MARRIED IN A FRISKY MODE: CLANDESTINE AND IRREGULAR

IN EIGHTEENTH-CENTURY BRITAIN

Summer Smith, B.A.

Thesis Prepared for the Degree of

MASTER OF ARTS

UNIVERSITY OF NORTH TEXAS

August 2016

APPROVED:

Marilyn Morris, Major Professor Clark Pomerleau, Committee Member Walter Roberts, Committee Member Richard B. McCaslin, Chair of the Department of History David Holdeman, Dean of the College of Arts and Sciences Victor Prybutok, Vice Provost of the Toulouse Graduate School Smith, Summer. Married in a Frisky Mode: Clandestine and Irregular Marriages in

Eighteenth Century Britain. Master of Arts (History), August 2016, 109 pp., 3 figures, bibliography, 153 titles.

The practice of irregular and clandestine ran rampant throughout Britain for centuries, but when the upper class felt they needed to reassert their social supremacy, marriage was one arena in which they sought to do so. The restrictions placed on irregular marriages were specifically aimed at protecting the elite and maintaining a separation between themselves and the lower echelon of society. The political, social, and economic importance of marriage motivated its regulation, as the connections made with the matrimonial bond did not affect only the couple, but their family, and, possibly, their country. Current historiography addresses this issue extensively, particularly in regards to Lord Hardwicke’s Marriage Act of 1753 in .

There is, however, a lack of investigation into other groups that influenced and were influenced by the English approach to clandestine marriage. The Scots, Irish, and British military all factor into the greater landscape of clandestine marriage in eighteenth-century Britain and an investigation of them yields a more complete explanation of marital practices, regulations, and reactions to both that led to and stemmed from Hardwicke’s Act. This explanation shows the commonality of ideas among Britons regarding marriage and the necessity of maintaining endogamous unions for the benefit of the elite.

Copyright 2016

by

Summer Smith

ii

TABLE OF CONTENTS Page Chapters

1. INTRODUCTION ...... 1

2. COMPARING IRREGULAR AND CLANDESTINE MARRIAGE IN AND ENGLAND...... 16

3. IRREGULAR AND CLANDESTINE MARRIAGE IN THE EARLY MODERN BRITISH MILITARY...... 43

4. IRREGULAR AND CLANDESTINE MARRIAGE IN EIGHTEENTH-CENUTRY IRELAND……………………………………………………………………...……73

5. CONCLUSION………………………..………………………………………………94

BIBLIOGRAPHY ...... 99

iii CHAPTER 1

INTRODUCTION

In May 1782, Sarah Anne Child and John Fane began their journey to the most famous site associated with clandestine marriage in Britain, . Their impending marriage was put in peril when Sarah Anne’s father caught up to the couple and a gunfight ensued between Fane and Robert Child. The altercation would become memorialized by Thomas

Rowlandson’s series of etchings depicting the events surrounding the Child-Fane marriage and become a famous example of clandestine marriage in eighteenth-century Britain. Clandestine marriages caused much debate in this era; children wanted to assert their power, parents wanted to retain theirs, and the elite struggled to enact legislation to prevent the popular method of marriage that was threatening their social structure.

Matrimony shaped the social scene by allowing prominent families to gain and maintain elite status, so understanding the role of marriage as a social determinant and political tool is crucial to investigating the social hierarchy of Britain. Histories of marriage in Britain often center on England. Politically powerful and culturally influential, it is not surprising that historians would favor this country and its elite in their studies. However, the history of marriage in Britain also requires an investigation into the less popular realms of Ireland and Scotland.

Even English histories lack a study of the marriages in marginalized groups, like the military. In order to understand the attitudes toward marriage of these groups and the English, it is necessary to understand the flow of ideas among them. The British military, being a necessarily British rather than English or Scottish institution, provides insight on ideas and regulations that shaped the population of Britain as a whole. Therefore, an investigation of this group lends itself to a better explanation of shared ideas between the two countries. The Anglo elite controlled Ireland,

1 making Irish legislation and regulations a reflection of English ideas even though the country was not technically part of Britain. The Scots not only shared an island, but a monarch and, after

1707, a parliament with the English, making their relationship a close one. With such strong ties between the two nations, an exchange of ideas was inevitable. Together, the three groups form a broader explanation of British ideas about class and status that their respective marital regulations reflect. In this thesis the “elite” will be defined as the titled classes of England,

Scotland, and Ireland as well as the commissioned officers of the military, who often originate from the titled classes as well. Due to fluctuating understandings of class in the eighteenth century, at times the very wealthy will also be considered part of the elite group. An examination not only of England, but of these groups on the periphery, leads to a more complete explanation regarding not only English, but British attitudes toward irregular marriage, how to restrict it, and the responses of the public to these restrictions.

Historians of gender and the family such as Lawrence Stone and Randolph Trumbach have written a great deal on the history of marriage in England, and rarely do they neglect to mention the Marriage Act of 1753 and its impact on the institution of matrimony.1 However, because they focus on England, these scholars do not endeavor to explore the acts that led to and precipitated from the 1753 Act outside of those applicable to the English peerage. While the Act of 1753 heavily influenced marriage, other legislation and other reactions to clandestine marriage deserve similar exploration for understanding motives and consequences of Hardwicke’s Act, as well as the common British ideas regarding clandestine marriage. For instance, while Rebecca

Probert has explicitly shown that the English Parliament enforced the Act out of a desire to

1 Lawrence Stone, The Family, Sex and Marriage in England 1500-1800 (New York: Harper & Row, 1977); Randolph Trumbach, The Rise of the Egalitarian Family: Aristocratic and Domestic Relations in Eighteenth-Century England (New York: Academic Press, 1978).

2 control the marital habits of daughters, Leah Leneman has alternatively illustrated the desire to control sons in Scotland. Leneman has also shown the influence of Scottish courts on the Act, arguing that the case of Cochrane v. Campbell was the catalyst of its inception.2 The different, but similar concerns of Scotland and England regarding their children’s susceptibility to clandestine marriages is just one example of the different but similar ways that the Scottish and

English contended with this marital issue.

R.B. Outhwaite’s study of clandestine marriage does well to cover the history of

Parliament’s efforts to make these secret marriages illegal in England, which began well before the Marriage Act finally passed in 1753.3 He not only discusses the legal debates leading up to the Act, but also the debates that led to the Marriage Act of 1836. Christopher Lasch similarly shows English efforts to enact regulations on irregular marriages prior to 1753.4 Rebecca Probert provides an excellent legal history that explains not only Hardwicke’s Act but also other legal issues regarding in Britain.5 However, a study of clandestine marriage in Britain that examines regulations enacted in Ireland or in the British military is in order, as these regulations are certainly linked to the English acts.

The overviews of marriage Stone and Trumbach published in the late 1970s focused on

England’s 1753 act. Scholars have started to develop the longer durée of marriage law

2 Rebecca Probert, “Control over Marriage in England and Wales, 1753-1823: The Clandestine Marriages Act of 1753 in Context,” Law and History Review 27, no. 2 (2009): 413- 450; Leah Leneman, “Marriage north of the border,” History Today 50, no. 4 (2000): 20-25; Leneman, “The Scottish Case That Led to Hardwicke’s Marriage Act,” Law and History Review 17, no. 1 (1999): 161-169. 3 R.B. Outhwaite, Clandestine Marriage in England 1500-1850 (: The Hambledon Press, 1995). 4 Christopher Lasch, “The Suppression of Clandestine Marriage in England: The Marriage Act of 1753,” Salmagundi 26 (1974): 90-109. 5 Rebecca Probert, Marriage Law and Practice in the Long Eighteenth Century (New York: Cambridge University Press, 2009).

3 enforcement in England and how rationales differed in Scotland and Wales. In this thesis I will continue that trajectory by drawing together the Scottish, Irish, and British military’s responses to clandestine marriage that precipitated Hardwicke’s Act. In showing the relationship between this 1753 Act and other responses to the Act, I will illustrate that a desire permeated upper-class

British society, not just the English elite, to prevent unfortunate unions. While it may seem unnecessary to make an argument for the Scottish, Irish, and British military that has already been made for England, sometimes one must make “explicit what had previously been implicit.”6

Furthermore, although the instinct to regulate marriages is similar, the methods the three groups discussed in this thesis act used will reveal both the differences and similarities between the

English elite and other elite groups. In order to make this argument, it is necessary to understand the Marriage Act of 1753 and the motivations behind it, to see in which ways English elite attitudes are mirrored in the actions of the upper echelons of the Scottish, Irish, and British military, and in which ways they are refuted. Historians have stated that the titled English supported the Act due to a desire among parents to maintain control of their children’s martial choices. In her work regarding Jeremy Bentham’s philosophy on marital law, Mary Sokol claims

“aristocratic or propertied families in England during the eighteenth century often saw the marriages of their children as opportunities to further family interests,” so it is obvious why parents were concerned about the matches of their children.7 As stated above, Rebecca Probert has shown that the Act was for the control of female children specifically, and Sue Chaplin claims that the patriarchy feared the feminine, which prompted them exert more control over

6 Probert, “Control over Marriage,” 417-418. 7 Mary Sokol, Benthem, Law and Marriage: A Utilitarian Code of Law in Historical Contexts (New York: Continuum International Publishing Group, 2011), 45.

4 female than male children.8 All of these scholars support the idea that marital policing centered on parental control over children.

In this era, aristocratic marriage was rarely a simple love match between two individuals.

It united families, determined social standing, and, sometimes, served as a site of resistance to control. Stone discusses the change in the family relationship, arguing that a closer relationship within the nuclear family allowed young people to wield more control over their matches.9

Amanda Vickery’s work on the women of Georgian England shows evidence of young couples exerting their influence on their parents to pursue matches that parents might otherwise not have approved.10 Contemporaneously, ideas about class and status were changing, and the wealthy began to mingle socially with the titled. Kirstin Olsen’s study of eighteenth-century daily life asserts “there are those whose wealth alone raised them to the upper class.”11 Colin Campbell discuss these rise of consumerism in the eighteenth century, claiming that the “finely graded system of social stratification allowed for easy interchange between adjacent ranks.”12 Although a clear distinction remained between the titled and the lower class, the middling sort used their wealth to work their way up the social ladder. Both the rise in companionate marriage and the shift in social hierarchy worried the elder generations. Parents feared that their children would make poor matches that would negatively affect not only personal relationships but also relationships between families and even nations.

8 Sue Chaplin, “How the Sublime Comes to Matter in Eighteenth Century Legal Discourse-an Irigarayan Critique of Hobbes, Locke, and Burke,” Feminist Legal Studies 9, no. 3 (2001): 199-220. 9 Stone, Family, Sex, and Marriage. 10 Amanda Vickery, The Gentleman’s Daughter: Women’s Lives in Georgian England (New Haven, CT: Yale University Press, 1998), 436. 11 Kirstin Olsen, Daily Life in 18th Century England (Westport, CT: Greenwood Press, 1999), 14. 12 Colin Campbell, The Romantic Ethic and the Spirit of Modern Consumerism (Oxford: Basil Blackwell, 1990), 19.

5 Marriage had long served as a means of establishing political alliance. King Henry VII also married his daughter Margaret to the Scottish King James IV to strengthen English ties with their neighbor nation. Henry VIII attempted to use marriage to strengthen the ties between

England and Ireland. Though these are more influential marriages than most, they serve as an example of how politically impactful a match could be, and one reason for the English government to be concerned with marriage practices in Britain. The importance of marriage to the political interests of the country and the push from the upper class to restrict the marital practices of their children prompted the governing bodies of Britain and Ireland to react to pressure from the Head of State, as well as the influential classes, by enacting regulations against clandestine marriage.13 Susan Miller Okin states that the traditional family “was founded almost exclusively on economic or other pragmatic considerations, which dictated the choice, by parents, of marriage partners for their children.”14 Lawrence Stone has shown in his work Road to Divorce that the Marriage Act of 1753 was a means to allow wealthy parents to control their children, a view he shares with John R. Gillis.15 Outhwaite cites a report from the Royal

Commission stating “…it is the duty of the State to discourage…clandestine marriages…enabling parents and guardians to protect minors from improvident and unsuitable

13 Royal concern for clandestine marriage is further explained in Outhwaite, Clandestine Marriage, 8. 14 Susan Moller Okin, “Women and the Making of the Sentimental Family,” Philosophy & Public 11, no. 1 (1982): 73. 15 Lawrence Stone, Road to Divorce: England, 1530-1987 (Oxford: Oxford University Press, 1993). Lawrence Stone has been challenged by Randolph Trumbach, who asserts that the Marriage Act passed due to parental willingness to allow marriages for love rather than out of a desire to maintain the patriarchal structure. However, this thesis will show that both the family and social patriarchs were more concerned with maintaining social structure than promoting love matches. Trumbach, Rise of the Egalitarian Family, 109: John R. Gillis. For Better, For Worse: British Marriages, 1600 to the Present (Oxford: Oxford University Press, 1985), 140-142.

6 connections.”16 Again, these scholar support the notion that the elder generation believed it to be in the best interest of themselves and their children to restrict the younger generation’s marriages.

Randolph Trumbach alternatively asserts that the influence of younger sons in Parliament precipitated the Act; they “were content to allow their children to marry for love.” Alan

Macfarlane claims that the Act was simply an anomaly in the traditional pattern of romantic love.17 Erica Harth answers both by showing that proponents of the bill were not promoting the interests of romantic love, nor was this Act an anomaly. Harth argues instead that the value of married love was tied to the value of money and property.18 David Lemmings similarly contends that Parliament did not pass the act because of a rise of individualism or romantic love, but out of a desire to enforce patriarchy and paternal control.19

Powerful citizens, both Parliament and the elite, felt the need to solidify the class structure of society and regulating marriage helped to achieve this goal. In their effort to restrict poor matches and encourage what they saw as proper ones, the parliaments enacted laws that not only established parental control over children, but preserved the supremacy of the nobility over others. The people of Britain reacted to these regulations by finding loopholes within them, such as the many English couples who eloped at Gretna Green or the military men who kept “wives” in all but the legal sense of the word.20 Others ignored them, like the Catholic Irish who deferred

16 Outhwaite, Clandestine Marriage, 1. 17 Trumbach, Rise of the Egalitarian Family, 109; Alan Macfarlane, Marriage and Love in England: Modes of Reproduction, 1300-1840 (Oxford: Basil Blackwell, 1986), 127. 18 Erica Harth, “The Virtue of Love: Lord Hardwicke’s Marriage Act,” Cultural Critique 9 (1988): 123-154. 19 David Lemmings, “Marriage and Law in the Eighteenth Century: Hardwicke’s Marriage Act of 1753,” The Historical Journal 39, no. 2 (1996): 339-360. 20 Gill Newton explains motivations behind English couples marrying clandestinely in “Clandestine marriage in early modern London: when, where and why?” Continuity and Change

7 to their church on marital rulings, or the soldiers who married without their officers’ consent hoping that begging forgiveness would excuse them not asking permission.21 Their resistance to the regulations on clandestine marriage shows the inability of the government to impose its will on the people. While parliaments succeeded in altering the culture regarding how couples went about marriage, they did not manage to eradicate this marriage practice.

The English wanted to maintain supremacy over the British Isles, and, much like the upper-class parents who wanted to maintain the supremacy of the aristocracy and gentry, they used marriage to protect the old social order. As Lisa Marie O’Connell puts it, Lord Hardwicke’s

Act “annexed marriage and married relations to the enlightened state,” making marriage more of a state matter rather than a private one.22 Gordon Schochet states that the most familiar function of the family in political philosophy is “the view of the household as the precursor of civil society.”23 If the family is a microcosm of society, then children’s challenges to parental control in the family mirrored social inferiors’ challenges to the elite in society. Marriage legislation responded to this challenge to authority.

29, no. 2 (2014): 151-180. These marriage-like relationships between military men and their “wives” are further explained in Jennine Hurl-Eamon, “’The lowest and most abandoned trull of a soldier’: The Crime of Bastardy in Early Eighteenth Century London” Female Transgression in Early Modern Britain, ed. Richard Hillman and Pauline Ruberry-Blanc (Farnham, UK: Ashgate, 2014): 163-190; Jennine Hurl-Eamon, Marriage and the British Army in the Long Eighteenth Century: The Girl I Left Behind Me (Oxford: Oxford University Press, 2014); Gillis, For Better, For Worse; Nicholas Rogers, “Carnal Knowledge: Illegitimacy in Eighteenth- Century Westminster,” Journal of Social History 23, no. 2 (1989): 355-375. 21 William Duncan and Paula Scully discuss the contention between Catholic and civil law in Marriage Breakdown in Ireland (Dublin: Butterworth Limited, 1990); Hurl-Eamon, Marriage, 32. 22 Lisa Marie O’Connell, "Marriage Acts: The Transformation of Eighteenth-Century British Nuptial Culture," (Doctoral Thesis, Brown University, 2000): 3. 23 Gordon J. Schochet, The Authoritarian Family and Political Attitudes in 17th Century England (New Brunswick, NJ: Transaction Books, 1988), xiv.

8 Due to government intervention in marriage practice, legislation such as the Marriage Act bound citizens to the state, making marriage a “practical reiteration of government relations.”

David Johnson has shown that this governmental influence made marriage a public event rather than a private one, an idea that has persisted for centuries.24 Eve Tavor Bannet has also argued that the Act changed perceptions of marriage, redefining what constituted a valid marriage and placing women in a precarious position. As Bannet states, civil contract, rather than mutual devotion, now longer formed the basis of a marriage.25 Probert, however, does not agree with the assessments of Bannet and Johnson, as she argues that marriage was already a formal event. She further counters Bannet’s claim that the article put marriages in peril with evidence that couples could not easily enter clandestine marriages before the act, nor easily annul them after it.

Elsewhere, she shows that courts often upheld disputed marriages if the couple had obtained parental consent, showing that the Act was not likely to harm legitimate marriages.26

In disputed marriages, the aforementioned issue of class became even more important. As

Belinda Meteyard has shown, lower-class men likely felt a sense of commitment to the women they seduced, while upper-class men did not.27 It seems the traditional understanding of mutual devotion united only social equals. Leneman further asserts the importance of class in marriage;

24 David Johnson, “Publish or be damned,” History Today 53, no. 11 (2003): 38-45; John R. Gillis argues that marriage became more private due to a shift in the boundaries between public and private in Gillis, For Better, For Worse, 8. 25 Eve Tavor Bannet, “The Marriage Act of 1753: ‘A Most Cruel Law for the Fair Sex,’” Eighteenth Century Studies 30, no. 3 (1997): 233-254. 26 Rebecca Probert, “The Impact of the Marriage Act of 1753: Was It Really ‘A Most Cruel Law for the Fair Sex?” Eighteenth Century Studies 38, no.2 (2005): 247-262; Probert, “The Judicial Interpretation of Lord Hardwicke’s Act 1753,” The Journal of Legal History 23, no.2 (2002): 129-151; Rebecca Probert and Liam D’Arcy, “The impact of the Clandestine Marriages Act: three case studies in conformity,” Continuity and Change 23, no.2 (2008): 309- 330. 27 Belinda Meteyard, “Illegitimacy and Marriage in Eighteenth-Century England,” The Journal of Interdisciplinary History 10, no. 3 (1980): 479-489.

9 the methods women used to attempt to prove their class status indicate that they had the right to expect marriage from their seducer.28

In this thesis I have used a number of court cases regarding disputed marriages to illustrate the strife the laws caused. These are also indicative of the level of parental involvement in marital affairs and the backlash against these laws by those groups they were meant to regulate. I have used widely-distributed pamphlets, such as Alexander Keith’s argument against the marriage regulations, in order to show the popular arguments against the regulation of irregular marriage that opponents disseminated among the masses. Journals like those of James

Boswell and Susan Sibbald, as well as personal letters like those of the Wemyss family, illustrate more personal accounts of marriages and attitudes towards the practice of irregular and clandestine marriage. I have drawn upon popular literature and artistic renderings of certain groups, like those Cindy McCreery cited in her article about British sailors, and of marriage practices in order to show the stereotypes of these groups that led to their marginalization.29 I have used sources like these due to the secretive nature of this practice. Clandestine marriages are difficult to uncover unless one member of the couple contested the union or recorded it in personal records. Therefore legal and personal writings are often the best evidence of irregular marriage. Ideas that appear multiple times in different families will be used to establish overall societal attitudes toward the practice of clandestine marriage. Arguments that opponents of the clandestine marriage bill use will also help to form the basis of social attitudes, as they often seek to align their argument with common opinions.

28Leah Leneman, “’No Unsuitable Match’: Defining Rank in Eighteenth and Early Nineteenth-Century Scotland,” Journal of Social History 33, no. 3 (2000): 665-682. 29 Cindy McCreery, “True Blue and Black, Brown and Fair: Prints of British Sailors and Their Women During the Revolutionary and Napoleonic Wars,” Journal for Eighteenth Century Studies 23, no. 2 (2000): 135-152.

