"The woman ran across Ludgate Hill in her shift. 10s."[1377]
"N. B. A coachman came and was half married, and wou'd give but 3s 6d and went off."[1378]
Long before the middle of the eighteenth century it is very clear there was crying need of thoroughgoing reform in the marriage laws of England. To the surviving disorders arising in mediæval theory had come new ones of more modern growth. For, besides the shameful irregularities of the Fleet, clandestine contracts, either through the help of "hedge parsons"[1379] or else by simple agreement of the parties, illegal but not invalid, were still freely practiced throughout the kingdom. From 1666 onward during the seventeenth and eighteenth centuries efforts were repeatedly made to provide a remedy by legislation; but no bill succeeded in passing both houses of Parliament.[1380] The legislation of William and Anne, already referred to, proved an encouragement rather than a hindrance to clandestine unions. The rivalry of the prisons, "lawless" churches, and the regular Fleet chaplain was thus removed; conviction for breach of the statutes was rendered exceedingly difficult; and the increased expense caused by the tax upon licenses favored the business of parsons who were ready to "solemnize" marriages at low rates and without troublesome or costly conditions.[1381] Even the notorious cases of Haagen Swendsen in 1702 and "Beau" Feilding in 1706, though calling sharp attention of the public to the frightful dangers lurking in the matrimonial laws, were not enough to quicken the conscience of the nation.[1382] A timely edition of Dr. Gally's sensible book[1383] in 1750 did something to educate the public mind; and finally in 1753 the celebrated case of Cochrane v. Campbell,[1384] originating in Scotland, came in the last instance before the House of Lords. The validity of a marriage which had been legally celebrated and which had continued for nearly thirty years was challenged on account of previous secret sponsalia de praesenti. Save for lack of evidence of the alleged prior contract, "the wife who in true love during so long a time had been devoted to her husband, though already dead," would have been "degraded to the position of a concubine, the children begotten in marriage branded as bastards, and robbed of their inheritance."[1385] This case proved to be the proximate cause of the passage of the famous Hardwicke act of 1753. On January 31 of that year, on motion of Lord Bath, the House of Lords decided to bring in a "Bill for the better preventing of Clandestine Marriage." The drafting of the bill was intrusted to the twelve judges, but the draft presented by them was so imperfect, that the chancellor, Lord Hardwicke, undertook its thorough revision.[1386]
With little resistance the revised bill was readily passed through the Lords, the bishops even yielding their assent. But in the Commons it came to its final passage on June 6, 1753, only after a long and stormy contest. The press and the people participated in the excitement;[1387] and the tenacity of the old custom of private espousals is shown by the fact that the large majority of the latter were opposed to the measure, though this may in part be accounted for on the ground of its intolerance toward the dissenters. In the lower house the bill was ably supported by Attorney-General Ryder, Lord Barrington, the Earl of Hillsborough, Solicitor-General Murray, and by Mr. John Bond whose speech is remarkable for its strong argument and sober common-sense. Most prominent on the other side were Mr. Nugent, Colonel George Haldane, Charles Townshend, and, in particular, Henry Fox who in 1744 had himself contracted a clandestine marriage in the Fleet with the daughter of the Duke of Richmond.[1388] Another bitter antagonist of the bill was Horace Walpole, "two members of whose family were known to have entered matrimony by uncanonical wedlock, and one of whose nieces, several years after the enactment of Lord Hardwicke's Marriage Bill, became the bride of the most famous Fleet marriage on record."[1389] The arguments in support of the measure are direct, practical, and convincing; those of its opposers for the most part, except as directed to faults of detail, seem captious, forced, or even frivolous, when looked at in the light of modern experience. When they saw that the bill was likely to pass, they sought to make it obnoxious by mutilation and amendment.[1390]
In favor of the measure the notorious scandals and hardships caused by clandestine contracts are dwelt upon. "How often," exclaims the Attorney-General, "have we known a rich heiress carried off by a man of low birth, or perhaps by an infamous sharper? What distress some of our best families have been brought into, what ruin some of their sons or daughters have been involved in, by such means, every gentleman may from his own knowledge recollect."[1391] The bill, it is urged, provides an effective remedy for the evil. This remedy is publicity; and it can be secured only by making banns or license, with parental consent, followed by a solemn public celebration at the proper time and place, the absolute condition of a valid marriage. The practical success of such a system is proved by reference to Dutch experience. For the law of Holland is even stricter than the proposed measure. "In Holland," says Mr. Bond, "a regular proclamation of banns ... is so necessary, that a marriage without it is absolutely void, without any decree or sentence of any court for declaring it so;" and after publication the parties must be "married in the church or chapel of the religion[1392] to which they belong; neither of which can be dispensed with but by the supreme court of Holland with respect to the nobility, or by the supreme magistrate of their city with respect to the other inhabitants; so that ... no license can be granted, either as to the proclamation of banns, or as to not being married at church, by any ecclesiastical court whatsoever."