Clandestine marriage in the Scottish cities 1660-1780.

For most human beings marriage is the most important decision of their lives. It determines the conditions and prospects not only of the marrying couple but also of the progeny. It sets up a new social unit. Therefore it is not surprising that, both formally and informally, societies try to control and define it. In early-modern western Europe the main definition was unspoken: the assumption that a marriage meant that a new and economically self-sustaining unit had been formed. Marriage was not considered available to those who could not expect to support children, and children were an unavoidable risk in a society where contraception was not available. The main explicit controls on marriage were the definitions of the marriage law.

In Scotland the definitions were simple. Marriage was made by the free consent of the two parties, provided they were of age (12 for a girl and 14 for a boy), not already married and not within the bounds of kinship and affinity. To these simple ideas was added the further definitions of how a marriage should take place. Regular marriage, the law stated, meant 'proclamation' or the reading of banns on three successive Sundays followed by marriage by the minister in the parish church. But the basic conviction that consent alone was needed was so strong that 'irregular' 'disorderly' or 'clandestine' marriage (the terms are synonymous), which did not conform to this pattern, though forbidden and penalised, was still valid. The Scottish scene had thus room for unconventional agreements. Church courts spent a considerable time deciding whether some confused happenings did or did not count as a marriage. Because Calvinist theology dominated the country, there was acceptance of social discipline by the church until well into the third quarter of the eighteenth century. As a result the records of the church provide a source of investigations into clandestine marriage which vividly show the opinions and concerns of ordinary people.(1)

Almost everyone in late seventeenth- and eighteenth-century Scotland accepted Calvinist dogma, which stressed the role of the congregation as a body of the elect, and 'godly discipline' as a sign of the true church. This made for a sense of unity between the parish kirk session, which exercised this discipline, the lowest in the Presbyterian hierarchy of church courts, and the people whose behaviour it was putting under scrutiny, in this case couples whose marriages or alleged marriages were being investigated. Socially, though the leaders who made up the session, with of course, the minister, were usually among the better off and more respectable of the parish, there was no sharp dividing line between them and ordinary male parishioners. It was not a case of 'them' and 'us' but of some of 'us' who are part of 'them.'

At the same time there was a difference in attitude to irregular marriage, between the couples and the session. The Church's concern over irregular marriage was partly a protection of its own position and rights. Irregular marriage broke the law of the church as well as that of the state. It could also be a means to a more serious offence: it might be used by someone already married even if separated from the past partner, to gain a new one, which would mean committing the sins of adultery and bigamy. It might be so irregular as not to involve genuine consent, in which case it was a means of fornication. It might be, and indeed often was, an attempt to cover up fornication which had led to pregnancy. In struggling both to discourage irregular marriage and to check on the validity of claims to it, the Church had strong weapons: it could excommunicate those who rejected its discipline, and before 1712 this could mean imprisonment by the sheriff; it could call on evidence from witnesses; it could add to the formal penalties laid down by statute its own ecclesiastical penalty, the denial of baptism to the child of a resistant couple.

Gillis has shown the demand for irregular liaisons as experienced by the people of England and Wales, and how those were achieved. His view on the motivation of such people is that most of it came from a desire to avoid a massive wedding celebration, and particularly to avoid the cost of this on limited family resources. Some of it, though, came from the need to escape from control of the local poor law authority. English parish vestries were much concerned to prevent the poor from marrying. Gillis shows that throughout the eighteenth century there was a wide range of dissenting sects which made it difficult for parsons to be well-acquainted with all the people resident in their parishes. There were also rogue parsons who would marry couples without the formality of banns, and accept couples from elsewhere. But Hardwicke's Marriage Act of 1753 made for much closer control. The penalties on the conducting of clandestine marriage were heavy enough to put an end to almost all of it. From 1754 in England and Wales the choice for couples was conformity to conventional marriage in the relevant parish, marriage by licence (an expensive procedure), journey to Scotland for irregular marriage there (also expensive) or unmarried cohabitation. Though his quantitative statements about the frequency of cohabitation rely on a few local sources, and are wisely offered only as estimates, it seems clear that many couples adopted this procedure. It had the great advantage that there was no legal difficulty if one or other of the couple subsequently changed their mind over the union. It was, of course, easier to pretend to a married state in England, where there was no body checking up on people's condition, than in Scotland where parish investigation and discipline still constituted a reality and was imposed on all except Roman Catholics.(2)

Kirk Session registers for the Scottish cities are rare for the late seventeenth century but enough survive to show that irregular marriage was very unusual in that period.(3) An Act of 1661 against those who married 'in a clandestine way' threatened offenders with three months imprisonment and a sliding scale of fines from 100 merks to 1,000 pounds Scots, according to rank. In 1696 a further Act penalized the witnesses to irregular marriage and the men conducting it.(4) There are a few cases recorded in the register of the Scottish Privy Council, based on attempts to get hold of heiresses,(5) and a few in the records of Trinity College parish, Edinburgh, of those of lesser rank. Most of these last took place near the border. Of nine cases recorded in the two burghs of Aberdeen, seven were by Roman Catholic priests, and so was one of the two recorded in Edinburgh, Canongate. It seems clear that at this time the main motive for irregular or clandestine marriage was basic religious divergence from the established Church.

