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

Two: In Parliament

Parliament had been aware of the problems surrounding clandestine marriages. The House of Lords, the highest appeals court in Great Britain, was particularly well accustomed to their dangers, as was Lord Chancellor Hardwicke, the head of the British legal system. The issue of clandestine marriages also touched the Lords in a more specific way, relating, as it did, to their ongoing concern for clear standards of descent and inheritance. It is hardly surprising, then, that contemporary accounts describe the Lords as being deeply troubled by an appeal they heard late in 1752. It was a Scottish marriage case, Cochrane v. Campbell, and it exemplified the “flagrant oppression”[4] that could result from the most egregious clandestine marriages.[5] Sources indicate that Campbell, a member of Scottish gentry, had entered into a consensual union, per verba de praesenti, with Miss Cochrane. Whether the couple ever set up a household together is unclear, but unlikely given that Campbell later wedded another woman, of higher social standing, in a more proper church ceremony. Thirty years later, after Campbell’s death, his first wife returned, claiming entitlement to his estate. Under civil and canon law, her marriage was binding and her claim was thus legitimate. Money was not the only thing at stake, however. The discovery of Campbell’s previous marriage bastardized his only children, forcing substantial legal and social challenges on them.

The Lords acknowledged the legal validity of Cochrane’s claim, but were scandalized by the injustice done to Campbell’s family. The case garnered attention outside the House of Lords, as well. “The public attention had been particularly drawn to the subject”[6] of clandestine marriage by its high profile. While they gave no indication of concern for public opinion, the Lords’ antipathy toward nonstandard marriages was bolstered by popular agreement. The House of Commons was apparently moved by the case, as well. When the Bill finally passed to them, months later, the Attorney General introduced his support by recalling the injustice of the original case:

the very Bill before us owes its rise to a most flagrant case that was this session brought before the other House: a gentleman had married a lady of family and fortune, had lived several years with her, and had children by her, yet after his death another woman laid claim to him as her husband, by virtue of a marriage solemnized between them before his marriage with the lady, whom he always acknowledged as his wife.[7]

The case “set the bad consequences of such marriages in so strong a light,”[8] that the Lords were moved to action. “Struck with the hardship of [the] case,”[9] Lord Bath brought the matter before the House, which voted one hundred to eleven[10] to order the twelve judges who sat in the House of Lords “to prepare and bring in ‘a Bill for the better preventing of Clandestine Marriages,’”[11] which they accordingly did.

The bill crafted by the judges was unsatisfactory. Unfortunately, neither the bill itself nor the specific measures it involved are mentioned in any of the conventional parliamentary histories, nor are the Lords’ discussions of it recorded. What is apparent is that their inadequate bill did more to advance marriage reform than could have been expected, since it was distaste for the judges’ bill which elicited Hardwicke’s interest in the matter. As chancellor, only the king, royal dukes, and the Archbishop of Canterbury outranked Hardwicke.[12] He was the highest-ranking judicial official in England and oversaw the guardianship of orphaned children. Hardwicke was in a key position to affect the success of the marriage bill. When the statute produced by the judges did not please him, he “undertook the task with great earnestness,”[13] crafting a new bill on his own. “The Chancellor brought in his own measure” before the Lords “on March 19, 1753.”[14] Thereafter, Hardwicke pursued the bill’s success personally, and his influence was felt throughout its tenure in Parliament.

The primary objectives of the bill were fairly straightforward.[15] From 1 January 1754 onward, only marriages performed in one of the pair’s parish churches, on a Sunday, by banns or license, officiated by an Anglican minister in the presence of two valid witnesses, would be legally binding. The process of publishing banns was to be standardized, and obtaining a license was to be made more difficult. Those under twenty-one years of age would need to obtain consent of their parents[16] or guardians. Perhaps most importantly, the publication of banns and the performance of a wedding were to be recorded according to a stated form in the parish register—a measure which, in and of itself, would have prevented the problems of bigamy that were highlighted by Cochrane v. Campbell. Penalties for violating the statute were to be harsh. Ministers who married people without proper publication of banns or by a valid license were subject to fourteen years’ transportation to America, and anyone who falsified marriage entries in parish registers was subject to death without benefit of clergy. The bill did not extend to Jews, Quakers, or the royal family, though it did apply to Roman Catholics and dissenters.

