The change in matrimonial jurisdiction effected by this measure of the Commonwealth has a twofold significance. Not only is judicial authority thus vested in civil rather than spiritual tribunals; but it is placed in the hands of local judges. It is an illustration of the democratic or decentralizing tendency which marks the legislation of the seventeenth-century Puritans on both sides of the Atlantic. It was, moreover, natural that the county magistrates should be vested with these new functions. In the exercise of their general peace authority they had already performed duties not wholly dissimilar to some of those called for under the act. In certain instances, before as well as after the reign of Cromwell, one may be surprised to find the justices exercising a sort of jurisdiction in cases of alleged breach of promise. "Forasmuch," declare the magistrates of Devon in 1626, "as it hath apeared unto this court that Bridget Howsley of Langton, spinster, liveth idly and lewdly at home, not betaking herself to any honest course of life, and hath lately falsely and scandalously accused" a certain man of Honiton, "challenging a promise of marriage from him, which tended much to his disgrace, and that she is a continual brawler and sower of strife and debate between neighbors;" therefore it is ordered that the said Bridget "be forthwith committed to the House of Correction there to be set on work and remain for the space of six whole months," and thereafter until she find good sureties or a "master that will take her into service."[1316] Here the justices may have acted merely as peace officers, though it is plain that as a precedent their sentence is far-reaching in its consequences. As late as 1835 we find the magistrates at Exeter, following the principle of the Roman law, "obliging a faithless swain to return a damsel's watch, and the latter to return half the value of a broach" which he had given her.[1317]
In no respect is the essential "modernness" of Cromwell's marriage act more strikingly shown than in its provisions to secure publicity, with a safe and perfect record. Nothing so wise and practical in this regard was again seen in England until the law of 1836. It is provided that in each parish a register of marriages, births, and deaths shall be elected for three years by the contributors to the poor rate. The register is to be an "able and honest person," such "as shall be sworn and approved" by a justice of the peace, who is to enter the fact of election and qualification in the register book of the parish;[1318] and he is removable either by the justice or by the parish with the justice's consent. A "Book of good Vellum or Parchment" is to be provided by each parish, in which it is the duty of the register to enter all marriages, births, and burials of "all sorts of people."[1319]
Careful provision is also made for the publication of banns. All marriages must be announced either for three successive Sundays in church, or at the pleasure of the parties, during the same interval, in the market-place[1320] "next to the said church or chappel." Before the publication the parties must file with the register a written statement of their names and places of residence, together with those of their parents or guardians; and these facts are then included in the notice. The register also enters the fact of publication and all objections brought forward against the marriage, with the names of those objecting. After publication the persons to be married are to obtain the register's certificate of the fact and proceed to a justice of the peace. As already seen, they must also find witnesses, give evidence of the consent of parents or guardians, and cause to be confirmed by oath, or otherwise in the discretion of the magistrate, the genuineness of the certificate. After the ceremony, if desired by the parties, the officiating justice is required to give them a certificate of the solemnization properly signed by himself and the witnesses; and this certificate, if produced, shall be recorded by the clerk of the peace in each county in a book of parchment provided for the purpose.[1321] The register of the parish is to "attend the said justice" to "subscribe the entry of every such marriage."
Nor did the system so well planned exist merely upon paper. The plain men chosen to the office of register did their work well, though they were sneered at as "mere laymen," and though they sometimes substitute rather harsh English for the worse Latin of their clerical predecessors. Greater publicity and more orderly records were secured during the Commonwealth than existed before it or after the Restoration. "It has been frequently asserted by writers on this subject," remarks Burn, a thoroughly competent judge, "that the registers during the time of Oliver Cromwell, were very badly kept;" but, on the contrary, "they were unusually well kept" where "a lay register was appointed according to the act of parliament." Such deficiencies as exist, he suggests, may result either from the destruction of the records or from neglect to turn them over at the Restoration or when the lay registers entered upon their functions.[1322] Waters agrees with Burn;[1323] and an examination of the published parish registers entirely confirms this view.[1324] It is hard, therefore, to understand the following curious statement by a contemporary writer who is clearly no admirer of Cromwell.[1325] Referring to certain "bills of mortality" for Romsey in Hampshire and Tiverton in Devonshire,[1326] he remarks "that in the years 1648 and 1649, being the time when the people of England did most resent the horrid Parricide of his late Sacred Majesty, ... there were but nine weddings ... in the same places, when there were ordinarily between 30 and 40 per Annum; and but 16, when there were ordinarily ... between 50 and 60. And it may also be observed that something of this black murther appeared in the years 1643 and 1644 when the Civil war was at the highest, but the contrary [in the] years 1654, 1655, etc., to prevent the new way of Marriage then imposed upon the people." Just how the increase in the number of weddings recorded in the years 1654-58 may be explained as due to a desire "to prevent the new way of Marriage," we are not informed. It cannot be inferred that people hurried to get married in anticipation of the new law, for it was put in force the next month after its passage; nor that through zeal they married more rapidly according to the Book of Common Prayer, in defiance of the new civil forms, although in some cases the religious celebration may have been still employed. But it is useless to speculate as to the sense of the passage. The statistical tables for the two parishes submitted by this writer afford very strong evidence that the apparent increase in the number of weddings is mainly due to the fact that the records were better kept. It will be noticed that there is a corresponding rise in the number of christenings and burials; and this fact can scarcely be accounted for by assuming that people hastened to get born or to die through opposition to an ordinance of the Barebone's Parliament. After the Restoration there is a decided falling off in the registration.
