 12).

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

[1378] For these entries see BURN, _Parish Registers_,

153-55; and there are many others in _idem_, _Fleet Marriages_,

73 ff.

Long before the middle of the eighteenth century it is very clear

there was crying need of thoroughgoing reform in the marriage laws

of England. To the surviving disorders arising in mediæval theory

had come new ones of more modern growth. For, besides the shameful

irregularities of the Fleet, clandestine contracts, either through

the help of "hedge parsons"[1379] or else by simple agreement of

the parties, illegal but not invalid, were still freely practiced

throughout the kingdom. From 1666 onward during the seventeenth

and eighteenth centuries efforts were repeatedly made to provide a

remedy by legislation; but no bill succeeded in passing both houses

of Parliament.[1380] The legislation of William and Anne, already

referred to, proved an encouragement rather than a hindrance to

clandestine unions. The rivalry of the prisons, "lawless" churches,

and the regular Fleet chaplain was thus removed; conviction for

breach of the statutes was rendered exceedingly difficult; and

the increased expense caused by the tax upon licenses favored the

business of parsons who were ready to "solemnize" marriages at low

rates and without troublesome or costly conditions.[1381] Even the

notorious cases of Haagen Swendsen in 1702 and "Beau" Feilding in

1706, though calling sharp attention of the public to the frightful

dangers lurking in the matrimonial laws, were not enough to quicken

the conscience of the nation.[1382] A timely edition of Dr. Gally's

sensible book[1383] in 1750 did something to educate the public

mind; and finally in 1753 the celebrated case of Cochrane _v._

Campbell,[1384] originating in Scotland, came in the last instance

before the House of Lords. The validity of a marriage which had

been legally celebrated and which had continued for nearly thirty

years was challenged on account of previous secret _sponsalia de

praesenti_. Save for lack of evidence of the alleged prior contract,

"the wife who in true love during so long a time had been devoted

to her husband, though already dead," would have been "degraded

to the position of a concubine, the children begotten in marriage

branded as bastards, and robbed of their inheritance."[1385] This

case proved to be the proximate cause of the passage of the famous

Hardwicke act of 1753. On January 31 of that year, on motion of Lord

Bath, the House of Lords decided to bring in a "Bill for the better

preventing of Clandestine Marriage." The drafting of the bill was

intrusted to the twelve judges, but the draft presented by them was

so imperfect, that the chancellor, Lord Hardwicke, undertook its

thorough revision.[1386]

[1379] HAMMICK, _Marriage Law of Eng._, 11.

[1380] See the chronology of these bills to prevent clandestine

marriages in FRIEDBERG, _Eheschliessung_, 346-48; and

compare BURN, _Fleet Marriages_, 11 ff. Three of them

introduced respectively in 1677, 1685, and 1691, may be found

in the _Reports of the Historical Manuscripts Commission_, IX,

App. II, 91-99; XI, App. II, 276-80; XIII, App. V, 253 ff. The

first declares that "notwithstanding all provisions by law ...

several minors have ... been clandestinely married without

consent of parents, and other irregular marriages have been

made;" therefore it is enacted that it "shall not be in the power

of any son, being under the age of twenty-one years, nor ... of

any daughter ... under ... eighteen, to marry ... or to make a

matrimonial contract of any kind whatsoever;" except the father

or guardian "shall have given consent in writing attested by two

credible witnesses at the least, ... or shall be present and

consenting thereto," under penalty of nullity of the marriage.

After the death of father and mother, the same restriction is

put upon the contracts of males under eighteen and females

under fourteen without the guardian's consent. "If any guardian

shall be privy to any such pretended marriage," he shall lose

"all his right, title, and interest to the custody of any such

minors" and "shall also forfeit one moiety of his whole estate,

both real and personal," one-half to the king and the other to

the informer. If "any domestic or menial servant shall make any

pretended marriage or matrimonial contract" with "any of the

children or pupils of his or her mistress during their minority,

and in such manner as ... is by this act declared to be ... null

and void," such servant shall suffer three years' imprisonment.

"Every ecclesiastical person who celebrates such a marriage or

any marriage whatsoever whereof the banns had not been published

as required by the ecclesiastical law, shall be adjudged deprived

ipso facto of all benefices, dignities, pensions, and spiritual

promotions which he had at time of such offence or at any time

after." Personating a priest in such cases is constituted felony

without benefit of clergy, punishable by death. For violating the

act in the issue of a license, the offender shall forfeit his

office and be incapable of holding office in church or state. The

bill of 1691 is very similar in its provisions.

[1381] The evil results of these blundering statutes are

vigorously stated by JEAFFRESON, _Brides and Bridals_,

II, 167 ff., 130 ff., 84. The effects of 7 and 8 W. III., were

especially bad. Before its enactment "it was in the power of

any rogue married at a tavern-wedding to inform against the

officiating clergyman, without rendering himself liable to

punishment for his part in the irregular transaction. Any clerk

or other person who assisted at a marriage without license or

banns, could also with impunity turn informer against the lawless

priest;" but by placing a penalty on all these persons "the

mouths of individuals who were best qualified and most likely

to give conclusive evidence against the peccant clergyman" were

closed: _ibid._, 170, 171.

[1382] For these cases see HOWELL, _State Trials_, XIV,

559 ff., 1327 ff. The facts are summarized by FRIEDBERG,

_Eheschliessung_, 344-46. The case of "Barbara late Dutchess of

Cleaveland" against Feilding, with much concerning Feilding's

other adventures, may be found in _Cases of Divorce for Several

Causes_ (London, 1715). Elopement with heiresses is discussed

by ASHTON, _Social Life in the Reign of Queen Anne_,

I, 29 ff. Of Haagen Swendsen, "who was, in 1702, convicted and

executed for stealing Mrs. Rawlins," he says: "Nowadays, he

would have been unhesitatingly acquitted, even if he had ever

been presented, as there was no real case against him, and Mrs.

Rawlins married him of her own free will."

In the _Report of the Royal Commission, 1868_, xxi-xxiii, it is

estimated that one-third of all the marriages in the eighteenth

century were "irregular;" whereas, after 1834, when the ministers

of all denominations could solemnize, irregularity became a

"stigma," the number of such contracts now (1868) being in the

ratio of 1 to 1,000.

[1383] GALLY, _Some Considerations upon Clandestine

Marriages_ (2d ed., London, 1750). The first edition of this work

appeared in 1730. It is strong evidence of the slow progress of

opinion on social questions that, a century after the enlightened

legislation of Cromwell, the author should have found it

necessary to enter into an elaborate argument to establish the

right of the state to make the observance of prescribed forms

and conditions essential to a valid marriage. Sec. i assigns

"some general reasons for a law to annul clandestine marriages;"

sec. ii presents "what the civil law has done on this subject;"

sec. iii shows "what has been done in France;" and in sec. iv

six objections to the adoption of such a law are answered. Dr.

Gally's book was referred to in the debates on the Hardwicke act.

[1384] Cochrane _alias_ Kennedy _v._ Campbell: PATON'S

_Reports of Cases decided in the House of Lords on Appeal from

Scotland_, I (1726-57), 519-32; and WILSON AND SHAW'S

_Cases_, III, 135, note. The appeal of the claimant was dismissed

by the Lords for want of evidence; and only on this ground was

that tribunal spared the cruel necessity of declaring void

the marriage of persons who for many years had lived together

openly as husband and wife. There are notices of the case in

WALPOLE, _Memoirs of the Reign of George II._ (2d ed.,

1847), I, 336 ff.; COBBETT, _Par. History_, XV, 8;

JEAFFRESON, _Brides and Bridals_, II, 181.

[1385] FRIEDBERG, _Eheschliessung_, 349. Friedberg

states erroneously that the Lords declared the marriage void.

[1386] "Lord Bath invented this Bill, but had drawn it so ill,

that the Chancellor was forced to draw a new one--and then grew

so fond of his own creature, that he has crammed it down the

throats of both Houses, though they gave many a gulp before

they could swallow it."--WALPOLE to Conway, May 24,

1753: HORACE WALPOLE'S _Letters_, II, 334-36; also in

COBBETT, _Parliamentary History_, XV, 33.

