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A Problematic Solution:
Three: Extraparliamentary Secular Reactions The Marriage Reform Act
was one of the best-known laws of its time. It, along with the Jews
Naturalization Act, received far more press than the sum of all other
Parliamentary legislation in 1753. The Marriage Reform Act also had a built in
mechanism that ensured its notoriety, as it was required to be “read in all
Parish Churches and publick Chapels by the Parson, Vicar, Minister, or Curate
of the respective Parishes or Chapelries, on some Sunday immediately after Morning Prayer” four times each year from
1753 to 1755. Both newspapers and magazines did a great deal to explain the Act
and its implementation, and to discuss its merits. Other Britons used different
methods of making their voices heard, publishing pamphlets arguing their stance
or petitioning to have the statute repealed. People recorded their reactions
more privately, as well, in diaries and personal correspondence. Broadly
speaking, commentary on the Act centered on three things: its motivations, its
effects, and its legitimacy. It highlighted the assumptions made—about gender,
social mobility, and the proper role of marriage in society—by both the act and
its commentators. Taken together, the extraparliamentary
discussions of the law communicate the misgivings that many had about the
far-reaching implications of the laws and the lengths to which supporters went
to defend it. Both the Whitehall Evening-Post and the Daily Advertiser[1]
published frequent reports about Parliament’s effort to end clandestine
marriages. Their reports rarely provide any real information, though they do
suggest that at least some portion of the Newspaper reports of the
Marriage Bill provide a skeletal outline of its development which, as we have
seen, was not nearly as impersonal and easy as it was depicted in the
newspapers of the day. The bill first appears in the Further evidence of the
focus on people rather than laws is offered by newspaper reporting during the
final weeks leading up to the Marriage Reform Act’s becoming effective. In the Advertiser, three reports appeared
tracking the Lord Chancellor’s brief illness. A week later two more appeared on
his visit to court, where he “was created Earl of Hardwick [sic.] and
Viscount Royston in the While newspapers offered
immediate information about the Bill and its contents, they provided little
commentary on it. In-depth discussion of the Marriage Act was reserved to more
substantial, less-frequently published periodicals. Monthly magazines, for
example, mixed news and letters with political, social, and artistic criticism.
In the months and years following the passage of the Marriage Act, these
monthly periodicals approached the subject on numerous occasions. Their treatment
the Act was often in response to other people’s writings—political, religious,
and literary—on the topic. Magazines also related events concerning the law in
greater detail than did contemporary newspapers. Occasionally, magazines even provided independent
commentary on the Marriage Act, as did the London
Magazine in August 1753. A brief article, occupying less than half of one
of the magazine’s sixty pages for the month, was published anonymously as
“Clauses proposed to be added to the late Act against Clandestine Marriages.”
It offered a satirical critique of Hardwicke’s meddling in the private lives of
British subjects. It was probably the most jovial criticism made against the
law: its primary goal was to hyperbolize the law’s inconveniences and to
portray is as absurdly restrictive. The list of proposed clauses included
disproportionately harsh punishments, extending what many felt were the already
reactionary punitive clauses of the act. For example, the article suggested
that “when a rich old fellow marries a young wench, in her full bloom it shall
be death without benefit of clergy”[14] and that “when a lady marries her servant, or a gentleman his cook-maid, (especially if there
are children by a former marriage) they both shall be transported for 14
years.”[15] Such punishments were actual consequences
invoked by the Marriage Act against those who altered marital record books and
clergy who knowingly performing invalid ceremonies. Still, the juxtaposition of
poor choices in regards to marriage with extremely harsh punishment is
questioned here. The article goes further, asking whether socially undesirable
marriages should be grouped with other forms of crime at all. The article
insists that “when two young thoughtless fools, having no visible way to
maintain themselves, nor any thing to begin the world with, resolve to marry
and be miserable; let it be deemed petty larceny.”[16]
While not a felony charge, the implication here is that grouping a poor choice
in marriage with even a crime such as petty larceny is inappropriate. The
article also suggested that “when a man has had one bad wife, and buried her,
and yet will marry a second, it shall be deemed a Felo
de se.”[17]
The benefit gained by the crown in this case is clearly unjust, as the author
no doubt felt actual provisions of the Marriage Act were. The Marriage Act is
represented as a case in which Parliament legislated beyond the boundaries of
strictly criminal behavior. Furthermore, examples such as this highlight the
misogyny that underscored contemporary ideas of marriage. Several months later, London Magazine published another critique of the Act. In this
case, it took the form of a set of questions about the propriety of legislation
on marriage. As with other published critiques, most of the questions were
aimed at the motivation, effects, and legitimacy of the statute. A few,
however, simply dismissed the need to legislate the matter, at all. The
Marriage Act is again depicted as an improper disruption of the social and
moral order established by the people.
