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

Four: Religious Reactions

In his 1938 History of English Law, William Holdsworth called Lord Hardwicke’s Marriage Reform Act the “most important enactment in the sphere of ecclesiastical law”[1] during the eighteenth century. Even a cursory reading of the act affirms its concern with establishing the role of religion in the now fundamentally civil institution. Throughout its text, the statute asserts again and again the responsibilities of clerics when performing marriages. Embedded deep within the law, however, are also several clauses which stripped Ecclesiastical Courts of previous power. Both the regulation of individual ministers and the modification of the Church’s independent power could have been reasonable sources of angst amongst Churchmen. The law affected the clergy—parsons and bishops alike—in a more direct and more frequent way than it did their secular neighbors. Drawing conclusions from religious sources is dangerous. Extant evidence is fragmentary, at best. What does remain, however, indicates that opinions among ecclesiastics varied as widely as among lay subjects. Perhaps the most notable feature of religious reactions was their source: the most vehement objections were raised not by ordinaries of the Church, but by their subordinate ministers. Full comprehension of their arguments against (and occasionally for) this controversial law requires an understanding of both the ways in which the Act affected different levels of clerics and the relationship between ecclesiastical and secular power at the time.

The implications of the Marriage Act were broad and widely felt. Later historians have generally agreed that the statute was a critical turning point in the development of both ecclesiastical law and civil marriage law in Britain. The specific ways in which the law altered the Church of England’s involvement in marriage, though, can be gathered from the text of the act itself. It decreed that “no Licence of Marriage shall, from and after [25 March 1754], be granted by any Archbishop, Bishop, or other Ordinary or Person having Authority to grant such Licences”[2] without first complying with a number of new restrictions. The restriction of licenses was a major intrusion on the prerogative of bishops, who had been used to exercising complete authority over the standards of marriage in their respective dioceses. A notable exception, however, was made for the Archbishop of Canterbury: “Provided always, That nothing herein before contained shall be construed to extend to deprive the Archbishop of Canterbury and his Successors, and his and their proper Officers, of the Right which hath hitherto been used…of granting Special Licences to marry at any convenient Time or Place.”[3] More intrusive were the statute’s effects on ecclesiastical courts. It enacted “That in no Case whatsoever shall any Suit or Proceeding be had in any Ecclesiastical Court, in order to compel a Celebration of any Marriage infacie Ecclesiae, by reason of any Contract of Matrimony whatsoever, whether per verba de praesenti, or per verba de futuro.”[4] Similarly, ministers who transgressed the act were to be tried not in their diocesan courts, but in the civil justice system, of which Hardwicke was the head. In general, the act shifted the line that divided mere sin from crime. By redefining marriage as a primarily secular institution, the Marriage Act took what would have been a sin and described it in terms of criminality. The shift in description carried with it a change in the jurisdiction over such behavior—to the benefit of the Lord Chancellor. In truth, though, the removal of marriage cases from ecclesiastical courts was a logical outgrowth of the most fundamental alteration made by the act: replacement of the spiritual basis of the institution of matrimony with a civic basis

Later writers have had the benefit of hindsight, but contemporaries also considered the repercussions the law would have on the autonomy of the Church of England. Horace Walpole felt the law limited clerical prerogative excessively. While discussing the requirements of the law in his Memoirs, Walpole asserts “so close did conjugal law clip the wings of the prostrate priesthood” that “persons solemnizing marriages, without these previous steps, were sentenced to transportation and the marriage was to be effectually null.”[5] Walpole’s characterization of the priesthood as prostrate to the whims of the state seems apropos, given the ways in which their discretionary authority was legislated away without their input. The ministers affected by the act, however, did not universally share his opinion. A ‘clergyman in the country’—whose epistolary reactions to the new marriage law were published anonymously in 1754—acknowledged the prevalence of views similar to Walpole’s, but doubted their accuracy:

