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Marriage and the law in the eighteenth century: Hardwicke's Marriage Act of 1753*

Published online by Cambridge University Press:  11 February 2009

David Lemmings
David Lemmings
Affiliation:
University of Newcastle, Australia
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Abstract

This article is an analysis of the hysterical debates in the house of commons over the 1753 Marriage Act, placed in the context of the failure of existing marriage law to prevent clandestine marriage and bigamy, and the crucial importance of the marriage market for the male propertied elite. It shows that the proponents of the act appealed strongly to the patriarchal and material instincts of the majority in the Commons, while its principal opponents, who claimed to stand for affective marriage and championed the interests of women, actually represented the exploitative marital and sexual behaviour typical of many Georgian men. The article concludes that the passage of the Marriage Act in these circumstances absolutely contradicts some historians' theories about the progress of ‘affective individualism’ among the elite, and implies rather the continuance of patriarchy and the use of marriage for economic and political advantage.

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Articles
Information
The Historical Journal , Volume 39 , Issue 2 , June 1996 , pp. 339 - 360
Copyright
Copyright © Cambridge University Press 1996

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References

1 26 Geo. II, c. 33; Statutes at large, VII, 43–5.

2 See the debates in the house of commons on 7 May and 5 June 1753 (Parliamentary history, XV, 1–86).

3 Walpole, H, Memoirs of King George II, ed. Brooke, J (New Haven, Ct., 1985), pp. 228–35Google Scholar; The Yale edition of Horace Walpole's correspondence, ed. Lewis, W. S. (Oxford, 1937–1983), IX, 149, XXXVII, 363, 365–7Google Scholar; British Library (B.L.), Add. MSS 32,732 (Newcastle papers, vol. XLVII), fos. 3–4, 22–3: C. Amyand to Newcastle, 1 and 4 June 1753; Parliamentary history, XV, 85–6; Harris, G, The life of Lord Chancellor Hardwicke (3 vols., London, 1847), II, 487–94Google Scholar; Lord Ilchester [G. S. H. F., Strangways] Henry Fox, first Lord Holland: his family and relations (2 vols., London, 1920), I, 187–94Google Scholar; Riker, T. W., Henry Fox First Lord Holland (2 vols., Oxford, 1911), I, 128–9, 134–8.Google Scholar

4 Yorke, P. C., The life and correspondence of Philip Yorke, earl of Hardwicke (3 vols., Cambridge, 1913), II, 62–3, 69Google Scholar; Ilchester, Fox, 1, 196; B.L., Add. MSS 35,877 (Hardwicke papers, vol. DXXIX), fo. 171V: ‘Martii 4, 1754. Notes of Debate on the Bill offd. by the D: of Bedford to prolong the time of the Comencemt. of the Bill to prevent clandestine Marrs.’ There is a convenient list of some pamphlets in Stone, L, Road to divorce (Oxford, 1990), p. 423.CrossRefGoogle Scholar

5 See Appendix.

6 Langford, P, A polite and commercial people: England 1727–1783 (Oxford, 1989), pp. 112–16.Google Scholar

7 Temple, Essay on popular discontents, I, 268Google Scholar. For a convenient demonstration of the contribution which marriage to heiresses made to the power of some great political families in the 18th century see H.J., Habbakuk, ‘Marriage settlements in the eighteenth century’ Transactions of the Royal Historical Society, 4th series, XXXII (1950), 28, n. IGoogle Scholar; cf. idem, ‘The rise and fall of English landed families, 1600–1800’, Transactions of the Royal Historical Society, 5th series, XXIX (1979), 194–5Google Scholar. The extent to which pursuit of heiresses and women with large portions was an everyday feature of life among the Georgian elite is revealed by even a causal reading of Horace Walpole's correspondence (see Horace Walpole's correspondence, passim). But see Spring, E, ‘Law and the theory of the affective family’, Albion, XVI (1984), 6, 14–16.Google Scholar

8 Stone, , Road to divorce chs. 2–5, esp. pp. 115–28.Google Scholar Some of the principal opponents of the bill claimed that it had been ‘crammed down, and forced through the parliament’ by Hardwicke, although Hardwicke explicitly denied the charge (Parliamentary history, XV, 84–5; Walpole, , Memoirs, pp. 225–6, 229–30, 232).Google Scholar