10 Historians of gender in Scotland like Rosalind Carr, Katharine Glover, and Rosalind

Marshall have discussed marriage and class in broader works about eighteenth-century culture, while Leah Leneman, Rosalind Mitchison, and Katie Barclay have addressed marriage and class more specifically in their works on Scottish marriages.30 This thesis presents the first comparative study of English and Scottish clandestine marriage to prove that England regulated marriage within its own borders but failed to enact legal change in Scotland. The English were not able to legislate because Scotland retained that devolved power after the union of the parliaments.31 Though some advocated the spread of the Marriage Act to Scotland, members of the English Parliament feared that such an attempt would foment unrest in

Scotland.32 However, the Scottish peerage was similarly concerned with maintaining a position of power in Scotland, though they were subordinate to the British peerage. Therefore, the

English Marriage Act influenced Scottish marital practices, prompting Scotland to adopt stricter requirements such as mandating that parties seeking marriage must be domiciled in Scotland for

30 Rosalind Carr, Gender and Enlightenment Culture in Eighteenth Century Scotland (: Edinburgh University Press, 2014); Katharine Glover, Elite Women and Polite Society in Eighteenth-Century Scotland (Woodbridge: Boydell Press, 2011); Rosalind Marshall, Virgins and Viragos: A History of Women in Scotland from 1080 to 1980 (Chicago: Academy Chicago Ltd, 1983); Leah Leneman. Alienated Affections: The Scottish Experience of Divorce and Separation, 1684-1830 (Edinburgh: Edinburgh University Press, 1998); Leah Leneman and Rosalind Mitchison, “Clandestine Marriage in Scottish Cities 1660-1780,” Journal of Social History 26, no. 4 (1993): 845-861; Katie Barclay, Love, Intimacy, and Power: Marriage and Patriarchy in Scotland, 1650-1850 (Manchester: Manchester University Press, 2011). 31 Scottish marriage laws are further explained in Eric M. Clive, The Law of Husband and Wife in Scotland (Edinburgh: W. Green & Son Ltd., 1982). For the legal issue of English divorces in Scotland, see Leah Leneman, “English Marriages and Scottish Divorces in the Early Nineteenth Century,” The Journal of Legal History 17, no. 3 (1996): 225-243. 32 Jeremy Benthem is one such proponent: see Sokol, Benthem, Law and Marriage, 37. For the reasons why the bill did not spread to Scotland, see Brian Dempsey, “The Marriage (Scotland) Bill 1755,” Miscellany six 54 (2009): 84-85.

11 a period of 21 days in order to reduce the number of English .33 Leneman also discusses how the Scots reacted to the legality of clandestine marriage in Scotland versus

England, claiming that the Scots took advantage of their more lax laws.34 Both Leneman and

Eleanor Gordon have shown how the Scottish legal system contended with irregular marriage, which sometimes resulted in lack of continuity between courts and social practice.35

The third chapter of this thesis assesses the marital regulations in the British military, a subject that has received far less exploration than other facets of marriage history. Noel T. St.

John Williams and Jennine Hurl-Eamon have both addressed military marriages in their works, while other authors such as David Cordingly and Clifford Elliott Walton have followed the more common trend of including the subject in a broader military history.36 Other historians, like

Stone and Joanna Bailey, conversely mention these military marriages in broader works on marital history.37 The officers in the military were often gentleman who had purchased their commission and thus were likely financially secure and ranked highly in society. As Hurl-Eamon has shown, regulation prevented enlisted men in the British military from marrying, but not

33 Brian Dempsey further explains efforts to abolish irregular marriage in Scotland in “Making the Gretna Blacksmith Redundant: Who Worried, Who Spoke, Who was Heard on the Abolition of Irregular Marriage in Scotland,” Journal of Legal History 30, no. 1 (2009): 23-52. 34 Leneman, “Marriage north of the border,” 21. 35 Leneman “English Marriages and Scottish Divorces,” 225-243; Eleanor Gordon, “Irregular marriage and cohabitation in Scotland, 1855-1939,” The Historical Journal 58, no. 4 (2015): 1059-1079. 36 Noel T. St. John Williams, Judy O’Grady and the Colonel’s Lady: The Army Wife and Camp Follower Since 1660 (London: Brassey’s Defence Publishers, 1988); Hurl-Eamon, Marriage; David Cordingly, Seafaring Women: Adventures of Pirate Queens, Female Stowaways, and Sailors’ Wives (Random House, 2001); Clifford Elliot Walton, History of the British Standing Army. A.D. 1660 to 1700 (London: Harrison and Sons, 1894). 37 Lawrence Stone, Uncertain Unions: Marriage in England, 1660-1753 (New York: Oxford University Press, 1992); 247-250; Joanna Bailey, Unquiet Lives: Marriage and Marriage Breakdown in England, 1660-1800 (Cambridge: Cambridge University Press, 2003), 184-185. See also Leneman, Alienated Affections, 215; Gillis, For Better, For Worse, 95, 201, 218.

12 officers.38 Because officers were most often upper-class men, allowing them to marry while requiring the lower classes to obtain permission shows a distinct difference in the regulation of marriage practices across class lines. Furthermore, the necessity of obtaining permission to marry from an officer, who fills the paternalistic role of the civilian sphere in the military, shows the perceived superiority of the upper classes over the lower.

Finally, I will examine clandestine marriages in Ireland, where the Marriage Act of 1753 did not spread, but a penal code was enacted instead. As Deborah Wilson has shown, Anglo legislators established regulations on clandestine marriage in Ireland to maintain supremacy and to create separation between the Catholic and Protestant Irish.39 The English had been struggling to prevent the intermarriage of Anglo and Native Irish since the Statue of Kilkenny in 1366, a document that Linda Mitchell argues cements the English idea that Irish men were inferior even to English women.40 The difficulty in Ireland may have been due to Ireland not officially falling under the English crown or that Ireland and England did not share an island. Though England and Ireland did not unite until 1800, the Irish already mirrored English law via parliamentary divorce. First granted in 1729, this new form of divorce broke with tradition and caused a crisis of divorce law in Ireland that has persisted until the 1990s.41 The difference in Irish tradition,

Catholic practice, and English law influenced and caused confusion in a number of instances

38 Hurl-Eamon, Marriage, 248. 39 Deborah Wilson, Women, Marriage and Property in Wealthy Landed Families in Ireland, 1750-1850 (Manchester: Manchester University Press, 2008), 32-33. 40 Linda Mitchell, “Gender(ed) Identities? Anglo-Norman Settlement, Irish-ness, and The Statutes of Kilkenny of 1376,” Historical Reflections 37, no. 2 (2011): 8-23. 41 Diane Urquhart, “Ireland and the Divorce and Matrimonial Causes Act” Journal of Family History 28, no. 3 (2013): 301-320; Ireland, “Ancient Laws of Ireland, Volume IV,” (Dublin: Alexander Thom, 1901) archive.org, accessed 8 February 2016; Duncan and Scully, Marriage Breakdown in Ireland, 1.

13 besides divorce, one of which was the raising of children of mixed marriages.42 David Jameson, who shows that the “paternal supremacy” of English civil law battled with Catholic doctrine, further explains the conflicting positions of the church and state.43

In Ireland, as in Scotland, the Anglo-Irish peerage was subordinate to the British peerage, which Kimberly Schutte addresses in her work on marriage in the British aristocracy.44 The Irish peerage sought to maintain its power in Ireland, as well as strengthen it by marrying into the

British elite, a practice Rachel Wilson and Stella Tillyard each illustrate.45 A.P.W. Malcomson,

Thomas P. Power, and James Kelly all show the value of heiresses, especially titled ones, on the marriage market in Ireland, while the latter two address the more violent means by which a man obtained an heiress.46 Histories of women in Ireland also address the subject of marriage, but it is not their sole focus.47 Marriage in Ireland, edited by Art Cosgrove, obviously focuses on marriage, but also has a wider scope in that it addresses many aspects of Irish marriage across an expansive time period.48 Patrick Corish’s article in Marriage in Ireland does specifically address

42 For further explanation of traditional Irish law see Gillian Kenny “Anglo-Irish and Gaelic marriage laws and traditions in late medieval Ireland,” Journal of Medieval History 32, no.1 (2006): 27-42. 43 David Jameson, “The Religious Upbringing of Children in ‘Mixed Marriages,’” New Hibernia Review 18, no.2 (2014): 65-83, accessed May 15, 2016, https://muse.jhu.edu/. 44 Kimberly Schutte, Women, Rank, and Marriage in the British Aristocracy, 1485-2000 (Hampshire: Palgrave McMillan, 2014), 28. 45 Rachel Wilson, Elite Women in Ascendancy Ireland, 1690-1745 (Suffolk: The Boydell Press, 2015), 27; Stella Tillyard, Aristocrats (New York: Farrar, Straus, and Giroux, 1995). 46 A.P.W. Malcomson, The Pursuit of an Heiress: Aristocratic Marriage in Ireland, 1750-1820 (Ulster: Ulster Historical Foundation, 1982); Thomas P. Power, Forcibly Without Her Consent: Abductions in Ireland, 1700-1850 (Bloomington, IN: iUniverse, 2010); James Kelly, “The Abduction of Women of Fortune in Eighteenth Century Ireland,” Eighteenth Century Ireland 9 (1994): 7-43. 47 Rachel Wilson, Elite Women, 15-35; Mary O’Dowd, A History of Women in Ireland, 1500-1800 (Essex: Pearson Education Limited, 2005). 48 Art Cosgrove, ed., Marriage in Ireland (Dublin: College Press, 1985).

14 concerns regarding the Catholic Church and clandestine marriage, as does an article by Nathaniel

Carre.49

Together, an examination of these three groups will show the English elite’s pattern of relationship with those they viewed as subordinate. How marital customs of other groups influenced England how the English, in turn, influenced the practices of others shaped the differences and similarities in these relationships. This flow of influence succeeded in forming a similar idea among the elite of all groups that marriage must be regulated, but this idea failed to reach the entire population. The populace’s resistance to regulation is in one way an act of defiance against the English elite, but also closely mirrors the defiance of English children against their parents, which the Marriage Act of 1753 hoped to quell. As such, this thesis will illustrate differences while showing that, across the board, the British Isles shared common ideas about marriage and its importance to social structure.

49 Patrick Corish, “Catholic Marriage under the Penal Code” ed. Art Cosgrove, Marriage (Dublin: College Press, 1985): 67-77; Nathaniel Carre, “The law of marriage in its bearing on morality,” Journal of the Statistical and Social Inquiry Society of Ireland 3 (1886): 289.

15 CHAPTER 2

COMPARING IRREGULAR AND CLANDESTINE MARRIAGE IN SCOTLAND

AND ENGLAND

Marriage represents a pivotal moment in a person’s life, a decision that shapes one’s future trajectory in a positive or negative way. Parents have long played an important role in the marriage process by making the match, or at the very least, approving of it, signifying the importance of such an event. However, in eighteenth-century Britain, marriage practices shifted as the Enlightenment introduced a profusion of new ideas to society, including the concept of companionate marriage. Companionate marriage meant that the couple married for romantic and affectionate purposes rather than for wealth and status.1 This idea was alien in a society centered on families making beneficial matches among their offspring, and the notion shocked some.

In both England and Scotland this became a source of contention between parents and children. Of course, this new philosophy of marriage required greater influence on the part of the betrothed, and less parental involvement. As the younger generation embraced a more central role in choosing their future spouses, relations strained between the elder traditionalists and the

“enlightened” generation. The traditionalists often had unfounded fears regarding these marriages and their outcomes. Negative outcomes often arose due to the strain that the new couple felt from the ardent disapproval of their families rather than legitimate issues in the relationship. While fear and a need to assert control was a common reaction among all British parents, the Scots handled the issue differently from the English.

1 For further explanation of companionate marriage see, Lawrence Stone, The Family, Sex and Marriage in England 1500-1800. (New York: Harper & Row, 1977). For further discussion on the rhetoric of companionate marriage see Laura E. Thomason, The Matrimonial Trap: Eighteenth Century Women Writers Redefine Marriage (Lewisburg: Bucknell University Press, 2014).

16 Despite a great deal of literature written on companionate marriages and irregular marriages in both England and Scotland, a comparison between the two is lacking Authors such as Leah Leneman and Katie Barclay have produced a plethora of studies on Scottish marriage, while scholars of English history, such as Lawrence Stone and Randolph Trumbach, primarily investigate English unions.2 Historians have not presented a comparison of both countries regarding marriage, let alone clandestine marriage. Hence, in doing so, the present study will shed light on the two countries’ shared interests regarding the practices and laws of matrimony.

In this chapter, I will argue that the British shared a common idea that marriage should be regulated, but the methods these two countries employed to restrict marriage differed. I will show an exchange of ideas between them; Scottish methods influenced the English response to these marriages, and vice versa. Though historians often argue that the Marriage Act of 1753 in

England served as a turning point in the history of British marriages, they do not often delve into the influences of other groups within Britain, like the Scots. I will therefore show that the desire of the English peerage to insulate themselves from unsuitable influences from the lower classes of all groups primarily motivated their behavior. The Scottish peerage, however, primarily concerned themselves with the marriages between Scots. Though they may not have supported

2 Leah Leneman, “Marriage north of the border,” History Today 50, no. 4 (2000): 20-25; Leah Leneman, “’No Unsuitable Match’: Defining Rank in Eighteenth and Early Nineteenth- Century Scotland,” Journal of Social History 33, no. 3 (2000): 665-682; Leah Leneman. Alienated Affections: The Scottish Experience of Divorce and Separation, 1684-1830 (Edinburgh: Edinburgh University Press, 1998); Leah Leneman and Rosalind Mitchison, “Clandestine Marriage in Scottish Cities 1660-1780,” Journal of Social History 26, no. 4: 845- 861; Katie Barclay, Love, Intimacy, and Power: Marriage and Patriarchy in Scotland, 1650- 1850 (Manchester: Manchester University Press, 2011); Stone, Family, Sex, and Marriage; Lawrence Stone, Uncertain Unions: Marriage in England, 1660-1753 (Oxford: Oxford University Press, 1992); Randolph Trumbach, The Rise of the Egalitarian Family: Aristocratic Kinship and Domestic Relations in Eighteenth-Century England (New York: Academic Press, 1978).

17 English intervention in their marriages, Scots did not want to have their family members marrying exogamously any more than the English did. This chapter will present cases of both

Scottish and English nuptials that illustrate the differences and similarities between irregular and clandestine marriages in the two countries, including legal issues, social reactions, and class conflict. These cases will show English reactions to clandestine marriages in Scotland but more often the Scottish methods of imposing their own restrictions on citizens. Showing the Scottish reaction to clandestine marriage will more clearly illustrate the overall British attitude toward it.

To begin, it should be noted that the ceremonies that older generation of the eighteenth century saw as “traditional” marriage did not constitute a traditional marriage at all. The

“irregular” ceremonies, discussed later, had far more in common with traditional matrimony than the church services that society had come to accept as the norm. Marriage had been occurring in this fashion for a much longer period of time, and ceremonies such as these dated back to ancient history.3 Commonly, a Scot could recount a story of an ancestor simply arriving at a woman’s doorstep and proclaiming her his wife. Only in 1563 did the Catholic Church attempt to inject a bit of ceremony into the event, when the Council of Trent issued a decree regarding the sacrament of matrimony, sparking three centuries of efforts by the church and state to make marriage a public institution.4

Even after the ruling of the Council of Trent, prior to 1753 surreptitious marriages in

England were as legally binding as ones that had followed the more acceptable traditions. A clandestine marriage, also referred to as “irregular” though the two phrases refer to slightly different forms of marriage, indicates that the did not follow the proscriptions of the

3 Elizabeth M. Craik, Marriage and Property (Aberdeen: Aberdeen University Press, 1984), 17-18. 4 Craik, Marriage and Property, 107.

18 government.5 These proscriptions included the calling of banns, a member of the clergy to serve as the officiant, and parental consent for parties under the age of twenty-one.6 Failure to have a member of the Anglican clergy officiate the marriage rendered it irregular, whereas neglecting one of the other two requirements listed rendered it clandestine. As the name indicates, couples often held these in secret, but that does not necessarily mean the couple intended for the marriage itself to be concealed. Once the marriage had been consummated, it was generally safe for the couple to reveal it without fear of its annulment as it was now legally binding, if they chose to make it public.

After 1753, revealing a clandestine marriage, consummated or not, could lead to its annulment as these marriages became illegal in England. Interestingly, a Scottish case served as the catalyst for change in marriage law in England.7 The case, Kennedy v. Campbell, exhibited the problems with clandestine marriage via a of contested matrimony in which two Scottish women claimed to be the lawful wife of the same deceased man.8 The courts could not rely on the testimony of their husband and so a litigious battle ensued with each wife claiming the status

5 The term “clandestine marriage” refers to a marriage an Anglican clergyman attends, but that neglects the other terms of the canon law. An irregular marriage refers to weddings that are not attended by Anglican clergy, i.e. Quaker and Jewish marriage ceremonies. See Rebecca Probert, Marriage Law and Practice in the Long Eighteenth Century (New York: Cambridge University Press, 2009), 7-8. 6 Probert, Marriage Law and Practice, 6. 7 It should be noted that a great many factors in England led to the Act being proposed and passed when it was, and these are covered in great detail by scholars of English marital history, but this study will primarily concern itself with the Scottish and English relationship and thus the reader may explore these English influences via Rebecca Probert, “Control over Marriage in England and Wales, 1753-1823: The Clandestine Marriages Act of 1753 in Context,” Law and History Review 27, no. 2 (2009): 413-450; David Lemmings, “Marriage and Law in the Eighteenth Century: Hardwicke’s Marriage Act of 1753,” The Historical Journal 39, no. 2 (1996): 339-360; R.B. Outhwaite, Clandestine Marriage in England 1500-1850 (London: The Hambledon Press, 1995). 8 Leah Leneman, “The Scottish Case That Led to Hardwicke’s Marriage Act,” Law and History Review 17, no. 1 (1999): 161-169; Magdalen Cochran, “The case of Mrs. Magdalen Campbell, widow, impartially stated,” (London, 1751).

19 of legal wife. Phillip Yorke, Lord Hardwicke took advantage of the commotion this case caused, as well as the political atmosphere of England at the time, by proposing “An Act for the Better

Preventing of Clandestine Marriages.” This parliamentary act sought to eradicate irregular and clandestine marriages by outlawing them in England. English marriages could no longer be contracted per verba de praesenti nor per verba de futuro.9 Although a Scottish case predicated the act, the greater influence for its conception came from the English, who feared for their children and their estates.

The act passed in English Parliament, though not without controversy and backlash. A

Bishop of the Church of England stated in a petition against the bill that, “…no Priest of any

Profession has a right de jure divino to intermeddle in the Affairs of a Marriage Contract, or the

Office of Marriage…”10 The bishop argued that the state had no right to interfere in the matter of marriage. Other objections also came to light, such as A Letter from a By-stander containing

Remarks on and Objections to the Bill now depending in Parliament, for the Better Preventing

Clandestine Marriages and Considerations on the Bill for Preventing Clandestine Marriages, both anonymously written. Arguments that certain individuals could not meet the new residency requirements due to their occupations and that the delay in marriage would cost young lovers their youth, and thus childbearing years, came to the fore of the debate in England.11

9 Probert, Marriage Law and Practice, 221. As Probert explains in chapter 2, both per verba de praesenti, a promise made in the present, and per verba de futuro, a promise of future matrimony, contracts were only cemented subsequente copula, if did not occur a contract per verba de futuro was not binding at all, whereas a contract per verba de praesenti only implied that one party could force celebration of the marriage in the church. After the Hardwicke Act neither was legally enforceable. 10 John Free. “Matrimony made easy,” (London: 1764): 10. 11 Outhwaite, Clandestine Marriage, 101, 106-107.

20 Furthermore, opponents argued that the act prevented young women from forcing marriage upon their seducer if they fell pregnant, making it a “most cruel law for the fair sex.”12

Though the dissolution of might suggest Scotland’s subordination to

England, Scotland retained laws and practices distinctly different from those in England. As a part of their devolved powers, Scots retained the right make their own decisions on legislation regarding marriage. Therefore, while the English could influence the Scots, they could not force rulings on marriages. The legal age to marry without parental consent shows one difference between the two countries. followed Roman custom, allowing girls as young as twelve and fourteen-year-old boys to marry and it never required parental consent. In England, couples had to wait until eighteen to marry with parental permission, or until the age of majority at 21 without consent. Even today, Scots can marry freely at sixteen while their English counterparts must obtain consent at sixteen, or wait until age eighteen to marry freely.13 The legal age to marry demonstrates just one of the legal and social differences between the two countries.

With the rise in popularity of companionate marriage, parental consent became a hotly debated issue in both countries. While the law allowed anyone to marry of their own volition once they came of age, the process of choosing a spouse could wreak havoc on family relationships if the children chose to ignore their parents’ will. Similarly, parents worried that their children lacked the qualifications to select a partner without aid and recoiled at the thought of allowing such a match to occur for fear that it would cause a strain on the family economy or

12 Eve Tavor Bannet, “The Marriage Act of 1753: ‘A Most Cruel Law for the Fair Sex,’” Eighteenth Century Studies 30, no. 3 (1997): 233-254. 13 National Records of Scotland, “What Was and Is The Minimum Age for Marriage in Scotland,” accessed April 22, 2015, http://www.nrscotland.gov.uk/registration/getting-married- in-scotland/minimum-age-for-marriage-in-scotland.

21 an unfavorable alliance between families.14 While the English showed a primary concern to protect their daughters from marrying beneath them, the Scots feared their sons being unwittingly trapped in poor unions. Although both sexes could be duped into unfortunate unions across Britain, Britons perceived a greater risk for sons in Scotland. There, lower-class women’s

Declarators of Marriage against upper-class men were successful “just enough to keep the fear alive.”15

In addition to natural concern for their offspring, parents, especially fathers, demanded a say in the marriage because of the effect it could have on their estate. Due to the coverture system, the inheritance of daughters went to their husbands, causing their fathers alarm if they sensed their sons-in-law did not have pure intentions. When negotiating marriage contracts, parents heavily debated the issues of jointure, or a widow’s estate, and tocher in Scotland, or in England. A woman’s parents attempted to pay very little in the way of dowry or tocher while securing their daughter’s future via a fair jointure. Parents of sons hoped to retain the majority of their wealth while gaining more from a dowry. Parents of daughters placed stress on jointure because a widow’s settlement provided her only means of financial security after her husband’s death, but a large tocher was often necessary to secure a good match.16

As Rosalind Marshall points out, though English had always been larger than

Scottish tochers, this disparity rose during the seventeenth century. As London became a more popular marriage market, English dowries grew and jointures shrank. Although the same occurred in Scotland, with the groom often having the upper hand in marriage contract

14 John R. Gillis. For Better, For Worse: British Marriages, 1600 to the Present (New York: Oxford University Press, 1985), 85-86. 15 Leneman, “Marriage north of the border,”23. 16 Rosalind Marshall. Virgins and Viragos: A History of Women in Scotland from 1080 to 1980 (Chicago: Academy Chicago Ltd, 1983), 75-77.

