A History of Matrimonial Institutions, Vol. 1 of 3

by George Elliott Howard

III. CHILD-MARRIAGES IN THE AGE OF ELIZABETH

Seldom has a more vivid light been thrown on social conditions than that afforded for the age of Elizabeth by the depositions taken in the bishop's court of the diocese of Chester, 1561-66, and edited for the Early English Text Society by Furnivall in 1897. Their value for the student is enhanced by the very lively "forewords" of the learned and enthusiastic editor. The evils naturally flowing from the law and doctrine of espousals are here realistically disclosed in the "trothplights" and the similar cases of "clandestine marriages."[1273] There is the usual juggling with the words of the present or future tense; and the usual puzzling over conditions and irregular phrases. For the basest of motives girls are tricked into vows which may or may not prove to be valid marriages according to the uncertain interpretation of the words or acts of betrothal sworn to in court. "Ten of the seventeen cases" of trothplight, says Furnivall, "show us men trying to sneak out of their contracts when they've had their fill of pleasure with the women."[1274] Needy and unscrupulous priests, worthy predecessors of the notorious Fleet parsons, without banns or license, are seen "solemnizing" the nuptials "accordinge to the book of Common prayer," in a private house, in a meadow, or on the "heighe waie," during "the night season" and "by the lighte of the moone."[1275]

The astonishing prevalence of child-marriages is, however, the most important fact revealed by these documents.[1276] In a single diocese during the short space of six years, besides three "ratifications," occurred twenty-eight cases of so-called divorce or voidance of contracts which were formed in infancy or early childhood. The age of the persons varies from two to thirteen years; and in at least ten cases the girl is older than the boy. It should also be observed that these thirty-one contracts are merely those brought before the court for confirmation or annulment after at least one of the parties has reached the age of puberty, which by the canon law is fixed at twelve for females and fourteen for males. It is, of course, proper to assume that the number of child-marriages which never thus came up for settlement was very much larger than the number of those which did so arise. What the number for all England may have been during the period, it is startling to contemplate! Moreover, the majority of these marriages took place, not among the rich or noble, but among common people of small means. In a number of instances we are told in the record that the infant bride or bridegroom was carried before the priest in someone's arms. Thus, in a case which arose in 1564, a witness deposes that "he was present bie, when John Somerforth and Jane Brerton were maried together in the parish church of Brerton about xij yeres ago ... that he carried the said John in his armes, beinge at tyme of the said Mariage about iij yeres of age, and spake somme of the wordes of Matrimonye, that the said John, bie reason of his younge age, cold not speake hym self, holdinge him in his armes all the while the wordes of Matrimonie were in speakinge. And one James Holford caried the said Jane in his armes, beinge at the said tyme about ij yeres of age, and spake all, or the most parte of, the wordes of matrimony for her." Being further "required whether the said marriage was euer ratified bie carnall Copulacion or other meane, Answereth that, in his Conscience, it was neuer." Another witness testified to the same facts and added, "it was the youngest Mariage that euer he was at."[1277]

Looked at from a religious point of view, it would be hard to imagine a more absurd travesty of "holy wedlock" than such proceedings conducted by the parish priest.[1278] Nor was there much sentiment involved in the matter. If the great folk betrothed their children while babes to escape the king's right of wardship, the small folk were influenced by like motives on a smaller scale. "If the parent of either child is mercenary," summarizes Furnivall, "a money-bargain is made for it: the father of a boy of two, gets from an older girl's father, 'monie to bie a pece of land,' and executes a Bond to repay the money if his boy doesn't marry the girl (pp. 6-9). In another case, the boy's father is in debt, 'and to get somme money of William Whitfield, to the discharge of his debtes, maried and bargained his sonne to the said Whitfeildes doughter' (pp. 23, 24). Again, a girl of 3 or 4 is married to a boy of 7 'biecause her frendes thought she shuld have had a lyvinge bie hym' (p. 4), and her father-in-law is under Bond to marry them (p. 5). So again, a girl's father says that she married a boy of her own age, 11-12 'biecause she shold have had bie hym a prety bargane, yf they cold have lovid, on the other' (p. 12). Another girl of 11 is married to a boy of 9, because, on her father's death, the boy's father gets the landlord's leave to take-on the girl's house (p. 10). Another girl of 8 is married to a boy of 10, because the boy's father feard 'lest he shuld lose his parte of his lyvinge' in a tenement which he held in common with the girl's protector (p. 14). In another instance, the girl's grandfather 'was a very welthie man; and it was supposed that he wold have bene good vnto' her & her boy-husband, 'and bestowid somme good ferme apon her' (p. 32), so a boy of 12 married her when she was 10. Other children are married 'bie the compulsion of their frendes' (pp. 11, 13, 23 &c.); another 'by a wile' (p. 16), the girl being invited by a relation of the boy's to come and make merry, and then married to the boy against her consent. But in one case, a girl arranged her own marriage. She was 'a bigge damsell & mariageable' (p. 47), that is, past 12, and evidently fancying a nice boy of 10-11, 'intised hym with two Apples, to go with her to Colne, and to marry her' (p. 45). No wonder that this boy 'repentid' next morning, and that others say 'at the tyme of their mariage they knewe not what they did' (p. 15)."[1279]

