Marriage Law and Practice in the Long Eighteenth Century: A Reassessment. By Rebecca Probert. Published by Cambridge University Press, The Edinburgh Building, Cambridge CB2 8RU, UK. www.cambridge.org. 2009. xii, 358 pp. Index. Hardcover. $113.
This book radically changes our understanding of English marriage law, destroying most of what has been taught by historians and genealogists regarding marriage law in the past. This book is one volume in a series entitled Cambridge Studies in English Legal History and is therefore not a light read, but is certainly worth the effort. If you want an overview of Ms. Proberts’ arguments then read her Marriage Law for Genealogists: The Definitive Guide that I reviewed earlier. If you want more details including the specifics on the case law read this volume.
Ms. Probert is a genealogist and Professor of Family Law at Warwick University, a leading authority of the history of marriage laws of England and Wales and it clearly shows here. Her arguments in this book for her case are through and backed up by legal, historical and genealogical research which makes the book fascinating to read.
A very strong case is made that the 1753 Lord Hardwicke’s Act did not constitute a radical break with the past, but rather it was a transition from canon law to English law. In many ways the new Act focused on enforcing what was already supposed to be happening and as the formal title suggests “Act for Preventing Clandestine Marriages” it was primarily aimed at one particular practice – ending Clandestine Marriages.
The book focuses on the decades before and after the Act and how the contemporary people, church and legal establishment viewed marriage. It is vitally important to use contemporary sources for it is the legal establishments in both England and America that have really muddied the waters and led many historians astray.
The book examines in detail the misunderstandings around contract per verba de praesenti, clearly defining in the process what constituted a marriage in the eyes of the church and the law. It addresses other perceived marriages practices, tracing the origins of each into the historical literature and destroying each along the way. Ms. Probert moves on to explain what a clandestine marriage is and why it was such a problem for the establishment, and for the people involved. Once defined the book looks at the passage of the Act, what the law said and what effect it had on practice. Examined are the terms of Act; contracts to be unenforceable; preliminaries to the marriage; parental control; the ceremony; registration; penalties; exemptions. It would have been a nice addition if a full copy of the Act had been included in the book.
The book concludes by examining the success of the Act, how it was interpreted afterwards by the judicial system and what the response was at the time by the non-Anglicans.
For the genealogist three sets of records are used to support her case regarding marriage practices: specific cohorts of couples drawn from baptismal registers in a variety of locations around England and Wales; settlement examinations (Bradford-on-Avon, Wiltshire); and a rare parish listing (1782 Cardington, Bedfordshire).
The book is heavily footnoted throughout citing numerous legal, historical, genealogical and social texts and studies. These provide lots of alternative viewpoints. However, this reviewer thinks the arguments have been made soundly, are strongly supported, and all genealogists should rethink what they have been taught about English marriage laws and practices in the eighteenth century. This is a good read
Milner Genealogy 