It is a belief almost universally shared that the Clandestine Marriages Act of 1753 gave parents absolute control over the marriages of their minor children, and that a failure to obtain parental consent rendered a marriage void. For almost seventy years this Act was in force, from its implementation on March 25, 1754, until it was repealed by the Marriage Act 1823. In this same period historians have discerned the rise of the affective family, characterized by marriage for love and by equality between all members of the family. The tension between these two ideas has resulted in some rather tortuous explanations being advanced in an attempt to reconcile affective individualism and parental power. But was the period between 1754 and 1823 as distinctive as has been assumed?
There are four key problems with existing accounts that portray this period as an historical anomaly. First, they over-emphasise change at the expense of continuity. The fact that the 1753 Act laid down more severe penalties for noncompliance with the requisite formalities than had previously applied has led commentators to underplay the extent to which marriage was regulated by both church and state prior to 1754. Yet the canon law that regulated marriage prior to the 1753 Act did prescribe certain formalities, and—most importantly for present purposes—stated that parental consent should be obtained before a marriage went ahead. Secondly, many accounts contain misunderstandings as to what the Act actually required by way of parental consent. It is clear that any hypothesis based on a misunderstanding of the basic provisions of the Act must be fatally flawed. Of course, the impact of any statute will depend on how it is used, applied, interpreted, and enforced. It is not sufficient simply to infer consequences from the statute-book. But the statute must be the starting point. Thirdly, the Act is viewed in isolation from other legal mechanisms, even those by which direct control could be exercised over marriage, such as conditions in restraint of marriage in settlements and wills, and the jurisdiction of the Court of Chancery in relation to the marriages of wards of court. Such compartmentalization of the law is acceptable—indeed necessary—in order to expound the legal principles that applied in a particular area. It is less satisfactory if the aim is to throw light on social relationships. In this case the law has to be considered as a whole. So often an apparent novelty has an unexpected legal precedent, or the closure of one option simply results in a rush to explore other legal possibilities. Finally, little attention has been paid to the solution that was eventually adopted in 1823, again ignoring important continuities in practice. In order to understand the extent to which the seventy or so years of the Act’s operation were distinct, we need to know what other legal options were available to parents to control the marriages of their children before, during, and after this period.
As well as knowing how control could be exercised, we also need to know who could exercise such control, and over whom. Again, the answer may vary according to the set of rules being considered: the canon law and statute imposed general rules, while individuals making a legacy dependent on marriage with the consent of specified persons could choose who was to exercise such control. Similarly, those parents who were exempted from the operation of the 1753 Act might have other means of control available to them. For example, the Act did not apply to Jews, Quakers, and members of the Royal family. The reasons for the exclusion of these three groups lie outside the scope of this article, but cannot necessarily be attributed to a policy that parents within these three groups should enjoy lesser control over the marriages of their children. Who might be subject to control also varied accordingly to context: under the 1753 Act, as under the canon law, the legal power of a parent to forbid a marriage ended when a child reached the age of twenty-one, but wills and settlements could—and sometimes did—specify that provision would be delayed to a later age. The effect of different methods of control might also vary according to class and gender: the class-specific nature of controls exercised through or as a result of property ownership are obvious enough, but it should also be considered whether the ostensibly neutral provisions of the canon law and the Clandestine Marriages Act differed in their impact across different sections of society.
In addressing the question of whether the 1753 Act was as drastic and as distinctive as has been assumed, it is necessary to locate it in both its legal and social context. This article will use reported cases to show how the ecclesiastical courts interpreted the 1753 Act, how the courts of common law and equity interpreted conditions in restraint of marriage, and how the Court of Chancery exercised its wardship jurisdiction. Cases have a dual identity as individual examples and as precedents for future cases. While there are obvious dangers in making generalizations about social practice on the basis of reported cases alone, the body of cases examined in this article does deepen our knowledge of what people actually did: how couples managed to avoid the requirements of the 1753 Act; whether, and on what basis, marriages made without consent were challenged; and what arrangements were made by the family elders to try to prevent marriages without familial approval. In addition, law has the power to impose its own reality, most immediately and obviously on the litigants before the court, but also upon the multitude of others who might seek to escape parental control or to regulate their affairs in a particular way. As precedents, reported cases have a wider applicability than the arrangements made by individual families. They are, after all, the background against which such arrangements were made. Not all families would chose to exploit the full range of legal possibilities available, but any arrangements would, among the propertied, be made upon legal advice and according to what was legally possible. Finally, reported cases offer more than a simple statement as to what the law was. They also offer an opportunity to analyze the reasoning of the judges, to understand the influences that led to a particular result being reached. The doctrine of stare decisis—literally, “to stand by things decided”—may have been gaining ground in this period, but novel points and conflicting precedents still provided ample opportunity for policy considerations to influence the outcome. Judges were both influenced by and able to influence social norms: their pronouncements are just as much a part of the social discourse of the day as are the diaries and fictional sources upon which the historians of the “sentiments” school rely.
Of course, it must be acknowledged that those who appear in the cases were hardly typical of the population as a whole, but this in itself provides an insight into the extent to which control over marriage varied by class. And the same objection could be made about existing theories about parent-child relations, which largely focus on the elite for the simple reason that more information exists about this section of society. The class and gender implications of the 1753 Act are further explored by considering how far an individual’s ability to evade parental control might vary according to that person’s status: demographic data and the living arrangements of young adults are examined to throw light on this issue.
It may be objected that the relationships between parents and children in the eighteenth century were too complex and subtle to be reduced to a legalistic analysis of the ways in which the law endorsed parental control. This I would readily concede: legal possibilities do not automatically translate into social practice. Parents had other, extra-legal ways of controlling the marriages of their children, both minor and adult. Opportunities to meet members of the opposite sex could be carefully monitored. During the lifetime of the parents, gifts and support might be withheld from children who had married against their parents’ wishes. Disinheritance was another option, and there was little that the child cut off without a shilling could do to challenge it. Nevertheless, I would argue that it is essential to have an accurate understanding of the legal options as a backdrop to any study of individual family relationships, simply because the way that a person acts cannot be fully evaluated unless we know what options were available to that person. If the legal options are misunderstood, then the theories constructed to make sense of them will be skewed accordingly. Thus the article lays the foundation for future work examining more indirect forms of control over marriage.
With these points in mind, this article will look first at the canon law that governed marriage prior to 1754, focusing on the period immediately before the passage of the Act. It will then examine the provisions and operation of the 1753 Act itself. The third section will consider two other situations in which direct control over marriage might be exercised: first, where a person’s entitlement to financial provision was stated to be contingent on their marrying with the consent of a specified person, and, secondly, where the child was a ward of court. It will show how these different methods of controlling marriage were intertwined, and how they influenced each other. The final section will show how the form of the legislation adopted in 1823 to replace the Clandestine Marriages Act was influenced by these other direct forms of control, and made explicit what had previously been implicit: that it was primarily the control of girls from propertied families that was at issue, rather than control over children generally.
(I) The Canon Law of Marriage: Control over Marriage before 1754
Analyses of the Clandestine Marriages Act often overlook the fact that marriage had been regulated by the canon law for centuries and that there was nothing novel about the requirements given statutory force in 1753. In effect, the 1753 Act gave teeth to the requirements of the canon law, which had required marriages to be preceded by the calling of banns or the obtaining of a licence, had stipulated where and when marriages should take place, and had directed ministers to keep registers. And, most importantly for present purposes, the canon law had required that parental consent be given to the marriages of minor children. In the case of a marriage by banns, parental consent was to be signified in advance: canon 62 of the 1604 canons prescribed that the minister was not to marry the couple “before the Parents or Governours of the Parties to be married, being under the age of twenty and one years, shall either personally, or by sufficient testimony, signify to him their consents given to the said marriage.” If this was not done, an irate parent could forbid the banns. Those who wished to marry by licence had to swear that they were of age or had parental consent, and were required to give security in support of such statements. Two witnesses were required to swear that parental consent had been obtained.
A number of factors explain why little academic attention has been paid to these pre-statutory formalities. First, lack of parental consent—or indeed the failure to observe the other canonical requirements—did not render the marriage void, merely irregular. Secondly, it has been widely assumed that the formalities stipulated by the canon law were honored more in the breach than in the observance, that clandestine marriages were common, and that the possibility of marrying by a simple exchange of consent would allow those who exchanged consent in private to preempt parental opposition. Such assumptions do, however, require considerable qualification.
It was indeed the case that if an underage couple could find an Anglican clergyman willing to marry them in defiance of their parents’ wishes the resulting marriage would be perfectly valid, although the parties would be vulnerable to ecclesiastical censure. The fact that a clergyman who flouted the canon law in this way risked suspension for three years inevitably limited the supply of clergymen willing to conduct the ceremony. In London the matter was easy enough: the parties could repair to the Fleet prison, where clergymen with no livings to lose had much to gain from marrying any couple who presented themselves to be wed. It has been suggested that over half of marriages in London in the decade immediately prior to the 1753 Act were clandestine. In the provinces, however, matters were more difficult, and couples might have to travel some distance to find an obliging minister.
But why was an Anglican minister necessary at all? One key reason was that only a marriage solemnized by an episcopally ordained minister conferred full legal rights on the parties. As one writer explained, “[t]he common law does not esteem a Couple who are betroth’d or espous’d, even by Words of present Time, to be so far Man and Wife, as to give either Party any Interest or Property in the other’s Lands or Goods, or to Legitimate their Issue, until the Marriage be solemniz’d according to the Rites of the Church of England.” For the propertied, the advantage to a contracted woman of retaining her own property, and the ability to make a will, was probably outweighed by the disadvantage of not being entitled to dower. Even those who lacked property would have had an incentive to ensure that they were married by an Anglican clergyman: under the Poor Law, a woman took her husband’s settlement on marriage, but if the marriage was not properly celebrated each member of the family would be sent to their own place of settlement if they fell upon hard times. Thus marriage before an Anglican minister was of importance across the social scale, although the ability to enter into such a marriage without parental knowledge would have depended largely on whether the individuals concerned were still resident under the parental roof, a factor that varied considerably according to both class and gender. Class was also an important factor in determining whether parents would survive until their children reached adulthood: the children of laborers were more likely to lose a parent by the age of sixteen than the children of farmers or craftsmen, but even among the elite around half of male heirs married after the death of their father.
Of course, if a couple contracted themselves by vows per verba de praesenti—i.e. words in the present tense expressing their consent to marriage, for example “I take thee as my wife”—the ecclesiastical court would enforce that contract, even in the absence of parental consent, and would require the marriage to be solemnized in church. Yet the possibility of preempting parental opposition in this way was limited by the fact that the contract had to be proved to the satisfaction of the ecclesiastical courts. If one of the parties was pressured by parents to deny the contract, there was little that the other could do unless he or she could produce written evidence or witnesses to the exchange of vows. The canon law did, however, attempt to ensure that evidence given in court was free from constraint, removing the defendant from the source of influence if persuaded that this was necessary for the truth to be told. Moreover, those who exerted pressure on a contracted party—persuading him or her to deny the contract, or to marry another—could be sued by the other party to the contract “in a Cause of hindrance of Marriage.” Enforcement of a contract in defiance of parental wishes was therefore possible, but only those who had adequate evidence of the contract, and sufficient perseverance, stood a chance of success.
It is clear that families did not always regard a contract, even one expressed in the present tense, as irrevocable. In Collier v. Moseley, in 1747, it was alleged that Elizabeth Moseley and Arthur Collier had “solemnly contracted in words of the present tense,” after which she had said, “now you are my own are you not,” and he had replied, “I am.” Yet when Elizabeth’s father refused to consent to the match she told Arthur that the marriage could not take place, and that he was not to think of her. The reaction of the woman’s parents in Mendez da Costa v. da Costa Villa Real was rather more dramatic: they “flew into a great passion,” demanded that their daughter cease communication with her suitor, persuaded her to give up lodgings and reside under their roof, and “hath ever since confined and kept a restraint upon their said daughter.” The suit to enforce the contract was unsuccessful in this case, as the court decided that it had been a conditional contract rather than one that was immediately binding.
