Sir Henry Spelman tells us that “The Saxons in their deeds observed no set forme, but used honest and perspicuous words to express the thing intended with all brevity, yet not wanting the essential parts of a deed: as the names of the donor and donee, the consideration, the certainty of the thing given, the limitation of the estate, the reservation if any were, and the names of the witnesses, which always were many, some for the one part, and some for the other. As for dating, it was not usual amongst them. Seals they used not at all, other than (the common seal of Christianity) the sign of the Cross, which they, and all nations following the Greek and Roman Church, accompted the most solemn and inviolable manner of confirming.”
Marriage-Law of England.
On the 17th of March, 1835, Dr. Lushington, in the House of Commons, stated the history and principle of the Marriage Law of England thus—“By the ancient law of this country as to marriages, a marriage was good if celebrated in the presence of two witnesses, though without the intervention of a priest. But then came the decision of the Council of Trent rendering the solemnization by a priest necessary. At the Reformation we refused to accept the provision of the Council of Trent; and in consequence, the question was reduced to this state—that a marriage by civil contract was valid. But there was this extraordinary anomaly in the law, that the practice of some of our civil courts required, in certain instances and for some purposes, that the marriage should be celebrated in a particular form. It turned out that a marriage by civil contract was valid for some purposes, while for others—such as the descent of the real property to the heirs of the marriage—it was invalid. Thus, a man in the presence of a witness, accepting a woman for his wife, per verba de præsenti, the marriage was valid, as I have said, for some purposes, but for others to make it valid it was necessary that it should be celebrated in facie ecclesiæ. This was the state of the law till the passing of the Marriage Act in 1754.”
“Marriage, in its origin, (says Lord Stowell,) is a contract of natural law: it may exist between two individuals of different sexes although no third person existed in the world, as happened in the case of the common ancestors of mankind. In civil society it becomes a civil contract, regulated and prescribed by law, and endowed with civil consequences. In most civilized countries, acting under a sense of the force of sacred obligations, it has had the sanction of religion superadded. It then becomes a religious as well as a natural and civil contract; for it is a great mistake to suppose that, because it is the one, it may not likewise be the other.”—(2 Hagg. Cons. Rep. 63.)
Marriage Fines.
In the feudal times, the lord might object to the marriage of a bondman’s daughter with a stranger, even of her own condition; and by marriage with a freeman she became free during coverture, if not free for ever; this and the lord’s approval of her marriage being purchasable by fine. At Swincombe, in Oxfordshire, the bondman could not get a husband for his daughter, and could not take to himself a wife, without the lord’s permission.
Although a fine used to be paid by a freeman in the occupation of bond-land, on the marriage of his daughter, there was no more degradation in such a fine than there now is in the Archbishop of Canterbury’s charge for a marriage-licence. At Southfleet, Friendsbury, Wouldham, and other places in their neighbourhood, a tenant who wished to give his daughter in marriage had to announce the marriage to the warden or bailiff of the village, and to invite him to the wedding; the girl could not be married to any one out of the manor without the lord’s good-will; an heiress could not be married even to a neighbour without the lord’s consent. A tenant at Headington, Oxon, paid no fine on the marriage of his daughter within the manor—he paid two shillings for leave to give her in marriage to a stranger; but we are told that payment was on account of the chattels which might be removed out of the manor with her. When we consider the lord of a manor to be the patron and protector of all within it, there seems to be nothing very offensive in this arrogation of assent to the marriage of his tenant’s daughter.
Irregular Marriages.
Little more than a century ago, a common notion prevailed that the performance of the marriage ceremony by a person in holy orders rendered it sacred and indissoluble, without regard to any other condition. Hence arose the scandals and indecencies of the Fleet Marriages, i.e., marriages performed in the Fleet prison, and its neighbourhood, by a set of drunken, swearing parsons, and their myrmidons, who wore black coats, and pretended to be clerks and registrars to the Fleet. Those malpractices were put an end to by the Marriage Act of 1754: the register-books were purchased by Government in 1821, and deposited in the Bishop of London’s Registry. A similar abuse flourished at May Fair, until it was abolished by the Act of 1754, when the register-books were deposited in St. George’s church, Hanover-square.
The “Border Marriages” were also of this class of abuses, and arose from nothing formerly having been necessary in Scotland to constitute a man and woman husband and wife save a declaration of consent by the parties before witnesses, or even such a declaration in writing without any witnesses: a marriage which was considered binding in all respects. Still, a marriage in Scotland, not celebrated by a clergyman, except these “Border Marriages,” was rarely or never heard of. They were performed at Lamberton toll-bar, about three miles north of Berwick-upon-Tweed; and at Gretna Green, the nearest locality accessible to strangers actually within the territory of Scotland.[7] The preliminaries of such a marriage used to be a long purse in hand or in prospect, for the purpose of meeting heavy posting expenses, and bribes to secure speed. In the course of time, facility of travelling by railway, and of obtaining licensed carriages from the stands in towns, increased; and the farm-servants and the servants generally in the Border counties began to avail themselves of what was deemed a lawful practice by their superiors from other places. During the holidays for farm-servants, at Whitsuntide and Martinmas, the times of the statute-hirings, parties generally under the influence of drink, and too often tipsy, would hire carriages in Carlisle, and drive, by the two or three couples in a carriage, over the Border to get married in Scotland; they would live together for two or three days, then go to their services, and perhaps never again think of their having been married at all; or not till circumstances might arise making it worth the while of one of the parties to claim conjugal rights, with a view to participation in an inheritance of property—a not uncommon accident among the natives of the Border Counties.