[1393] Nor does the state overstep its proper authority when a marriage is rendered void for neglect to observe its prescribed forms. No violence is thus done to the "sanctity" of the marriage bond; for the canonical doctrine of the sacramental or indissoluble nature of matrimony is not sustained by an appeal either to history or to common-sense.[1394] "I think it is ridiculous to say," declares one speaker, "that infants shall have a power, when they come of age, to avoid and annul every contract they made, while under age, without the consent of their parents or guardians, and yet if without consent of father or mother, or guardian, they dispose of themselves and every thing that belongs to them in marriage whilst under age, they shall have no power to avoid that contract when they come of age, let it be never so fraudulent, pernicious or infamous. This is adding a sanctity to the marriage contract, which is inconsistent with the good of every society, and with the happiness of mankind in general."[1395]
On the other side, every merit claimed for the bill by its friends is changed into a fault. The evil of secret espousals is minimized or even denied. Charles Townshend, whose argument is singularly forced and superficial, boldly asserts that "clandestine marriages cannot properly in themselves be called a public evil, and as they are of different kinds, they ought to have a different consideration." There are, he says, four varieties. Those that are equal both as to rank and fortune "cannot be called a public evil, because they are generally the most happy, and such as parents ought to approve of, and would approve of, if not governed by some whim or caprice.... As to those that are unequal with respect to fortune, they are so far from being a public evil, that they are a public benefit, because they serve to disperse the wealth of the kingdom through the whole body of the people, and to prevent the accumulating and monopolizing it into a few hands; which is an advantage to every society, especially a free and trading society. The same may be said of clandestine marriages that are unequal both as to rank and fortune," for they are still more leveling in their effects; as when "a lord of good estate" marries "a taylor's or a shoemaker's daughter of good character, though not worth a groat," or a "lady of quality, entitled to a good estate," marries such a man's son who is honorable but poor. Such marriages are a public blessing. "Nay I will go farther," he adds, "such marriages seldom, if ever, bring shame or misery upon the contracting parties." Only the secret marriages which are properly called "scandalous and infamous" are a public evil; such as are entered into between a gentleman of character and an abandoned woman, or between a reputable lady and "a notorious rogue or common sharper." But "how rarely do such infamous marriages happen, especially with respect to those under age."[1396] In fact, throughout the argument of the opposition every change is rung on the objection that the bill is aristocratic and plutocratic in its motive. Elopement, even through the connivance of a Fleet parson, is practically elevated into the chief security of democracy and the necessary safety-valve of human passion. Should the bill pass and the advantage of secretly contracting a valid marriage be thus taken away, the nobility "will in a great measure secure all the great heiresses in the kingdom to those of their own body. An old miser, even of the lowest birth, is generally ambitious of having his only daughter married to a lord, and a guardian has generally some selfish view, or some interest to serve, by getting his rich ward married to the eldest son of some duke, marquiss, or earl; so that when a young commoner makes his addresses to a rich heiress, he has no friend but his superior merit, and that little deity called love," whose counsel, but for the proposed law, she may harken to in tender youth, but whose influence over her decreases "as she increases in years; for by the time she comes of age, pride and ambition seize possession of her heart likewise;" so that as a result hereafter, if the bill pass, "no commoner will ever marry a rich heiress, unless his father be a minister of state, nor will a peer's eldest son marry the daughter of a commoner, unless she be a rich heiress."[1397] Furthermore, close intermarrying among the rich and noble will cause degeneration. "What sort of breed their offspring will be, we may easily judge: if the gout, the gravel, the pox, and madness are always to wed together, what a hopeful generation of quality and rich commoners shall we have amongst us." Then, too, a social caste will be developed in England, such as the distinction between noblesse and roturiers abroad, especially in France, where the marriages of the "quality" are something like those of "sovereign princes: the bride and bridegroom sometimes have never seen one another, till they meet to be married;" hence in that country gallantry has taken the place of "conjugal love and fidelity."[1398] Nay, the sinister effects of the proposed measure in this regard are not exhausted even by this dark prophecy. Coming to the rescue, another ingenious logician shows conclusively that through the increase of wealth, which means political power, the lords, following the Venetian example, may overmaster the commons, subvert the free constitution, and set up a despotic oligarchy in its place.[1399]