It is clear that the requirement of parental consent played a role in the making of marriage even prior to 1754. It would be too much, however, to claim that the canon law enabled parents to exert effective control over the marriages of their minor children. The point is rather that the normative framework of the canon law required parental consent, and that those minors wishing to marry without such consent had to resort to evasive measures. As we shall see in the next section, the same could be said of the 1753 Act itself.
(II) The Terms and Operation of the Clandestine Marriages Act of 1753
There has been much discussion of the motivations of the legislators responsible for the 1753 Act, who are variously depicted as self-interested, intent on reinforcing parental power, or, alternatively, romantics who wished to stamp out the practice of marrying for money. One might have thought, however, that the sheer scale of the operation conducted in the Fleet prison in the 1740s would have offered ample justification for reform, convincing even those who were not previously persuaded of the need for regulation. Of course, channelling marriage into a standard form, under penalty of invalidity, did not of itself require that parental consent be made a prerequisite to a valid marriage, but since the requirements of the 1753 Act were modelled on the canon law, it would have been surprising if such a requirement had been omitted. In any case, explanations that link the Act to a desire to increase parental power do need to be modified in the light of what the Act actually required, as this section will go on to demonstrate.
First, however, we should note whose consent was required. The Act established a hierarchy of persons whose consent was required to the marriage of a minor. First was the minor’s father: if he consented the dissent of the mother was irrelevant, as was her approval if he dissented. A father’s control could extend beyond the grave, as he could appoint a guardian whose consent would be required. This, it should be noted, was not an innovation but followed existing legal practice. Only if the father was dead and had appointed no guardian was the mother legally entitled to give consent to the marriage of her minor child, and if she had remarried after the death of her husband she lost even this right. In the absence of any of the above persons, the consent of a guardian appointed by the Court of Chancery was sufficient. The Act also provided that the necessary consent could be deemed, if the Lord Chancellor so decreed, where the person whose consent was required was non compos mentis. In addition, the consent of a mother or guardian—but not a father—could be overridden by the same means if he or she was either abroad or unreasonably withholding consent. The legislators either did not wish to acknowledge that fathers could be unreasonable, or supported their right to be unreasonable in the circumstances.
The impact of these requirements was exacerbated by the demographic changes that occurred over the course of the century. Increasing longevity and earlier marriage meant that in the second half of the eighteenth century the majority of parents survived to see the marriages of their children. It has been estimated that only twelve percent of children born in 1741 would have lost both parents by the age of twenty-five, while the age at first marriage fell throughout the course of the eighteenth century, from an average of 27.6 for men and 26.9 for women in the first quarter to 26.1 and 24.7 in the final quarter. But this varied according to class. Within the peerage, men were likely to marry later, and women earlier: Hollingsworth, for example, calculated the median age at first marriage of those who actually married to be around 30 years for aristocratic men, and just under 23 years for the cohort of aristocratic women born 1725–1774. The likelihood of parental death would also have varied according to the class of the parties: longevity was greater amongst the upper classes. Moreover, the likelihood that a dying father would appoint a guardian whose consent was required would also have varied according to the class of the parties.
Yet while paternal control over marriage was certainly enhanced by the 1753 Act, it was still not absolute. First, parents who were not married to each other had no power either to consent or refuse consent to their minor child’s marriage. In Horner v. Liddiard, it was stated that such a privilege should not be given to “those who bear the title of parents as a title of discredit and disability.” Where the marriage took place by banns, this meant that there was no one who had the power to forbid the banns. Conversely, if the marriage was by licence there was no one who had the power to consent, in the absence of a guardian appointed by the Court of Chancery. This, however, would have affected only a small number: illegitimacy did increase during the eighteenth-century, but from a low base of approximately two per cent at the beginning of the century to only six per cent at the end.
Secondly, the territorial scope of the Act was limited, as it applied only to marriages that took place in England and Wales. Those who had the inclination and the resources could avoid the requirements of the Act by marrying outside the jurisdiction. In 1760, The Gentleman’s Magazine noted the elopement of an heiress to Guernsey and commented that “there are always vessels at Southampton to smuggle contraband goods into the land of matrimony.” Such ultramarine elopements did, however, have certain disadvantages: in addition to the cost, no bride “was ever known to reflect with satisfaction on her experiences in a slow sailing boat on the rough waters off Alderney and the Casketts.” Scotland offered an easier alternative, particularly for those living close to the border. At the beginning of the nineteenth century the Rev J. Barnes fulminated against the fact that in each year between sixty and one hundred couples withdrew from his parish of Berwick to be married over the border. The validity of a marriage celebrated in Scotland by an English couple was upheld in Compton v. Bearcroft, although the common-law courts continued to express their doubts as to whether a deliberate evasion of the law would result in a valid marriage. These methods of evading the Act were seen by some as a safety-valve, “without which,” according to one judge, “the purpose of the marriage act, though an exceeding good act, might have been questioned before this time, if there had not been so many ways to avoid the restraint put on the marriage of minors.” Still, unless the couple lived within walking distance of Scotland, it was an expensive option.
There was, however, a third way in which parental control could be evaded, less speedy but cheaper. Under the 1753 Act a marriage by banns was valid unless the parent or guardian of the minor—i.e. the person whose consent was required—had publicly expressed dissent in the church or chapel where the banns were published. Positive consent was not required if the marriage was preceded by banns, in contrast to the position if a minor married by licence. So, if parental dissent was expressed, the publication of the banns would be void and the marriage could not take place. But if no objection were made, the marriage could go ahead and could not later be impugned on the basis of lack of parental consent. Of course, one purpose of the 1753 Act was that couples should marry in the parish where they were known, and it had set out certain residential requirements to that end. Yet the force of these requirements was fundamentally undermined by the further provision that a marriage could not be invalidated on the basis that the parties did not actually reside either in the parish where the marriage had taken place, or in the parish where the banns had been called. The requirements relating to residence were, therefore, merely directory, rather than mandatory, and noncompliance did not affect the validity of the marriage. As a result, the marriage would be legal even if celebrated after banns without parental consent and in a place where the parties were not known. If the parents of the couple in question were unaware of their marriage plans they would have no means of objecting to the marriage.
Marriage by banns thus offered two ways of evading parental control. First, the parties might be living away from home and marry in the parish where they resided without informing their respective parents. Alternatively, the parties might try to marry in a parish where they were not known. To assume that this enabled young couples to evade the requirements of the Act would be to fall into the trap of equating legal possibilities with actual practice. In assessing the extent to which the provisions relating to banns enabled couples to evade parental control, we need to know what proportion of couples married by banns, and the likelihood of the banns being published without the parents knowing. Nor can we assume that the law affected all children equally: it is necessary to consider how far the availability of these two options varied according to class and gender. It is also necessary to ask whether there was any way in which a parent could challenge the validity of a marriage after the event, and to examine how the law was interpreted by the courts.
Although increasing numbers resorted to marriage by licence after 1753, the majority continued to marry by banns. The use of banns and licences did, however, stratify along class lines: one parish study found that husbandsmen, laborers, and small craftsman made up ninety-one percent of grooms marrying by banns, but under fifty percent of those marrying by licence; similarly, fifty percent of those brides who married by licence were the daughters of gentlemen and yeoman farmers, but only five percent of those who married by banns could be so described. The likelihood that the parties would be living away from home also varied according to both class and gender. Among the lower orders, children tended to move out at a fairly young age to work as servants or apprentices, rather than living at home until they married. According to Snell, the mean age of leaving home was 14.6 for male agricultural workers and 17 for female agricultural workers in the period 1700–1760. This fell to 13.9 and 16.2 respectively in the two succeeding decades, before rising again to 14.9 and 16.6 at the end of the eighteenth century. But for any given individual the likelihood of remaining at home would depend on the employment opportunities available. In one Bedfordshire parish in 1782, only twenty-two percent of boys aged between fifteen and nineteen remained at home, although seventy-one percent of girls of this age were still living with their parents, probably because of the availability of employment in lace making in that particular locality. As Wall has noted, “the varying requirements of service, parental ability to make use of the labour of sons and daughters, and greater male earning power generally make it difficult to predict whether sons would, or could, be retained in preference to daughters.” Of course, exit from the parental home did not guarantee that a child would be living sufficiently far away for news of his or her intended marriage not to filter back, but some children moved considerable distances. In Schofield’s Bedfordshire sample, for example, twenty-three percent had moved to the anonymity of London.
For those higher up the social scale, opportunities to live away from home were more extensive for males embarking on careers. Daughters tended to marry from home. Yet even those who lived at home might pay extended visits to friends and relations, giving them the opportunity to thwart their parents’ wishes. The novels of Jane Austen provide numerous fictional examples: Lydia’s visit to Brighton facilitates her elopement with Wickham, and Jane Fairfax becomes secretly engaged to Frank Churchill while living with friends. Real-life examples appear in the case law: in Wheeler v. Warner, Mrs. Warner had objected to her daughter visiting Wheeler’s family, observing “that she was aware of the attachment that existed between Mr Wheeler and her daughter; and that, if she was permitted to go to Birmingham, a marriage would be the consequence; but the testator said that he had promised his daughter she should go, and that he would not disappoint her.” The mother was ultimately proved right when the couple married without telling either set of parents. Thus at all levels of society there might be the possibility of marrying while away from home, but such possibilities were obviously far more extensive for those who had already established an independent residence away from their parents.
How likely was it that a couple would be able to elope from home and marry in a parish in which they were not permanently resident? If a couple had time, they might be able to establish a residence elsewhere, and so be legally entitled to demand to be married in that new parish. Matthew Boulton, for example, married his deceased wife’s sister in London, away from those who might have forbidden the banns. He later advised his friend Edgeworth, who was in a similar predicament: “say nothing of your intentions but go quickly and snugly to Scotland or some obscure corner in London … and there take lodgings to make yourself a parishioner. When the month is expired and the Law fulfilled, Live and be happy.” The marriage of Wickham and Lydia in Pride and Prejudice can be seen as exemplifying this type of evasive but legal practice. As Lydia’s uncle, Mr. Gardiner, muses upon learning of the elopement: “It is not likely that money should be very abundant on either side; and it might strike them that they could be more economically, though less expeditiously, married in London than in Scotland.” In some cases the authorities might have been complicit in the evasion: in Priestley v. Lamb the husband alleged that the clerk had told him that if he did not live in the parish he must take lodgings there. The Lord Chancellor refused to believe this and noted that “in any case it must have been an evasive residence, no longer than a week”—evasive of the spirit of the Act, but not of the letter, and ultimately not a ground for annulling the marriage.
In fact, there are numerous examples in the case law of couples marrying in parishes where they were unknown, against the wishes of their parents. Some clergymen were clearly more assiduous than others in checking the credentials of those wishing to be married. In Pouget v. Tomkins a couple had tried to marry in a more distant parish but this had been refused on the ground that they were not resident there. In that case the suspicions of the priest might have been raised by the evident social differences between the parties, a young lad of sixteen and his grandmother’s maid. Others, by contrast, clearly did not make adequate inquiries. A marriage could even be had without an actual elopement in towns and cities where there were numerous parishes, and where the news of the marriage would not filter back to the parents so easily. Many couples chose to marry surreptitiously in London. It should be noted that the Act provided that a minister would not be punished for celebrating a marriage by banns unless he had notice of a parent’s dissent—a significant protection for ministers, given that solemnizing a marriage in contravention of the Act could lead to transportation.
Altogether, then, marriage by banns in a parish to which the parties did not belong was a significant means of evading parental control. Just as minors who had wished to marry without parental consent before 1754 had sometimes managed to marry clandestinely, so too those minors who wished to evade the constraints imposed by the 1753 Act could, with a little ingenuity, find ways around the statute.
Did aggrieved parents have any redress? Any interested person could challenge the validity of the marriage, regardless of the wishes of the parties themselves, and parents were seen as having a special interest in the matter. But since lack of consent to a marriage by banns, or nonresidence in the parish where the wedding took place, were not grounds for annulment, parents had to find other ways of challenging the marriage.
