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Tracing marriages in 18th century England and Wales: a reassessment of law and practice

The Clandestine Marriages Act of 1753 marked an important development in the history of marriage by putting the requirements for a valid marriage on a statutory basis for the first time. But what was the situation before 1753, and what practical impact did the Act have on popular practice?

Rebecca Probert‘s reassessment of law and practice is of particular relevance to those tracing their ancestors. First, the universality of formal marriage increases the likelihood that a record of an ancestors marriage will exist somewhere. Second, parish-level studies provide us with a clearer idea of where one may need to look for a marriage; and, thirdly, success or failure in tracing a marriage can be set within the context of the marriage law and practice of the time.

Transcription

I’m very glad to have the opportunity to come and talk about my research here today. It is a topic I’ve been interested in for a long time; in fact, looking back, it surprises me just how long I’ve been engaged on this. I was actually in my early teens when my father decided that he was going to start researching our family tree, so we spent many happy afternoons in Warwickshire records office, patiently reading through parish registers.

Conveniently, if somewhat disappointingly for a teenager hoping for some exciting, scandalous ancestors, all our ancestors proved very easy to find. Each generation had married in the parish church, and it was just a matter of going back a generation, and finding them there.

When I later came to read accounts of marriage law and practice in the 18th century, this conformity seemed all the more surprising. Many scholars seemed to be claiming that informal marriage had been common before Lord Hardwicke’s Act of 1753, and that even after the Act had come into force, many couples in fact preferred to cohabit, rather than comply with its provisions.

One historian even went so far as to claim that half the population married in a simple folk ceremony, before 1754. Now, were this true, those tracing their family tree might well despair of finding their ancestors in the parish registers, or, alternatively, assume a particular virtue on the part of those they did find.

However, my research on law and practice before and after the Hardwicke Act demonstrates that the claims that have been made about so-called informal marriages are in fact based on a series of misunderstandings, or sometimes ‘Chinese Whispers’ as tales get inflated in the telling.

To give just one example, Lawrence Stone suggests that perhaps not more than half of the population were being were being married strictly in accordance with the canon law that governed marriage before 1754. Stephen Parker, relying on that source, claims that half of all marriages were informal.

Now there’s a big difference between a marriage that’s not exactly complying with the canon law and a marriage that’s informal; the marriage could perhaps not take place in the right parish church, or the right time of day, or it might not be preceded by a licence. All those things would mean that it wasn’t exactly complying with canon law, but it wouldn’t make it informal.

What I’m going to do today is first show the extent of compliance with the law, and then think about the implications of this for the claim that it was possible to marry by a simple exchange of consent. I’ll then go on to re-evaluate the impact of the 1753 Act, and conclude with a consideration of where couples married, before and after 1753.

So to start then, with the extent of compliance; I’ve carried out a number of what are called cohort studies, essentially taking a cohort of people, and establishing whether they got married in church – whether it’s possible to trace a marriage in the parish registers, and I’m going to be talking today about three different types of cohorts; those based on couples who brought a child to be baptised in the parish, those who were examined as to their settlement in a particular parish, and those named in the parish listing.

Now each of these different types of sources has its advantages and disadvantages. The advantage of baptism records is simply that there are so many of them to choose from. The disadvantage is that using them one is immediately open to the objection ‘well, perhaps the couples who didn’t get married in church didn’t bring their children to be baptised in church either.’

Settlement examinations, by contrast, aren’t dependent on compliance with the rites of the Church of England, and sometimes provide a fantastic insight into the lives of the poor, essentially providing mini-biographies.

The problem is that they’re much rarer than baptism registers, so one can have a fantastic set of settlement examinations, but perhaps the surrounding area isn’t particularly well supplied with other registers. Well, I’ll talk about that a bit more in a moment. And then parish listings; perhaps the best source of all if one’s trying to find a cohort with which to test compliance, but unfortunately rarer still.

So, going straight to the results for each of these different cohorts: for my cohort of couples bringing a child to be baptised in Kilsby in the 20 years before the Hardwicke Act came into force, so between 1734 and 1754, I’ve managed to trace marriages for 80% of them, and it seems very likely that the remaining 20%, or most of them, also married in church.

