Irregular Marriages
Little more than a century ago, a common notion prevailed that the performance of the marriage ceremony by a person in holy orders rendered it sacred and indissoluble, without regard to any other condition. Hence arose the scandals and indecencies of the Fleet Marriages, i.e., marriages performed in the Fleet prison, and its neighbourhood, by a set of drunken, swearing parsons, and their myrmidons, who wore black coats, and pretended to be clerks and registrars to the Fleet. Those malpractices were put an end to by the Marriage Act of 1754: the register-books were purchased by Government in 1821, and deposited in the Bishop of London’s Registry. A similar abuse flourished at May Fair, until it was abolished by the Act of 1754, when the register-books were deposited in St. George’s church, Hanover-square.
The “Border Marriages” were also of this class of abuses, and arose from nothing formerly having been necessary in Scotland to constitute a man and woman husband and wife save a declaration of consent by the parties before witnesses, or even such a declaration in writing without any witnesses: a marriage which was considered binding in all respects. Still, a marriage in Scotland, not celebrated by a clergyman, except these “Border Marriages,” was rarely or never heard of. They were performed at Lamberton toll-bar, about three miles north of Berwick-upon-Tweed; and at Gretna Green, the nearest locality accessible to strangers actually within the territory of Scotland.7 The preliminaries of such a marriage used to be a long purse in hand or in prospect, for the purpose of meeting heavy posting expenses, and bribes to secure speed. In the course of time, facility of travelling by railway, and of obtaining licensed carriages from the stands in towns, increased; and the farm-servants and the servants generally in the Border counties began to avail themselves of what was deemed a lawful practice by their superiors from other places. During the holidays for farm-servants, at Whitsuntide and Martinmas, the times of the statute-hirings, parties generally under the influence of drink, and too often tipsy, would hire carriages in Carlisle, and drive, by the two or three couples in a carriage, over the Border to get married in Scotland; they would live together for two or three days, then go to their services, and perhaps never again think of their having been married at all; or not till circumstances might arise making it worth the while of one of the parties to claim conjugal rights, with a view to participation in an inheritance of property—a not uncommon accident among the natives of the Border Counties.
Under this state of affairs, at the Spring Assizes at Carlisle, in 1856, there were three trials for bigamy; upon the increase of which crime the Judge made some serious remarks to the Grand Jury, in his charge. A magistrate of Cumberland, having leisure time, and a sufficient acquaintance with the Marriage Laws of England and Scotland, to avoid falling into any gross error, set to work to frame Petitions to Parliament and the Home Secretary, reciting that such petitions were from the Magistrates of Cumberland, charged with the suppression of vice and immorality in their county; that a state of irregularity which had formerly been permitted in the Law of Marriage had grown into an abuse, under a change of circumstances; that the Petitioners thought that the young people of their county acted more out of levity and under excitement, than from any real want of good principle; and that they submitted the exigencies of the case might be met by requiring all parties, not being natives of Scotland, and wishing to be married in Scotland, to acquire domicile in Scotland, by a residence of a fixed number of days, prior to being considered entitled to the privilege of the laws relating to marriage in Scotland; and prayed that the parties petitioned would authorize such measures, &c. The Bench of Magistrates mostly approved of the petitions, one alone declining to sign. The clerical magistrates generally abstained from signing, urging that if they did sign, it might be objected that they had been instigated through interested motives. The petitions were signed by all the lay magistrates attending the Session at Whitehaven, and were forwarded to London for presentation; the Hon. Charles Howard taking charge of the petition to the Commons, but with misgivings as to its success; his only hope being that the substance of it might be passed in a clause of the Dissenters’ Marriage Bill, then before the House. Nor was the Home Secretary, Sir George Grey, more sanguine: he promised to look over the petition, adding the state of the feeling of the House was such that it could not be made a Government measure.
The petition to the Lords was taken charge of by Lord Brougham, who was selected because, at the commencement of the Session squibbing speeches had passed between him, with Lord Campbell on his side, and Lord Aberdeen joined by Lord Minto, relative to the laws of Scottish marriages. Such had also been the case in several sessions prior to the one of 1856: bills had been threatened to be introduced for altering the laws of marriage in Scotland entirely; but always, after Easter, the matter had been dropped.
At the above interview, Lord Brougham entered upon the state of the case with the Cumberland magistrate, who knew beforehand that a civil marriage between English in Scotland was not deemed valid for the inheritance of the offspring of real estate in England.8 Lord Brougham confirmed this knowledge by citing instances in which real estates in England had not passed to the issue by marriages in Scotland; and he also mentioned that children born before marriage could be legitimized to the inheritance of estate and title in Scotland, by the subsequent marriage of the mother to the father; and Lord Brougham named, in the House of Lords, an instance of the fact. His Lordship added that the Law of Scotland ought to be changed, and must be changed, when it was replied that his Lordship would find that the object of the magistrates of Cumberland was not to change the Laws of Scotland, but to oblige natives of England to obey the Laws of England. We mention this to show how widely the ideas were astray from the real object in view.
A Bill founded on the principle of the petitions was introduced by Lord Brougham: it was quickly supported by petitions signed at large meetings convened in the Border Counties; at one of which, in Carlisle, a solicitor mentioned an instance wherein clients of his own had not only been married, but, in the woman’s opinion (she having succeeded to some property), had been divorced in the course of two or three days, by one of the officiating marriers of Gretna. One of these marriers, Murray, of Gretna, admitted that he had married between 700 and 800 couple in a recent year; and as there were two or three other marriers in good practice, the number of couples married at Sark toll-bar, and at Gretna, may safely be estimated at upwards of 1000 in the year.9
When the Bill came to its critical point in the House of Commons, the Lord Advocate for Scotland stated that “seeing that it did not interfere with the Law of Scotland, he should not object to its progress.” Thus, the Bill went through its third reading, and passed, within three months from its introduction; and thus was a stop put to a state of affairs threatening the rapid demoralization of the lower classes in the Border Counties and North-Western parts of England.10