In the House of Lords, Hardwicke’s bill faced little opposition. Passage through the Lords was so easy, in fact, that the editors of the Parliamentary History chose to leave them out, despite including the Lords’ debates on every other bill during that session.[17] Other sources offer fragmentary evidence of the nature of discussion in the Lords, which appears to have been, with the exception of one or two peers, generally supportive. Lord Campbell spoke in support of the Bill, citing the necessity of protecting children from their own rash decisions: “It is of importance for the protection of minors that they should not be permitted to enter into this contract by their own mere fantasy, when they are wholly incapacitated to enter into others of the most trifling nature.”[18] His words illustrate one of the fundamental assumptions of the act’s supporters: that marriage ought to be primarily as a civil contract. As such, it should be treated like any other contract. The age of majority in Great Britain at the time was twenty-one. Campbell’s statement alludes to the fact that minors were prohibited from entering into all other contracts without parental consent. Marriage, according to supporters, was a contract with implications that spanned generations. As stakeholders, parents should have had the authority to prevent unacceptable marriages of their minor children. Others were unconvinced by such arguments. The Duke of Newcastle, Hardwicke’s former patron and the brother of the current Prime Minister, was ambivalent. Hardwicke’s response to Newcastle was virulent. Inappropriately so, according to Horace Walpole,[19] who had a personal distaste for the Lord Chancellor:

At the very beginning, on the Duke of Newcastle’s declining to vote in the
Bill, the Chancellor told Mr. Pelham, ‘I will be supported in this, or I never will speak for you again.’ As the opposition had at the time been inconsiderable, this breathed a little more than a mere spirit of obstinacy, and foretold a Bill to be framed not without an interested meaning.[20]

A few peers agreed with Walpole and viewed Hardwicke as overzealous. The Duke of Bedford was most vocal among them, claiming that “the Bill had been crammed down”[21] the peers’ throats. Sources reported that Bedford spoke against the bill on its second reading. Bedford “objected chiefly to the last clause on not extending the act to Foreign countries. The Chancellor replied, that he was sorry the clause was there; but the Bill was too good to be lost, and might have much good engrafted on it hereafter.”[22] Bedford’s attempts to persuade the peers failed, of course, and the bill passed easily in the House of Lords.

The bill was not introduced to the House of Commons until 7 May 1753. It remained in Commons for a month before being returned to the Lords with a few amendments. In the Commons, the bill met with more opposition than might have been expected, given its relatively easy passage by the Lords. The most outspoken critics of the bill were Robert Nugent, Charles Townshend, and Henry Fox.[23] Their arguments against the bill, for the most part, were concerned with its social implications. They criticized the bill as undue burden on class mobility, which they saw as intimately linked to heeding love above practicality in choice of spouse. They also warned that the law would have countless negative repercussions among the poor. Their attacks were not leveled against the bill’s faults as mere accidental or unforeseen consequences. They saw the law as blatantly unnecessary and unjust. Nugent summarized the general opposition to the bill succinctly, saying,

I could mention many other misfortunes that cannot be prevented by public laws, but must be left to the education, the morals, and the customs of the people; and this of clandestine marriages I take to be a misfortune of this kind. They are sometimes pernicious, but this law would be more pernicious than they ever can be, and it is most flagrantly unjust.[24]

Many members of the House of Commons opposed the bill on such grounds. In their view, its passage would represent Parliament’s usurpation of power over the private choices of citizens. Marriage was, according to such thinking, a moral and religious institution in which they had no reason to interfere.

Nugent was also the first Member to attack the bill as an impediment to social mobility. He envisioned a future where the ambition of parents brought inter-class marriages to an end, where the only weddings between nobles and commoners would match the children of peers in need of money with those of title-hungry wealthy merchants. According to his analysis, “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.”[25] Love, according to Nugent, is only strong enough to overpower ambition early in life: “by the time she comes of age, pride and ambition seizes possession of her breast likewise, and banishes from thence the little deity called love, or if he preserves a corner for his friend, it is only to introduce him as a gallant, not a husband.”[26] Nugent viewed this injustice as unacceptable and unavoidable under Hardwicke’s proposed act. He prophesied that “if this Bill passes into a law, no commoner will ever marry a rich heiress, unless his father be a minister of the state, nor will a peer’s eldest son marry the daughter of a commoner, unless she be a rich heiress.”[27] The inevitability of such social stratification was accentuated by its internationality. Indeed, Nugent saw class-consciousness as the primary motivation behind the Lords’ support for the bill. In his estimation, “the other House had some reason, and some sort of right, to agree to it, because they represented themselves and those of their own body only, and because, should the Bill be passed into a law…they will in a great measure secure all the rich heiresses in the kingdom to those of their own body.”[28] The House of Commons, if Nugent’s argument were extended, would have the right to disagree to the bill, since they are charged representing the nation as a whole, rather than simply their own class.