22 negotiations, English grooms had a decidedly more advantageous position in marriage negotiations. Marshall states that English jointure fell between one-eighth and one-tenth of the dowry, while in Scotland parents expected a jointure worth one-sixth of the tocher. Although those participating in the marriage contracts often saw dowries as a benefit to the groom, dowries did not always find their way into the hands of the husband. Often, fathers relied on dowries received from their daughters-in-law to pay the dowries of their own daughters.17 Because of the lack of financial gain, a man had even less reason to marry a woman for her financial standing, especially if her father willed her inheritance to their children rather than directly to his daughter.

This may have made clandestine marriage even more appealing to English sons, whose parents effectively sold them on the buzzing London marriage market for a large dowry that he may not ever see.

Social class was the most significant concern for parental approval of a marriage. In the seventeenth century, society associated class with title, and therefore expected gentlemen to marry gentlewomen. Of course, marriages between a member of the peerage and a commoner occurred, but not often, and, in most cases, families did not accept them. Polite society found it especially shocking for an upper-class woman to marry a lower-class man. Because a wife took her husband’s title after they were married, if a titled woman married a low-born suitor, she surrendered her place in the high ranks of society. The Countess of Strathmore discovered this unfortunate reality after her second marriage.

Susanna Cochrane married the young Charles Lyon, Earl of Strathmore in 1725. The couple had a happy, though short-lived, marriage. In 1728, the earl died from wounds he

17 Marshall, Virgins and Viragos, 78.

23 received attempting to intercede in a drunken brawl.18 The countess mourned her husband for years before finding love again, this time in a much less respectable match. In 1745, the countess called the master of her stables, George Forbes, into her room. He had long served her as her groom, after being hired as a stable boy by her late husband. After years of close contact, the countess confessed that she loved him and wished to be his wife. The idea that such a high-born woman desired him for a husband shocked Forbes and he protested on account of the major class differences between them. The countess quelled his fears, assuring him that only he could bring her happiness and thus the two secretly married.19

As expected, the news of these developments incensed the noble relatives of the countess who believed that she smeared the family reputation by giving her hand to such a low-born and insignificant man. In an attempt to escape the scrutiny of society, the couple fled to Holland. In

1746, the countess gave birth to their daughter.20 Shortly after, the countess endeavored to return to Scotland to reconcile with her friends and family. Often, the birth of a child softened the hearts of a family previously callous toward their fallen relation, and presumably the countess made this argument to Forbes when he protested her departure.

However, upon arrival in her home country, the countess denied the marriage and the child. Disillusioned with her unrefined husband, the countess aimed to return to noble life. This prompted her husband to bring a case against her on behalf of himself and their young daughter,

Susan Jane Emilia Forbes. Because Scotland did not enact blanket marriage laws like the

18 The trial of James Carnegie, the man accused of killing the earl, became famous as it established the “not guilty” verdict in Scotland. The trial of James Carnegie of Finhaven, before the Court of Justiciary, at Edinburgh, in the year 1728, indicted for the murder of the Earl of Strathmore, Eighteenth Century Collections Online, accessed April 6, 2016. 19 Bernard Burke, Family Romance: or, Episodes in the domestic annals of the Aristocracy, Vol. I (London: Hurst and Blackett, 1854), 176. 20 Burke, Family Romance, 177.

24 Marriage Act in England, the Scottish courts considered each incident of challenged matrimony on a case-by-case basis. This particular case proved especially challenging for the courts. Due to the irregularity of the marriage, no record of it existed. Forbes attempted to prove the marriage on the basis of cohabitation, but he could only prove cohabitation while the couple resided in

Holland. Scots law required that cohabitation must occur in Scotland in order to amount to a marriage by repute. Similarly, the law also stipulated that intercourse following the promise of marriage, or consensus de praesenti subsequente copula, must take place in Scotland. Therefore

Forbes needed to prove the validity of his marriage by the practice of subsequente copula or

“cohabitation by habit and repute” while the couple still resided in Scotland, which he could not.21 This case is unique not only because a man pursued a declarator of marriage after the birth of a child, a position a woman often found herself in, but also because it illustrated the issues of the Scots law regarding irregular and clandestine marriages.22 This type of case prompted marital regulations; the uncertainty of the marriage, the loopholes in the laws, and the threat that it posed to the peerage all promoted a fear of these marriages.

One anonymous author from the era described the odd state of affairs regarding marriage in England, stating, “…a boy of fourteen and a girl may marry without the consent of parents…though one should be a cobler’s [sic] son, and the other a duke’s daughter.”23 This quotation illustrated the attitude of the public towards marriage between such disparate classes as well as the distaste for a match the couple’s parents did not approve of. If a man desired a relationship with a lower class woman, he simply kept her as a mistress while keeping up

21 Thomas S. Paton, Reports of Cases Decided in the House of Lords upon Appeal from Scotland from 1753-1813, Vol. IV (Edinburgh: 1854), 684-687. 22 Eric M. Clive, The Law of Husband and Wife in Scotland (Edinburgh: W. Green & Son Ltd, 1982), 59. 23 Uxorius, Hymen: An Accurate Description of The Ceremonies Used In Marriage, by Every Nation In The Known World (London: 1760), 170.

25 appearances by marrying well. Marrying a low-born woman could wreak havoc, as it did in the case of a Welsh baronet, Sir John Rudd, who married a servant girl in his youth. His mother quickly sent him off to Holland when she learned of the union. Lawrence Stone uses this case to show one method by which a wealthy family could employ the court system to skirt the legality of a clandestine marriage. After John Rudd’s departure, the family convinced his young wife that he had died, and thus she remarried. The Rudd family used her to accuse her of committing and adultery in order to secure a divorce for John.24 Being a Welsh case, the laws of England applied to Rudd’s marriage, and clearly the wealthy had the upper hand in these matters of law. Not only did the wealthy have a better understanding of the legal system, but they could also hire lawyers to exploit the loopholes in the law in the same way that Susanna

Cochrane’s lawyers exploited Scottish law.

In the eighteenth century, ideas of class shifted rapidly with the introduction of industrialization. Nobility retained their upper-class status, but economic standing also began to factor into class status. As Colin Campbell argues, the changing economy led to a “finely graded system of social stratification allowed to easy interchange between adjacent ranks.”25 While family connections remained the paramount factor in choosing a mate, economic concerns were also very important. Multiple cases presented here will explore the class issues coming to the fore of social debate, but perhaps none more so than the case of Sarah Anne Child and John

Fane. Fane held the title Earl of Westmoreland, but his inclusion in the noble class did not prevent him from being economically unstable. Fane’s financial woes led to his acquaintance with his future wife, as he sought a loan from her father, an affluent banker in London.

24 Stone, Uncertain Unions, 158-160. 25 Colin Campbell, The Romantic Ethic and the Spirit of Modern Consumerism (Oxford: Basil Blackwell, 1990), 19.

26 Sarah Anne Child, the beloved only child of wealthy banker Robert Child, came of age in

Osterley Park, Middlesex, England. Though the Child family held no titles, Robert Child’s success in the banking industry secured them high status in London society. Unbeknownst to

Child, he provided his future son-in-law with the idea to elope with his young daughter. One afternoon while eating lunch at Temple Bar, Fane asked Child, “Suppose you were in love with a girl and her father refused his consent to the union, what would you do?" to which Child replied,

“Why I run away with her, to be sure." Following this advice and the pattern of many other

English couples before them; Fane and Sarah Anne began their journey to Scotland in May

1782.26 Upon discovering his daughter’s absence and Fane’s treachery, Child began his pursuit of the couple. He managed to catch up to them at Hesketh-in-the-Forest and shot one of their carriage horses, but a servant of Fane had sabotaged Child’s carriage, forcing him to abandon the chase. The couple managed to reach Gretna Green and John Paisely, the presiding “blacksmith priest,” married the couple with haste.27

This case reflects class issues that arose during this period. John Fane, Earl of

Westmoreland may have possessed an elite title, but he had a rather dismal financial situation.

His home at Apethorpe paled in comparison to the luxurious Osterley Park, and he had a far less promising financial situation than Sarah Anne Child. Following their marriage, the couple followed custom and set up their household at the groom’s ancestral home, Apethorpe. Despite the events that led up to their secret wedding, the couple had a happy marriage. Robert Child

26 F.G. Hilton Price. A Handbook of London Bankers with Some Account of Their Predecessors the Early Goldsmiths (London: The Leadenhall Press, 1891), 35. 27 The popular myths of marriages that took place at Gretna Green indicate that weddings were conducted in the Blacksmith’s shop and were presided over by him, though none of the men documented to have performed marriages at Gretna Green were actually blacksmiths: see Peter Orlando Hutchison, The Chronicles of Gretna Green: In Two Volumes, Vol. II (London: Richard Bentley, 1844), 175-189; Price, Handbook, 35.

27 conceded the permanence of the union, and the couple had a traditional church wedding on June

5, 1782, after which Sarah Anne bore Fane five children. Unfortunately, their story ended in tragedy: the young died at just twenty-eight years old.28

Despite his eventual acceptance of the marriage, Child refused to allow Fane to profit from the . Robert Child named his granddaughter as his inheritor in order to prevent the Fane family from obtaining his fortune. Child’s objective remains unclear, he either doubted

Fane’s intentions towards his daughter or desired to punish the disobedient couple. Regardless of his reasoning, Child purposefully prohibited his fortune from passing to Fane and restoring the title of Earl of Westmoreland to its former glory.29

Child’s idea that his daughter brought more to the match than Fane is evidence of the waxing influence of wealth in British society. In the previous century, society would have considered the Earl of Westmoreland’s marriage to Sarah Anne to be below his station. But in the eighteenth century, changing ideas about class made it possible for polite society to perceive the match as being among equals, given the high status of both parties. Fane and Sarah Anne mixed in the same social circles, which demonstrates that, although they may have achieved it by different means, they shared a similar status. What constituted the upper class became more difficult to define, as society considered and accepted new interpretations of class.

Even among the gentry, gradations of class caused conflict in marriage. When Joseph

Beaumont became enamored with the young Catherine May, his father protested on the grounds of her social inferiority, though both came from the minor gentry. The May family also protested

28 After the death of Sarah Anne, Fane continued his pursuit of heiresses, marrying the co-heiress of Richard Huck Saunders. Roland Thorne, “Fane, John, tenth (1759–1841),” Oxford Dictionary of National Biography, online edn. (Oxford University Press, Jan 2008). 29 Price, Handbook, 35.

28 due to Catherine’s young age, but the couple managed to slip away and marry in Bures, a mere fifteen miles from their homes in Suffolk. The groom died of sepsis only ten days after the wedding, an event that would surely have saddened his new bride had his advanced venereal disease not repelled her affections when she discovered it on their wedding night.30 Had

Beaumont’s death not freed Catherine from the bonds of matrimony, her family would have had very little recourse in invalidating the marriage prior to the Marriage Act of 1753. The legality of clandestine marriage made marriage fairly simple to enter, but very difficult to renounce.

Couples rarely divorced, once they married it could not easily be undone, as John Echard discovered.

Concern for financial security could sometimes override the desire for title in a match, as was the case of the unfortunate Frances Townshend. In England in 1701, Reverend John Echard found himself in such a position when Mr. and Mrs. Thatcher, relatives of Frances Townshend, asked his intentions toward the girl. Rumored to be ugly and known to be poor, the family desperately wanted to have Frances married, but being of only minor nobility, finding her a husband proved difficult given her other faults. When Echard said he intended to marry her, the

Thatchers declared he had entered into a marriage contract. As the event occurred before

Hardwicke’s Act, contracts performed de praesenti were still valid in England. A weak-willed man easily beguiled, Echard agreed to the contract despite his affection for Frances’s sister,

Mary. On a visit to the family, Echard found himself in the company of Frances and her uncle,

Reverend John Baldock, who began performing a marriage ceremony to Echard’s surprise.

Though Echard put up a futile resistance, Baldock concluded the ceremony, and soon Echard began to have second thoughts about his abrupt marriage. A series of lawsuits followed

30 Stone, Uncertain Unions, 153-155.

29 concerning the validity of the marriage that alienated any affection that had persisted between

Echard and Frances. Despite the fact that the marriage had not been consummated, the court ruled it valid and binding, accomplishing Frances’s family’s goal to have her financially secured.31

Scotland also faced the problem of disputed marriages arising from the fine gradations of class and how people understood them. Leah Leneman assesses the varying gradations of class in

Scottish court cases where men contested allegations of marriage. The men in that sample attempted to prove that the women claiming to be their wives could not have expected their affair to amount to an irregular marriage. These contested marriages often resulted from drunken promises or clever deception on the part of the man. Men promised marriage and later denied it without difficulty in cases of irregular unions as women could rarely produce evidence that any such promise or union had ever occurred. These men attempted to disparage their alleged wives’ class and that of the woman’s father while elevating their own in order to build a stronger case.32

If the man could prove a major disparity in class, they could argue that the woman could not have expected to marry a man so far above her station. In cases where women lacked sufficient proof of marriage, they argued their own education as proof of their status and therefore their right to expect marriage from a man they viewed as their social equal. The use of education as an indicator of class speaks to the rising importance of female education. This evidences the greater influence that women began to exert in the eighteenth century.33

Despite the rise of women’s influence in society, judges and lawyers still viewed females as the weaker sex, which assisted them in cases involving contested marriage declarations. The

31 Stone, Uncertain Unions, 135-146. 32 Leneman, “No Unsuitable Match,”665-682. 33 Rosalind Carr, Gender and Enlightenment Culture in Eighteenth Century Scotland (Edinburgh: Edinburgh University Press, 2014), 92-94.

30 courts held men to a higher standard of behavior and even when the Court of Commissary discovered no proof of marriage, they often convicted men of crimes of seduction. However, the court could hold not only men to the laws of matrimony, but women as well. In rare cases, a man filed suit claiming to be the lawful husband of a woman who denied him, as seen above in the

Scottish case of Susanna Cochrane, Countess of Strathmore and George Forbes.

Hardwicke’s Act may have pertained specifically to England, but some proponents of the bill, such as Jeremy Benthem, advocated its enforcement in Scotland.34 Brian Dempsey argues that Parliament confined the bill to England because the Members of Parliament believed such great opposition would arise in Scotland that it would fail altogether. He further asserts that

Parliament did not introduce another bill to include Scotland because the Scots would see it as an imposition of English law on Scotland, already a sore subject after the dissolution of the Scottish

Parliament in 1707.35 However, Dempsey’s article does discuss a potential bill that arose in

1755. Lord Justice-Clerk Charles Erskine, Lord Tinwald, who owed much of his success to

Hardwicke, prepared a bill and sent it to Parliament. Hardwicke returned the bill under the guise that it needed revision, although personal letters reflect that he felt his political position was too compromised to handle the introduction of such a controversial bill. It seemed Hardwicke’s position never sufficiently recovered to support the bill and he subsequently abandoned it. 36

Although a new bill never altered Scots law, the Hardwicke Act did have an effect on marriage in Scotland. English citizens who opposed the law often fled to Scotland to secure a marriage under the comparatively lax laws. Gretna Green became the most renowned destination for an elopement. Situated on the main thoroughfare from England to Scotland and dangerously

34 Mary Sokol, Benthem, Law and Marriage: A Utilitarian Code of Law in Historical Contexts (New York: Continuum International Publishing Group, 2011), 37. 35 Brian Dempsey, “The Marriage (Scotland) Bill 1755,” Miscellany six 54 (2009): 84-85. 36 Dempsey, “The Marriage…Bill,” 88-92.

31 close to the border, many couples took advantage of this convenience to secure an irregular, but legally binding, marriage. Because the contract of marriage per verba de praesenti remained legal in Scotland, couples marrying at Gretna Green did so by simply declaring that they consented to wed.37

In 1856, Henry Brougham, First Baron of Brougham and Vaux introduced a new act that further altered the landscape of marriage in Britain. Lord Brougham had himself eloped to

Scotland in his youth and had a difficult and lengthy marriage, which may have inspired his speech to Parliament in which he argued that the state of the marriage law was “absurd and incomplete.”38 Brougham’s speech showed that the Marriage Act largely failed in its intention to protect heiresses. Because primarily wealthy individuals eloped to Gretna Green, the couples who managed to escape the strictures of the act could be those whom Parliament enacted it for.

Brougham’s “cooling off” act thus required that either the bride or the groom reside in the parish they wished to marry in for at least twenty-one days prior to the marriage. This addendum to marital law showcased one of the loopholes often exploited in Hardwicke’s Act as well as the personal prejudices that prompted Lord Brougham to draft his act.

Much of the debate surrounding the Hardwicke Act promotes the misrepresentation that irregular or clandestine marriages were the norm. A regular marriage required the calling of banns on three Sundays with no objection and the performance of a marriage ceremony by a member of the clergy from the Scottish Kirk or Church of England, in their respective churches.

37 Brian Dempsey, “Making the Gretna Blacksmith Redundant: Who Worried, Who Spoke, Who was Heard on the Abolition of Irregular Marriage in Scotland?” Journal of Legal History 30, no. 1 (April, 2009): 23-52. Dempsey states that, in Scotland, marriage per verba de praesenti were fully binding, and different from marriage subsequente copula. This is in contrast to Probert’s explanation of the English understanding of a contract per verba de praesenti, which required consummation to be legally binding. 38 Henry Brougham, Speeches of Henry Lord Brougham, Upon Questions Relating to Public Rights, Duties, and Interests, Vol. II (Philadelphia: Lea and Blanchard, 1841), 291.

32 The calling of banns entailed the couple announcing their impending marriage to the congregation to provide the opportunity for congregates to announce their opposition to the marriage. As explained above, a clandestine marriage was very similar to regular marriage with the difference being that the performance of the ceremony occurred outside of the church.39 In

England, young couples could avoid the issue of parental objection by having their banns called at a church outside their area without the knowledge of their parents. Their marriage would still be legal but without parental influence. Supporters of the Marriage Act in England anticipated this skirting of the rules, writing stipulations stating that banns must be called in the couples’ own church and that marriage without parental consent could be invalidated.40

In Scotland, parents were no more eager to have their opinions ignored than their southern neighbors. In fact, Lord President Robert Craigie of the Scottish Court of Session wrote to Lord Hardwicke declaring:

I have alwise thought the establishing the Parental authoritye in a matter of so great importance as in the Marriage of children and the settling the Legitimacy of our Issue a matter of publick concern as being the main foundation of Private and Publick virtue. And consequently of the utmost concern to the state; whereas The Laws of Scotland have treated this Matter onely as engine of Church Tyranny.41

From this statement, one can assume that parents, both English and Scottish, expected their children to defer to their authority. In Scotland, the laxity of marriage law made the matter more contentious. Leah Leneman has argued that the Scots took advantage of this laxity; she showed that from 1720-1750 in the town of Leith, clandestine marriages outnumbered regular ones.42

39 Probert. Marriage Law and Practice, 6-7. 40 Probert, Marriage Law and Practice, 225, 228. 41 Robert Craigie to Lord Hardwicke, 14 March 1754, British Library MS quoted in Brian Dempsey, “The Marriage (Scotland) Bill 1755,” Miscellany six 54 (2009): 90. 42 Leneman, “Marriage north of the border,” 21.

33 Just as parents sought control over their children’s marriages, grown children, particularly males, attempted to assert control over the marriages of their parents. In the case of the Boswell family, the members of the family more often opposed than approved of the matches of their kin. James Boswell strongly opposed his father Alexander Boswell, Lord of

Auchinleck’s remarriage to cousin Elizabeth Boswell. In correspondence he referred to his future stepmother as “that infamous woman” and made no effort to hide his contempt for her.43 His disapproval likely stemmed from a commitment to his mother, and the idea that his father dishonored her memory by remarrying. He made his opinion on the subject very clear in his essay “On Second Marriages: A True Story in Queen Anne’s Reign,” in which he recounted the story of a father who has “affronted the memory of [his children’s] mother” by remarrying.44 The fear of a child’s intervention arises in many cases of older couples marrying soon after the death of a spouse.

If the parent could still produce issue, the children of the first marriage often worried about the financial security as well as the family reputation. Famously, Thomas Erskine, first

Baron Erskine, dressed as a woman and fled to Gretna Green. The legitimate children of the lord, eight in all, had no desire to share their inheritance with the lowly housekeeper Sarah Buck and her bastard children fathered by her employer. In an effort to evade their intervention, Lord

Erskine concealed his appearance until the marriage ceremony and the two managed to unite in matrimony.45 Though Sarah Buck may have succeeded in marrying the lord, she did not succeed in gaining a fortune from him. The couple did not have a happy marriage, and he filed for

43 James Boswell, “Edinburgh, 17 July 1769,” Boswell in Search of a Wife, ed. Frank Brady and Frederick A. Pottle (Melbourne, Australia: W. Heinemann, 1957), 247. 44 James Boswell, “On Second Marriages: A True Story in Queen Anne’s Reign,” In Search of a Wife, 248-250. 45 Hutchison, Chronicles, 45-64.

