Clandestine marriage 1758

[jennyblain]

One marriage I found in Newbattle (Midlothian) is described as 'clandestine' rather than irregular. This is the marriage of Mary Carse (or Cars or Cass) and Robert Douglas, in 1758.

In 1757 these two had a child, baptised Robert Douglas, in Cockpen. The father was evidently present and indeed seems to have signed his name on the register (in a wrong place, after another birth) and there is a crossed out start to a record, in the same hand which is very different to that of the clerk. The 'right' entry is written just below by the clerk, saying 'Robert natural son to Robert Douglas and Mary Cass'.

The next entry involving this couple is in the Newbattle marriage register for 1st March 1759, reading 'Robert Douglas and Mary Carse owning that they were clandestinely married 11th May 1758 were by this Sess. declared married Person and paid the Church Dues'. A second child Francis Douglas was baptised in Newbattle 'before the Session' on 15th April 1759, but no birth date is given for this child.

I am interested in the use of the term 'clandestine' rather than irregular. Has anybody else come across this? It may simply be the session's preferred word in place of irregular, or might mean something else, a hidden or secret marriage.
I had some hopes to find something in Cockpen kirk session minutes for 1757, but alas from the NAS catalogue there doesn't seem to be a volume covering that date.
The couple had several later children born in Lasswade, Carrington and Crichton parishes, David, Agnes, Shealto and Jean.

Jenny

[Russell]

Hi Jenny

I like the sound of them They eloped to somewhere like Edinburgh whether her Dad didn't approve of the marriage or for some other reason. Owned up before the Kirk Session but had the foresight to arrive with a note of hand which declared their marriage. A declaration before witnesses constituted a legal marriage and they may have visited a Seceding minister, or an Episcopalian minister just to formalise the arrangement although there was a brisk trade ongoing in Edinburgh at the time in marriage ceremonies by a whole variety of entrepreneurs. A bit like Gretna Green but for the local Scots. Quite a few from the Fife fishing villages crossed by ferry to get married but not all of them had any documentary evidence of the promises made.
If their parents were staunch parish leaders and the marriage took place without their knowledge and approval then the use of 'clandestine' may have been applied in a censorious way by the Session Clerk to show that he too disapproved. there was no prescribed way of writing up Parish records so personal interpretations and comments creep in from time to time. and place to place. Makes reading them even more interesting.

Russell

[Falkyrn]

A Clandestine Marriage was a criminal offence which carried a hefty penalty.
The Law Books of the period describe it as
1) a marriage conducted by a layman assuming the character of a clergyman or
2) a marriage conducted by a clergyman without banns or certificate of notice

[jennyblain]

OK - it would seem in Scotland to be a term used for irregular marriage, so that bit is resolved. There's a very interesting article online at http://findarticles.com/p/articles/mi_m ... ntent;col1 on 'Clandestine Marriage in Scottish Cities 1660-1780' which covers many points.

Jenny

[Falkyrn]

OK - it would seem in Scotland to be a term used for irregular marriage, so that bit is resolved. There's a very interesting article online at http://findarticles.com/p/articles/mi_m ... ntent;col1 on 'Clandestine Marriage in Scottish Cities 1660-1780' which covers many points.

Jenny

Sorry but it wasn't, Clandestine Marriages and irregular marriages were very different under Scots Law and contrary to that article you have quoted the terms were not synonymous. The legal definition of a Clandestine Marriage is in my previous post and carried hefty penalties for all involved - generally a 100 merks fine but a clergyman who performed such marriages in the early 1800's was sentenced to 3 months imprisonment and banished from Scotland for life. The confusion may have arisen because legally convicition of the crime could be used as evidence that the marriage existed and thus making it a form of irregular marriage, but equally it could also be used to give either bride or groom an escape route by having the marriage set aside.

The definition of an irregular marriage varied over time - at one time it meant any marriage outwith the established Church but by the mid 1830's as other clergy were allowed to perform marriages the term irregular marriage came to be generally accepted as those marriages performed without benefit of clergy (ie non religious marriages). Such marriages did not carry a legal penalty but the Kirk Session took a pretty dim view of it and would call them to account for themselves.

Information from "A Handbook of Husband & Wife according to the Law of Scotland" by Frederick Walton BA Oxon, LLB Edin, Advocate published in 1893

[jennyblain]

Hi Falkyrn,
That is very interesting!
Certainly in the mid 17th century there were quite stringent regulations and the 1661 act gave a list of different fines to be paid by different classes of people. This was modified under William to include penalities for the celebrants, and penalties for the couple for withholding the name of a person celebrating a clandestine or irregular marriage (1695 and 1698 acts).