The great success of this early attempt at reform in matrimonial administration cannot, however, be thoroughly appreciated unless one reflects that throughout the ages the matter of registration had been shamefully neglected and the record books recklessly destroyed. Their custody being "frequently committed to ignorant parish clerks, who had no idea of their utility beyond their being occasionally the means of putting a shilling into their pockets for furnishing extracts;" and "at other times being under the superintendence of an incumbent, either forgetful, careless, or negligent, the result has necessarily been that many registers are miserably defective."[1327] This judgment applies to the times following the Commonwealth as well as to the period falling between 1538 and the act of 1653.[1328]
Many specimens of the marriage records of the Commonwealth have been discovered, representing each phase of procedure.[1329] Of these the following entry of the marriage of Oliver Cromwell's daughter, taken by Waters from the register of St. Martin's in the Fields, may serve as an example:
"These are to certifie whom it may concerne, that according to a late Act of Parliament ... Publication was made in the publique meeting place, in the Parish Church of the parish of Martins in the Fields in the county of Middlesex, upon three several Lord's Days, at the close of the morning exercise, namely, upon the XXV. day of October MDCLVII., as alsoe upon the I. and VIII. day of November following, of a marriage agreed upon between the Honorable Robert Rich of Andrew's Holborn, and the Right Honorable the Lady Frances Cromwell, of Martins in the Fields, in the county of Middlesex. All which was fully performed according to the Act without exception.
"In witness whereof I have hereunto set my hand the IX. day of November, MDCLVII.
William Williams,
Register of the Parish of Martins in the Fields."
Then follows this entry "in the hand of Henry Scobell" who was doubtless the officiating magistrate:[1330]
"Married, XI. Novemb., MDCLVII, in the presence of His Highness the Lord Protector, the Right Honble. the Earls of Warwick and Newport, Robert Lord Birch, the Lord Strickland, and many other."[1331]
Sometimes the entries are fuller in details, and more ingenious in orthography. Here is one from the register of "Inglebye iuxta Grenhow":
"George Middleton of the Parish of Carleton husbandmā, son of William Middleton of the same parish husbandman & Isabell Easebie of Green-howe in the parish of Inglebye spinster daughter of Isabell Easbie of the said Greenhowe; having agreed to be married did deliver to me Williā Boweston of Inglebie aforesaid parish Register of the said Inglebie their names sirnames additions and places of aboade, & the same of their parents likewise in writeing upon the 19th of ffebruarie 1654. which was published in the publick meeting place of the said Inglebye commonly called the Church or chappell upon the 25th of februarie and the 4th & 11th of March 1654 at the Close of the morning exercise by me William Boweston Register.