The scene changed drastically with the Revolution of 1688-9. It was not that Church discipline was in any way modified. But the establishment of Presbyterianism meant that over some twenty years more than two-thirds of the incumbents of Scottish parishes, men who had been prepared to work under episcopacy, were forced out. Initially many were faced with violence and had to flee: later, church action was the method of dismissal. The result was that there were several hundred unemployed ex-ministers trying to find sources of income. Numbers gravitated to Edinburgh, where the chances of employment for educated men were greatest. Clandestine marriage thus became much more available there from the many 'outed' ministers accustomed to conducting marriage and anxious for fees. These men would not ask awkward questions which might bring out earlier marriages, or insist on the delay inevitable if banns were to be correctly called. Such marriages were often subsequently registered with the established church, on payment of a fine, and kirk sessions would also investigate cases of apparent illegal cohabitation, and thereby force admission of irregular marriage. The statements made to the sessions by those irregularly married provide a valuable source of opinions on marriage.

For some decades the Edinburgh resources seem to have met the demand for irregular marriage. The spectrum of motives for it appears different from those shown by Gillis for England, which is not surprising since the law of marriage was so different. Officially parental consent had no necessary part in marriage. In practice ministers would do what they could to obtain the consent of fathers to a marriage. In judging the heinousness of a clandestine marriage city kirk sessions regarded parental consent as a significant modifier. Many parents felt that, whatever the law was, their consent ought to be a legal requirement. In 1758 an Edinburgh married couple advertised in the local newspaper that their children, if they married against their parents' wishes, as one had already done, would be disinherited.(6) Such action is evidence of strength of feeling, and absence of legal power.

A couple who had been married by David Strang, a particularly exasperating practitioner of marriage, in March 1733, came before the session of Dundee: "Being Interrogat if they hade consent of parents answered they hade not for hade they had that they would not have troubled Mr Strang."(7) Such a remark suggests that this issue was an important motive for clandestine marriage in Scotland as in England throughout the eighteenth century, but there is no way of quantifying it.

Expensive and burdensome marriage festivities were less of a threat in Scotland than in England, for they were under pressure from the church. 'Penny' weddings, the usual form of party after a marriage, were already forbidden, and the church's system of taking 'consignation money' at proclamation, a deposit handed back only if no child was born within nine months of the marriage and there was no unseemly and boisterous party after the wedding, did much to enforce the prohibition.

There could be good practical reasons for speed and secrecy which made irregular marriage attractive. Sailors might expect to be called to sea at short notice. Soldiers might be prevented from marrying by their officers, if their intention was known: again these men might not have time to go through regular marriage. In April 1712 two men who had married irregularly appeared before the session of St Cuthbert's, Edinburgh, to say that "they were unwilling to take such an irregular course, but each of the men being soldiers in fflanders they gott orders to make ready for sailing in the moneth of March and had they taken the ordinary way of publication of banns, they thought they would not had (sic) time."(8)

What the church feared, that irregular marriage could be cover for premarital pregnancy or bigamy, was indeed a good reason for individuals to choose to marry irregularly. If the woman was pregnant and the couple did not marry they both faced the prospect of a drastic enquiry, fines and three 'appearances', that is penitential sessions on the stool or pillar in the parish church during Sunday service. If regular marriage had been carried out, there would still be investigation into the length of time between marriage and the birth of the child, when the child was born, and if the dating was not satisfactory the penalty would be a fine and, usually, a single appearance each. Irregular marriage with the date falsified on the certificate would, if accepted as true, led only to a small fine. In practice the detective skills of the sessions made this less than likely, but couples went on hoping to get away with it.

On bigamy the Church's concern for prevention could make regular marriage impossible. If a man had deserted his wife, even after many years she would be obliged to produce evidence of his death before she could marry again. She might have no idea where he had gone. Divorce for adultery or desertion was legally possible, but for the bulk of the population simply not attainable in practice. Most couples could not afford legal fees, and the procedure for divorce for desertion was particularly complicated, lengthy and expensive. In the rural parishes that we examined in over seven thousand cases of church discipline we found only one mention of the possibility of divorce. There were a few more mentions in the three thousand cases in the cities, but for most people it was impossible.(9) In July 1762 in St Cuthbert's, Edinburgh, Sarah Dolphin, spouse to James Wilson, cohabited with Alexander Mylne, 'writer', i.e., lawyer, while her husband was abroad. Wilson on return found that his wife refused to return to him, and "commenced a Process against her before the Commissary of Edinburgh and Obtained a Divorce against her." But these were people of means and with knowledge of legal proceedings.(10)

The most unusual reference to divorce occurred earlier in the same parish. On 20 December 1717 Janet Thomson and James Crawfurd, weaver, were cited for 'disorderly' marriage and produced a marriage certificate. As Crawfurd's wife was still alive, the session forbade them to cohabit and referred the case to Edinburgh presbytery. The presbytery's response (on 31 January 1718) was that as Crawfurd's first wife "was guilty of Adultery, and had absconded more than six years agoe, and being informed that the said James has not cohabited with her ever since the said Crime was committed ... are of opinion that there is a reall tho' not a Legal divorce, from one another, there being nothing wanting to have the legal one perfited save money on James his part to prosecute the same before the Judge Competent he being in mean circumstances." This is the only occasion we found of a church court recognising something as a divorce which was not a legal divorce. It stands as a curiosity, not a precedent, but at the same time it confirms that most of the people dealt with by kirk sessions could not afford a legal divorce.

