A Problematic Solution:
Responses to the Marriage Reform Act of 1753

One: Prologue

On 30 January 1649 His Majesty Charles Stuart, King of England, Scotland, France and Ireland, Defender of the Faith, was beheaded for treason, ending seven years of civil war. The remnants of Parliament soon abolished the office of king. For the next decade, Oliver Cromwell ruled over the Commonwealth of the British Isles as Lord Protector. Wielding near-dictatorial powers, Cromwell achieved innumerable constitutional and legal reforms. The legislative body which—against Cromwell’s wishes—continued to style itself Parliament was little more than an association of the Lord Protector’s allies. They supported his vision of reform almost without fail. Among their contributions to English legal history was the complete abolition of religious marriage. On 24 August 1653, “putting an end to all difficulties arising from defective registration”[1] of marriages, Parliament passed its first Marriage Act. The act, which declared “that only marriages solemnised before a Justice of the Pease would be recognised by the State,”[2] was a radical shift from the way marriage had been practiced under the Stuart monarchy and an additional responsibility on already overburdened Justices of the Peace.

The Commonwealth faltered within a few years of Cromwell’s death, and Charles’ exiled son was invited back from exile to take the throne. The restored Stuart monarchy scrapped the vast majority of Cromwell’s reforms, including the abolition of religious marriage. Once again, matrimony was governed by the Church of England Canon of 1604. While early seventeenth century canon law served religious interests well—making marriage easily accessible and accepting local customs as valid indicators of matrimony—it posed problems for secular authorities. A couple could contract a religiously valid (and therefore legally binding) marriage without any formal assistance or registration, making proof of union difficult in some cases. Questions of inheritance forced secular authorities to concern themselves with the institution of matrimony, though Parliament had no voice in regulating it. Over the next century, this system endured frequent attacks.

Clandestine marriages took countless forms. The descriptor clandestine was applied to any marriage performed outside a parish church or completed without the assistance of an ordained minister of the Church of England. Indeed, under canon law, “a valid marriage was constituted either by the mere consent of the parties, or by the presence of a priest in orders, at any time or place…without any registration or public act affording the means of knowing whether such a marriage had been contracted.”[3] Canon law did not require parental consent for the marriage of minor children, so long as the parties married were old enough to consummate their relationship. The acceptance of consensual marriage—matrimony achieved through the simple mutual consent of those married—is often seen as a remnant of Britain’s Catholic past. Indeed, the Anglican canon accepted such marriages per verba de praesenti or per verba de futuro. A valid (though practically tenuous) union could be entered either by claiming to marry someone (e.g. “I marry you”) or by promising future marriage (e.g. “I will marry you”) if that promise were followed by sexual intercourse. While the publication of banns or purchase of a license was nominally required, neither practice lent a marriage any greater legitimacy than the exchange of vows coupled with consummation.

In addition to accepting the validity of marriages created per verba de praesenti and per verba de futuro, the canon recognized the validity of unions entered into through idiosyncratic rural customs. It is difficult, looking back from the twenty-first century, to appreciate the regard in which local traditions were held. Their acceptance under canon law was more a matter of practicality than of endorsement. Provincial practices varied enormously in their complexity and in their strangeness. Among the most cited examples of a local form of communally-sanctioned ‘clandestine’ marriage is the practice of broomstick weddings. In 1919, an English anthropologist interviewed an elderly Welsh woman who recalled the practice:

A birch besom was placed aslant in the open doorway of a house, with the head of the besom on the doorstone, and the top of the handle on the doorpost. Then the young man jumped over it first into the house, and afterwards the young woman in the same way. The jumping was not recognised as a marriage if either of the two touched the besom in jumping or, by accident, removed it from its place. It was necessary to jump in the presence of witnesses too.[4]

This custom allowed for divorce, as well; the couple simply jumped over the broom on their way out of the house. Whether divorce under such local customs was widely practiced remains uncertain, though it seems unlikely given the community’s interest in maintaining the integrity of its constituent households. The struggle of authorities in London to standardize the process of marriage is hardly surprising, given both the variety of valid marriage customs in use and the demographic changes that were shaping the nation. Between 1700 and 1750, the population of England and Wales is estimated to have grown to 6.25 million, which the percentage of rural subjects dropped from 90% to 70% over the same period.[5] The average age of first marriage declined over the first half of the eighteenth century, as well. For women, it fell from 26.4 in 1700 to 24.9 in 1750. Among men, the number dropped from 27.5 to 26.2.[6] As a whole, these population changes altered the way those in London—particularly the London elite—came into contact with the lower class. Interaction in the metropolis would have increased the number of marriages across class boundaries, and would have increased the visibility of popular marriage customs as provincial peasants moved into town.