I find it is a pretty common Opinion that this Act was leveled against the Clergy, subjecting them to very severe Penalties, Transportation, and Death; and to dishonour them in their Congregations by obliging them to publish the Sentence against themselves four times a Year. If it was so intended, it was certainly very unkind of the Legislature, and I think I may say it was undeserved by the Clergy. And for these Reasons, if I had no other, I would suppose, both in respect to the Legislature, and in Complaisance to my own Profession, that this Opinion, how common soever, is a Mistake.[6]

While his good faith in pastors was poorly placed, he (probably unintentionally) hit on something about Parliament that others missed. If the debates recorded in The Parliamentary History of England are any indication, those supporting the bill aimed to clamp down on the behavior of certain ministers, but their anger was not aimed at the priesthood generally. The anonymous country parson chose not to take the law as a personal attack, since he recognized that personal interest in preventing clandestine marriages—which had the potential to be very dangerous to their powerful families—provided a more realistic explanation for the law’s existence.

Later scholars had more considered critiques of the Marriage Act. Their perspectives, strengthened by the lengthy period which separated the authors from the law itself, often spoke to its religious consequences. In Samuel Wilks’s 1864 criticism of Banns, he argued not that that the Marriage Act had inappropriately restricted access to clandestine marriages, but that it had stripped local ministers of their ability to prevent such matches. He held that “The Hardwicke Statute left the clergy almost powerless to prevent clandestine marriages by Banns. When they had asked the names of the parties, and where they were living, and how long they had lived or ‘lodged’ there, they were at the last link of their tether.”[7] Perjury on the part of the married couple could not be investigated further by the parson, leaving him powerless to prevent an illegal marriage. Neither could evidence of such lies be raised in later judicial hearing concerning the marriage:

after the solemnization of any Marriage, under a Publication of Banns, it shall not be necessary in support of such Marriages to give any Proof of the actual Dwelling of the Parties in the respective Parishes or Chapelries wherein the Banns of Matrimony were published…nor shall any Evidence in either of the said Cases be received to prove the contrary in any Suit touching the validity of such Marriage.[8]

One of Hardwicke’s descendants, Philip Chesney Yorke, offered an opinion on the religious consequences of the act in his three-volume work on the life and correspondence of his most famous ancestor. According to him, it was through the Marriage Act that “the state removed marriage entirely out of the jurisdiction of the Church and placed it within its own, though while it did so, it was careful to recognize and retain not only the religious, but the Anglican, sanction.”[9] It was the law’s effective balance of these shifts in power over marriage that assured its success. The twenty-six Lords Spiritual in the Upper House did not object to its passage substantially enough to merit mention in contemporary sources. It was through the duality of simultaneously limiting and enhancing the role of the Church of England in the regulation of matrimony that the statute “did not arouse ecclesiastical opposition or hostility, and that it received the support of the whole bench of Bishops.”[10] While their power to regulate marriage was diminished, the Church would actually participate in more weddings. Perhaps the potential for increased orthodoxy was more important to the Lords Spiritual than was the lost authority.

Walpole reported the bishops’ consent to the legislation on 28 May 1753. He praised their restraint, but attacked the limits placed on them as unreasonable and bullheaded: “The Churchmen acquiesced in the Legislature’s assuming this power in spirituals…but however commendable the moderation of the Clergy might be, the Pontific power arrogated by the head of the Law [Hardwicke], and his obstinate insisting to enforce a statute, by no means calculated or called upon by general utility, was most indecent.”[11] According to Walpole, Hardwicke had usurped power from the Lord Archbishop of Canterbury—who, along with King George II, was one of two Britons who outranked the Lord Chancellor. Walpole himself was generally antagonistic towards the powers retained by the Church of England; his antipathy towards Hardwicke and his Marriage Act, however, seem to have superceded reservations about Ecclesiastical prerogatives. More than two centuries later, Norman Sykes offered a slightly different interpretation of what Walpole called the acquiescence of the bishops. According to his analysis, “The bogy of ‘Church Power’ might be a useful weapon for Lord Hardwicke to brandish…but the reality of lay power over the church was a fact beyond dispute.”[12] He pointed out that Thomas Herring “styled himself to his friend Hardwicke as ‘a very insignificant and pusillanimous man’”[13] when he acceded to the Archbishopric of Canterbury in 1747. No available contemporary source recorded the dissent of any bishop in Parliament. Indeed, the only mention of such dissent is an uncited argument made by an historian in the twentieth century that Bishop Isaac Maddox of Worcester “supported the attempts, generally regarded as a prelude to repeal, to postpone the operation of the 1753 Marriage Act.”[14] Given the realities of secular versus religious authority at the time, it is not surprising that upper levels of the Anglican Hierarchy did not raise their voices against the most recent usurpation taking of their power.

