The Marriage Act of 1753: "A most cruel law for the Fair Sex"

The Clandestine Marriage Bill of 1753 was presented to the House of Commons by Mr. Attorney General Ryder in such a way as to appeal to the private interest of every gentleman present. The Government said that the Bill was designed to prevent rich heirs and heiresses of good family from being seduced into clandestine or runaway marriages with their social or economic inferiors. Modern historians of the family have accepted this as truth, rather than as an attempt by the Government to get the Bill passed with a minimum of fuss. They have therefore largely ignored the Marriage Act in their evolutionary or counter-evolutionary theories about the emergence of the modern family. ¹ After all, the Bill only required that people get married in what we now take to be the normal and natural way: with banns or a license and parental permission for minors, before witnesses and an authorized clergyman, and by recording the event in a Marriage Register. And hadn’t the Church been trying to impose many of these prescriptions on an unwilling populace for centuries?

For eighteenth-century Englishmen and Englishwomen, however, there was nothing normal or natural about the Marriage Bill’s prescriptions. Both inside and outside the House, opponents of the Bill protested that the Government was giving “the word Marriage . . . a different signification from what it had before.” It was making those “Circumstances” prescribed by the Bill (banns, witnesses, the Register) “part of the idea of marriage” for the first time. And it was voiding all unions “not performed in the Manner and Form, with all those Circumstances and Ceremonies which the Law hath appointed.” ² The Government, they said, had changed the meaning of marriage by making the existence of a marriage depend entirely on the couple’s public observance of some purely ceremonial and procedural forms.

Before the Marriage Act, marriages had been based on the proposition that “what creates the married state and constitutes the contract” is “that FAITH by which the Man and Woman bind themselves to each other to live as man and Wife.” ³ If expressed in words of the present tense ( spousalia per verba de praesenti), the couple’s promises to live together as man and wife created a binding marriage, even when unconsummated, and even without any witness; if the couple’s promises were expressed in words of the future tense ( spousalia per verba de futuro), the marriage became binding as soon as consummation occurred. In either case, the marriage would in principle be sustained by the courts against any subsequent marriage—even if the latter had been celebrated publicly according to Church ritual and was followed by years of married bliss—because it was the private exchange of promises between a man and a woman to live together as man and wife which actually brought the marriage into being. ⁴ The public ceremony in Church or before witnesses was only viewed as a public repetition and solemnization of that primary promissory and contractual act. ⁵ It was therefore perfectly acceptable in many classes for a couple to exchange promises, go to bed and start a family before going to Church, or even to skip the Church ceremony altogether. ⁶ Church Courts and Justices of the Peace would uphold the claim of a pregnant woman that she had been “debauched under promise of marriage,” ⁷ and if necessary compel the man in question to perform his promise. Seductions, as well as abductions and clandestine marriages, were, for all intents and purposes, real marriages.

Once the Marriage Act became law, however, a woman who yielded to her lover and was with child after exchanging promises of undying fidelity and devotion no longer had any recourse if he left her. The man who debauched her under promise of marriage could no longer be compelled to perform his promise. For the Marriage Act meant, in effect, that the couple’s private verbal promises to live together as man and wife no longer had any force in law, as Blackstone explains: “Any contract made, per verba de...