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Women, Marriage and Property in Wealthy Landed Families in Ireland, 1750-1850$

Deborah Wilson

Print publication date: 2009

Print ISBN-13: 9780719077982

Published to Manchester Scholarship Online: July 2012

DOI: 10.7228/manchester/9780719077982.001.0001

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Women, marriage and statute law in Ireland

Women, marriage and statute law in Ireland

Chapter:
(p.19) 1 Women, marriage and statute law in Ireland
Source:
Women, Marriage and Property in Wealthy Landed Families in Ireland, 1750-1850
Author(s):

Deborah Wilson

Publisher:
Manchester University Press
DOI:10.7228/manchester/9780719077982.003.0002

Abstract and Keywords

Clandestine marriages presented a problem for the Irish elite, and, in a bid to protect their property interests, this led the Irish parliament to introduce statutory measures to intervene in the previously private act of marriage. This chapter explores this unprecedented intervention in the marriage contract, which declared some marriages legally invalid, within the context of the development of statute law on marriage in the seventeenth century in Ireland. The problems of coverture, from the perspective of the Irish political elite, were the impact it had on the protection of protestant property interests. This is illustrated by the problem of the abduction of heiresses in Ireland. In the history of abduction, women feature as victims of their gender and legal status. The reputations, and sometimes the lives, of propertied women were endangered by the opportunism of socially and economically marginalised lower gentry, who regarded abduction, although illegal and often violent, as ‘strategies through which property could be gained’.

Keywords:   clandestine marriages, statute law, Irish elite, marriage contract, Irish parliament

In 1753 the ‘act for the better preventing of clandestine marriages’, otherwise known as ‘Hardwicke's Marriage Act’, passed into law in England. The Act reinforced paternal authority over children by introducing the necessity for parental consent for the marriage of minors, under twenty-one. It also undermined the previously private nature of marriage by making the publication of marriage banns compulsory. It was the first major state involvement in the regulation of the marriage contract, and was ‘one of the most controversial and divisive measures’ of eighteenth-century legislative history.1 The regulation of the marriage contract in Ireland, however, predated ‘Hardwicke's Marriage Act’ by eighteen years, in a process of piecemeal regulation that had begun over a hundred years earlier in 1634, with no comparable debate. The reasons for the divergence in the otherwise similar English and Irish legal systems on the issue of marriage were the particular political situation in Ireland and the dominance of the Irish parliament by the interests of the protestant propertied elite. The regulation of marriage by statute law seems to contradict the basic assumption of liberal political theory that the family, as a ‘natural’ unit, was outside the scope of the law.2 The reinforcement of paternal authority in the family also questions the assumption, by historians, of a trend towards ‘affective individualism’ and the ‘egalitarian family’ in landowning families.3 If, as Lemmings argues, the passing of ‘Hardwicke's Marriage Act’ in England demonstrated that majority opinion in parliament favoured the patriarchal family, a similar patriarchal political elite was already in place in Ireland.4

English common law was established in Ireland by the sixteenth century in a process which culminated in Henry VIII declaring himself King of Ireland in 1541.5 English marriage law reflected ‘deeply held views on the role of women in society’.6 Women's experience of property was determined to a large extent by the common law doctrine of coverture, by which the legal identity of a wife was ‘literally covered’ by that of her husband and her property passed into her husband's (p.20) possession.7 Married women were unable to acquire property or enter into contracts. The legal position of married women was described by one early eighteenth-century pamphleteer as ‘lower than captivity itself’.8 ‘It was not the fact of being female’, as Lee Holcombe notes, ‘but the status of wife that entailed severe legal disabilities’.9 Only upon the death of her husband did a widow regain her legal identity and become entitled to dower from her husband's estate until her death.