The ebb and flow of London politics did not bind other members of the clergy. The vast majority of contemporary debate over the Marriage Act’s religious consequences came from them. The surviving evidence of their opposition often takes the same forms as did the opposition of secular critics. A few sources, however, communicate instances in which parish churches became a forum for opposition to the statute. On Sunday 4 November 1753, for example “when the minister of Kingston in Surrey, began (after prayers were over) to read the marriage-act, almost all of the congregation went out of the church.”[15] That this collective act of disobedience in a town about fifteen miles southwest of London found its way into the pages of Gentleman’s Magazine suggests that it was exceptional. More common, no doubt, were sermons relating to the law. One such sermon, given in an Oxford Parish the week before the act took effect, was published later that year. The Rev. Marshall Montagu Merrick’s opposition to the law was based on his perceptions of marriage and its place in scripture. The key distinction to understanding the basis of the marriage contract, according to Merrick, was “between God’s joining them, and joining themselves, or taking one another’s words, as the common Phrase is.”[16] State regulation of marriage was simply an extended form of the latter, in which the authoritative power of the marital contract is of human origin. To establish whether humanity was the proper source of that power, Merrick turned to the New Testament:

if it were of human Institution, our Saviour was not concerned in this Question of the Pharisees; for then the municipal Law of each incorporated Society was to determine in what Cases, a Man might put away his Wife; but if it were of Divine Institution, then our Saviour was concerned in the Question; and the Law of God was to determine it. And accordingly Christ refers them to the Law of God, for a determination of it.[17]

According to Merrick, human sanction was not a sufficient basis for the conjugal relationship. Instead, he claimed, scripture clearly points to the Godly origins of marriage. Summarizing his own argument, Merrick asserted that “Marriage is a Divine Institution, and Divine Institutions, as I have said, must have Divine Sanctions, and Divine Sanctions can only be given by those, that are Divinely commissioned.”[18] His sermon did not extend reasoning back to the origins of the Act, but the implications are clear. Hardwicke had, according to Merrick’s standards, defiled a divine institution by seizing it out of the hands of those commissioned to govern it.

Other clerics began where Merrick ended. They took the civil aspects of matrimony for granted but questioned the extent to which civil authority could regulate marriage without consulting those responsible for its spiritual aspects. Seeking to determine secular authority’s role in the definition of marriage, our anonymous letter-writing country clergyman explored the nature of matrimony—its bases and its performance. Through attempting to establish a religiously based threshold for the legitimacy of a wedding, he was attempting to establish the jurisdictional divide between religious and secular powers. He argued that “Encrease and Multiply is the Law on which it is founded.”[19] This religious foundation, however, did not preclude interference from society: “For the Encouragement of this State, the Civil Power has added some Privileges, such as, Dominion of the Woman’s Goods by the Man; Right of Dowry, to the Woman surviving; and Right of Inheritance to the Children.”[20] The premise was that, so long as the primary religious requirements were not infringed upon, the regulations enacted by Parliament were acceptable. The country clergyman went on to describe the three things necessary to the perfection of marriage: “first Ability, to answer the End of Matrimony. Secondly, Right of Consent, which effects it. And thirdly, Evidence, by which it claims Civil Privileges.”[21] Only the first had an overt religious or scriptural basis. He wastes little space explaining the particular requirements on the ability to procreate.

