1. R v Millis (1843–44) 10 Cl & F 534; 8 ER 844.

2. See H Elpinstone ‘Notes on the English Law of Marriage’ (1889) 5 Law Quarterly Review 44.

3. The pre-statutory canon law, administered by the ecclesiastical courts, is often referred to as the common law of marriage: this, however, should be distinguished from the attitude of the common law courts to marriages, the existence of which might fall to be determined by the common law courts as a subsidiary question, for example when deciding on a husband's liability for his wife's debts.

4. See further below, text at n 73.

5. On the evolution of this belief, see further R Probert, ‘Common-law marriage: myths and misunderstandings’ [2008] 20 Child and Family Law Quarterly 1.

6. Pollock and Maitland are here using ‘ecclesiastical law’ to denote the canon law, and ‘common law’ in the second sense noted above at n 3.

7. F Pollock and F W Maitland The History of English Law Before the Time of Edward I (Cambridge: Cambridge University Press, 1923) p 372.

8. Holdsworth, W A History of English Law (London: Methuen & Co, 1903) p 622.Google Scholar

9. Baker, J H An Introduction to English Legal History (London: Butterworths, 4th edn, 2002) p 483.Google Scholar

10 See Howard, G E A History of Matrimonial Institutions (University of Chicago Press 1904;Google ScholarNew York Humanities Press, 1964) ch 7; , ‘consent…was the touchstone. Nothing else was strictly speaking necessary’.

11. A further belief, that a promise of marriage could be converted into a marriage as a result of sexual intercourse between the parties, has also attracted widespread support but need not concern us further: it is clear that this could have no higher status that a contract per verba de praesenti.

12. 21 and 22 Geo III, c 25. Significantly, the legislation provided that marriages celebrated between protestant dissenters by protestant dissenting ministers would be as valid as if solemnised by a minister of the Church of Ireland. For discussion of the legislation see J Gabbett Treatise on the criminal law (Dublin, 1843).

13 It should be noted, however, that while the effect of a contract per verba de praesenti was for the most part a matter of historical interest rather than daily practice in 1843, it was still covered in contemporary textbooks. Shelford's treatise on marriage, published only 2 years earlier, had correctly noted that ‘[t]he text writers upon this subject agree in the necessity of a solemnization to confer the civil rights of marriage’. Shelford, L A Practical Treatise of the Law of Marriage and Divorce (London: S. Sweet, 1841) p 36.Google Scholar

14 See, for details of their careers, G Jones ‘Three Very Remarkable Nineteenth-Century Lawyers: Lyndhurst, Denman and Campbell’ in O'Donovan, K and Rubin, G R Human Rights and Legal History: Essays in Honour of Brian Simpson (Oxford: Oxford University Press, 2000)Google Scholar ch 7.

15. At p 737. He was presumably tracing the doctrine back to Lindo v Belisario (1795) 1 Hag Con 215; 161 ER 530, although see text at n 82 below as to whether this is appropriate.

16. In Jesson v Collins (1705) 6 Mod 155; 87 ER 913, Holt CJ stated that that a contract per verba de praesenti ‘amounts to an actual marriage, which the very parties themselves cannot dissolve…it is as much a marriage in the sight of God as if it had been in facie ecclesiae’. Read in context, however, this was simply an assertion of the orthodoxy that such a contract was binding upon the parties: see Probert, above n 5, at 15. It did not equate a contract per verba de praesenti with one in facie ecclesiae in terms of their legal consequences, and indeed Holt CJ went on to note one of the differences between a contract and a marriage in church – ‘if they cohabit before marriage in facie ecclesiae, they are for that punishable by ecclesiastical censures’.

17. At p 766. Apart from Jesson, the cases he relied upon dated from the nineteenth century.

18. At p 821. This view was explicitly contradicted by Twisden J in Sir Robert Paine's Case (1661) 1 Sid 13; 82 ER 941.

19. ‘This is proved to have been Lord Hardwicke's opinion by the Marriage Act itself, and the same proof applies to Lord Mansfield’: at p 821.

