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MARRIAGE LAW AND PRACTICE IN THE
LONG EIGHTEENTH CENTURY
This book uses a wide range of primary sources – legal,
literary and demographic – to provide a radical reassessment
of eighteenth-century marriage. It disproves the widespread
assumption that couples married simply by exchanging con-
sent, d emonstra ting that s uch exchanges w ere regarded m erely
as contracts to marry and that marriage in church was almost
universal outside London. It shows how the Clandestine
Marriages Act of 1753 was primarily intended to prevent
clergymen operating out of London’s Fleet prison from con-
ducting marriages, and that it was successful in so doing. It
also refutes the idea that the 1753 Act was harsh or strictly
interpreted, illustrating the courts’ pragmatic approach.
Finally, it establishes that only a few non-Anglicans married
according to their own rites before the Act; while afterwards
most (save the exempted Quakers and Jews) similarly mar-
ried in church. In short, eighteenth-century couples com-
plied with whatever the law required for a valid marriage.
REBECCA PROBERT is an Associate Professor at the University
of Warwick, teaching family law and child law. She has pub-
lished widely on both modern family law and its history.
CAMBRIDGE STUDIES IN ENGLISH
LEGAL HISTORY
Edited by
J . H . BAKER
Fellow of St Catharine’s College, Cambridge
Recent series titles include
Marriage Law and Practice in the Long Eighteenth Century
A Reassessment

LONG EIGHTEENTH
CENTURY
A Reassessment
REBECCA PROBERT
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore,
Sa˜o Paulo, Delhi
Cambridge University Press
The Edinburgh Building, Cambridge CB2 8RU, UK
Published in the United States of America by Cambridge University Press,
New York
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Information on this title: www.cambridge.org/9780521516150
© Rebecca Probert 2009
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without
the written permission of Cambridge University Press.
First published 2009
Printed in the United Kingdom at the University Press, Cambridge
A catalogue record for this publication is available from the British Library
ISBN 978-0-521-51615-0 hardback
Cambridge University Press has no responsibility for
the persistence or accuracy of URLs for external or
third-party Internet websites referred to in this publication,
and does not guarantee that any content on such
websites is, or will remain, accurate or appropriate.
FOR LIAM

CONTENTS

staff at Denbighshire Record Office, Northamptonshir e Record
Office, Bedfordshire and Luton Archives and Records Service,
Warwickshire Coun ty Record Office, the Record Office for Leices-
tershire, Leicester and Rutland, Carlisle Record Office, Wiltshire
and Swindon Record Office, Somerset Record Office, Gloucester-
shire Record Office, Canterbury Cathedral Library, the Borthwick
Institute at York University, Lambeth Palac e Library, the City of
Westminster Archives Centre, the Family Records Centre, the
London Metropolitan Archives, the Guildhall Library, the Quaker
Library, Dr Williams’s Library, the Society of Genealogists’ Library,
the Institute for Historical Research, the University of London
Library, the Wellcome Library, the Bodleian Library, the British
Library, and Rothesay Library on the Isle of Bute. I would also like
to thank Phillip Chancellor of the Queen’s Chapel of the Savoy, for
making its registers available for examination. Other institutions and
individuals responded to my requests for information, including the
Berkshire Record Office, Kendal Record Office, the County Record
xi
Office Huntingdon, the Cobh Genealogical Project, Michael Snape,
Martin MacGregor and Rosemary Harden of the Fashion Museum
in Bath. Since the Exeter archive holding the Devon marriage index
was unfortunately closed when I visited, Heather Holmes kindly
agreed to act as a research assistant and checked the index for the
marital status of the final few couples that I had been unable to trace.
Tony Foster-Smith provided valuable information about life in
eighteenth-century Anglesey, incidentally confirming my suspicion
that Lewis Morris was not a source to be relied upon (see pp. 98–9).
And I would also like to thank Helen Riley of the University of
Warwick library for always i nforming me of the latest electronic
resources available from my desk.