The country clergyman went to greater lengths in explaining the latter two, which were both significantly modified by the Marriage Act. One of the primary complaints against clandestine marriages stemmed from the absence of evidence available to prove their occurrence. Nonstandard, unsupervised methods of entry into marriage were cited as the source of innumerable injustices suffered by those surviving a contested marriage. Hardwicke’s response, however, did not simply standardize and enforce methods of recording marriages. It modified the right of consent. The country clergyman sought to justify such modification by combining elements of natural and civil rights. He began with an example. Those already married, he claimed, “being in the Power of each other, are not at liberty to dispose of themselves in Marriage again. Such Marriage is null, and the Offence made Felony.”[22] By beginning with a case in which most people would agree to the imposition of secular sanctions, he legitimized their existence in at least some form. Moving on to the under-age, his argument became less certain. Those under twenty-one, he said, naturally lack the right of consent. To some extent, the power of parents over their children “may be diminished by the Laws of Society; to which the Parent yielding and binding himself, does consent to emancipate his Children as they direct,”[23] but there were limits to society’s ability to liberate children from their parents’ rule. Granting to them the right of consent, for example, would be going too far: “these salutary Ends, would in great measure be frustrated, if young Persons as yet unform’d, and unable to judge for themselves, should be at liberty to engage in Marriage contrary to their Parents Consent.”[24] The reader is left to extrapolate how, precisely, the freedom of a nineteen-year-old to choose a spouse would frustrate the ‘salutary Ends’ of the social contract.

The country clergyman’s excursion into legal theory comes to a close with his return to religiously motivated contentions. One of his most notable arguments rested not on his interpretation of scripture, but on the fierce anti-Catholic sentiment of his fellow Britons. The Marriage Act, he asserted, was “agreeable to the general Sense of Mankind, and the Christian Laws before the Church of Rome had made Matrimony a Sacrament, and agreeable to the Judgment of our Reformers when they purged those Corruptions away.”[25] In reality, it was not simply sacramental marriage that he discounted as corrupt, but any marriage unregulated by the state. The political motivations behind this contention may well have been more pressing than the religious one. He closed his letter with a scriptural appeal to his fellow ministers: “we cannot, both in Compassion and Duty, too earnestly caution young People under our Charge never to contract Marriage without their Parents Consent. For in so doing they doubtless commit Sin, in violating the fifth Commandment at least, if not the seventh, and their Punishment will be severe.”[26] His conclusion added spiritual endorsement to the new law. Throughout his letter, he attacked the shield of sanctity that supposedly protected marriage from secular interference. After arguing for the legitimacy of the new act, he provided the modified idea of matrimony wit a similar shield.

It should come as no surprise that the country clergyman’s views were not shared by all clerics. No other extant religious sources include the degree of legal analysis provided in his letter. In a letter to the Bishop of London, a ‘gentleman of the Temple’ provides an alternative perspective on the balance of matrimony’s religious and secular roles. In short, he holds up marriage as a purely religious institution. It exists independently of the state, which has no right to interfere with its completion: “I look upon Marriage to be a most solemn Contract before God, declared before his Minister, and to which God is called as a Witness:—To him therefore are the Parties accountable for the Observance…These directions we are bound to obey; nor can any human Law dispense with, annul, or make the least Alteration in them.”[27] It would follow from the gentleman’s contention that the conflation of inheritance law with marriage did not diminish the latter’s divine sanction. If the practice of matrimony in accordance with Church teaching should interfere with secular regulation of inheritance, Parliament had only the jurisdiction to modify the ways in which property was transferred from one generation to the next. Indeed, if “Marriage is a right of Nature,” as he claims, then “where it is consistent with the Laws of God and the Constitution, it wants no License or Dispensation for its Celebration.”[28] Any regulation of marriage by the state, according to the gentleman, was inappropriate. At the close of his letter, the gentleman hinted at his practical reservations with the Marriage Act. He noted with concern the vulnerability of common pastors to punishment under the new statute: “the Person granting the License, and every Officer, &c. belonging to such Person, is to escape with Impunity: But I cannot help observing, the poor Minister, who marries in pursuance of this, is left to the Law, and no Care taken of him.”[29] His practical concerns, however valid, were overshadowed by his previous, grand pronouncements about the nature of matrimony.