With little resistance the revised bill was readily passed through

the Lords, the bishops even yielding their assent. But in the

Commons it came to its final passage on June 6, 1753, only after a

long and stormy contest. The press and the people participated in

the excitement;[1387] and the tenacity of the old custom of private

espousals is shown by the fact that the large majority of the latter

were opposed to the measure, though this may in part be accounted

for on the ground of its intolerance toward the dissenters. In

the lower house the bill was ably supported by Attorney-General

Ryder, Lord Barrington, the Earl of Hillsborough, Solicitor-General

Murray, and by Mr. John Bond whose speech is remarkable for its

strong argument and sober common-sense. Most prominent on the other

side were Mr. Nugent, Colonel George Haldane, Charles Townshend,

and, in particular, Henry Fox who in 1744 had himself contracted a

clandestine marriage in the Fleet with the daughter of the Duke of

Richmond.[1388] Another bitter antagonist of the bill was Horace

Walpole, "two members of whose family were known to have entered

matrimony by uncanonical wedlock, and one of whose nieces, several

years after the enactment of Lord Hardwicke's Marriage Bill, became

the bride of the most famous Fleet marriage on record."[1389]

The arguments in support of the measure are direct, practical,

and convincing; those of its opposers for the most part, except

as directed to faults of detail, seem captious, forced, or even

frivolous, when looked at in the light of modern experience. When

they saw that the bill was likely to pass, they sought to make it

obnoxious by mutilation and amendment.[1390]

[1387] For contemporary discussions see _Gentleman's Magazine_,

XXIII, 399, 400, 452, 453, 538; XXIV, 145; XXV, 212; _Monthly

Review_, XII, 111 ff., 438-46 (notices of various pamphlets

including some by Dr. Stebbing); _ibid._, XIII, 92-95,

394 ff.; XVI, 371; XXXII, 233; XL, 226, 425-56. Compare

FRIEDBERG, _Eheschliessung_, 352 n. 1, who gives the

titles of several pamphlets relating to the act; MADAN,

_Thelyphthora_, II, 38-90, "cannot mention or even think" of

it "without indignation," because it "strikes at a divine

institution."

[1388] BURN, _Fleet Marriages_, 16; TEGG,

_The Knot Tied_, 206. For the debates in the Commons see

COBBETT, _Parliamentary History_, XV, 2-86; and compare

the excellent analysis by FRIEDBERG, _Eheschliessung_,

350-52; also HORACE WALPOLE, _Letters_, II, 334-36;

_idem_, _Memoirs of George II._, I, 336-49; BURN,

_Parish Registers_, 32, 33; _idem_, _Fleet Marriages_, 16 ff.,

22-31 (entire account of Lord Orford quoted); LECKY,

_Eng. in 18th Cent._, I, 539; _idem_, _Democracy and Liberty_,

II, 174-77; SPENCER WALPOLE, _Hist. of Eng._, IV,

69, 70; KNIGHT, _Hist. of Eng._, V, 585; LORD

MAHON, _Hist. of Eng._, II, 280-82; HAMMICK,

_Marriage Law_, 12, 13; and OPPENHEIM, "Die

Verhandlungen des Eng. Parliaments über Einführung der

Civil-Ehe," _ZKR._, I, 9 ff., 14, 15, 20-22.

[1389] JEAFFRESON, _Brides and Bridals_, II, 183,

174, 175, note. Royal marriages were not comprehended by the

Hardwicke act; hence irregular marriages of royal persons were

still legal. On September 6, 1766, in a mansion in Pall Mall,

Maria, Countess-Dowager of Waldgrave, niece of Horace Walpole,

contracted a clandestine marriage, without witnesses, banns,

license, or record, with the Duke of Gloucester, brother of

George III. Her private chaplain performed the ceremony; hence,

except in form, this was not strictly a Fleet marriage. A few

years later, on Oct. 2, 1771, another brother of the king, the

Duke of Cumberland, formed a similar irregular alliance with Anne

Horton; but in this case there were a witness and a memorandum.

Both marriages were declared legal by a special commission: see

the chapter of JEAFFRESON, on "Two Royal Marriages,"

_op. cit._, II, 234-49.

[1390] All the amendments "were designed to aggravate the

aversion which the populace had conceived for a measure that

appeared to them an attempt to deprive them of cheap and

convenient marriage, with a view to preserve the children of

the aristocracy from the misfortune of premature and imprudent

matrimony.... The main object of the bill was, in the first

instance, to abolish the law of matrimonial pre-contract

throughout the kingdom." Therefore Henry Fox, to render it

unsatisfactory to its promoters and "so ridiculous to the whole

country," managed to have Scotland exempted from the operation

of the law, although the suit which gave rise to the measure

originated there: JEAFFRESON, _op. cit._, II, 183 ff.;

_cf._ BURN, _Fleet Marriages_, 19.

In favor of the measure the notorious scandals and hardships caused

by clandestine contracts are dwelt upon. "How often," exclaims the

Attorney-General, "have we known a rich heiress carried off by a

man of low birth, or perhaps by an infamous sharper? What distress

some of our best families have been brought into, what ruin some

of their sons or daughters have been involved in, by such means,

every gentleman may from his own knowledge recollect."[1391] The

bill, it is urged, provides an effective remedy for the evil. This

remedy is publicity; and it can be secured only by making banns

or license, with parental consent, followed by a solemn public

celebration at the proper time and place, the absolute condition of

a valid marriage. The practical success of such a system is proved

by reference to Dutch experience. For the law of Holland is even

stricter than the proposed measure. "In Holland," says Mr. Bond, "a

regular proclamation of banns ... is so necessary, that a marriage

without it is absolutely void, without any decree or sentence of

any court for declaring it so;" and after publication the parties

must be "married in the church or chapel of the religion[1392] to

which they belong; neither of which can be dispensed with but by

the supreme court of Holland with respect to the nobility, or by

the supreme magistrate of their city with respect to the other

inhabitants; so that ... no license can be granted, either as to the

proclamation of banns, or as to not being married at church, by any

ecclesiastical court whatsoever."[1393] Nor does the state overstep

its proper authority when a marriage is rendered void for neglect

to observe its prescribed forms. No violence is thus done to the

"sanctity" of the marriage bond; for the canonical doctrine of the

sacramental or indissoluble nature of matrimony is not sustained by

an appeal either to history or to common-sense.[1394] "I think it is

ridiculous to say," declares one speaker, "that infants shall have

a power, when they come of age, to avoid and annul every contract

they made, while under age, without the consent of their parents

or guardians, and yet if without consent of father or mother, or

guardian, they dispose of themselves and every thing that belongs to

them in marriage whilst under age, they shall have no power to avoid

that contract when they come of age, let it be never so fraudulent,

pernicious or infamous. This is adding a sanctity to the marriage

contract, which is inconsistent with the good of every society, and

with the happiness of mankind in general."[1395]

[1391] COBBETT, _Par. Hist._, XV, 3. _Cf._ similar

expressions by Mr. Bond, _ibid._, 41 ff.

[1392] Mr. Bond appears in this statement to be somewhat in

error; for optional civil marriage existed in the Netherlands

since 1656: see p. 409, above.

[1393] Speech of Mr. Bond, in COBBETT, _op. cit._, XV,

43, 44. Townshend (_ibid._, 57, 58) replies to the argument

based on the laws of the Dutch. The people and the institutions

are very different from the English and therefore afford no

precedent. "In Holland not only every province but every town

is a sort of sovereignty within itself; and their religion,

especially with regard to marriage, is much the same as it was

in this country in the days of Oliver Cromwell, when neither the

marriage contract, nor the ceremony was supposed to have any

sanctity or religion in its nature." Then follows this delicious

bit of comparison: "The Dutch, sir, are naturally a cool,

patient people, and not given to sudden changes, either in their

tempers or passions; therefore the rendering a proclamation of

banns necessary may do very well in that country; but in this,

where the people are naturally sanguine, impatient, and as apt

to change as the air they breathe, I am convinced that such a

regulation would be the cause of numberless mischiefs."

[1394] Fox (COBBETT, _loc. cit._, 73) deprecates "making

so free with the laws of God and nature." See also Nugent

(_ibid._, 12-14) and Beckford (_ibid._, 82, 83). On the other

side, the Earl of Hillsborough asks whether even the "vulgar can

believe, that there is anything sacred in a ceremony performed in

a little room of an ale-house in the Fleet, and by a profligate

clergyman whom they see all in rags, swearing like a trooper and

higgling about what he is to have for his trouble, and half drunk

at the very time he is performing the ceremony."

[1395] Ryder, in COBBETT, _loc. cit._, 6, 7. _Cf._ the

speech of Lord Barrington, _ibid._, 27, 28, who thinks the state

as much justified in requiring that a marriage to be valid shall

depend upon the observance of certain prescribed forms, as it is

in demanding that a legally binding oath shall be taken before

duly authorized persons. These arguments are criticised by Nugent

(_ibid._, 22, 23) and by Beckford (_ibid._, 82, 83).