"And the said George Middleton & Isabell Easbie expressed their consēt unto Marriage by the words of the Act before George Marwood Esquire one of the Justices of the peace of the Countie of York & were by the said Justice declared to be husband & wife the 13th of March 1654
Geo: Marwood."[1332]
Each of the two documents just presented, it will be noticed, consists of two parts: the certificate of the register to the magistrate; and the magistrate's entry in the register book after the ceremony has been performed. The following is an example of the marriage certificate which by the act the justice is to deliver to the parties, when required, to be filed by them with the county clerk of the peace, if they see fit:
"Fforasmuch as I, having received a certificatt of the date of the xiij of this month, under the hand and seale of Owen Perkins, Gent., Register of the consolidated Churches of Mathry, that Publicacon was made of an intencon of marriage three lord's days thenbefore in the said parish Church between Phillip Harry and Ann Harry, if not anything objected to the contrary, These are therefore at the desire of the Said parties to certify all whome it may concern, that according to the Act of Parliament for marriages, the Said Phillip and Anne this present day came before me, and taking each other by the hand did plainly and distinctly pronounce the words in the said Acte mencōēd to be pronounced by them, And thereupon, according to the said Acte, I pronounce them to be husband and wife. Given under my hand and seale the ffourteenth day of July, 1655
Thomas Davis."[1333]
The law of 1653, it thus appears, constitutes a singularly important episode in the social and religious history of England. It remained in force, with a modification in 1656, during the seven years preceding the fall of the Commonwealth, and called forth the fierce opposition and hatred of the royalist party. It was ridiculed by the pamphleteer[1334] and satirized by the poet.[1335] Every provision drew forth a sneer. Marriage is made a "traffic" because published in the market-place; "matrimony and hanging" join hands before the same justice; and the "lay register" comes in for his full share of abuse. "Levellers and phanaticks," sadly complains one writer, "blush not at their own rushing into other men's offices,—a bold but witless Justice of ye Peace, makes his neighbouring ministers cyphers, whilst he forceth ye King's subjects (quite against the graine) to elect and he to confirm a mere layman in the office of Parish Register—Proh pudor fronti enim, nulla fides."[1336] The recorder of Cirencester in Gloucestershire charges the lack of entries for several years to the account of the act passed by the "Rump," the "said Parliament ... consisting of Anabaptists and Independents;"[1337] while in 1659, the clerical register of Christ's Church, Hants, spitefully declares that "maryinge by justices, election of registers by Parishioners, and the use of ruling elders, first came into fashion in the time of rebellion, under that monster of nature and bludy tyrant, Oliver Cromwell."[1338]
On the other hand the principles of this measure found a mighty champion in Milton, in whose writings, says Friedberg, the religious tendencies of his party were molded almost into a "scientific system."[1339] The following extract from "The likeliest means to remove Hirelings out of the Church" is interesting as epitomizing the views of the Independents, showing that they were grounded upon the fundamental principles of Old English custom:
"As for marriages, that ministers should meddle with them, as not sanctified or legitimate without their celebration, I find no ground in scripture either of precept or example. Likeliest it is (which our Selden hath well observed l. II, c. 58, ux. Eb.) that in imitation of heathen priests, who were wont at nuptials to use many rites and ceremonies, and especially, judging it would be profitable, and the increase of their authority, not to be spectators only in business of such concernment to the life of man, they insinuated that marriage was not holy without their benediction, and for the better colour, made it a sacrament; being of itself a civil ordinance, a house hold contract, a thing indifferent and free to the whole race of mankind, not as religious, but as men: best, indeed, undertaken to religious ends, and, as the apostle saith, I Cor. VII., 'in the Lord.' Yet not therefore invalid or unholy without a minister and his pretended necessary hallowing, more than any other act, enterprise, or contract of civil life, which ought all to be done also in the Lord and to his glory: all which, no less than marriage, were by the cunning of priests heretofore, as material to their profit, transacted at the altar. Our divines deny it to be a sacrament; yet retained the celebration, till prudently a late parliament recovered the civil liberty of marriage from their encroachment, and transferred the ratifying and registering thereof from the canonical shop to the proper cognizance of civil magistrates."[1340]
After the Restoration, though not expressly repealed, the act of Cromwell was at once superseded by the laws in force before the Revolution. The more revengeful faction of the royalists even strove to have all marriages contracted under the act made null and void. But a proposition so monstrous could not prevail; and a statute legalizing civil marriages was passed during the first year of Charles II.[1341]
In order to understand the cumulative influences which finally in the middle of the eighteenth century produced the next English statute prescribing a definite form for marriages, it will be necessary to point out the anomalies of the old system which during the period between the Restoration and that time led to abuses of a most startling character.
Previous to the reign of William III. only spiritual punishment had been imposed for secret marriages; but under that monarch begins a series of acts which, though chiefly intended as revenue measures, in effect prescribed also temporal penalties. The first of these statutes[1342] was that of 1694 which imposed on all marriages a direct tax, graduated according to the rank of the parties. To facilitate the enforcement of the law the clergy were required to keep registers to which the tax collectors should have access. But there were certain churches which had long claimed to be exempt from the episcopal visitations, and therefore they now claimed to be free from the operation of the statute which had only made the marriage business of their incumbents more profitable by removing competition.[1343] A supplementary act was therefore passed in the following year,[1344] including such places and requiring that all marriages should be solemnized only after publication of banns or obtaining the bishop's license, under penalty of one hundred pounds for the first and three years' suspension from office for the second violation of the law by any clergyman.[1345] But even this measure was inadequate. It had not been foreseen that there were clergymen not comprehended under the titles "parsons, vicars, and curates" enumerated in the statute. These were actually benefited by the act.[1346] By connivance on the part of the regular clergy such ministers were able to evade the law. They "do substitute and employ," runs the act of 1696, "and knowingly and wittingly suffer and permit, diverse other Ministers to marry great Numbers of Persons in their respective Churches and Chapels without Publication of Banns or Licenses of marriage first had and obtained; many of which Ministers so substituted, employed, permitted and suffered to marry, as aforesaid, have no Benefices or settled Habitations, and are poor and indigent, and cannot easily be discovered and convicted of the Offences aforesaid: And whereas Ministers, being in Prison for Debt or otherwise, do marry in the said Prisons, many Persons resorting thither for the Purposes aforesaid, and in other Places for Lucre and Gain to themselves,"[1347] therefore the one hundred pounds' penalty prescribed in the former statute is extended to these cases,[1348] and a fine of ten pounds is imposed on every man married without banns or license.