The legal disabilities of married women were mitigated by the existence of equity, which had developed to counteract perceived abuses of the common law system. The practice of arranging a separate estate for a woman during coverture for her own use, free from the control of her husband, developed through the use of equity in the Court of Chancery in the sixteenth century. The remit of equity was ‘limited and peculiar’. It applied only to individual petitioners to the court and, although by granting property rights to women it effectively overruled coverture, it therefore did not challenge the general position of women in common law.10 However, it offered relief from the legal disabilities inherent in coverture and was widely used by women in England and Ireland.11

The validity of marriage was initially within the jurisdiction of the Church. The Church assumed jurisdiction over marital matters from the fifth century, and a code of marriage developed as part of canon law in the twelfth and thirteenth centuries. Canon law regarded marriage as a sacrament and was concerned with the regulation of the person rather than property and therefore regarded marriage as essentially a private contract. Church thinking was based on the belief that verbal consent, freely given, should be the basis of the marriage contract. There was no need for ecclesiastical ceremony, parental consent or consummation of the union. The consent was to be given in the present tense, per verba de presenti, if the marriage was to be binding. If it was given in the future tense, per verba de futuro, it was considered to be only a promise to marry, or a pre-contract, which could be made indissoluble by a vow to marry made in the present tense, or by consummation. Marriage differed only from other contracts in that it was indissoluble. Both consent to marriage given in the present tense and pre-contract to marriage were considered binding by law.12 A pre-contract to marry could therefore legally override a later agreement to marry given in the present tense.

The basis of a valid marriage was therefore consent, freely given. Minors under seven years old were excluded, as was marriage between close relations. The fourth Lateran Council in 1215 forbade marriage within the fourth degree of consanguinity and first degree of affinity. Bigamy was also disallowed, and the indissolubility of the marriage contract rendered a marriage void if one of the parties had contracted an (p.21) earlier union.13 In an attempt to regulate marriage by bringing known impediments to light, the Council also made the publication of banns a general requirement in a church marriage. However, the private nature of the marriage contract made regulation difficult, and marriages that did not adhere to church regulations, referred to as clandestine marriages, could be considered good in law, unless a case was taken to an ecclesiastical court to prove otherwise.14

In 1563 the Roman Catholic Church at the Council of Trent issued the Tamesti decree, which stated that, in addition to the publication of banns, the presence of the bishop of the diocese, or the parish priest, or another appointed priest was essential to validate a marriage. Two witnesses should also be present, and the marriage should be preceded by the publication of banns, except in cases where a licence had been acquired from the bishop.15 From this date, marriages conducted without the presence of a priest and publication of banns were regarded as clandestine and subject to ecclesiastical censure. The Council of Trent had no bearing on English law, although the Catholic Church in Ireland accepted the Tamesti decree and the Convocation of the Province of Canterbury adopted the resolutions concerning the marriage ceremony in 1603.16

Post-Reformation ecclesiastical law was based on pre-Reformation canon law and jurisdiction over matrimonial matters remained with the ecclesiastical courts. Ecclesiastical law became the law of England in 1559, in a statute that was extended to Ireland in 1560.17 The canon law on marriage was left in place in so far as it did not conflict with the law of the realm, and was subject to limitation and change by existing common law and statute. Verbal consent freely given therefore continued to form the basis of a legally binding marriage. Ecclesiastical solemnisation, although promoted by the Church, was not essential for a valid marriage.18

Early modifications of the marriage code in England focused on the jurisdiction of Rome in matrimonial matters and pre-contract as an impediment to a legal marriage.19 Papal jurisdiction over matrimonial matters was overruled by statute in the 1537 ‘act of succession of the King and Queen Anne’20 and in the 1542 ‘act for marriages’, which noted that the ‘usurped power of the bishop of Rome hath always entangled and troubled the mere jurisdiction and legal power of this realm of England … by making lawful which by God's word is lawful both in marriages and other things’. The Act overruled canon law on precontract as an impediment to marriage by stating that from 1 July 1540, marriages not within prohibited degrees, solemnised by the Church of Ireland and consummated were ‘lawful, good and indissoluble, notwith-standing any precontract … not consummated with bodily knowledge (p.22) … [a]nd not withstanding any dispensation, prescription, law or other thing granted or confirmed by act or otherwise’.21

In Ireland, according to common law as modified by statute, only marriages that took place in the Church of Ireland were considered valid by law. The development of the Church of Ireland mirrored that of the Church of England, as Henry VIII declared himself head of both churches and ecclesiastical law came under the control of the monarch.22 Uniformity of sacrament and worship with the Book of Common Prayer was established by statute in 1560 and again in 1665.23 In 1665, after the English civil war, an ‘act for the confirmation of marriages’ declared that all marriages solemnised in Ireland since May 1642 were legitimate ‘as if such marriages had been solemnised according to the rites and ceremonies established or used in the Church of Ireland’.24 This was followed in the same year by the ‘act for uniformity of public prayers and administration of sacraments’, which established that the Church of Ireland should ‘hold the same conformity of common prayers and administration of the sacraments, and other rites and ceremonies of the church, according to the use of the Church of England’.25