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CHAPTER X
RISE OF CIVIL MARRIAGE

[Bibliographical Note X.—The beginning of the Puritan conception of marriage as a civil contract is best seen in Whitgift's "Defence of the Answer," Works (Parker Society, Cambridge, 1851-53), comprising Cartwright's Reply to the Answer, as well as extracts from the Answer itself, and from the original Admonition of 1572 which gave rise to the whole controversy. The views of the Independents, when fully developed, find their fullest expression in the writings of Milton on marriage and divorce, constituting, besides scattered allusions, Vol. III of his Prose Works (Bohn ed., London, 1888); the Likeliest Means to remove Hirelings out of the Church, and the version of Bucer's De regno Christi, entitled The Judgment of Martin Bucer, being of special interest in this connection. For the early period some useful material is afforded by Prothero's Statutes and Constitutional Documents (Oxford, 1894); Brereton's Travels in Holland, 1634-35: "Chetham Society Publications," Vol. I; Hallam's Constitutional History (New York, 1880); and Ranke's England in the Seventeenth Century (Oxford, 1875).

The act of 1653 is contained in Scobell's Collection of Acts and Ordinances, 1640-1656 (London, 1658); and in the contemporary newspaper entitled Several Proceedings of Parliament, No. 6; but, like all the acts of the revolutionary period, it is omitted in every edition of the Statutes at Large. Original material for a study of the administration of this law may be found in the parish registers covering the interregnum edited by Bulwer, Parish Registers of St. Martin-cum-Gregory in the City of York, Part IV (York, 1895); Cowper, The Booke of Register of the Parish of St. Peter in Canterbury (Canterbury, 1888); Parish Registers of Ellough, Suffolk (privately printed, 1886); Hoveden, The Register Booke ... of the Cathedral and Metropoliticall Church ... of Canterburie (Harleian Society, London, 1878); Margerison, The Registers of the Parish Church of Calverley, in the West Riding of ... York (Bradford, 1880-87); Moore, Registers of Broad Chalke, County Wilts (London, 1880); Phillimore, Gloustershire Parish Registers (London, 1896); Radcliffe, The Parish Registers of St. Chad, Saddlworth in County of York (Uppermill, 1887); Sanders, The Parish Registers of Eastham, Cheshire (London, 1891); idem, The Parish Registers of Bebington, County Chester (Liverpool, 1897); Stavert, The Parish Registers of Burnsall-in-Craven (Skipton, 1893); and Turner, The Non-Conformist Register (Brighouse, 1881). There is an interesting table in Graunt's Natural and Political Observations (Oxford, 1665); and examples of marriage certificates and other records under the act of 1653 may be found in The Register Booke of Inglebye iuxta Grenhow (Canterbury, 1889); Burn's Parish Registers; Friedberg's Eheschliessung; Notes and Queries (London, 1850 ff.); and the Gentleman's Magazine (London, 1731 ff.). The two periodicals just mentioned, like the Monthly Review (London, 1749 ff.), contain a great deal of matter—curious antiquities as well as serious discussion—relative to Fleet marriages, the Hardwicke act, and other phases of the subject. Inderwick's Interregnum (London, 1891) has an instructive discussion of some questions connected with the marriage act; and like Jenk's Constitutional Experiments (Cambridge, 1890) it is valuable for appreciating the legislation of the Commonwealth. Lathbury's History of the Book of Common Prayer (Oxford and London, 1859) describes the operation of the act; and some cases noted in Jeaffreson's Middlesex County Records (London, n. d.) prove the need of the safeguard against abduction or fraud afforded by the act; and there are a number of useful documents in the Reports of the Historical Manuscripts Commission. Illustrations of the ridicule called out by banns in the market-place and the justices' celebration may be found in Butler's Hudibras (Boston, 1864), and Flecknoe's Diarium (London, 1656).