20. Benton, T Irregular Marriages in London Before 1754 (London: Society of Genealogists, 2nd edn, 2000) p 30;Google Scholar

21. Section 13 declared that no suit might be brought in any ecclesiastical court to compel celebration in facie ecclesiae of a contract per verba de praesenti or per verba de futuro that was entered into after 25 March 1754. It is significant that it did not declare future contracts to be void. Had a contract per verba de praesenti indeed been regarded as the equivalent of a marriage before this date, the Act would have been of little effect, since upon that view solemnisation would not be necessary to the validity of the union, nor would it affect the rights flowing from it.

22. At pp 792–793.

23. Marriage Duty Act 1695, 6 and 7 W 3, c 6, s 203.

24. At p 831.

25. At p 705.

26. At p 708. The same argument was adopted by Lord Campbell: see p 749.

27. See further n 78 below.

28 George Miller, DD, Vicar-General of Armagh The Queen v Millis (Writ of Error): Notes on the Opinions of Lord Brougham and Vaux and Lord Campbell (London: Duncan and Malcolm, 1844) p 11.Google Scholar

29. At p 878.

30. At p 896.

31. At p 746.

32. Such language might suggest that a contract was regarded as a marriage: but it is clear from the judgment in Scrimshire v Scrimshire (1752) 2 Hag Con 395; 161 ER 782 – which concerned a Catholic marriage – that it was not. As the judge demanded, ‘[u]pon what reason or foundation then should a contract of marriage entered into by the intervention of the Popish priest, not in the form prescribed by law, be deemed a legal marriage in this country, more than any other contract that is considered by the canon law as ipsum matrimonium?’.

33. At pp 857–858.

34. At pp 870–871. See further text at n 45 below.

35. This was the common way of referring to a contract per verba de praesenti when one of the parties had subsequently gone through a formal ceremony of marriage with a third party.

36. At p 871. See also n 56 below.

37. 58 Geo 3, c 81, s 3.

38. At pp 871–872.

39. On the state of the law prior to 1754, see further Probert, n 5 above.

40 Two witnesses, or written proof, were required if one of the parties had subsequently married another or denied the contract: see canon 105, and for discussion see Salmon, T A Critical Essay concerning Marriage (London, 1724) pp 199–200;Google Scholar

41. Consett, H The practice of the spiritual or ecclesiastical courts (London, 1708) p 253.Google Scholar

42 Swinburne, above n 40, p 222. See also the precedent for a contract provided by a Gentleman of Doctors Commons The clerk's instructor in the ecclesiastical courts (London, 1740) p 308,Google Scholarwhich envisages solemnisation in church. For an example, see Baxtar v Buckley (1752) 1 Lee 42; 161 ER 17.

43. Salmon, above n 40, p 202; see also Swinburne, above n 40, p 231.

44. Wheatly, C The Church of England man's companion, or a rational illustration of the harmony, excellency and usefulness of the Book of Common Prayer (Oxford, 1710) p 152 Google Scholar(emphasis added).

45 Even critics of the decision in Millis conceded this point: see Stoddart, Sir John Irish Marriage Question: Observations on the Opinion delivered by the Right Honourable the Lord Cottenham, 23rd February 1844, on the writ of error, in the case of The Queen v Millis (London: Henry Butterworth, 1844) p 29.Google Scholar

46. A marriage de facto was one in which the parties had gone through a ceremony of marriage, but to which some impediment – such as consanguinity, affinity, or, indeed, a precontract, might exist.

47. Coke, E The first part of the institutes of the laws of England. Or, a commentary on Littleton (London, 10th edn, 1703) p 33 Google Scholar

48. Hemming v Price (1701) 12 Mod 432; 88 ER 1430.

49. There was some debate whether it was necessary to annul the second marriage. Certainly in the ejectment case of Foster v Norclif (1664) 1 Keble 552; 83 ER 1107 it was assumed that a divorce praecontractus was necessary, rather than a mere assertion of a precontract.