One means of doing so was to argue that the banns of marriage had not been properly called. If the parties were trying to evade parental control they might, in addition to marrying in a more distant parish, disguise their names in order to lessen the likelihood of the news leaking back to their parents. In the wake of the Act, the courts had decided that the banns had to be called in the correct names of the parties, to ensure that the proposed marriage was brought to the attention of the community. In Pouget v. Tomkins, for example, the court seized upon the fact that the groom’s middle name (the name by which he was usually known) had been omitted. This was sufficient to invalidate the banns and, consequently, the marriage. The addition of a middle name invalidated the marriage in Green v. Dalton. Sir Christopher Robinson acknowledged that this did not entirely confound the identity of the bride, but as no evidence had been tendered he had been forced to conclude against the bona fides of the addition.
The approach of the courts in these cases can be seen as an attempt to plug the statutory loophole which marrying by banns could exploit. Clearly the judiciary were sympathetic to parents who sought annulments of the marriages of their disobedient children. Yet these cases need to be kept in perspective: they were relatively few in number, and the cost of bringing a suit would have persuaded many parents to accept the marriage as a fait accompli. And, of course, if the banns had been called in the correct names the marriage could simply not be challenged. It was only if the different name might have deceived the parent opposed to the marriage that the marriage would be annulled. In Sullivan v. Sullivan the bride had given her surname as Holmes. The evidence was that this was not done with any intent to deceive, but because she had believed herself to be entitled to that name, which had been her mother’s maiden name. Moreover, her parents had approved of the match and attended the wedding. The court pointed out that, had the parties been trying to conceal the marriage, they would have changed the groom’s name, since it was his parents who objected to the match. The marriage was therefore upheld. In general, the courts adopted a purposive approach to the interpretation of the 1753 Act, seizing upon slight defects to invalidate marriages that had been celebrated without parental consent but striving to uphold marriages that had been accepted by the families at the time and were only challenged at a later date. In this way the aims of the Act could be achieved without rendering marriages overly insecure.
So the evidence from case law enables us to build up a more nuanced picture of parental control over marriage before and after 1754. The change effected by the 1753 Act was not as radical as has been assumed: the freedom of minor children to marry as they chose was heavily circumscribed prior to 1754, and the law did not provide for absolute parental control over such marriages after that date. Nor, indeed, did parents necessarily exercise the powers they did have: relatively few of the reported nullity cases were instigated by parents, and the numerous cases brought by one of the parties themselves alleging that a marriage of long standing should be annulled on the basis that parental consent had not been given indicates that parents did not always challenge marriages celebrated without their consent.
It is clear, however, that the impact of the Clandestine Marriages Act of 1753 did vary according to the class of the parties. The poor tended to marry by banns, which, combined with the fact that many left home at an early age, meant that the 1753 Act had little impact on them, at least in terms of their freedom of choice. Moreover, their parents were unlikely to take expensive steps to annul the marriage. Those of a higher social status tended to marry by licence, for which positive parental consent, even if retrospective, was required, and to remain at home longer. Some managed to marry by banns, but their parents could afford to mount a legal challenge and the courts addressed their concerns by adopting a strict approach to such marriages. It can be argued that this differential effect was not accidental. By this means the Act managed to address both the desire of wealthy parents to control the marriages of their offspring, and the concern that strict regulation would discourage the poor from wedlock.
Yet those who possessed property had always had other means of compelling obedience to their wishes, for example by making entitlement to certain property dependent on marriage with the consent of specified persons. How did controls of this kind mesh with the law of marriage?
(III) Control through Property
Conditions in Restraint of Marriage
Across the entire period at which we are looking—before, during, and after the operation of the 1753 Act—parents could express their wishes about their children’s marriages, but without property such wishes had little persuasive power to bind. As Willes LCJ pointed out in Harvey v. Aston, “[I]f a parent should by deed or will restrain a child from marrying without the consent of another, without annexing it as a condition to a gift, no one could say that such a restraint would be of any effect in law.” The English Reports contain eighty-two cases decided between 1660 and 1824 in which the validity of such conditions in restraint of marriage was considered. While the sample is relatively small, it should be borne in mind that several events had to occur in order for such litigation to proceed. First, of course, there had to be a will or settlement imposing such a requirement; secondly, consent had to be refused; thirdly, the marriage had to go ahead without such consent; and, fourthly, there had to be the resources and willingness to mount a legal challenge to the subsequent refusal of the gift. It can reasonably be presumed that many cases never came to court.
Yet even taking into account the need for the parties to be able to afford the cost of litigation, the sums involved in these cases are strikingly large: in only one case was the sum at stake less than £100, in most it was over £1,000, and in a couple sums of £20,000 were in dispute. At a time when only one in five families enjoyed an income of more than fifty pounds per annum—the sum suggested by Langford as “the minimum at which it was possible to aspire to membership of the middling rank”—these were significant sums, indicating that these cases were generated by the propertied elite. Of course, this does not establish that those with lesser resources never made provision contingent on marriage with consent, but other studies have suggested that such conditions were rare lower down the social scale. Earle, for example, examined 181 wills from the early eighteenth century and found that only eleven of his sample of middle-class testators stipulated that provision would be affected if a daughter married without consent. But even if imposing a condition in restraint of marriage was a relatively rare practice that was largely confined to the elite, the practice is still worthy of attention—first, because it provided an extra layer of control upon the marriages of elite children, and, secondly, because it offered an opportunity for judges to express their views as to the legitimacy of such controls and thereby offers an insight into the normative framework of the law. So, what can we learn from these cases about the exercise of control over marriage?
First, who was exercising such control? In this context, that question splits into two: who imposed the conditions, and whose consent was necessary? The corollary of the fact that parental authority had to be backed up by property was that control could be exercised by other relatives or family friends who had property to leave. While most cases involved conditions imposed by fathers (and a few by mothers), there are also examples of provision being made by grandparents, uncles and aunts, and even brothers. Such provision might reinforce parental authority, since a grandparent might, for example, stipulate that the child should not marry without parental consent. But it was also possible that the consent of a third party might be made a prerequisite. Thus conditions in restraint of marriage did not simply reinforce the controls imposed by the general law but rather dispersed the potential for control among a wider range of persons. Usually the consent of more than one person was required, and these persons might be grandparents, parents, unrelated trustees, or even brothers. In contrast to the priority accorded to fathers under the 1753 Act, therefore, mothers and other women within the family could still exercise the power that property conferred, and were often nominated as the person whose consent was required.
This leads into the second question: whose marriages were subject to controls of this kind? The trend in the cases suggests overwhelmingly that such conditions were used to control the marriages of young women. Only four of the cases in the sample involved constraints of this kind being placed on males—i.e., less than five per cent—and two of these occurred towards the very end of the period 1660–1824, once the legitimacy of such controls had become embedded. It should also be noted that controls might extend beyond the minority of the young person in question. This was especially true in the later part of the eighteenth century. Not only did the courts reverse their policy of implying an age limit where none was specified, but parents imposed age limits for longer periods: in one case the daughter was not entitled to inherit until she reached the age of thirty, unless she married with the specified consents. Again, it is clear that exercising control over marriage through conditions of this kind could be a way of extending the degree of control available under the general law.
Of course, one needs to ask whether the sample is skewed by the accidents of litigation. Did sons have resources available to them that daughters did not, either through inheritance or employment opportunities, that made them less likely to litigate? Landed estates were more likely to pass to sons (or even remoter male kin) than to daughters. The extent to which the adoption of the strict settlement reduced parental flexibility in making provision for children has been much debated, but the position of younger sons would not have differed dramatically from that of daughters. Although sons were more likely to receive land as their portion than were daughters, this did not mean that they did not receive gifts of money as well. Moreover, the fabulous sums involved in some of these cases would have offered an incentive to anyone to litigate, regardless of the other resources available to them. It would therefore seem reasonable to assume that the clear trend in the case law was echoed in practice: that these types of conditions were largely used to control the marriage choices of daughters. Why this was so can perhaps be attributed to practical rather than patriarchal considerations: after all, on marriage a woman’s personal property would pass to her husband. The upper classes avoided this by executing a settlement upon the wife’s marriage whereby her property was held in trust for her. If the marriage was entered into without her family’s knowledge, there would be no opportunity to do so. A clause within a will or settlement that she was only entitled to provision if she married with consent went some way to addressing this problem: the unsuitable suitor might get the girl, but would not get the money.
This presumes that such conditions were actually effective—a point that has been doubted. But such doubts are largely due to the fact that commentators have focused on cases decided in the early eighteenth century. As this section will show, there was a shift in the way in which such conditions were regarded over the course of the century. In fact, the Court of Chancery became increasingly sympathetic to such conditions, influenced in no small part by the message that the 1753 Act had sent regarding the legitimacy of parental control of marriage. It is therefore necessary to pay close attention to the results and reasoning in the case law.
English law purports to oppose conditions in restraint of marriage, and hostility to general restraints was expressed in a number of cases in the period in question, but this is a context in which the number and scope of exceptions make one doubt which was the rule and which the exception. Prohibitions on marriage with a particular person were allowed, and provision might also be made contingent on marriage with a particular person. Whether a condition requiring the consent of a third party would be upheld depended on a number of factors. The matter was complicated by the fact that real property and personal property were subject to different rules and were administered by different courts in this period. The common-law courts had jurisdiction over devises of land, and held that conditions making provision dependent on a third party’s consent to marriage were valid. By contrast, the ecclesiastical courts, which had jurisdiction to determine the validity of wills dealing with personal property, held all such conditions void. The courts of equity, which shared jurisdiction over legacies with the ecclesiastical courts, debated which of these two approaches it should follow, but in the late seventeenth and earlier eighteenth centuries it inclined to the approach of the ecclesiastical courts and held that a condition requiring the consent of a third party was in terrorem only: intended to enforce compliance by threat rather than forfeiture, and therefore invalid and unenforceable.
Yet this rule was itself cut down by exception after exception. First, sums charged on land, or money directed to be laid out in land, were determined by the rules relating to real property. Secondly, a distinction was drawn between a condition precedent and a condition subsequent: a condition precedent had to be fulfilled, or else the estate would not vest, whereas relief might be granted against a condition subsequent. Thirdly, a “devise over”—i.e. a provision that another person would receive the money if the intended recipient married without the necessary consents—was seen as confirming that the condition was not merely in terrorem. As one judge explained: “suppose I devise to my daughter £1,000 on condition that she marry with her mother’s consent, with a devise over in case she does not marry with such consent; if the daughter does marry without her mother’s consent, a court of equity determines the devise over and the condition to be good, though the civil law says they are both void.” In such cases the legacy would be forfeited. One reason for this distinction was the concern as to who, in the absence of a devise over, would receive the property if the child forfeited it by an imprudent marriage: as one judge noted, “strangers, executors might run away with a great part of a man’s estate from his children.” It was clearly thought preferable that the disobedient child should receive the property over an unrelated executor—especially if the latter was the one who had refused consent.
So, marrying without consent would not forfeit a legacy which specified that the recipient marry with consent, unless the legacy derived from (or was to be used to purchase) land, or was construed as a condition precedent, or was subject to a devise over. Yet it should be borne in mind that clients are not in general interested in what the law does not allow, but rather in how it can be used to achieve their aims. If the law provided that a condition requiring consent to marriage would be upheld if there was a devise over, then it would be relatively simple to draft the will accordingly. It must also be remembered that the operation of these exceptions was of course dependent upon their interpretation by the courts. The willingness of the court to find that a particular stipulation was a condition subsequent rather than a condition precedent, its interpretation of what constituted a devise over, and its determination of when a valid consent had been given, were all affected by changing perceptions of the legitimacy of such conditions.
While it is possible to find judicial endorsements of parental control over marriage across the period under consideration, if the case law is viewed as a whole there was a distinct change in approach across the course of the eighteenth century. There was evidently declining respect among Chancery judges for the view of the ecclesiastical courts that marriage should be unfettered. Doubts were cast both upon the authority of the civil law (the basis of the ecclesiastical courts’ rule) and upon the justification for striking down conditions in restraint of marriage. Lord Loughborough LC was positively scathing, doubting:
whether so much respect ought to be paid to the rule of the Ecclesiastical Court, which is supposed to be derived from the civil law, and which I have recently had occasion to say I wonder was ever adopted in a Christian country…. The proposition of the civil law is very plain; but it turned upon local circumstances. All conditions upon marriage, without reasoning upon the effect or nature of them, were contrary to a positive law made in encouragement of marriage upon the peculiar circumstances of the Roman world at that time.
