The History of Hardwicke’s Marriage Act of 1753

| , | February 19, 2024

It’s a no-brainer how lucrative the wedding business is—in the United States alone over $72 billion is attributed to the sound of marriage bells each year, and if you want to break it down, that’s $20,000 average event planning budget, 6,200 weddings per day, and over $8 billion spent on wedding gifts per year.

But this huge hoopla when it comes to marriage ceremonies was not always the case; in fact, history has a very different account of weddings and it all begins with one act from the 18th century.

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No one, surely not the English parliamentary members, realized that the passing of Hardwicke’s marriage act in 1753 would lead to the kind of economic success that the modern world now harbors, but it was nonetheless incredible in changing the landscape of unions from 1754 and beyond. From the enactment of the act forward, marriage was required to follow a specific procedure, putting to end the very popular, and rather less formal, tradition of clandestine marriages. Although such an act had long been on Lord Hardwicke’s agenda, it was a Scottish occurrence that finally created a medium for the act to get passed in Parliament.

In the early part of 1973, the House of Lords heard a case and required further action, stating “That the Judges do prepare and bring in a Bill, for the better preventing of Clandestine Marriages.” Contemporary publications mentioned the same case, one that Outhwaite is quoted as describing that “a marriage of thirty years standing, celebrated legally, was challenged on the grounds of a prior secret contract.” Stone, another writer of the time, said “after the man’s death, his thirty-year marriage had been declared null, leaving his widow penniless and their child bastardised, thanks to the successful claim by another woman of a clandestine pre-contract.”

The third, Bannet, writes that “the case which was said to have led to the Marriage Bill of 1753 … involved a ‘clandestine marriage set up after a man’s death which was never heard of in his lifetime.’ The fact that the woman who thought herself his widow had actually lived with him publicly as his wife for many years was set aside by the true or trumped up evidence of his pre-contract to another woman.” And while both Stone and Outhwaite site one source, the Journal of the House of Lords, Bannet uses Cobetts Parlimentary History to dictate the significance of the observations. [1]

As for the bizarre nature of such a case, no one has ever challenged the validity of the claims or come to ask why such a problem was set before the House of Lords. In fact, the marriage was of twenty years not thirty, the true marriage was never null, there was no challenge of a “secret contract” but rather an actual marriage, and the “clandestine marriage” was known during the man’s lifetime and not a secret. The true facts are available for an accurate account, in a 19th century legal commentators notes [2], but to discover the whole truth, it is better to go straight to the source: the extracted decree of Edinburgh Commissary Court.

To understand the nature of this case in the context of the time, you first have to understand what constituted a marriage in the 18th century. In both England and Scotland, the only requirements for making a marriage legal was the free consent of both partners, as long as they were of age (fourteen for boys, twelve for girls), were free of the unlawful degrees of kinship, and were not, engaged in any other marriage. Parents were not required to consent or be present, and witnesses were not required either. This means a marriage could be sealed by verba de praesenti or verba de futuro,; in layman’s terms, everything could be a done deal if both parties agreed at the time, or agreed for the future, and then followed the verbal agreement with sexual intercourse. Due to the lack of a witness needed, many things could be done in private, such as through letters, where either partner referred to the name of the other as her husband or his wife. Cohabitation was also a sign of marriage; neighbors being aware of the couple living under the same roof, or relations who could agree to the truth of such a situation, was also considered legally binding. [3]

This is not to say that marriages more resembling our modern version—churches, witnesses, ceremonies—were not also common during the time, but they were not any more legally binding that the promise of each partner to one another, this held true in both England and Scotland. And in practice, the rise of the traditional marriage, held in a parish, and with a certificate of some sort, saw a sharp increase during the 18th century. And as a side effect, “celebrators” began creating a business out of marriages; able to forge documents, re-create documents, and change names, a small economy began to grow out of the more modern marriage to stop any disputes against the validity of the “irregular” unions. [4]

The difference in these irregular marriages was not in fact in what happened after the marriage, but only in the ceremony, and no stigma was attached to either of the marriages. In fact, there was very little difference socially for anyone at all; what became problematic was when one party denied the presence of a marriage while the other confirmed it. The Edinburgh Commissary Court was the only court in Scotland that was legally allowed to confirm whether a marriage existed, though defendants could appeal to the Court of Session, a higher court, and onward to the House of Lords if the verdict was undesired. This entire process was deemed the “Declarator of Marriage” and could be filed by either partner, living or dead. [5]