The one exception is perhaps Mary Smith, traveller. No father is recorded in the baptism register, so it’s fairly safe to assume that she wasn’t accompanied by a husband. Five of the remaining 13 mothers for whom no marriage was traced, are actually described as ‘wife of’ in the baptism register, and in another case this was actually written on the tombstone.

Potential marriages have been traced for two of those 13; the problem is that the names are very common, and it’s not possible to ascertain which of the potential matches is the right one.

And there’s also one case where I suspect there’s been a mistake in the recording; Richard Barnett married Mary York in Kilsby in 1748, but the mother of his son (born in 1750) is down as Jane in the baptism register. Now we can’t assume this is the same person, but it may just simply be that there has been a mistake.

And of course the potential for mistakes in the recording is exacerbated by the way that events were recorded at the time. The parish clerk didn’t write down the marriage or baptism contemporaneously with it happening; usually things were recorded on notes, and then written up at a later stage, perhaps at the end of the year when memories of the precise event had faded.

[Shows slide]

So, moving on to Bradford on Avon which was a parish near Bath in Wiltshire; and you’ll see the proportion traced here was significantly lower at 63% of the cohort. However, what this study did show was the proportion of marriages that were untraceable, because when individuals were examined as to their settlement, they would say ‘I got married in such and such a parish at such and such a time’.

And then you go to that parish; you find, for example, Mary Isaac, claiming to have got married in Walcott in 1719, but the parish registers don’t begin until 1728, so you know that you’re never going to find that marriage because the record no longer exists.

And it’s also clear from comparing the parish registers and the settlement examinations that some registers which look complete probably aren’t. Five of the couples in that sample claimed to have got married in Bradford itself. Now, if you were spinning a yarn to the overseers of the poor, you would choose somewhere rather further distant if you wanted to pretend that you were married, when you weren’t.

So, again, it’s showing up that some marriages are never going to be actually traced in the register, but that doesn’t mean that they didn’t exist. And a further problem, as I mentioned earlier, is that the quality of the registers of the surrounding parishes wasn’t as good as one might hope.

Thirdly then, we have the cohort study of Cardington in Bedfordshire, where we’ve traced 94% of the couples who were resident there, and I think this is the most convincing of the studies for a number of reasons. First of all the survey, the listing, took the form of a house to house survey, so it was drawn up very carefully. There’s also a lot of information in the survey; often the wife’s maiden name is recorded so that when you find a match, you know it’s the right one because you’ve got that confirmatory detail.

And there are four people in that study for whom no marriage could be traced, but again there are plausible reasons why those marriages could not be traced. One was that of the widowed Mary Beckles; we don’t know her maiden name, we don’t know her husband’s first name, which makes tracing a marriage very difficult.

We have also no exact match for Samuel Redman; his wife is recorded as Sarah in the marriage register but Hannah in the baptism register, so again, you’ve got the potential of misrecording. And the other two couples, we know from external evidence, weren’t born in the parish so may have married much further afield.

So there are different ways of interpreting these different results. One approach would simply be to say ‘Well, clearly couples living in Cardington were much more conformist by nature; it’s something about these people that means that we’ve traced 94% there and only 63% for those living in Bradford.

The three reasons, however, why the hit rate was so good for Cardington: first of all as I’ve mentioned, the level of detail provided in the listing. Secondly, the survival of registers from surrounding parishes; Bedfordshire has the best collection of transcribed registers in England and Wales, and Cardington is right in the middle of Bedfordshire, so the likelihood is that they married somewhere in the county, and therefore can be traced.

And the third important point about Cardington is that the listing focuses on households, and it therefore excludes a number of the difficult cases, it excludes those who are not permanently resident in the parish.

Now I wouldn’t necessarily expect baptism records to show those who are just passing through, but it’s clear that sometimes, they do, sometimes it’s made explicit, for example in the baptism registers of Daventry for the early 18th century, there’s a reference to a child of Mary MacNalling, a soldier’s wife, who ‘lay in upon the March’. So, there you know that their residence was very temporary.