Descriptions of conditions requiring the consent of a third party as “odious” faded out as the century progressed: the last example appears to be Long v. Dennis, in 1767. The distaste expressed in earlier cases gave way to positive approval of such restraints. Lord Thurlow, as Lord Chancellor, opined that “some provisions against improvident matches, especially during infancy, or to a certain age, could not be thought an unreasonable precaution for parents to entertain,” and suggested that “every condition which does not, directly or indirectly, import an absolute injunction to celibacy” would be allowed.
The fact that conditions in restraint of marriage were increasingly perceived as “wise regulations” rather than “odious restraints” was reflected in the way in which they were interpreted. The definition of what would constitute a devise over became more generous, and therefore less favorable to legatees. By the mid-eighteenth century it was established that a stipulation that the forfeited bequest would become part of the residue constituted a valid devise over. The willingness of the court to find that the disputed condition was a condition precedent rather than a condition subsequent increased: in Scott v. Tyler, for example, Lord Thurlow noted that “the daughter having married at eighteen, improvidently so far as appears, and against the anxious prohibition of the mother, never came under the description to which the gift of £10,000 was attached.” And the same judge’s listing of those cases that would follow the common law rule—”[l]ands devised, charges upon it, powers to be exercised over it, money legacies referring to such charges, money to be laid out in lands”—showed just how often the Court of Chancery would accept the validity of conditions in restraint of marriage.
A further significant change occurred in the meaning of consent itself. In the first half of the eighteenth century the courts were relatively generous in deciding whether or not consent had been given. The tacit consent of those whose consent was necessary—for example in encouraging the courtship of the parties—was held to suffice unless approval in writing had been specifically required. Subsequent approval was also held to suffice. Once approval had been given, it could not be retracted even if the marriage had not actually taken place: Lord Hardwicke suggested that “withdrawing consent, after such encouragement, is a delusion on the young folks, and it is not to be imagined, after they had fixed their affection by such encouragement, they will be very easily induced to alter it.” Moreover, if the match was a suitable one the court might hold that consent should have been given.
By contrast, a harsher attitude emerges in the late eighteenth and early nineteenth centuries. The withdrawal of consent before the marriage took place was sanctioned, and subsequent consent was no longer sufficient. This was the case even if it was the original settlor who gave his approval: in Duffield v. Elwes the fact that the father was reconciled to his daughter after her elopement to Gretna Green did not alter the fact that she had forfeited her interest in the trust he had established for her benefit. Sir John Leach V-C commented that “I cannot consider that the subsequent kind usage of the father proves his approbation of the marriage.”
The approach of the Chancery court in holding that there was no consent in such a case might seem to conflict with the willingness of the ecclesiastical courts to uphold the validity of marriages where only subsequent consent had been given. The difference, however, is more apparent than real. The approach adopted by the ecclesiastical courts when a case was brought by one of the spouses trying to invalidate a marriage that had lasted for a considerable time was very different from their attitude to claims by parents that their rights had been infringed. Their attitude to infractions of parental power was quite as strict as those displayed in the Court of Chancery, but they had no desire to endorse a form of self-divorce.
As a final observation, a further shift occurred regarding the scope of a condition in restraint of marriage if no age was specified. As late as 1768 it was held that the restraint should only be operative until the age of twenty-one, on the basis that it was “very unnatural for a parent to impose a consent to marriage during his daughter’s whole life,” but fifty years later, in Lloyd v. Branton, it was held that no such limitation could be implied. And it would appear that parents themselves became increasingly willing to impose longer and longer restrictions: the few cases to state an age over twenty-one as the time of payment all date from the late eighteenth and early nineteenth centuries.
If we contrast the rules on conditions in restraint of marriage with the law governing entry into marriage, a number of parallels become apparent. In both cases, means of control existed in the first part of the eighteenth century but were strengthened over the course of the century, with the harshest decisions—whether holding that a minor mistake in the name would invalidate the calling of the banns if done with the intention to deceive, or deciding that a subsequent consent did not satisfy the terms of a condition—occurring in the early decades of the nineteenth century. As noted earlier, a condition would only be litigated if the intended legatee married without the specified consents: the very possibility of a case even coming to court might therefore depend on whether a marriage had been celebrated with or without the knowledge of those whose consent was required. It is perhaps no coincidence that the first rash of cases on conditions in wills occurred in the 1730s and 1740s, during the heyday of clandestine marriages in the Fleet prison, and the second in the 1810s, when fears over the extent of clandestinity led to attempts to tighten up the law relating to banns.
The passage of the 1753 Act did not immediately bring about a difference of approach to conditions in restraint of marriage. Some judges clearly felt that the fact that statute now endorsed tighter parental control over marriage justified a more tolerant attitude towards conditions requiring the consent of parents or guardians, but support for the one did not necessarily indicate support for the other. Nor were conditions requiring the consent of a third party only upheld where they replicated the restraints imposed by the general law: as we have seen, the consent of other persons, and for periods extending well beyond the age of twenty-one, might well be imposed in wills and settlements. But the fact that parents continued to impose conditions in restraint of marriage in the context of gifts to minor children even after the 1753 Act indicates that they were all too aware that their powers under the general law were not absolute.
The Wardship Jurisdiction of the Court of Chancery
The Court of Chancery had another role to play in controlling the marriages of minors: its consent was required for the marriage of a ward of court, and it was a contempt of court to marry a ward without such consent. But who precisely was affected by this constraint? Towards the end of the seventeenth century the court had begun to carve out a distinct jurisdiction as pater patriae—”father of the nation”—on the basis of a general right to protect vulnerable members of society delegated to it by the Crown, but despite such assertions it was still primarily concerned with the interests of those vulnerable members of society who were entitled to property. Indeed, it was not until 1847 that the court explicitly declared that it could act even where property was not in issue. But even the combination of minority and entitlement to property did not automatically give the court jurisdiction: only where the court itself had appointed a guardian for the minor, or where there was a suit before the court relating either to the minor or the estate, would the consent of the court to a marriage be required. If the minor was not under the care and control of the court, then it was not a contempt of court to marry him or her. A guardian appointed by the minor’s father could, however, seek the assistance of the court in preventing an unsuitable marriage: in such a case the court might decree that the ward could not marry without the consent of the court, and any person who did marry the ward without such consent would therefore be guilty of contempt.
As a result, an extra layer of control potentially existed over the marriages of minors who were entitled to property. Of course, the very circumstances that led to the appointment of a guardian might denote the absence of parents or other guardians, but by the midcentury it was held that the court had the power to act even if the minor’s father was still living.
What were the powers of the Court of Chancery in this context? As a first resort, the court could take preventative action to break off a match between a ward and a person deemed unsuitable: as one judge declared, “equity will interpose if there be only an apprehension that the infant will be married unequally.” The court acted as it thought a prudent parent would do in deciding whether a match was suitable. Family, fortune, and age were all relevant factors. In attempting to ensure that unequal marriages did not take place, the court could require that correspondence between the ward and the intended spouse cease, and that existing letters, particularly those containing promises of marriage, be given up. It could also transfer custody of the ward from one guardian to another, and require a guardian to enter into a recognizance—an obligation to pay a specific sum in case of default—that he would not permit the ward to marry without consent of the court. The vigilance of the guardian was no doubt stimulated in such cases by the fact that his money would be forfeited if the ward married without the court’s consent.
Further disincentives to marrying a ward of court without the consent of the court were provided by the punishment meted out to those who did so. As one judge ominously stated, it was notorious that “a court of equity entertains no greater jealousy of, nor shews more resentment against anything, than the unlawful marriage of infants.” The marriage would be a contempt of court whether or not the parties were suitable, and whether or not the spouse knew that the infant was a ward of court, although these factors might affect the punishment thought appropriate. The court had the power to confine the offending spouse—and indeed any others who had been instrumental in bringing about the marriage—to prison. In addition, if a female ward married without the consent of the court, the court would require that a settlement be made upon her, to protect her—and her property—against her husband. As with legacies that were contingent on marrying with consent, this practice ensured that property did not fall into the hands of unsuitable men.
The fact that the consent of the court was necessary, and that the parties were committing a contempt by marrying without such consent, must have prevented some marriages—but of course such cases never came before the courts. And despite such powers, marriages without the consent of the court did occur, and their validity could not be impugned on this basis. Lord Hardwicke—who was later to mastermind the passage of the 1753 Act—presided over a number of cases as Lord Chancellor and bemoaned the “misfortune [of] … the want of a sufficient law to restrain such clandestine marriages,” declaring that such marriages were “mischiefs that want the correction and reformation of the legislature as much as any case whatever.”
He was eventually to get his wish. But it quickly became apparent that the 1753 Act did not prevent runaway marriages and mésalliances by wards of court. Shortly after the passage of the 1753 Act, Lord Hardwicke was faced with a case in which an eighteen-year-old male who was entitled to a considerable estate had eloped to Antwerp and married there. Fortuitously, a bill was pending in relation to this estate, and the court therefore could claim jurisdiction. Clearly furious that the Act he had long fought for had not, after all, had the effect of preventing clandestine marriages, he held that the case required severe punishment to prevent a second attempt to evade the law: the wife was confined to the Fleet prison for several months. But others, undeterred, followed suit: the case law illustrates how some wards eloped overseas or to Scotland, while others took advantage of the possibility of marrying by banns in a parish where the parties were unknown. The court began to direct harsher punishments: by the early nineteenth century we find one husband being sentenced to the pillory, and reference being made to the possibility of a criminal prosecution for conspiracy.
The passage of the 1753 Act did, however, increase the likelihood that a runaway marriage would be void for failure to comply with the requisite formalities, and the court was therefore required to consider its approach in such cases. Any arguments that no contempt had been committed if the marriage was not valid met with short shrift: the attempt to marry, rather than the entering into of a valid marriage, was held to constitute a contempt. And it is possible to perceive a different approach to the marriage of female and male wards: a male could be freed from a mésalliance, which could be regarded as no more than an unfortunate entanglement; the reputation of a female, by contrast, would be dependent on her being validly married and the court would order that marriage should be re-celebrated if there were doubts as to its validity.
For present purposes, however, the significance of the wardship jurisdiction lies not merely in the light that such cases cast on the loopholes that existed under the 1753 Act, but in the way in which the court exercised its powers to order a settlement of the property of a female ward. Any hopes of acquiring financial gain from the marriage were likely to be dashed, although the severity of the court varied according to the circumstances of the case. In one case involving a marriage between a ward and the brother of her governess, the settlement ensured that neither the husband “nor any one belonging to him shall ever touch a shilling of that property,” perhaps because of the abuse of a position of trust. By contrast, in Bathurst v. Murray, Lord Eldon LC held that the husband should have some income: “there cannot be much expectation of happiness, where the husband has nothing, and the wife has the whole control over the property.” (The husband may have found the judge’s apparent concern for his marital happiness somewhat hollow, as he remained confined to the Fleet prison.) Within such variation, certain continuities in practice can be discerned. First, the tendency was for the property to be settled to the ward’s separate use: “[H]er husband can have nothing but what she chooses to give him, which is perfectly right under the circumstances.” Secondly, provision would be made for the children of the marriage—and of any future marriage, else the husband would effectively be “a purchaser of the wife’s fortune for the children of their marriage.” If there were no children, she would be entitled to make an appointment by will.
Why were these cases significant? The reason lies not merely in the fact that they added another disincentive to fortune hunters looking for a rich wife, or in the way that they illustrate the protective function of such controls, but also in the way in which they influenced the legislation that was adopted in 1823, as the final section will show.
(IV) The Marriage Act of 1823
The argument advanced so far is that controls over marriage existed before 1753, were not absolute even after the passage of the Clandestine Marriages Act, and were supplemented by other forms of control. There is, however, another aspect to the orthodox understanding that the period during which the 1753 Act was in force was distinctive, namely that such controls over marriage lapsed with the repeal of the legislation. But was this actually the case?