The case that eventually led to Hardwicke’s defining Marriage Act was the case of Campbell against Cochran et contra was brought before the court in 1746 after the death of Captain John Campbell of Carrick at the battle of Fontenoy. [6] Though the captain lived with Jean Campbell as his wife for twenty years, another woman, Magdalena Cochran, filed for his pension in Canterbury as his widow and sent a whole train of events that would change the nature of marriage relations in the West forever. [7]

In the case of Jean Campbell, she had become Captain Campbell’s wife in an irregular marriage on December 9, 1725, in Roseneath, Dunbartonshire, and had a parish church document cementing the event, John’s consent to Jean as his wife, along with two deeds of trust with Jean stated as Mistress Campbell and three children. Having lived together for twenty years, they were considered by neighbors and relatives to be husband and wife.

As for Magdalen Cochran, of Edinburgh, she had been courted by Captain Campbell, but had instead gone on to marry Lewis Kennedy instead. After Lewis’s death, Cochran went on to say she wed John in an irregular ceremony in at the Abbey of Paisley on July 3, 1724. According to her account, Captain John had asked that Magdalen keep the marriage a secret on behalf of his favor with the Duke of Argyle who would not approve of the union, and although she could not produce a marriage certificate of the irregular ceremony, she did have a document, with a later date, saying Captain Campbell acknowledged this secret marriage. When Magdalen became aware of John’s marriage to Jean she confronted him, only to be told by John that Jean had seduced him while he was drunk, become pregnant with his child, and he was unable to get out of the arrangement due to Jean’s close relation to the Duke of Argyle. While Jean did have a child shortly after, it was ten months after the marriage, not 9, and therefore John (though dead) was caught in a lie. [8] After John’s marriage to Jean, he still continued to see Magdalen, penning to her over 100 letters, calling her his true life and continuing to pressure her to keep the marriage a secret.

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Once Magdalen’s evidence had been presented, and her case stated, Jean’s lawyer could not believe that there was any truth in the story of a woman who willing let her husband marry another woman and live with her, all the while keeping quiet about it, especially because bigamy was a crime. But a letter produced by Magdalen, written in John’s hand, illustrated the emotional pressure the captain put in Cochran to keep her quiet:

My ever Dearest though Cruel, Madie … You are a stranger to the mighty woe that Surrounds me, And if I have imposed upon you in any one thing, it is in having concealed it from you, and for no other reason but to prevent the Encrease of Your pain. Your Letter lies now before me; I have not words to Express my Agony of Soul upon reading of it. I sunk from my Chair to the floor, void of all manner of sense and when I came to myself there was no body to pity me. Oh had my dearest Madie been there and heard my Groans, I fain would persuade myself she would have behaved with the affection of a tender wife; and even now my spirits fail me, and your cruel Letter has broke my heart. Would to God I had Died many years ago; I have ruined the best of women and the best of wives, and by my own folly have put it out of my power to do my duty to her or relieve her in the terrible Distress she must be in.

With Magdalen believing the writings of John, the three, including Jean, were once again turmoiled in a triangle of deceit, and it became harder for Magdalen to escape from the situation. In March of 1735 he wrote:

To Mrs Campbell. I conjure you by the most sincere regard and affection ever entered the heart of a husband for the most deserving wife, not to disquiet yourself and Ruin your health … Nor is it in the power of anything on earth to give me Satisfaction, till I can declare to the world that you are mine and I yours. I do assure you that it was with difficulty, I kept myself from crying when I thought of you & that I must live absent from the person on earth, that honour, Inclination, love, Gratitude, and every thing that can tye one soul to another obliges me most to esteem & regard; And even now when I tell you so the tears are ready to drop; And nothing but the Generous Return I have always met with from the darling of my soul, could have possibly supported me.

To complicate matters, he introduced Jean to Magdalen at a dinner held by Lord Provost of Edinburgh, calling Jean “his wife,” because he wanted Ms Kennedy to become acquainted with his wife. Once introduced, the two women continued to meet one another at social functions.

