Every so often comes along a book which challenges long-established orthodoxies; this is one such publication. In it Rebecca Probert seeks to prove that both prevailing understandings of marriage practice before the Clandestine Marriages Act 1753, and common views of that Act's significance and effects, are based on misunderstandings and misconstructions of the available evidence. Specifically, she contests the commonly held view that a simple exchange of consent per verba de praesenti constituted a valid marriage before 1754, and that this, perhaps in the context of an informal folk rite, was the normal means of getting married. She further asserts that, far from being a harsh and radical Act, the Clandestine Marriages Act 1753 was in fact characterised by a remarkable degree of continuity with past law and practice, and was generally interpreted in a sensitive and purposive manner.
The book itself is both accessible, and notable for the care taken in constructing and delivering its arguments. Each chapter serves a clearly articulated purpose, and sets out the arguments, and the critique and evidence upon which they are based, with measured deliberation. The content of each is rooted in a wide-ranging survey of the existing literature, a close and detailed scrutiny of canon law, case law and statutory provisions, and the analysis of a range of literary and primary source materials. The arguments advanced are, in consequence, both convincing and compelling.
Having defined her key terms in the first chapter, in chapter two, analysing case law, literary and primary sources, Probert systematically dismantles the argument that, before 1754, words per verba de praesenti constituted a legally valid marriage. She traces the basis of this argument to the over-emphasis of the binding nature of contracts per verba de praesenti, and of consent as being the essence of a valid marriage. Instead, she shows us that it was solemnisation before a clergyman which was viewed by both lawyers and contemporaries as the essential ingredient of a legally valid marriage.
Having established that an exchange of consent did not constitute a full alternative to formal marriage, in chapter three, Probert explores whether it operated as a functional alternative, ie whether it was treated by the parties themselves and their peers as being equivalent to formal marriage, and carried with it the right to sexual relations and cohabitation. She highlights the many weaknesses in the studies which have been used to support the prevalence of folk alternatives to formal marriage. In addition, through a series of careful case studies drawing on settlement examinations, marriage and baptism registers and parish lists, Probert highlights that co-habitation as an alternative to marriage was rare. The dominant picture, on the evidence, was of Anglican church weddings. Nor, as she demonstrates in chapter four, was this picture undermined by the practices of the non-Anglican minority. While Jews, Quakers and Roman Catholics tended to marry using their own distinct rites, the legal status of these was ambiguous and the majority of Protestant Dissenters married in an Anglican church. Even the prevalence of clandestine marriages, examined in chapter five, did not greatly affect this since such marriages, outside of London at least, usually took place in church and always before an Anglican priest. Most were only clandestine in the sense that they did not fully comply with the canons of 1604. Given this, the 1753 Act, which required couples to marry in their parish church, could not realistically be said to have radically changed marriage practice.
In the remaining chapters the author turns her attention to the Clandestine Marriages Act itself. Chapter six explores the reasons for its passage in 1753, an explanation which is needed given the longevity of complaints about the evil of clandestine marriages. Having analysed the terms of the Act, and highlighted the broad continuity between these and the requirements imposed by contemporary canon and case law, in chapter seven, exposing the potential flaws in previous studies, Probert argues that eighteenth-century evidence reveals overwhelming conformity with the requirements of the Act.
Chapter eight is devoted to a detailed consideration of the judicial interpretation of the 1753 Act. Through a close examination of the eighteenth-century case law it seeks to rebut the common assumption that the Act was harshly interpreted. Rather, Probert argues, judges were sensitive to its purposes in the implementation of its terms, and maintained a remarkable continuity between the pre-1754 and post-1754 case law in most areas. Still on the theme of the Act's reputation, chapter nine considers the position of non-Anglicans after 1754. Having previously noted that prior to the Act most Protestant non-Anglicans married in church, and that the legal status of Roman Catholic, Jewish and Quaker marriages was ambiguous, Probert notes that 1753 Act changed little. Jews and Quakers were exempted from its provisions but the status of their marriages remained uncertain. Most Roman Catholics complied with its terms by undergoing two ceremonies, and Protestant nonconformists continued to resort to their parish church for marriage. Rather, then, than tracing the causes of the Civil Marriages Act 1836 to discontent with the 1753 legislation, Probert asserts that the later Act was a product of changing attitudes to Dissent in the early nineteenth century.
In conclusion, this book is both an enjoyable and an enlightening read. It is characterised by a clear sense of purpose, articulate delivery, and the immense and meticulous scholarly effort upon which it is based. While it is plainly of great interest to historians of marriage practice, I would commend it also to a wider readership, and particularly to those with an interest in legal historiography. In this book such readers will find not only a firm grasp of substantive legal and social history, but also a series of reflections on the use of historical sources, the pitfalls and perils of such, and, perhaps most interestingly of all, the tangled ways in which certain perceptions and readings of the evidence become entrenched orthodoxies.