If divorce was rarely an option then bigamy, or at least the risk of bigamy, was the obvious alternative. Our first question was whether this became more common in the second half of the eighteenth century. In our study of rural cases we found that out of 27 instances of alleged bigamy, only eight took place before 1740.(11) That study was based on regions with roughly comparable population figures over time; the urban parishes contain few long runs of records and much greater population shifts, so a direct comparison is not possible. We found cases of alleged bigamy in the cities much earlier than in the country (from the 1690s), and in fact out of 39 such cases 22 of them were before 1740. A breakdown of categories is shown below.

TABULAR DATA OMITTED

In view of the difficulties a woman faced in trying to trace a husband who deserted her, it is not surprising that so many women accused of bigamy fell into that category. It is, however, startling to find that nearly half of all cases of alleged bigamy comprised men whose first wives were very much alive; it is equally interesting that some women at least were also capable of remarrying in the knowledge that a former spouse was still alive. The most usual defence in all such cases was that the first so-called marriage had not been a real marriage at all.

Kirk session vigour did prevent some bigamous or potentially bigamous marriages. In 1726 the moderator of Canongate kirk session reported that he had received a letter from a minister in Glasgow, advising that one Thomas McMillane was cohabiting in Holyrood Abbey with Alison Duncan as his wife, although he had formerly married Lillias Watsone, still alive in Glasgow. When the session tracked down McMillane he admitted that Lillias Watsone had borne him five children and that they had cohabited from 1707 until 1714, but judicially declared "that they were never married, and that all the time she and he were liveing together was in whoredome." The minister in Glasgow then sent over letters from McMillane addressed to "Lillias Watsone or Mrs McMillane at Glasgow (in which) he calls her his Dear and Subscribes himself her Love(ing) husband." The presbytery had no hesitation in calling this a real marriage, so he was forbidden to cohabit with Alison Duncan.(12)

In another Canongate case Mary Willson complained to the session that her husband, Thomas Cuming, had deserted her and now cohabited with another woman. Cuming claimed that "he never was married to the said Mary Willson," though he admitted having cohabited with her. The session then called a number of witnesses in an attempt to establish the exact relationship between them. Witnesses declared that they "were always habite and repute by them and by the whole Neighbourhood to be Married Persons, And that for some years they had lived together as such." A wright declared he had put up their household furniture and had "observed them to eat & drink and converse together as Husband & Wife, And that in their house in the Canongate they had but one bed." The presbytery found the marriage 'sufficiently proven' and forbade him to cohabit with the other woman.(13)

Women might also insist that they had never actually married an alleged first husband: in a Canongate case of 1731 witnesses to the first marriage came forward, but the woman, Agnes Willson, objected to their testimony on the grounds that they bore her malice, and the case was passed up to the presbytery.(14) In St Cuthbert's in 1765 Janet Macfarlane had been cohabiting with Thomas Bruce for about five years. She admitted to the session that she had been married to another man thirty years earlier and had borne him three children, but he had left her when the third was only ten months old. Although she knew he was still alive she continued--in defiance of the session's orders--to cohabit with Bruce. (The reason she gave was that "he would starve if she did not support him, which she had done ever since they were married.")(15)

Refusal to separate was a feature of most bigamy cases, in spite of the fact that bigamy was a criminal offence under both civil and ecclesiastical law. Most kirk sessions referred to such cases as bigamy and adultery; by law 'notour adultery'--the continuing association with an unlawful partner--was a capital offence. The death penalty had been imposed in the sixteenth century but by the eighteenth century was clearly not being taken seriously. The powerlessness of authorities to act effectively against bigamists is clearly shown in urban kirk session registers, and it seems that to the offenders serial monogamy was an acceptable situation.

The final reason for irregular marriage is difficult to describe. It may have been a fashion, for certainly the practice became common from the 1740s.(16) This fashion may have been an expression of an enhanced sense of individual independence and the right to make personal decisions. Certainly there was an increase in irregular marriage in cases for which the motives already expressed were inapplicable. Couples seem to have chosen irregular rather than regular marriage as a way of 'doing their own thing'. As early as March 1700 when William Innes, soldier, confessed to St Cuthbert's session that he was irregularly married and was asked "what moved him to take that disorderly course? he said all the rest of his Comerads did the Like." Over time the pattern changed and civilians took the same line. The scale of irregular marriage became such that practical motives cannot be the full explanation. The theme of fashion is given support by the fact that in the 1750s some couples first got married irregularly and secretly, and then some months later were proclaimed and married in public.(17) The Church disapproved of this since it did not consider that the process of marriage could be repeated.

Providing clandestine marriage was a business, and as happens with businesses there was over time development both in scale and personnel. In Edinburgh Trinity College parish there were 55 cases of such marriage in seven years between 1701 and 1710, and a further seven reported but not confirmed. From 1711 to 1720 there were 48 with two more unconfirmed. In the suburban parish of St Cuthbert's, in the first eight years of recording, 1692-1710, there were 46 with eight reported but not confirmed, in 1701-10, 64 with two unconfirmed. Then the figures go up sharply: 101 with six disqualified 1711-20, 85 for 1721-30, 106 for 1731-40. In 1741-50 there were 138 cases accepted, and 26 unconfirmed ones were not followed up. It is clear that the kirk session had lost control over the situation and recorded only a sample of the cases.