fundamentals currently required by law for a marriage according
to the rites of the Church of England – banns or licence, celebration
in church, and registration – were in place by the mid-sixteenth
century. Today, a Church of England wedding is merely one of a
number of permissible routes to legal marriage and only a minority
of couples choose to marry in this way. In the sixteenth century,
however, a ceremony conducted according to the rites of the Church
of England was prescribed as the only method for tying the knot,
and the majority of couples observed its rules. Long before the
Clandestine Marriages Act of 1753 made certain formalities essen-
tial to the creation of a valid marriage in England and Wales, the
1
See e.g., L C. Windle, ‘Forever and a Day: the Life of the English Wedding
Dress, 1860–1906’ (unpublished MA dissertation, Winchester School of Art,
2005). I am grateful to Emma Watt for this reference.
1
practice of celebrating a marriage in a church, or at least before an
Anglican clergyman, had become virtually universal.
Yet this is not the impression of eighteenth-century marriage
practices conveyed by modern commentators. Instead, stories
of high-profile clandestine marriages, non-marital cohab itation
and various esoteric ceremonies such as jumping over a broomstick
abound.
2
Some scholars have gone so far as to suggest that marri-
age in church was in fact the practice of a minority, and that those
without property had no need to observe legal rites and rules.
3
Others depict a system in chaos: according to one commentator,
‘before 1753, marriage was to a considerable extent out of the con-

then has considerable headway still to make’.
5
See e.g., C. Hill, Liberty Against the Law: Some Seventeenth Century Controversies
(London: Penguin, 1996), p. 205: ‘Hardwicke’s Marriage Act of 1753 was resented,
among other reasons, because it made illegal practices which were still tacitly
accepted in some areas: it posed law and property against customary liberties’;
see also P arker, Informal Marriage, p. 27; C. Gibson, Dissolving Wedlock (London:
Routledge, 1994), p. 47; R. B. Outhwaite, Clandestine Marriage in England,
1500–1850 (London: Hambledon Press, 1995), ch. 3; C. Flint, Family Fictions:
Narrative and Domestic Relations in Britain, 1688–1798 (Stanford University Press,
1998), p. 12.
2 Marriage Law and Practice in the Long 18th Century
‘was designed to regularise state control over marriage and
echoes the triumph of law over custom’.
6
Academic opinions tend to be divided over the pros and cons of
most aspects of modernisation, but the 1753 Act seems to have
attracted nothing but adverse criticism. It has been perceived as
a patrician measure, designed to serve the interests of the ruling
classes whose aim was to increase their control over the marriages
of their children rather than to benefit the majority of the popula-
tion.
7
Others have seen it as a means of imposing ‘middle-class’
notions upon the rest of society, identifying it as ‘part of a more
general movement to discipline the lower orders’.
8
It is taken as a
given that the freedom of choice of those intending to marry was
circumscribed by the Act.

9
G. E. Howard, A History of Matrimonial Institutions (New York: Humanities
Press, 1964; original edn 1904), p. 463; R. Trumbach, The Rise of the Egalitarian
Family: Aristocratic Kinship and Domestic Relations in Eighteenth-Century
England (New York: Academic Press, 1978), p. 71; A. Macfarlane, Marriage and
Love in England: Modes of Reproduction 1300–1840 (Oxford: Basil Blackwood Ltd,
1986), p. 127; M. Vermillion, ‘Clarissa and the Marriage Act’ (1997) Eighteenth-
Century Fiction 395.
10
L. O’Connell, ‘Marriage Acts: Stages in the Transformation of Modern Nuptial
Culture’ (1999) Journal of Feminist Cultural Studies 68.
11
Gibson, Dissolving Wedlock, p. 47; Flint, Family Fictions, p. 54; S. Emsley,
‘Radical Marriage’ (1999) 11 Eighteenth-Century Fiction 477, 480.
12
Howard, History of Matrimonial Institutions, p. 460.
Introduction 3
it was claimed by one of its opponents that it would be ‘of the most
dangerous consequence to the female sex’,
13
as a woman would no
longer be able to enforce a promise of marriage. A number of later
commentators have adopted the view that the Act did indeed cause
hardship to women and led to a rise in the number of those who were
debauched under a promise of marriage and then abandoned,
thereby contributing to the rise in illegitimacy.
14
The operation of the Act has attracted just as m uch criticism
as the motivations of the legislators. It has been described as
‘draconian’,