Daniel Defoe was a harsh critic of the marriage practices he witnessed among his contemporaries. In 1721, Defoe published Conjugal Lewdness, a Treatise concerning the use and abuse of the marriage bed. Not specifically addressed against clandestine marriage, his comments targeted unequal unions; the two phenomena were seen as going hand in hand by many leaders of the period. Defoe clearly expresses his disdain for the gentry’s intense focus on ‘quality’ marriages. He tells of a foolish (but not atypical) woman who, given the chance “would feign another Quarrel, and step out of his House too, and then she should be my Lord _____’s Daughter again, not my Lady _____, the Wife of a City Knight, which is much at one to her, as if she had been Mrs. _____, the Shop-keeper’s Wife at Winchester, or Mrs. Any-Body.”[7] Defoe reminds his readers that domestic accord should be the primary objective of any union, and that ambition for titles, insofar as it was antagonistic toward the happiness of a household, was a very concrete evil. Defoe rails against “matrimonial Whoredom” as the most lamentable of “the Fruits of unequal Marriages.”[8] Inequalities could be based in differences in class or wealth. He characterizes “Inequality of Blood” as “an Article of Matrimony which they, who would be thought to expect any Felicity in a married Life, ought very carefully to avoid.”[9] Desire to marry outside one’s class could lead to problematic, clandestine marriages. Defoe relates the story of a “Man pretending himself Quality, and a Person equal in estate; by which Craft a certain Kentish Lady of Fortune, was most exquisitely drawn in at once to marry a City Chimney-sweeper; and was forc’d to stand by it too, after she came to an understanding of the Bargain she had made.”[10] That bargain was indissoluble, and it thus became a constant source of strife for her and her family. Still, Defoe recognizes that unequal marriages had benefits, as well. He points out that “many noble Families, sunk by the Folly and Luxury of their Predecessors, are restored, by marrying into the Families of those that you call Mechanicks.”[11] The children of such marriages, “raised by their Merit, are not easily distinguished from some of the best Houses in the Kingdom.”[12] According to Defoe, however, such beneficial matches were vastly outnumbered by those resulting in the fearsome state of matrimonial whoredom, and he concluded that marriages between unequal partners were generally condemnable.

Eighteen years after Defoe’s warnings to those who would contract unequal unions, an anonymous author known simply as Philogamus (“Lover of Marriage” in Greek) published The Present State of Matrimony. In it he highlighted the moral perversions that endangered marriage. He attacked the ills of clandestine marriage—which he argued were the result of inappropriately lax laws governing the institution—as an outgrowth of women’s evilness. Like later reformers, Philogamus offered up a fundamentally gendered view of the institution of marriage. His arguments rest on an understanding of femininity as fundamentally sinful: “As Women were principally designed for producing the Species, and Men for other greater Ends: we cannot wonder, if their Inclinations and Desires tend chiefly in that Way. The great Concern of every Commonwealth, is to keep them within due Bonds.”[13] Laws relating to matrimony were, by his thinking, necessary primarily to restrain women’s lust. Philogamus presented history as a long string of events in which “ladies, both married and unmarried have brought innumerable Misfortunes on themselves and their Families, by too much indulging what they thought innocent Liberties.”[14] In modern times, he argues, those liberties had reached critical mass. Vice spread as a result of the increase in women’s liberty. The passions of women should have been controlled by their husbands. Philogamus, however, saw contemporary regulation of marriage as offering men no help in controlling their wives’ adulterous tendencies: “Neither is it in the Husband’s Power to hinder it, at least, here in England, in case she should be so inclined; on account of the promiscuous Liberty allowed both Sexes, by our innocent Ancestors.”[15] He characterized former legislators as characterized as neither wise nor foolish, but innocently unaware of the sinfulness of women’s nature. To counteract that nature, Philogamus concluded his critique of inadequate marriage laws with a call for change: “`Till therefore, the Governors of the Church, assisted by the Legislature, can find Ways and Means to put a stop to this almost universal Corruption of Morals, the Disorders of all States, particularly those of Matrimony, will, if possible, grow worse than they are.”[16] Clandestine marriage may not have been the only contemporary failure of the matrimonial state, but it was certainly a major failure. Philogamus saw the whole as in need of substantial reform.

By the time Henry Gally published Some Considerations on Clandestine Marriages in 1750, seven attempts had already been made to restrict clandestine marriage. Gally offered further reasons to do so by exposing what he felt were the grave injustices tolerated by accepting the legitimacy of clandestine marriages. His list of societal ills fostered by irregular marriages was long and redundant, but it highlighted the variety of problems that were attributed to such unions—some of which seem peculiarly unrelated to matrimony itself. Gally, for example, cites clandestine marriages as a threat to normal commerce: “Women in Debt may, on Purpose to skreen themselves from their Creditors, be married to Men, who, they knew, are at that Time married to other Women. And in this Case their Creditors cannot proceed against them to recover their just Debts till the said Marriages are, by Course of Law, set aside.”[17] Gally also criticized a lack of marital regulations for allowing the marriage of women against their consent. So-called kidnapped women lost “the Property of their Persons: which is the most valuable of all Properties…For Men, who are wicked enough to marry Women against their Will, will always be ready and able to produce Witnesses to swear that the Woman gave her Consent, and repeated her Part of the Office.”[18] The fear of a binding, nonconsensual unions was echoed by many contemporary critics of clandestine marriage. Others were motivated by concerns for the regularity of inheritance. Through the mere existence of clandestine marriages, “the Legality of Marriages, entered into bona fide on one Side, comes very uncertain; which is a great Injury to such married Persons; and the Legitimacy of their Issue becomes equally uncertain, which is a great Injury both to Parents, and to their Children.”[19] Gally saw these problems, among others, as easily solvable with stricter secular control of marriage. Such legislation would be appropriate evidence that “Society foresees and prevents all those bad Consequences which the Parties themselves don’t foresee; and which, if they cou’d foresee them, they wou’d certainly prevent themselves.”[20] Considering the ills cited by Gally, statutory reformation appears appropriate. Gally, however, neglected to address the most frequent manifestations of clandestine marriage, which had nothing to do with escape from debt, kidnapping, or inheritance. Later critics of marriage reform would rally behind these forms of nonstandard matrimony ignored by Gally after the Baron of Hardwicke set his sights on ending clandestine marriage.

The attacks leveled against clandestine marriages prior to 1753 encompass the same themes which would become more salient in the years following Hardwicke’s introduction of his Bill ‘for the better preventing of clandestine Marriages.’ It was critiqued and defended throughout the nation by people with vastly different understandings of act’s intentions. Tracing reactions to the act, several themes emerge. On both sides, assumptions were made about a range of issues—from gender roles and social mobility to the importance of love and the religious and secular purposes of marriage. Such assumptions often went unstated, but they informed the debate at every step of the way.