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'