As nature would have it, Captain Campbell became well-known to frequent the house of Magdalen whenever he was travelling in Edinburgh, though to the outside world it seemed that Magdalen was his mistress rather than his spouse. Wife of Sir John Shaw of Greenock, Lady Margaret Dalrymple, called to Magdalen “and told her that she was sorry to hear that she kept a Criminal Correspondence with Carrick which was very Disobliging to his Ladys Relations to whom she had been obliged for her pension.” Under fire from the aristocracy, Magdalen promised to never see the captain again and that “she had no Correspondence with Carrick furder than a kiss in Civility when he came to Edinburgh or left it,” but this promise was broken, and the statement certainly untrue. When Carrick went abroad, Jean came to know about his relations with Magdalen, after a servant caught him burning letters from Magdalen. At being caught the captain “begged of her not to shew them to his Wife … for that she had gott too much Grief and Trouble by Letters of that kind already,” but the servant was disobedient and delivered the two recovered letters to Lady Carrick.

At this instance, Carrick then knew that very soon he would have to confront the matter as it was getting greatly out of hand, enfolding his brother and heir, into the matter. However, with the occurrence of his death, everything was left unresolved and never confronted. Still, even with the knowledge of Magdalen, Jean never considered that the other woman would file for Carrick’s pension as his lawful wife, thereby making Jean’s twenty year marriage void and their daughter illegitimate, and when she learned of Magdalen’s actions, she immediately filed for a Declarator of Marriage action from the Commissary Court.

Magdalen, who had no children by Carrick, did likewise, but Jean, who had no problem producing many documents as evidence: the marriage certificate, the trust deeds, the letters, and innumerable witnesses, ranging from gentry to servants, was successful in the ruling with no evidence allowed to be submitted on Magdalen’s behalf. Thus, when the ruling came out on August 6, 1747, it was in favor of Jean, and the court decided that Jean’s marriage had been sufficiently proven and allowed no more dissent from Magdalen. What was uncommon about this ruling, even for the time, was the lack of decision not on whether Jean’s marriage was real, but whether or not Magdalen had a previous claim on the captain. Thus, Magdalen appealed to the House of Lords, after failing to overturn the first verdict, and on February 6, 1749, it was ruled that she should be allowed to present her case.

Magdalen’s evidence was not so straightforward as Jean’s, and many times Jean’s lawyer was able to disprove the credibility of the witnesses, such as when Jean Auchinloss, wife of a tide waiter in the port of London, claimed Magdalen had bribed witnesses with promises of wealth or upper class mobility, or when John Cunnison, an officer under Captain Carrick, had said the captain had confided in him the secret marriage, but his opinion was dismissed when it said he was a man of few morals and little integrity.

Among other witnesses coming to the aide of Magdalen were servants, and even members of her class, such as The Countess of Eglinton, who was told in 1743, and Lord George Ross, as the secrecy of the situation began to wear down on Magdalen. While these witnesses seemed to be reluctant confidants of Magdalen, the minister of the gospel in Edinburgh, Mr. George Wishart, was a more willing supporter. Offering her advice that she was within her legal rights to claim John as her legal husband, he urged her to make a claim. On top of all of this, Magdalen was claiming a husband who was dead, and therefore could not speak for himself, and gave Magdalen the desperate, mercenary air rather than one of pity.

On June 21, 1751, the court ruled that Magdalen had not provided sufficient evidence to claim her relationship with Carrick as a previous marriage, dismissing her claim. Magdalen then appealed to the to the Court of Session, which did not overturn the decision. With the House of Lords as her final option—who, subsequently, also dismissed her claim—there was pressure for the Lords to pass laws on the validity of clandestine marriages and that irregular marriages would soon be abolished in Scotland. However, the Scots were reluctant to change their laws. [9]

Under Hardwicke’s Act of 1754, marriages onward were no longer legal unless proclaimed and having taken place in a parish church, though marriages conducted under the Scottish laws would be upheld in England as well. It was thought, that such an act would surely cause situations like that of Campbell and Cochran to no longer exist if adopted, but was tested some seventy years later by a judge saying nothing in the new act stopped a man from marrying one woman in a church in one city, and also doing it again, with another woman, in another parish, somewhere else. The judge’s opinion, that there was no superiority of the English law, was backed by his urging that until there was some civil registration involved, none of the disturbances would cease to exist. [10]

In later cases, the Cochran/Campbell decision was no precedent for future courts; not one year later, many of the same judges came to a completely opposite decision in a situation that echoed many of the same points as that of Cochran and Campbell. In the case of 1755, a farmer, John Grinton, proposed marriage to Alison Pennycuik while intoxicated, and she agreed and went to bed with him. Later, she brought action against him in 1748 for child support and for her ruined reputation. With Grinton saying under oath that his promises of marriage were made under the influence, Allison dropped the allegations; Grinton went on to marry another, Ann Graite, and they lived together and had a child in 1750. One year later, Alison Pennycuik filed a new case, to prove the legitimacy of her child and have her marriage to Grinton declared, so she could divorce her husband for adultery. While Ann Graite tried to make a claim that her marriage, not Allison’s was valid, Grinton had admitted under oath in the previous case that Grinton had indeed promised marriage to Allison, and therefore the Court of Session upheld the ruling that the previous marriage was valid. [11]