Other times you just have to infer that from the fact that the surname only occurs once in those parish registers, and that was the case for six of the missing couples in the Kilsby sample; they clearly didn’t have a very strong connection with the parish at all. So Cardington, by excluding those difficult cases, makes it much easier to trace the marriages.

The other important point to note about the Cardington cohort is that it also excludes known unmarrieds. The baptism registers always include a number of children born outside marriage, and obviously then the number of marriages for that cohort will be depressed accordingly.

Cardington, as I said, focuses on households and there was only one households where there was an unmarried couple living together. There were illegitimate children in Cardington, but they were either in the workhouse, or living with grandparents; they weren’t living with both parents. So what we have is a very strong picture building up of conformity.

[Shows slide]

Now there were of course a few marriages that were celebrated by clergymen outside any church – we have a couple of examples of those in the Bradford sample – and rather more marriages that were celebrated in a parish to which the parties did not belong, which I’ll be coming back to.

Religious dissent also led some to ignore the requirements of the canon law, but non-compliance was largely confined to Jewish couples, whose marriages were regarded as being governed by Jewish law, and therefore not amenable to the canon law; to Quakers, who had developed their own rites under the Commonwealth, and stuck to them resolutely afterwards despite doubts as to their legal validity; and to some, but by no means all, Catholics.

But even putting all those together, such groups would have accounted for no more than 2 or 3% of the population in the mid 18th century. By contrast, Protestant non-conformists do seem to have complied with the canon law; I carried out a similar study of the baptism registers of a Presbyterian group based in Kettering, and again traced very high percentage of marriages of the parents in the Anglican Church.

This is reinforced by the fact that there are very, very few registers of Presbyterian, independent or Baptist marriages; the 1838 commission that looked at surviving registers found only ten. Most of those ten run for very short periods, sometimes only a few years, and most have very few marriages in them, the one for Whitby for example has only three marriages. So there are some examples of non-conformist marriages, but it clearly wasn’t the norm for Protestant non-conformists to marry according to their own rites.

In London, the picture is slightly different because of the existence of the Fleet, where parsons would be willing to marry couples for a fee without too many questions being asked. But the very popularity of Fleet marriages has always raised a question for me: if it was possible to get married by a simple exchange of consent, why would you go to the Fleet to get married by a disreputable clergyman – why would you pay to do something you could do at home for free?

Similarly, if it was possible to get married by a simple exchange of consent, why did so many, as we’ve seen, get married in the Anglican Church? And why would there ever have been any question about the status of a Quaker marriage, which did at the very least involve an exchange of vows.

The answer lies in the legal status of an exchange of vows in words of the present tense. It’s clear that such an exchange was binding on the parties, and it was commonly referred to as a marriage in the sight of God. But it wasn’t a marriage in the eyes of the law, or even the Church.

If there was a dispute about the existence of such an exchange, and it was proved to the satisfaction of the church courts, which in itself was no easy matter, the church courts would require the couple to solemnise their marriage in church. They wouldn’t declare the couple to be married; they would say ‘You will now be required to marry.’

And between the exchange of consent and the solemnisation in church, the couple enjoyed no special legal rights, so if the man died, the woman would not be entitled to dower. Similarly, the man would not be entitled to administration of the woman’s estate. And the parties were not allowed to engage in sexual intercourse with each other during that period; it was only after solemnisation in church that they were entitled to do so.

So, a marriage had to be celebrated before an Anglican minister in order for the parties to be entitled to full legal rights, and this explains the popularity of the Fleet. The ministers there were ordained Anglican clergymen and however irregular the marriages celebrated there, they did carry full legal rights, although they did also expose the parties to potential punishment by the church courts for going through a clandestine marriage, which was an extra and rather unwelcome legal consequence.

Perhaps the best way of thinking about contracts, exchanges of words in the present tense, is by analogy with the purchase of a house: it’s a two stage process – you have the contract, and you have completion. At the contract stage, it’s binding, but it’s not until completion that you actually become the formal legal owner.