It is clear from the bills that were introduced into Parliament in the early decades of the nineteenth century that both the laxity of marriages by banns and the potential invalidity of marriages of minors by licence where the appropriate consent had not been given were perceived as a problem. A number of bills tried to impose mandatory residence requirements for the former and to uphold the latter where the parties had lived together for a specified period. It is equally clear that it was easier to criticize the 1753 Act than to find a workable alternative. The difficulties of reform can be illustrated by the fact that no fewer than three pieces of legislation were passed in 1822 and 1823. The eventual solution—as adopted in the Marriage Act of 1823—was to retain the basic structure of the 1753 Act, but to provide that a marriage would only be void if the parties “knowingly and wilfully” failed to comply with certain provisions. The purpose of this was to invalidate only those marriages that involved a deliberate flouting of the rules. In addition, in an apparently radical change of policy, lack of parental consent to marriages by licence no longer rendered such marriages void.
But how much difference did these changes make in practice? It has already been noted that, in the absence of parental opposition, the courts had been keen to avoid annulling marriages for trivial reasons when applying the provisions of the 1753 Act. One contemporary commentator, a proctor in Doctors’ Commons, noted that it was “difficult to anticipate any material variation,” at least in the principles applied to marriages by banns, as a result of the 1823 Act. This was borne out by the first case in which it was necessary to consider the new provisions relating to banns. Wiltshire v. Prince was remarkably similar to Pouget v. Tomkins. The minor, usually known as “Henry John,” married his parents’ 30-year-old cook—it is hardly necessary to add without their consent—and was described as “John” in the banns. The court held that there was sufficient evidence that both parties knew of the false publication of banns and declared the marriage to be void on the basis that both had “knowingly and wilfully” flouted the law. Similarly, in Tongue v. Allen, a schoolboy entered into a marriage with one Mary Allen, a 35-year-old widow who acted as the school housekeeper. The banns were published in his first name, “Edward,” rather than in his middle name, “Croxall,” by which he was more usually known, “and that this was done for the purpose of concealment and in fraud of the father’s rights, there can be no doubt.” The marriage was held to be void, the court noting that this was “precisely the case against which the legislature must have intended to provide.” Such cases would have been decided no differently under the 1753 Act, and the courts were clearly keen to interpret the terms of the 1823 Act in a way that preserved their power to strike down marriages conducted without parental consent if a minor error could be found.
Similarly, under the 1753 Act the courts had tried to restrict the weapon of nullity to those marriages by licence that had had no countenance from the family of the minor, although this had not always been possible. But the change effected by the 1823 legislation went further than simply isolating those cases in which minors had intended to flout the law. Lack of parental consent ceased altogether to be a ground for annulling a marriage by licence. But aggrieved parents were not left without a remedy. The Act contained provisions intended to dissuade fortune hunters from entering into secret marriages, stipulating that a person who obtained a licence by false oaths would not be entitled to any property as a result of the marriage: “in each and every such Case it shall be lawful for His Majesty’s Attorney General … by Information in the Nature of an English Bill in the Court of Chancery or Court of Exchequer, at the Relation of a Parent or Guardian of the Minor, whose Consent has not been given to such Marriage … to sue for a Forfeiture of all Estate, Right, Title and Interest in any Property which hath accrued or shall accrue to the Party so offending by force of such Marriage.” This provision applied only to the marriages of minors (widows and widowers excepted) and only if one party had brought about the marriage by knowingly, wilfully, and falsely “swearing as to any Matter or Matters to which such Party is hereinbefore required personally to swear” (which included the age of the parties, parental consent, their residence, and the lack of any impediments). The minor’s aggrieved parent had three months after the discovery of the marriage to inform the Attorney-General, who would then bring a suit in the Court of Chancery or the Court of Exchequer. Both courts had the power to order that the property that would have accrued for the benefit of the offending party should be settled for the benefit of the innocent party and any children of the marriage (or, if both parties were equally guilty of flouting the law, for the benefit of the children), “in such Manner as the said Court shall think fit, for the Purpose of preventing the offending Party from deriving any Interest in Real or Personal Estate, or pecuniary Benefits from such Marriage.”
The provision for the settlement of property was modelled upon the powers of the Court of Chancery in wardship cases, and made explicit what under the 1753 Act had been implicit: it was the marriages of those with property who made mésalliances that were the main concern. The inclusion of this provision illustrates the importance of looking at the legal controls over marriage as a whole. By looking at conditions in restraint of marriage and the attitudes to the marriages of wards of court we can see how these areas of law were influenced by the passage of the 1753 Act; we can also see how they influenced the law of marriage. The solution involving the forfeiture and settlement of property under the 1823 Act bore a striking resemblance to the practice of the Court of Chancery when dealing with the runaway marriages of its wards. But under the 1823 Act, the powers of the Court of Chancery to ensure that fortune hunters received no profit from their actions would not depend on the fortuitous fact of a particular minor being a ward of court.
So the 1823 Act should not be portrayed as a reform aiming at reducing parental control over marriage. Parents could still forbid the banns of marriage, and the way in which the court interpreted the new legislation meant that minor defects in the calling of the banns could still invalidate a marriage. The provision that lack of parental consent would no longer render a marriage void was aimed at addressing the problem exposed by the spate of cases that came before the courts in the 1810s in which the possibility of annulment on the basis of lack of consent was used as a means of ending long-standing marriages by one of the parties themselves. But where a marriage by licence was entered into without parental consent, there was the disincentive that any property accruing to the husband as a result of the marriage might be settled for the benefit of the wife and children.
An analysis of control over marriage that focuses solely on the terms of the statutes governing the celebration of marriage might well conclude that the period between 1754 and 1823 was distinctive in requiring parental consent to the marriage of a minor, and that the law was propelled from laxity “to undue severity and rigour.” Yet such accounts overlook the extent to which parental consent was required both before 1754 and after 1823. A careful reading of the statute also indicates that even while the 1753 Act was in force a lack of positive consent did not render a marriage void if celebrated by banns, while an analysis of the socio-demographic conditions pertaining at the time shows exactly how significant an exception this was in practice. The existence of such a loophole also explains why further constraints—such as conditions making provision dependent upon marriage with consent—were perceived to be necessary among the propertied classes. If we view the Act in the context of these alternative constraints, it is evident that attempts to control the marriages of minors did not begin in 1753 or end in 1823. Rather, there was a continuing search for an appropriate means of preventing mésalliances. It was, of course, only ever a minority who contracted mésalliances, as the high levels of class endogamy illustrate. But it was always a risk. The prevalence of clandestine marriages in London in the 1730s and 1740s illustrated that existing controls—whether through property or through requiring parental consent to marriage—were insufficient, leading to the passage of the 1753 Act. In turn its provisions were found not to prevent elopements and improper matches, requiring parents and other family members to continue to make provision dependent on marriage with consent. Finally, the 1823 Act drew on the practice of the Court of Chancery to ensure that those who did succeed in marrying a minor without parental consent could be prevented from benefiting from their actions.
A comparison of the ways in which the marriage choices of minors (and sometimes older children) could be controlled also illuminates the unequal impact of these different mechanisms. Some minors might find themselves subject to all three forms of control: that set out by the general law, that achieved by making provision dependent on marriage with consent, and that exercised by the Court of Chancery. The majority, by contrast, would not have been subject to any controls: marriage among the poorer classes was later, and their opportunities for marrying without parental knowledge greater. Overall, it was aristocratic females who were most likely to be subject to legal controls of this kind: they married earlier, had fewer opportunities for marrying without their parents’ knowledge, and provision for them was more likely to be contingent on an approved marriage. Of course, such constraints had a protective role, as appears most clearly in the context of the wardship jurisdiction of the Court of Chancery. But the distinction between protection and control may not be obvious to the person being protected.
Property could, however, confer power upon women as well as subject them to control. The position of a mother under the general law—both before and after 1754—was subordinate to that of the father. While the canon law referred to the consent of “parents” in neutral terms, the Court of Chancery held that a guardian appointed by the father’s will had priority over a mother with regard to the issue of consent to marriage. Even if the mother was appointed as a guardian, the court had the power to replace her with one deemed more suitable. But if a woman owned property, she could exercise control—albeit from beyond the grave—by making legacies depend on the recipient marrying with the consent of specified persons.
Of course, the controls discussed in this paper provided the bare legal mechanisms by which marriages could be controlled. The extent to which parents used them is another matter. The cases show that few parents directly challenged the validity of marriages but that conditions in restraint of marriage were used—and flouted—sufficiently often to generate a considerable volume of case law. More importantly, once we know that conditions in restraint of marriage were not only upheld but positively favored by the courts by the end of the eighteenth century, we can interpret the significance of their presence or absence from any given will or settlement, rather than assuming that such conditions were not included simply because they were not efficacious. The impact of legal controls on any given family would have been mediated by the degree of affection and the priorities of that particular family. What we can say is that the period between 1754 and 1823 was neither as drastic nor as distinctive as has been claimed. In the courts, the period appears to have witnessed, if anything, an increasing willingness to endorse attempts at parental control which did not cease with the passage of the 1823 Act. The willingness of courts to invalidate marriages that were challenged by parents, the increasingly accommodating attitude to conditions requiring consent to marriage as a precondition for receiving property, and the punishment of those who married wards of court without permission should be seen as a significant counterblast to the literary endorsements of romantic love.
Rebecca Probert is Associate Professor at the School of Law, University of Warwick <[email protected]>. I would like to thank Liam D’Arcy Brown, Gary Watt, and the anonymous referees for their helpful comments on earlier drafts. Any errors remaining are of course my own.</[email protected]>
1.ï¿½ 26 Geo II c. 32.
2.ï¿½ See, e.g., Lawrence Stone, Road to Divorce (Oxford: Oxford University Press, 1990), 124: “the bill copied Continental practice in making null and void all marriages of any sort made by a boy or a girl under the age of 21 without the consent of parent or guardian”; Alan Macfarlane, Marriage and Love in England: Modes of Reproduction 1300–1840 (Oxford: Basil Blackwell Ltd, 1986), 127: “the marriage of those under 21, not being widows or widowers, was made illegal without the consent of parents or guardians”; John Gillis, For Better, For Worse: British Marriages, 1600 to the Present (Oxford: Oxford University Press, 1985), 140; R. Trumbach, The Rise of the Egalitarian Family: Aristocratic Kinship and Domestic Relations in Eighteenth-Century England (New York: Academic Press, 1978), 107.
3.ï¿½ 4 Geo IV c. 76.
4.ï¿½ See, e.g., Lawrence Stone, The Family, Sex and Marriage in England 1500–1800 (London: Weidenfeld & Nicolson, 1977); Trumbach, The Rise of the Egalitarian Family.
5.ï¿½ Stone, Road to Divorce, 58, for example, suggests that although parental powers had been strengthened by the 1753 Act, parents were by that time influenced by affective individualism and did not exercise those powers to their full extent. This does not address the more fundamental point: why did Parliament pass the Act at all if affective individualism had already pervaded the mindset of the elite who dominated Parliament? Trumbach, The Rise of the Egalitarian Family, has attempted to provide an answer that reconciles the passage of the 1753 Act with his contention that the strict settlement reduced parental power. He argues that previous attempts to control clandestine marriages had been rejected by the House of Commons “primarily because younger sons were jealous of their right to run off with an heiress and by this means repair the disabilities that primogeniture inflicted on them” (71). The adoption of the strict settlement, however, freed children from the threat of disinheritance; the position of younger sons improved; it was no longer necessary to marry for money and became distasteful to do so. By such arguments he arrives at the somewhat counter-intuitive conclusion that “it was because romantic love had become so acceptable that the act was finally passed” (108).
6.ï¿½ Stone, Road to Divorce, 11; Eve Tavor Bannet, “The Marriage Act of 1753: ‘A Most Cruel Law for the Fair Sex,'” Eighteenth Century Studies 30 (Spring 1997): 233–54.
7.ï¿½ Royal marriages were subjected to statutory regulation in 1772. Quaker marriages were already subject to strict family and social control. R.S. Mortimer, “Marriage Discipline in Early Friends,” The Journal of the Friends’ Historical Society 48 (1957): 175–95. The ability of Jewish parents to control the actions of their offspring was subject to certain limitations. See Susan Staves, “Resentment or resignation? Dividing the spoils among daughters and younger sons,” in Early Modern Conceptions of Property, ed. J. Brewer and S. Staves (London: Routledge, 1995), 207. However, the standing of a Jewish father to challenge the marriage of his daughter was upheld in Goldsmid v. Bromer (1798), 161 E.R. 568, 1 Hag. Con. 324.
