[1377] An example of the "smock" marriage; see p. 441 n. 3, above.
[1378] For these entries see Burn, Parish Registers, 153-55; and there are many others in idem, Fleet Marriages, 73 ff.
[1379] Hammick, Marriage Law of Eng., 11.
[1380] See the chronology of these bills to prevent clandestine marriages in Friedberg, Eheschliessung, 346-48; and compare Burn, Fleet Marriages, 11 ff. Three of them introduced respectively in 1677, 1685, and 1691, may be found in the Reports of the Historical Manuscripts Commission, IX, App. II, 91-99; XI, App. II, 276-80; XIII, App. V, 253 ff. The first declares that "notwithstanding all provisions by law ... several minors have ... been clandestinely married without consent of parents, and other irregular marriages have been made;" therefore it is enacted that it "shall not be in the power of any son, being under the age of twenty-one years, nor ... of any daughter ... under ... eighteen, to marry ... or to make a matrimonial contract of any kind whatsoever;" except the father or guardian "shall have given consent in writing attested by two credible witnesses at the least, ... or shall be present and consenting thereto," under penalty of nullity of the marriage. After the death of father and mother, the same restriction is put upon the contracts of males under eighteen and females under fourteen without the guardian's consent. "If any guardian shall be privy to any such pretended marriage," he shall lose "all his right, title, and interest to the custody of any such minors" and "shall also forfeit one moiety of his whole estate, both real and personal," one-half to the king and the other to the informer. If "any domestic or menial servant shall make any pretended marriage or matrimonial contract" with "any of the children or pupils of his or her mistress during their minority, and in such manner as ... is by this act declared to be ... null and void," such servant shall suffer three years' imprisonment. "Every ecclesiastical person who celebrates such a marriage or any marriage whatsoever whereof the banns had not been published as required by the ecclesiastical law, shall be adjudged deprived ipso facto of all benefices, dignities, pensions, and spiritual promotions which he had at time of such offence or at any time after." Personating a priest in such cases is constituted felony without benefit of clergy, punishable by death. For violating the act in the issue of a license, the offender shall forfeit his office and be incapable of holding office in church or state. The bill of 1691 is very similar in its provisions.
[1381] The evil results of these blundering statutes are vigorously stated by Jeaffreson, Brides and Bridals, II, 167 ff., 130 ff., 84. The effects of 7 and 8 W. III., were especially bad. Before its enactment "it was in the power of any rogue married at a tavern-wedding to inform against the officiating clergyman, without rendering himself liable to punishment for his part in the irregular transaction. Any clerk or other person who assisted at a marriage without license or banns, could also with impunity turn informer against the lawless priest;" but by placing a penalty on all these persons "the mouths of individuals who were best qualified and most likely to give conclusive evidence against the peccant clergyman" were closed: ibid., 170, 171.
[1382] For these cases see Howell, State Trials, XIV, 559 ff., 1327 ff. The facts are summarized by Friedberg, Eheschliessung, 344-46. The case of "Barbara late Dutchess of Cleaveland" against Feilding, with much concerning Feilding's other adventures, may be found in Cases of Divorce for Several Causes (London, 1715). Elopement with heiresses is discussed by Ashton, Social Life in the Reign of Queen Anne, I, 29 ff. Of Haagen Swendsen, "who was, in 1702, convicted and executed for stealing Mrs. Rawlins," he says: "Nowadays, he would have been unhesitatingly acquitted, even if he had ever been presented, as there was no real case against him, and Mrs. Rawlins married him of her own free will."
In the Report of the Royal Commission, 1868, xxi-xxiii, it is estimated that one-third of all the marriages in the eighteenth century were "irregular;" whereas, after 1834, when the ministers of all denominations could solemnize, irregularity became a "stigma," the number of such contracts now (1868) being in the ratio of 1 to 1,000.
[1383] Gally, Some Considerations upon Clandestine Marriages (2d ed., London, 1750). The first edition of this work appeared in 1730. It is strong evidence of the slow progress of opinion on social questions that, a century after the enlightened legislation of Cromwell, the author should have found it necessary to enter into an elaborate argument to establish the right of the state to make the observance of prescribed forms and conditions essential to a valid marriage. Sec. i assigns "some general reasons for a law to annul clandestine marriages;" sec. ii presents "what the civil law has done on this subject;" sec. iii shows "what has been done in France;" and in sec. iv six objections to the adoption of such a law are answered. Dr. Gally's book was referred to in the debates on the Hardwicke act.
[1384] Cochrane alias Kennedy v. Campbell: Paton's Reports of Cases decided in the House of Lords on Appeal from Scotland, I (1726-57), 519-32; and Wilson and Shaw's Cases, III, 135, note. The appeal of the claimant was dismissed by the Lords for want of evidence; and only on this ground was that tribunal spared the cruel necessity of declaring void the marriage of persons who for many years had lived together openly as husband and wife. There are notices of the case in Walpole, Memoirs of the Reign of George II. (2d ed., 1847), I, 336 ff.; Cobbett, Par. History, XV, 8; Jeaffreson, Brides and Bridals, II, 181.
[1385] Friedberg, Eheschliessung, 349. Friedberg states erroneously that the Lords declared the marriage void.