As well as ruling on the validity of marriages, ecclesiastical courts in Ireland, as in England, granted marriage licences and heard cases for the restitution of conjugal rights and separations or annulments. Jurisdiction on marriage was vested in the Archbishop of Armagh and the Prerogative Court, which also ruled on testamentary matters.26 During the Commonwealth period, jurisdiction over all testamentary cases was taken over by appointed commissioners. On the Restoration, jurisdiction was returned to the court in Armagh, which continued to administer marriage licences until the disestablishment of the Church of Ireland and the creation of the Court for Matrimonial Causes and Matters in 1871.27

The difficulty for the Church of Ireland was that, statistically, it could not claim to represent the population of Ireland. It has been estimated that catholics made up between three-quarters and four-fifths of the population in the first half of the eighteenth century.28 Catholic marriage was subject to regulation by the Catholic Church, indicating that Church of Ireland jurisdiction over marriage was at best partial, despite the 1666 Act of Uniformity. Non-conforming protestants also represented a problem for the Church. Of the 300,000 protestants in Restoration Ireland, 100,000 were Scots Presbyterian, and of the remainder only half belonged to the established Church.29

Ultimately, however, ecclesiastical jurisdiction over marriage was undermined and eventually eroded by the superiority of common law and statute. If we accept Martin Ingram's argument that that the decline of church courts after the Restoration in England was due to the ‘growth (p.23) of presbyterian and sectarian congregations during the civil war and interregnum, and the relatively narrow basis on which the Anglican Church was re-established in 1660–3’, then the decline of spiritual jurisdiction in England can be attributed to its diminishing relevance to society.30 Although ecclesiastical law had the full force of law, the principles of church law applied only to the individual and carried no sanction except excommunication, which could be effective only as a means of control only in an Anglican population.

Ecclesiastical law, in Ireland as in England, remained in place after the Reformation in so far as it did not conflict with common law, and it was subject to modification by statute. The indissolubility of the marriage contract was overridden in England from 1670, when divorce was made possible on the grounds of adultery and marriages could be dissolved by Act of Parliament.31 The procedure was available to Irish petitioners, although, as in England, it was cumbersome and expensive, requiring a previous suit of ‘criminal conversation’ to be brought in a common law court.32

English policy in Ireland, and the interests of the Irish political elite which were represented in the Irish parliament, form the background to the development of Irish marriage law. Statute law in Ireland consisted of legislation enacted by the Irish parliament and legislation that originated in the English parliament either specifically for Ireland, or which was extended to Ireland as part of the United Kingdom. Marriage law in Ireland was a product of the constitutional inferiority of the Irish parliament to the English parliament and the political situation within Ireland following the 1652 commonwealth land settlement. Although English authority extended to the whole island from 1534, the Irish legal system was not identical to the English system. The constitutional superiority of the English parliament had been established by Poyning's Law in 1495, and was not to end until the Irish parliament achieved legislative independence in 1782.33 In practice, appellate jurisdiction over matrimonial law lay with the English House of Lords, despite the fact that the Irish House of Lords had asserted its position in 1641.34 This jurisdiction of the Irish House of Lords was legally removed by statute in 1720, restored in 1782 and removed again by the Act of Union in 1800.35 Irish legislation originated in either Westminster or Dublin. Despite the restrictions of Poyning's Law the Irish parliament could draft legislation through the ‘heads of bill’ procedure, passing it to Westminster for ratification. Statutes originating in Westminster and extended to Ireland were of equal legal validity to statutes originating in the Irish parliament.36

By 1691, the Irish parliament was in effect a protestant parliament dominated by the landed elite. The commonwealth land settlement (p.24) ensured that the majority of landowners in Ireland were protestant, therefore changing the political balance of power.37 Protestants were ‘now established as the landed class … and in the years ahead would come to define themselves as “the protestant interest”.’38 The source of protestant fears at this time lay in the Treaty of Limerick that followed the 1689–91 war. Although the Treaty left in place a ‘protestant ascendancy’, not all of the catholic gentry lost their estates. Catholic political power was therefore not totally destroyed, and from the perspective of the protestant interest, ‘any settlement that left the estates and political power of a substantial section of the Catholic gentry intact could only mean that the conquest for supremacy would at some stage be renewed’.39