9 The parliamentary opposition was weak after 1751 because of the death of the prince of Wales, but mid-Hanoverian governments always ‘needed…the support of a least a few score of independents. It was…for the souls of these independents that the politicians did battle’ (Owen, J. B., The eighteenth century (London, 1974), pp. 71, 109).Google Scholar

10 Stone, L, The family, sex and marriage in England 1500–1800 (London, 1977), chs. 6–9, especially pp. 270–3Google Scholar; Trumbach, R, The rise of the egalitarian family: aristocratic kinship and domestic relations in eighteenth-century England (New York, 1978), passim.Google Scholar

11 Trumbach, , Rise of the egalitarian family, pp. 108–9Google Scholar. Cf. Lasch, C, ‘The suppression of clandestine marriage in England: the Marriage Act of 1753’, Salmagundi, XXV–XXVII (1974), 103–4, 108–9Google Scholar; also Porter, R: ‘The quid pro quo for this curtailment [sic] of parental power was Hardwicke's Marriage Act (1753), which forbade the marriage of those under twenty-one without parental consent, and required the publishing of banns.’Google Scholar (English society in the eighteenth century (2nd edn, Harmondsworth, 1990), pp. 28–9, my italics)Google Scholar. Regrettably, this broad statement is inaccurate as well as contradictory. Marriage after publication of banns precluded the necessity for written consent of parents or guardians in the case of minors, which was assumed, unless there was notice to the contrary; the alternative was marriage by licence, which would not be valid for a party under 21 without the registered consent of the father, or guardian, or mother (26 Geo. II, c. 33, sects, III, XI, XV). The error is important, because after 1753 poor couples were able to avoid the parental veto by resorting to crowded metropolitan parishes, where they could be married in relative anonymity after banns were read, since their families were remote and the clergy too overworked to check places of residence, age and other personal details in every case (Stone, , Road to divorce, p. 129Google Scholar; Report of the royal commission on the laws of marriage [1868]Google Scholar (British Parliamentary Papers, XXXII, 1867–8), pp. vi, xlii). For the proportions of elder and younger sons in the parliament of 1734–54 see below, n. 68.

12 Stone, , Family, sex and marriage, pp. 241–2Google Scholar. See also ibid. pp. 35–7, 317.

13 Stone, , Road to divorce, pp. 58, 60, 115–22, 137Google Scholar. One also wonders how the supposed growth of affective individualism among the elite can be reconciled with statements like ‘this [i.e. the late seventeenth and early eighteenth centuries] was a period when fortune-hunting male, and occasionally female, predators and impostors were both peculiarly common and particularly ruthless in their tactics’ (Stone, L, Uncertain unions: marriage in England 1660–1753 (Oxford, 1992), p. 13).CrossRefGoogle Scholar

14 Baker, J. H., An introduction to English legal history (3rd edn, London, 1990), pp. 545–8Google Scholar; A treatise of feme coverts (London, 1732), pp. 25–37Google Scholar; Stone, , Road to divorce, pp. 51–8.Google Scholar

15 Baker, , Introduction to English legal history, p. 547Google Scholar; Stone, , Road to divorce, pp. 86–7Google Scholar; Treatise of feme coverts, p. 30Google Scholar; Salmon, T, A critical essay concerning marriage (London, 1724), pp. 180–1, 205 (Jesson v. Collins).Google Scholar

16 See Attorney-general Ryder's summary of the inadequacies of the existing law in 1753 (Parliamentary history, XV, 3–9). Also Stone, Road to divorce, ch. 4; idem, Uncertain unions, p. 29; Baker, , Introduction to English legal history, pp. 391–4Google Scholar; Brown, R. L., ‘The rise and fall of the fleet marriages’, in Marriage and society: studies in the social history of marriage, ed. Outhwaite, R. B. (London, 1981), pp. 118–19.Google Scholar