  Charles Townshend foresaw the same problem, but he presented his opposition to the bill in a different way. While he “drew a harrowing picture of a younger son prevented from marrying an heiress by a hard and unfeeling parent,”[29] he also argued for the merit of such matches. According to Townshend, marriages “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 thought the whole body of the people, and to prevent accumulating and monopolizing it into a few hands”[30] Townshend’s apprehensions may well have been unfounded, as “a year after the passing of the Act he showed these alarms to be quite unfounded by himself marrying a rich widow and coheir of the second Duke of Argyll.”[31] Widows were not bound either before or after 1753 to earn anyone’s consent to a marriage, suggesting that Nugent’s apocalyptic arguments were overzealous. The concentration of wealth would rely on marriages only occuring before the age of consent, which certainly was not the case. Parents’ ability to actively prevent a marriage ended when a child turned twenty-one. The average age of first marriage in 1750 was 24.9 among women and 26.2 among men.[32]

Nugent’s second argument against the bill was based on its elevation of the Church wedding—which, by virtue of its cost, was primarily available to the upper classes—to the singular valid form of marriage. His concern, though sincere, was patronizing. “Among the poor,” according to Nugent “marriage never was, or ever can be the effect of wisdom and foresight.”[33] It was not simply rashness, however, that accounted for the preponderance of clandestine marriages among the poor. Economy also played a role. In comparing the cost of a church wedding to a Fleet wedding, he concluded that “the difference in expense is not above 8 or 10 s. but this is sometimes near equal to the whole stock of the married couple, and consequently no wonder they should be for saving it.”[34] The inconvenience of publishing banns or acquiring a license (an additional cost) added to the ambivalence of the lower classes to church weddings. Nugent questioned whether the benefits of the act would outweigh its negative effects: “Shall we, for the sake of a few misfortunes to the rich and great amongst us, make any law which will be a bar to the lawful procreation of such sort of men in this country?”[35] In his critique of the act as an offense against the poor Nugent joined Townshend by indulging in ominous prediction, arguing that

this Bill, if passed into a law, will in a great measure prevent marriage among our laborious and industrious sort of people; and as to all our itinerant sort of men, it will render marriage almost impossible; for by this Bill a man must reside at least a month in one parish before he can possibly be married without a license, which hi is not perhaps able to pay for.[36]

No one in either House bothered to refute Nugent’s claims, though many supporters of the bill in and outside Parliament agreed with his concern over the prohibitive costs of licit unions. Many proponents of marriage reform therefore demanded that the price of a church wedding be lowered or abolished altogether.

The most vicious opposition in Parliament came from Henry Fox. Like Townshend, Fox had personal experience with clandestine marriage. Some have used this connection to pardon his attack: Fox “was supposed to feel very deeply on the subject, because he himself had run off with Lady Caroline Lennox, eldest daughter of the Duke of Richmond, and married her without the consent of her family.”[37] In his speech against the bill, Fox ridiculed it for an hour and a half” and characterized the bill’s author as acting only in the spirit of “pride and aristocracy.”[38] He tempered his attacks somewhat by the time he concluded by making “earnest declarations of not having designed to abuse the Chancellor, and with affirming that it was scandalous to pass the Bill.”[39] Hardwicke was not moved by Fox’s ‘earnest declarations.’ When the bill was returned to the Lords, Hardwicke responded to him in turn, characterizing Fox as “a dark, gloomy, and insidious genious, and engine of personality and faction.” He concluded his counterattack visciously: “I despise the invective, and I despise the retraction; I despise the scurrility, and I despise the adulation.”[40] Such bickering brought further attention to the debate at hand, and both men were criticized for their behavior. In Walpole’s eyes, the major problem with Hardwicke’s response was not his attack against Fox:

what offends still more (I don’t mean offends Fox more) was the Chancellor’s describing the chief persons who had opposed his bill in the Commons, and giving reasons why he excused them. As the Speaker was in the number of the Excused, the two maces are ready to come to blows. The town says Mr Fox is to be dismissed [from the Cabinet], but I can scarce think it will go so far.[41]

Hardwicke’s involvement with the bill extended across both Houses of Parliament. His influence was clearly felt in the Commons. Fox’s failed attempts to challenge that influence suggest just how powerful Hardwicke was at the time.[42] Opponents of the bill faced his wrath, which could be politically dangerous.