8.ï¿½ See, e.g., J. H. Baker, An Introduction to English Legal History, 4th ed. (London: Butterworths, 2002), 199.
9.ï¿½ M. Anderson, Approaches to the History of the Western Family, 1500–1914 (London: Macmillan, 1980), chapter 3. On the extent to which law formed part of the general education of the educated elite in this period see W. Twining, Blackstone’s Tower (London: Sweet & Maxwell, 1994).
10.ï¿½ See, e.g., Stone, Road to Divorce; Trumbach, The Rise of the Egalitarian Family.
11.ï¿½ See, e.g., Leonore Davidoff, The Best Circles: Society Etiquette and the Season (London: Croom Helm, 1973). For specific examples, see Carola Hicks, Improper Pursuits: The Scandalous Life of Lady Di Beauclerk (London: Macmillan, 2001), 73, and A. Foreman, Georgiana, Duchess of Devonshire (London: HarperCollins, 1998).
12.ï¿½ See A. Vickery, The Gentleman’s Daughter: Women’s Lives in Georgian England (New Haven: Yale University Press, 1998), chapter 2.
13.ï¿½ For a discussion of earlier controls over marriage—for example those exercised by guardians of wards in knight’s service—see Holly Brewer, By Birth or Consent: Children, Law & the Anglo-American Revolution in Authority (Chapel Hill: University of North Carolina Press, 2005), 292.
14.ï¿½ The church had stipulated that marriages should be preceded by banns from at least the twelfth century (see, e.g., Conor McCarthy, ed., Love, Sex and Marriage in the Middle Ages: A Sourcebook [London: Routledge, 2004]), and the possibility of dispensing with such preliminaries by means of a licence was introduced in the sixteenth century.
15.ï¿½ See Edmund Gibson, Codex juris ecclesiastici Anglicani (London, 1713), 510–11.
16.ï¿½ Or, if the parents were deceased, that of the child’s guardians: canon 100. On the balance of power between a testamentary guardian and a mother, see Mr Justice Eyre v. Countess of Shaftsbury (1722), 24 E.R. 659, 2 P. Wms 103.
17.ï¿½ Gerald Bray, ed., The Anglican Canons, 1529–1947 (Woodbridge: The Boydell Press, 1998), Canon 102.
18.ï¿½ Ibid., Canon 101.
19.ï¿½ Ibid., Canon 103.
20.ï¿½ See, e.g., Brewer, By Birth or Consent, 306, who describes the canonical guidelines as “little more than an exterior patch.”
21.ï¿½ See, e.g., R. B. Outhwaite, Clandestine Marriage in England, 1500–1850 (London: The Hambledon Press, 1995), chapter 2, who identifies no fewer than seven forms of “clandestine marriages”; Stephen Parker, Informal Marriage, Cohabitation and the Law, 1754–1989 (Basingstoke: Macmillan, 1990); Gillis, For Better, For Worse.
22.ï¿½ On the status of such exchanges, see Rebecca Probert, “Common-law marriage: myths and misunderstandings,” Child and Family Law Quarterly 20 (2008): 1–22.
23.ï¿½ See, e.g., Mary Kinnear, “The Correction Court in the Diocese of Carlisle, 1704–1756,” Church History 59 (1990): 191–206; M. F. Snape, The Church of England in Industrialising Society: The Lancashire Parish of Whalley in the Eighteenth Century (Woodbridge: The Boydell Press, 2003), 116.
24.ï¿½ Bray, The Anglican Canons, Canon 112.
25.ï¿½ T. Benton, Irregular Marriages in London Before 1754, 2nd ed. (London: Society of Genealogists, 2000), 30; Roger Lee Brown, “The Rise and Fall of the Fleet Marriages” in Marriage and Society: Studies in the Social History of Marriage, ed. R. B. Outhwaite (London: Europa, 1981).
26.ï¿½ Or so one can infer from lower levels of clandestine marriage. See, e.g., E. A. Wrigley, “Clandestine marriage in Tetbury in the late 17th century,” Local Population Studies 10 (1973) 15–21, 19; Jeremy Boulton, “Clandestine marriages in London: an examination of a neglected urban variable,” Urban History 2 (1993): 191–210, 203.
27.ï¿½ On the distances travelled to one popular parish, see R. B. Outhwaite, “Sweetapple of Fledborough and Clandestine Marriage in Eighteenth Century Nottinghamshire,” Transactions of the Thoroton Society of Nottinghamshire 94 (1990): 35–46.
28.ï¿½Sir Robert Paine’s Case (1661), 1 Sid 13, 82 E.R. 941; Wigmore’s Case (1707), 90 E.R. 1153, Holt K.B. 460; Haydon v. Gould (1711), 91 E.R. 113, 1 Salk. 119.
29.ï¿½ Thomas Salmon, A Critical Essay concerning Marriage (London, 1724), 180. See also H. Swinburne, A Treatise of Spousals, or Matrimonial Contracts, 2nd ed. (London, 1711), 235: “neither Spousals de praesenti, neither Spousals de futuro consummate, do make her Goods his, or his Goods hers.” On entitlement to dower, see Swinburne, A Treatise, 233–4, and Wigmore’s Case (1707), 90 E.R. 1153, Holt KB 459–460.
30.ï¿½ That the status of the celebrant was important in settlement cases can be inferred from R. v. Inhabitants of Luffington (1744), Burr Sett Cas 232 No 79, in which the issue was deemed relevant in determining a woman’s settlement.
31.ï¿½ See, e.g., Peter Laslett, Family life and illicit love in earlier generations (Cambridge: Cambridge University Press, 1977), table 1.10, proportions of minors in service in the early eighteenth century. The demographic and social evidence is considered in more detail in the context of the 1753 Act.
32.ï¿½ Sylvia Watts, “Demographic facts as experienced by a group of families in eighteenth-century Shifnal, Shropshire,” Local Population Studies 32 (1984): 34–43, 42. Of course, children who had lost both parents at an early age would have constituted a smaller proportion. D. Levine found that in the parish of Shepsted, marriage took place before parental death in three-quarters of cases over the period 1600–1851. “‘For their own reasons?’ Individual marriage Decisions and Family Life,” Journal of Family History 7 (1982): 255–64.
33.ï¿½ Lawrence Stone and Jeanne C. Fawtier Stone, An Open Elite? England 1540–1880 (Oxford: Clarendon Press, 1984), fig. 3.10.
34.ï¿½ P. Floyer, The proctor’s practice in the ecclesiastical courts (London, 1744), 78; H. Consett, The practice of the spiritual or ecclesiastical courts (London, 1708), 253. For an example see Baxtar v. Buckley (1752), 161 E.R. 17, 1 Lee 42.
35.ï¿½ See, e.g., Floyer, The proctor’s practice, 85.
36.ï¿½ Consett, The practice of the spiritual … courts, 265.
37.ï¿½ Ibid, 257.
38.ï¿½ Lambeth Palace Library, E37/31 (1747).
39.ï¿½ Lambeth Palace Library, E30/4 (1731). See also Bourget v. Imbert, Lambeth Palace Library, Eee 14/262b (1737).
40.ï¿½ David Lemmings, “Marriage and the Law in the Eighteenth Century: Hardwicke’s Marriage Act of 1753,” Historical Journal 39 (1996): 339–60.
41.ï¿½ Brewer, for example, locates the Act in the context of other contemporary developments that deprived minors of legal capacity on the basis that they lacked the ability to reason. By Birth or Consent, 316. Erica Harth offers a practical reason for the desire to increase parental power, namely the pressures on family finances created by the device of the strict settlement. “The Virtue of Love: Lord Hardwicke’s Marriage Act,” Cultural Critique 9 (1988): 123–54, 130.
42.ï¿½ Trumbach, The Rise of the Egalitarian Family, 108.
43.ï¿½ On earlier attempts at reform, see, e.g., Stone, Road to Divorce, chapter 4. See also Leah Leneman on the case that precipitated the legislation. “The Scottish Case that Led to Hardwicke’s Marriage Act,” Law & History Review 17 (1999): 161–9.
44.ï¿½ Clandestine Marriages Act 1753, 26 Geo II c. 32, section 11.
45.ï¿½ See, e.g., Shaftsbury v. Shaftsbury (1725), 25 E.R. 121, Gilb. Rep. 172, 177, and see further below.
46.ï¿½ See Days v. Jarvis (1814), 2 Hagg. C.R. 172.
47.ï¿½ Clandestine Marriages Act, section 12.
49.ï¿½ Stone and Stone, An Open Elite?, fig. 3.10; Levine, “‘For their own reasons?,'” 258.
50.ï¿½ 36% would have lost their father and 34% their mother. See M. Anderson, “The social implications of demographic change,” in The Cambridge Social History of Britain 1750–1950, vol. 2, People and their Environment, ed. F. M. L. Thompson, chapter 1 (Cambridge: Cambridge University Press, 1990), table 1.5.
51.ï¿½ E. A. Wrigley, “Marriage, Fertility and Population Growth in Eighteenth-Century England,” in Marriage and Society, ed. R. B. Outhwaite, chapter 7 (London, Europa, 1981), table III. For regional variations see David Levine, Family Formation in an Age of Nascent Capitalism (London: Academic Press, 1977), tables 5.1 and 6.6.
52.ï¿½ T. H. Hollingsworth, “Marriage,” Population Studies: Supplement 18 (1964): 8–28, 16, table 17. I have chosen to cite the figures for those who did marry, rather than those for the aristocracy as a whole, because the proportion never marrying was significantly higher within the aristocracy than in the general population. Contrast Hollingsworth, table 11, and E. A. Wrigley and R. S. Schofield, The Population History of England 1541–1871: A reconstruction (Cambridge: Cambridge University Press, 1989), table 7.28. Nicholas Rogers similarly found that late marriage was common within his sample of London businessmen. “Money, Marriage, Mobility: The Big Bourgeoisie of Hanoverian London,” Journal of Family History 24 (1999) 19–34.
53.ï¿½ T. H. Hollingsworth, “Mortality,” Population Studies: Supplement 18 (1964): 52–70.
54.ï¿½Horner v. Liddiard (1799), 161 E.R. 573, 1 Hag. Con. 337.
55.ï¿½ Laslett, Family life, chapter 3.
56.ï¿½The Gentleman’s Magazine 30 (1760): 30–1. See also Bathurst v. Murray (1802), 32 E.R. 279, 8 Ves. Jun. 74.
57.ï¿½ J. Jeaffreson, Brides and Bridals (London: Hurst and Blackett, 1872), 2:204.
58.ï¿½Observations on Clandestine, or Irregular Marriages, with a short account of the laws, both of England and Scotland, affecting marriages (Berwick: W. Lockhead, 1812), 25.
59.ï¿½Compton v. Bearcroft (1769), 2 Hag. Con. 444n.
60.ï¿½ See, e.g,. Ilderton v. Ilderton (1793), 126 E.R. 476, 2 H. Bl. 145.
61.ï¿½Harford v. Morris (1776), 2 Hag. 423, 161 E.R. 792 at 429.
62.ï¿½ Clandestine Marriages Act of 1753. Contrast sections 3 and 11.
63.ï¿½ Ibid., section 3.
64.ï¿½ M. Ogborn, “This Most Lawless Space: The geography of the Fleet and the Making of Lord Hardwicke’s Marriage Act of 1753,” New Formations 37 (1999): 11–32, 31.
65.ï¿½ Licences were only to be granted for marriages in the church of the parish where at least one of the parties had resided for four weeks (section 4). In the case of marriages by banns, the parties were required to give notice to the minister at least 7 days before the banns were to be called (section 2), and the banns were called on three successive Sundays in the parishes of each of the parties (section 1).
66.ï¿½ Clandestine Marriages Act, section 10.
67.ï¿½ Research into one Warwickshire parish found that marriages by banns constituted four-fifths of those celebrated between 1682 and 1800. V. Elliott, “Marriage Licences and the Local Historian,” The Local Historian 10 (1973): 282.
68.ï¿½ Elliott, “Marriage Licences,” 288.
69.ï¿½ R. Malcolmson, Life and Labour in England 1700–1780 (London: Hutchinson, 1981), chapter 3.