But the obstacles placed by the bill in the way of free wedlock will have still other disastrous consequences. Marriage will be discouraged among the lower orders, particularly the industrious poor, while at the same time immorality through illicit unions will be vastly increased. The state will thus suffer through the check put upon the growth of its best population.[1400] For the bill not only places tyrannical power in the hands of parents or guardians by making their consent necessary to a valid marriage,[1401] but passionate lovers even when of full age will not wait for the publication of banns, while the poor will be unable to pay for a license.[1402] The proposed law, according to Haldane, "will really prove a sort of prohibition of marriage with respect to all our poorer sort of people, because it will render the solemnization of that ceremony so tedious and troublesome, or so expensive, that many of them will chuse to live single, or agree to live together without any marriage at all. We know how averse our people generally are to a proclamation of banns, even in the present method, when in any of our holiday weeks the whole may be performed, and the loving couple made happy ... in three or four days; how much more averse, then, will they be in this way of marrying, when they must give a week's notice before the banns can be first proclaimed, and after that must wait above three weeks before the proclamation ... can be finished and the marriage ceremony performed?" The natural result will be the increase of sexual vice.[1403] Townshend presents a similar argument, though some of his forebodings were fully justified by future events. The bill instead of preventing polygamy—by which he means bigamy—will encourage it; "for it prescribes so many formalities for rendering a marriage good and valid in law, that a cunning fellow will always take care to have some of them omitted," so that he cannot be convicted of a breach of the statute. Marriage will still be difficult of proof; and by encouraging false promises of marriage the bill sets a cruel snare for the feet of the innocent.[1404] "As the law now stands, if a treacherous young fellow should refuse to perform such a promise, the young woman who trusted to it may sue him in an ecclesiastical court, where she may put him on his oath, and if he confesses the promise, or she can otherwise prove it, he must either marry her, or be imprisoned upon the writ de excommunicato capiendo." But under the proposed act "she can have no relief: the statute of frauds and perjuries will be a bar to her action at common law, unless she has been so cautious as to take a promise in writing; even then, if he was under age, his nonage will be a bar to her action; and suppose him of age"—and here the distinguished member of the House of Commons takes a tone which like a flash reveals the political torpor of the English people and of the Whig oligarchy of George II.—"she must submit to have a price put upon her honor and virtue by a jury of tradesmen, few of whom are accustomed to deal in that commodity." But, with Colonel Haldane, he believes, of all the evil consequences of the act "that of preventing marriage and promoting fornication among our industrious poor will be most pernicious."[1405] Yet how simple would be the proper remedy[1406] for the defects of the present marriage laws!
In concluding the summary of this debate, singularly illustrative of the imaginary evils so often conjured up against reform measures, the deep-seated prejudice of the English people to publicity in matrimonial engagements should be noted. It seems that in 1753, as well as in 1653 and 1836, the open procedure prescribed by the law gave a certain shock to popular sentiment. "It is a peculiar phenomenon," says Friedberg, "that the English nation, whose whole political system is interpenetrated by the principle of publicity, should look upon publicity in the formation of marriage as positively improper; that it should regard the publication of banns ... as an unjustifiable violation of modesty."[1407] In this spirit Horace Walpole, ridiculing the Hardwicke act, writes to Hon. Seymour Conway: "It is well you are married. How would my lady A—— have liked to be asked in a parish-church for three Sundays running? I really believe she would have worn her weeds forever, rather than have passed through so impudent a ceremony."[1408] According to Mr. Nugent, "it is certain, that proclamation of banns and a public marriage is against the genius and nature of our people; it shocks the modesty of a young girl to have it proclaimed through the parish, that she is going to be married; and a young fellow does not like to be exposed so long beforehand to the jeers of all his companions."[1409] In fact, without defending banns as an ideal institution, one cannot help reflecting that the final triumph of civil marriage has already done something to overcome the false delicacy touching human sexual relations and responsibilities, whose survival in modern society is nevertheless still a serious hindrance to rational education.
By the statute of 1753,[1410] whose origin has now been considered, all marriages, save those of Quakers and Jews or those of members of the royal family, are to be celebrated only after publication of banns or license, and only during the canonical hours[1411] in an Anglican church or chapel where "banns of matrimony have been usually published," and before an Anglican clergyman. To solemnize marriage in any other manner or in any other place, or without banns except by special license of the archbishop, is punished with fourteen years' transportation, and the marriage is declared void. Two or more witnesses must be present. The clergy are required to keep registers, and the falsifying or destroying the same is punished by death. In the case of banns the express consent of parent or guardian for the marriage of minors is not required. Such a marriage is legal when dissent has not been expressed.[1412] But in the case of license the marriage of a minor—not being a widow or a widower—without the consent of parent or guardian is absolutely void.[1413] Furthermore, the act declares that persons convicted of solemnizing "matrimony in prisons and other places without publication of banns or license" shall be judged guilty of felony and sentenced to fourteen years' transportation, while the marriages so solemnized are absolutely null and void. Precontracts are likewise abolished. "In no case whatsoever shall any suit or proceeding be had in any ecclesiastical court in order to compel a celebration of marriage in facie ecclesiae, by reason of any contract ... whether per verba de praesenti or per verba de futuro."