While these two differing rulings would later cause some inconsistency in the law, commentators realized that marriage law, for whatever it was, would have to be somewhat flexible. In fact, in Magdalen’s case, the ruling that was unfavorable to her came down to a very detailed review; Magdalen’s secrecy of her own marriage, and the case of Jean being openly John’s wife for twenty years, and mother to his only surviving child, did not help her case, and with John dead and unable to testify, Magdalen drew the unpopular vote, and lost, where Alison Pennycuik had been victorious.

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When Hardwicke’s decision finally became law, it was seen in many ways, not any more likely to provide justice for women, who lost the right to claim as husband as a man who promised to wed her and then slept with her, on many occasions impregnating her. Indeed, the new law was more gender and class biased, as well as being far more removed from the reality of the people at the time. The Scottish, keeping with their old laws, still allowed for the irregular marriages to persist, and upheld their validity in court, retaining the right to be flexibility in the face of evidence, and at the chagrin of Lord Hardwicke. [12]

Works cited:
  1. R. B. Outhwaite, Clandestine Marriage in England 1500-1850 (London and Rio Grande: Hambledon Press, 1995), 76; Lawrence Stone, Road to Divorce—England 1530-1987 (Oxford and New York: Oxford University Press, 1992), 122; Eve Tavor Bannet, “The Marriage Act of 1753: ‘A Most Cruel Law for the Fair Sex,’” Eighteenth-Century Studies 30 (1997): 237.
  2. James Fergusson, Treatise on the Present State of Consistorial Law in Scotland (Edinburgh: Bell and Bradfute, 1829): 144-51.
  3. For a full discussion of this subject, see Patrick Fraser, Treatise on the Law of Scotland as applicable to The Personal and Domestic Relations (Edinburgh: T. and T. Clark, 1846) 1: 124-97.
  4. For England, see Outhwaite and Stone (note 1 above); for Scotland, see Rosalind Mitchison and Leah Leneman, Sexuality and Social Control—Scotland 1660-1780 (Oxford: Basil Blackwell, 1989) or the revised version, Girls in Trouble—Sexuality and Social Control in Rural Scotland 1660-1780 (Edinburgh: Scottish Cultural Press, forthcoming): ch. 4; and Leah Leneman and Rosalind Mitchison, “Clandestine Marriage in the Scottish Cities 1660-1780,” Journal of Social History 26 (1993): 845-61; and Leah Leneman and Rosalind Mitchison, Sin in the City—Sexuality and Social Control in Urban Scotland 1660-1780 (Edinburgh: Scottish Cultural Press, forthcoming): ch. 8.
  5. A complex and interesting declarator of marriage case is discussed in Rab Houston and Manon van der Heijden, “Hands across the Water: The Making and Breaking of Marriage between Dutch and Scots in the Mid-Eighteenth Century,” Law and History Review 15 (1997): 215-42.
  6. Unless otherwise stated, everything else in this article comes from the extracted decreet in Edinburgh Commissary Court registers of decreets in the Scottish Record Office (SRO) CC8/5/
  7. Under the Scottish legal system married women are referred to by their maiden names. Jean was a Campbell both by birth and marriage; Magdalen was a widow known as Mrs. Kennedy, but legally she was Magdalen Cochran.
  8. It was common at this time to call a laird by the name of his estate, to distinguish him from all others of the same surname. Thus, he was John Campbell of Carrick but would always be referred to casually as Carrick.
  9. W. D. H. Sellar, “Marriage, Divorce and the Forbidden Degrees: Canon Law and Scots Law,” in Explorations in Law and History—Irish Legal History Society Discourses, 1988-1994, ed. W. N. Osborough (Dublin: Irish Academic Press, 1995), 62.
  10. Fergusson, Treatise, 124-25.
  11. Ibid., 152, and Reports 130-33. SRO.CC8/6/19.
  12. Bannet, “The Marriage Act of 1753.” John R. Gillis’s review of Outhwaite, Clandestine Marriage, in Women’s History Review 6 (1997): 294.

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