The last paragraph of the above quotation is interesting as being perhaps the first statutory reference to the celebrated "Fleet" marriages, which constitute one of the most astonishing chapters that the history of ecclesiastical administration can produce. The Fleet, as is well known, was the prison in which formerly all prisoners for debt from the entire kingdom were, or could demand to be, confined. On account of the scant accommodation for the vast number congregated there, it became customary to allow those who could give security for appearance in the prison when summoned to take private lodgings or set up a private establishment anywhere within the "rules of liberties" of the Fleet—a portion of London of considerable area and well defined limits.[1349] The Fleet had a chapel with a regular chaplain of its own, who sometimes eked out his income through fees for fraudulent and clandestine marriages.[1350] But here were confined among others many clergymen, some of whom made a regular business of celebrating marriages; and they had to compete with other parsons, often disreputable men, perhaps deprived of their places or benefices for misconduct, who took up their abode in the precincts of the Fleet to gain a living from the disgraceful traffic in matrimony. Even laymen may have sought a share in the profits; and these, like the others, did not fail to wear the priestly "cassock, gown, and bands,"[1351] in order to impose upon the unwary. The ceremony was not performed in church, but in the private rooms of the parson. Often an office or marriage shop was opened and a big sign-board hung out announcing the business and commending the quality of service rendered within,[1352] while standing advertisements were also kept in the newspapers. The following notice of his business by parson Lando is quoted by Friedberg from the Daily Advertiser, 1749:
"Marriages with a Licence, Certificate and a Crown Stamp, at a Guinea, at the New Chapel, next door to the China Shop, near Fleet Bridge, London, by a regular bred Clergyman, and not by a Fleet Parson as is insinuated in the public papers; and that the Town may bee freed mistakes, no Clergyman being a prisoner in the Rules of the Fleet dare marry; and to obviate all doubts, this chapel is not in the verge of the Fleet, but kept by a Gentleman who was lately Chaplain on board one of his Majesty's men-of-war, and likewise has gloriously distinguished himself in defence of his King and Country, and is above committing those little mean actions that some men impose on people, being determined to have every think conducted with the utmost decency and regularity, such as shall be always supported in law and equity."[1353]
Pennant, in his Account of London, written "at the end of the last century," gives us a realistic picture of the Fleet parson. "In walking along the street, in my youth, on the side next to the prison, I have often been tempted by the question, Sir, will you be pleased to walk in and be married? Along this most lawless space was hung up the frequent sign of a male and female hand conjoined, with, Marriages performed within, written beneath. A dirty fellow invited you in. The parson was seen walking before his shop; a squalid profligate figure, clad in tattered plaid night gown, with a fiery face, and ready to couple you for a dram of gin, or roll of tobacco."[1354]
Moreover, various taverns, for the sake of the profit derived from the festivities connected with weddings, kept salaried Fleet parsons or others in their employ and made announcement of this extra accommodation also by a sign containing the businesslike inscription: "Marriages performed here."[1355] Literally thousands of marriages were celebrated by Fleet parsons every year. A single priest, John Gainham,[1356] between the years 1709 and 1740, during which he was confined, "solemnized" thirty-six thousand marriages, though he had many competitors.[1357] Not only the Fleet prisoners and the lower classes of the city, but many persons of noble titles and illustrious names are enumerated among their customers.[1358] The question naturally arises: What were the causes of this singular phenomenon? There were several inducements to the patronage of Fleet parsons, chief of which were the superior cheapness and avoidance of publicity.[1359] Smaller fees and no banns were required. Besides parental consent, which was indispensable for minors in regular marriages, was unnecessary in the Fleet. Moreover, it was a popular error of the times that a woman by marriage ceased to be liable for debts previously contracted.[1360]
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]
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]
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 livd 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 ye man and woman were exceeding vile in their behaviour."
"N. B. the woman was big wth child, and they wanted a Certifycate antidated; and because it was not comply'd with, they were abusive wth a Witness."
"N. B. the person belonging to ye house aloud me only 2s out of 8s."
"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 ye face very much."
"The woman ran across Ludgate Hill in her shift. 10s."[1377]
"N. B. A coachman came and was half married, and wou'd give but 3s 6d and went off."[1378]
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]
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]
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]
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]
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!
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.
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."
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]
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.
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]
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]
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]
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.