34 divorce soon after they wed. When he died just a few years later, he left Buck and her children with little money and, unsurprisingly, no sympathy from their stepfamily.46

Sometimes, simply the fear of disapproval from their children prompted older couples to keep their weddings covert. In the case of Mary Livingston, Countess of Callander and James

Oglivy, Earl of Findlater, she asked that her fiancé inform no one of their impending match, not even his “darling son.”47 Lady Mary had already been married twice and her fiancé once before.

Although she had no children of her own, the Earl of Findlater’s prior union had produced three children whose opinions surely weighed heavily on Lady Mary. Margaret Wemyss, Countess of

Wemyss, also showed concern for her offspring, and was sure to “discharge the duties of her children” before entertaining the idea of a new husband. 48 Commonly, previously married couples kept their marriages private, not only because of the fear of disapproval of the match, but also because of the impropriety of celebrating a second marriage with as much pomp and circumstance as the first.

Following the death of her husband, Margaret Wemyss ensured that all of her children made suitable matches that secured both their titles and their fortunes. After securing the future of her children, she pursued a new match herself. One admirer, Sir George Mackenzie, Viscount

Tarbat, was “perhaps the most ardent,” and earned her affections and hand in April 1700.49

Though the friends and acquaintances of the couple generally celebrated the match, the couple kept the wedding inconspicuous to avoid the intervention of disapproving family members. The bride’s own sister remarked in a letter to George Melville, Earl of Melville:

46 “Lady Erskine.” London Age, July 16, 1826, 495. 47 Mary Livingston, Countess of Callander, Original Letter, Scottish Record Office, Seafield Papers, GD248/559/36, quoted in Marshall, Virgins and Viragos, 73. 48 William Fraser, Memorials of the Family of Wemyss, Volume I: Memoirs (Edinburgh, 1888), 316. 49 Fraser, Memorials, Vol. I, 316.

35 At last I had a letter from my sister Wemyss, dated the 28 of Aprill. The last line of it was she believed she would be marryed to-morrow or next day. A hansom warning for a sister for a thing of that consequence! It shews such kindness to me: but I should hear the busines is over before I wish joy.50

The couple’s assumption that the marriage might result in some disapproval proved correct as David Melville, seemingly objected to the match. Letters between

Tarbat and the Earl of Melville show that the Earl of Leven did not attend the ceremony, an act that Tarbat predicted would make “a good understanding between him and the Lady Weems thereafter almost impossible.”51 Indeed, the disapproval of a marriage often caused a great strain on family relations, and this occurred in numerous cases. Not only were elders concerned about the marriages of the younger generation and their effects on the family, but the youth also saw fit to police their elders if they felt those matches could prove detrimental to their family name.

These instances of family policing show the attitude of the Scots toward marriages within the upper class, an attitude they was shared with England and which promoted the Marriage Act.

Sometimes the strain proved so great that a family remained estranged from their son or daughter for the remainder of their lives. Though the birth of a child sometimes ameliorated the antagonism, it did not always provide a solution. When Margaret Lindsey married London painter Allan Ramsay, news of their union infuriated her father, Sir Alexander Lindsay of

Evelick. Claiming that his daughter’s station far surpassed that of the artist and her marriage therefore shamed the family, he disowned Margaret, refusing to speak to her or answer her

50 Anne Scott, Original letter, dated May 9, 1700, in Leven and Melville Charter-chest, quoted in William Fraser, The Earls of Cromartie: Their Kindred, Country, and Correspondence, Vol. I (Edinburgh, 1876), cxliv. 51 George Mackenzie, “George, Viscount of Tarbat to George, First Earl of Melville. Wishing his presence. April 1700,” Original letter in the Charter-chest of Lady Elizabeth Jane Leslie Melville Cartwright, quoted in William Fraser, Memorials of the family of Wemyss, Volume III: Correspondence (Edinburgh, 1888), 160-161.

36 letters.52 Ramsay asked one of his clients, James Lindsay, fifth , who was related to the Lindsays, to intercede. In reply to Lord Balcaress, Sir Alexander stated that forgiveness would be “too great an encouragement to [his] other Daughter to do the lick.”53 Even when Margaret wrote to inform him of the birth of his grandchild and later to keep him apprised of the progress of her offspring, he never relented. Only after his death did Margaret reunite with her mother, who finally met her grandchild.54

Another case of a marriage contracted against the wishes of an opposing father had a much different outcome. Prior to her marriage, two suitors attempted to woo Janet Charteris.

Afraid that her parents would force her to marry the one she did not love, she and her beau resolved to marry secretly. In a letter to the Earl of Leven, the Earl of Wemyss revealed his relationship with Charteris, stating his love for her and hinting at his plans by saying “Her father is now here, and is to sett out to London Saturday next.” Just six days later, the Earl of Leven received another letter, this one from William Moncrief, informing him that Lord Wemyss and

Charteris had wed “Saturday, betwixt nine and ten at night, with all quietness.” It would seem the young lovers could not wait to marry, although her father, Colonel Francis Charteris did not fulfill the Earl of Wemyss’s prediction that he would depart on that Saturday.55

52 Alastair Smart, Allan Ramsay: Painter, Essayist and Man of the Enlightenment (New Haven: Yale University Press, 1992), 94-96. 53 Alexander Lindsay to Lord Balcarres, Original Letter, dated 18 March 1752, National Library of Scotland, MS 2956, f.179, quoted in Alastair Smart, Allan Ramsay, 96. 54 Smart, Allan Ramsay, 221. 55 James Wemyss, “James, Fourth Earl of Wemyss, to David, Third Earl of Leven. Wishing his presence, being in love with Miss Charteris, September 13, 1720,” Original letter in Leven and Melville Charter-chest, quoted in Fraser, Memorials, Vol. III, 193-4; William Moncrief, “William Moncrief, Edinburgh, to David, Third Earl of Leven. Marriage of Lord Wemyss and Miss Charteris. September 19, 1720,” Original letter in Leven and Melville Charter-chest, quoted in Fraser, Memorials, Vol. III, 194.

37 Upon learning of the marriage, the Colonel made his way to London, understandably enraged, but his wife took a gentler approach, sending her compliments to the couple. Colonel

Charteris softened toward his grandchildren, leaving his property to his daughter’s second son, and appointed the tutors of all of his grandchildren. The Earl of Wemyss opposed having the control of the education of his children taken from him and litigation ensued, which provoked the estrangement of the couple around the time of the death of Lady Janet’s parents.56 The couple never managed to reconcile, and lived apart until James’s death in 1756.57

Paternal reactions to these marriages differed, with one father completely ignoring his young grandchild and the other intently concerned with them. The reasons for the difference in reaction may be tied to the benefit that the marriages had for the bride’s fathers. In the case of

Colonel Charteris, his second grandson could gain a title via the Colonel’s son-in-law. By requiring his grandson to take his surname, Charteris added a title to his family name.58 In the case of the young artist, though he did prove successful in his career, his father-in-law accrued little benefit from him or his child. As previously mentioned, families expected female members to raise, or at the very least maintain, the family’s station by marrying endogamously. That

Margaret Lindsay lowered herself from a titled family by marrying an untitled man while Janet

Charteris married an earl surely factored into familial acceptance, regardless of any benefit their

56 Fraser, Memorials, Vol. I, 354. 57 James Paul Balfour, “Wemyss, Earls of Wemyss,” The Scots peerage: founded on Wood's edition of Sir Robert Douglas's peerage of Scotland; containing an historical and genealogical account of the nobility of that kingdom, Vol. 8 (Edinburgh: David Douglas, 1911), 509. 58 Despite the contentious relationship between Colonel Charteris and the earl, the earl was forced to plead his father-in-law’s case for a pardon after Charteris was convicted of rape in order to maintain his son’s inheritance. Paige Life, “Charteris, Francis (c.1665–1732),” Oxford Dictionary of National Biography, online edn. (Oxford University Press, Jan 2008).

38 fathers stood to gain. In Scotland, as in England, the attitudes toward marriage centered on maintaining the family’s societal status.

These negative reactions extended beyond fathers; all members of an upper-class family took part in ensuring the protection of its legacy. In the case of the Boswells, James Boswell took a definitive stance on his sister-in-law’s marriage. When his wife’s sister, also his cousin, married a man he considered below her station, he made his opinion of the match clear by cutting all contact between his wife and himself and his sister-in-law. Claiming that allowing contact with her showed support for not only her marriage, but for all marriages like it, which he could not tolerate, Boswell staunchly held to his restriction of his wife from her sister.59 Only upon hearing that his cousin laid on her deathbed, suffering from tuberculosis, did Boswell allow his wife to visit her sister. He regarded this break in stance as a very sympathetic action, showing how adamantly he opposed this match.60

Boswell’s own marriage faced strong opposition from his family because the elder

Boswell believed Margaret Montgomerie unfit to fill the role of his son’s wife. Claiming she brought nothing to the martial match in terms of economic wealth or title, Alexander Boswell treated his niece harshly. After a complicated and dramatic journey to find a wife, chronicled in his journal, followed by a similarly arduous wedding, James Boswell’s marriage did not have an ideal outcome. Margaret’s familiarity with Boswell’s temperament, being related to him and having been his traveling companion prior to their betrothal, prepared her for the rambunctious behavior that did not cease after their marriage. Boswell, for all of his searching, seemed

59 The hypocritical James Boswell remarked that his own actions in London would have amounted to an irregular marriage had they taken place in Scotland: James Boswell, Boswell’s London Journal, 1762-1763, ed. Frederick A. Pottle (New Haven, CT: Yale University Press, 2004), 119-120. 60 James Boswell, “Saturday 11 November,” The Ominous Years, ed. Charles Ryskamp and Frederick A. Pottle (New York: McGraw-Hill, 1963), 178.

39 unfulfilled with martial life, and carried on many affairs for which he always sought forgiveness.

His understanding wife always granted it, right up to her death.61

Was Margaret simply a caring and forgiving wife who had entered into a troublesome marriage with realistic expectations, or did she tolerate her husband’s infidelities because she counted herself lucky to be able to proclaim herself his wife? Alexander Boswell may well have been correct in his assumption that Margaret and James were ill suited in terms of class, and

Margaret’s actions may have been the result of the realization that she not could offer more than humility and unconditional affection to the prominent Boswell family. Britons feared marriages like this would occur in Scotland, a son and heir marrying a woman below his station.

Because society found it more acceptable for a low born woman to marry above her station than vice versa, quite a few cases show a woman who married a man of higher class and earned the approval of her family but the disdain of society. Outside influences often hindered a woman who entered this seemingly felicitous situation. Entering an already established family, as seen with Lord Erskine and Sarah Buck, could provoke backlash from stepchildren and their grandparents. Additionally, the idea that she lacked the proper manners due to her lower class upbringing placed the comportment of the new bride under severe scrutiny. This proved especially true in cases with a large age gap with the bride and groom, such as Elizabeth

Crompton and Hugh Hume-Campbell, Earl of Marchmont. Their whirlwind courtship caught the attention of observers; in a letter to James Oswald, David Hume recounted the events:

About three weeks ago, he espied in one of the boxes a fair virgin, whose looks, air, and manner, made such a powerful and wonderful effect upon him, as was visible to every

61 Irma S. Lustig, “Boswell, Margaret Montgomerie (1738?–1789),”Oxford Dictionary of National Biography, online edn. (Oxford University Press, Jan 2004).

40 by-stander. His raptures were so undisguised, his looks so expressive of passion, his inquiries so earnest, that everybody took notice of it.62

The earl wrote to the girl’s father the very next day and within a few days, she became the Countess of Marchmont. The securing of such a match thrilled her father, a bankrupt linen- draper, but failed to impress others. In the same letter, Hume remarked, “I hope to escape such ridiculous passions.”63 This match clearly provided upward mobility for the girl while allowing the earl to indulge his infatuation, but the marriage provoked the judgment of the community.

The hasty union, based on fleeting attraction, and the economic and age disparity prompted suspicion. The three daughters of the earl from his first marriage, the eldest of whom was quite close in age to her new stepmother, likely reacted rather poorly to the marriage. However, because of the earl’s influence and reputation as a well established, respected, noble-blooded man, objectors to the marriage kept their murmurs relatively private. No one wanted to confront a prominent lord with the assertion that his wife only married him for money. Despite any disapproval, the couple seemed to have a happy marriage. They also had a son who grew into adulthood and married, no doubt to the joy of the previously heirless earl. Alas, the parents survived the child, who left a widow but no children.

Parental, familial, and social opinion about the dangers of clandestine or irregular marriages did not always prove legitimate. Often, these fears seemed to result from a fear of loss of control rather than concern for the individuals. The concern of parents centered on the promotion of their accustomed societal structure rather than the arrangement of happy marriages.

The outcomes of the marriages discussed here that did not gain approval often proved no

62 “David Hume to Mr. Oswald of Dunnikier, London, January 29, 1748,” quoted in James Oswald, Memorials of the Public Life of the Right Hon. James Oswald of Dunnikier (Edinburgh, 1825), 62. 63 “David Hume to Mr. Oswald,” quoted in Oswald, Memorials, 63.

41 grimmer than any other type of marriage.64 In instances when the unapproved marriages failed, familial intervention and pressure often played a greater role than any problems that sprang from the match. In fact, even the media presented the possibility of a happy outcome for a clandestine marriage, if the family eventually accepted it.65

Though law may have caused a difference in marriage between England and Scotland, reactions to the cases in the two countries show that marital practices were rooted in familial expectation just as much, if not more, than legal ramifications.66 As the attitudes in the two countries toward the Fleet Prison and Grenta Green illustrate, legality did not always mean acceptability when it came to marriage.67 Parents expected their children to make good matches and, though there were cases in which aberrations were forgiven, the possibility of being shunned remained. The similarity of attitudes toward irregular marriage in both Scotland and

England show that the two had common ideas about unions. Though the two countries addressed clandestine marriage differently, each influenced the methods of the other via the flow of ideas between them.

64 For more information about the grim outcomes of regularly conducted marriages see, Leah Leneman, Alienated Affections: The Scottish Experience of Divorce and Separation, 1684- 1830 (Edinburgh: Edinburgh University Press, 1998); Lawrence Stone, Broken Lives: Separation and Divorce in England, 1660-1857 (New York: Oxford University Press, 1993). 65 George Colman and David Garrick, The Clandestine Marriage. A Comedy (London: 1766). 66 Probert, Marriage Law and Practice, 221. 67 The Fleet Prison was a debtors prison on the River Fleet in London where couples often went to contract clandestine marriage prior to 1753. The high number of “couple- beggars,” counterfeit ministers willing to conduct irregular ceremonies, made it a popular venue for the practice.

42 CHAPTER 3

IRREGULAR AND CLANDESTINE MARRIAGE IN THE EARLY MODERN

BRITISH MILITARY

Marriage in the military is often fraught with hardship. Spouses leave for extended periods of time, those at home have to support themselves and perhaps children, and of course one spouse always fears that the other may not return from battle. These concerns remain as relevant now as they were in the eighteenth century. For these and other reasons, the British government heavily discouraged low ranking military men from pursuing matrimony. Military marriage meant that the state not only had to provide for a wife and family while the patriarch served, but that number of widows and orphans demanded pensions after the war. This reason, coupled with the desire of the government to regulate the martial habits of marginalized groups to better maintain the class system, provoked the state to make the process of getting married difficult for soldiers and sailors and, in turn, prompted them to subvert these barriers by contracting irregular marriages.

In this chapter, I will argue that the regulations placed on men in the military to prevent their marriages served as a precursor to the Marriage Act of 1753 and, although parliament meant for the act to protect heiresses, it had a further impact on the military. These regulations showcase the common idea among elite Britons that they should police marriages of members of the lower class, because although high ranking officials in the military made many arguments about the detriments of marriage in the military, the upper-class officers remained free to make their own marital choices. In the military, the commissioned officers formed the elite group, whereas the enlisted men were the lower class whose marriages the officers sought to restrict.

Similarly, like their civilian counterparts, members of the military continued to contract

43 marriages despite the regulations. The restrictions simply led to a higher incidence of irregular than regular marriages among the enlisted men, with one-fourth of the marriage in the Fleet

Prison being contracted by military men, as they skirted the rules to cement their unions.1

Although this practice of policing precipitated a pervasive trend of clandestine marriage in the

British military, these marriages generally resulted in a socially, economically, or emotionally negative outcome for one or both parties. Though these unions could assist a man in achieving higher political and social aspirations, they generally did not benefit women, who often found their social or economic standing jeopardized. To the detriment of both parties, the spousal affection in the relationship usually deteriorated. These unions often resulted in marital breakdown; however, a few examples do not follow this trend. These cases will be used to establish the norm by illustrating the exception. Such an examination of marriage in the British military reveals negative stereotypes about soldiers and sailors, ideas about social status in

British society, and the influence of class on marital relationships. The philandering soldier and faithful sailor stereotypes influenced the attitudes toward the two groups and their marriages.

Explanations of stereotypes and discussion of the class conflict between officers and non- commissioned military men will show why the British government attempted to restrict military marriages. This will ultimately show the similarity of debates and circumstances surrounding military and civilian irregular marriage in this era.

1 Roger Lee Brown, “The Rise and Fall of the Fleet Marriages,” in Marriage and Society: Studies in the Social History of Marriage, ed. R.B. Outhwaite (London: Europa, 1981): 126; According to the National Archives of the , around fifteen percent of all marriages in England in the 1740s were conducted in the Fleet, making the very high incidence of military marriage there a significant indicator of its prevalence. United Kingdom, “Nonconformists,” The National Archive, Accessed June 23, 2016, http://www.nationalarchives.gov.uk/help-with-your-research/research-guides/nonconformists/.

44 Historians have produced very little research concerning the marriages of British military men in the eighteenth century; generally, authors mention the subject briefly in a broad military history or within a history of some other facet of military life.2 Jennine Hurl-Eamon’s study of marriage in the British army is an exception to this as she does focus specifically on marriage.

Her attention to irregular marriages, though they are not her focus, indicates the importance of these marriages in the army. As with civilians, court cases and personal writings indicate that clandestine marriage ran rampant in both the army and navy, and investigating clandestine marriage between both groups helps to explain the reasons for this practice in Britain as a whole, the differences specific to military contexts, and the debates surrounding this form of marriage.

Widespread governmental interference in military marriages began in 1685. James II and the army passed two ordinances; the king made it easier for a widow to obtain her husband’s pension while the military made it more difficult for a soldier to obtain a wife.3 During the reign of Charles II, the government granted the King’s Bounty (or soldier’s pension) to any soldier who sustained injuries from war that left him disabled or to any widow of a fallen soldier who plead destitution.4 However, the inconsistency of the sum of the Bounty left many women at the mercy of the court’s generosity when it came to establishing the pension that the court rewarded.

This allowed the state a great deal of flexibility in awarding money to widows, and greatly reduced the pool of widows eligible to request funds due to the stipulation that she must be destitute. When King James II came to the throne in 1685, he issued an official ordinance that

2 See Clifford Elliot Walton, History of the British Standing Army. A.D. 1660 to 1700 (London: Harrison and Sons, 1894), 491; Richard Holmes, Redcoat: The British Soldier in the Age of Horse and Musket (London; W.V. Norton and Company, 2001), 293, 297; N.A.M. Rodger, The Command of the Ocean: A Naval History of Britain 1649-1815 (New York: W.W. Norton, 2005) 62, 213, 526, for examples of this. 3 Walton, History of the…Army, 491. 4 Walton, History of the…Army, 605.

45 allowed for all widows to collect eleven months’ worth of her husband’s pay as well as an additional sum for each unmarried child.5 Henceforth, the state would be responsible for a larger group of women as well as their children and could no longer dictate the amount of money that would be granted.

Given the financial repercussions of soldiers’ marriages for the state, it should come as no surprise that, in the same year, the army expanded a regulation that forbade soldiers from marrying without the permission of their commanding officer. This rule, which had first been established in 1671 but applied only to the First and Second foot-guards, now became applicable to the whole army. This meant that all soldiers now faced interference in their marriages.

Furthermore, in 1697, the army purged itself of married men by discharging them against the married soldiers’ will, keeping single men in service in their place.6 Together, the events of

1671, 1685, and 1697 show a desire among military leaders to establish and maintain a bachelor army.

One of the arguments for establishing a bachelor army resulted from the above- mentioned legislation. If a bounty must be paid to a widow regardless of her situation, the state’s financial interest dictated it reduce the number of possible widows. More importantly, military leaders argued that a single man would be less distracted in the field and, in an era where it was not uncommon for women and children to be a part of the military camp, the possibility of

5 Walton, History of the…Army, 606. 6 Walton, History of the…Army, 491, 493. As regiments were disbanded after the peace of Ryswick in 1697, the military reassigned disbanded single men to other regiments in the place of the married men who had been discharged from them. Over time, this practice of substitution resulted in a bachelor army.

46 distraction genuinely concerned commanders.7 While this is a compelling argument from a military standpoint, it did not take hold in the social arena.

A great number of Britons opposed these impediments to military marriage and a few made popular and influential arguments to this effect. For example, in a sermon given to a military camp, Reverend William Agar argued that marriage was the preferred state for a soldier.

Quoting Francis Bacon’s assertion that single men were “light to run away,” Agar claimed that a married man would be more anchored to his duty and country, and that he had more to lose by deserting. Furthermore, Agar claimed that the soldiers who found themselves in need of medical care often fell ill due to sexually transmitted diseases rather than injuries sustained in warfare.