70.ï¿½ K. D. M. Snell, Annals of the Labouring Poor: Social Change in Agrarian England, 1660–1900 (Cambridge: Cambridge University Press, 1985), table 7.2.
71.ï¿½ R. Schofield, “Age-specific mobility in an eighteenth century rural English parish,” Annales de Démographie Historique (1970): 261–74.
72.ï¿½ R. Wall, “Leaving home and the process of household formation in pre-industrial England,” Continuity and Change 2 (1987): 77–101.
73.ï¿½ Schofield, “Age-specific mobility.” See also Malcolmson, Life and Labour, chapter 3 on the mobility of those in their teens, and Pamela Horn, Flunkeys and Scullions: Life Below Stairs in Georgian England (Stroud: Sutton Publishing, 2004), chapter 3.
74.ï¿½ M. Hunt, The Middling Sort: Commerce, Gender and the Family in England, 1680–1780 (Berkeley: University of California Press, 1996), notes that low remuneration in employment kept girls close to home. See also Vickery, The Gentleman’s Daughter.
75.ï¿½ Jane Austen, Pride and Prejudice (1813; repr., Penguin Popular Classics 1994), and Emma (1816; repr., Penguin Classics 2003).
76.ï¿½Wheeler v. Warner (1823), 57 E.R. 123, 1 Sim & St 304, 308.
77.ï¿½ On the issue of compliance with the act, see K. D. M. Snell, “English rural societies and geographical marital endogamy, 1700–1837,” Economic History Review 55 (2002): 262–98, and Rebecca Probert, “Chinese Whispers and Welsh Weddings,” Continuity and Change 20 (2005): 211–28.
78.ï¿½ Here the parties were marrying by licence rather than by banns.
79.ï¿½ Jenny Uglow, The Lunar Men (London: Faber & Faber, 2002), 63. Edgeworth took the advice and married his deceased wife’s sister in London. At this stage such a marriage was forbidden by canon law but not by statute.
80.ï¿½ Austen, Pride and Prejudice, 216.
81.ï¿½Priestley v. Lamb (1801), 31 E.R. 1124, 6 Ves. Jun. 421.
82.ï¿½Dobbyn v. Corneck (1813), 161 E.R. 1090, 2 Phill. 102; Meddowcroft v. Gregory (1816), 161 E.R. 717, 2 Hag. Con. 207; Sullivan v. Sullivan (1818), 161 E.R. 728, 2 Hag. Con. 238; Green v. Dalton (1822), 162 E.R. 101, 1 Add. 289.
83.ï¿½Pouget v. Tomkins (1812), 161 E.R. 1056, 1 Phill. Ecc. 299.
84.ï¿½ See, e.g., Nicholson v. Squire (1809), 33 E.R. 983, 16 Ves. Jun. 259, in which Lord Eldon LC stressed that the clergyman was much to blame for not making inquiries as to the residence of the parties. Whether a clergyman was subject to ecclesiastical censure in this situation remained a moot point. See the discussion in Wynn v. Davies (1835), 163 E.R. 24, 1 Curt. 69.
85.ï¿½ See, e.g., Harford v. Morris (1776), 161 E.R. 792, 2 Hag. Con. 423, 429.
86.ï¿½Population according to the Census of 1821 (1822) PP vol. 15, xxv.
87.ï¿½Faremouth v. Watson (1811), 161 E.R. 1009, 1 Phill. 355 (husband’s sisters); Blackmore and Thorpe v. Brider (1816), 161 E.R. 1169, 2 Phill. 359 (churchwardens of the parish).
88.ï¿½ In Bowzer, as guardian of his son, v. Ricketts (1795), 161 E.R. 529, 1 Hag. Con. 212, the court noted that a father had standing to bring such a case, not merely because he had a general interest to proceed against a void marriage but also on the basis that his own authority had been violated by the marriage in defiance of his wishes
89.ï¿½ Rebecca Probert, “The Judicial Interpretation of Lord Hardwicke’s Act of 1753,” Legal History 23 (2002): 129–151.
90.ï¿½Pouget v. Tomkins (1812), 161 E.R. 1056, 1 Phill. Ecc 299.
91.ï¿½Green v. Dalton (1822, 162 E.R. 101, 1 Add 289.
92.ï¿½ By contrast, where the suit for nullity was brought by one of the parties themselves, minor variations in the names were overlooked. See, e.g. Heffer v. Heffer (1812), 105 E.R. 611; 3 M & S 265n, and Dobbyn v. Corneck (1813), 161 E.R. 1090, 2 Phill. 102.
93.ï¿½Sullivan v. Sullivan (1818), 161 E.R. 728, 2 Hag. Con. 238.
94.ï¿½ Probert, “The Judicial Interpretation of Lord Hardwicke’s Act 1753.”
95.ï¿½ The same approach was taken to marriages by licence. See Probert, “The Judicial Interpretation of Lord Hardwicke’s Act 1753.”
96.ï¿½ See e.g. Johnston v. Parker (1819), 161 E.R. 1251, 3 Phill. Ecc. 39; Hayes v. Watts (1819), 161 E.R. 1252, 3 Phill. Ecc. 43; Fielder v. Smith (1816), 161 E.R. 712, 2 Hag. Con. 193.
97.ï¿½Harvey v. Aston (1737), 125 E.R. 1068; Willes 83.
98.ï¿½ Paul Langford, A Polite and Commercial People: England 1727–1783 (Oxford: Clarendon Press, 1989, 1998), 62.
99.ï¿½ P. Earle, The Making of the English Middle Class: Business, Society and Family Life in London, 1660–1730 (London: Methuen, 1989), 189.
100.ï¿½ See, e.g., Fry v. Porter (1669), 22 E.R. 731, 1 Chan. Cas. 138 (grandfather); Mesgrett v. Mesgrett (1706), 23 E.R. 977, 2 Vern 581 (mother); Pullen v. Ready (1743), 26 E.R. 751, 2 Atk. 587 (uncle); Berkeley v. Ryder (1752), 28 E.R. 340, 2 Ves. Sen 533 (brother).
101.ï¿½Fry v. Porter (1669), 22 E.R. 731, 1 Chan. Cas. 138 (grandmother).
102.ï¿½Salisbury v. Bennett (1691), 23 E.R. 744, 2 Vern 223; Aston v. Aston (1703), 23 E.R. 890, 2 Vern 452; Harvey v. Aston (1737), 125 E.R. 1068; Willes 83; Daley v. Desbouverie (1738), 26 E.R. 561, 2 Atk 261.
103.ï¿½Peyton v. Bury (1731), 24 E.R. 889, 2 P. Wms. 627.
104.ï¿½Aston v. Aston (1703), 23 E.R. 890, 2 Vern 452; Holmes v. Lysaght (1733), 1 E.R. 931, 2 Bro Parl Cas 261; Atkins v. Hiccocks (1737), 26 E.R. 316, 1 Atk 500.
105.ï¿½Chauncy v. Graydon (1743), 26 E.R. 768, 2 Atk 616; Long v. Dennis (1767), 98 E.R. 69, 4 Burr 2052; Worthington v. Evans (1823), 57 E.R. 66, 1 Sim & St 165; Long v. Ricketts (1824), 57 E.R. 313, 2 Sim & St 179.
106.ï¿½Parnell v. Lyon (1813), 35 E.R. 186, 1 V. & B. 479. See also Crommelin v. Crommelin (1796), 30 E.R. 982, 3 Ves. 227 (age 24), and Hemmings v. Munckley (1783), 28 E.R. 1147, 1 Bro. C.C. 303.
107.ï¿½ Stone and Stone, An Open Elite?, chapter 3; Eileen Spring, Law, Land and Family: Aristocratic Inheritance in England 1300 to 1800 (Chapel Hill: The University of North Carolina Press, 1993), chapter 1.
108.ï¿½ See J. Habakkuk, Marriage, Debt and the Estates System: English Landownership 1650–1950 (Oxford: Clarendon Press, 1994), chapter 1, on the adoption of the strict settlement; L. Bonfield, “Marriage, Property and the ‘Affective Family,'” Law and History Review 1 (1983): 297–312; E. Spring, “The strict settlement: its role in family history,” Economic History Review 41 (1988): 454–60; L. Bonfield, “Strict settlement and the family: a differing view,” Economic History Review 41 (1988): 461–66.
109.ï¿½ See, e.g., Amy Louise Erickson, Women and Property in Early Modern England (London: Routledge, 1993), chapter 4. Note that conditions in restraint of marriage attaching to land were upheld by the courts: see below.
110.ï¿½ A similar purpose was served by legislation designed to punish those who married heiresses under the age of sixteen without parental consent (see 4 & 5 Phil. & Mar. c. 8). This not only prescribed that the husband should be imprisoned or fined, but also that the profits of the land to which the heiress was entitled should pass to her next of kin during her husband’s lifetime. See further Brewer, By Birth or Consent, 306–8.
111.ï¿½ Trumbach, The Rise of the Egalitarian Family, 108; Staves, “Resentment or resignation?,” 205; Brewer, By Birth or Consent, 306.
112.ï¿½Anon (1589), 74 E.R. 880, Owen 34; King v. Bradshaw (1689), 23 E.R. 675, 2 Vern. 102; Baker v. White (1690), 23 E.R. 740, 2 Vern. 215.
113.ï¿½Jarvis v. Duke (1681), 23 E.R. 274, 2 Vern. 19.
114.ï¿½ See, e.g., Fry v. Porter (1669), 22 E.R. 731, 1 Chan. Cas. 138.
115.ï¿½ See the discussion in Cleaver v. Spurling (1729), 24 E.R. 846, 2 P. Wms 526; Piggot v. Morris (1725), 25 E.R. 203, Sel. Cas. T. King 26.
116.ï¿½ See Bellasis v. Ermine (1663), 22 E.R. 674, 1 Chan. Cas. 22; Fleming v. Walgrave (1664), 22 E.R. 693, 1 Chan. Cas. 58; Glover v. Partington (1664), 22 E.R. 690, 1 Chan. Cas. 51; Semphill v. Bayley (1721), 24 E.R. 254, Prec. Ch. 562.
117.ï¿½Harvey v. Aston (1737), 26 E.R. 230, 1 Atk. 361; Pullen v. Ready (1743), 26 E.R. 751, 2 Atk. 587.
118.ï¿½Popham v. Bamfield (1682), 23 E.R. 325, 1 Vern. 80.
119.ï¿½ See, e.g,. Peyton v. Bury (1731), 24 E.R. 889, 2 P. Wms 627.
120.ï¿½ E.g., where an alternative recipient was expressly mentioned (see, e.g., Sutton v. Jewke (1673–4), 21 E.R. 626, 2 Chan. Rep. 95; Stratton v. Grymes (1698), 23 E.R. 825, 2 Vern. 357).
121.ï¿½Stratton v. Grymes (1698), 23 E.R. 825, 2 Vern 357; Cleaver v. Spurling (1729), 24 E.R. 846, 2 P. Wms 526; Wrottesley v. Bendish (1733), 24 E.R. 1042, 3 P. Wms 235.
122.ï¿½Cray v. Willis (1729), 24 E.R. 847, 2 P Wms 529, 531.
123.ï¿½Semphill v. Bayley (1721), 24 E.R. 254, Prec. Ch. 562, 565.
124.ï¿½ See, e.g., Staves, “Resentment or resignation?” 206, who notes that devises over became more common once the enforceability of such clauses had been confirmed.
125.ï¿½ See, e.g., Harvey v. Aston (1737), 92 E.R. 1287, 2 Com 726, 748.
126.ï¿½Scott v. Tyler (1788), 21 E.R. 449, Dick 712, 720.
127.ï¿½Pearce v. Loman (1796), 30 E.R. 934, 3 Ves. 135, 139. In a similar vein, he commented on the “blind superstitious adherence to the text of the civil law.” Stackpole v. Beaumont (1798), 30 E.R. 909, 3 Ves. 89, 96.
128.ï¿½Long v. Dennis (1767), 98 E.R. 69, 4 Burr 2052.
129.ï¿½Peyton v. Bury (1731), 24 E.R. 889, 2 P. Wms 627; Wrottesley v. Bendish (1733), 24 E.R. 1042, 3 P. Wms 235; Daley v. Desbouverie (1738), 26 E.R. 561, 2 Atk. 261; Burlton v. Humphries (1755), 17 E.R. 170, Amb 256.