17 Walpole, , Memoirs, pp. 225–6Google Scholar. For the original Lords' bill (drafted by Lord Chief Justice Lee and his judicial colleagues), and its amendment in committee upon the advice of Hardwicke, see House of lords sessional papers, ed. Torrington, F. W. (Dobbs Ferry, NY, 1977), 1747/48–1753, pp. 403–21Google Scholar; B.L., Add. MSS 35,880 (Hardwicke Papers, vol. DXXXII), fos. 51–2V, 53–6, 57–60V; Yale University, Beinecke Library MSS, Lee Papers, Box 2, Hardwicke [to CJ Lee], 17 Feb., 18 Mar., 6 Apr. and 4 May 1753. For the same bill as printed after the first reading in the Commons see House of commons sessional papers of the eighteenth century, ed. Lambert, S (Wilmington, Delaware, 1975). IX, 565–72.Google Scholar

18 The parental veto was limited to parties under 21, the traditional age at majority, although the median age at marriage among the elite was about 26 for men and perhaps 21 or 22 for women. At 21 men and women came into full legal rights at common law, including absolute power to dispose of their property. Adopting a higher age would therefore have been very problematic, and the act achieved the maximum possible in this respect.

19 Statutes at large, VIII, 43–45.

20 For the Commons' amendments see B.L., Add. MSS 35,880, fos. 61–71.

21 Among detailed explanations of the amendments (probably by Hardwicke), there is the following comment on the Commons' effective dilution of the residence requirements provisions: ‘I should rather have wished this Clause to have been omitted, & that all these rules might have stood upon the same footing’ (B.L., Add. MSS 35,880, fos. 72–3). Cf. Parliamentary history, XV, 85; Yorke, , Hardwicke, II, 67.Google Scholar

22 Yorke, , Hardwicke, I, 123Google Scholar; English reports, XXVI, 802, XXVII, 782, XCIV, 1105, XCV, 219 (Middleton V. Crofts, 1736); Yorke, , Hardwicke, II, 60Google Scholar; English reports, XXVI, 598 (Bennet and Spencer v. Wade, 1742); Yorke, , Hardwicke, II, 445–8Google Scholar; English reports, XXV, 1018 (Hervey v. Aston, 1738); Yorke, , Hardwicke, II, 469–70, 475–6Google Scholar; English reports, XXV, 893, XXVI, 326 (Hill v. Turner, 1737); English reports, XXV, 974–5 (Eades v. Brereton 1738); English reports, XXVI, 508 (Hughes v. Science, 1741).

23 Yorke, , Hardwicke, II, 58nGoogle Scholar; Baker, , Introduction to English legal history, p. 549nGoogle Scholar; English reports, CLXX, 123 (Lawrance et al v. Dixon); B.L., Add. MSS 35,880, fos. 73–V).

24 Walpole, , Memoirs, p. 226Google Scholar. Cf. Charles Townshend, an opponent of the bill who claimed that the problems of bigamy and doubtful proof of marriage could be solved by a simple bill which established proper registration, and maintained that genuinely scandalous clandestine marriages were few in number (Parliamentary history, XV, 50–53, 55–6).

25 Cf. Stone, , Road to divorce, pp. 122–3.Google Scholar

26 Parliamentary history, XV, 1–2, 11.

27 E.g. ibid. pp. 3, 41–2.

28 Ibid. pp. 51–3, 55–6 (4 June); cf. ibid. p. 22 (Nugent, 14 May). The duke of Bedford had made a similar distinction between ‘clandestine Marriages, & private Marriages’ in the Lords debate of 4 May, arguing that secrecy should be allowed if it did not facilitate scandalous marriages (B.L., Add. MSS 35,877, fo. 122). Cf. ibid. fos. 171–2: ‘Notes of Debate on the Bill offd. by the D: of Bedford to prolong the time of the Commencmt. of the Bill to prevent clandestine marrs.’, 4 Mar. 1754. Speaking on a later occasion, he insisted ‘The Marrge. Bill was calculated to prevent inconvenient Marriages in great families’ (B.L., Add. MSS 35,880, fo. 164: notes of Lords debate on bill to repeal the Marriage Act, 1765, my italics).

29 House of lords sessional papers, 1747/48–1753, pp. 403–21; B.L., Add. MSS 35,880, fos. 51–2V, 53–6, 61–4; 26 Geo. III, C. 23, sects. 3, 11, 15.