In Glasgow and Dundee the rise in irregular marriage came later and did not reach the same height of disorder. In the 1720s in Glasgow Barony there was only a single case, and this couple had had to go to Edinburgh to obtain their marriage.(18) There were half a dozen cases in the 1730s, but the main expansion came later. In Dundee also there were few cases until the 1730s.

Table 2
Decade          Number of irregular           Unconfirmed
              marriages, Barony Parish
1741-50                  34                         1
1751-60                  20                         1
1761-70                  35                         2
1771-80                  75                         6

The expansion of clandestine marriage was based on a new type of provision. In the early days after the Revolution in Edinburgh the men conducting marriages were a group of 'outed' ministers: ten of the marriages in St Cuthbert's in the 1690s were by James Kirk, eight by Patrick Hastie and five by Samuel Mowat. For 1701-20 John Barclay provided 25 for St Cuthbert's and 14 for Trinity College. The other seven Edinburgh parishes probably also provided a reasonable living for these men. Barclay's activity brought him before the St Cuthbert's session in 1705; he was referred to the Baillie "to Censure him according to Law." But he went on providing marriage certificates. In the first decade of the eighteenth century some 25 different celebrants had their names on Edinburgh certificates. Samuel Mowat, or Muet, already familiar to the session, was responsible for 20 marriages. In the next decade the leading name was Gilbert Ramsay with 26 instances, but Samuel Mowat was still at work. These figures come from only two of Edinburgh's nine parishes.

The pattern changed in the 1730s. The leading signer of certificates was then David Strang or Strange, not an episcopal minister but a Presbyterian dismissed from a northern parish for misconduct. He was responsible for 53 marriages in St Cuthbert's alone, and was particularly used by the large number of couples who came to Edinburgh from the country. His specialty was wayward untruthfulness, making his certificates inaccurate and misleading, with dates and other facts falsified, such as the existence of parental consent, even when the couple was prepared to have the truth recorded. In 1735 he was laid under the lesser excommunication, in 1737 under the greater and in 1738 he was imprisoned in the Tolbooth where he died in 1744.(19) Imprisonment had no effect on his output, for couples could visit him in his prison quarters.

However much they complained about the men conducting marriages clandestinely, it was actually useful to kirk sessions to have the activity confined to a particular group of men, because their handwriting could be recognised, and forgery ruled out. When in 1754 a St Cuthbert's couple produced a set of marriage lines signed 'Patrick Douglas' the session considering that they had never seen Marriage Lines of his before refused them as documents.(20) (Douglas's name appeared regularly on certificates after that.)

Recruitment to the activity was needed for by the 1740s the old, episcopal ministers had mostly died off. Their place was supplied mainly by laymen, for since marriage in Scotland was not a sacrament, a minister had not been necessary for validity. David Paterson was a probationer at the Tron Kirk in 1737 when a woman named him as father of her illegitimate child. He denied the accusation, but as he had legally obliged himself to provide for the child his denial did not carry conviction. A few months later he was in trouble again because, after he refused to open his door to suspicious neighbours, the constable broke it down with a hammer and chisel and found a woman in a state of undress. When Paterson appeared before the kirk session he was asked if he had "said to the magistrate that he could not want |i.e. to do without~ a woman? Answered it might be so for he knew it to be the case of some men and it might be his case also perhaps."(21) Not surprisingly, David Paterson was never ordained, but he did well enough in a different career as an irregular marrier. Canongate kirk session complained several times about him, and on 30 August 1742 the constable of the abbey of Holyroodhouse told the session that Paterson had taken a room there "where he continued the practice to marry persons irregularly, and sometimes three or four Coupel in a Day." When things got uncomfortable for him there he simply moved to another Edinburgh parish. In the early 1750s he was in prison but still conducting marriages from there.(22)

In Glasgow a different system of provision was devised. The commonest name in use was John Smith, but one certificate changed this to James Smith and others were signed by 'Mr Smith'. One woman producing the signature John Smith said that "to the best of her knowledge it was Mr How that Married them, for she was since in his shop, and when she look at him thought he was the same person that married them." A few months later another couple "both declared That although the Lines be signed John Smith That the man who married them was James Lorimer Baxter in the Bridge-street Glasgow."(23) Was there a John Smith at all? He may have been a business consortium.

The change from episcopal ministers to laymen reduced the political element in the matter and thus the need for secrecy. It is not clear how, in the earlier period, couples coming from the country knew how to find a man who would marry them. A clue comes from a St Cuthbert's case of 1695. A couple asked 'Mr Robert Locat' (probably Robert Lockhart, outed from Kirkbride in the presbytery of Sanquhar, 1689) to marry them. He was afraid of the ministers of the parish and would not do it, but recommended someone who would and himself acted as a witness.(24) (This was before fines were placed on the witnesses.) It is clear that later couples looking for David Strang had no difficulty in finding his house or, later, the prison. In 1719 the St Cuthbert's session, examining a certificate which James Waterston weaver in West Port had signed as witness recorded that he "is not only an habitual witness to these irregularities, but a chief adviser thereto." This suggests a useful role; doubtless those people who assisted with information were rewarded in some way. Their semi-professional status may have helped couples ordered by the session to produce the witnesses to give evidence.

