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The impact of the Clandestine Marriages Act: three case-studies in conformity

Published online by Cambridge University Press:  06 August 2008

REBECCA PROBERT  and
LIAM D'ARCY BROWN
REBECCA PROBERT
Affiliation:
Rebecca Probert, School of Law, University of Warwick.
LIAM D'ARCY BROWN
Affiliation:
Liam D'Arcy Brown, freelance researcher.
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Abstract

This article examines the extent of compliance with the Clandestine Marriages Act 1753 through three parish studies. It demonstrates that the vast majority of the sample cohort of parents whose children were baptized in church, and indeed of couples living together, had married in church as required by the 1753 Act, and shows how the proportion of marriages traced rises as more information about the parties becomes available. Through a study of settlement examinations, the article posits an explanation of why some marriages have not been traced, and argues that researchers should be cautious in inferring non-compliance from the absence of a record in a specific parish. It is also argued that the reason for such high rates of compliance has less to do with the power of statute and more to do with the fact that the 1753 Act was not such a radical break with the past as has been assumed.

Type
Research Article
Information
Continuity and Change , Volume 23 , Special Issue 2: SPECIAL ISSUE: PARTNERS IN BUSINESS? SPOUSAL COOPERATION IN TRADES IN EARLY MODERN ENGLAND AND THE DUTCH REPUBLIC , August 2008 , pp. 309 - 330
Copyright
Copyright © 2008 Cambridge University Press

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References

ENDNOTES

1 26 Geo II c. 33.

2 Save for Quakers, Jews and members of the Royal Family: see Sections 28 and 27.

3 Section 1.

4 Section 4.

5 Section 11.

6 Section 3.

7 Sections 3, 8 and 11.

8 Sections 14–16.

9 Section 8.

10 Roger Lee Brown, ‘The rise and fall of the Fleet marriages’, in R. B. Outhwaite ed., Marriage and society (London, 1981), 123.

11 T. Benton, Irregular marriages in London before 1754 (2nd edn, London, 2000), 30.

12 On the failure of previous attempts at reform, see R. B. Outhwaite, Clandestine marriage in England, 1500–1850 (London, 1995), ch 3. See also Leneman, Leah, ‘The Scottish case that led to Hardwicke's Marriage Act’, Law and History Review 17 (1999), 161–9CrossRefGoogle Scholar, on the case that precipitated the legislation.

13 For an analysis of the arguments, see Lemmings, David, ‘Marriage and the law in the eighteenth century: Hardwicke's Marriage Act of 1753’, Historical Journal 39 (1996), 339–60CrossRefGoogle Scholar.

14 On the validity of this belief see Rebecca Probert, ‘Common-law marriage: myths and misunderstandings’, Child and Family Law Quarterly (2008, forthcoming). The 1753 Act provided that contracts of marriage were no longer enforceable in the church courts.

15 See for example Outhwaite (Clandestine marriage, ch 2), who identifies no fewer than seven types of ‘clandestine marriages’, and Stephen Parker (Informal marriage, cohabitation and the law, 1750–1989 (Basingstoke, 1990), 27), who argues that there was a ‘plurality’ of marriage forms prior to 1754.

16 John Gillis, ‘Married but not churched: plebeian sexual relations and marital nonconformity in eighteenth-century Britain’, in Robert Maccubin ed., 'Tis Nature's fault: unauthorized sexuality during the Enlightenment (Cambridge, 1987), and see also his For better, for worse: British marriages 1600 to the present (Oxford, 1985), 219. The basis for his claims has, however, been challenged: see Probert, Rebecca, ‘Chinese whispers and Welsh weddings’, Continuity and Change 20 (2005), 211–28CrossRefGoogle Scholar.

17 See for example John Brewer and John Styles, An ungovernable people: the English and their law in the seventeenth and eighteenth centuries (London, 1980).

18 A failure to comply with formalities that are merely directory does not invalidate a marriage, but a failure to comply with mandatory formalities does.

19 E. Gibson, Codex juris ecclesiastici Anglicani (London, 1713), canon 62, 100–4.

20 Douglas Hay and Nicholas Rogers Eighteenth-century English society: shuttles and swords (Oxford, 1997), ch. 3; W. R. Cornish and G. de N. Clark, Law and society in England, 1750–1950 (London, 1989).

21 Outhwaite, Clandestine marriage, 139; Lawrence Stone, Road to divorce: a history of the making and breaking of marriage in England (Oxford, 1990), 64–5.