Initially, Irish statute law on marriage mirrored developments in England by establishing the necessity of consummation for a legitimate union during the sixteenth century. The monogamous character of marriage was also subject to statute in Ireland, as in England, with rulings on bigamy in 1634 and 1725.40 However, in 1634, a specifically Irish statute made it unlawful for a woman under sixteen to marry without the consent of her father or guardian. The 1634 Act ‘for the punishment of such as shall take away maidens that be inheritors’ established punishment of two years’ imprisonment for those found guilty of taking a minor out of the custody of her guardian, which was raised to five years if physical consummation or marriage took place.41

It is significant that the first Act in Ireland that impacted upon the marriage contract applied only to heiresses, and this suggests that the main concern in this case was the protection of protestant property interests. Two interrelated concerns are evident in the 1634 Act: the desire to strengthen paternal authority over children and concerns about the continuing problem of abduction in Ireland. The reinforcement of paternal authority over children was in accordance with other statutory reforms in this period. The concentration of paternal control over the disposal of family freehold property was reinforced by the 1634 Statute of Wills.42 A particular family structure was therefore being promoted in which the father controlled family resources and exercised increasing authority over children.

The problem of the abduction of heiresses in Ireland was underlined by a combination of social and economic factors. According to James Kelly, abductors and victims of abduction were mostly protestant. Abductors tended to be the financially straitened sons of lesser gentry families, who regarded the abduction of an heiress, and the subsequent appropriation of her property, as a legitimate means to improve their meagre financial situation.43 The underlying lawlessness in parts of (p.25) Ireland and the subordinate status of women helped create the conditions that facilitated the continuation of abduction throughout the eighteenth century.

The phenomenon of abduction in Ireland varied geographically. In the early eighteenth century, Dublin had the most recorded instances, followed by Limerick and Tipperary. This changed in the second half of the eighteenth century, when abduction was more prevalent in Tipperary, although Cork, Kilkenny and Dublin also had many recorded instances in this period.44 The practice of abduction varied according to the level of violence experienced by the victim, with the worst cases resulting in the death of the victim. At the other extreme are instances when the victim was believed to have colluded in her own abduction, as a means of ensuring marriage to the ‘abductor’.45 Abduction was particularly problematic for women, as despite the violence endured by some women at the hands of their abductors, the victim was regarded as tarnished, with subsequent loss of value in the marriage market.46

The next statute dealing specifically with marriage law in Ireland was one of the first penal laws in 1697, the ‘act to prevent protestants intermarrying with papists’. Under the terms of the Act a protestant woman in possession of an estate worth £500 forfeited her estate if she married a catholic. Her estate then passed to her next protestant heir. A man in possession of an estate who married a catholic woman also lost his estate, although the penalty was not automatic as he was given one year to convert his wife. The Act made it necessary for a protestant woman in possession of an estate when she married to have a certificate from the minister of the parish stating that her intended husband was a ‘known protestant’. Any protestant or catholic minister who married such a woman without this certificate was liable to punishment of one year's imprisonment and a fine of twenty pounds.47

The 1697 Act demonstrates the political concerns of the protestant law-making elite. In the case of catholic–protestant intermarriage, the transfer of a woman's property to her husband on marriage was at odds with protestant property interests. The penal laws can be regarded as a series of piecemeal measures ‘drawn up in response to a variety of immediate pressures and grievances’, rather than an organised ‘code’ enacted by a unified protestant ascendancy.48 The regulation of marriage was of particular political concern in Ireland, owing to the common law doctrine of coverture. As Sean Connolly has noted, the 1697 Act ‘[l]ike other bills of the 1690s … was essentially a defensive measure, closing off one of the avenues by which Catholics might supposedly subvert the Protestant interest’.49 The Act is clearly focused on the protection of property interests, specifically noting that intermarriage would lead to (p.26) ‘the great ruin of such estates, to the great loss of many protestant persons to whom the same might descend’. By disinheriting a protestant woman who married a catholic and passing her estate to the next protestant heir, the political elite were keeping land in protestant ownership.

