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The Scottish Case That Led to Hardwicke's Marriage Act

Published online by Cambridge University Press:  28 October 2011

Leah Leneman
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Extract

The legal and social implications of Hardwicke's Marriage Act, passed in 1753, were of the utmost importance in England. From 1754 onwards a marriage, in order to be recognized as legal, had to be carried out in a very specific, circumscribed manner, ending a period during which “irregular” or clandestine marriages proliferated. Although Lord Hardwicke had been agitating for such legislation for years, it was one case in particular, a Scottish action, which had been appealed to the House of Lords, that precipitated the Act.

Type
Notes and Commentary
Information
Law and History Review , Volume 17 , Issue 1 , Spring 1999 , pp. 161 - 169
Copyright
Copyright © the American Society for Legal History, Inc. 1999

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References

1. Outhwaite, R. B., Clandestine Marriage in England 1500-1850 (London and Rio Grande: Hambledon Press, 1995), 76Google Scholar; Stone, Lawrence, Road to Divorce—England 1530-1987 (Oxford and New York: Oxford University Press, 1992), 122Google Scholar; Bannet, Eve Tavor, “The Marriage Act of 1753: ‘A Most Cruel Law for the Fair Sex,’” Eighteenth-Century Studies 30 (1997): 237CrossRefGoogle Scholar.

2. Fergusson, James, Treatise on the Present State of Consistorial Law in Scotland (Edinburgh: Bell and Bradfute, 1829): 144–51Google Scholar.

3. For a full discussion of this subject, see Fraser, Patrick, Treatise on the Law of Scotland as applicable to The Personal and Domestic Relations (Edinburgh: T. and T. Clark, 1846) 1:124–97.Google Scholar

4. For England, see Outhwaite and Stone (note 1 above); for Scotland, see Mitchison, Rosalind and Leneman, Leah, Sexuality and Social Control—Scotland 1660-1780 (Oxford: Basil Blackwell, 1989)Google Scholar or the revised version, Girls in Trouble—Sexuality and Social Control in Rural Scotland 1660-1780 (Edinburgh: Scottish Cultural Press, forthcoming): ch. 4Google Scholar; and Leneman, Leah and Mitchison, Rosalind, “Clandestine Marriage in the Scottish Cities 1660-1780,” Journal of Social History 26 (1993): 845–61CrossRefGoogle Scholar; and Leneman, Leah and Mitchison, Rosalind, Sin in the City—Sexuality and Social Control in Urban Scotland 1660-1780 (Edinburgh: Scottish Cultural Press, forthcoming): ch. 8Google Scholar.

5. A complex and interesting declarator of marriage case is discussed in Houston, Rab and Heijden, Manon van der, “Hands across the Water: The Making and Breaking of Marriage between Dutch and Scots in the Mid-Eighteenth Century,” Law and History Review 15 (1997): 215–42CrossRefGoogle Scholar.

6. Unless otherwise stated, everything else in this article comes from the extracted decreet in Edinburgh Commissary Court registers of decreets in the Scottish Record Office (SRO) CC8/5/6.

7. Under the Scottish legal system married women are referred to by their maiden names. Jean was a Campbell both by birth and marriage; Magdalen was a widow known as Mrs. Kennedy, but legally she was Magdalen Cochran.

8. It was common at this time to call a laird by the name of his estate, to distinguish him from all others of the same surname. Thus, he was John Campbell of Carrick but would always be referred to casually as Carrick.

9. Sellar, W. D. H., “Marriage, Divorce and the Forbidden Degrees: Canon Law and Scots Law,” in Explorations in Law and History—Irish Legal History Society Discourses, 1988-1994, ed. Osborough, W. N. (Dublin: Irish Academic Press, 1995), 62Google Scholar.

10. Fergusson, Treatise, 124-25.

11. Ibid., 152, and Reports 130-33. SRO.CC8/6/19.

12. Bannet, The Marriage Act of 1753. John R. Gillis's review of Outhwaite, Clandestine Marriage, in 6 (1997): 294.