22 Schellekens, Jona, ‘Courtship, the Clandestine Marriage Act, and illegitimate fertility in England’, Journal of Interdisciplinary History 25 (1995), 433–44CrossRefGoogle Scholar; see also Peter Laslett, Family life and illicit love in earlier generations (Cambridge, 1977), 132.

23 G. N. Gandy, ‘Illegitimacy in a handloom weaving community: fertility patterns in Culcheth, Lancashire, 1781–1860’ (unpublished DPhil dissertation, University of Oxford, 1978), 21, 170.

24 See Peter Laslett, ‘Introduction: comparing illegitimacy over time and between cultures’, in P. Laslett, K. Oosterveen and R. Smith eds., Bastardy and its comparative history (London, 1980).

25 Snell, K. D. M., ‘English rural societies and geographical marital endogamy, 1700–1837’, Economic History Review 55 (2002), 262–98CrossRefGoogle ScholarPubMed.

26 Snell, ‘English rural societies’, 274.

27 Wall, Richard, ‘English population statistics before 1800’, History of the Family 9 (2004), 81–95CrossRefGoogle Scholar. For an example of a couple being economical with the truth, see Nicholson v Squire (1809) 16 Ves Jun 259; 33 English Reports 983.

28 As to which see for example Schellekens, ‘Courtship’; Parker, Informal marriage. For a discussion of the poor relief background, see Phyllis Hembry, Calendar of Bradford-on-Avon settlement examinations and removal orders 1725–98 (Trowbridge, 1990), xiii–xiv, and see generally Lynn Hollen Lees, The solidarities of strangers: the English poor laws and the people, 1700–1948 (Cambridge, 1998).

29 Section 8.

30 For example those relating to residence (in that a marriage could not be challenged on the basis that the parties had married in a parish where they were not resident) and registration (in that non-registration did not affect the validity of the marriage: see St Devereux v Much Dewchurch (1762) 1 W Bl 367; 96 English Reports 205).

31 See for example Diddear v Faucit (1821) 3 Phillim 580; 161 English Reports 1421.

32 See Probert, Rebecca, ‘The judicial interpretation of Lord Hardwicke's Act of 1753’, Journal of Legal History 23 (2002), 129–51CrossRefGoogle Scholar.

33 Gren Hatton, Kilsby: the story of a village (Rugby, 1989), 66.

34 Northamptonshire Record Office, Northampton, 1998/145, 186 P/1 and P/4.

35 Gibson, Codex, canon 112.

36 This was definitely the case for 27 of these 32 marriages, and may be the case for a further three of those who married in Lilbourne, whose marriages are recorded in the form ‘A. and B. of Kilsby’.

37 Snell, ‘English rural societies’, 277.

38 In addition to the 255 children born to these parents during the period under review, the couples in question had a further 136 children born outside this period.

39 Primarily Alan Clarke and Marilyn Ponting's electronic database, ‘The Northamptonshire marriage index, 1700–1837’, finished in 2004. We are also grateful to Gwen Wilkins, who is responsible for co-ordinating the Warwickshire Marriage Index, for allowing us to search both the card index and the electronic version.

40 A non-profit service sponsored by the Church of Jesus Christ of Latter-day Saints.

41 The three couples all had a son baptized in Kilsby in 1771 or 1772 but none of the men appear on the 1771 Militia List.

42 The marriage register records more subtle gradations of status, for example distinguishing between farmers, shepherds, husbandsmen and yeomen rather than classifying them all as ‘farmers’. There are also variations between the Militia Lists: that drawn up in 1777 employs different definitions from the 1771 and 1774 lists. For example, there is no separate category of ‘servant’ in the 1777 list, although (unlike apprentices) they were not expressly excluded. Four men classified as ‘servants’ in 1774 appear as labourers in 1777, which would explain why the overall proportion of labourers in the 1777 list is the same as that of servants and labourers together in the two earlier lists.

43 Bedfordshire and Luton Archives and Records Service, Bedford, P38/28/1. See David Baker, The inhabitants of Cardington in 1782, Bedfordshire Historical Record Society, vol. 52 (Ampthill, 1973), 5, on the way in which the list was drawn up.

44 Baker, Inhabitants, 12.

45 This includes one soldier's wife whose husband was absent and another woman whose husband had ‘elopeed’ (sic).

46 Some were resident with their parents; others had set up a new household in the parish. To exclude them from the study on the basis that they might not be typical would be out of step with most parish reconstitutions, which focus, for obvious reasons, on the reconstitutable minority who were baptized, married and died in the same parish.