Scottish kirk sessions appear to have been clear in their minds that promises, however solemn, did not constitute a marriage, nor did proclamations. A good sample of their attitude is to be found in a Glasgow Barony case of December 1763. Mary Forgie asked that the marriage proclamation of James Walker with Janet Kincaid be stopped "alledging that said James Walker was under a solemn promise of marriage to her." When asked to elaborate she declared that he had said to her "That as sure as God was in heaven he would marry her and as sure as ever her father married her mother he would marry her." Walker denied using such words, "But could not say but that he had said to her that he would Marry her." The session's judgment was that the charge laid against Walker by Mary Forgie "was not sufficient to stop his proclamation with Janet Kincaid But thought he ought to be rebuked for his confessed foolish promise to her."

If a promise of marriage was not taken as binding, what if a couple were 'contracted'? This issue was not often raised. In August 1676 in Old Machar a man who was contracted in marriage and "resiled from his purpose" was fined 10 pounds "for his Mocking of the kirk." In Dundee in the 1680s marriage proclamations were stopped after a report that the man in question had spent some nights alone with the woman in her house. The session invoked an Act of the General Assembly forbidding all persons contracted to cohabit "during the space betwixt their Contract & marriage."(25)

In November 1761, also in Dundee, John Cooper and Isobell Kyd had been contracted and then proclaimed three times, but Cooper had then gone to Edinburgh to live, leaving behind Isobell Kyd who bore his child. She declared

that she had been with another Child to him before this, with which she had parted |miscarried~--Owned that John Cooper had not made her a promise of Marriage before Guilt but that their correspondence before it had been such a Nature as made her expect he would marry her--Insisted that she considered herself now as virtually married to him, after being contracted and proclaimed--and that she counted it unlawful for her to marry any other Man, or for him to take another wife.

Cooper then appeared. He admitted much of what she said, and

that he consented to the proclamation of their Banns of Marriage but does not think himself virtually married to Isobell Kyd Being interrogated, if he had any solid Objection against marrying her, he answered--He could not lead his Life with her and be happy.

The session decided to "allow him some time to consider what he ought in duty to do."

In all of the above disputes the point at issue was not that a formal marriage in church had failed to take place, for none of the clandestine marriages which the church did accept fell into that category; the point was that the man and woman did not agree that they were married. The difficulty with irregular marriages was that because they were so informal it was all too easy for one partner to claim to be married and the other to deny the marriage. These denials constituted some of the trickiest cases to come before kirk sessions.

Catharin Carnock made matters particularly difficult for St Cuthbert's kirk session by saying on 27 April 1738 that though she cohabited with William Knox she was not married to him, then on 25 May saying that she was married to him. The session were exasperated with her, "she having contradicted every word she Last Uttered before the Session." They referred the case to the higher ecclesiastical court, the presbytery, and the latter found it proven by two witnesses that he had "own'd himself as husband of the said Kathrn" and also that he had signed himself as her husband. They were therefore considered to be married, but on 26 October Knox refused to dwell with her on the grounds that he was not married to her. He was told in no uncertain terms that "if he offer'd to marry another he wou'd be censur'd as an adulterer."

In Glasgow Barony on 22 September 1769 Elizabeth Nicolson claimed that she was married to Hendrie McIndoe who had fathered her child. She produced witnesses who declared having heard McIndoe call her his wife in their presence. As he had bedded with her the session had no doubts that the couple were "to be considered as Husband and Wife." McIndoe protested against this and appealed to the presbytery: the presbytery upheld the Sessions's judgment. The 1770s produced a spate of such cases in this parish, and as the session was an exceedingly conscientious one, much detail emerges.

On 16 December 1772 Janet Sym declared that she and James Smith were married and "were publickly Bedded at the fair of Glasgow." Smith denied both the marriage and the bedding. Witnesses were called. A friend deponed

That James Smith told him that he the said James Smith and Janet Sym went to Glasgow together in order to be privitly married and when they came to Glasgow the person who was to marrie them was Drunk and they made up some sort of Lines of their own but Janet Sym Refused to take them and afterwards he the said James Smith tore them in her presence.

The deponent's wife said the same, but Janet's stepmother deponed that on the Wednesday night before the fair of Glasgow they came to the house and

the said James Smith took Janet Sym by the hand and said that he was her Lawful husband and asked her if she would acknowledge herself to be his wife and she said that she did acknowledge him to be her husband after that they drunk half a Mutchken of Punch and after the punch was drunk the said James Smith and Janet Sym went to Bed and the Deponent along with James Govan & Agnes Sym went and drunk to them as husband and wife when they were both in Bed.

Furthermore, Agnes Sym, Janet's sister, and James Govan, her brother-in-law, declared that Smith "took Janet Sym by the hand and said I own you for my wife before your sister and good brother." The session were unanimously of opinion that they were 'Married persons'. Smith objected and on 27 January 1773 "refused to adhear to Janet Sym as his Married Wife." That was, of course, the catch. A church court could confer respectability on a woman by judging her married, but it could not force a man to behave as a husband.

And sessions did not always uphold women's claims to be married. On 13 November 1774 Ann Ritchie came to Glasgow Barony session to try and stop James Winning's proclamation of marriage with another woman, claiming she had married him herself about three years ago. The chief witness was George Crichton, a collier, who deponed that on the day in question he and his wife had been invited by Ann Ritchie and James Winning as they planned to marry, and that they had gone to get a man in the Gorbals to celebrate the marriage.