50. See R Grey A System of English Ecclesiastical Law (4th edn, 1743) p 146.

51. Sir Robert Paine's Case (1661) 1 Sid 13; 82 ER 941.

52 See Anon Baron and Feme: A Treatise of Law and Equity Concerning Husband and Wives (London, 1738);Google Scholar

53. There was also a precedent for this in Bunting v Lepingwell (1585) 4 Co Rep 29a; 76 ER 950: Agnes Adenshall had been contracted to Bunting, then married Twede. Bunting then sought to enforce the contract. The court upheld it and ordered the contracted couple to marry.

54 Bigamy was apparently ‘of doubtful temporal cognizance’ until 1 Jac 1, c 11: see C Sprengel Greaves Russell on Crimes and Misdemeanors (London: Saunders and Benning, 3rd edn, 1843).Google Scholar

55. See D Cressy Birth, Marriage and Death: Ritual, Religion and the Life-Cycle in Tudor and Stuart England (Oxford: Oxford University Press, 1997) p 307, although his use of quotation marks indicates some doubt about the appropriateness of the term; Stone, above n 10, p 53.

56. To test this further, a sample of 168 bigamy trials heard at the Old Bailey between 1715 and 1755 was examined: in not one case was such a contract alleged.

57. Gibson, E Codex juris ecclesiastici Anglicani (London, 1713) p 508.Google Scholar

58 For a review of the cases, see the opinion of Lord Campbell, pp 774–777; see also Deacon, E A Digest of the Criminal Law of England (London: Saunders and Benning, 1831) Vol 1, p 148;Google ScholarGreaves, above n 54, p 214.

59. Salmon, above n 40, p 209.

60. R v Feilding (1706) 14 State Trials 1327.

61. See Greaves, above n 54, p 190; Gabbett, above n 12, p 155.

62. The Proceedings Of The Old Bailey Ref: t17381206-26.

63. Scrimshire v Scrimshire (1752) 2 Hag Con. 395; 161 ER 782, p 399.

64. See also Hilliard v Phaly (1723) 8 Mod. 180; 88 ER 132, in which a marriage was celebrated by a priest attached to the Portuguese embassy. In that case the question was whether the parties had married before the birth of their child, and the nature of the marriage was not directly discussed. The jury's decision in favour of the legitimacy of the child seems to have come about as a result of the exclusion of other evidence tending to suggest the contrary.

65. See Floyer, above n 40, p 78.

66. For the legal mechanisms to enforce such celebration, see Salmon, above n 40, p 202.

67. See Swinburne, above n 40, at p 235: ‘neither Spousals de praesenti, neither Spousals de futuro consummate, do make her Goods his, or his Goods hers’. See also Salmon, above n 40, at p 180.

68. Wickham v Enfield (1633) Cro Car 351; 79 ER 908; Wigmore's Case (1707) Holt KB 460; 90 ER 1153; Scrimshire v Scrimshire (1752) 2 Hag Con 395; 161 ER 782.

69. See R Probert and L D’Arcy Brown ‘The Clandestine Marriages Act: Three Case-Studies in Conformity’ (2008) Continuity and Change (forthcoming).

70. Probert, above n 5.

71. At p 873.

72. ‘Of Foxcroft's and Del Heith's cases it may justly be said, that by proving too much they prove nothing’ (per Brougham at p 713); see also Lord Campbell at p 760. Contrast the view of Lord Cottenham at p 883.

73. Dalrymple v Dalrymple (1811) 2 Hag Con 54; 161 ER 665. For a more detailed analysis of Dalrymple, see ‘Sir William Scott and the law of marriage’, paper delivered at the eighteenth British Legal History Conference, Oxford, 4 July 2007, available at http://www.law.harvard.edu/programs/ames_foundation/BLHC07/Index.html.

74. At p 59.

75. At p 70. He made some attempt to trace the law of England from the Reformation to the 1753 Act (pp 68–70), but his analysis of the law occupies less than a page in the English Reports.

76. Lindo v Belisario (1795) 161 ER 530. This case concerned the validity of a Jewish ceremony of marriage, and Scott contrasted the situation of the parties before him, having gone through such a ceremony, with that of a couple who had merely exchanged vows in words of the present tense, who would be required to celebrate their union publicly.