On the Fleet and Mayfair celebrations Burn's now very scarce Fleet Marriages (2d ed., London, 1834) is the chief authority. It is supplemented by his Parish Registers; and these books as well as the original sources have been used for Friedberg's excellent account in the Eheschliessung, which on this topic and the whole ground covered by the present chapter is a trustworthy guide. A famous contemporary book is Brady's Some Considerations upon Clandestine Marriages (2d ed., London, 1750). There is an article by Ewald, "Fleet Marriages," in his Paper and Parchment (London, 1890); and Waters's excellent Parish Registers (new ed., London, 1883) is more reliable than the similar work of Burn. Fleet marriages are also discussed, with interesting extracts from the contemporary newspapers, by Tegg, The Knot Tied (London, 1877); Ashton, The Fleet (London, 1889); and Jeaffreson, Brides and Bridals (London, 1872), whose book, like Brand's Observations on the Popular Antiquities of Great Britain (London, 1873-77), contains a mass of information relating to every phase of marriage customs. On these marriages and on the Hardwicke act see also Horace Walpole's Letters (London, 1880); and Lecky, History of England in the 18th Century (New York, 1879).

Many illustrations of matrimonial usage and folklore may be found in Howlett, "Marriage Customs," in Andrews's Curious Church Customs (London, 1895); Edgar, "Marriage in Olden Times," in his Old Church Life in Scotland (London, 1886); Vaux, "Marriage Customs," in his Church Folklore (London, 1894); Ashton, Social Life in the Reign of Queen Anne (London, 1882); and Hutchinson, Chronicles of Gretna Green (London, 1844). In England as well as in Germany the question of polygamy was much debated. A version of Ochino was brought out by Garfeild, A Dialogue of Polygamy (London, 1657). This was followed by the anonymous Concubinage and Polygamy Disproved (London, 1698); Turner, Discourse on Fornication with an Appendix on Concubinage (London, 1698); Delany, Reflections upon Polygamy (London, 1737), opposing the practice; Hamilton, A Treatise on Polygamy proving it to be the Will of God (Dublin, 1786); especially the notorious work of Madan, Thelyphthora; or a Treatise on Female Ruin (2d ed., London, 1781); answered by Towers, Polygamy Unscriptural; or two Dialogues between Philalethes and Monogamus (London, 1780); by Hill, The Blessings of Polygamy (London, 1781); and more elaborately by Cookson, Thoughts on Polygamy (Winchester, 1782). See also Dwight, The Hebrew Wife (Glasgow, 1837); and Colenzo, A Letter to the Archbishop of Canterbury (Cambridge, 1862).

The development of contemporary sentiment and opinion may be traced in The Lawes Resolutions of Womens Rights (London, 1632); Courtin, A Treatise of Jealousie (London, 1684); Salmon, A Critical Essay Concerning Marriage (London, 1724); De Foe, Religious Courtship (London, 1729); Astell's sensible and liberal Reflections upon Marriage (4th ed., London, 1730); the critical and vigorous Hardships of the English Laws in Relation to Wives (London, 1735); Dove, Dissertations on Marriage, Celibacy, etc. (1769); Giles, A Treatise on Marriage (London, 1771); the anonymous Considerations on the Causes of the present Stagnation of Matrimony (London, 1772), alleging the unreasonable authority of parents; The Laws respecting Women, as they regard their Natural Rights (London, 1777); Wollstonecraft, A Vindication of the Rights of Men (London, 1790); her more celebrated A Vindication of the Rights of Woman (London, 1792); Jay, Essay on Marriage, or the duty of Christians to marry Religiously (2d ed., Bath, 1807); Observations on the Marriage Laws (London, 1815); Thompson, Marriage: Two Sermons (London, 1837); and Wardell-Yerburgh (ed.), Marriage Addresses and Marriage Hymns (London and New York, 1900). For the socialistic marriage doctrines of Robert Owen and others see Bibliographical Note XVIII.