On the other side, every merit claimed for the bill by its friends

is changed into a fault. The evil of secret espousals is minimized

or even denied. Charles Townshend, whose argument is singularly

forced and superficial, boldly asserts that "clandestine marriages

cannot properly in themselves be called a public evil, and as

they are of different kinds, they ought to have a different

consideration." There are, he says, four varieties. Those that

are equal both as to rank and fortune "cannot be called a public

evil, because they are generally the most happy, and such as

parents ought to approve of, and would approve of, if not governed

by some whim or caprice.... As to those that are unequal with

respect to fortune, they are so far from being a public evil,

that they are a public benefit, because they serve to disperse

the wealth of the kingdom through the whole body of the people,

and to prevent the accumulating and monopolizing it into a few

hands; which is an advantage to every society, especially a free

and trading society. The same may be said of clandestine marriages

that are unequal both as to rank and fortune," for they are still

more leveling in their effects; as when "a lord of good estate"

marries "a taylor's or a shoemaker's daughter of good character,

though not worth a groat," or a "lady of quality, entitled to a

good estate," marries such a man's son who is honorable but poor.

Such marriages are a public blessing. "Nay I will go farther,"

he adds, "such marriages seldom, if ever, bring shame or misery

upon the contracting parties." Only the secret marriages which

are properly called "scandalous and infamous" are a public evil;

such as are entered into between a gentleman of character and an

abandoned woman, or between a reputable lady and "a notorious rogue

or common sharper." But "how rarely do such infamous marriages

happen, especially with respect to those under age."[1396] In fact,

throughout the argument of the opposition every change is rung on

the objection that the bill is aristocratic and plutocratic in its

motive. Elopement, even through the connivance of a Fleet parson,

is practically elevated into the chief security of democracy and

the necessary safety-valve of human passion. Should the bill pass

and the advantage of secretly contracting a valid marriage be thus

taken away, the nobility "will in a great measure secure all the

great heiresses in the kingdom to those of their own body. An old

miser, even of the lowest birth, is generally ambitious of having

his only daughter married to a lord, and a guardian has generally

some selfish view, or some interest to serve, by getting his rich

ward married to the eldest son of some duke, marquiss, or earl; so

that when a young commoner makes his addresses to a rich heiress,

he has no friend but his superior merit, and that little deity

called love," whose counsel, but for the proposed law, she may

harken to in tender youth, but whose influence over her decreases

"as she increases in years; for by the time she comes of age, pride

and ambition seize possession of her heart likewise;" so that as a

result hereafter, if the bill pass, "no commoner will ever marry a

rich heiress, unless his father be a minister of state, nor will a

peer's eldest son marry the daughter of a commoner, unless she be

a rich heiress."[1397] Furthermore, close intermarrying among the

rich and noble will cause degeneration. "What sort of breed their

offspring will be, we may easily judge: if the gout, the gravel,

the pox, and madness are always to wed together, what a hopeful

generation of quality and rich commoners shall we have amongst us."

Then, too, a social caste will be developed in England, such as the

distinction between _noblesse_ and _roturiers_ abroad, especially

in France, where the marriages of the "quality" are something like

those of "sovereign princes: the bride and bridegroom sometimes

have never seen one another, till they meet to be married;" hence

in that country gallantry has taken the place of "conjugal love and

fidelity."[1398] Nay, the sinister effects of the proposed measure

in this regard are not exhausted even by this dark prophecy. Coming

to the rescue, another ingenious logician shows conclusively that

through the increase of wealth, which means political power, the

lords, following the Venetian example, may overmaster the commons,

subvert the free constitution, and set up a despotic oligarchy in

its place.[1399]

[1396] Townshend, in COBBETT, _loc. cit._, 51-53.

[1397] The bill is to bring upon the people all these evils "that

my young lord, or the young rich squire, forsooth, may not be

induced to marry his mother's maid, or a neighbouring farmer's

daughter, who may probably make him a better wife and render him

more happy, than if he had married the richest heiress in the

kingdom; or that young miss may not run away with her father's

footman, who may make her a better husband, than any lord or

rich squire she, or even her father, could have chosen." Such

marriages "are rather an advantage than a prejudice to the

community."--Nugent, in COBBETT, _loc. cit._, 20; _cf._

Fox, _ibid._, 71.

[1398] Nugent, in COBBETT, _loc. cit._, 15, 16; _cf._

the similar argument of Fox, _ibid._, 68, 69.

[1399] Haldane, in COBBETT, _loc. cit._, 35-39; _cf._

Townshend, _ibid._, 61.

But the obstacles placed by the bill in the way of free wedlock

will have still other disastrous consequences. Marriage will be

discouraged among the lower orders, particularly the industrious

poor, while at the same time immorality through illicit unions will

be vastly increased. The state will thus suffer through the check

put upon the growth of its best population.[1400] For the bill not

only places tyrannical power in the hands of parents or guardians

by making their consent necessary to a valid marriage,[1401] but

passionate lovers even when of full age will not wait for the

publication of banns, while the poor will be unable to pay for a

license.[1402] The proposed law, according to Haldane, "will really

prove a sort of prohibition of marriage with respect to all our

poorer sort of people, because it will render the solemnization of

that ceremony so tedious and troublesome, or so expensive, that

many of them will chuse to live single, or agree to live together

without any marriage at all. We know how averse our people generally

are to a proclamation of banns, even in the present method, when

in any of our holiday weeks the whole may be performed, and the

loving couple made happy ... in three or four days; how much more

averse, then, will they be in this way of marrying, when they must

give a week's notice before the banns can be first proclaimed,

and after that must wait above three weeks before the proclamation

... can be finished and the marriage ceremony performed?" The

natural result will be the increase of sexual vice.[1403] Townshend

presents a similar argument, though some of his forebodings were

fully justified by future events. The bill instead of preventing

polygamy--by which he means bigamy--will encourage it; "for it

prescribes so many formalities for rendering a marriage good and

valid in law, that a cunning fellow will always take care to have

some of them omitted," so that he cannot be convicted of a breach

of the statute. Marriage will still be difficult of proof; and by

encouraging false promises of marriage the bill sets a cruel snare

for the feet of the innocent.[1404] "As the law now stands, if a

treacherous young fellow should refuse to perform such a promise,

the young woman who trusted to it may sue him in an ecclesiastical

court, where she may put him on his oath, and if he confesses the

promise, or she can otherwise prove it, he must either marry her, or

be imprisoned upon the writ _de excommunicato capiendo_." But under

the proposed act "she can have no relief: the statute of frauds and

perjuries will be a bar to her action at common law, unless she has

been so cautious as to take a promise in writing; even then, if he

was under age, his nonage will be a bar to her action; and suppose

him of age"--and here the distinguished member of the House of

Commons takes a tone which like a flash reveals the political torpor

of the English people and of the Whig oligarchy of George II.--"she

must submit to have a price put upon her honor and virtue by a jury

of tradesmen, few of whom are accustomed to deal in that commodity."

But, with Colonel Haldane, he believes, of all the evil consequences

of the act "that of preventing marriage and promoting fornication

among our industrious poor will be most pernicious."[1405] Yet how

simple would be the proper remedy[1406] for the defects of the

present marriage laws!

[1400] This argument is also used by a writer in the _Monthly

Review_, XL, 425, 426, who makes a violent attack on the bill:

"Sir Robert Walpole" is declared to be "the first fool of a

statesman who thought a kingdom might be too populous" (426).

Mr. Nugent, in the Commons, appears to think that increase of

population among the poor must be promoted at all hazards. Even

the judicially enforced marriages between wenches and their

reluctant seducers are blessings which he fears the bill will

put an end to: COBBETT, _op. cit._, XV, 18. With these

conceits of the opposition compare the sound views of the Earl of

Hillsborough (_ibid._, 63): "Poor servants and labourers ... are

but too apt to run into matrimony, before they have considered

how they are to support either themselves or their children ...;

for the prosperity and happiness of a country does not depend

upon having a great number of children born, but upon having

always a great number well brought up, and inured from their

infancy to labour and industry." Essentially modern opinions

are likewise expressed by Mr. Bond: "For as to those rash and

inconsiderate marriages ... between two poor creatures, sometimes

before they have got clothes to their backs" or a lodging or

means of support, "I think they ought all, if it were possible,

to be prevented." Fleet marriages, he believes, have propagated

"beggars, rogues, and the most abandoned sort of prostitutes;"

and he appeals to the stricter laws of Holland which have not

checked the growth of an industrious population: _ibid._, 46, 47.

[1401] A writer in the _Monthly Review_, XII, 115, speaks of the

"minor's inalienable right to marriage as the proper remedy for

chastity."