30 Parliamentary history, XV, 75.

31 Ibid. p. 24.

32 Ibid. p. 2; cf. Murray (ibid. p. 77).

33 Murray's claim that the bill gave no new legal power to parents or guardians was disingenuous, because lack of parental consent previously rendered the marriage of a minor irregular, rather than null and void (ibid. p. 77).

34 Ibid. pp. 28, 45, 76; B.L., Add. MSS 35,877, fo. 123. Cf. Haldane ‘[giving parents a legal veto over the marriage of minors] would be giving a greater power to parents, and especially guardians, than they ought to have, and which, from experience we may presume, would often be made a very tyrannical use o’f (Parliamentary history, XV, 40).

35 Early drafts of the bill had ‘proper and advantageous’ (B.L., Add. MSS 35,880, fos. 55, 59, 63; House of lords sessional papers, 1747/48–1753, pp. 411, 419).

36 The amended bill sent down to the Commons from the Lords included a clause which nullified contracts and pre-contracts made by minors without parental consent and this was followed by a proviso specifically incapacitating the veto of a father (and the mother) if he was non compos mentis or overseas. Ryder said in debate that this avoidance of the veto extended to actual marriages by licence, but the whole clause was subsequently struck out by the Commons committee (B.L., Add. MSS 35,880, fos. 54V–55, 58V, 62V–63; House of lords sessional papers, 1747/48–1753, pp. 410, 418–19; Parliamentary History, XV, 10).

37 Parliamentary History, XV, 59 (Townshend, 4 June); cf. ibid. p. 16 ‘… our quality and rich people will by this Bill acquire the absolute disposal of their children in marriage; for whilst the father is alive, even the court of Chancery is to have no power to authorize a proper marriage without his consent, let his refusal be ever so whimsical or selfish’ (Nugent, 14 May). Blackstone also took notice of the act's failure to constrain fathers (Blackstone, W, Commentaries on the laws of England (9th edn, London, 1783), I, 438).Google Scholar

38 B.L., Add. MSS 35,877, fo. 172V: ‘Notes of Debate on the Bill offd. by the D: of Bedford to prolong the time of the Commencemt. of the Bill to prevent Clandestine Marrs.’, 4 Mar. 1754.

39 B.L., Add. MSS 35,880, fos. 62V–63, 72–3; Parliamentary history, XV, 10; Stone, , Family, sex and marriage, pp. 241–2.Google Scholar

40 Parliamentary history, XV, 7. Cf. ibid. p. 30 (Barrington, 14 May).

41 Cochran v. Campbell (Lords Journal, XXXVIII, 9, 12, 13–14); Parliamentary history, XV, In, 8. Cf. Gally, H, Some considerations upon clandestine marriages (1st edn, London, 1750), pp. 16–18.Google Scholar

42 Treatise of feme coverts, pp. 28–9; Blackstone, , Commentaries, I, 439, III, 93–4Google Scholar; B.L., Add. MSS 35,880, fo. 72V; 26 Geo. III, C. 33, sect. XIII. The best explanation of the legal status of contracts before 1753 is Report of the royal commission on the laws of marriage, pp. vxiii–xixGoogle Scholar. Blackstone was unsure whether the act completely prevented ‘the canonical impediments of pre-contract’ from voiding a marriage (Commentaries, I, 435, 440).

43 Parliamentary history, XV, 58–9 (Townshend, 4 June), 68 (Fox, 4 June), 80 (Beckford, 4 June); Baker, , Introduction to English legal history, p. 547Google Scholar. The church courts seldom upheld pleas to enforce contracts, but even Solicitor-General Murray admitted the grounds for the action (Parliamentary history, XV, 76).

44 B.L., Add. MSS 35,880, fos. 54V–55, 58V; House of lords sessional papers, 1747/48–1753, pp. 418–19Google Scholar; Parliamentary history, XV, 10.