47 Baker, Inhabitants, 18.

48 We were offered two versions (both drawn up for some reason by the same person in 1782) by the helpful archivists at Bedfordshire and Luton Archives and Records Service, who mentioned that Baker had not been informed of the second version.

49 William Tomas married Mary Stock at Great Gransden, in Huntingdonshire: Huntingdon County Record Office, HP 36/1/3/1.

50 Hembry, Bradford-on-Avon, xi.

51 Schellekens, ‘Courtship’; Alison Diduck and Felicity Kaganas, Family law, gender and the state: text, cases and materials (2nd edn, Oxford, 2005), 59.

52 Hembry, Bradford-on-Avon, 15.

53 Benton, Irregular marriages, 32.

54 He stated that he married Eleanor Dainton in the parish church of Bradford-upon-Avon. The register in fact records the marriage of Humphry Foard to Mary Banks on 29 October 1711 and that of Eleanor Dainton to Samuel Porch on 9 December, suggesting that the incumbent muddled these two couples up when writing up the marriages at a later date.

55 See for example Warwickshire County Record Office, Warwick, DR 296/46, 29 December 1733, 9 July 1735.

56 A wife took her husband's settlement on marriage, and legitimate children took their father's settlement. If the couple were unmarried, then the woman would derive no settlement through the man, and the children would be settled where they were born.

57 A thirteenth took place in the ‘English chapel’ in Aberdeen, but we have not been able to determine the location of this, nor that of the marriage that took place ‘in the kingdom of Ireland.’

58 Marriage registers are missing for Ston Easton (before 1813); Monkton Combe (1666–1792); Westwood (1754–1812); South Wraxall (1769–1778), and Woolverton (pre-1837 register stolen).

59 See A. Newman, ‘An evaluation of bastardy recordings in an east Kent parish’, in Laslett, Oosterveen and Smith eds., Bastardy, 151.

60 Gandy, Illegitimacy.

61 Unfortunately it is not possible to make the same calculation for pre-1754 marriages as the register did not record any children as illegitimate between 1734 and 1754. This cannot, however, be attributed to there having been a looser definition of marriage before the 1753 Act, since earlier examples of children being recorded as illegitimate do exist in Kilsby.

62 Quoted in Edwards, W., ‘National marriage data: a re-aggregation of John Rickman's marriage returns’, Local Population Studies 17 (1976), 25–41Google ScholarPubMed.

63 J. S. Burn, The history of the parish registers in England (2nd edn, London, 1862), 40. By contrast, E. A. Wrigley and R. S. Schofield, in The population history of England, 1541–1871: a reconstruction (Cambridge, 1989), found that the percentage of months with defective marriage registration fell from 4.6 per cent in the first half of the eighteenth century to 0.6 per cent after the 1753 Act, but the parishes studied were chosen on the basis of the completeness of their registration.

64 Schofield, R., ‘Review of Clandestine marriage in England’, Journal of Economic History 56 (1996), 712–13, 713CrossRefGoogle Scholar.

65 On population mobility, see for example Long, Moira and Maltby, Bessie, ‘Personal mobility in three West Riding parishes, 1777–1812’, Local Population Studies 24 (1980), 13–25Google Scholar; Souden, David, ‘Movers and stayers in family reconstitution populations’, Local Population Studies 33 (1984), 11–28Google Scholar.

66 Wrigley and Schofield, The population history of England, Table A4.1.

67 See for example Hay and Rogers, Eighteenth century English society, 96, and see generally chapter 7.

68 Section 8. Merely marrying a couple who were not resident in the parish would not have this effect, although whether or not a clergyman was subject to ecclesiastical censure in this situation remained a moot point: see the discussion in Wynn v Davies (1835); 1 Curt. 69; 163 English Reports 24.

69 See Wigmore's case (1707) Holt KB 460; 90 ER 1153; Haydon v Gould (1711) 91 English Reports 113.

70 See Emsley, Sarah, ‘Radical marriage’, Eighteenth-Century Fiction 11 (1999), 477–98, 486CrossRefGoogle Scholar; O'Connell, L., “Matrimonial ceremonies displayed”: popular ethnography and enlightened imperialism', Eighteenth-Century Life 26 (2002), 98–116, 99CrossRefGoogle Scholar.