[1402] According to Mr. Haldane, banns are required by the bill

"in order to render licenses necessary; and the only use of a

license I take to be that of putting money into the pockets of

our clergymen or some of their officers."--COBBETT,

_op. cit._, XV, 40. On the too high cost of licenses _cf._

TOWNSHEND, _ibid._, 57, 58; and Fox, _ibid._, 70.

[1403] Haldane, in COBBETT, _loc. cit._, 39. He

continues: "In my opinion the certain consequence will be that

of rendering common whoring as frequent among the lower sort

of people, as it is now among those of the better sort; and

multitudes of wenches in all parts of the country, when they

find they cannot get husbands according to law, will set up the

trade; so that the Bill ought really to be called a Bill for the

increase of fornication in this kingdom."--_Ibid._, 39. _Cf._

the similar arguments of Nugent (_ibid._, 17, 18), Townshend

(_ibid._, 55, 58), Fox (_ibid._, 68-70), and Beckford (_ibid._,

80-82).

[1404] Compare the statements of Nugent, in COBBETT,

_loc. cit._, 21.

[1405] Townshend, in COBBETT, _loc. cit._, 55-58.

[1406] Banns and license are unnecessary; while clandestine

marriages of the "scandalous or infamous" variety are so

unimportant as to call for no legislation. Bigamy and the

hardships arising in difficulty of proof may be remedied, it

is alleged, by a law merely providing for proper registration

and making it a rule that the "legitimacy of children should

never be questioned, after the death of their parents who lived

together as husband and wife, and were generally reputed to be

so."--Townshend, in COBBETT, _loc. cit._, 49, 50. _Cf._

the similar plan of Haldane, _ibid._, 40, 41.

In concluding the summary of this debate, singularly illustrative of

the imaginary evils so often conjured up against reform measures,

the deep-seated prejudice of the English people to publicity in

matrimonial engagements should be noted. It seems that in 1753,

as well as in 1653 and 1836, the open procedure prescribed by the

law gave a certain shock to popular sentiment. "It is a peculiar

phenomenon," says Friedberg, "that the English nation, whose

whole political system is interpenetrated by the principle of

publicity, should look upon publicity in the formation of marriage

as positively improper; that it should regard the publication of

banns ... as an unjustifiable violation of modesty."[1407] In this

spirit Horace Walpole, ridiculing the Hardwicke act, writes to Hon.

Seymour Conway: "It is well you are married. How would my lady A----

have liked to be asked in a parish-church for three Sundays running?

I really believe she would have worn her weeds forever, rather

than have passed through so impudent a ceremony."[1408] According

to Mr. Nugent, "it is certain, that proclamation of banns and a

public marriage is against the genius and nature of our people; it

shocks the modesty of a young girl to have it proclaimed through

the parish, that she is going to be married; and a young fellow

does not like to be exposed so long beforehand to the jeers of all

his companions."[1409] In fact, without defending banns as an ideal

institution, one cannot help reflecting that the final triumph of

civil marriage has already done something to overcome the false

delicacy touching human sexual relations and responsibilities, whose

survival in modern society is nevertheless still a serious hindrance

to rational education.

[1407] FRIEDBERG, _Geschichte der Civilehe_, 20,15.

[1408] HORACE WALPOLE, _Letters_, II, 334-36;

COBBETT, _op. cit._, XV, 32, 33.

[1409] Nugent, in COBBETT, _loc. cit._, 19. _Cf._ the

extracts from the Report of the "Marriage Laws Commission,"

1868, in HAMMICK, _Marriage Law_, 354 ff., where the

inadequacy of banns and the popular dislike of them are mentioned.

By the statute of 1753,[1410] whose origin has now been considered,

all marriages, save those of Quakers and Jews or those of members

of the royal family, are to be celebrated only after publication

of banns or license, and only during the canonical hours[1411] in

an Anglican church or chapel where "banns of matrimony have been

usually published," and before an Anglican clergyman. To solemnize

marriage in any other manner or in any other place, or without

banns except by special license of the archbishop, is punished with

fourteen years' transportation, and the marriage is declared void.

Two or more witnesses must be present. The clergy are required

to keep registers, and the falsifying or destroying the same is

punished by death. In the case of banns the express consent of

parent or guardian for the marriage of minors is not required. Such

a marriage is legal when dissent has not been expressed.[1412]

But in the case of license the marriage of a minor--not being a

widow or a widower--without the consent of parent or guardian is

absolutely void.[1413] Furthermore, the act declares that persons

convicted of solemnizing "matrimony in prisons and other places

without publication of banns or license" shall be judged guilty of

felony and sentenced to fourteen years' transportation, while the

marriages so solemnized are absolutely null and void. Precontracts

are likewise abolished. "In no case whatsoever shall any suit or

proceeding be had in any ecclesiastical court in order to compel

a celebration of marriage _in facie ecclesiae_, by reason of any

contract ... whether _per verba de praesenti_ or _per verba de

futuro_."

[1410] The act of 26 Geo. II., c. 33. For the text, see

PICKERING'S _Statutes at Large_, XXI, 124-30;

EVANS, _Statutes_, I, 155-60. For analysis and

discussion of its provisions see BURN (R.),

_Ecclesiastical Laws_, II, 433; HAMMICK, _Marriage

Law_, 12-15; GEARY, _Marriage and Family Relations_,

9, 12-15; BURN (J. S.), _Parish Registers_,

32, 33; BLACKSTONE, _Commentaries_, I, 438,

440; IV, 163; LECKY, _Eng. in 18th Cent._, I,

531-40; _idem_, _Democracy and Liberty_, II, 174, 176

ff.; TASWELL-LANGMEAD, _Eng. Const. Hist._, 750;

CAMPBELL, _Chancellors_, VI, 262; MAY, _Const.

Hist._, II, 362; FRIEDBERG, _Geschichte der Civilehe_,

16, 17; _idem_, _Eheschliessung_, 355-58; OPPENHEIM,

"Ueber Einführung der Civil-Ehe in Eng.," _ZKR._, I, 9-11.

[1411] From 8 to 12 in the morning.

[1412] _Cf._ HAMMICK, _Marriage Law_, 13. Compare

SAYER, _A Vindication of the Power of Society to annull

the Marriages of Minors_ (1754), 2 ff., who answers the arguments

of STEBBING in the works mentioned in Bibliographical

Note X. This is important in tracing the rise of sound opinions

regarding the proper sphere of social control; and with it may

be read to advantage SALMON, _Critical Essay Concerning

Marriage_, 59 ff. On the ecclesiastical law as to consent to the

marriage of minors see POYNTER, _Doctrine and Practice

of the Ecc. Courts_, 29 ff.; and in this connection may also

be read COOKE, _Report of the Case of Horner against

Liddiard upon ... Consent nec. to the mar. of illegit. Minors_

(London, 1800).

[1413] The clause of the act providing for license is vigorously

attacked by FRY, _Considerations on the Act_, 7 ff.,

who declares that "it gives liberty (for a little money) to

revive Clandestine Marriages." On the spiritual law as to license

compare POYNTER, _Doctrine and Practice of the Ecc.

Courts_, 21 ff.

The general effect of the Hardwicke act was undoubtedly good.

Publicity was secured. "It destroyed the infamous trade of the Fleet

Prison and Mayfair parsons;[1414] it enforced a regular public

celebration after compliance with certain preliminary forms," and

it established the principle of parental consent "as evidenced by

oath in case of a license, and by the absence of any expression

of _dissent_ in the case of banns;" and "from this date verbal

contracts of matrimony ceased to have any binding effect in England;

solemnization could not be enforced, and damages for breach of

promise, recoverable by action, became the only relief in such

cases."[1415]

[1414] The act took effect on March 25, 1754; and between its

passage on June 6 and that date these parsons did a roaring good

business. The _Gentleman's Magazine_, XXIV, 141 (Sunday, March

24, 1754), has the following:

"Being the last day before the commencement of the marriage act

before 11 o'clock 45 couple were married at Mr. Keith's chapel,

and when they ceased, near 100 pair had been joined together; two

men being constantly and closely employed in filling up licenses

for that purpose." See Keith's appeal for charity, because

the act had reduced him "from a great Degree of Affluence" to

"such a deplorable state of misery in the Fleet Prison," in

ASHTON, _The Fleet_, 364, 365.