45 Parliamentary history, XV, 21–2.

46 Parliamentary history, XV, 76. Townshend believed ‘a few years hence many a young woman will be debauched under the pretence of a sham-marriage, or a written promise of marriage; for those of the present generation may remember something of the law, and be a little cautious, yet the young women of the next will be as ignorant and as regardless of it, as they now are of our laws against wearing cambrics’ (ibid. p. 54). For Blackstone's doubts about the way in which the act affected the ecclesiastical law see above, n. 42.

47 See above, n. 36; B.L., Add. MSS 35,880, fos. 62V–63V, 72V–73.

48 Townshend, who was a barrister, believed that the amended bill continued to allow the plea of non-age against a breach of promise action, and he was proved right in at least one case (Parliamentary history, XV, 53; Stone, , Road to divorce, p. 92Google Scholar; The Gentleman's Magazine, XXXI (1761), 536 (Hemming v. Freemantle)).Google Scholar

49 Stone, , Road to divorce, pp. 87–8Google Scholar. But see ibid. p. 92, where it is maintained that the Marriage Act's impact on contracts restricted the scope of the breach of promise action.

50 For circulation and editions etc. see Richardson, S, Pamela (Harmondsworth, 1980), pp. 7, 21.Google Scholar

51 B.L., Add. MSS 35,880, fo. 164: notes of Lords debate on bill for repeal, 1765.

52 Stone, , Family sex and marriage, pp. 241–2Google Scholar, apparently citing speeches by Townshend and Beckford, although the quotations given do not correspond precisely to their words (Parliamentary history, XV, 49–62, 79–84).Google Scholar

53 Parliamentary history, XV, 14–15 (14 May).

54 Robert, Nugent, The unnatural father, or the persecuted son. Being a candid narrative of the most unparallelled sufferings of Robert Nugent, junr. by the means and procurement of his own father (London, 1755).Google Scholar

55 Sedgwick, R, The house of commons 1715–1754 (London, 2 vols., 1970), II, 302–3Google Scholar; Dictionary of national biography, XIV, 714–16; Horace Walpole's correspondence, IX, 65, 104, XVII, 271, XVIII, 481.

56 Parliamentary history, XV, 12. Lord George Sackville said of Nugent that nobody could depend upon his attachment (Historical Manuscripts Commission, 9th Report, pt. III, 19: Sackville to General Irwin, 5 Sept. 1764).

57 Parliamentary history, XV, 82–3.

58 Memoirs of William Beckford of Fonthill, author of ‘Vathek’ (2 vols., London, 1859), I, 5, 17, 60–1Google Scholar; Sedgwick, , House of commons 1715–54, I, 451–2Google Scholar; Namier, L and Brooke, J, The house of commons 1754–1790 (3 vols., London, 1964), I, 78.Google Scholar

59 Parliamentary history, XV, 60; Walpole, , Memoirs, p. 228.Google Scholar

60 [Smollett, T] The expedition of Humphrey Clinker (2nd edn, 3 vols., London, 1772), I, 243–4Google Scholar; Namier, and Brooke, , House of commons 1754–1790, III, 540Google Scholar; Namier, L. S. and Brooke, J, Charles Townshend (London, 1964), pp. 2, 5, 17, 34, 60–1, 186CrossRefGoogle Scholar. Cf. Dictionary of national biography, XIX, 1044–7. Interestingly, Professor Trumbach relates Townshend's calculated advancement via marriage and manipulation of his father but discounts his example as ‘a younger son of the old school’ (Rise of the egalitarian family, pp. 91, 109n).

61 Parliamentary history, XV, 68.

62 Riker, , Fox, II, 301–2.Google Scholar

63 Namier, and Brooke, , House of commons 1754–1790, II, 461.Google Scholar

64 Ilchester, , Fox, I, 31–4Google Scholar; Riker, , Fox, I, 32–6Google Scholar; The letters of Philip Dormer Stanhope earl of Chesterfield, with the characters, ed. Bradshaw, J (3 vols., London, 1892), III, 1426Google Scholar. It is possible that he married a maid of honour to the queen, Penelope Dives, in 1733 (Ilchester, , Fox, I, 35–6Google Scholar; Riker, , Fox, I, 38).Google Scholar

