Chapter X: Rise of CIVIL Marriage (3)

[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.