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ciate at such marriage. But after debate it was dropped, and chiefly upon these suggestions ; that better laws could not be contrived than those already made to prevent clandestine marriages: and were our ecclesiastical constitutions duly observed and vigorously prosecuted against all who violate them, there would be no need of making Acts of Parliament, or establishing sanguinary laws against the clergy, for preventing them. That most of the stolen marriages that are complained of are brought about by the dispensation of publication of banns, which was the original law to prevent clandestine doings: the rules laid down in the canons of 1603 for granting these dispensations not being strictly observed as they ought to bef.”
At this period occurred a transaction which excited considerable attention. Captain Campbell, brother of the Duke of Argyle, succeeded in carrying off the daughter of Sir George Wharton, an heiress of large fortune, and marrying her against her will. A royal proclamation was immediately issued for the apprehension of the offenders, and Sir John Johnstone, one of the accomplices, was tried, condemned, and executed, notwithstanding the powerful interest which was exerted in his favour, and the plea that the violence offered to the bride was less than was alleged. It was thought that this incident would have favoured the progress of a Bill then before the House of Commons for the prevention of clandestine marriages, which however dropped. Another Bill however passed both Houses
Sharpe's Charges, p. 287, note.
for rendering void the marriage between Mr. Campbell and Miss Wharton, which could not have been necessary if the law of the age had recognized the nullity of marriages contracted without consent. In 1712, and again in 1718, the Convocation took up the subject of licences of matrimony, and the reformation of sundry and grievous abuses in the granting and obtaining of such licences : and the drift of their resolutions in both cases was to approve and enforce the provisions of the sixty-second canon of 1603%.
Hitherto the English law has been shewn to be free from the imputation of nullity, and when at length it was introduced, its novelty was affirmed by Blackstone, who observed, with reference to the practice of other countries, that "it has lately been thought proper to introduce something of the same policy into our laws ... much may be, and much has been, said, both for and against this innovation upon our ancient laws and constitution h.”
There is no doubt, that at this time the law of marriage imperatively called for revision and renovation, from the entire neglect of every precaution and restraint which had been provided against clandestinity, and from the extraordinary facilities' which
Ibid. p. 288, 289. Previous to the Marriage Act, licences might be obtained by letter only, stating the assent of both the parties concerned to the union, and the attestation of a witness to the signature. Gent. Mag. vol. xciii. p. 522.
Bl. Com. c. 15. "The nature of the singular privilege attached to the Fleet Prison of celebrating what were termed Fleet marriages, is exhibited in the complaint of a correspondent of the Gentleman's Magazine for 1735, who deplores the many ruinous marriages
were offered for entering into private and irregular marriages, to the irretrievable injury of the most respectable members of society.
The history of the Act of 1754 is given by Lord Orford with his characteristic flippancy, and in the full spirit of that implacable hostility which he bore to the Lord Chancellor Hardwicke.
- The session of Parliament was languishing towards a conclusion, when a Bill, sent down from the Lords to the Commons, which had passed almost without notice through the former House, having been carried by an hundred lords against the Duke of Bedford and eleven others, raised, or gave occasion to raise, extraordinary heats. ...
“ The Bill had been originally moved by my Lord Bath, who, attending a Scotch cause, was
that are every year performed in the Fleet, by a set of drunken, swearing parsons, with their myrmidons that wear black coats, and pretend to be clerks and registers to the Fleet, plying about Ludgate Hill, pulling and forcing people to some peddling alehouse or brandy-shop to be married, and even on Sundays stopping them as they go into the church.” 2954 marriages, as was shewn in evidence, were celebrated in this way from Oct. 1704 to Feb. 1705, without either licence or certificate of banns. Twenty or thirty couple were sometimes joined in one day, and their names, if they chose to pay for it, were concealed by private marks. Pennant says, that in walking by the prison in his youth, he had been often tempted with the question, Sir, will you please to walk in and be married ? and that signs exhibiting a male and female hand conjoined, with the inscription, “ Marriages performed within,” were common along the whole of this lawless space. A dirty fellow invited the passenger in. The parson was seen walking before the shop, a squalid, profligate figure, clad in a tattered plaid night gown, with a fiery face, ready to couple you for a dram of gin or a roll of tobacco.
struck with the hardship of a matrimonial case, in which a man, after a marriage of thirty years, was claimed by another woman on a precontract. The Judges were ordered to frame a Bill that should remedy so cruel a retrospect. They did ; but drew it so ill, and it was three times printed so inaccurately, that the Chancellor was obliged to give it ample correction. Whether from mere partiality to an ordinance thus become his own, or whether in shaping a law new views of power opened to a mind fond of dictating, so it was that the Chancellor gave all his attention to a statute into which he had breathed the very spirit of aristocracy and insolent nobility. It was amazing in a country where liberty gives choice, where trade and money confer equality, and where facility of marriage has always been supposed to produce populousness; it was amazing to see a law promulged, that cramped inclination, that discountenanced matrimony, and that seemed to annex as sacred privileges to birth as could be devised in the proudest, poorest, little Italian principality....
• The abuse of precontracts had occasioned the demand of a remedy: the physician immediately prescribed medicines for every ailment to which the ceremony of marriage was, or was supposed to be, liable. Publication of banns was already an established ordinance, but totally in disuse, except among the inferior people, who did not blush to obey the law. Persons of quality, who proclaimed every other step of their conjugation by the most public parade, were ashamed to have the intention of it notified, and were constantly married by special licence. Unsuitable matches in a country where
the passions are not impetuous, and where it is neither customary nor easy to tyrannize the inclinations of children, were by no means frequent; the most disproportionate alliances, those contracted by age, by dowagers, were without the scope of this Bill: yet the new Act set out with a falsehood, declaiming against clandestine marriages as if they had been a frequent evil. The greatest abuse were the temporary weddings clapped up in the Fleet, and by one Keith, who had constructed a very bishopric for revenue in May Fair, by performing that charitable office for a trifling sum.”
The Bill was opposed on the ground “ of its impropriety in a commercial nation, and the illnature and partiality of its restrictions ;” and as a Bill in which“ new shackles were to be forged to keep young men of abilities from mounting to a level with their elder brothers.” Long debates ensued
on the clause for annulling marriages that should be contracted contrary to the inhibitions in the Bill :” and some of the principal speakers are said to have “ laid open the jargon and chicanery of the lawyers, and the arbitrary manner of enforcing the Bill.” A long and angry debate ensued upon the clause, “that gave (very novel and) unheard of power in the first instance to parents and guardians, and then to the chancery, on the marriage of minors,” in which it was maintained, “ that from the beginning to the end of the Bill one only view had predominated, that of pride and aristocracy.” The Bill however eventually passed the House of Commons by a majority of 125 to 56, and when it was returned to the House of Lords, it was accepted as