Some questions, for example, asked “whether any truly worthy and
valuable part of either sex ever were joined by clandestine marriages in an
improper, unequal, or infamous match?”[18]
Many of the questions were taken up at various points by other authors. They
bear mention here primarily to introduce the issues seen as being at stake in
the secular debates over the Marriage Act. As to motivation, the article asked
“Whether the act for preventing clandestine marriages was not more immediately
calculated to gratify the ambition, vanity, and avarice of parents,
(exorbitances that want rather to be checked) and for investing them with a
power of making their families rich, rather than happy” and Whether this act was not calculated almost wholly
to serve the purposes of the great ones, without any regard to the convenience
and good of the publick in general, that in case the raking booby son of a
’squire or lord, under age, should, forsooth, marry a creature as worthles as himself; he might then, to gratify the vanity
and sordidness of a father, have his marriage anulled,
and be married again to a rich heiress, for the laudable purpose of making her
miserable by being joined to a worthless fool, or abandoned debaucher?[19] The
latter question, in particular, voiced a fear the recurred throughout popular
criticism of the law: that instead of protecting children from the threat of
being suddenly bastardized by a two-timing father, the Act would simply bring
about the same problem through different means. Other questions express concern
about female infidelity specifically, which would be fostered by the law. At
one point the article asked “whether a woman, compelled to marry a man she
hates, will not, with less scruple, and frequently out of revenge, gratify her
passion with the one she loves?”[20]
Another question focused on the long term effects of a law that fosters the
habits of unscrupulous women, asking “whether cuckolds, in a few years, will
not be reckoned an honourable order, and be ranked
amongst the great?”[21]
While concern was shown for the husbands of unfaithful wives, no question in
the article expressed similar sympathy for the wives of unfaithful husbands.
Children, on the other hand, are only occasionally considered, though they had
the most to lose by the discovery of a parent’s clandestine marriage. One last group of questions focused on the legal
theory behind the law rather than the personal motives behind it or the
difficulties in enacting it. These questions reflect a few of the many concerns
raised by legal scholars of the time. The theoretical debates between critics
and supporters of the Marriage Reform Act were more comprehensive and less
rhetoric-filled than other discussions of the law. The scope of questions about
the statute’s legitimacy was very broad. Some related to Parliament’s
interference in private contracts. The article asked, for example “Whether the
legislative authority can declare void and null a marriage vow, or indeed any
vow, that has nothing irreligious or immoral in the performance?”[22]
The suggestion that marriage was an entirely private institution in which the
government should avoid meddling was strongly defended by many of the law’s
critics. Unfortunately, they ignored the fact that there were very public
consequences of marriage, particularly where inheritance became involved.
Another type of attack against the act questioned “Whether a clergyman
solemnizing matrimony with a common license, price 1 l. 1 s. in any other place
than a church or chapel, is really in the sight of God, or judgment of any
sober, understanding man, more criminal and faulty than he that marries an any
other place than a church or chapel with a special licence,
that costs 12 or 14 l.”[23]
This question encompasses two other areas in which the act was critiqued. It
challenges the conflation of ecclesiastical and secular law, leaving the
question open whether marriage can fall under the jurisdiction of both. It also
appeals to reason by suggesting that variation in location or license may not
be enough to change the validity of a marriage. The new law, as we have
seen, was of particular interest to the upper classes. Their reactions,
however, were not so simply expressed as those
published in the press. Horace Walpole stood firmly opposed to the statute. In
a letter to Conway, he expressed the dismay of another member of the nobility,
though based on a different concern: “Lady Anne Powlett’s
daughter is eloped with a country clergyman: the Duchess of Argyle harangues
against the marriage bill’s not taking place immediately and is persuaded that
all the girls will go off before the next Lady Day.”[24]
Colonel Yorke is going to
be married to one or both of the Miss Crasteyns, nieces
of the rich grocer that died three years ago. They have £260,000 apiece. A
Marchioness Grey or a grocer, nothing comes amiss to the digestion of that
family. If the rest of the trunk was filled with money, I believe they would
really marry Carafattatonadaht—what was the lump of
deformity called in the Persian Tales, that was sent to the Cady in a
coffer?—and as to marrying both the girls, it would cost my Lord Hardwicke but
a new Marriage Bill; I suppose it is all one to his conscience whether he prohibits
matrimony or licenses bigamy.[26] Certainly, Hardwicke’s life was one of
amazing social advancement. To Criticism of the Marriage
Reform Act followed the same general classifications as the queries published
in London Magazine. Of those, attacks
on the motivations behind the statute were the most straightforward, the most
undeveloped, and the least refuted. The lack of debate surrounding the motives
behind the act is understandable. Attacks on Hardwicke himself were either
anonymous or published much later, and criticisms of the anathema with which
the upper classes viewed unequal matches were addressed so generally that no
single defender of the act must have felt compelled to rebut. Not surprisingly,
Other contemporaries
outside Parliament attacked the law as causing more harm than good. Some
acknowledged the difficulties that accompanied such marriages, but held that
since “there are many degrees between a breach in respect and an infamous