Depones further that after the deponent and the aforesaid man came to James Winning's house they Danced Several Reels and Drunk Several Drambs and a considerable Quantity of punch by which means he became considerably headed with Liquer that before they parted he heard the aforsaid man who had been brought into the company make some kind of Speech mentioning the fear of God in it but does not Remember any other word spoken by him.

Neither did he remember them joining hands, however he declared that "it was his Opinion that what passed at that time was a Marriage betwixt the parties...and that he believed it was considered as such by the parties themselves." But neither he nor any other witness saw them in bed together, and the session concluded that "there was not sufficient proof of any Marriage betwixt them." Winning was therefore allowed to go on with his marriage proclamations with the other woman.

In two other cases the session did not feel competent to decide. On 31 January 1776 Grizel Bryce alleged an irregular marriage with James Gibb and even produced marriage lines. Gibb admitted that "these lines were written and signed in his presence and that he understood these lines as intended to make a marriage but he now refuses to adhere to that Marriage." The session referred the case to the presbytery who referred it back to the session with a recommendation to get further evidence. Grizel Bryce was asked (on 27 March) if she could produce any witnesses, and she named John Leckie, innkeeper, in whose house she said the marriage had taken place, and another man who she said had written some letters on behalf on Gibb in which he addressed her as his wife.

Leckie deponed that though he did not witness the marriage he was told by Gibb that evening in his house that they had been married. Furthermore, Leckie's wife declared that some time after that she had seen them together and Gibb had commented that Grizel "will hardly believe that she is Married yet," And her other witness declared that Gibb had asked him to write to Grizel Bryce "in the character of his Loving Wife." It appears self-evident that they were a married couple, but the session chose to refer the matter back to the presbytery.

In one final case, on 25 November 1778, it was the man, John Somervail, who claimed a marriage, and the woman, Agnes Moffat, who denied it. Somervail produced a declaration of marriage supposedly signed by them both. Agnes Moffat acknowledged that some weeks ago she had met with Somervail and gone to a house where there were two men, strangers to her, and a third man in a gown came in and "officiated as a minister to marry John Somervail & her that she saw no lines written nor ever subscribed any declaring her marriage that at that time she had no intention of marrying John Somervail, & is determined never to live with him as his wife." She insisted that she was never bedded with him and declared she could not write. The session decided that they were "not the proper court to take cognizance of this matter" and left it to either of the parties to bring the case to the commissar "who is the proper judge in such questions." This was the only instance which we found of a kirk session referring a marriage question to a civil authority. Cases of this sort give some indication of the difficulties caused by the informality of clandestine marriages, which helps to explain the Church's hostility to the practice.

How did sessions find out that individuals in their parish had been clandestinely married? In Trinity College parish from 1701-10 the records make it clear that couples were cited because they were cohabiting and the session wanted proof that they were married. But there is no way of knowing if this was so in other parishes and periods. One might suppose that the couples came forward voluntarily, but whenever this did happen it was always recorded, and it was comparatively rare. The other extreme--couples repeatedly ignoring sessions' citations and being reported to presbyteries for 'contumacy'--was far more common than voluntary appearances.

The church had its espionage system. Elders were supposed to know who was in their bounds and what was happening there. Ministers would write in from other parishes with enquiries about missing couples who might have fled to a city to escape investigation at home. An examination of the cases where the date on a marriage certificate was recorded by the session clerk gives a view of the speed with which a parish responded to the presence of an unregistered couple.

TABULAR DATA OMITTED

It is clear from the table that there was always a sizeable number of couples living together for a considerable time before a city session realised it (or, alternatively, did anything about it). The deterioration in the church's control of its parishioners may be seen from a comparison of the total percentages at either end of the spectrum. Between 1711 and 1720, out of a total of 87 couples irregularly married in St Cuthbert's 43% were cited less than one month after marrying, while only 6% had been married for more than 9 months. By the 1740s, out of a total of 94, only 15% were caught within a month and 34% had been married for longer than 9 months. Clearly the church's grip on the situation was slipping. It was to go completely in Edinburgh but Glasgow Barony continued to struggle and its records provide a collection of definitions of what was and what was not accepted as marriage.

Cohabitation alone was not enough to prove marriage. There is a particularly interesting example of this in the case of William Shaw. Shaw, an invalid soldier, was called before Canongate session because he had recorded his name for marriage proclamations and the session heard he had another wife alive. He admitted that he had cohabited with another woman, Margaret Baillie, for four or five years and that she bore a child to him but said he had not been married to her. His fellow soldiers were called as witnesses and corroborated this. One of them had signed as witness to Margaret Baillie's subsequent marriage to another soldier and said that he had "never looked upon Baillie to be married to Shaw or else he would have been far from doing it." Another soldier declared that Shaw had cohabited with her and

That the Declarant alwise looked upon her to be his Whore and not his wife, but owns that the said Baillie during that time, bore Shaw's Name as his Wife to screen her from being drummed out of the Regement as a Whore, and that the said Baillie ownd to the Declarant that she was never married to Shaw.

The session censured Shaw for fornication, accepting that he had not been married.