65 Sedgwick, , House of commons 1715–1754, II, 48–9, 150Google Scholar; Riker, , Fox, I, 46–9)Google Scholar; Horace Walpole's correspondence, XXX, 313. Fox's family biographer attempted to exonerate him from accusations of loose living, but the circumstantial evidence is overwhelming (Ilchester, , Fox, I, 31–47, 104–10).Google Scholar

66 The only other reported speaker against the bill in debate was Colonel George Haldane, an adherent of the duke of Cumberland who died unmarried (aged 37) in 1759 (Sedgwick, , House of commons 1715–1754, II, 94)Google Scholar. Horace Walpole was also a bitter opponent of the act, although he did not pretend to ‘ethical’ motives. He never married, but had previously collaborated in an attempt to force a match between his nephew, whose intellect was impaired, and a rich Chancery ward (ibid. II, 511; Horace Walpole's correspondence, XIV, 193–233).

67 Parliamentary history, XV, 14–15.

68 The parliament of 1747–54 included a minimum of 391 first sons, only sons, or sons and heirs, which represents 58% of the 671 members elected (a calculation derived from Sedgwick, House of commons, passim). Cf. Trumbach, , The rise of the egalitarian family, pp. 108–9.Google Scholar

69 Spring, , ‘Law and the theory of the affective family’, pp. 1–20Google Scholar. Cf. Spring, E and Spring, D, ‘The English landed elite, 1540–1879: a review’, Albion, XVII (1985), 156–61Google Scholar. See also Susan Moller Okin's careful and comprehensive analysis of the law relating to married women's property, where she argues ‘both the legal structure of marriage and prevailing attitudes towards it were such that only in fantasy can we regard eighteenth-century married life as a situation of companionship between equals’ (Okin, S. M., ‘Patriarchy and married women's property in England: questions on some current views’, Eighteenth-Century Studies, XVII (1983/1984), 138)Google Scholar. And for the ultimate re-imposition of ‘deeper patriarchal structures’ to married women's property in the eighteenth century after the legal consequences of applying contract ideas proved ‘socially intolerable’, see Staves, S, Married women's separate property in England, 1660–1833 (Cambridge, Mass., 1990), p. 4 and passim.CrossRefGoogle Scholar

70 Habbakuk, , ‘Marriage settlements’, pp. 24–8Google Scholar; Hollingsworth, T. H., The demography of the British peerage (supplement to Population Studies, XVIII, no. 2. 1964), pp. 9–10, 71Google Scholar. Professor Stone discounts as passing cynicism the literary evidence for this trend, such as Defoe's comment in Moll Flanders (1722) that ‘nothing but money now recommends a woman’ (Stone, , Uncertain unions, pp. 31–2).Google Scholar

71 Habbakuk, , ‘Marriage settlements’, pp. 23–4Google Scholar; idem, ‘Rise and fall of English landed families’, p. 191Google Scholar; Hollingsworth, , Demography of the British peerage, pp. 32, 70, 71Google Scholar; Stone, L and Stone, J. C. F., An open elite? (Oxford, 1984), pp. 100–101, 123–4Google Scholar. Cf. Parker, S, Informal marriage, cohabitation and the law, 1750–1989 (London, 1990), pp. 32–4CrossRefGoogle Scholar. For the frequency of ‘mercenary’ attitudes to marriage among the middle ranks in London see Earle, P, The making of the English middle class (London, 1989), pp. 193–8, 199Google Scholar. The corollary of Professor Stone's belief in the rise of affective individualism is a decrease in the number of mercenary marriages, but this has been argued on the basis of very limited demographic data whose meaning even Stone now admits is ‘debatable’. At best, the figures suggest that marriages of elite sons with heiresses were at an all-time high before 1750, and any drop in this particular index was a late-18th century phenomenon. But the trend is fairly meaningless in the absence of figures about the numbers of heiresses themselves, which were likely to have fallen in the context of increasing fertility, declining mortality, and continuing preference for male heirs among the elite after mid-century; and it says nothing about marriages with well-endowed daughters who were not heiresses – brides whose money portions were often more attractive to elite fathers than heiresses whose property might well be tied up in settlement. (See Stone, , The Family, sex and marriage, pp. 318–20Google Scholar; Stone, and Stone, , Open elite?, pp. 122–4Google Scholar; Habbakuk, , ‘Marriage settlements’, p. 28Google Scholar; Spring, and Spring, , ‘English landed elite’, pp. 159, 162–3Google Scholar; Stone, L, ‘Spring back’, Albion, XVII (1985), 177–8Google Scholar; Spring, E and Spring, D, ‘The English landed elite, 1540–1879: a rejoinder’Google Scholar, ibid. pp. 395–6.) David Thomas, whose data were used by Stone to prove his assertion of ‘a marked shift in marriage motives among the sons of the peerage from interest to affection’, specifically warned that a probable decline in heiresses as against daughters with portions meant that ‘the data on marriages to heiresses only imperfectly document the concern of members of the peerage to acquire new wealth through marriage’ (‘The social origins of marriage partners of the British peerage in the eighteenth and nineteenth centuries’, Population Studies, XXVI (1972), Table 7, p. 105).Google Scholar