His veiled argument, that men would not choose a celibate life, suggested marriage as a better solution than consorting with prostitutes.8

Wives contributed more to the camp than aiding in the prevention of venereal disease.

Agar mentioned the “washing and cooking,” as a couple of the tasks women most often completed, but they also provided more important assistance to the regiment.9 Though impudent and lazy women became targets of the officers’ fury, officers considered sober and helpful women to be an asset. Only a small number of women held the distinction of asset. The army provided rations for the women officially attached to the regiment, and thus officers did not admit many women to this group. Though the army officially recognized only a few, women of the camp served as nurses to the wounded, and officers thought “their very presence induced

7 Noel T. St. John Williams, Judy O’Grady and the Colonel’s Lady: The Army Wife and Camp Follower Since 1660 (London: Brassey’s Defence Publishers, 1988), 1. 8 William Agar, Military Devotion: or, the soldier's duty to God, his prince and his country. Containing fourteen sermons preached at the camps near Blandford and Dorchester, A.D. 1756 and 1757 (London: 1758), 29-30; Francis Bacon, Essays Moral, Economical, and Political by Francis Bacon, Baron of Verulam, and Viscount St. Albans (London: T. Bensley, 1798), 29. 9 Agar, Military Devotion, 29-30.

47 men to behave better.”10 These women were almost always married, but if her husband died while she was in camp she would become a prime target for marriage proposals. As one of only a few eligible, respectable women already in the camp, a new widow did not remain single for long. Women often contracted multiple marriages with men of the same camp as multiple husbands widowed them. This indicates the necessity of being married rather than indifference to their husband’s death. A widowed woman needed protection and provisions and did not have the luxury of mourning.11 An irregular marriage provided a quick and easy method of remarrying in a short time, a necessity in these situations. Like the wealthy widows of civilian life, soldiers placed high value on war widows on the marriage market, though their location, not their wealth, made them appealing.

In 1753, Phillip Yorke, Lord Hardwicke, introduced into Parliament his “Act for the

Better Preventing of Clandestine Marriages,” which he aimed at preventing irregular marriages in England. As previously mentioned, a Scottish case in which two women claimed to be wed to

Captain John Campbell after he was killed abroad in 1745, sparked the act’s proposal.12

However, Hardwicke claimed that young, unsuspecting heiresses needed the act to protect them from greedy suitors eager to take advantage of the girl’s inheritance. This act made it impossible to secure an irregular marriage in England, meaning English couples wishing to enter into a legally binding clandestine marriage had to do so either in Scotland or overseas. The motivations

10 Holmes, Redcoat, 293. See also John A. Lynn II, Women, Armies, and Warfare in Early Modern Europe (Cambridge: Cambridge University Press, 2008). 11 Williams, Judy O’Grady, 51. 12 Leah Leneman, “The Scottish Case That Led to Hardwicke’s Marriage Act,” Law and History Review 17, no. 1 (Spring, 1999): 161-169; Gilbert Hutcheson, Treatise on the Offices of Justice of the Peace; Constable; Commissioner of Supply; and Commissioner Under Comprehending Acts in Scotland, Vol. II (Edinburgh 1806).

48 behind the act, both the case of the naval captain and the fear for heiresses’ well-being, had ties to the military.

Military men might choose to enter a clandestine marriage for numerous reasons, such as the possibility of obtaining a commission. Becoming an officer generally depended more on wealth than skill, and military men usually achieved higher rank by buying commissions. Not all men, however, could afford to follow this practice, and thus they married heiresses in order to secure funds for their commission. Unsurprisingly, many fathers did not consent to a match between their wealthy daughters and men from a lower social stratum, civilian or not. Young women, however, swooned over men in uniform—a tendency Jane Austen highlighted in popular literature—and a clandestine marriage provided an outlet to escape parental control and achieve the sought after marriage.13

Besides a commission, a man could gain other benefits from an irregular marriage. In her memoirs, Teresia Constantia “Con” Phillips recalled her marriage to a young soldier named

Francis Delafield.14 Delafield already had a wife at the time of his wedding to Phillips, which took place at the Fleet Prison, rendering their union bigamous. Mutual benefit, rather than love, motivated their marriage. Phillips needed protection from her creditors, and as a married woman her creditors would transfer her debt to her husband. On the other hand, Delafield received a post under Phillips’s father as a reward for the marriage. Furthermore, his relocation kept him safe from the creditors who could not locate him.15 Though most couples did not contract a clandestine marriage under these circumstances, this match does exemplify common motivations

13 Austen’s two brothers were in the Royal Navy, therefore soldier and sailor figures appear multiple times in her fictional works. 14 Teresia Constantia Phillips, An Apology for the Conduct of Mrs. T.C. Phillips (London: G. Smith, 1741), 76-79. 15 Lawrence Stone, Uncertain Unions: Marriage in England, 1660-1753 (New York: Oxford University Press, 1992), 237-238.

49 and consequences that accompanied irregular military marriage, such as bigamy and career advancement.

Another example of bigamous marriage in the military is illustrated in the case of

Elizabeth Chudleigh, the wife of a naval captain and the only woman tried on the charge of bigamy in the House of Lords.16 This shows that the practice reached the upper echelons of society. However, these bigamous unions generally did not occur on the same terms as the

Delafield-Phillips marriage. In this case, Chudleigh secretly married the naval officer Augustus

Hervey—later the Earl of Bristol—but, after his departure to sea, she endeavored to conceal the marriage so that she could marry Evelyn Pierrepont, the Duke of Kingston. Because Chudleigh would have been a member of the peerage, and therefore maintain high social status, regardless of which of her marriages the court declared legal, she did not deny her marriage to Hervey because of a desire to increase her social standing, but rather due to her desire to escape an unhappy first marriage. Chudleigh’s case presents just one example of the negative results that could arise from a hasty wedding and secret marriage.17

Joanna Bailey discusses the tendency of military couples to commit this practice, sometimes unknowingly.18 Often, wives would be informed of their husband’s death and remarry only to find him still living. The repercussions of this situation could range from lengthy litigation to a simple reconciliation of the woman and her first husband. In one case a husband came home to find another man in his house and a child on his wife’s knee. After some

16 Charles Bathurst, The Trial of Elizabeth, Duchess Dowager of Kingston for Bigamy, Before the Right Honourable the House of Peers, in Westminster-Hall, in Full Parliament (London: House of Lords, 1776). 17 Elizabeth Chudleigh Bristol, The Laws Respecting Women (London: J. Johnson, 1777), 327-336. 18 Joanna Bailey, Unquiet Lives: Marriage and Marriage Breakdown in England, 1660- 1800 (Cambridge: Cambridge University Press, 2003), 184-185.

50 negotiation, the two husbands worked out an arrangement so that the military husband had his home and wife while he occupied it, but when he left for war, the second husband took his role.19

This man undoubtedly showed more sympathy than other men who returned home to find their wives were no longer theirs. As evidenced by the tendency toward litigation or reconciliation, first husbands viewed their wife as property to be claimed, not someone to negotiate a quasi- custody agreement over.20 Bigamous marriages rarely yielded felicitous results for all parties, even in cases of unintentional bigamy.

Far more commonly, a man would knowingly commit bigamy, as with the case of sailor

Thomas Borthwick. His case differs from most bigamy cases because, though most men who committed bigamy did not vacillate between wives, Borthwick carried on a relationship with both.21 He first married Annabella Mckenzie in Scotland in 1740, and then, in 1745, he married

Anne Rodgers in Kent. In 1748, Borthwick’s first wife, Annabella, and their child went aboard his ship to visit him while it was docked in Scotland. After hearing of another woman claiming to be wed to her husband, Anne was outraged. When the women knew all of the details of the matter, they left Borthwick without any wife at all.22 David Cordingly, who examined Navy records between 1750 and 1800, discovered twenty-two cases in which two women claimed the same pension as sailors’ widows, further substantiated the idea that a sailor had a “wife in every

19 Bridget Hill, Women, Work, and Sexual Politics in Eighteenth Century England (Routledge: London, 2005), eBook. 20 Bailey, Unquiet Lives, 184-185. 21 Though there was a stereotype that soldiers often sustained relationship with multiple wives, Jennine Hurl-Eamon finds there is little evidence to support that idea: Jennine Hurl- Eamon, Marriage and the British Army in the Long Eighteenth Century: The Girl I Left Behind Me (Oxford: Oxford University Press, 2014), 171. 22 Leah Leneman, Alienated Affections: The Scottish Experience of Divorce and Separation, 1684-1830 (Edinburgh: Edinburgh University Press, 1998), 215.

51 port.”23 This reality contradicted the stereotype of sailors as faithful in contrast to the promiscuous soldier. It seems disreputable behavior plagued both branches of the military.

In another case, however, a soldier’s wife accused him of bigamy when he claimed he had no knowledge of his first marriage’s validity. In 1804, John Dalrymple—who would become the seventh —married Johanna Gordon while stationed in Scotland. Though originally a Scotsman, Dalrymple argued that he had become domiciled in England. This proved important to his case because, at the time of his marriage to Gordon, Dalrymple believed that one had to be a resident of Scotland for more than forty days to contract a legal marriage in the country. While this may have been true for a regular citizen, the relaxed their laws regarding forum domicilii where military men were concerned.24 Had he only entered the marriage per verba de praesenti, or with a verbal agreement, it would not have been valid.25

However, because he verbally agreed and consummated the marriage while in Scotland, the

Scottish government considered it binding.26 The court rendered Dalyrymple’s marriage to Laura

Manners, his second wife, null when it decided to uphold his marriage to Gordon. This shows how military men sometimes tried to subvert marriage laws and failed, resulting in litigation and

23 David Cordingly, Seafaring Women: Adventures of Pirate Queens, Female Stowaways, and Sailors’ Wives (Random House, 2001), 181. 24 William Maxwell Morison, “Lees v. Parlan, 1709,” in The Scots Revised Reports, Morison’s Dictionary of Decisions, Vol. I (Edinburgh: William Green & Sons, 1908), 578; John Haggard, Report of Cases Argued and Determined in the Consistory Court of London, Vol. II (London, 1822), 92. 25 Rebecca Probert, Marriage Law and Practice (New York: Cambridge University Press, 2009), 66-67. Probert gives a more detailed explanation of marriage laws in Britain, which may better explain how and why this marriage was considered valid when others similar to it were not. 26 For an example of a marriage that avoided validation due to verbal agreement taking place in Scotland and consummation occurring elsewhere, see Thomas S. Paton, “Countess of Strathmore v. Forbes,” Reports of Cases Decided in the House of Lords, Vol. VI (Edinburgh: T&T Clark, 1865), 684-687.

52 marital dissolution, in Dalrymple’s case.27 Bigamy was by no means specific to the military; this problem arose in civilian marriages as well. However, the constant relocation and death of men made military marriages more susceptible to it. It was difficult for a woman to determine her husband’s location or if he still lived and easy for a man to keep two wives hidden from one another.

Though the determination of the legality of his marriage to Gordon caused upheaval in

Dalrymple’s life, forcing the dissolution of his second marriage and leaving him with no heir at his death, it would prove useful to other military men. It provided soldiers and sailors with a way out of the long betrothal period demanded in England. Because of short leave times, these men could not wait for the calling of their banns or a traditional church wedding, so the option of marrying swiftly abroad appealed to them. If they managed to bring a woman aboard their ship, not an altogether difficult venture, they did not even need to wait to reach dry land because the captain had the authority to conduct a marriage.28

Before the passage of Hardwicke’s Act, many military men chose to marry irregularly in

England. For them, the Fleet Prison presented a popular option; as stated above, in the early eighteenth century, military men accounted for more than one-fourth of all marriages conducted there.29 Commonly referred to as simply “the Fleet,” it was not as dingy a wedding venue as one might imagine. Patrons could find a variety of unseemly “ministers” willing to marry couples in dark and dank rooms, but the popularity of the Fleet for soldiers and sailors most likely lay in its

27 John Haggard, “Dalrymple v. Dalrymple,” Reports of Cases Argued and Determined in the Consistory Court of London, Vol. II (London: Strahan, 1822): 54-137. 28 This practice remained legal until the passage of the Marriage Act in 1753, after which lawyers debated into the late nineteenth century as to whether a marriage officiated by a ship’s captain was legal for Scottish subjects or if maritime law, unlike canon law, applied all subjects of the crown. See Elvera Wollitz, “Law Governing Marriages on the High Seas,” California Law Review 24, No. 6 (September 1934): 662. 29 Brown, “The Rise and Fall of the Fleet Marriages,” 126.

53 better accommodations. One of the most famous images depicting a shows a sailor merrily enjoying his wedding festivities in a stately room with portraits and a well-appointed table for the feast.30

Figure 1: The Sailor’s Fleet Wedding Entertainment.

Aside from being well equipped for weddings, people who truly wanted their marriage hidden from society found the Fleet appealing, either because they had some reason to conceal it, because they did not expect it would last long, or both. Though divorce could not be easily

30 It should be noted that the sailor in this etching has been duped into a marriage with a prostitute and has now incurred all of his wife’s debts, which was not necessarily a surprising series of events for a sailors hastily entering into a Fleet marriage. John June, The Sailor’s Fleet Wedding Entertainment 1747, etching, 223 x 304 mm, The British Museum, Collection Online.

54 obtained, couples could easily buy the erasure of or amendment to a marriage in a Fleet record (if the officiant ever recorded it).31 In cases of pregnancy, the bride could often convince the officiant to antedate the marriage record to legitimate the child and save the reputation of its mother.32 This appealed to men who did not want their officers to learn of the marriage as well as those unsure of their marriage. As seen above, many military men chose to marry a second time; the possibility of erasing any evidence that the first marriage occurred shielded them from charges of bigamy.

The Reverend Alexander Keith recalled a case in which a group of young sailors were enjoying their leave in a public house with some young women when the drunken suggestions of marriage inspired the group to go down to the Fleet to be married. When Keith visited the tavern later, he questioned the tavern keeper about the state of said marriages. Upon thinking, the tavern keeper recalled the event but said it happened so often he “hardly took any notice of them.”33

Keith went on to argue that these marriages must be allowed to continue, as the country will need men to man fleets and till fields, and if the law prevents young, lower class couples from marrying by establishing irregular marriages as illegal, the country will be deprived of its next working generation.34 Keith’s observations illustrate a how common and impulsive these marriages were, which helps to explain why they were likely to turn out poorly.

Keith himself benefitted from the practice of clandestine marriage, performing a number of these marriages himself, and therefore had an obvious personal bias. However, he made two important arguments that other opponents to Hardwicke’s Marriage Act shared. The first is that

31 Henry Galley, Some Considerations Upon Clandestine Marriage (London: J. Hughs, 1750), 18. 32 Brown, “The Rise and Fall,” 130-131. 33 Alexander Keith, Observations on the Act for Preventing Clandestine Marriages (London, 1753), 24. 34 Keith, Observations, 24-25.

55 the country benefitted economically from quick and easy marriage being available to the lower classes. An anonymously published letter contemporary to Keith also pointed out that a regular marriage takes at least six weeks’ time. As mentioned above, this would have been impossible for military men, who had limited leave time. Like Keith, the anonymous author thinks that hasty marriage benefits England and that forcing a man to wait would cause his resolve to dissipate, thus quashing the possibility of any marriage occurring at all.35

Keith also addressed the problem with the cost of marriage. Getting married in the

“regular” way not only took time, it could be expensive, and the lower classes, like enlisted men, could not cover this cost. This conundrum led to a large amount of women occupying ships or army camps, as discussed above, that carried on a marriage-type relationship with a man, but could not actually marry. Enlisted men often referred to these women as “wives,” though everyone knew their true station.36 Nevertheless, the military tolerated these women, as long as a man did not venture to make her his legal wife.37 Though not a true marriage, this type of relationship fit the subset of irregular marriage titled “marriage by cohabitation and repute,” and in Scotland would have been legally binding.38

A study of bastardy cases indicates that a great number of military couples established households and had children, functioning as a family in all but the legal sense.39 Records of these

35 Anonymous, A letter from a bystander containing remarks on and objections to the bill now depending in parliament, for the better preventing of clandestine marriages (London: 1753). 36 Hurl-Eamon, Marriage, 156-158; John R. Gillis. For Better, For Worse: British Marriages, 1600 to the Present (Oxford: Oxford University Press, 1985), 201. 37 Hurl-Eamon, Marriage, 141. 38 In the case of Cunningham v. Cunningham, Lord Redesdale determined that “By the law of Scotland cohabitation, with habit and repute, is presumptive evidence of marriage.” The English Reports, House of Lords, Vol. III (Edinburgh: William Green and Sons, 1901), 949. 39 Nicholas Rogers, “Carnal Knowledge: Illegitimacy in Eighteenth-Century Westminster,” Journal of Social History 23, No. 2 (1989): 357-358. Because Rogers conducted this case study in England, these marriages are not valid as they would be in Scotland, where

56 cases also indicate that lower-ranked men tended to have long affairs with the women with whom they conceived bastards, even if they did not establish a household with them. These matches were not always based on love; a widow or abandoned woman might enter into a relationship with a military man for monetary benefit, trading sexual favors for security.

However, this security did not last. As the cases show, if the woman became pregnant with a bastard, both parents faced negative consequences.40 By contrast, when the courts prosecuted a commissioned officer for impregnating a lower-class woman; the officers often revealed they had only a short tryst with her. These cases suggest that the idea of low-ranked military men loving and leaving women, so to speak, did not necessarily prove true.41 Enlisted men had a greater likelihood of carrying on a marriage-type relationship with their unmarried partners than their superiors, though court records show that their good intentions could end in litigation. This further supports the idea that society expected upper-class men to engage in an affair with a lower-class woman, and not make a commitment to her, whereas the lower-class men felt a greater sense of “mutual devotion” to the women with whom they had affairs.42

Sailors often carried on affairs with prostitutes similar to the pseudo-marriage relationships described above. Though the sailors did not regard the prostitutes as filling the lifelong role of spouse, they would commit to being temporarily married to them while the ship was docked. The prostitutes who engaged in these temporary relationships likely had stronger

marriages “by habit and repute” were still legally binding, see Probert, Marriage Law and Practice. 40 Rogers, “Carnal Knowledge,” 357-358. 41 Jennine Hurl-Eamon, “’The lowest and most abandoned trull of a soldier’: The Crime of Bastardy in Early Eighteenth Century London,” Female Transgression in Early Modern Britain eds. Richard Hillman and Pauline Ruberry-Blanc (Farnham, UK: Ashgate, 2014), 163- 190. 42 Eve Tavor Bannet, “The Marriage Act of 1753: ‘A Most Cruel Law for the Fair Sex,’” Eighteenth Century Studies 30, no. 3 (1997): 233-254.

57 bonds with their sailing customers than with others, since they made themselves available to them every time they came into the port.43 Cases where a sailor and prostitute attempted to marry in the Fleet (though it is likely both parties assumed the marriage could be undone), or manufactured a fake marriage certificate so the woman could stay at sea with her “husband,” illuminated the strength of this relationship.44 Society regarded sailors as kinder to women than soldiers, an idea illustrated by artists in their depictions of sailors. The artists almost always portrayed the sailors who had relationships with prostitutes as single, while they depicted married sailors as faithful. Artistic renderings of married sailors most often portrayed as upstanding and moral, with a worried wife waiting at home.45

43 Cordingly, Seafaring Women, 11-12. 44 Cindy McCreery, “True Blue and Black, Brown and Fair: Prints of British Sailors and Their Women During the Revolutionary and Napoleonic Wars,” Journal for Eighteenth Century Studies, 23, Issue 2, September 2000, 146; Robert Laurie and James Whittle, The Sailor’s Farewell, mid to late 18th century, mezzotint, 345 x 250mm, The British Museum, Collection Online. 45 McCreery, “True Blue,”146-148.

58

Figure 2: The Sailor’s Farewell.

If a military man did marry, his marriage could be advantageous to his career if his superiors found his wife appealing. The Highland Fair by Joseph Mitchell presents the fictional account of a soldier, Willy, being propositioned by his captain for the use of his wife. The

Captain negotiates an agreement with Willy that if he allows the Captain to “take her off your

[Willy’s] hands,” a promotion and monetary reimbursement are in his future.46 Although this anecdote came from the theater, it draws its subject matter from real events, as art tends to do.

Samuel Pepys, while steadily rising through the ranks of naval administration, employed the same tactics. In a diary entry from 1664, Pepys recounted a sexual encounter with a Mrs.

46 Joseph Mitchell, The Highland Fair: or, Union of the Clans (London: J. Watts, 1731), 2.

59 Bagwell, the wife of one of Pepys’s inferiors, in an alehouse.47 Though his account of events recalled Mrs. Bagwell’s protestations, her continued involvement with him, eventually becoming one of his mistresses, indicates that she feigned protest to suggest modesty. Indeed, Pepys mentioned that her modesty prevented him from taking advantage of her in a diary entry previous to the event, and he claimed that he would assist her husband regardless of an exchange of sexual favor.48 However, Pepys did not write a letter to his father’s cousin, the Earl of

Sandwich, to secure a better position for William Bagwell until after the alehouse incident.49

Pepys’s reputation as promiscuous and immoral explains his behavior. Though he may have refrained from forcing himself on Mrs. Bagwell, he would not help her or her husband unless he somehow benefitted.

Men could barter their wives for financial gain in both the civilian and military market.

Provided he found a superior with no moral qualms, a military man could use his wife to secure a better position for himself. However, this type of arrangement could also account for marital breakdown among military couples, especially if a wife did not consent to the arrangement.