If cohabitation was not sufficient to make a marriage valid, nor was a marriage certificate on its own, as forged certificates were far from uncommon. Sessions were extra vigilant with regard to any pregnant woman who claimed to have an absent husband. If she could produce a certificate signed by a known hand, plus witnesses to the marriage, then that was accepted. But in Trinity College parish in April 1717 when Mary Anderson produced a certificate signed by the minister at Dumbarton the session inspected it; finding that "the stile thereof is singular & very unusual" its authenticity was doubted. The minister wrote to Dumbarton. The minister there replied that he had never married Mary Anderson to anyone, and the "whole of the said Certificate is a forgery, and every sentence of it a falsehood in fact."

In the 1740s Barony session was very keen on witnesses. When William Lindsay and Jean Buchanan (April 1746) said they could not bring the witnesses to their marriage because "they knew none of the Persons that were present at it," the session decided that "they could not sustain the marriage." (The witnesses were eventually tracked down and were produced in November.) In October 1747 Barbara Carss and James Moffat declared that the only surviving witness to their marriage was in "a dying Condition." The session took the matter seriously enough to send some elders to call on him; the elders subsequently reported that the dying man "solemnly declared to them that he was present at the Marriage betwixt the said parties." However even in this decade the session did sometimes accept marriages when witnesses could not be produced as long as the couple promised to adhere to one another. In February 1704 when St Cuthbert's sessions asked the presbytery's advice about an irregular marriage which had been witnessed only by one woman the presbytery responded that "seeing they had only one witness to their marriage, they should be called before the session, and be enquired if they be content to live a married life peaceablie together which if they consent to, they |the presbytery~ advyse that the session proceed no further in it." The same session dealt with a case in May 1749 of a couple who said they had lost their marriage lines, and that one witness was dead and they did not know where the other one was. The session "considering that there was no manner of proof of this their alleged Marriage" referred them to the presbytery. The presbytery's response was that as they had acknowledged themselves married persons before the session they should be censured as irregularly married.

By the late 1750s Glasgow Barony session was no longer interested in witnesses to the marriage ceremony but demanded witnesses who had heard the couple publicly acknowledge themselves married persons; the marriage was considered to date from then, no matter what date a marriage certificate bore. The session's attitude toward marriage certificates in the 1760s is clear from the reiterated statement that various couples "produced the ordinary sham lines." But the session by that decade accepted that there was no real need for someone to officiate over a marriage. In May 1764 a couple declared that "they were married by no administrator But had mutually betwixt themselves two plighted their faith to adhere to each other as husband and wife & had both subscribed the same with their hands ... and had consummate the whole by bedding together." They produced the paper which they had signed, and after some consideration the session accepted the marriage as valid. Two other couples (in March 1767 and May 1768) also said that no one had married them, but they had had witnesses to their bedding. Those marriages were also accepted. However, when Robert Thomson was accused of antenuptial fornication (premarital sex) because a child was born too soon after the marriage he said

that he and his wife had plighted their faith solemnly betwixt themselves two to live together as husband and wife several Months before their Marriage And for that reason plead to have it construed only irregular Marriage. He being removed and the session taking his plea into their serious consideration they were of opinion that no regard ought to be had thereto. As he had never before signified any such thing to any body, and also, tho' conscious to himself that he had his wife with Child a long time before their marriage Yet, after all, he took the regular way of proclamation & Marriage which openly confutes his present pretension.

The creation of questionable ceremonies meant new problems of definition for the sessions. It also indicates that couples were adapting marriage to fit their own ideas. Official and popular ideas might clash. In April 1745 Barony session heard of "a very disorderly practice" that had taken place one night, and cited the persons concerned and the witnesses. It was said that James Clydesdale and Elizabeth Davie had been declared married persons by James Meiklejohn in the presence of witnesses. Elizabeth Davie denied the marriage. She said that she had happened to be in the house in question one night when Meiklejohn had declared that he would marry them.

Whereupon the Declarant was desired to give her hand to the said Clydsdale by James Craig and others in the company which she refused to do, and that William Scott Taylor forcibly put her hand into Clydsdale's. But that she made no promise to marry the said Clydsdale, and had not the smallest intention to be married to him at that Time; Declares that James Meiklejohn said he knew not what words to pronounce. But at the last said Ye are married persons; Declares further that the said Meiklejohn threw the covering of the Bed over them while they were still sitting together in Token of their being Bedded.

The couple in whose house this happened confirmed what she said and declared that the whole thing "was purely done in jest, and flowed from the greatest part of the company being the worse of drink." Meiklejohn expressed contrition and was "sharply rebuked for his Drunkenness and what happened in the consequence of it, and told if ever he was found in such a practice again he would be prosecute with the outmost rigour of law." This may seem to be a session overreacting, but in a case in the same parish in January 1765 a man tried to stop a woman's marriage to someone else on the basis of a similar kind of 'ceremony' three years earlier. Once again the session judged that no marriage had taken place.

In the 1770s when a couple could not produce witnesses or any other proof of their marriage, the session had them sign a declaration of their being married persons. (When one or both of the parties could not write, the moderator read the declaration to them and signed on their behalf.) The session then retained the document and recorded the marriage as from that date. This seems an admirable way of dealing with clandestine marriages (though one which could only be carried out by a session still in control of a parish) for it would have been difficult for any would-be bigamist to claim that he or she was not really married when there was written proof. Yet it also accepted that the only essential thing to a marriage was the consent of both parties.