The bill also had supporters in the Commons. Attorney General Ryder was the most vocal. His arguments did not refute the allegations made by Nugent, Townshend, or Fox; like most of the supposed ‘debate’ over the Marriage Reform Act, Ryder arguments in support of the bill were entirely distinct from the challenges raised by its opponents. Ryder explored the problems that characterized the extant system of marriage, and offered the bill as an immediately available remedy. He alluded specifically to the problems raised by Cochrane, pointing out that “sometimes a clandestine marriage is set up after a man’s death, which was never heard of in his life time, and by an incontestable proof, which may by ways and means be obtained, his whole effects are carried away from his relations by the children of a woman whom he never acknowledges as his wife.”[43] According to Ryder, clandestine marriages were an outgrowth of the Catholic insistence on the divine nature of matrimony, which condemned secular regulation of the institution. As with all things papist, the prohibition of secular influence over marriage had to be purged: “Infinite mischiefs flow from this sanctity and indissolubility, which has been added to the marriage contract.”[44] The sanctification of marriage “is inconsistent both with the good of every society, and with the happiness of mankind in general. It is what the canon law itself does not do; for even by that law a marriage may for several reasons be declared to have been void from the beginning”[45] Ryder, then, saw Hardwicke’s bill as a legitimate extension of canon law, merely shifting control over the definition of marital validity from ecclesiastical to secular authorities. For Ryder, the problems inherent in the current system were the primary justifications for the bill, which would suppress iniquities that should never have existed in the first place. He depicted the bill as being

designed for putting an end to an evil which has been long and grievously complained of, an evil by which many of our best families have often suffered, and which our laws have often endeavoured to prevent, but always hitherto without success; and yet it is an evil which, one would think, should rarely happen, if we consider the duty and respect which children ought to shew towards their parents.[46]

Marriage reform, in the Attorney General’s mind, stood to correct an unacceptable situation. He justified it not on the grounds that his opponents were wrong, but that they were debating the wrong aspects of the bill. By ignoring the wider implications of marriage reform, the Attorney General offered his support for the bill without concerning himself with its effects on the general populace.

While Ryder staunchly supported the bill itself, he acknowledged the Chancellor’s particular interest in the cause.[47] During one of his speeches, he defended the bill as a reasonable extension of Hardwicke’s judicial approach to clandestine marriage: “the Court of Chancery has always deemed it a contempt of that Court to marry one of its wards without the consent of the Court, and has been in use to commit the offenders to prison for that contempt during the pleasure of the Court.”[48] Walpole was more skeptical of the Chancellor’s motives. He saw the Chancery as the bill’s “fountain and its destination”[49] He was particularly concerned with the ways in which the right of consent was given to guardians: “The new Bill enjoined an indispensable publication of banns, yet took away their validity, if parents, nay, if even guardians, signified their dissent, where the parties should be under age—a very novel power! —but guardians are a limb of Chancery!”[50] Ryder and Walpole knew the same facts, but while the former gave Hardwicke the benefit of the doubt, the latter accused him of an ambitious power-grab.

On 4 June, the Commons held its final debates on the Marriage Act, which persisted until three in the morning. In the end, Hardwicke’s bill passed by a vote of 125 to 56. Last-minute maneuvering had gained the chancellor several more votes. Captain Sanders, for example “had said that he would go and vote against the Bill, for the sake of the sailors, [but] was compelled by Lord Anson, the chancellor’s son-in-law and his patron, to vote for it.”[51] Two days later, Hardwicke presented the bill to the House of Lords for a final time. Parliament’s session would end the following day. That left virtually no time for the Lords to effect any substantive modifications to it, “a plain indication,” according to Walpole, “of the indigested manner in which a law of such importance was hurried on.”[52] In reality, the minor changes made in the Commons provided little interest to the Upper House. As before, the bill’s main opponent was the Duke of Bedford,  “who began to attack the whole Bill, was obstructed by the Chancellor, who would have confined him to the mere amendments.”[53] The Duke dropped the matter when he realized, finally, that he had little support in the chamber. Even with the bill on the verge of passing, Hardwicke felt compelled to speak in support of it a final time. During his oration, Walpole asserted, he did not speak “as he has been represented, in the figure of Public Wisdom speaking; but with all the acrimony of wounded pride, of detected ambition, and insolent authority.”[54] Walpole’s personal problems with Hardwicke make such characterizations dubious, but the Chancellor’s ruthlessness in dealing with Fox’s dissent lends some credibility to Walpole’s account.