Clandestine contracts, however, were not entirely put an end to

by the Hardwicke act. In the Savoy chapel Dr. John Wilkinson

and his representatives solemnized many hundreds of marriages

contrary to the provisions of the law; but these were, of course,

absolutely void: JEAFFRESON, _Brides and Bridals_,

II, 192-202; BURN, _Fleet Marriages_, 139-41. Burn

is in error when he says (139) "there does not appear to have

been any clandestine marriages" at the Savoy "until after the

Marriage Act." Such a marriage took place there in 1596. Under

date of June 14, in that year, W. Monne, Master of the Savoy,

writes to Lord Cobham, whose grandchild and ward was a party to

this contract, that he has "conferred with Archb. of Canterbury

concerning Mr. Bigge, the chaplain of the Savoy who performed the

marriage. Bigge said he thought he might well do it because his

fellow chaplains were in the habit of marrying people without

license. Archb. committed Bigge to the Gate House pending

Cobham's pleasure, also ordered that 'no such disorderly marriage

shall be offensively in the Savoy performed.'"--_Reports of the

Hist. Manuscripts Commission_, V, 136, 139.

[1415] HAMMICK, _Marriage Law_, 13, 14; _cf._

GEARY, _Mar. and Fam. Rel._, 33.

III. THE PRESENT ENGLISH LAW

There were, however, serious defects in the act of 1753. It was

conceived in a spirit of bigoted intolerance toward Roman Catholics

and all dissenters--save only Jews and Quakers--who were thus forced

against their consciences to accept the rites of the established

church; and the law was far too rigid in matters of detail. The

harsh treatment of dissenters is all the more remarkable because

"their privileges were abridged" by the act; for previous to 1753

they had been at liberty to celebrate their marriages in their own

chapels, without submitting to the ritual of the "church."[1416]

It is significant that in the report of debates on the measure

collected in the _Parliamentary History_ not a single voice seems

to be raised in favor of the general principle of toleration;

though one ceases to be surprised by this fact when he remembers

the disfranchisement of non-conformists and considers the shameful

character of parliamentary representation which was then drawn

largely from rotten or pocket boroughs under the control of a

corrupt oligarchy.[1417] During more than fourscore years repeated

efforts were made in vain to gain relief for dissenters.[1418]

The Unitarians[1419] were particularly active in the struggle

for religious and civil liberty. The bill of 1826-27 introduced

by William Smith in their behalf is especially worthy of notice,

because in the committee it took the form of a provision for civil

marriage before a justice of the peace, leading to a very lively

discussion. The Marquis of Lansdowne defended the measure, not

merely in the interest of the dissenters who by the existing law

were forced to do violence to their consciences, but also in behalf

of the clergy of the established church who should be relieved of

the necessity of administering a religious rite for those receiving

it only under compulsion.[1420] On the other hand, the bill was

opposed, not only on the old ground of violating the sanctity

of matrimony, but also because the clergy, by being required to

proclaim the banns in such cases and to certify the same to the

justice, would thus suffer humiliation; and for the reason that the

proposal smacked too much of the revolutionary ordinance of Oliver

Cromwell.[1421] Every attempt to gain justice for the dissenters

failed until finally a signal victory for civil institutions was won

in the epoch-making statute of 1836.

[1416] WALPOLE, _Hist. of Eng._, IV, 69.

[1417] _Cf._ GREEN, _Hist. of English People_, IV, 212,

124, 176 ff., 257; MAY, _Const. Hist._, I, 15 ff., 263

ff. By the Toleration Act of 1 Will. and Mary dissenters were

formally recognized and relieved from the pains and penalties

attaching to non-conformity; hence thereafter marriages

"according to their own forms and usages" were "treated as

marriages _de facto_." The Hardwicke act robbed them of this

privilege: HAMMICK, _Marriage Law_, 14.

[1418] In favor of the dissenters bills were introduced, either

in the Commons or in the Lords, in 1782 (HANSARD, _Par.

Debates_, 2d series, 1825, XII, 1236 ff.), 1819 (_ibid._, XL,

1200 ff., 1504 ff.), 1823 (_ibid._, IX, 967 ff.), 1834 ("Bills,

Public," 1834, II); and by Sir Robert Peel in 1835 ("Bills,

Public," 1835, III). A bill for registration of marriages,

births, and deaths was brought forward in 1834 ("Bills, Public,"

III); and already in 1833 a special committee to report on the

state of the parochial registers and the necessary legislation

was appointed by the Commons. This committee reported on Aug.

15 of the same year ("Reports, Committees," 1833, XIV). See

the history of the attempts to grant relief to dissenters by

OPPENHEIM, "Über Einführung der Civil-Ehe in England,"

_ZKR._, I, 8-33.

[1419] The Unitarians could not conscientiously make the

declaration of belief in the Trinity contained in the Anglican

marriage ritual: "I thee wed," etc., "in the name of the Father

and of the Son and of the Holy Ghost": WALPOLE, _Hist.

of England_, IV, 69-71, who discusses the efforts of William

Smith and Lansdowne in their behalf.

[1420] The same argument is advanced by a writer in the

_Quarterly Review_, LI (1834), 493 ff., 513, 514.

[1421] OPPENHEIM, _op. cit._, 13-17: "Bills, Public,"

1826-27, II. _Cf._ also WALPOLE, _Hist. of Eng._,

IV, 70, 71. GRIFFIN-STONESTREET, _Nuptiae Sacrae:

Objections to the Amended Unitarian Marriage Bill_ (London,

1828), is especially bigoted in his opposition, holding that

the sanctity of matrimony will be violated; that the magistrate

will have religious functions thrust upon him; and concludes

with the remark (38) that "it is no recommendation of this

measure, that it is in many parts a mere transcript of OLIVER

CROMWELL'S method of putting down the offices of the

Church by the Act of 1656." On the other hand, "A Presbyter

of the Church of England," who objects to allowing "Socinian

ministers" a share in the solemnization of marriages, admits that

there is a real grievance and recommends the "alternative of a

marriage before a civil magistrate, according to certain civil

forms." To provide a model (31-37), he reprints the whole of

Cromwell's ordinance of 1653. The measure is opposed in a spirit

of intolerance by LE GEYT, _Observations on the Bill_

(London, 1827).

The long struggle to remedy the formal defects of the Hardwicke act

met with somewhat earlier success. Much injustice and inconvenience

grew out of the provision that banns must be proclaimed in churches

or chapels where hitherto they had "usually been published." A

stop was thus put to legal celebration in many places, especially

in London; and "it was found that even St. Paul's Cathedral

and Westminster Abbey were included in this prohibition, as

no publication of banns had ever taken place in them."[1422]

Accordingly in 1781 a marriage solemnized in Buerlyhill Chapel,

"erected in 1765 and then duly consecrated, and in which divine

service had been publicly and regularly celebrated ever since, and

wherein banns of marriage had been often published and marriages

celebrated previous to the marriage in question," was annulled by

the court of King's Bench.[1423] An act was immediately passed

to validate such marriages already solemnized;[1424] and this was

followed by various other statutes to legalize later marriages of

the same kind.[1425] More serious were the consequences of the

clause making the express consent of parent or guardian in case

of license absolutely essential to the valid marriage of minors.

Through disregard of this provision, and for various other trivial

deviations from the letter of the statute, many harsh cases of

injustice arose. "A man was enabled to marry a woman solemnly in the

face of the church, to live with her and acknowledge her publicly as

his wife, and have issue by her,--and 25 years afterwards to bring

a suit for annulling the marriage, on the ground that he himself

had falsely and fraudulently sworn, in order to obtain the license,

that she was 21 years of age, when she was in fact two months

younger."[1426] In another case,[1427] "where a father had gone to

America and was supposed dead, and the mother had given her consent,

but the father had no knowledge of the marriage, it was declared

void after eighteen years' cohabitation;"[1428] for the father's

consent, if living, was absolutely necessary. Nullity was even

declared in one instance[1429] "because the testamentary guardians

who had consented were appointed by a will which turned out to be

invalid because attested by only one witness."[1430]

[1422] BURN, _Parish Registers_, 146; _cf._

GEARY, _Mar. and Fam. Rel._, 60, 61.

[1423] Rex _v._ Northfield (1781), 2 Douglas, 658;

GEARY, _loc. cit._; BURN, _op. cit._, 32 n. 2.

[1424] 21 Geo. III., c. 53: _Statutes at Large_, VIII, 83. In

the debate on the bill for this act Mr. Charles James Fox, "who

appears," says Burn, "to have possessed an hereditary opposition

to the Marriage Act of 1753," declared "that all persons who

had solemnized marriages in any of these new chapels were at

present liable to _transportation_. Under danger of that penalty

stood ... a vast number of clergymen, and some prelates in

the Upper House; but as America would not receive them, they

must go to the _Justitia Hulk_, which to be sure would be a

terrible thing, and he hoped the house would interfere to save

these reverend, and right reverend gentlemen from so horrible

a fate. It was an absolute fact that several, if not all, of

the Bishops had transgressed in this way; and by the bye, the

House might have the mortification to see Bishops in their lawn

sleeves, instead of preaching the word, heaving ballast on the

Thames."--BURN, _op. cit._, 32, 33, note.