So this inchoate status of a mere exchange of consent, explains why the courts were so doubtful as to the legal status of marriages celebrated by Protestant dissenting ministers, or Catholic priests, as well as raising questions about the marriages of Quakers, and it’s very clear from legislation passed in the 1690s, that the legislature did not regard those ceremonies as having the same status as Anglican ceremonies.

This was legislation that imposed taxes on marriage, and the government here really tried to have its cake and eat it; it imposed the same taxes on Catholics, Protestant dissenters and Quakers, as on those who went for an Anglican ceremony, but then added ‘Nothing in this act shall make good such pretended marriages.’ So they’d got the money, but wouldn’t acknowledge their legal status.

So all this casts a rather different light on the requirements of the 1753 Act, which is often seen as a real break with the past. Once the background to it is understood, it’s clear that it did no more than clarify what had already been established as a matter of case law, or required by the canon law. The only innovation of the Hardwicke Act was its stipulation that marriages that were not celebrated after banns or a licence, and were not celebrated in church, would be void.

Not all examples of non-compliance, however, rendered a marriage void. The fact, for example, that the marriage wasn’t registered didn’t affect the validity of the marriage. The penalties imposed were those on the clergymen, rather than on the parties themselves.

Now, Hardwicke’s Act was very successful in bringing the trade at the Fleet to a halt, and the number of marriages celebrated in surrounding London parishes, saw a significant increase in the wake of the Act.

Elsewhere, its effect was less dramatic; some parishes saw an increase, some saw a decrease, but this merely reflected the fact that before the Act, some parishes had been more popular than others as places to marry.

Some groups were not required to comply with the Act. It was stated that its provisions did not extend to Jews, Quakers or members of the Royal family. The somewhat ambiguous nature of this exemption should however be noted. The Act did not state that the marriages of Jews and Quakers would be valid; it merely said that the Act did not apply to them.

And this was actually particularly problematic for Quaker marriages, because the validity of Jewish marriages could be tested according to Jewish law, and the church courts were willing to hear evidence of Jewish law and assess the validity of marriages accordingly, but there weren’t really any criteria by which the validity of Quaker marriages could be assessed and there did remain a question mark over their validity until the end of the 18th century.

As I mentioned, members of the Royal family were also exempted, and again, the ambiguous nature of that exemption did cause problems as late as 2005, when the Prince of Wales decided that he wished to marry Camilla Parker-Bowles in a civil ceremony.

The problem was there that every piece of legislation relating to marriage, including that introducing the possibility of civil marriage, had said ‘this does not apply to members of the Royal family,’ so there is a very big question mark as to whether they were entitled to marry in a civil ceremony.

Anyway, all other marriages had to be celebrated in the Church of England after 1754 and this remained the law until the Marriage Act of 1836 allowed couples to marry in a wider range of forms, and the evidence shows that compliance with the Act was almost universal.

[Shows slide]

So the first block here relates to Kilsby: I’ve included the pre-1754 figures. The red bar shows [percentages of] couples who brought their children to be baptised between 1754 and 1774, and the yellow bar shows those bringing children to be baptised between 1774 and 1794, so the final cohort of those who are all getting married after the Hardwicke Act had come into force. Similarly with Bradford, we go up from 63% to 88% and Cardington from 94% to 97%.

It should also be noted that the Kilsby sample includes children born outside marriage, so if one excludes those whom we know didn’t marry, the proportion traced goes up to 95% for those having their children baptised in the 20 years after the Act, and to 97% for those bringing children to be baptised between 1774 and 1794.

And compliance is clear also among Catholics and other Protestant dissenters, and this is perhaps unsurprising in the context of the latter, who as I’ve already said had not really developed their own marriage rites before the Act. It’s perhaps more surprising that the Catholic community complied, given that at least some of them appeared to have married according to their own legal rites before 1754.