For the debates on the act of 1753 see Cobbett, Parliamentary History, XV; the lively comments of Horace Walpole in his Letters; and the same writer's account of the proceedings in his Memoirs of the Reign of George the Second (2d ed., London, 1847). The act is harshly criticised by Madan; and among the writings which it called forth are Considerations on the Bill for preventing Clandestine Marriages (London, 1753); Fry, Considerations on the Act to prevent Clandestine Marriages (London, 1754); Merrick, Marriage a Divine Institution (London, 1754), approving the conservative views of Stebbing, An Enquiry into the Force and Operation of the Annulling Clauses (London, 1754); idem, A Dissertation on the Power of States to deny Civil Protection to the Marriage of Minors (London, 1755); both papers being criticised by Sayer, A Vindication of the Power of Society to Annull the Marriage of Minors (London, 1755). The acts of 1753 and 1836 are noticed also by Mahon, History of England (New York, 1849); Knight, History of England (New York, 1880); Lecky, Democracy and Liberty (New York, 1896); and Spencer Walpole, History of England (London, 1890).

On the existing law as developed since 1753, especially the acts of 1836, the Parliamentary History and the Parliamentary Debates are of course necessary; and for this topic, as well as for the entire chapter, the Statutes at Large are in constant requisition. There are contemporary notices of the acts of 1823 and 1836 in the Annual Register, LXV and LXXVIII; while the sources have been carefully examined by Oppenheim in his valuable monograph, "Ueber die Einführung der Civil-Ehe in England," in ZKR., I (Berlin, 1861). The temper and arguments with which the efforts to secure justice were opposed are disclosed in A Letter to the ... Earl of Liverpool (London, 1827) by a "Presbyter of the Church of England;" Le Geyt, Observations on the Bill now before Parliament (London, 1827); and Griffin-Stonestreet, Nuptiæ Sacræ: Objections to the Amended Unitarian Marriage Bill (London, 1828). See further Phillimore, Substance of the Speech ... on moving ... to amend the Marriage Act (2d ed., London, 1822); and Lawton's edition of The Marriage Act, 4 Geo. IV., c. 76 (London, 1823); Beard, Notes on Lord John Russell's Marriage Bill (London, 1834); and in particular the "Report of the Royal Commission on the Laws of Marriage," in British Documents, 1867-68, XXXII (London, 1868). Of service also are Cooke, A Report of the Case of Horner against Liddiard, Consistorial Court of London, 1799 (London, 1800); Poynter, Doctrine and Practice of the Ecclesiastical Courts in Doctors Commons (London, 1822); Robertson, The Law of Legitimation by Subsequent Marriage (London, 1829); Moodie, Principles, Changes, and Improvements in the Law of Marriage (London, 1849); Wilks, Present Law of Banns a Railroad to Marriage (London, 1864), with which may be compared Ewen, Proclamation of Banns in Scotland (Edinburgh, 1877).

The best short technical treatises on the English marriage laws as a whole are Hammick's The Marriage Law (London, 1887); Geary's Marriage and Family Relations (London, 1892); Ernst's Treatise on Marriage and Divorce (London, 1879); and the concise discussions in Brett's excellent Commentaries on the Laws of England (London, 1891). Of some service also is Tegg's popular book, The Knot Tied, already mentioned; and the compact manual of Moore, How to Be Married (London, 1890), is convenient for ready reference. Useful likewise in this study are the works of Blackstone, Toulmin Smith, Bishop, Evans, Fischel, Burn (Ecclesiastical Laws), Bohn (Political Cyclopædia), all of which have been mentioned in preceding Notes; as well as Campbell, Chancellors (4th ed., London, 1856-57); Howell, State Trials (London, 1809-28); Molesworth, History of England (London, 1877); May, Constitutional History (New York, 1880); Taswell-Langmead, Constitutional History (London, 1880); Green, English People (New York, 1880); and the valuable article on "Marriage" by Robertson in the Encyclopædia Britannica, XV.]