violation of duty”[32]
the Marriage Reform Act was unnecessary. Similarly, some critics questioned
whether clandestine marriages were a large enough problem to merit such
specific attention from Parliament: “Unsuitable matches in a country where the
passions are not impetuous, and where it is neither easy nor customary to
tyrannize the inclinations of children, were by no means frequent.”[33]
Critics did not stop by arguing that the act was unnecessary. Many went
farther, suggesting the new bill wouldn’t even prevent the evils against which
it was purportedly aimed: “The most disproportioned alliances, those contracted
by age, by dowagers, were without the scope of this Bill. Yet the new Act set
out with a falsehood, declaiming against clandestine marriages, as if they had
been a frequent evil.”[34]
It is amazing, in a
country where liberty gives choice, where trade and money confer equality, and
where facility of marriage has always been supposed to produce populousness,—It was amazing to see a law promulged, that
cramped inclination, that discountenanced matrimony, and that seemed to annex
as sacred privileges at birth, as could be devised in the proudest, poorest
little Italian principality.[36]
Many critics of the law shared The act had its
supporters, too, who steadfastly refuted the claims of critics. The months
which separated the publication of objections from that of rebuttals, however,
gave many of the act’s defenders the advantage of speaking from hindsight. One
author, who classified clandestine marriages as ‘demons,’ claimed that
Hardwicke “saved thousands from the misery and disgrace which would be entailed
by these extemporary thoughtless unions.”[38]
Another supporter of the Act criticized those who acknowledged “that such
marriages are productive of many mischiefs, and that
the suppression of them would be advantageous to society”[39]
but refused to support it on other grounds. He went on to claim that “scarce an
advocate was, till of late, found, who had courage enough to appear in its defence. This law has now been in force upwards of
twelvemonths, and it is now possible that experience may have dissipated the
apprehensions of these presupposed dangers.”[40]
His claim that the Bill had little support is necessarily suspect, given the
margin by which it passed in Parliament, but his claim about problems with the
law a year later are not contradicted by any contemporary source. Even those speaking before
the law took force criticized those who made grave predications about the
statute’s corollary effects. Such supporters frequently just dismissed the
prophecies of critics without directly addressing them: “As to the bad
consequences apprehended from it, they are, in my opinion, altogether
chimerical. There is not the least ground to imagine, that it will any way tend
toward introducing an aristocracy.”[41]
Of course, many critics in Parliament had offered specific ways in which the
statute may do so. Burrhus, as a member of a
political club, would have been well aware of the arguments raised in the
Commons against the Bill, but he makes no attempt to argue against specific
claims. Among the few who actually engaged in debate with the law’s opponents
was Joseph Sayer, who published his Vindication of the power of Society to annull the marriages of minors in direct response to
several arguments advanced by critics of marriage reform. Sayer
offered a standard against which the effects of the Marriage Reform Act could
be measured. He compared the preexisting abuses of matrimony to the
inconveniences imposed by the new statute: “It was agreed on all hands that
certain abuses had crept into this institution, and that, the old laws being in
some things deficient in others eluded, it was high time to put a stop to these
by a new one: yet was the utmost attention necessary that, so far as human
prudence could foresee and guard against it, no new inconvenience should
introduced.”[42] Sayer felt that the balance between prior abuses and new
inconveniences is a testament to Hardwicke’s success in crafting a good and
legitimate law. Those who debated the
legitimacy of the legal theory on which the Marriage Act rested put forth the
most nuanced arguments. The critics’ claims were based on rational thought
rather than projections of possible effects, and their rhetoric was beyond the
critique of the general population. Nevertheless, many outside their circle
felt that legal theorists were wasting their breath. John Campbell criticized
their efforts in his Lives of the Lord
Chancellors, first published in 1779, fifteen year’s after Hardwicke’s
death: “Instead of pointing out its real defects, which in practice were found
oppressive and mischievous, they absurdly denied the right of Parliament to
legislate on the matter.”[43]
It is not that Other
theoretical discussions of the law focused on its necessity, the general
ability of legislature to meddle in marriage, or the specific changes enacted
by the statute. Critics saw the law as limiting freedoms
without due cause. According to the anonymous ‘bystander,’ the legislature
ought to “be very careful to examine into the Propriety of every proposed
Alteration in the Laws, and will be more particularly cautious in creating new
Species of Felony, since nothing less than the highest Necessity, and most
evident publick Utility, can justify the multiplying penal or restrictive Acts
of Parliament.”[46]
Attacks of this sort assumed that the creation of a new law—particularly one
that restricted liberty—required explicit justification. In the absence of such
justification, the law was suspect. Other opponents felt that the amendment of
any law required substantial explanation: “a considerable part of the
perfection of political œconomy, consists in the stability of regulations once received,
and that every deviation from these not founded on solid reason, and on strong
necessity, is in itself an evil.”[47]
Such a belief does not entirely prohibit the modification of laws. It does,
however, require that such changes be shown as absolutely necessary to the
protection of the common good. The bystander felt that this was not the case
with the Marriage Act, which challenged one of the core aspects of freedom.