(The two terms do seem to have been used synonymously, at least during the 18th century which is what I'm looking at currently, though I suppose 'irregular' may have covered a wider remit. I'm well prepared to accept that by the late 19th the legal meanings of the terms had separated.)

However, there does seem doubt as to what extent the provisions of the 1698 act were actually used. It's a very interesting situation and part of the tensions between presbyterianism and episcopalianism - look at when the first act (1661) was brought in. That first act, too, gave half of the fines to the crown.

In practice, the kirk sessions in the 18th century seem to have dealt with the situation, by rebuke, exhortation to the couple to be good married persons, and having them pay 'church dues'. I've mostly seen these referred to in KS minutes as 'irregular' or in the case of some in Wigtownshire (late 18th and early 19th centuries) 'No marriage according to the Rules of the Church of Scotland', with the concern being to 'regularise' the situation so that children could be baptised. There was concern whether the 'certificate' apparently issued by an officiant or witness was true or a forgery, and about the date of the marriage in case there had been fornication.

Various people in England kept trying to change the law because after the Hardwicke act they had a problem with people crossing the border to marry, this was resisted by Scots in parliament and by the kirk, and eventually resolved by residency rules...

Thanks for your interest in this.
Jenny

[jennyblain]

Just to add - in the particular case I mentioned (the first I've seen using the term 'clandestine') there is the situation that they had already had a child, before the marriage. I'd love to know the story and that's why am disappointed that the KS minutes from Cockpen, where the first child was baptised, have a large gap, restarting in 1759. So near and so far!

Jenny

[Falkyrn]

So near yet so far ......... frustrating isn't it

The definition of a Clandestine Marriage quoted is from the original statutes of the Scottish Parliament and much older than the book quoting them. (one book refers to it as a Common Law definition).

Certainly in the general sense a Clandestine Marriage was a form of irregular marriage but differing from the generally accepted forms in that it carried criminal penalties which could be dealt with away from the Church Courts. As you have said, the early Statutes listed differing levels of fines (in Scots Merks) for the Celebrator the participants and any witnesses.
One of the problems with early Kirk Session Records is that the terminology used depends very much on the individuals concerned - I have seen some records where the attitude was almost forgiving and showed a level of toleration I had not expected while in others the hellfire and brimstone almost leapt out of the pages. (my lot tended to favour that kind of preacher)

The fractious nature of the Church of Scotland did not help the situation and while referred to as the "Established" Church this status differs markedly from the way in which the Anglican Church is the Established Church of England.

[jennyblain]

Indeed, I've several examples that show the great range of tolerance or otherwise! Some key things here seem to be not only the disposition of the session members but the social class and/or previously known behaviour of the participants. And if there was a hint of pre-marital 'fornication' there were often the penalties, early on, of appearing before the congregation three times to profess repentance.

But, once done is done, and I've an example from Fife of a young man who - both he and his wife having 'repented' - was a very few years later invited to become an elder, and shortly after that the representative to the synod. So there's an understanding of youth there.

However, on the terminology, yes, different clerks used what they would (as already said), but the act of 1698 is against 'clandestine or irregular marriage' and the wording is such as to imply that they are not, at that time, different things - as the act 'statutes and ordains that the parties clandestinely and irregularly married contrary to the said act of 1661 declare when required the names and designations of the minister or person who celebrated the said clandestine or irregular marriages, and of such as were witnesses to these marriages...'

But as previously said, there seems scanty evidence of this act being applied. And as the marriages - however conducted - were legal as long as they were undertaken with mutual consent and with the parties being legally able to marry, the usual means of dealing with them seems to have been that of the Kirk Session in determining these grounds, and not involving the state.

So it seems that my 'clandestine' marriage in Newbattle means about the same as the 'irregular' East Lothian one I referred to in another thread - with only the exception that the 'irregular' one in this case gave the name of either a witness or (probably) a celebrant.

But 'near and yet far' is an occupational hazard of doing genealogical work - though always frustrating when it occurs, as here. What I'd hoped for was a wee bit of info on the family of either Mary Carse or Robert Douglas, but it doesn't seem likely to be forthcoming given the lack of KS minutes. And no 'family' birth witnesses that I've found yet either.

Best regards,
Jenny

[johnniegarve]

Interestingly one of the weans was called Sholto, a Douglas name, is this James off the Gentry?