Unmarried Couples: Legal Aspects of Cohabitation (Toronto: Carswell Company
Ltd, 1982), p. 17; J. Hall, ‘Common Law Marriage’ (1987) 46 Cambridge Law
Journal 106, 107; D. Lemmings, ‘Marriage and the Law in the Eighteenth
Century: Hardwicke’s Marriage Act of 1753’ (1996) 39 Historical Journal 339, 346.
16
N. Lowe and G. Douglas, Bromley’s Family Law, 10th edn (Oxford University
Press, 2007), p. 53.
17
J. F. MacQueen, A Practical Treatise on the Law of Marriage, Divorce and
Legitimacy, as administered in the Divorce Court and in the House of Lords, 2nd
edn (London: Maxwell, Sweet, Stevens & Sons, 1860); W. P. Eversley, The Law
of the Domestic Relations (London: Stevens & Haynes, 1885), p. 26.
18
Howard, History of Matrimonial Institutions, p. 463; A. H. Manchester, A
Modern Legal History of England and Wales 1750–1950 (London: Butterworths,
1980), p. 365; Stone, Road to Divorce, p. 132; Parker, Informal Marriage, p. 61.
19
Hay and Rogers, Eighteenth-Century English Society, p. 50. See also Cornish and
de Clark, Law and Society in England, p. 363; L. Davidoff, ‘The Family in
Britain’ in F. M. L. Thompson (ed.), The Cambridge Social History of Britain
1750–1950, vol. II, People and their Environment (Cambridge University Press,
4 Marriage Law and Practice in the Long 18th Century
on which they are based is often deficient. Basic errors about the
terms of the Act crop up with alarming frequency.
20
No modern
commentator has explored the case law on the interpretation of the
Act in any depth.
21
And there is very little information about the

the absence of parental consent, and that a failure to comply with any require-
ment of the legislation rendered the marriage void: on the actual requirements of
the Act see further Chapter 6.
21
Parker, Informal Marriage, p. 61 cites only a single case when discussing the
impact of the Act, while the discussion of post-1754 cases in Stone’s Road to
Divorce and Outhwaite’s Clandestine Marriage is relatively brief.
22
Indeed, in earlier publications I followed the standard view that a contract per
verba de praesenti constituted a valid marriage: see e.g., ‘The Impact of the
Marriage Act of 1753: Was it Really “A Most Cruel Law for the Fair Sex”?’
(2005) 38 Eighteenth-Century Studies 247. It took a considerable amount of
primary evidence to persuade me otherwise and to give me the confidence to
challenge this view.
Introduction 5
But this is to anticipate. Two preliminary issues need to be cons-
idered before I can begin to substantiate these arguments: first,
the definition of certain basic concepts that will recur throughout
the book, and, secondly, the nature of the evidence on which I have
relied.
DEFINING REGULAR MARRIAGE
AND ITS ALTERNATIVES
In order to demonstrate that the 1753 Act did not constitute
a radical break with the past it is necessary to consider law and
practice both before and after the Act. The focus will be on the
decades immediately before and after 1754, when the Act came into
force:
23
too often in other accounts, as we shall see, evidence from
the sixteenth, seventeenth, or nineteenth centuries is pressed into

a marriage was only ‘regular’ if it complied with all of the require-
ments of the canon law; the same exacting definition will be used
in this book.
The very existence of such rules inevitably necessitated a legal
category to describe those marriages that failed to compl y. There
has been some debate among modern scholars as to whether non-
compliant marriages should be described as ‘clandestine’, ‘irregular’,
or ‘informal’: some use different terms to denote different forms of
non-compliance,
25
while others encompass all deviations from the
required norm within a single term.
26
Such modern classifications
are, however, unsatisfactory in that they do not reflect eighteenth-
century usage. I have not found the term ‘informal marriage’ in
any e ighteenth-century text, and the term ‘irregular marriage’ but
rarely;
27
by contrast the term ‘clandestine marriage’, widely used in
the eighteenth century, had a specific meaning, and one that is crucial
for the correct interpretation of contemporary legal texts and cases.
Although to modern readers the term ‘clandestine marriage’ might
suggest secrecy and romantic elopements, in the eighteenth cen-
tury
28
it would have been understood simply as a marriage cele-
brated b efore a clergyman of the Church of England otherwise than
25
T. Benton, Irregular Marriages in London Before 1754, 2nd edn (London: Society

negative and the positive aspects of this should be stressed: the failure
to comply with the law was not the sole defining feature of such a
marriage, since exchanges that did not involve an Anglican clergy-
man
30
were not described as clandestine marriages.
31
The term ‘clandestine marriage’ will therefore be used in this
book in the way in which it would have been understood in the
eighteenth century. This usage also has the advantage of drawing
a sharp distinction between marriages that were celebrated before a
clergyman – whether regularly or clandestinely – and the contract
per verba de praesenti. The latter simply comprised an exchange of
vows between the parties in words of the present tense; for example
‘I take thee for my wife/husband’. It was binding on the parties
(assuming it could be proved to the satisfaction of the ecclesiastical
courts: no easy task, as Chapter 2 will show), but it was not, by
itself, a complete marriage. Maintaining the distinction between
a clandestine marriage and the contract per verba de praesenti is
essential to an understanding of law and practice prior to 1754,
since too often the evidence of one form of non-compliance has
been mistaken for evidence of another.
32
Since it is a fundamental
contention of this book that it is misleading to describe a contract
per verba de praesenti as a marriage, it will be referred to as a contract,
in line with eighteenth-century usage.
33
Of course, to say that the contract per verba de praesenti was not
the same as a marriage inevitably poses the question: by what criteria