The story of clandestine marriage in Scotland differs from that in England. Couples were not forced to adopt simple cohabitation, or if they did take this line they were given the opportunity to have their relationship recognised as marriage. The cities seem to have provided enough practitioners of marriage to serve not only the local potential market, but also that of the rural hinterland. The remark of the minister of Whitburn, West Lothian, in the Statistical Account of Scotland that the 'great proportion' of marriages there 'is irregular' can be taken as evidence of this.(27) Irregular marriage met the demand of those who, for whatever sound or frivolous reasons, did not choose to go through the regular process.

Yet the Church had managed to insert some protection against desertion or bigamy into it. The practice of presbyteries had spread to the parish sessions. The creation of the marriage in the meeting of the session removed doubts to the status of the couple. It meant that the session, in attempting to control and discourage clandestine marriage could do so only by using the same process itself. In one sense the Church was still in control, but this was achieved only by accepting the strength of the desire of couples to do things in their own way.

ENDNOTES

1. Chapters 3 and 4 of our book, Sexuality and Social Control--Scotland 1660-1780 (Oxford, 1989) deal with the subject of regular and irregular marriage. However, that material came only from rural kirk session registers, and we subsequently received generous funding from the ESRC to examine urban kirk session registers. As most clandestine marriages took place in the cities these records have given us so much more insight into the subject we felt that a new look at the subject was imperative.

2. John R Gillis, For Better, for Worse: British Marriages, 1600 to the Present (Oxford, 1985), parts I and II.

3. Canongate, now part of Edinburgh, has its register surviving for 6 years of the 1660s, and Trinity College (North-East Edinburgh) has full registers for the 1660s and 1670s. Registers for these decades also exist for Aberdeen St Nicholas (New Aberdeen) and, for 6 years for Aberdeen Old Machar (Old Aberdeen). The Edinburgh Registers are in the Scottish Record Office, the SRO. At the time of writing the register for St Nicholas is also in the SRO Archive but Old Machar is in Aberdeen. Time has not yet enabled us to examine the Aberdeen records for the eighteenth century.

4. Acts of the Parliaments of Scotland VII 231 (1661) and X 149b (1698). This information was summarised In Dundee kirk session register (Dundee Archive and Record Centre) in March 1753. The General Assembly was at that time making a determined (albeit unsuccessful) effort to stop the practice and therefore requested that an abstract of the laws prohibiting it be intimated to every congregation, 'that non may pretend Ignorance'.

5. e. g., The Register of the Privy Council of Scotland V (1676-8), pp. 398-400.

6. Edinburgh Evening Courant 28 October 1758.

7. Mitchison and Leneman, Sexuality and Social Control, p. 128

8. St Cuthbert's, otherwise the West Kirk, was the suburban parish which wrapped round the city of Edinburgh. Its session register from the 1680s is in the SRO.

9. See, for example, Trinity College 13 September 1706, St Cuthbert's 25 March 1731, and Canongate August 1749.

10. An Act of Parliament of 1601 forbade marriage by an adulterer to the person he was guilty with, and the session's main concern in this case was that Alexander Mylne and Sara Dolphin continued cohabiting.

11. Mitchison and Leneman, Sexuality and Social Control, 123-4.

12. McMillane fled the parish, but a year later he was back with Alison Duncan, and in spite of all the session's efforts, continued to live with her until her death in 1732. Canongate kirk session register 8 September 1726, 8 and 15 January 1727, various subsequent dates and 14 March 1732.

13. Ibid. 5, 12, 19, 20 October 1736, 1 and 8 February and 5 July 1737. Cuming said he was sorry and submitted to church discipline on 23 January 1738, but his second 'wife' never did and was therefore excommunicated.

14. Ibid. 10, 27, 29 June, 6 and 9 July 1731.

15. St Cuthbert's kirk session register 18 July and 27 September 1765.

16. Mitchison and Leneman, Sexuality and Social Control, p. 130.

17. See St Cuthbert's kirk session register 18 June and 19 October 1752 and Dundee kirk session register 10 November 1754.

18. Barony was the suburban parish of Glasgow and its session register from the 1680s, a remarkably full record, is in the Strathclyde Regional Archive in Glasgow's Mitchell Library.

19. St Cuthbert's kirk session register 17 July 1735, 6 January 1737 and 5 October 1738. Hew Scott, Fasti Ecclesiae Scotticanae VI (Edinburgh, 1926) p. 122, Parish of Cabrach and Strathdeveron.

20. St Cuthbert's Kirk Session Register, 17 August 1754.

21. Ibid, 1 May, 13 and 14 October 1737.

22. Ibid, 17 August 1754.

23. Glasgow Barony kirk session register, 23 September and 30 December 1747.

24. St Cuthbert's kirk session register, 26 December 1695 and 12 January 1696.

25. Dundee kirk session register 21 December 1685, 4 and 18 January 1686. The session found no proof that the couple had had carnal dealing but nevertheless found them in breach of the General Assembly's Act, and made them promise "that until they are married they should not sleep under one roof together."

26. These include a few cases in which the date on marriage certificate is later than the date of the session meeting. Kirk session registers were usually written up after the meeting, sometimes considerably later, from notes made at the time; the assumption in such cases must be that a couple's appearance was inserted into an earlier meeting than the one at which they actually appeared. In any case the couple had clearly been discovered early.

27. The Statistical Account of Scotland XVI (Edinburgh, 1796), p. 300.