Pope Benedict XIV had given his sanction to compliance, holding that it was legitimate for Catholics to submit to be married by a minister of the established church when this was required by legislation, and I carried out a further study of Catholic couples who had gone through a Catholic ceremony of marriage at Coton Court in Warickshire.

98 couples had married there between 1755 and 1800, and every single one of them had also gone through an Anglican ceremony, either on the same day as the Catholic ceremony, or the day after, and one reason for being able to trace 100% was of course that the Catholic marriage register had the wife’s maiden name in each case, which just made searching and confirming the matches so much easier.

So why did earlier generations of scholars come to a different conclusion about the state of marriage law and practice? Well, first of all there was a very early mistake as to what the law had been before 1754. There’s a case dating from 1811 called Dalrymple and Dalrymple. This was actually a decision by an English judge, applying Scottish law, despite frankly admitting his inferior qualifications to do so.

In the course of his judgement he drew some analogies with what he thought English law had been before 1754, and in the wake of Dalrymple one finds a real difference in the case law; obviously the status of marriage before 1753 wasn’t really much of a live issue for the courts, but they were beginning to have to decide on the status of marriages celebrated overseas, to which the Hardwicke Act didn’t apply.

Before Dalrymple, they’re struggling with the status of those types of marriages; after Dalrymple, they just say ‘All this was resolved by Dalrymple and we don’t have to think about it anymore.’ Dalrymple gave a nice simple test, and was very readily accepted.

I also suspect that Sir William Scott, in deciding Dalyrmple, may have been influenced by an American case, decided just two years earlier. Now I’ve got no direct evidence for that, because he doesn’t mention this case in the course of his judgement.

The reason I suspect he may have been influenced by it is because he appears to have changed his mind from an earlier judgement, and the reason why this American case is significant is because it is the foundation of the idea of common law marriage in the U.S., and this case was based on a misreading.

The judge, in a New York court, cited an English case from the early 18th century, and claimed that it said that an exchange of vows was as valid as a marriage celebrated in church. What this case had actually said, what the English case had actually said, was that an exchange of vows was as binding as a marriage celebrated in church.

So one little word was substituted, the whole meaning was changed, the whole idea of common law marriage came into existence in the United States, and I’m suggesting this percolated through to Scott’s judgement in Dalrymple.

So the legal misunderstanding dates from a fairly early period. The assumption that it was not only possible to marry by consent, but popular, seems to have grown up in the 1980s, as modern scholars tried to put modern co-habitation into context, drawing parallels with what they thought earlier practice had been.

And of course the problem for anyone wanting to challenge that was the difficulty in tracing marriages; people didn’t marry for the convenience of later demographers. They got married all over the place, and it’s only with the advent of electronic resources, that one can actually get a true picture of the extent of compliance with the law, and this is very clear in the case of Kilsby.

[Shows slide]

I’ve given you here the place of marriage for both the cohort bringing children to be baptised before 1754, and the cohort bringing children to be baptised between 1774 and 1794, who all got married after the Hardwicke Act came into force. We can see that a very small percentage actually got married in Kilsby itself, before 1754, whereas after the Act came into force, the majority married there.

So this is why the idea of informal marriage grew up, and was so difficult to rebut, but now it is possible to trace marriages so much more easily. This of course does raise its own challenges.

[Shows slide]

We’ve all found matches where the names are right, but it seems to have taken place far too far away to be plausible. Here, the settlement examinations from Bradford-on-Avon are illuminating. Bradford-on-Avon, as I’ve said, is located near Bath.

One would not necessarily make a link between a couple claiming settlement there, and a couple who had got married in Berwick-upon-Tweed, but a couple, claiming settlement in Bradford, gave evidence that that is where they had married, and upon investigation that turned out to be true. So, even quite distant matches may turn out upon investigation to be the right ones.

So, to conclude, those researching their family tree should persevere in the knowledge that their ancestors almost certainly married in church, somewhere, and should set their findings in the context of almost universal compliance with the legal requirements.

1 comments

  1. […] did not, in any case, affect the validity of any such subsisting marriages. Rebecca Probert has suggested that the “common law marriage” myth in English law can be traced back to the consistory […]

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