[1425] 44 Geo. III., c. 77; 48 Geo. III., c. 127; 11 Geo.

IV. (1830), c. 18. The statute of 6 Geo. IV., unlike all the

preceding, validated future marriages in churches or chapels

erected since 26 Geo. II., c. 33: GEARY, _op. cit._, 61.

[1426] HAMMICK, _Marriage Law_, 14, note, citing

SIR JOHN STODDART'S _Letter to Lord Brougham on the

Irish Marriage Cases_ (1844), who says, referring to the facts

mentioned in the text, "that was in the case of Hewett _v._

Bratcher (1809), in which I was counsel before the High Court of

Delegates; and that court decided that agreeably to the Act of

1753, then in force, a marriage must, under such circumstances,

be annulled." Compare also the similar case of Johnson _v._

Parker (1819), 3 Phillim., 39, where "the husband obtained a

declaration of nullity because he was about six weeks under age

at the date of the marriage, although he had himself sworn on

applying for the licence that he was of age."--GEARY,

_op. cit._, 15. Other cases are mentioned in HANSARD,

_Par. Debates_, XXXIX, 1466; XLI, 1445 (1st series).

[1427] Hayes _v._ Watts (1819), 3 Phillim., 43.

[1428] GEARY, _op. cit._, 14, 15.

[1429] Reddall _v._ Leddiard (1820), 3 Phillim., 256. This case

and others are discussed by PHILLIMORE, _Speech on the

Marriage Act_, 23-45, an able exposition of the evils arising

under the Hardwicke act.

[1430] GEARY, _op. cit._, 15, note.

At length, after the nullification of marriage on technical or

trivial grounds had become a "public scandal" and an intolerable

hardship to individuals,[1431] a remedy was found in the act of 4

George IV., c. 76, by which so much of the Hardwicke act as had

not already been superseded[1432] was repealed; and new and juster

rules were substituted.[1433] But this statute, whose more important

provisions will hereafter appear, gave no relief to Roman Catholics

or dissenters. To effect this, after various futile attempts, the

civil-marriage law of 1836 was enacted,[1434] simultaneously with

another creating a new system of registration.[1435] These three

measures, with a few later modifications or additions, constitute

the present law of England relating to the celebration and

registration of marriages. An analysis of their leading provisions

will now be presented.[1436]

[1431] Compare GEARY, _op. cit._, 15.

[1432] In the preceding year, by 3 Geo. IV., c. 75, the provision

of the Hardwicke act invalidating marriage of minors by license

without consent, and some other defects, were remedied; but

the eighth and following sections of the law prescribing more

"stringent regulations to prevent clandestine marriage by

licence," were repealed by 4 Geo. IV., c. 17, which enacted

that "licences should be granted in the case of minors as

under Lord Hardwicke's act": _cf._ HAMMICK, _Marriage

Law_, 15, note; HANSARD, _Debates_, 2d series, VII,

702, 1635 (Commons); 1128, 1143, 1198, 1373, 1452 (Lords); and

PHILLIMORE, _Speech on the Marriage Act_, 45 ff.

[1433] The act of 4 Geo. IV., c. 76, may be found in

HAMMICK, _op. cit._, 269-80; and BURN,

_Ecclesiastical Laws_, II, 433_d-h_; as also in the _Statutes

at Large_ for that year. _Cf._ HANSARD, _Debates_,

2d series, VIII, 80, 87, 123, 235, 623; IX, 540, 649; _Annual

Register_, LXV, 89-93.

[1434] 6 and 7 Will. IV., c. 85: _Statutes at Large_, 510-25;

BURN, _op. cit._, II, 433_u_ ff.; Hammick, _op. cit._,

282-96.

[1435] 6 and 7 Will. IV., c. 86: _Statutes at Large_, 526-44;

HAMMICK, _op. cit._, 297-306.

[1436] For the debates on the acts of Will. IV. see

HANSARD, _Debates_, 3d series, XXXI, 367-86; XXXII,

1093; XXXIV, 490-94, 539, 1021-39, 1309. _Cf._ the _Quarterly

Review_, LVII, 248-53, for an article praising the conservative

course of the Lords.

It will be convenient first to notice the main features of the

system of registration.[1437] For the entire kingdom is appointed

by the lord treasurer and the lords commissioners of the treasury

a registrar-general whose office is in London and Westminster.

Below the general registrar of births, deaths, and marriages are

the "superintendent registrars," one in each union or parish,

appointed by the Board of Guardians of the Poor; or, in default of

such appointment, they may be nominated by the general registrar.

The post is usually filled, however, by the clerk of the Board of

Guardians. Below the superintendent registrars are the registrars of

the districts. These are of two kinds: the registrar of births and

deaths, appointed in the same way as the superintendent registrars;

and the registrars of marriages, nominated by the superintendent of

the union subject to the approval of the guardians,[1438] or of the

registrar-general, as provided by a later act.[1439]

[1437] For summary and discussion of the registration laws

see BOHN, _Political Cyclopædia_, IV, 625-28;

SMITH, _The Parish_, 187-89, 457-60; FRIEDBERG,

_Eheschliessung_, 413-19; ROBERTSON, in _Britannica_,

XV, 566; HAMMICK, _Marriage Law_, 106 ff., 166-90,

_passim_; GEARY, _Mar. and Fam. Rel._, 133-37, _passim_

as per index; MOORE, _How to be Married_, 60 ff.;

ERNST, _Treatise of Mar. and Div._, 10 ff.

[1438] The appointment of the district registrars of marriages is

provided for, not by the registration act, but by the marriage

act of 6 and 7 Will. IV., c. 85, sec. 17.

[1439] By 19 and 20 Vict., c. 119, sec. 15; HAMMICK,

_op. cit._, 327.

Co-ordinate with the civil registrars of marriages for the district

are the ministers of the Church of England, and the ministers or

accredited officers of other denominations, each of whom is required

every quarter to transmit abstracts of all registrations to the

superintendent, who, in his turn, reports to the registrar-general.

The division of the union into districts, which usually correspond

to the parishes, is the duty of the guardians, subject to the

approval of the registrar-general.

Marriage within the Church of England is regulated by the statute of

4 George IV., c. 76, and may be solemnized in the parish church or a

chapel licensed by the bishop,[1440] after publication of banns for

three successive Sundays at morning service; or on production of the

certificate of a superintendent registrar, which is equivalent to

banns.[1441] Parent or guardian may forbid the marriage of minors,

but in case of banns express consent is not required. License in

place of banns may be granted by the archbishop, bishop, or other

authority, but only for solemnization within the church of the

parish in which one of the parties has resided "for the space of

fifteen days preceding." Before "a licence can be granted an oath

must be taken as to the fact of residence;" that there is no legal

impediment; and that the consent of parent or guardian has been

obtained, if either of the parties is under twenty-one years of

age.[1442] The "marriage must be celebrated within three months

after banns or licence, and between the hours[1443] of eight and

twelve in the morning."[1444] Care is taken to avoid the hardships

arising from the rigidness of the Hardwicke act. "The penalty of

nullity" is "confined to the case of persons wilfully procuring

the celebration of marriage without due publication of banns, or

without a licence from a person having authority to grant the

same, or by any person not in holy orders, or elsewhere than in a

church or chapel wherein banns" may "be lawfully published." The

want of consent of parent or guardian, in case of minors, does not

invalidate a marriage by license; but "in the event of any fraud

practiced to procure the contract, the guilty party" forfeits "all

property accruing from the marriage."[1445]

[1440] "With the consent of the patron and the incumbent."--4

Geo. IV., c. 76, sec. 3: HAMMICK, _op. cit._, 270. See

further details as to the places licensed, in 6 and 7 Will. IV.,

c. 85, secs. 26 ff.

[1441] By 6 and 7 Will. IV., c. 85, sec. 1. But by 19 and 20

Vict., c. 119, sec. 11, celebration by a clergyman of the Church

of England on certificate of the superintendent registrar is not

obligatory: _cf._ HAMMICK, _op. cit._, 87, 282, 313;

GEARY, _Mar. and Fam. Rel._, 58, 80, 85, 88, 94.

"In the year 1884, out of 144,344 marriages according to the

rites of the Established Church, 128,107, or 89 per cent.,

were by banns, 12,188, or 8.5 per cent., by ordinary licence,

68, or .05 per cent., by special licence (of the archbishop),

and 3,523, or 2.4 per cent., on superintendent registrar's

certificate."--HAMMICK, _op. cit._, 63, note. In 1889,

698 marriages in every 1,000 were according to the rites of the

English church; and of these only sixteen were by certificate:

GEARY, _op. cit._, 58, note. See the discussion and the

tables of statistics of marriages, 1841-88, in MOORE,

_How to be Married_, 111-17, 166, 167.