35
Pre-marital
sex, by itself, hardly seems to merit the description of an alter-
native marriage practice. It is therefore import ant to determin e
what is actually meant by an ‘alternative’ to mar riage.
A practice may be an ‘alternative’ to a regular marriage in two
different ways. First, it may offer a differen t way of achieving the
same end, i.e., a different route to all the same rights that would
usually attach to a regular marriage. Secondly, the term ‘alternative’
may be used in a more radical sense to denote a differe nt type of
marriage that does not carry the same rights or legal status. In
considering the prevalence of, and motivation for, alternative
marriage pra ctices, it is important to be certain which of these
two types of alternative is meant.
From the first perspective, if a particular practice or ceremony
did not give rise to a legally valid marriage, it would not be appro-
priate to regard it as a genuine alternative to a regular marriage.
After all, a modern client seeking legal advice would be unimpressed
by a legal advisor who expounded on all of the possible options
but then admitted that none of them would be valid in the eyes of
the law. With this in mind, some basic criteria for assessing whether
a particular practice can really be described as an alternative to
a regular marriage in the first sense will be suggested. First, a
marriage may be defined as a relationship that is at least intended
to be permanent: it is binding on the parties in a way that mere
cohabitation is not, and exit from the relationship is regulated by
law. A second criterion is that the relationship is recognised by the
law, which accords a defined package of legal rights to the parties.
Finally, marriage may be defined as a relationship that is accepted as
legitimate by both law and society. The parties are regarded as a unit

that the relationship was felt to be equivalent to a marriage.
These different meanings of ‘alternative’ will be used to analyse
different practices for which the status of marriage (or of an alter-
native to marriage) has been claimed, both before and after 1754.
After the 1753 Act, there was no question of any alternative form
of marriage being a full alternative (at least if it took place within
England and Wales and did not comply with those terms of the
Act that were mandatory), but the question remains as to whether
functional alternatives existed, as well as whether various evasive
measures resulted in valid marriages.
Within this conceptual framework, a further question arises
regarding the nature of the evidence used to determine whether
any particular practice was a full or functional alternative to regular
marriage.
VARIETIES OF EVIDENCE
The devil, it is said, has all the best tunes. It could also be said that
those who argue that the 1753 Act was an imposition on ancient
10 Marriage Law and Practice in the Long 18th Century
customs have all the best stories. When I first read the works of
Gillis and Parker I was fascinated by their accounts of ‘broomstick
weddings’, so much so that I told all my friends and acquaintances.
On walking through Waterloo station one evening, a pair of us
espied a broom lying invitingly on the floor, left there by a cleaner.
We jumped over it (and, since neither of us wished to marry the
other, even in play, jumped back again). So, in jest or in earnest, we
may replicate what we believ e to be tradition. Little did I realise
then that the only actual examples of couples jumping a broom
derived from a similar misunderstanding that this had once been
possible.
36

All That: a Memorable History of England (New York: E.P. Dutton & Co. Inc.,
1931), p. vii.
38
E. Shorter, The Making of the Modern Family (London: Collins, 1976), pp. 9–10.
Introduction 11
solely on the basis of evidence that any given individual observed
its requirements, so too any single example of non-compliance
should not be accorded any greater weight in the opposite direction.
This is not to say that such evidence should be disregarded.
Any source will provide evidence of something. The challenge for
those attempting to decipher the past is to decide exactly what it is
evidence of. Statements by contemporaries may only be evidence
of scare-mongering, smear campaigns, or simple misunderstand-
ings rather than proof of the practices they purport to describe.
Travellers’ tales may owe as much to what they have read in the
comfort of their armchairs as to their observations on the road. No
source should be taken at face value, and no theory should hang
on the slender thread of a single piece of evidence. The need for
caution may perhaps be illustrated by examining the oft-quoted
39
statement of a French visitor to England, M. Misson, who claimed
confidently that ‘[t]o proclaim Ban[n]s is a Thing no Body now
cares to have done; very few are willing to have their Affairs
declar’d to all the World in a publick Place, when for a Guinea
they may do it Snug, and without Noise’.
40
Less often quoted are
the self-confessed limitations of his account of marriage practices:
he warns the reader ‘what I shall say here therefore is ordinarily
practis’d only among those of the Church of England, and amongst

since it is apparent from other sources that there were not.
12 Marriage Law and Practice in the Long 18th Century