72 Stone, and Stone, , Open elite?, pp. 37–40Google Scholar; Borsay, P, The English urban renaissance: culture and society in the provincial town 1660–1770 (Oxford, 1989), pp. 243–8.Google Scholar

73 For the cultural manifestations of this increasing tension see Langford, , Polite and commercial people, pp. 112–16Google Scholar. Interestingly, without mentioning the Marriage Act at all, and in a passage which sits uncomfortably with his other assertions about the rise of affective individualism and the impact of the strict settlement, Professor Stone admits that after about 1700 ‘The family interest of the elite in the choice of a spouse remained paramount for another half century, until sapped from within by the spread of new attitudes towards love and freedom of choice in the latter half of the eighteenth century’ (Open elite?, p. 124.)

74 Gally, , Some considerations upon clandestine marriages, pp. 79–80Google Scholar (‘the natural Affection which Parents bear towards their Children, will never suffer them to be their Executioners, even when they are disobedient to them’); Horace Walpole's correspondence, XXXVII, 363; Riker, , Fox, I, 128–9Google Scholar; Parliamentary history, XV, 58. As Nugent pointed out, ‘“lex est res surdae [sic] et inexorabilis”: the law [unlike fathers] will neither relent nor forgive’ (ibid. p. 20). Similarly, Spring argues that the strict settlement was an anti-affective device, developed to protect the long-term interest of families (Spring, , ‘Law and the theory of the affective family’, p. 4).Google Scholar

75 There is certainly considerable evidence to suggest that the ideology of affection and sentiment in family matters was increasing in the eighteenth century, but this was by no means incompatible with the continued assertion of patriarchal power-relations (Okin, S. M., ‘Women and the making of the sentimental family, Philosophy and Public Affairs, XI (1982), 72–88)Google Scholar. I owe this reference to the kindness of Andrew Sharp.

76 The Rev. Henry Gaily, whose pamphlet helped to inspire the act, wrote: ‘it is entirely against the public Utility that in an Affair of so great Importance as Marriage is, Children should contract such Family Alliances without the consent of their Parents’, and ‘it is contrary to the fundamental Laws of Society, that the gratifying of the private Whims and Fancies of a Few should be preferr'd to the real and general Good of Society’ (Some considerations upon clandestine marriages, pp. 54, 92, my italics).

77 Yorke, , Hardwicke, II, 447Google Scholar; English reports, XXV, 1018 (Hervey v. Aston (1738)). In determining the same case he was careful to argue against any right of parents or guardians to compel or absolutely forbid marriage, however (ibid. p. 989).

78 Public general statutes 3 Geo. IV (London, 1822), pp. 408–13.Google Scholar

79 Public general statutes 4 Geo. IV (London, 1823), pp. 112–13.Google Scholar

80 Public general statutes 4 Geo. IV, pp. 676–82.Google Scholar

81 Cornish, W. R. and de, G.Clark, N., Law and society in England 1750–1950 (London, 1989), pp. 363, 375–6Google Scholar; Stone, , Road to divorce, p. 132.Google Scholar

82 Public general statues 6 & 7 Wm. IV (London, 1836), pp. 753–68.Google Scholar

83 Report of the royal commission on the laws of marriage (1868), pp. vi–xi.Google Scholar