[1442] See the form of oath in GEARY, _op. cit._, 49

n. 3; and MOORE, _op. cit._, 120, who gives all the

marriage forms. If the "defendant swears falsely it is not

perjury, and only misdemeanour" (Regina _v._ Chapman, 1849, I

Den., 432); and "the spiritual Court has no jurisdiction to

punish such false oath" (Phillimore _v._ Machon, 1876, 1 P. D.,

481); GEARY, _op. cit._, 49, 50.

[1443] Now between the hours of 8 in the forenoon and 3 in the

afternoon: By 49 and 50 Vict., c. 14: HAMMICK, _Marriage

Law_, 341.

[1444] Compare the clear summary of ROBERTSON, in

_Britannica_, XV, 566; BURN, _Ecc. Laws_, II, 433_f-h_;

MOORE, _How to be Married_, 1-23.

[1445] HAMMICK'S summary in _Marriage Law_, 15.

The institution of banns, as already seen, is the ancient device

of the church to secure publicity.[1446] During the ages it has

served a useful purpose, though from its very nature, even under

the most stringent regulations, it is capable of serious abuse. But

there are unmistakable signs that it has about run its course and

must soon yield to more effective methods, such as those prescribed

by the civil-marriage act. The "unsuitableness of banns to the

present state of society," remarks Mr. Hammick, appears as early as

1868 in the report of the Marriage Law Commissioners,[1447] They

say that "in populous places it seems universally agreed that no

real publicity is obtained by banns, which afford no safe-guard

against improvidence, illegality, or fraud, and are frequently,

from their great number, an inconvenient and unseemly interruption

to divine service." The old sentiment against publicity is a strong

motive for evasion. "The evidence which we have received," add

the commissioners, "abundantly proves that the dislike of this

mode of publication tends to promote clandestinity rather than

to prevent it, by inducing many persons to resort for marriage

to places where they are unknown."[1448] Nor does the testimony

against the efficiency of banns come from lay sources alone. The

bishop of Durham, in this same report, declares that "at present

there is no punishment to any party making a false statement"

in order to have banns published in a parish where he does not

reside; "whilst it is quite impossible for the clergyman, who is

now by law punishable for celebrating such marriages, to ascertain

the falsehood of such statements, as his time, if his parish be

large, is entirely occupied by his other necessary duties." Hence

he believes that it would be "advantageous to assimilate the law

to that which regulates the notice of banns at the registry, and

to make a false statement in either case perjury."[1449] In like

spirit the bishop of Ely refers to the difficulty of the clergyman's

making suitable examination. "All such inquiries," he says, "are

inevitably left to the parish clerk, whose interest it is to inquire

as little as possible. Hence, if any persons desire to contract

an illegal marriage, they choose one of the populous parishes of

our large towns, where they readily escape notice."[1450] The

uselessness of banns in such places is further made very clear

"not only by ninety-nine couples being asked on one Sunday at St.

Pancras, but also by 189 couples being asked in the cathedral

church at Manchester on the 11th December, 1864, and 202 couples

on the 10th December, 1865," while on this last-named day at St.

Mary's, Lambeth, the banns of 125 couples were published. In many

of these cases, merely the names were mentioned, "unaccompanied

by any announcement of condition--whether bachelors, widows," or

spinsters.[1451]

[1446] Above, chap. viii, sec. iv, pp. 359 ff.

[1447] HAMMICK, _op. cit._, 65. _Cf. Report of the

Royal Commission, 1868_, 53-58, 34, 36-38, for the responses of

various lay and ecclesiastical persons.

[1448] _Report_, xlii; in HAMMICK, _op. cit._, 65, note.

[1449] REV. S. C. WILKS, in his _Banns, a Railroad

to Clandestine Marriages_ (1864), proposed "a simple form

of declaration, to be incorporated with the Banns Book":

HAMMICK, _op. cit._, 66, note.

[1450] From suggestions made to the Marriage Law Commissioners,

and published in their _Report_, 1868: in HAMMICK, _op.

cit._, 354-62.

[1451] Suggestion of Major Graham, late Registrar General, in the

commissioners' _Report_: HAMMICK, _op. cit._, 356:

"Without proposing that banns should be prohibited, the

commissioners recommend that the publication should not be

required by law as a condition either of the lawfulness or of

the regularity of marriage, being of opinion that 'every useful

purpose which can be answered by the publication of banns in

the Established Church may be equally answered by the mere fact

of notice to the officiating minister.'"--HAMMICK,

_op. cit._, 65. In general, on the present law of banns, see

_ibid._, 62-80; ERNST, _Treatise of Mar. and Div._, 8;

GEARY, _Mar. and Fam. Rel._, 37-46, where the judicial

decisions are cited; and MOORE, _How to be Married_, 1

ff.

The civil-marriage act of 1836 owes its adoption mainly to the

influence and exertion of Lord John Russell, by whom it was

proposed. In a measure, however, the way had been cleared for it by

the bill of the preceding year introduced by Sir Robert Peel. This

was received in a spirit of conciliation and compromise, showing

that the period of harsh intolerance was fast approaching its

end.[1452] The bill failed of passage, mainly because as a half-way

measure it did not satisfy the non-conformists. For it permitted the

civil form of marriage only to those declaring their unwillingness

to accept the established rites; and thus, it was asserted, a stigma

would be put upon the dissenters to whom matrimony was not less holy

than it was to the adherents of the English church.[1453] Moreover,

the magistrate of the hundred before the marriage was solemnized

was required to send the certificate to the clergyman of the parish

for registration.[1454] But it is highly significant that in the

debate proposals were made involving the essential elements of the

two great measures of the next year. A system of civil registration

of births, deaths, and marriages was suggested; while it was urged,

either that the civil form of solemnization should be made optional

for all, not merely restricted to non-conformists; or else it should

be made obligatory for all, leaving it free to the parties in every

case, after the lay ceremony, to avail themselves of the rites of

their own religious body.[1455]

[1452] On asking leave to present the bill, March 17, 1834,

Sir Robert Peel delivered an elaborate speech explaining the

need of reform and giving a history of the attempts to remedy

the hardships arising from the existing marriage laws since

1753. His speech was well received by all parties: see the

summary of Peel's speech and of the debate on the bill in

OPPENHEIM, in _ZKR._, I, 19-33. In general on the

struggle for relief of dissenters see MAY, _Const.

Hist._, II, 362-64, 392-95; FRIEDBERG, _Eheschliessung_,

391-401; FISCHEL, _Eng. Const._ (London, 1863), 84.

[1453] Lord John Russell's speech: OPPENHEIM, in _ZKR._,

I, 34; _cf. ibid._, 31; and BEARD, _Notes on Lord

John Russell's Mar. Bill_ (London, 1834), demanding full civil

marriage for dissenters, not mere "relief" through the Church of

England.

[1454] MOLESWORTH, _Hist. of Eng._, I, 339;

WALPOLE, _Hist. of Eng._, IV, 71, 72.

[1455] OPPENHEIM, in _ZKR._, I, 31, 32. The bill was not

satisfactory to Lord John Russell; hence it was dropped when he

superseded Peel as prime minister.

Nevertheless the act of 1836 was adopted only after a prolonged

contest in the House of Commons.[1456] By this statute the religious

celebration prescribed by the Anglican rubric is preserved, and two

additional methods of procedure are created: (1) by certificate

of the superintendent registrar without license; (2) or by such

certificate with a license.

[1456] For a contemporary account of the debate on the

bill see the _Annual Register_, LXXVIII, 122-34; a

summary by OPPENHEIM, in _ZKR._, I, 33 ff.;

also MOLESWORTH, _Hist. of Eng._, I, 386-88;

WALPOLE, _Hist. of Eng._, IV, 69-73. See

HANSARD, _Debates_, as cited above.

When procedure is by the first method,[1457] notice must be given

"to the superintendent registrar of the district within which the

parties shall have dwelt for not less than seven days" previous.