Though the Bagwells seem to have conspired together, it is clear from The Highland Fair that a man did not need his wife’s approval to contract such an arrangement.50 Pepys’s exploitation of his position extended beyond securing positions for already married men to securing sailor husbands for his mistresses. In order to conceal his affair when his amour became pregnant,

Pepys secured a marriage for her, thus providing a legitimate father for any child his mistresses

47 Samuel Pepys, The Diary of Samuel Pepys, Vol. IV, ed. Henry B. Wheatley (London: George Bell and Sons, 1904), 270. 48 Pepys, Diary, Vol. IV, 137. 49 Pepys, Diary, Vol. IV, 335. 50 For evidence that the Bagwell family was conspiring to trade favors for advancement, see letters 54 and 172 in Samuel Pepys, The Letters of Samuel Pepys, 1656-1703, ed. Guy de la Bedoyere (Woodbridge, Suffolk: The Boydell Press, 2006), 61, 180.

60 bore.51 Therefore, Pepys’s inferiors in the Royal Navy could be saddled with an unfaithful wife and the responsibility of illegitimate children at their commander’s behest. Both exploited wives and grooms forced to wed show the control the highly-ranked had over the marriages of their inferiors, with the power to both make and break them.

Famous general John Burgoyne served as an example of a high-ranking officer who entered his own irregular marriage. In his youth, Burgoyne clandestinely married Lady Charlotte

Stanley, daughter of the . This incensed the earl, and he estranged himself from the couple during the early years of their marriage. Though Burgoyne’s father-in-law eventually softened, their marriage did not end happily. Charlotte died in 1776, while Burgoyne campaigned in America, and left no children behind.52 The Burogyne marriage lends credence to the proverb

“who marrieth for love without money hath good nights and sorry days.”53 While the Burgoyne marriage portrays a particularly gloomy example, it reveals the repercussions that may come from contracting an irregular marriage as a military man. Charlotte had incurred the wrath of her family and, with her husband’s departure looming, she surely had fears regarding her impending solitude.

The marriage of Henry Fox provides another example of a high-ranking man who contracted a clandestine marriage. Though Fox did not technically serve in the military, his position as the Secretary of War earned him a place among other high-ranking military men

51 This explains why Pepys engaged in sexual intercourse with Mrs. Bagwell though he refrained with other women. See Stone, Uncertain Unions, 344-347 for evidence of these and other affairs in which Pepys used his power to gain sexual favors. 52 John Burgoyne, The Dramatic and Poetical Works of the Late Lieutenant General J. Burgoyne; To Which is Prefixed, Memoirs of the Author (London: C. Whittingham, 1808), 16. The Burgoynes did have a child, who was probably the reason for their reconciliation with Charlotte’s family, but their daughter died at age 10. 53 Thomas Fielding, Select Proverbs of All Nations (London: Longman, Hurst, Rees, Orme, Brown, and Green, 1824), 112.

61 socially and politically via his involvement in military affairs. In 1744, Fox visited the home of the Duke of Richmond, where he had previously met Lady Georgina Caroline Lennox. The two quickly became attached, but the Duke and Duchess very much opposed the match given the disparity in rank.54 Lady Caroline and Fox chose to marry clandestinely rather than be separated and thus incurred the wrath of her parents. Like the Earl of Derby and many other fathers of clandestinely married children, the Duke of Richmond’s anger dissipated, and the family reconciled after Fox had become Secretary of War and Caroline had given birth to a son.55

Though this story seems to end more happily than Burgoyne’s, with a long lasting marriage and with multiple children who survive to adulthood, Caroline felt the effects of her choices long after the reconciliation. The Duchess of Richmond never truly forgave Fox; Caroline’s parents passed her over in the family order in favor of her younger sister, who took on the duties typically assigned to the oldest daughter.56

The Duke of Richmond and Earl of Derby had the same reactions to their daughters’ marriages as fathers discussed in Chapter 2. Unhappy though softened with time, these fathers exhibited the same behavior toward their military sons-in-law that fathers-in-law of civilian sons did. Forgiveness accompanied success, and both Burgoyne and Fox became successful men who benefitted the family they married into with their reputation.

54 A grandson of Charles II, the duke negatively described Fox as the “son of a footman,” although Fox’s father was actually a close adviser to Charles II, Michael J. Braddick. “Fox, Sir Stephen (1627–1716),” Oxford Dictionary of National Biography, online ed. (Oxford University Press, Jan 2004). 55 Giles Fox-Strangways. Henry Fox, First Lord Holland: His Family and Relations (New York: Scribner, 1920), 107-109. 56 Fox-Strangways, Henry Fox, 110; Peter Luff, “Fox, (Georgiana) Caroline [Lady (Georgiana) Caroline Lennox], suo jure Baroness Holland of Holland (1723–1774),” Oxford Dictionary of National Biography, online ed. (Oxford University Press, Jan 2004).

62 Aristocratic girls commonly became enamored with men in uniform, and superiors, both parents and commanders, encouraged the young military men and aristocratic women to intermingle socially. Reflecting on the relationships between these young people, one commander, Major-General James Wolfe, claimed he “always encourage[d] our young people to frequent balls and assemblies,” in order to curry favor with the upper-class attendees, but then added that he is “afraid they shall fall in love and marry.” He went on to recount breaking romantic alliances he found unsuitable for his officers.57 Given that their elders so often threw these young people together and then quickly tore them apart, it comes as no surprise they turned to clandestine marriage to secure their relationships. In this matter, art again imitates life; as mentioned before, Jane Austen wrote tales of well-born girls admiring soldiers, but none so befitting as . Though commonly remembered for Mr. Darcy and Elizabeth

Bennet’s romance, the younger Bennet, Lydia, had a love affair of her own. After falling under the spell of the dashing Wickham who arrived with the local militia, Lydia agreed to run away with him to Gretna Green to marry.58 Her elopement required the intervention of Mr. Darcy to ensure she did not face a ruined reputation. Lydia appeared to be unaware that her actions may have resulted in social ruin and she emerged from the ordeal pleased with herself for finding a husband. Though the fictional Lydia was saved by Mr. Darcy’s intercession, not all elopements ended so happily. Mrs. Bennett seemed very keen on having a daughter married off to a soldier, many parents did not share her zeal. As previously mentioned, wealthy fathers wanted to keep their daughters away from low-ranked men, whether civilian or military. The wealthy officers and their wives similarly wanted to maintain the distance between the upper class of the military,

57 Robert Wright, The Life of Major-General James Wolfe (London: Chapman and Hall, 1864), 285. 58 Jane Austen, Pride and Prejudice (Norton Critical Edition, 3rd) (New York: Norton, 2000).

63 who were often upper-class in the civilian sphere as well, and the lower classes into which military men might see fit to marry.

Even between members of the same class, parents might show their prejudice against military men by protesting the match. Officer’s wife Susan Sibbald recalled an elopement that did not end as well as Lydia’s. In her memoirs, Sibbald recounts the story of a soldier and a low- born girl, in which the couple married against her parents’ will. The girl’s parents rightly withheld their consent, as the girl’s husband turned out to be a cruel man and she returned to her parents’ home soon after the wedding.59 Given the poor reputation of soldiers for “arrogance, drinking, indiscipline, and licentious behavior,” families likely protested such a match, even if both members of the couple shared similar status. 60 The obverse situation, an officer marrying beneath his class, could also wreak social havoc. The higher class of an aristocratic officer dictated that he abide by the expectations of his station, or face the consequences of both the military and civilian social circles shunning him. Marrying an actress or even an American could incite the scorn of commanders, and some officers made such poorly received matches that their superiors asked them to resign their commissions.61 As with civilian marriages, class played an important role in determining the acceptability of a marriage in the military. Marrying into a lower social class could be detrimental not only to social standing but to a career.

Though more likely to have a mistress in addition to a respectable wife or conduct a series of brief liaisons, officers sometimes kept “wives” in the same way the common soldiers did. These lower-class women would bear them children, follow the camps, and fulfill the role of spouse, but they could not expect marriage. If an officer took a legal wife, his peers expected she

59 Susan Sibbald, The Memoirs of Susan Sibbald, ed. Francis Paget Hett (London: The Bodley Head, 1926), 312-313. 60 Williams, Judy O’Grady, 9. 61 Williams, Judy O’Grady, 167-168.

64 would be a lady, someone who complemented his own station in life.62 In the rare event that officers chose to overstep the socially acceptable mark, he and his spouse would become pariahs in the community. The exclusion of the poor woman from her husband’s social circle could be just as detrimental to her reputation and emotional health as remaining his mistress.63

Due to this social structure, even a happy marriage could turn sour as the new wife found herself shunned by her peers, much like the lower-class that married into the British gentry and found their comportment and pedigree harshly judged.

Sibbald’s memoirs reflected the consequences of bringing a lower-class woman into the elite military social circle. Sibbald recalled a lieutenant who brought his “wife” with him, and she claimed the woman faced becoming a social outcast because of her “doubtful character”.64

Sibbald, being an officer’s wife herself, was well aware of the rules of army wives’ society and, like her comrades, worked to maintain it. Army wives took their roles very seriously, and members of the regiment expected a wife to behave in a way befitting her husband’s station.

Commissioned officers’ wives formed the top social tier as caretakers of the regiment.65 Anyone presumed to be stepping out of line might have to answer to a matriarch, including men; her influence extended to soldiers, their wives, and even the matriarch’s own husband.66 No one escaped judgment from the ruling women, especially . While women in the regiment formed a different type of social hierarchy, they still felt the need to protect it, just as civilian

62 Holmes, Redcoat, 296-297. 63 Hurl-Eamon, Marriage, 141. 64 Sibbald, Memoirs, 254. 65 Hurl-Eamon, Marriage, 133,145. For an example of caretaking see Sibbald, Memoirs, 255 in which Susan Sibbald pleads the case of a hapless ensign to her husband so that he can remain in the regiment and 280 in which she takes the very young wife of a Captain under her wing. 66 Hurl-Eamon, Marriage, 149.

65 women strove to protect the integrity of their station by policing the marital ties made by its members.

Sergeant Edward Costello’s account shows that punishment by a matriarch could be far less harsh than punishment at the hands of a cuckolded first husband. He recounted the tale of a grenadier who discovered his wife claimed to be the wife of another soldier. After imploring her to change her ways to no avail, he drove a bayonet into her chest, effectively ending her bigamous dalliances.67 Though a drastic reaction to infidelity and bigamy, Costello’s case indicated of the type of angry response a husband may have had, even if he did not go so far as to furiously murder his unfaithful wife. Battle weariness and the availability of a weapon like exasperated Costello’s reaction, but other cuckolded husbands no doubt felt the same betrayal and anger, which prompted their support of stricter regulations against bigamy and, in turn, the clandestine marriages that led to it.

Sibbald also recalled the methods commanding officers used that aimed to dissuade men from entering into these irregular marriages. Officers of her husband’s regiment instructed her to advise her servant of the bad character of the sergeant she wished to marry in order to prevent the match.68 Though clever, the officers’ method of intercession did not prove successful, instead the sergeant being stationed elsewhere prevented the match. The young woman went on to marry a baker and informed Sibbald that she was glad she had not married the soldier.69 The servant’s later revelation shows the tendency of passionate clandestine marriages to form regrettable

67 Edward Costello, The Adventures of a Soldier; or, Memoirs of Edward Costello (London: Henry Colburn, 1841), 188-190. 68 Though Susan Sibbald was not of doubtful character, her memoirs indicate she herself was married clandestinely, in a private residence in Scotland, which could have made her subject to the same scrutiny she placed on other irregularly married wives. For an account of her wedding see Sibbald, Memoirs, 251. 69 Sibbald, Memoirs, 271-272.

66 unions. As in the case of Henry Brougham, a regrettable union like this one often facilitated support for restriction of clandestine marriages as couples who had negative experiences with these unions sought to shield the younger generation from making the mistakes of their predecessors.

The threat of intercession by or punishment from a commanding officer often precipitated a clandestine marriage. However, the desire to hide their impending marriage also made military men susceptible to a poor match. As with the case of the above-mentioned sailor who married in the Fleet, an expedited marriage could result in a man unknowingly being bound to a woman of ill repute.70 Thus a military man had to choose the lesser of two evils when considering a marriage; either he could enter a union blind or face the possibility of demands from his superiors to end the courtship altogether. If a man did enter into a regrettable Fleet marriage, he could rely on the military to provide him with a way out of it. If he could not secure a legal divorce, and given the difficulty of divorce procedures he likely could not, his enlistment would at least geographically remove him from his marriage.71 As seen above in bigamy cases, a military husband could be away from his family for an extended period of time without incurring the suspicion of authorities. In a case study of soldier desertion in a London parish called St.

Martin’s, David Kent determined that over half of the failed marriages in the first half of the century had been conducted at the Fleet.72 Though this study provides information for only a small area, it can be assumed that men outside of St. Martin’s discovered that their imprudent marriages could be legally abandoned via enlistment. Unlike civilians, men in the military had a

70 See above, June, The Sailor’s Fleet Wedding Entertainment. 71 Kirstin Olsen, Daily Life in 18th-Century England (Westport, CT: Greenwood Press, 1999), 44. 72 David Kent, “Gone for a Soldier: Family Breakdown and the Demography of Desertion in a London Parish 1750-91,” Local Population Studies 45 (1990): 38-39.

67 means of escaping their imprudent marriages. However, they could not completely free themselves of the ties that bound them to their wife, and, like many clandestinely married

Britons, military men faced lifelong consequences for their hasty choice.

Enlistment following a Fleet marriage did not always mean intentional abandonment. The pay of soldiers and sailors may have been meager, and life rather unpleasant, but military life was still preferable to unemployment and destitution.73 However, as displayed in the famous

“John Bull’s Progress,” in which John Bull left for war and returned to find his family destitute, army pay, or lack thereof, could lead to a family’s financial ruin.74

Figure 3: John Bull’s Progress.

73 Olsen, Daily Life, 130-133. 74 James Gillray, John Bull’s Progress 1793, etching, 378 x 304 mm, The British Museum, Collection Online.

68

In an effort to provide for their family in their husband’s absence, some women turned to theft or even prostitution, which caused a rift between husband and wife that could not always be mended.75 The already wealthy officers would not be concerned with their own pay, having themselves paid a great sum for their station.76 In contrast, the lower class, those most likely to enter clandestine marriage, faced the consequences of nearly non-existent pay. The resulting negative image for the government provided yet another reason to discourage military marriages among the enlisted men and to punish irregular marriages. The best way to solve the problem of not paying a man enough to support a family was to ensure he had no family to support to begin with, which explains even sympathetic officers’ unwillingness to grant permission to marry.

Though military pay did not affect those that married clandestinely in Britain overall, it was necessary that a man be able to support his wife and a family before he could marry. The inability to sufficiently prove he could do so to her parents and family may have precipitated clandestine marriages as well as provided the public with yet another reason to support regulation. Parents surely did not want their daughters marrying either a solider or civilian who could not provide for them.

The lower class entered common law marriages more often, like the soldiers’ “wives” who accompanied them but had no legal standing. In rural areas, many people saw no need to register their marriage legally and thus had the option to divorce, if it can be called that. Couples sometimes employed the practice of wife sale to dissolve their marriages. Since society generally assumed that a wife became the property of her husband when they married, the couple could

75 Cordingly, Seafaring Women, 246. Some wives may have been prostitutes before their marriage, making it easier to them to slip back into old habits, see Gillis, For Better, For Worse, 201. 76 Olsen, Daily Life, 131.

69 split by his selling her to another man.77 Since this generally happened after the wife had already begun a relationship with her “buyer,” it most commonly occurred after a war. Some military husbands that returned to the country to find their common law wives had “taken up with other men out of necessity” saw no cause to disrupt their spouse’s new life.78 Though most men were outraged by their wives unintentional bigamy, men who resorted to wife sale showed compassion for their spouse’s predicament.

A woman’s need to make a living in her husband’s absence presents just one example of the trials a military wife endured during her husband’s long absences. Of course, she did not always need to resort to illegal activity, but menial labor was often par for the course.79

Navigating a man’s world as an essentially single woman proved difficult enough without the constant worry that a husband may be wounded or killed in battle. Aside from financial concerns, the demands of childrearing as a single mother often overwhelmed these women. Help from friends and relatives lightened some of the burden, but did not ease their loneliness.80

Overall, irregular marriage to a military man did not tend to produce positive results.

Common law wives easily found themselves abandoned with no recourse, and could not claim to the benefits of a legal wife. Moreover, they may have been punished for bearing bastards if the parish became financially responsible for their children. Wives of both military and civilian men faced the consequences of these actions. Clandestinely married women could incite the wrath of a disobeyed officer, or the scorn of a higher-class group of wives. These women also faced spousal abandonment, whether intentional on the part of their husbands or not, and could be put in financial straits at the hands of the military. Bigamy ran rampant among those clandestinely

77 Gillis, For Better, For Worse, 211. 78 Gillis, For Better, For Worse, 218. 79 Cordingly, Seafaring Women, 246. 80 Cordingly, Seafaring Women, 246-247.

70 married, since it could be difficult to prove their marriage (particularly if they had married in the

Fleet) and because the military often misinformed wives about their husband’s death.

However, these couples persisted in their efforts to marry, partly because young women were impressionable and unaware of the realities of the marriages they agreed to. Even so,

English novelist Flora Thompson’s neighbors’ statement “better a bad husband than no husband at all,” rang true as a single woman’s life could be very bleak. 81 A woman without a man in this era had more autonomy, but lacked protection. Single women rarely owned property, conducted business, or supported themselves without the help of a man, either a family member or husband.

Even a widow likely would not inherit her husband’s property, leaving any unmarried women vulnerable, regardless of her previous marital status or how she came to be single.82

While women faced negative consequences whether they chose to marry or remain single, men in the military had relatively few consequences for choosing marriage over a bachelor’s life. Their commanding officers might punish them, but the potential benefits outweighed that risk. A wife elevated a man to a position of respect, she could be exploited to secure a better position and if he grew tired of her, a new campaign always awaited. Of course these men also saw the benefit in mutual affection and companionship, and marriages in the military did not always produce unhappy unions. These relationships, though they may have formed for simple reasons, became a more complex facet of life, one that could be used to one’s benefit or detriment.

81 Flora Thompson, A Country Calendar and Other Writings (Oxford: Oxford University Press, 1979), 193, quoted in Gillis, For Better, For Worse, 233. Though this statement is from the mid-nineteenth century, it applies to marriages in the eighteenth century as well. 82 English law stipulated that a man’s property be entailed to his nearest male heir. Even a rich wife could find herself a destitute widow if her husband did not take the proper precautions in his will.

71 The methods the military used to restrict marriage predate the Marriage Act, showing a desire to restrict marriage had existed long before Hardwicke. Though the rigid structure of the military made it easier to pass restrictions there than in the civilian sphere, the regulations meant to prevent marriages only led to a rise in their irregularity. Much like the later response of civilians, soldiers whose superiors prevented them from marrying simply did so clandestinely.

After 1753, couples pursued this form of marriage outside of England, but it remained prevalent among military men. Like other Britons, these men did not allow the illegality of irregular marriage to eradicate the practice; they simply found loopholes and skirted the law to obtain their marriages. Like well-born civilians, the officers and other members of the military upper class also sought to eliminate clandestine and irregular unions to insulate themselves from the infiltration of their inferiors into their social sphere.

72 CHAPTER 4

IRREGULAR AND CLANDESTINE MARRIAGE IN EIGHTEENTH-CENUTRY

IRELAND

Marriage in Ireland, as elsewhere, indicated the transition to adulthood, determined future happiness, and marked one’s station. But, like their British peers, the Irish did not always adhere to the set method of contracting marriage. Neither completely independent nor completely incorporated under the British crown, the Irish existed in an intermediary position; under English rule for all practical purposes, but without all of the benefits of British citizenship. Religious antagonism affected the political relationship between the two nations. An Anglo-Protestant upper class took hold and subjugated native Irish, removing Catholics from parliament and other positions of political power and provoking a battle of religion between Catholicism and

Protestantism. This relationship also affected the practice of marriage in Ireland, where the problem of clandestine marriage persisted it did in Britain, but the English method of intercession in Ireland differed from that in England.

Ireland has been subject to English, and later British, rule since the Norman invasion of the twelfth century. However, there is not much scholarly inquiry into Irish clandestine marriage in larger studies of British irregular marriage. A.P.W. Malcomson and Deborah Wilson have both focused on Irish marriage in the latter part of the eighteenth century, providing a foundation from which to base an investigation into Irish clandestine marriage in the period.1 I will argue that the practice of clandestine marriage in Ireland and the Irish Parliament’s response to it illustrates a common idea among upper-class Britons regarding the necessity of policing such

1 A.P.W. Malcomson, The Pursuit of an Heiress: Aristocratic Marriage in Ireland, 1750- 1820 (Ulster: Ulster Historical Foundation, 1982); Deborah Wilson, Women, Marriage and Property in Wealthy Landed Families in Ireland, 1750-1850 (Manchester: Manchester University Press, 2008).

73 marriages. The Irish legislation informed English action against clandestine marriages and vice versa. As with Scotland and the British military, fear of improper marriages being conducted between the elite and the lower classes motivated this policing. The Protestant Irish sought to insulate their upper class, as did other groups in Britain, and like these other groups, the Irish had unique methods for regulating irregular marriage. As with the lower classes of other groups, the

Catholic Irish managed to skirt the laws or, at times, simply ignored them altogether, favoring ecclesiastical law over state law.