In its final form, Lord Hardwicke’s Marriage Reform Act closely resembled his original bill. The most substantial change was a modification of the requirement for parental consent. Originally, those under age were required to obtain their parents’ consent to their marriage. As passed, however, the statute allowed a match as long as the parents did not register their opposition with the clergyman. Additionally, the date on which the act took effect was pushed back from 1 January to 25 March 1754.[55] Supporters continued to portray the bill as a direct response to Cochrane v. Campbell, but there were clearly broader motivations behind its passage. Hardwicke’s bill did not extend to Scotland, but it did not invalidate marriages celebrated there. That meant binding clandestine marriages could still be found just north of the England-Scotland border. Since the Cochrane case had originated in Scotland, the Marriage Reform Act would have had no bearing on the Lords’ decision of that case. Neither had the originating case provided any impetus for the act’s provisions for parental consent in the case of minors. It is obvious, then, that Hardwicke’s Marriage Act was not meant to correct for the injustices created by cases like Cochrane. The Parliamentary debates operated on an implicit understanding of the actual purpose of the act: the elimination of nonstandard marriages which ran counter to the standards of the nobility. It was this obscured goal which made discussion of the bill’s social effects so important.

Fleet weddings were probably the most visible form of clandestine marriage at the time. The debtors’ prison in the Fleet—an area in London between Westminster and the City along the north bank of the Thames—had too little space. In exchange for the payment of a deposit, supposedly ‘upstanding’ prisoners were permitted to rent lodgings in the neighborhood. Some of those ‘upstanding’ debtors were “degraded and profligate parsons ready, for a small fee, to marry all persons at all hours there, or to go when sent for to perform the ceremony in taverns or in brothels.”[56] The validity of such marriages was unquestionable prior to 1754. To the upper classes, though, they were the epitome of crassness. One Londoner, decades later, recalled the pre-Marriage Act Fleet with distaste:

In walking along the street [in the Fleet] in my youth, on the side next to this 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 a tattered plaid night-gown, with a fiery face, and ready to couple you for a dram of gin, or a roll of tobacco.[57]

The number of such weddings was not insignificant. While attacking the bill in the Commons, Nugent claimed that “at Keith’s chapel [in the Fleet] there have been 6,000 married in a year, whereas at St. Anne’s church, which is a very populous parish, and a very convenient church for private marriages by license, there are seldom above 50 marriages in a year.”[58] The extremity of this estimate, it is conceivable that Nugent (or Keith) was exaggerating the importance of the Fleet to the institution of marriage. There is no way to know for certain, which highlights a major problem with Fleet weddings: their ambiguity. Taverns and brothels—as much then as now—were not necessarily the best places to make major life decisions. Fleet weddings were recorded inconsistently, if at all. In the end, such marriages were easy to enter into, legally binding, and difficult to track. That the legislature chose to suppress them is therefore not surprising.

Less common but more feared were elopements. Some, of course, resulted in marriages in the Fleet. The place of the wedding was less important, though, than the choice of spouse. In the minds of a large part of the nobility and gentry, a child’s entrance into an undesirable union could be disastrous. In his speech supporting Hardwicke’s bill, Attorney General Ryder appealed to the members of the House of Commons on that basis:

How often have we known the heir of a good family seduced, and engaged in a clandestine marriage, perhaps with a common strumpet? How often have we known a rich heiress carried off by a man of low birth, or perhaps 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; and every gentleman must allow, that such misfortunes ought to be prevented, if possible.[59]

Such marriages may have suggested the possibility of social mobility in eighteenth century England. For the children of the upper classes, however, such mobility was in the wrong direction. Even after the passage of the act, there was nothing to prevent older children from choosing to marry below their parents’ expectations, who in many cases were bound to specific heirs by laws on entail. Elopement played no part in Cochrane. Nor did the Fleet. Both, however, were well known and widely distrusted abuses of the lax marriage laws. Their suppression was no doubt a goal of many of the bill’s supporters. They also formed the basis of many of the political and legal debates surrounding the act, which spilled out of Parliament soon after its passage.