This notice is then entered in a marriage notice book "open at all

reasonable times without fee to all persons desirous of inspecting

the same;" and thereafter for twenty-one days the notice or a true

copy is to be suspended or affixed "in some conspicuous place

in the office" of the superintendent.[1458] "In the body or at

the foot" of the notice a "solemn declaration" as to residence,

necessary consent, and the absence of impediment of any kind must

be subscribed by one of the parties.[1459] After twenty-one

days,[1460] if no valid objection be filed by parents or others,

a certificate is issued by the superintendent, and the marriage

may be celebrated at any time within three months of the entry of

the notice.[1461] After issuing the certificate the marriage may

be celebrated in either of the following forms: (1) Before the

superintendent registrar, in the presence of a district registrar

and two witnesses--a mere declaration of assent and no religious

rites whatever being required. (2) In any registered building by

a minister of any sect according to the religious rites of the

same. Here also the registrar of the district and two witnesses

must be present. (3) According to the rites of the Jews and Quakers

in duly certified buildings. A building may be registered by the

superintendent registrar on receipt of a written petition from "any

proprietor or trustee," accompanied by a certificate signed in

duplicate by twenty householders at the least, that such building

has been used by them during one year at the least as their usual

place of public worship and that they are desirous that the place

shall be registered.[1462] (4) Marriages may also be solemnized by

certificate in lieu of banns in an Anglican church or chapel, if the

consent of the minister be obtained.[1463] In all cases the place of

marriage must be mentioned in the certificate, and the celebration

must occur between the hours of 8 in the forenoon and 3 in the

afternoon.[1464]

[1457] On marriage by certificate without license see

MOORE, _How to be Married_, 60 ff.; GEARY,

_Mar. and Fam. Rel._, 80 ff., 85 ff.; HAMMICK, _Marriage

Law_, 118 ff., 127 ff.

[1458] By 19 and 20 Vict., c. 119, secs. 3-5.

[1459] By 19 and 20 Vict., c. 119, sec. 2. _Cf._

ROBERTSON, in _Britannica_, XV, 566; BURN,

_Eccl. Laws_, II, 433 _x-y_; HAMMICK, _Marriage Law_, 89

ff., 319, 320; GEARY, _Mar. and Fam. Rel._, 80-85.

[1460] In the interval the notice was originally to be read

by the clerk of the Board of Guardians at their sessions for

three successive weeks: FRIEDBERG, _Eheschliessung_,

416; BURN, _Eccl. Laws_, II, 433_y_. This provision is

repealed by 19 and 20 Vict., c. 119.

[1461] _Cf._ 19 and 20 Vict., c. 119, sec. 4. The form of

certificate is given by HAMMICK, _Marriage Law_, 333,

334; MOORE, _How to be Married_, 148. All the forms are

given by MOORE, _ibid._, 120-63.

[1462] 6 and 7 Will. IV., c. 85, sec. 18. _Cf._ BURN,

_Eccl. Laws_, II, 433_bb._; BOHN, _Pol. Cyc._, III, 329;

FRIEDBERG, _op. cit._, 413-15; HAMMICK, _op.

cit._, 118 ff., 122 ff.

[1463] BURN, _Eccl. Laws_, II, 433_x_;

ROBERTSON, in _Britannica_, XV, 567; FRIEDBERG,

_op. cit._, 416; BOHN, _op. cit._, III, 322.

[1464] Between 8 and 12 in the forenoon by 6 and 7 Will. IV., c.

85, sec. 20. This was changed by 49 and 50 Vict., c. 14, sec. 1.

If the parties wish to avoid delay and so great publicity, they

may proceed by the superintendent's certificate and license. These

may be obtained on one[1465] full day's notice to the registrar of

"the district in which one of the persons resides, together with a

declaration that he or she has resided for fifteen days therein,

that there is no impediment, and that the necessary consents if any

have been obtained. The notice is not exhibited in the registrar's

office."[1466] After obtaining the license, the marriage may be

celebrated in either of the first three modes above mentioned; but

no superintendent's license may be issued for a marriage according

to the forms of the English church, that right being still an

"ecclesiastical monopoly." Any person guilty of wilfully making any

false statement in procuring certificate or license is liable to

the penalties of perjury;[1467] and if any persons "knowingly and

willfully intermarry," in any place other than that mentioned in the

certificate or without notice, certificate, or license, as required

by law, or in the absence of the registrar where his presence is

required, their marriage, except in certain specified cases, is null

and void.[1468] False statements as to consent subjects the offender

to the penalties of perjury, but does not invalidate the marriage.

[1465] Original act said "seven days": BURN, _op. cit._,

II, 433_aa_, changed by 19 and 20 Vict., c. 119, sec. 9. _Cf._

GEARY, _Mar. and Fam. Rel._, 87; HAMMICK, _op.

cit._, 324.

[1466] ROBERTSON, in _Britannica_, XV, 567;

BURN, _op. cit._, II, 433_z-bb_.

[1467] Re-enacted by 19 and 20 Vict., c. 119, sec. 18.

[1468] By 6 and 7 Will. IV., c. 85, sec. 42. _Cf._ BOHN,

_Pol. Cyc._, III, 324; BURN, _op. cit._, II, 433_ii_;

HAMMICK, _op. cit._, 295.

As to the form of civil contract, it is only essential that

somewhere in the ceremony the following declarations be introduced.

Each of the parties must say:

"I do solemnly declare, that I know not of any lawful impediment why

I, A. B., may not be joined in matrimony to C. D."

And each must say to the other:

"I call upon these witnesses here present to witness that I, A. B.,

do take thee, C. D., to be my lawful wedded wife (or husband)."[1469]

[1469] 6 and 7 Will. IV., c. 85, sec. 20. _Cf._ BURN,

_op. cit._, II, 433_cc_; BOHN, _op. cit._, III, 323;

HAMMICK, _op. cit._, 289, 145; MOORE, _How to

be Married_, 49.

Thus English marriage ends, as it began, in a simple contract;

but the state has succeeded in imposing upon it the condition of

publicity--a task which the church first attempted, but failed to

accomplish.[1470]

[1470] By the act of 7 and 8 Vict., c. 81 (1844), supplemented

by 34 Vict., c. 110, and 26 and 27 Vict., c. 27, the essential

features of 6 and 7 Will. IV., c. 85, were adopted for Ireland,

the proximate cause being the excitement aroused by the case

of the Queen _v._ Millis, 1843: see chap. vii, sec. ii, p.

316, above; and also HAMMICK, _Marriage Law_, 232-39;

GEARY, _Mar. and Fam. Rel._, 557 ff.

In Scotland except as restricted by 19 and 20 Vict., c. 96,

the principles of the canon law are still in force, "subject

only to such modifications as it has undergone from time to

time by the application of the rules of evidence established

in that country, and the course of judicial decisions"

(HAMMICK, _op. cit._, 221). But in 1856 by 19 and 20

Vict., c. 96, called Lord Brougham's Act, for a contract to

be valid, the parties must have resided in Scotland at least

twenty-one days preceding the ceremony. This put an end to

"Gretna Green" weddings, but otherwise private contracts are

still legal. Thus three kinds of marriages are recognized: (1)

"regular marriages" before a minister according to custom or

statute; (2) "irregular marriages" _per verba de praesenti_; (3)

"irregular marriages" _per verba de futuro, subsequente copula_;

but in this case the contract must be written or proved by

confession on oath: HAMMICK, _op. cit._, 221 ff. That

Scotch marriages are binding in England was established by the

celebrated judgment of Lord Stowell in Dalrymple _v._ Dalrymple

in 1811: DODSON, _A Report of the Judgment_, 1 ff.,

97 ff.; STEPHENS, _Laws of the Clergy_, I, 672, 688;

FRIEDBERG, _Eheschliessung_, 426, 427; KENT,

_Commentaries_, II, 87. In general, see GEARY, _op.

cit._, 531 ff.; FRIEDBERG, _op. cit._, 428, 437-59;

_idem_, _Geschichte der Civilehe_, 18 ff.; MOORE, _How

to be Married_, 85 ff.; ROBERTSON, in _Britannica_,

XV, 567; TEGG, _The Knot Tied_, 216-23 (Gretna Green);

JEAFFRESON, _Brides and Bridals_, II, 203-16 (Gretna

Green); GLASSON, _Histoire du droit et des inst._, VI,

162-69; WHARTON, _Laws Rel. to Women_, 265-98 (present

English law), 298-303 (Scotch law); STEPHENS, _Laws of

the Clergy_, I, 671-779; CARLIER, _Mar. aux États-Unis_,

41 ff.

* * * * *

Transcriber's note:

Minor typographical and punctuation errors have been corrected

without note. Irregularities and inconsistencies in the text have

been retained as printed.

Mismatched quotes are not fixed if it's not sufficiently clear where

the missing quote should be placed.

The cover for the eBook version of this book was created by the

transcriber and is placed in the public domain.

In the Table of Contents: III. The Evils of the Spiritual Jurisdiction

351-359"--350 was changed to 351.

Page 170: The closing quote is missing--'the custom "in accordance

with which every woman'

A History of Matrimonial Institutions, Vol. 1 of 3 · 第 7 / 7 章