To understand the atmosphere that prompted irregular marriage in Ireland during the eighteenth century, one must understand the religious divide that influenced almost all aspects of

Irish life. The Protestant Ascendancy created a chasm between the Irish Catholics and British

Protestants that left the Catholics dependent on the English.2 With the Parliament devoid of

Catholics, who had been barred from public office in the early seventeenth century, and the members of high society coming from an Anglo-Irish landed class, clearly the Protestant group, while smaller, held the most power. Given the strong ties of marriage to religion, it comes as no surprise that marriage law became an important issue in Ireland. Lord Hardwicke’s “Act for the

Better Preventing of Clandestine Marriages” did not apply directly to Ireland, but, as in Scotland, had an effect on marriages regardless. Scotland even had a version of Gretna Green for the Irish, called . Portpatrick is close to the Northern Irish coast and the name of the church there, christened after St. Patrick, shows the influence of the Irish and their illicit marriages.3

2 W.E.H. Lecky, A History of Ireland in the Eighteenth Century (Chicago: University of Chicago, 1972), 42-43. 3 Arthur Brack, trans., The “Gretna Green” for Ireland: irregular marriages at Portpatrick, 1759-1826 (: Dumfries & Galloway Family History Society, 1997).

74 Ireland lacked an equivalent to the Marriage Act of 1753 in part due to the class divide that differed between the two countries. While the elite in both countries worried about class disparate unions, Irish law concerned itself with preventing wealthy Protestants from marrying

Catholics. To target these very specific cases, Ireland used a “piecemeal” approach that more closely resembled penal legislation than Lord Hardwicke’s Act.4 Deborah Wilson argues that

Parliament took this legal approach in Ireland due to “specific perceived threats to Protestant interests.”5 While the later English marriage act applied to the entire population of England and

Wales, and the Irish “Act For the More Effectual Preventing of Clandestine Marriages,” passed in 1735, targeted wealthy Protestants, constraining their ability to intermarry with Catholics. As

Rebecca Probert points out, no such law would have been necessary in England where Catholic weddings “would not have constituted a significant number.”6 W.E.H. Lecky explains that the

Anglo-Irish used the penal code to control many aspects of Irish Catholic life, although he argues that the English placed fewer restrictions on Catholics in England than in Ireland, perhaps because of Probert’s observation that there far fewer Catholics to control in England.7

Much like the English would in 1753, the Anglo-Irish claimed that the country needed legislation to prevent clandestine marriage in order to protect Protestant heiresses from Catholic abductors coercing a marriage. Historians regard the abduction of Margaret Macnamara as the origin of this fear. Though James Kelly claims “female abduction…took place in Ireland between the fifth and nineteenth centuries,” and Malcomson claims that abduction was a

“common, though exaggerated” crime, the Macnamara case came to the attention of the public

4 Wilson, Women, 32-33. 5 Wilson, Women, 32. 6 Rebecca Probert. Marriage Law and Practice in the Long Eighteenth Century (New York: Cambridge University Press, 2009), 140. 7 Lecky, History of Ireland, 37-38.

75 when the fear of abduction ran rampant.8 The fact that her abductor, John O’Bryan, was a

Catholic and had threatened rape if she did not consent to marriage further fueled anti-Catholic sentiment. The persistence of her mother and the pressure of the public forced Parliament to take action. The governing body passed a number of bills between 1707 and 1735, with the 1735 act being the most influential.9 This echoes the English response to these concerns, as the parliaments of both countries responded to the fear and pressure from elite parents to restrict their children in an effort to protect them and the family name.

The Irish “Act for the More Effectual Preventing of Clandestine Marriages” applied to parties under 21 years of age who had either £100 per annum or an estate worth £500, or whose parents had £100 per annum or an estate worth £2,000 or more. It also provided for the imprisonment of anyone over 21 years of age who married someone not yet of age that fit the above financial description. Finally, the act outlawed the calling of banns in the Church of

Ireland for a marriage between a Catholic and Protestant. The framers of the act were very careful to ensure that it protected the wealthy and persecuted the Catholic, leaving other legislation to contend with further issues of clandestine marriage. 10

Charlotte Newcomen’s attempted kidnapping in the late eighteenth century indicated that the legislation did not deter abductors’ efforts. The sole heiress of Charles Newcomen, many

8 James Kelly, “The Abduction of Women of Fortune in Eighteenth Century Ireland,” Eighteenth Century Ireland 9 (1994): 7; Malcomson, Pursuit, 16. 9 Kelly, “The Abduction of Women,”10-11; Irish Legislation Database, accessed March 16, 2016, http://www.qub.ac.uk/ild/?func=advanced_search&search=true&search_string=&search_string_t ype=ALL&search_type=any&session_from=1692&session_to=1800&enacted_search=all&subj ects=%7C304%7C. 10 Ireland, Statutes Passed in the Parliaments Held in Ireland, 1735-1759, Vol. 3 (Dublin: George Grierson, 1794), 13-15.

76 young men sought her hand in marriage, so Charlotte had her choice of suitors.11 Many abductees acquiesced to a clandestine marriage either because of threats from their abductors or because they thought their abduction already irredeemably tarnished their reputation, but

Newcomen’s abductors misjudged her situation.12 Not only did her attempted kidnapping fail due to the protection of her guardian and his son, but her station also protected her from any such proving successful for her abductor.13 Her class, wealth, and “sensible” nature prevented her from falling victim to such a scheme.14 Though Newcomen avoided attempted kidnapping, her case illustrates how the acts passed in Parliament did not succeed in their intended purpose of eliminating heiress abduction due to conflicting societal ideas about how these forced marriages should be dealt with.

Any sexual activity before marriage usually rendered a young woman worthless on the marriage market and resulted in the loss of her marriage portion.15 This included rape, which abductors often threatened their victims with in order to procure consent to clandestine marriage and consummation, as most thought it far more preferable to be violated within a marriage than outside of one. If the suspicion of sexual activity lingered after an abduction, regardless of any actual evidence it had taken place, society assumed a woman’s abduction left her forever tarnished. After The ’s daughter, Mary, fell victim to the seduction of her cousin

Henry Gerald FitzGerald, she had little hope of marriage. Despite being rescued by her father and brother, Mary received substantially smaller sum than her sisters on the assumption she

11 “Obituary-Viscount Newcomen” in The Gentleman’s Magazine 95, Part. 1 (1825): 179-180. 12 Kelly, “The Abduction of Women,”14. 13 “Obituary,” 179. 14 Malcomson, Pursuit, 63. 15 Mary O’Dowd, A History of Women in Ireland, 1500-1800 (Essex: Pearson Education Limited, 2005), 80.

77 would not be able to marry.16 Molly Johnstone faced similar consequences after spending the night with Robert King although the pair did not have sex.17 Accounts of Mary Pike’s abduction by Henry Hayes mentioned, “he did not perpetrate the worst outrage,” in order to avoid raising suspicion about Pike’s purity. 18 The sensitive nature of the situation explains why so many women acquiesced to a marital relationship with their rapist and also why society showed such outrage toward the crime of abduction. The way that the law handled abduction and rape also further explains how English ideas molded Irish ones. The medieval Irish regarded sexual matters with much more laxity, where consent, publicly and freely given, rather than consummation, was the marker of a valid marriage.19 As the Anglo Irish became more powerful in Ireland, their staunch ideas regarding sexual purity became the norm in Ireland.

These English attempts in Ireland to interfere with Irish marriage were in no way novel.

The first such attempt to exact legal control over Irish marriage came with the Statutes of

Kilkenny, a fourteenth-century act that aimed to enforce separation between the native Irish and

English colonists. The act led to the famous phrase “more Irish than the Irish themselves,” referring, in part, to the tendency of English colonists to intermarry with the Irish and become absorbed into the Irish culture.20 This effort to prevent English settlers from “going native”

16 After living in Wales under a false name for some time, Lady Mary did eventually marry George Galbraith Meares of Sligo. Philip Carter, “King, Robert, second earl of Kingston (1754–1799),” Oxford Dictionary of National Biography, online edn. (Oxford University Press, Oct 2007); Malcomson, Pursuit, 6. 17 Kelly, “The Abduction of Women,” 14. 18 William Henry Curran, The Life of the Right Honorable John Philpot Curran: Late Master of the Rolls in Ireland (New York: Redfield, 1855), 330. 19 Art Cosgrove, “Marriage in Medieval Ireland” Marriage in Ireland, ed. Art Cosgrove (Dublin: College Press, 1985), 25-26. 20 The original phrase read “…but now many English of the said land, forsaking the English language, manners, mode of riding, laws and usages, live and govern themselves according to the manners, fashion, and language of the Irish enemies; and also have made divers marriages and alliances between themselves and the Irish enemies aforesaid…” but went through

78 included stipulations for everything from riding horses to naming children in the English style.

These stipulations included that “no alliance by marriage…be henceforth made between the

English and Irish.”21 The statute proved difficult to enforce, and Gaelic laws often prevailed in medieval Ireland. In addition to the contention between early Irish and English law, there was a discrepancy between Catholic practice and Anglo-Irish law. While the Church sometimes allowed for annulment, the law did not always recognize these annulled marriages. Conversely, the church did not always recognize a legal divorce. The disagreement between Church and State law led to technically bigamous marriages, in which at least one of the parties entering a new marriage thought themselves released from the previous one. However, despite the relative ease of legal divorce under early Irish law, many people neglected to secure a separation in both legal arenas, making their next marriages not only irregular, but illegal.22 As with bigamous marriages elsewhere in Britain, the Irish did not always realize or recognize that their second marriages were not valid.

Despite the potentially advantageous aspects of early Irish law, by the eighteenth century many Irish women preferred the English system of marriage contracts due to the English practice of dower rather than Irish jointure. While the Irish system allowed women to retain their possessions even after marriage, it did not include the English practice of providing one-third of the husband’s estate to the widow upon his death. Irish women found the prospect of acquiring a third of an estate more appealing than relying on the goodwill of her husband’s heirs after his

Latin and Gaelic iterations leading to its modern form, a colloquialism that now refers to the Irish diaspora. 21 Irish Parliament, Statutes of Kilkenny, Article 2 (Kilkenny, Ireland, 1367) http://www.mc.maricopa.edu/~thoqh49081/celtic/KilkennyStatutes.html, accessed May 16, 2016. 22 For an explanation of early Irish divorce law, see “Ancient Laws of Ireland” archive.org, https://archive.org/stream/ancientlawsirel01hancgoog#page/n152/mode/2up.

79 death.23 One reason for an Irish wife to concern herself with inheritance was the potential for remarriage. Single men found rich widows very attractive on the marriage market because of her secure financial position, and she took advantage of this to make more self-serving choices in her second union. As Deborah Wilson states, “A widow of independent financial means may have been more likely to marry for love.”24 Widows had fulfilled their duty to their natal family by marrying well and saw their second marriage as a chance to marry according to their own interests.

Widows were, however, aware of the potential for an unconventional match to spur social discord, and therefore sometimes chose to marry clandestinely to avoid both the commentary and judgment of the public. One such widow, Emily Fitzgerald, married well early in life to Irish peer James Fitzgerald, who later became Duke of Leinster. Soon after the death of her first husband, the Duke of Leinster, rumors swirled that she had married her children’s tutor, William

Ogilvie. Perhaps the most vehement reaction to these rumors came from Lord Bellamont, who attempted to break his marriage contract with Fitzgerald’s daughter after discovering the connection between the Duchess and the tutor. Despite her disdain for her sister Caroline’s clandestine marriage to Henry Fox, the Duchess of Leinster found herself in a rather compromising position that required a hasty wedding. As Mary Delany, wife of prominent clergyman Dr. Patrick Delany, put it “…perhaps she thought it incumbent…to marry and make an honest man of him.”25 Stella Tillyard posits that George Simon, Fitzgerald’s final child with her first husband, was actually fathered by Ogilvy.26

23 O’Dowd, History of Women, 99. 24 Wilson, Women, 171. 25 Rosemary Richey, “Fitzgerald [née Lennox; other married name Ogilvie], Emilia Mary [Emily], duchess of Leinster (1731–1814), political hostess,” Oxford Dictionary of National Biography, online edn. (Oxford University Press, January 2008); Mary Delany,

80 A widow may have control of her inheritance and her marriage prospects, but a maiden heiress had neither. As the English system of coverture took hold in Ireland, a woman’s property immediately transferred from her male guardian to her husband. In order to protect Protestant assets under this system from being transferred into Catholic hands, Parliament passed the “Act

To Prohibit Clandestine Marriages” in 1697.27 A Protestant woman who married an Irish

Catholic man surrendered any assets to her closest male relative in order to keep the lands in the hands of Protestants.28 A bit more lenient on Protestant men, this law allowed a probationary period of one year for husbands to convert their Catholic wives before incurring any punishment.

Even guardians and single women who may have been more open minded before found this stipulation a convincing reason to avoid marrying outside of the faith. The very name of this act indicates the Irish desire to prevent clandestine marriage long before the English passed similar legislation. Though this precursor to Hardwicke’s Act primarily promoted the protection of the

Protestant elite, it no doubt affected the Catholic population as well.

The O’Hara family of County Sligo illustrates one situation in which a match between a

Catholic and Protestant may have been in the best interest of both parties. In a history of Sligo,

J.G. Simms remarks that the O’Hara’s “were not bigoted Protestants.” The O’Hara’s had

Catholic relatives and Kean O’Hara married a Catholic woman, Eleanor Matthew.29 Rachel

Wilson argues this occurred in part because of Eleanor’s low expectations of

O’Hara. Though O’Hara owned land he lacked wealth, rendering his attempts to marry above his

Autobiography and Correspondence of Mary Granville, Mrs. Delany, Vol. 5, Augusta Hall, ed. (Cambridge: Cambridge University Press, 2011), 89. 26 Stella Tillyard, Aristocrats (New York: Farrar, Straus, and Giroux, 1995), 268, 276- 278. 27 9 Will. 3, c. 3 28 O’Dowd, History of Women, 253-254; Wilson, Women, 25-26. 29 J.G. Simms, “County Sligo in the Eighteenth Century,” The Journal of the Royal Society of Antiquaries of Ireland 91, no. 2 (1961): 154.

81 station futile. Eleanor made fewer demands than his other prospects, being a woman of lower birth, but her lower standards may also have been tied to her religion. For a landowning

Protestant man to marry a Catholic woman was, as Simms puts it, “remarkable.”30

For those who persisted in their desire to intermarry there was a loophole. The act had a one-year statute of limitations; no suit could be brought against a groom more than one year after the couple married.31 If the couple could conceal their marriage for a full year, a suit could not be brought against either one. In order to take advantage of the one-year rule, the couple had to prove they had been married for the year previous. Furthermore, the act did not outlaw verbal marriage contracts for persons who did not fit the financial criteria of £100 a year. Steele v.

Braddell tested the act, arguing against the annulment of a marriage on the grounds that a full year had passed before the groom’s guardian brought the suit to annul the marriage to court.

Though the court upheld the marriage as legal on the basis of it having been celebrated in

Scotland, the case determined that the day of the marriage would be counted toward the one-year statute. This meant that the courts upheld the limitation to pursue a suit within a year and this limitation could thus be used to circumvent suits to annul marriages that broke the stipulations of the act.32 Couples in Ireland, like those in England, showcased the problems with the marriage laws while using them to their advantage.

While the statute for limitations to annul the marriage stood, a considerable amount of time could pass before a clandestine marriage might be claimed. After the statute of limitations passed, the court did not adjudicate an appeal to annul the marriage, but an assertion that the

30 Simms, “County Sligo,” 154-155; Rachel Wilson, Elite Women in Ascendancy Ireland, 1690-1745 (Suffolk: The Boydell Press, 2015), 21. 31 Ireland, Statutes, Vol. 3, 14. 32 C. R. Milward, Reports of Cases Argued and Determined in the Court of Prerogative in Ireland and in the Consistory Court in Dublin During the Time of the Late Right Honorable John Radcliff, LL. D. (Dublin: Hodges and Smith, 1847), 1-33.

82 marriage never took place. A clandestine marriage could be devoid of witnesses, making it difficult to prove if one of the spouses chose to deny the union. Morris v. Miller also showed that marriage by cohabitation and repute could not be argued as a binding marriage in bigamy cases.33 Women in particular were vulnerable in this situation, if they could not prove marriage but had lived as a wife, their prospects on the marriage market, and their reputation, would be ruined. For the upper-class Anglo-Irish, marriage also served as an economic contract and sometimes a peace treaty between families, therefore it was very important to the guardians of the betrothed that their marriage be solemnized publicly so there could be no question of its validity.34

In the case of Frederick Hamilton, Lord Boyne, the claim of marriage did not greatly interfere with his own life, but his son’s, illustrating the importance of recorded marriages among the peerage. Elizabeth Hadley claimed to have secretly married Hamilton in 1737, at only nineteen years of age, the Hadley family attempted to secure a regular marriage failed. Due to

Hamilton’s station as heir to a title and lands, he fit the stipulations of the 1735 act and indeed their marriage would have been declared void if his legal guardian had continued the suit.

However, Hamilton’s mother renounced her guardianship before the court passed a ruling on the case, setting off a chain of appeals that would last until after Hamilton’s death. During this time,

Hamilton remarried and had issue, so that when he died and Hadley attempted to assert her rights as a widow, Hamilton’s son and heir by wife Bridget Mooney took up the case to protect his inheritance. Though no records of the court’s decision on this matter exist, the fact that the title

33 John Wayne Ashmead, Reports of Cases Adjudged in the Courts of Common Pleas, Quarter Sessions, Oyer and Terminer, and Orphans' Court, of the First Judicial District of Pennsylvania: With Notes and References (Philadelphia: John Campbell, 1871), 273. 34 Gillian Kenny “Anglo-Irish and Gaelic marriage laws and traditions in late medieval Ireland” Journal of Medieval History 32, Issue 1 (2006): 27-42.

83 of Lord Boyne passed to Hamilton’s brother rather than his son shows the effectual outcome. 35

The one-year stipulation validated Hadley’s claims of marriage, and illegitimated Hamilton’s son. Legislators sought to avoid this situation when drafting the acts against clandestine marriage. Here, as elsewhere in Britain, claims of a previous union wreaked havoc on the lives of an established family.

In order to ensure that unapproved marriages would not stand, Irish Parliament passed another act that declared any marriage between two Protestants or a Protestant and a Catholic to be null and void if a Catholic Priest officiated it. The same act also revised a prior act to prevent the kidnapping of young women for the purposes of marriage, stating that any clergyman officiating a ceremony against a young woman’s will could be put to death.36 The wording of the acts appears to have confused some members of the clergy, like Marmaduke Dallas, whose apology for officiating the marriage of a Mr. Oliver indicates he believed that a marriage did not have to follow the rules set forth by the “Act For Annulling All Marriages Celebrated by Any

Popish Priest Between a Protestant and a Protestant; or Between Protestant and Papist” if a couple obtained a license. The wording, that “no minister…marry any persons in churches, chapels, private houses or places, without faculty or licensed obtained” seems to indicate that the law found marriage in a private house acceptable. However, Dallas’s verbose apology indicates that the law did not recognize this type of marriage and that a minister officiating one could be

35 “Domestic Intelligence” The Oxford Magazine 10 (1773): 331; “The Boyne Peerage Case,” The Genealogical Magazine 4 (1901): 435-436. 36 Ireland, Statutes Passed in the Parliaments Held in Ireland, 1735-1759, 247-248.

84 punished for it. It seems that Irish Parliament expected the act to be followed to the letter, pleas of ignorance or misinterpretation would not stand.37

Similarly, the Catholic Church struggled with their position on these “mixed marriages.”

The Council of Trent’s 1563 clarification of the sacrament of matrimony set out doctrine for a united Christendom.38 Though the official Catholic position was to follow this doctrine, the

Church in Ireland found it difficult to reconcile church and civil law after the Reformation. The

Act of Uniformity forced the Catholic sacraments into the home, making a wedding at home the common practice.39 Breaking Irish Catholics from that tradition in a country that did not support expression of their faith would be a difficult endeavor for the Church. As Patrick Corish discusses in his essay on Catholic marriages in Ireland, the Catholic clergy disagreed over whether Tametsi, another term for the matrimonial doctrine of the church, should be promoted in

Ireland or a more lenient approach taken in light of the civil law restrictions.40

Proponents of honoring the doctrine argued it would put an end to ‘couple-beggars,’ irregular clergymen who were not parish priests.41 However, demanding the presence of a

Catholic priest at a mixed marriage would, at best, make such marriages impossible and at worst, void marriages already performed by non-Catholic clergy. Publicizing the Catholic doctrine would make a mixed marriage by a non-Catholic illegal in the church while the act passed by

Irish Parliament in 1745 ruled that a mixed marriage attended by a Catholic priest was illegal in

37 Marmaduke Dallas, A Short and True State of the Affair betwixt the Rt. Revd. J—m—t, Lord Bishop of C—rk and R—ss [i.e. Jemmett Browne, Bishop of Cork and Ross], and the Revd. M-rm-d-ke D-ll-s [i.e. Marmaduke Dallas] (Dublin: 1749), 3-6. 38 H.J. Schroeder, trans., The Canons and Decrees of the Council of Trent (Rockford, Ill: Tan Books and Publishers, 1978), 180-182. 39 Lecky, History of Ireland, 21; Patrick Corish, “Catholic Marriage under the Penal Code,” Marriage in Ireland, ed. Art Cosgrove (Dublin: College Press, 1985): 69. 40 Corish, “Catholic Marriage,” 69. 41 Thomas P. Power, Forcibly Without Her Consent: Abductions in Ireland, 1700-1850 (Bloomington, IN: iUniverse, 2010), eBook, Section 5.4.

85 the eyes of civil law.42 Either the parliament or the Church would have to relent on their stance.