At least one contemporary disagreed with the strictly religious version of marriage presented by certain clergymen. The satirical response, published anonymously several years after the bulk of Marriage Act discussions in the Monthly Review, illustrated the absurdity of taking God’s commandment that Abraham should ‘be fruitful and multiply’ as the sole legitimate authority on the purposes of conjugal union. In the spirit of Abraham’s charge, he suggests the passage of new statute radically altering the face of matrimony: “In order to people the earth more effectually, it would be necessary to establish a law by which all marriage-contracts should continue in force for five years only…All the Theologians in the world cannot prove the least impiety in this system, as marriage was instituted only with a view to propagation.”[30] Indeed, his proposal answered the demands of those who obstinately denied the purely secular aspects of marriage. The author, however, overlooked a simpler way of complying with the divine mandate for procreation (and used by Abraham to the same ends): bigamy. While his suggestion may not have been taken seriously by the legislature, it indicates that, while many accepted the religious origins of marriage, others did not accept those origins without question.

Among those most interactions to the Marriage Act came from the Rev. A. Keith. His chapel was among the most notorious in the Fleet, and he was the only parson mentioned by name during the Marriage Act debates in the House of Commons, and according to one magazine, it was Keith “against whom the bill was leveled for illegal marriages.”[31] Once the bill passed, Keith found his means of survival imminently threatened. He responded by publishing his Observations on the Act for Preventing Clandestine Marriages in mid-1753. In it, he provides a frank account of his experience as a minister in the Fleet:

As I have married many thousands, and consequently on these occasions seen the humours 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 &c. Now these people, if they had had the perplexity and procrastination appointed by the Act, would never have been married.[32]

Keith assumed that these hasty marriages were to the benefit of either the couple or society, and possibly both. Hardwicke and many of the statute’s proponents would have rejected that assumption. Regardless, Keith presented additional reasons for his opposition to the law. He claimed that “another inconveniency which will arise from this Act will be, that the expenses of being married will be so great, that few of the lower class of people can afford.”[33] Certainly, his concern here was not unique; it was shared in Parliament by Nugent, who cited Keith in his speech against the act in the House of Commons.

Keith had other avenues through which he attacked the law as well. He felt, for example that “the power here given by the Act to parents is altogether unscriptural,”[34] and he asks “all those who believe the sacred writings, to have been wrote by divine inspiration, as I sincerely do, [to] allow that this part of the Act is unreasonable.”[35] By citing scripture directly as an argument against the law, Keith differed from many of his contemporaries, who limited their arguments to assertions which could be substantiated logically. Keith also identified the Chancellor’s ambition as on of the law’s guiding factors. On reading Section XII of the law, Keith reported “wondering at the reason of its insertion, but coming to that which empowers upon petition to consent where obstinate guardians refuse, my surprise vanished.”[36] Keith felt that the new statute would force more petitions into the Court of Chancery, enriching Hardwicke at Keith’s expense, as it were. It was Keith’s personal interest in the Marriage Act that set his observations apart from those of other clergymen. Whether he liked it or not, he was tied in many peoples minds to Fleet marriages and therefore to the Marriage Act. He seems to have been aware of his symbolic importance in the fight over clandestine marriages: “The Reader will excuse me in saying, that this Act was Fashioned with a pure design of obstructing the glorious method I had taken of serving my country; if this had not been the case, why were not Flete [sic.] marriages (or as they are often stiled clandestine marriages) many years ago, before I came into Life, abolished.”[37] Attempts had indeed been made to do so, though they were certainly less well-known than Hardwicke’s success story, and it is possible that Keith might not have known of them.

Keith’s opposition to the Marriage Reform Act apparently varied between its passage and its taking effect. His initial reaction to its passage was reported to be extremely violent. Several months later, the Monthly Review reported that Keith was “at length so far reconciled to this new law, as to confess it a most happy even for supplying him with an independency in a few months; having in one day, from 8 in the morning ‘till 8 at night, married 173 couple.”[38] The day before the statute finally took force, Keith united as many couples as he could before fading into obscurity after its implementation. In many ways, Keith’s reaction to the law was comparable to that of many other churchmen. Despite personal opposition to the act, he acquiesced, knowing that resistance to government authority over that aspect of their lives was useless.