The Act also illustrates the potential conflict between patriarchal ideology and the interests of the protestant ascendancy. The law upheld contemporary ideology on the place of women in the family. By offering a protestant man who married a catholic woman one year to convert his wife before disinheritance, it made a distinction between men and women, which suggests that women occupied a subordinate position in the family and were subject to the rule of their husbands.50 However, in contradiction of the patriarchal principle, the rights of a father to control his daughter's choice of marriage partner, along with a husband's right to take possession of his wife's property, were overruled if protestant property interests were threatened, as in the case of a protestant heiress marrying a catholic man.

In practice, this attack on the patriarchal nature of the family was met with reluctance by members of the Irish establishment. Mary O’Dowd notes several instances in which legislation which overturned the authority of fathers and husbands was criticised by the judiciary: ‘[a] man's control over his wife and family was clearly considered by members of the judiciary to be “right and proper” and they were uncomfortable enforcing laws which undermined that control’. Nevertheless, although these laws were sometimes mitigated in practice by a sympathetic judiciary, their existence on the statute books is significant, and ‘when implemented they subverted the English legal code on family, property and women’.51

The complex relationship between the patriarchal ideology of women and the family and the interests of the protestant political elite can be seen in later legislation. The terms of the 1697 Act were extended in the 1703 ‘act to prevent the further growth of popery’ to include marriage between protestants who had estates in Ireland with catholics outside Ireland.52 However, in 1709, in an Act to explain the 1703 legislation it was ruled that a catholic woman married to a catholic man was entitled to up to one-third of his possessions after his death if she converted to protestantism ‘notwithstanding any will or voluntary disposition made by such popish husband to the contrary’.53 The patriarchal authority of a husband over his wife was therefore overturned when doing so would further protestant interests.

In an Act of 1707, the now entirely protestant parliament considered the 1634 legislation ‘insufficient’ to prevent the abduction of women. The principle of parental consent was upheld and more severe (p.27) punishments were established for those who were involved in the abduction of women who possessed, or were due to inherit, real or personal property.54 Offenders could be sentenced to three years in prison and barred from claiming profits from her estate. The abduction of an heiress followed by rape or forced marriage was made a capital offence ‘without benefit of clergy’. Trustees in Chancery would then vest her estate for her. The Act also laid out penalties for clergy involved in such marriages. Church of Ireland clergy could be deprived of their benefices and be excluded from promotion. For catholic priests who conducted a marriage ceremony between two people ‘knowing that either of them is of the protestant religion’, the penalty was transportation, with a capital sentence if they returned to Ireland.

The severity of the 1707 Act indicates concern in the Irish parliament about the continuing problem of abduction in Ireland, and the associated threat to protestant property interests. As James Kelly has argued, the 1707 legislation broke new ground in Ireland by offering women protection from abduction.55 The Act was unusual as a separate section relating to a specific abduction case was inserted by the English Privy Council. The case concerned the abduction in April 1707 of a thirteen-year-old heiress, Margaret MacNamara from County Clare, by John O’Bryan and ‘diverse others’. O’Bryan, a catholic, is said to have forced MacNamara, a protestant, to marry him by threatening to rape her. The service was performed by a friar who had no legal entitlement to be in Ireland. In July 1707, MacNamara's mother applied to the House of Commons for relief, which resulted in the 1707 Act.56 Practically and ideologically, however, the effect of the legislation is questionable. John O’Bryan and his accomplices were not brought to trial, owing to the reluctance of law officers in counties Galway, Clare, Limerick and Tipperary to pursue prosecutions.57 Victims of abduction were also unwilling to initiate prosecution proceedings. Although the 1707 legislation enabled a victim of abduction to have her abductor brought to trial, in practice legal retribution did not mitigate the social and personal consequences of the loss of chastity outside marriage.58

The significance of the MacNamara abduction case is that legally the marriage was valid, and in this context the abduction of a protestant heiress by a catholic had implications for the protection of protestant property interests. As Kelly notes, the ‘misfortunes of Margaret MacNamara created an enormous stir because they mirrored the insecurities of the protestant population at large’.59 From the point of view of the political elite, the central problem of the abduction of an heiress was that the consequent marriage was considered legally valid. Despite the penalties established by statute, the problem of abduction continued, and (p.28) adbuctors continued to get away with it. As Toby Barnard has noted, ‘[b]oldness did pay off’.60

The ineffectiveness of the law is indicated by the example of the abduction of the Limerick heiress Frances Ingoldsby in November 1743. After her abduction and forced marriage, Frances was rescued and her abductor, Hugh Fitzjohn Massey, was brought to trial. Massey, however, bought off jurors and eventually was released without charge to enjoy his wife's inheritance, estimated at an annual rental of £870.61 The law could not stop abduction, and when the law was used, ‘it tended to be invoked more to pursue and harass the malefactors than to recover the victim.’62