In 1785, the Church decreed that a non-Catholic cleric could perform a valid union for mixed marriages in Ireland.43

While the acts of parliament were specific to the upper classes, church doctrine applied to

Catholics across all classes. Therefore the decisions of the Church in response to the acts affected a great deal more of the population than the acts themselves. While members of English lower classes were unlikely to marry, young Irish Catholics commonly married no matter their class status. On a visit to Ireland during his grand tour, Arthur Young observed:

Marriage is certainly more general in Ireland than in England: I scare ever found an unmarried farmer or cottar, but it is seen more in the other classes, which with us do not marry at all; such as servants; the generality of footmen and maids, in gentleman’s families, are married, a circumstance we very rarely see in England.44

Not only did the lower class marry more often in Ireland than England, but also it took place at a younger age. In the early nineteenth century, Thomas James Rawson noted “an unmarried man at twenty-five, or a woman at twenty, is rarely to be met in the country parts.”45 K.H. Connell argues that marriages occurred so early in Ireland because there was little reason to postpone the

42 This issue lay in the publication of the doctrine because the Church law only applied in areas where the Church promulgated it. To publicize Tametsi without a declaration from the Pope clarifying the doctrine would mean following it to the letter, rendering mixed marriages in Ireland invalid. 43 The report on the Maynooth Commission argues that the Church never meant for a marriage between a Catholic and “heretic” to be regarded as invalid, and that this decree confirmed that stance, rather than providing a dispensation for Ireland. James Lord, Digest of the Maynooth Commission report; with reference to such portions of the evidence as relate to the anti-social, immoral, and anti-national tendency of the teaching at Maynooth (London: Protestant Association Office, 1855), 35. 44 Arthur Young, A Tour in Ireland: With General Observations on the Present State of Mind in That Kingdom (Dublin: James Williams, 1780), 87 45 Thomas James Rawson, Statistical survey of the county of Kildare, with observations on the means of improvement; drawn up for the consideration, and by direction of the Dublin society (Dublin: Graisberry and Campbell, 1807), 23.

86 marriage.46 Not beholden to the system of primogeniture like the English, Irish fathers could divide their land so that each child could set up a household, and the Catholic Church promoted marriage for its own benefit. Thomas Power also argues that, in some areas of Ireland, farmers may have been eager to marry their daughters at a young age for fear that they would be abducted if they did not have the bonds of matrimony to protect them.47 The pious Catholic youth saw marriage as a religiously sanctioned way out of celibacy and followed their biological clocks to the altar.48 Young also hypothesized that “children…must necessarily have a considerable effect in promoting early marriages,” further supporting the claim that marriage among the young lower class Irish had a strong biological motivation.49

Because the majority of the lower class was Catholic, the canons established at the

Council of Trent would have theoretically applied to them, but the Council included addendums in their Decree on Reformation that “clandestine marriages, made with the free consent of the contracting parties, are valid and true marriages, so long as the Church has not declared them invalid.” The same decree also allowed for only one publication of banns in cases where publication of the traditional three would hinder the marriage.50 Therefore two Catholics could contract marriage rather easily, and the Church even tolerated clandestinity, further removing any barriers to marriage the lower classes may have faced. The wealthy did not feel similarly induced to marry as they had more to lose in a bad marriage and had more hope in their aspirations to marry for fortune. While the poor Irish had no reason to believe their situation

46 K.H. Connell, “Land and Population in Ireland, 1780-1845,” The Economic History Review 2, no. 3 (1950): 281-282. 47 Power, Forcibly, Section 3.3. 48 Connell, “Land and Population,” 281-282. 49 Young, A Tour, 87. 50 Schroeder, Canons and Decrees, 183.

87 would improve, the middling sort held out for financial and social advancement before marriage.51

The upper class did have the advantage of belonging to a government-supported religion.

The majority of the Anglo-Irish population were members of the Church of Ireland, the canon law of which influenced the civil law of Ireland. The Church broke from the Roman Catholic

Church in 1536 when Henry VIII declared himself Head of the Church in Ireland. As in England, the church and law both fell under the jurisdiction of the king, uniting them in common purpose to insulate Anglo culture from native Irish influence. In order to secure his hold on Ireland,

Henry VIII attempted to intermarry the aristocracy of England and Ireland. Perhaps his most famous attempt at a match was that of Anne Boleyn and James Butler, son of the eighth Earl of

Ormonde, though obviously the marriage did not come to pass, as she became Henry’s second wife. As Kimberly Schutte points out, intermarriage lessened a woman’s status. An English wife of an Irish Lord would have a lower status than an Irish woman of the same title, or of an English woman who married endogamously.52 In addition to the lower social status an Irish marriage would impart on an Englishwoman, and the English regarded the Irish as fortune hunters. As mentioned above, an heiress had value on the marriage market, and the Irish propensity to pursue them is parodied in pamphlets like “The Irish Register” and its answer “The English Register,” which contained a list of rich, single women and men of the same status, respectively.53

51 Rawson, Statistical survey, 282-283. 52 Kimberly Schutte, Women, Rank, and Marriage in the British Aristocracy, 1485-2000 (Hampshire: Palgrave McMillan, 2014), 30. 53 The English register: Or, The Irish register match'd. Containing a list of such of the unmarried nobility, gentry, merchants, &c. as ought in Honour and justice to prevent the English ladies from going astray. To which is prefix'd, an epistle from a Society of Young ladies, Eighteenth Century Collections Online (London: Printed for T. Cooper, at the Globe in Pater- Noster-Row, 1742); The Irish register: or a list of the duchess dowagers, countesses, widow ladies, maiden ladies, widows, and misses of large fortunes, in England, as register'd by the

88 The reluctance of English women to marry Irish grooms was rooted in the idea that the

English saw the Anglo-Irish as lesser. Schutte states, “The crown gave Irish titles to many

English that, while certainly noble, were not seen as the equivalent of English or Scottish peerages.” 54 Even if an English woman did want to marry an Irish man, her family could be wary of the match due to its perceived lowering of her station.55 This disparity between the status of an Englishman in England and one in Ireland may have provoked clandestine marriages between the Anglo-Irish and native Irish or Anglo-Irish men and English women with disapproving families. While the Anglo-Irish elite desired endogamous marriage, this proved difficult given the relatively small size of the Irish peerage and its lack of worth on the marriage market compared to the other British peerages.56 This made the prevention of clandestine marriages in Ireland even more important; already a lower echelon of the upper class of Britons, they could not afford to have their family name smeared by a poor match.

Since a husband’s status dictates that of his bride, many Anglo-Irish families preferred to marry their daughters to British husbands rather than Irish ones. Bridget Gunning possessed such a determination to marry her daughters to British peers that she secured a pension from the Lord

Lieutenant of Ireland to fund her expedition to England with her daughters in hopes of finding them husbands. Her daughter, Elizabeth, was fortunate in this venture. The Duke of Hamilton became so entranced by Elizabeth Gunning when he spied her at a masquerade that he married her only a few days later on February 14, 1752 in a clandestine ceremony performed by

Dublin Society, for the use of their members. Together with the Places of their several Abodes. Also The Charge given by their President, at their last General Assembly, Eighteenth Century Collections Online (London: Printed for T. Cooper at the Globe in Pater-Noster-Row, 1742). 54 Schutte, Women, Rank, and Marriage, 28. 55 Schutte, Women, Rank, and Marriage, 64. 56 Schutte, Women, Rank, and Marriage, 38.

89 Alexander Keith, the famously staunch defender of clandestine marriages.57 Her marriage did indeed propel her from a colonel’s daughter in Ireland to lady-in-waiting to Queen Charlotte, so her mother seems to have been correct in the assumption that marrying a British peer would secure Elizabeth’s future.58 It is interesting, though, that the clandestine marriages that the Irish sought to protect their place in society, allowed this bride to rise in social rank so magnificently.

As Rachel Wilson argues, these marriages across the sea could prove difficult to negotiate, particularly if the family of the bride had no ties to the groom’s family. This, coupled with the Englishwoman’s reluctance to relocate to Ireland, prevented much intermarriage between the Irish and English peerage. Furthermore, unlike the British, the Irish peerage was far less likely to marry below their social class, further narrowing the pool of potential spouses.59

Though members of the peerage had little desire to intermarry, members of lower classes seemed to have taken advantage of their travels in Ireland. In multiple cases heard in the Old Bailey,

English men married an Irishwoman clandestinely and lived as her husband until his return to

England. Upon return to their mother country, these Englishmen would find proper English wives. As evidenced by their entry in the Old Bailey records, these men did not succeed in their attempted bigamy and could face punishment ranging from branding to transportation to a penal colony. John Hodston even went so far as to bring his Irish wife and the child she bore him to

57 The Daily Advertiser (London, England), Feb. 15, 1752; Horace William Bleackley, The story of a beautiful duchess; being an account of the life & times of Elizabeth Gunning, duchess of Hamilton & Argyll (New York: E.P. Dutton and Company, 1907), 43-44. 58 Rosalind K. Marshall, “Campbell [née Gunning], Elizabeth, duchess of Argyll and suo jure Baroness Hamilton of Hameldon [other married name Elizabeth Hamilton, duchess of Hamilton and Brandon] (bap. 1733, d. 1790), courtier,” Oxford Dictionary of National Biography, online edn. (Oxford University Press, May 2005). 59 Wilson, Elite Women, 22-23.

90 England, but denied ever having been married to her after a second marriage to Mary Dyer.60

The practice of temporarily marrying while in Ireland and then replacing Irish wives with

English women illustrates the English idea that the native Irish did not deserve the same respect and social station as an Anglican. These cases also mirror military cases in which a man would marry while on campaign and make a new match upon his return to his homeland.

In some cases, men attempted to have their first marriage declared null and void using the stipulation that a marriage between a Protestant and Catholic could not be celebrated in the same fashion as a marriage between two Catholics. When Mary Anne Bruce brought a suit against

Tobias Burke to nullify their marriage on the grounds he had already married another woman,

Burke argued that his first marriage could not be a valid one. Because he was Protestant and

Mary Butler, his first wife, was Catholic, their clandestine marriage could not be judged as legal by Irish law. Despite several witnesses proclaiming his Protestant faith, the court found him guilty on the basis that he was, in fact, Catholic.61 The English courts would not stand for

Burke’s attempt to manipulate the law, especially when it seemed as though a Papist tried to pass himself off as an Anglican.

60 “John Hodston, Sexual Offences> bigamy, 12th October 1692,” The Proceedings of the Old Bailey, London’s Central Criminal Court, 1674-1913 (HRI Online Publications, March 2015) accessed March 16, 2016, http://www.oldbaileyonline.org/browse.jsp?id=t16921012- 26&div=t16921012-26&terms=ireland|marriage#highlight; ”Michael Connor, Sexual Offences > bigamy, 14th October 1719,” The Proceedings of the Old Bailey, accessed March 15, 2016, http://www.oldbaileyonline.org/browse.jsp?id=t17191014-36&div=t17191014- 36&terms=ireland|marriage#highlight;“Sexual Offences > bigamy, 11th April 1821,” The Proceedings of the Old Bailey, accessed March 15, 2016 http://www.oldbaileyonline.org/browse.jsp?id=t18210411-178&div=t18210411- 178&terms=ireland|bigamy#highlight. 61 “TOBIAS BURKE, Sexual Offences > bigamy, 3rd July 1822,” The Proceedings of the Old Bailey, accessed March 15, 2016, http://www.oldbaileyonline.org/browse.jsp?id=t18220703-2&div=t18220703- 2&terms=ireland|bigamy#highlight; “Bruce v. Burke” in The English Reports: Ecclesiastical, Admiralty, and Probate and Divorce, Vol. CLXII (Edinburgh: Green and Sons, 1917): 367.

91 In attempting to annul a marriage, it could also prove beneficial to claim a wife was

Protestant rather than Catholic. In one such case a woman brought suit 30 years after the death of the Catholic in question. In 1824 Priscilla O’Connor attempted to use an affidavit signed by her mother, Margaret Forbes, to prove Forbes’s Protestant faith. O’Connor aimed to obtain her mother’s estate by showing that Forbes’s marriage to her second husband, Ross McCann, was not legal on the basis that he practiced Catholicism and a Roman Catholic priest officiated their marriage. However, since the Forbes signed the affidavit in order to obtain custody of her children and the community knew her to be a practicing Catholic, the court determined her to be a true Roman Catholic, not a Protestant. Therefore the court ruled her Catholic marriage ceremony binding.62

The above cases show the ever-present battle between the native Catholic population of

Ireland and the Anglo-Irish for supremacy in Ireland. A great many Irish contented themselves in carrying out their everyday activities and paying no mind to the English if it did not affect them personally. Still a large population expressed displeasure with the English presence. The small

Anglo minority controlling the majority of citizens discontented some Irish, who bucked against the English laws and customs in favor of the Irish ways of courtship and marriage. Opposite this group, the small number who tried to ingratiate themselves into the Anglo social sphere, generally through intermarriage, hoped to rise high enough to be seen as equals, like Bridget

Gunning.

Despite their efforts to skirt the laws preventing clandestine marriage, the Anglo-Irish insulated themselves and maintained control of Ireland for a time. English influence over Irish affairs would only increase with the Acts of Union in 1800, bringing the two countries under one

62 Milward, Reports of Cases, 204.

92 crown and allowing England full control over Ireland for more than a century. Ireland continued to grapple with legal issues between the government and Catholic Church regarding marriage; the illegality of divorce meant that Ireland developed an elaborate system for annulling and voiding marriage as well as separation within a marriage.63 While the Acts of Union cemented

English control, Britain and Ireland exchanged ideas long before 1800. The similar approach to clandestine marriage and its ties to maintaining the station of the elite show the shared opinions that were common to all Britons that informed legal and social action across the British Isles.

63 Duncan and Scully, Marriage Breakdown, 10-70.

93 CHAPTER 5

CONCLUSION

As historians of marriage in England have shown, the importance of marriage and the benefits or consequences it could have for an individual and family were too great for the

English elite to leave to chance.1 The practice of marriage needed monitoring and when individuals could not effectively do this, they turned to the “Act for the Better Preventing of

Clandestine Marriages.” Scholars have attempted to explain the act in terms of English desire to control their children, which is a valid assertion in a study of English marriage.2 However, this legislation did not come about in a vacuum. The Irish, Scottish, and British military all contributed to the idea that marriages need to be regulated. The influence of these groups and the similar actions taken by them in regard to clandestine marriage showed that the desire to prevent clandestine marriage did not exist only in England, but applied to elite groups across Britain.

Historical debates regarding the Hardwicke Act have claimed that the desire to maintain patriarchal control and elite supremacy precipitated Hardwicke’s Act. They have also shown that couples managed to find ways to marry in spite of the legal restrictions. However, this thesis shows that these trends extended beyond English borders and that members of other British groups engaged in the same behaviors. In some cases, laws closely resembling Hardwicke’s Act predated the act, showing that the problems and attitudes that precipitated the act were prevalent elsewhere. Restrictions on clandestine marriage outside of England that occurred after 1753 show the flow of ideas from England to peripheral British bodies. The existence of these regulations in other areas of Britain and their close resemblance to the English act as well show

1 Lawrence Stone, The Family, Sex and Marriage in England 1500-1800 (New York: Harper & Row, 1977). 2 Stone, Family, Sex and Marriage; R.B. Outhwaite, Clandestine Marriage in England 1500-1850 (London: The Hambledon Press, 1995).

94 the pervasiveness of the common British attitude toward clandestine marriage. Not only did elite members of all the British groups discussed in this thesis attempt to prevent irregular marriages but the lower classes also exhibited similar responses to regulations, subverting and skirting them.

The British upper class saw irregular marriages as detrimental to the social system that placed the peerage at the top of the hierarchy. Therefore, the elite endeavored to eradicate the practice. Though historians have found a plethora of evidence to this effect regarding the peerage in England and their concern particularly for the marriages of their daughters, an exploration of other facets of British society shows the attitudes that pervaded the British Isles regarding class status and marriage.3 The elite members of society in Scotland, Ireland, and the military supported the idea that restricting marriage protected the supremacy of the upper class. Similarly, other members of these groups bucked these restrictions by finding ways around them, as did the

English.

In Scotland concern for sons marrying below their station weighed heavily on the minds of both the English and Scottish peerage, as Leah Leneman maintains.4 Chapter two expands on this concern, showing that it prompted both the Scottish and English to make attempts to regulate clandestine marriage in Scotland. The legality of clandestine marriage in Scotland prompted a number of English couples to make their way across the border but also allowed the Scots to take advantage of their circumstances.5 The second chapter illustrates how Hardwicke’s act

3 Rebecca Probert, “Control over Marriage in England and Wales, 1753-1823: The Clandestine Marriages Act of 1753 in Context,” Law and History Review 27, no. 2 (2009): 413- 450. 4 Leah Leneman, “Marriage north of the border,” History Today 50, no. 4 (2000): 20-25. 5 Katie Barclay, Love, Intimacy, and Power: Marriage and Patriarchy in Scotland, 1650- 1850 (Manchester: Manchester University Press, 2011); English couples attempted to use the Scottish legal system to secure divorce as well as marriage, Leah Leneman, “English Marriages

95 influenced Scottish restrictions by viewing the differences and similarities between Scottish and

English reactions to clandestine marriage. This coupled with the geographical proximity and the legal ties between England and Scotland contributed to the development of overarching British ideas shared by the two countries.

The reactions of the elite Britons to clandestine marriages can also be found in the

British military and are discussed in Chapter 3. As Jennine Hurl-Eamon shows, officers retained their ability to marry, but restricted the marriages of enlisted men.6 Building on that, the third chapter shows that the military enacted regulations against marriage much earlier than Lord

Hardwicke’s Marriage Act passed for the civilian population. The military included men from all over Britain, thus exhibiting a more widespread negative attitude toward irregular marriage that predated the English one. Military men and their spouses reacted in a similar manner as English civilians would, contracting irregular marriages regardless, and sometimes because of, restrictions. After 1753, Hardwicke’s Act forced members of the military to abandon the Fleet, their popular destination for clandestine marriage, in favor of locales where irregular marriage remained legal.

The Anglo-Irish, and therefore England, controlled Ireland although the country was not officially under the English crown. Chapter 4 highlights the flow of ideas between Ireland and

England. Deborah Wilson has shown how Irish penal codes prevented clandestine marriages in an effort maintain supremacy of the Protestant elite, a group loyal to England.7 This chapter

and Scottish Divorces in the Early Nineteenth Century,” The Journal of Legal History 17, no. 3 (1996): 225-243. 6 Jennine Hurl-Eamon, Marriage and the British Army in the Long Eighteenth Century: The Girl I Left Behind Me (Oxford: Oxford University Press, 2014). 7 Deborah Wilson, Women, Marriage and Property in Wealthy Landed Families in Ireland, 1750-1850 (Manchester: Manchester University Press, 2008).

96 shows how these penal codes, some of which predate Hardwicke’s Act, reflected Irish influence on English methods of preventing undesirable unions. Anglo-Irish and Native Irish contention sparked not only the marital restrictions in Ireland, but backlash against them. As in other parts of Britain, the desire of the elite to protect their interests provoked legislation, which, in turn, prompted subversive behavior.

This thesis builds upon a solid historiography regarding marriage, especially the effects of Hardwicke Act on the institution, by widening the scope of investigation to include peripheral groups in Britain. A clear flow of ideas between the English and other British groups becomes apparent when one looks at the restrictions enforced by the elite in these peripheral groups and the differences and similarities between those restrictions and Hardwicke’s Act. In highlighting that flow of ideas, better understanding of British, rather than only English, attitudes toward marriage comes to light.

Despite their success in advancing laws against irregular marriages, the elite ultimately failed in its attempts to eliminate them. Clandestine marriages persisted and the class system continued to be challenged. Although the peerage maintained their supremacy in the eighteenth century, the changing economic landscape of Britain would affront their class system more than marriage ever could, and their power waned despite their efforts.8 Though matrimony often considered a conservative institution, couples could use marriage as a means of radically resisting governmental control. Couples could also use marriage to defy the law, like Con

Phillips, or subvert it, like so many individuals who found and exploited loopholes in the marriage laws. Used as an act of defiance to the social order, clandestine marriage outraged the older elite and gave the younger Britons a means of asserting their own opinions regarding

8 See David Cannadine, The Decline and Fall of the British Aristocracy (New Haven, CT: Yale University Press, 1990).

97 marriage and the reasons it should be contracted. Though couples did not always marry irregularly for love, some expertly employed this type of marriage to obtain the partner they chose, instead of the one their family chose, helping to usher in a new era of affectionate companionship.

A further investigation of the later effects of economics on the class system and its effects on marriage would yield a better understanding the relationship between the two. Television shows such as and Upstairs, Downstairs have prompted a rise in the popular history of nineteenth-century class issues in Britain. An expansion of the arguments in this thesis could provide scholarly interpretation of the lasting implications of marriage as a social tool. The study of marriages between wealthy American women and men of the British peerage is one such arena that is understudied but could provide an explanation of the intersections of class, wealth, and title and the ways that marriage impacts all three.

This thesis expands the study of irregular marriage by exploring this issue in peripheral arenas of the British Isles. While historians have extensively covered clandestine marriage in studies of England, other areas remain understudied. Investigating these marriages in Ireland,

Scotland, and the British military creates a better understanding of social structure in Britain as a whole. The regulations of these marriages and reactions to them in these three groups echoes

English reactions and shows an exchange of ideas between England and the periphery that influenced and shaped the overall British attitude toward clandestine marriage. Because marriage was so important to social mobility, the treatment of marriage is a lens through which we can examine social issues in Britain. Therefore, this investigation of clandestine marriages has shown that upper classes throughout Britain restricted marriage as a method of maintaining their elite status and maintain the class system.

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