77. See Latour v Teesdale (1816) 8 Taunt 830; 129 ER 606.

78. A search of the electronic version of the English Reports yields no mention of the ‘marriage per verba de praesenti’ before the decision in Dalrymple in the nineteenth century, while only one example appears in the electronic database Eighteenth-Century Collections Online – which contains the full text of all the 150,000-or-so books published in England in the eighteenth century – and this one reference related to the marriage law of Holland, not England.

79. R v Simmons, decided only a few months before Millis, involved almost precisely the same point, the only difference being the location of the first marriage. The only evidence of the first marriage was that a witness had heard the accused say that he was married by a Presbyterian minister in New York. Wightman J pointed out that this was not an acknowledgment of a legal marriage: ‘you must shew a marriage good according to the laws of the country where it took place, or at least a marriage that would have been good in this country before the Marriage Act. You do neither’ (1843) 1 Car & K 163; 174 ER 759, at p 164. Simmons was accordingly acquitted.

80. As he noted at p 731.

81. At pp 734–735.

82. Brougham is here backdating the opinions expressed in Dalrymple to Scott's earlier decision in Lindo, despite the shifts in Scott's own reasoning between the two cases.

83. Stoddart, above n 45, p 47, original emphasis.

84. At p 857.

85. At p 874.

86. (1705) 2 Ld Raym 1105; 92 ER 232, at p 1111.

87. Clues v Bathurst (1733) Cas T Hard 11; 95 ER 7.

88. J H Baker The Law's Two Bodies: Some Evidential Problems in English Legal History (Oxford: Oxford University Press, 2001) p 57, noting that ‘[t]he historian must therefore be careful not to read into his sources a legal sophistication which is not there’.

89. Manchester, A H A Modern Legal History of England and Wales, 1750–1950 (London: Butterworths, 1980) p 28;Google Scholar

90. Baker, above n 9 p 199.

91. At p 739.

92. Brougham had had some involvement in the reform process, having presented a petition from the Unitarians of Hull in 1835: Hansard (3rd Series) vol 27, col 308, 27 March 1835.

93. See eg Clandestine Marriages Act 1753, s 18; Marriage Act 1823, s 31.

94. Vigevena and Silveira v Alvarez (1794) 1 Hag Con (App) 8n; Lady D’Aguilar v Baron D’Aguilar (1794) 1 Hagg Ecc 773; 161 ER.

95. Lindo v Belisario (1795) 1 Hag Con 216; Goldsmid v Bromer (1798) 1 Hag Con 324; 161 ER 568.

96. Vigevena and Silveira v Alvarez (1794) 1 Hag Con (App) 8n

97. Deane v Thomas (1829) Moo and Malk 361; 31 Rev Rep 738.

98 5,487 Quaker marriages took place between 1750 and 1799 alone: Rowntree, John S The Friends’ Registers of Births, Deaths and Marriages, 1650–1900 (Leominster, 1902).Google Scholar

99. At p 738.

100. See Hansard (3rd Series) vol 70, col 1190, 14 July 1843.

101. The bill was introduced on 20 July and received royal assent 8 days later: Hansard (3rd Series), vol 70, col 1273, 20 July 1843; vol 70, col 1380, 28 July 1843.

102. An Act for the Confirmation of certain Marriages in Ireland (1843) 5 and 6 Vict, c 113.

103. Section 2.

104. Hansard (3rd Series) vol 73, col 1597, 29 March 1844.

105. Hansard (3rd Series) vol 73, col 1598 (Lords Campbell, Cottenham and Brougham), 29 March 1844.

106. An Act for the Confirmation of Certain Marriages in Ireland, 6 and 7 Vict, c 39.

107. 7 and 8 Vict, c 81.

108. See ss 4–11.

109. An Act to remove doubts as to Quakers and Jews Marriages solemnised before certain Periods, 10 and 11 Vict, c 58.

110. See Hansard (HC) (3rd Series) vol 91, col 748, 13 April 1847.

111. Catherwood v Caslon (1844) 13 Mee & W 251; 153 ER 108.

112. Beamish v Beamish (1861) 9 HL C 274; 11 ER 735.

113. At p 345.

114. Maclean v Cristall (1849) Perry's Oriental Cases 75 at 88.

115. See Phillips v Phillips (1921) 38 TLR 150.