A History of Matrimonial Institutions (Vol. 1-3). George Elliott Howard
"matrimony and hanging" join hands before the same justice; and the "lay register" comes in for his full share of abuse. "Levellers and phanaticks," sadly complains one writer, "blush not at their own rushing into other men's offices,—a bold but witless Justice of ye Peace, makes his neighbouring ministers cyphers, whilst he forceth ye King's subjects (quite against the graine) to elect and he to confirm a mere layman in the office of Parish Register—Proh pudor fronti enim, nulla fides."[1336] The recorder of Cirencester in Gloucestershire charges the lack of entries for several years to the account of the act passed by the "Rump," the "said Parliament ... consisting of Anabaptists and Independents;"[1337] while in 1659, the clerical register of Christ's Church, Hants, spitefully declares that "maryinge by justices, election of registers by Parishioners, and the use of ruling elders, first came into fashion in the time of rebellion, under that monster of nature and bludy tyrant, Oliver Cromwell."[1338]
On the other hand the principles of this measure found a mighty champion in Milton, in whose writings, says Friedberg, the religious tendencies of his party were molded almost into a "scientific system."[1339] The following extract from "The likeliest means to remove Hirelings out of the Church" is interesting as epitomizing the views of the Independents, showing that they were grounded upon the fundamental principles of Old English custom:
"As for marriages, that ministers should meddle with them, as not sanctified or legitimate without their celebration, I find no ground in scripture either of precept or example. Likeliest it is (which our Selden hath well observed l. II, c. 58, ux. Eb.) that in imitation of heathen priests, who were wont at nuptials to use many rites and ceremonies, and especially, judging it would be profitable, and the increase of their authority, not to be spectators only in business of such concernment to the life of man, they insinuated that marriage was not holy without their benediction, and for the better colour, made it a sacrament; being of itself a civil ordinance, a house hold contract, a thing indifferent and free to the whole race of mankind, not as religious, but as men: best, indeed, undertaken to religious ends, and, as the apostle saith, I Cor. VII., 'in the Lord.' Yet not therefore invalid or unholy without a minister and his pretended necessary hallowing, more than any other act, enterprise, or contract of civil life, which ought all to be done also in the Lord and to his glory: all which, no less than marriage, were by the cunning of priests heretofore, as material to their profit, transacted at the altar. Our divines deny it to be a sacrament; yet retained the celebration, till prudently a late parliament recovered the civil liberty of marriage from their encroachment, and transferred the ratifying and registering thereof from the canonical shop to the proper cognizance of civil magistrates."[1340]
After the Restoration, though not expressly repealed, the act of Cromwell was at once superseded by the laws in force before the Revolution. The more revengeful faction of the royalists even strove to have all marriages contracted under the act made null and void. But a proposition so monstrous could not prevail; and a statute legalizing civil marriages was passed during the first year of Charles II.[1341]
II. FLEET MARRIAGES AND THE HARDWICKE ACT, 1753
In order to understand the cumulative influences which finally in the middle of the eighteenth century produced the next English statute prescribing a definite form for marriages, it will be necessary to point out the anomalies of the old system which during the period between the Restoration and that time led to abuses of a most startling character.
Previous to the reign of William III. only spiritual punishment had been imposed for secret marriages; but under that monarch begins a series of acts which, though chiefly intended as revenue measures, in effect prescribed also temporal penalties. The first of these statutes[1342] was that of 1694 which imposed on all marriages a direct tax, graduated according to the rank of the parties. To facilitate the enforcement of the law the clergy were required to keep registers to which the tax collectors should have access. But there were certain churches which had long claimed to be exempt from the episcopal visitations, and therefore they now claimed to be free from the operation of the statute which had only made the marriage business of their incumbents more profitable by removing competition.[1343] A supplementary act was therefore passed in the following year,[1344] including such places and requiring that all marriages should be solemnized only after publication of banns or obtaining the bishop's license, under penalty of one hundred pounds for the first and three years' suspension from office for the second violation of the law by any clergyman.[1345] But even this measure was inadequate. It had not been foreseen that there were clergymen not comprehended under the titles "parsons, vicars, and curates" enumerated in the statute. These were actually benefited by the act.[1346] By connivance on the part of the regular clergy such ministers were able to evade the law. They "do substitute and employ," runs the act of 1696, "and knowingly and wittingly suffer and permit, diverse other Ministers to marry great Numbers of Persons in their respective Churches and Chapels without Publication of Banns or Licenses of marriage first had and obtained; many of which Ministers so substituted, employed, permitted and suffered to marry, as aforesaid, have no Benefices or settled Habitations, and are poor and indigent, and cannot easily be discovered and convicted of the Offences aforesaid: And whereas Ministers, being in Prison for Debt or otherwise, do marry in the said Prisons, many Persons resorting thither for the Purposes aforesaid, and in other Places for Lucre and Gain to themselves,"[1347] therefore the one hundred pounds' penalty prescribed in the former statute is extended to these cases,[1348] and a fine of ten pounds is imposed on every man married without banns or license.
The last paragraph of the above quotation is interesting as being perhaps the first statutory reference to the celebrated "Fleet" marriages, which constitute one of the most astonishing chapters that the history of ecclesiastical administration can produce. The Fleet, as is well known, was the prison in which formerly all prisoners for debt from the entire kingdom were, or could demand to be, confined. On account of the scant accommodation for the vast number congregated there, it became customary to allow those who could give security for appearance in the prison when summoned to take private lodgings or set up a private establishment anywhere within the "rules of liberties" of the Fleet—a portion of London of considerable area and well defined limits.[1349] The Fleet had a chapel with a regular chaplain of its own, who sometimes eked out his income through fees for fraudulent and clandestine marriages.[1350] But here were confined among others many clergymen, some of whom made a regular business of celebrating marriages; and they had to compete with other parsons, often disreputable men, perhaps deprived of their places or benefices for misconduct, who took up their abode in the precincts of the Fleet to gain a living from the disgraceful traffic in matrimony. Even laymen may have sought a share in the profits; and these, like the others, did not fail to wear the priestly "cassock, gown, and bands,"[1351] in order to impose upon the unwary. The ceremony was not performed in church, but in the private rooms of the parson. Often an office or marriage shop was opened and a big sign-board hung out announcing the business and commending the quality of service rendered within,[1352] while standing advertisements were also kept in the newspapers. The following notice of his business by parson Lando is quoted by Friedberg from the Daily Advertiser, 1749:
"Marriages with a Licence, Certificate and a Crown Stamp, at a Guinea, at the New Chapel, next door to the China Shop, near Fleet Bridge, London, by a regular bred Clergyman, and not by a Fleet Parson as is insinuated in the public papers; and that the Town may bee freed mistakes, no Clergyman being a prisoner in the Rules of the Fleet dare marry; and to obviate all doubts, this chapel is not in the verge of the Fleet, but kept by a Gentleman who was lately Chaplain on board one of his Majesty's men-of-war, and likewise has gloriously distinguished himself in defence of his King and Country, and is above committing those little mean actions that some men impose on people, being determined to have every think conducted with the utmost decency and regularity, such as shall be always supported in law and equity."[1353]
Pennant, in his Account of London, written "at the end of the last century," gives us a realistic picture of the Fleet parson. "In walking along the street, in my youth, on the side next to the prison, I have often been tempted by the question, Sir, will you be pleased to walk in and be married? Along this most lawless