Furthermore, when abductors were successfully tried, as they were at the trial following the abduction of the Kennedy sisters in Kilkenny in 1785, this did not remove the double standard at work in Irish society. Catherine and Ann Kennedy, aged fourteen and fifteen respectively, were heiresses to a fortune of £2,000. In April 1779, they were abducted by James Strange and Garret Byrne, married by a couple-begging priest and raped. After being on the run for five weeks they were discovered near Wicklow. Strange and Byrne fled to Wales, where they were recaptured and returned to Ireland for trial. The two men, along with James Strange's brother, Patrick, were tried at the County Kilkenny Assizes in October 1780 and sentenced to death.63 Although, as Kelly notes, critics of abduction outnumbered sympathisers of the three men, this was not the uniform response.64 Alongside the viewpoint that the death penalty was perceived as the only way to curb this problem in Ireland, some commented upon the ‘cruelty’ of the Kennedy sisters. Dorothea Herbert recorded how the abductors were mourned as ‘three very handsome young fellows of good families’, while noting how ‘everyone was disgusted at the ladies appearing so soon in public after so horrid a business’.65

The problem of abduction therefore became interrelated with the political agenda that aimed to prevent the intermarriage of catholics and protestants. The penalties against priests as established in 1707 were reinforced by legislation in 1709 that stated that if a catholic priest solemnised a marriage in which one party was protestant, it would be assumed the said priest was aware of this.66 The next legislation dealing with marriage focused on the role of the officiating clergy at clandestine marriages. The number of reported abduction cases actually rose in the 1720s and this provided the political background for increasing statutory punishments for catholic priests.67 In 1725 it was declared a felony, punishable by death ‘without benefit of the clergy’, for a catholic priest or a clergyman who had been degraded in rank and turned out of the clergy (p.29) to marry two protestants, or a protestant and a catholic, as ‘clandestine marriages are for the most part celebrated by popish priests and degraded clergymen, to the manifest ruin of several families within this kingdom’.68

The principle of paternal control re-emerged in 1735 in the ‘act for the better preventing clandestine marriages’. The Act declared that all marriages undertaken by minors without the consent of ‘the father (if living) … or, if dead, of the guardian’ were ‘absolutely null and void’ if either of the parties was in possession of real estate valued at £100 or a personal estate valued at £500, or if their parents were in possession of real estate valued at £100 or a personal estate valued at £2,000. Sanctions were applied more widely in 1735 when it was noted that because ‘the several laws made to prevent clandestine marriages have proved ineffectual’, any minister ‘in any church or chapel’ who published banns of matrimony between a protestant and a catholic could be deprived of his spiritual livings.69

Until the 1735 legislation the common law in Ireland regarded marriage as a civil contract, accepting clandestine marriages as legally binding, although uncanonical. The 1735 Act, by making some marriages void by law, represented the first secular intervention into the issue of marriage validity. The Act also in some ways upheld the patriarchal structure of Irish society by placing the power of veto or consent with the father as head of the family. There is no mention of the place of mothers in this issue. The power of consent lay with the father, or if he was dead, the legal guardian. Unless a mother was appointed as legal guardian, she had no right of veto or consent over her child's marriage choices.

This patriarchal principle was partial in its application, as what was being promoted, especially from 1735, was the authority of fathers of protestant landed families. In this respect, the underlying principles of patriarchal society and the interests of the protestant political elite did not conflict. Paternal authority in the family was undermined when it conflicted with the requirements of the state, as in the case of a catholic husband's right to the property of his protestant wife. The protection of protestant property interests took precedence over existing common law provisions on marriage, which illustrates how the interests of the state were applied to what was ostensibly a private contract and challenged the status of the family as a natural, private unit, independent of government control.70

This is further indicated by an Act in 1745 in which the laws to prevent clandestine marriages were described as ‘ineffectual’. The remedy was to declare marriage between a catholic and a protestant who had converted within twelve months or between two protestants celebrated by a (p.30) catholic priest ‘absolutely null and void’. The Act noted the difficulty of proving marriage or rape in cases of abduction and it was ruled that abduction ‘with an intent to marry or defile’ was punishable by death without benefit of clergy.71