“Personal liberty,” he argued, “consists in the power of doing every thing we chuse that is not unjust, and suffers by ever
circumscription of the natural rights we bring into society: of these the most
ancient, and the most easy to prove is the freedom of choice in that union
which must have proceeded even the formation of families.”[48]
Opponents outside Parliament, like those in the Secular criticism of the
new law was not limited to direct written attacks. In several specific cases,
individual actions or sentimental recollections were offered to highlight the
injustices the act would propagate. One such example come
from the Another interesting case
came from the December issue of London
Magazine, which relates the story of a number of women who felt so strongly
about the Marriage Act that they banded together in protest. Their demands were
billed as “The humble Remonstrance and Petition of Several Spinsters of the How often has the cruel
spoiler, by a well-dissembled passion, by swearing that the priest should at
the holy altar join their hands, by sighs, and tears, and vows, and all the
soft, but strong artillery of love, forced the tender virgin’s heart, broke
thro’ the seal of virtue, cropp’d the sweet flower;
then fled, and left her to bewail the loss for life![54] Clearly, among those with
few physical possessions to bring to the marriage bed, virginity was a valuable
commodity. The Kentish women foresaw the Marriage Act as increasing the
frequency of fornication, to the greater detriment of young women than young
men. More complex criticism was
offered by a [1] The Whitehall
Evening-Post and the Daily Advertiser
were the only contemporary daily or semi-weekly [2] Ben Weinrob and
Christopher Hibbert, eds., The [3] Daily Advertiser ( [4] [5] Ibid., 1109, 20-22 March
1753, 3. [6] Ibid., 1118, 10-12 April 1753, 1. [7] Ibid., 1132, 12-15 May
1753, 3. [8] Ibid., 1141, 2-5 June
1753, 3. [9] The Daily Advertiser ( [10] Ibid., 7236, [11] Ibid., 7229, [12] Ibid., 7235, [13] [14] R. Baldwin, ed., “Clauses proposed to be added to
the late Act against Clandestine Marriages,” The [15] Ibid. [16] Ibid.. [17] “Clauses,” [18] “Queries relating to the late
Act for preventing Clandestine Marriages,” London
Magazine, vol. 23, January 1754, 68. [19] Ibid. [20] Ibid. [21] Ibid. [22] Ibid., 67. [23] Ibid., 68. [24] [25] [26] [27] Horace Walpole, Memoirs of the Reign of King George the Second, vol. 1, (New York:
AMS P, 1970), 337. [28] John Campbell. The Lives of the Lord
Chancellors and Keepers of the Great Seal of England, from the Earliest Times
Till the Reign of King George IV, vol. 5, 2nd American ed. of 3rd
British ed. (Philadelphia: Blanchard and Lea, 1851), 124n. [29] Richard Cooksey, Essay on the Life and character of of John
Lord Somers, Baron of Evesham: also sketches of an
essay on the life and character of Philip Earle of Hardwicke,
( [30] A Letter
from a bystander (subscribing himself J.H.), containing…objections to the Bill
now depending in Parliament for the better preventing clandestine marriages,
etc., ( [31] Considerations
on the Bill for Preventing Clandestine Marriages, ( [32] Ibid., 15. [33] [34] Ibid. [35] Horace Walpole, Letter to [36] [37] Letter from
a bystander, 8. [38] Thomas Pennant, Some Account of [39] Ralph Griffiths, ed., The Monthly Review, vol. 12, June 1755, 438. [40] Ibid., 439. [41] Afranius Burrhus qtd.
in [42] Joseph Sayer, A Vindication of the power of society to anull the marriages of minors entered into without consent
of parents or guardians, ( [43] [44] Considerations on the Bill for Preventing Clandestine Marriages, 3. [45] Ibid., 16. [46] Letter from
a bystander, 2. [47] Considerations on the Bill for Preventing Clandestine Marriages,
1-2. [48] Ibid., 27. [49] Adam Fitz-Adam, ed., The World. No. 25, [50] R. Baldwin, [51] Ibid.. [52] Ibid., 602. [53] Ibid. [54] qtd.
in [55] Thomas Turner, The Diary of Thomas Turner, 1754-1765, David Vaisey,
ed., (New York: Oxford U P, 1984), 116. [56] Ibid., 130. |