130.ï¿½Scott v. Tyler (1788), 29 E.R. 241, 2 Bro CC 431.
131.ï¿½Scott v. Tyler (1788), 21 E.R. 449, Dick 712, 721.
132.ï¿½Low v. Peers (1770), 97 E.R. 138, Wilm 364, 377.
133.ï¿½ Contrast the earlier case of King v. Withers (1712), 24 E.R. 163, Prec. Ch. 348, in which it was held that a clause that £500 of the daughter’s portion should be applied towards payment of the estate’s debts if she married without consent was effectively no devise over as there were no creditors in danger of losing their debts.
134.ï¿½Wheeler v. Bingham (1746), 26 E.R. 1010, 3 Atk. 364. C.f. Garrett v. Pritty (1693), 23 E.R. 7902, Vern. 294; Paget v. Haywood (1733), 26 E.R. 241, 1 Atk. 378n.
135.ï¿½Scott v. Tyler (1788), 21 E.R. 449, Dick 712, 724.
136.ï¿½ Ibid, 719.
137.ï¿½ See, e.g., Farmer v. Compton (1625–6), 21 E.R. 490, 1 Chan Rep 1, (treaty of marriage already underway when the parties eloped without their parents’ knowledge); Mesgrett v. Mesgrett (1706), 23 E.R. 977, 2 Vern 581 (courtship took place under the roof of one of the executors and the marriage under the roof of a second).
138.ï¿½Burlton v. Humphries (1755), 17 E.R. 170, Amb 256. Equally, subsequent dissent, where the trustees had not had the chance to declare their approval in advance, would lead to forfeiture of the benefit. Creagh v. Wilson (1706), 23 E.R. 972, 2 Vern 572.
139.ï¿½Lord Strange v. Smith (1755), 27 E.R. 175, Amb 263, 264. See also Ventris v. Glide, 2 Vern 343n, 23 E.R. 818 (aunt’s consent asked and not absolutely refused); Berkeley v. Ryder (1752), 28 E.R. 340, 2 Ves. Sen 533 (match was encouraged by her family, and mother received them after the wedding); and Merry v. Ryves (1757), 28 E.R. 584, 1 Eden 1.
140.ï¿½ See, e.g., Campbell v. Lord Netterville (1737), 28 E.R. 340, 2 Ves. 534n (court held that it was a reasonable and proper match, which the girl’s father had initially encouraged and in which he would have concurred had it not been for his financial difficulties); Daley v. Desbouverie (1738), 26 E.R. 561, 2 Atk. 261 (court held that the restriction imposed by the condition was harsh, that there could be no objection to the person or estate of Mr. Daley, and that since the lady “had a strong inclination for the match,” consent should have been given.)
141.ï¿½Dashwood v. Lord Bulkeley (1804), 32 E.R. 832, 10 Ves. 230, 242.
142.ï¿½Malcolm v. O’Callaghan (1817), 56 E.R. 363, 2 Madd 349.
143.ï¿½Duffield v. Elwes (1823), 57 E.R. 96, 1 Sm & St 238.
144.ï¿½ Ibid., 242.
145.ï¿½Knapp v. Noyes (1768), 27 E.R. 430, Amb 662.
146.ï¿½Lloyd v. Branton (1817), 36 E.R. 42, 3 Mer 108.
147.ï¿½Crommelin v. Crommelin (1796), 30 E.R. 982, 3 Ves. 227; Hemmings v. Munckley (1783), 28 E.R. 1147, 1 Bro. C.C. 303; and Parnell v. Lyon (1813), 35 E.R. 186, 1 V. & B. 479.
148.ï¿½ Hansard’s Parliamentary Debates, 2nd Series, Vol 6 col 1355, March 27, 1822.
149.ï¿½Scott v. Tyler (1788), 29 E.R. 241, 2 Bro CC 431.
150.ï¿½ See, e.g., the views expressed by Lord Mansfield—who as Solicitor-General had put the case for the 1753 Act—in Long v. Dennis (1767), 98 E.R. 69, 4 Burr 2052.
151.ï¿½ John Seymour, “Parens Patriae and Wardship Powers: Their Nature and Origins,” Oxford Journal of Legal Studies 14 (1994) 159–88; Nigel Lowe and Richard White, Wards of Court (London: Butterworths, 1979). See, e.g., Falkland v. Bertie (1696), 23 E.R. 814, 2 Vern 333, 342; Shaftsbury v Shaftsbury (1725), 25 E.R. 121, Gilb. Rep. 172, 173.
152.ï¿½Re Spence (1847), 41 E.R. 937, 2 Ph. 247.
153.ï¿½Phipps v. Earl of Anglesea (1721), 24 E.R. 576, 1 P. Wms. 697; Long v. Elways (1729), 25 E.R. 378, Mos. 249; Mr Herbert’s case (1731), 24 E.R. 992, 3 P. Wms 116.
154.ï¿½ See Hughes v. Science, noted in Butler v. Freeman (1756), 27 E.R. 204, Amb. 301.
155.ï¿½Goodall v. Harris (1719), 24 E.R. 862, 2 P. Wms. 561.
156.ï¿½The Lord Raymond’s Case (1734), 25 E.R. 661, Cases T. Talbot 58.
157.ï¿½Butler v. Freeman (1756), 27 E.R. 204, Amb. 301.
158.ï¿½Mr Justice Eyre v. Countess of Shaftsbury (1722), 24 E.R. 659, 2 P. Wms 103.
159.ï¿½ See, e.g., The Lord Raymond’s Case (1734), 25 E.R. 661, Cases T. Talbot 58; Smith v. Smith (1745), 26 E.R. 977, 3 Atk. 304.
160.ï¿½Smith v. Smith (1745), 26 E.R. 977, 3 Atk. 304; Roach v. Garvan (1748), 27 E.R. 954, 1 Ves. Sen. 157.
161.ï¿½Roach v. Garvan (1748), 27 E.R. 954, 1 Ves. Sen. 157.
162.ï¿½Dr Davis’ Case (1721), 24 E.R. 577, 1 P. Wms. 698.
163.ï¿½Mr Justice Eyre v. Countess of Shaftsbury (1722), 24 E.R. 659, 2 P. Wms 103, 111.
164.ï¿½Mr Herbert’s case (1731), 24 E.R. 992, 3 P. Wms 116.
165.ï¿½Long v. Elways (1729), 25 E.R. 378, Mos. 249.
166.ï¿½Edes v. Brereton (1738), 25 E.R. 974, West. T. Hard. 347; More v. More (1741), 26 E.R. 499, 2 Atk. 157.
167.ï¿½Long v. Elways (1729), 25 E.R. 378, Mos. 249; Edes v. Brereton (1738), 25 E.R. 974.
168.ï¿½Hill v. Turner (1737), 25 E.R. 892, West. T. Hard. 195.
169.ï¿½More v. More (1741), 26 E.R. 499, 2 Atk. 157, 157.
170.ï¿½Butler v. Freeman (1756), 27 E.R. 204, Amb. 301.
171.ï¿½ That it did so was not uncontroversial, given that the minor’s father was still alive: it is significant that this case saw the extension of the wardship jurisdiction.
172.ï¿½ Similar punishment was meted out in Stackpole v. Beaumont (1798), 30 E.R. 909, 3 Ves. 89; Winch v. James (1798), 31 E.R. 196, 4 Ves. Jun. 386; Bathurst v. Murray (1802), 32 E.R. 279, 8 Ves. Jun. 74.
173.ï¿½Like v Beresford (1796), 30 E.R. 1129, 3 Ves Jun 506; Bathurst v. Murray (1802), 32 E.R. 279, 8 Ves. Jun. 74 (Guernsey).
174.ï¿½Priestly v. Hughes (1809), 103 E.R. 903, 11 East 1; Nicholson v. Squire (1809), 33 E.R. 983; 16 Ves. Jun. 259.
175.ï¿½ The possibility of such punishment was also seen as justifying the new approach to conditions in restraint of marriage: as Loughborough noted in Stackpole v. Beaumont (1798), 30 E.R. 909, 3 Ves. 89, 97, “I have committed [i.e. imprisoned] this gentleman for marrying without consent. It is impossible to say, that a condition has any stamp of illegality, impolicy, or impropriety, that does no more than add an extension of bounty to induce them to do that, which neglecting to do the husband becomes an object of the censure of this Court and liable to punishment.”
176.ï¿½Millet v. Rowse (1802), 32 E.R. 169, 7 Ves. Jun. 419.
177.ï¿½Priestley v. Lamb (1801), 31 E.R. 1124, 6 Ves. Jun. 421, 422; Ball v. Coutts (1812), 35 E.R. 114, 1 V. & B. 292.
178.ï¿½ See, e.g., Warter v. Yorke (1815), 34 E.R. 584, 19 Ves. 451.
179.ï¿½Salles v. Savignon (1801), 31 E.R. 1201, 6 Ves. Jun. 572; Warter v. Yorke (1815), 34 E.R. 584, 19 Ves. 451.
180.ï¿½ See, e.g., Warter v. Yorke (1815), 34 E.R. 584, 19 Ves. 451. Similarly, in a sequel to Butler v. Freeman, the husband’s father brought a suit for jactitation of marriage in the ecclesiastical court, but the wife employed various stalling tactics and the outcome of the case was not reported. See Butler v. Dolben (1756), 161 E.R. 352, 2 Lee 312.
181.ï¿½ See, e.g., Bathurst v. Murray (1802), 32 E.R. 279, 8 Ves. Jun. 74.
182.ï¿½Priestley v. Lamb (1801), 31 E.R. 1124, 6 Ves. Jun. 421, 422.
183.ï¿½Bathurst v. Murray (1802), 32 E.R. 279, 8 Ves. Jun. 74, 77.
184.ï¿½Winch v. James (1798), 31 E.R. 196, 4 Ves. Jun. 386, 386.
185.ï¿½Wells v. Price (1800), 31 E.R. 649, 5 Ves. Jun. 398. See also Halsey v. Halsey (1804), 32 E.R. 685, 9 Ves. Jun. 472.
186.ï¿½Millet v. Rowse (1802), 32 E.R. 169, 7 Ves. Jun. 419; Birkett v. Hibbert (1834), 47 E.R. 164, Coop temp Brough 459.
187.ï¿½ 3 Geo. IV c. 75; 4 Geo. IV c. 17; 4 Geo. IV c. 76.
188.ï¿½ Marriage Act of 1823, 4 Geo IV c. 76, section 22.
189.ï¿½ Poynter, A Concise View, 43.
190.ï¿½Wiltshire v. Prince (1830), 162 E.R. 1176, 3 Hagg. Ecc. 332.
191.ï¿½Pouget v. Tomkins (1835), 163 E.R. 13, 1 Curt 38.
192.ï¿½ Ibid., 41.
193.ï¿½ Ibid., 48.
194.ï¿½ Only the absence of a licence would invalidate the marriage, and only then if the parties “knowingly and wilfully” married without a licence, see above.
195.ï¿½ Marriage Act of 1823, section 23.
196.ï¿½ The provision also applied to marriages by banns, although in such cases only one party, by definition, would have flouted the law, else the marriage would not be valid.
197.ï¿½ Marriage Act of 1823, section 23.
198.ï¿½ And, equally, it was control by parents with property that was in issue: the option of punishing the guilty party was not a cheap one as the parent or guardian was responsible for any costs incurred in the suit.
199.ï¿½ Hansard’s Parliamentary Debates, 2nd Series, vol. 6, col. 1330 (Dr Phillimore).
200.ï¿½ D. Thomas, “The Social Origins of Marriage Partners of the British peerage in the Eighteenth and Nineteenth Centuries,” Population Studies 26 (1972): 99–111 ; J. Cannon, Aristrocratic Century (Cambridge: Cambridge University Press, 1984).
201.ï¿½ See, e.g., Smith v. Smith (1745), 26 E.R. 977, 3 Atk. 304; Stackpole v. Beaumont (1798), 30 E.R. 909, 3 Ves. 89.
202.ï¿½Mr Justice Eyre v. Countess of Shaftsbury (1722), 24 E.R. 659, 2 P. Wms 103.