Paternal control was further strengthened in 1749 when the right to annul marriages that had taken place between minors without parental consent was extended to cases where the married couple had absconded. The legislation made it possible for fathers or guardians to begin a suit for annulment in an ecclesiastical court of a clandestine marriage in the absence or death of the parties involved. The Act also asserted that although the validity of such marriages had now been overruled by statute law and the threat of property transmission from protestant women to catholic men was therefore blocked, a catholic priest who celebrated a marriage between a catholic and a protestant or between two protestants could still be found guilty of a felony.72

In practice, statute makers were concerned only with a marriage that involved at least one party who was a Church of Ireland protestant. Marriages between catholics, Quakers or Jews were considered valid by ecclesiastical law. With the exception of the legislation introduced by Henry VIII in 1540 prohibiting marriage within the fifteen degrees of kinship set out in the biblical Book of Leviticus, catholic marriages were not regulated by statute, being subject instead to conditions accepted by the Catholic Church at the Council of Trent. A marriage between two catholics, outside the Levitical degrees, celebrated by a catholic priest was valid in law.73 Quaker and Jewish marriages were also not subject to statute intervention until the 1844 Marriage Act in Ireland, which established registration procedures for Quaker and Jewish marriages.74

Presbyterian ministers were subject to limiting statutes regarding marriage. The Irish Act of Uniformity in 1665 declared that marriages celebrated by Presbyterian ministers in possession of rectories and vicarages were considered valid until 29 September 1667. After this date, ministers celebrating marriages would be liable to penalties.75 However in practice such marriages continued and were tolerated.76 In 1719, the Irish Toleration Act established that protestant dissenting ministers who took an oath of allegiance and supremacy would be exempt from penalties for administering sacraments.77 Presbyterian ministers were further relieved in 1737 by legislation exempting them from all prosecutions for marriages celebrated in their congregations by ministers who had qualified under the 1689 Toleration Act.78 Although this Act did not legalise Presbyterian marriages, it did sanction their celebration and protect the officiating minister from prosecution. They were consequently assumed (p.31) to be valid in practice, a situation which was confirmed by later legislation in 1782, which declared that marriages between Presbyterians by Presbyterian ministers were already valid in law.79

In practice therefore, until 1782, legal measures against Presbyterianism were unworkable, and Presbyterian marriages continued after 1667. However, the interference of the law in Presbyterian marriages was part of a wider attack on Presbyterianism. This included the blocking of access to employment in central and local government through the requirement to receive Holy Communion in the established church; preventing the children of Presbyterian families from being educated by those of their own religious persuasion; and the requirement that Presbyterian burials follow the service of the Church of Ireland.80 Equality of Presbyterian and dissenter marriages to those of the established Church did not follow until 1842.81

The regulation of the validity of the marriage contract in Ireland therefore predated the 1753 Hardwicke's Marriage Act, which declared all unions that did not fit the criteria of the Act to be legally void. The main terms of Hardwicke's Marriage Act concerned the marriage ceremony and the question as to what constituted a valid marriage by law. The Act established the necessity of parental consent for the marriage of minors under twenty-one. It also aimed to prevent clandestine marriages by making it a legal necessity for all individuals except Quakers or Jews to marry in a parish church according to the rubric in the Book of Common Prayer. The Act declared that after 1754 in England, pre-contract was no longer a legal impediment to a marriage that had been solemnised in a church ceremony. Hereafter, a legitimate ceremony took place in a parish of which at least one of the parties was a resident and was performed by legitimate clergy. The ceremony was to be preceded by the posting of banns in the parish church on three consecutive Sundays and the marriage was to be registered immediately after the solemnisation. Punishments, ranging from ecclesiastical censure to transportation, were established for clergy who solemnised unions not in accordance with the legislation.82

Hardwicke's Marriage Act was the first legislative intervention in the concept of what constituted a valid marriage in England, and overuled the ecclesiastical law on marriage, which regarded marriage as essentially a private contract up to 1753. The Act effectively removed the legal force of contracts both in present and future tense, and took away any remedy from the breaking of such contracts from the ecclesiastical courts. It was a controversial measure that prompted much debate both inside and outside parliament, because it established the necessity of a public marriage ceremony, by law, rendering all unions not celebrated in this way (p.32) legally void. The parliamentary debate on the issue has been summed up as follows:

Its passage through parliament was bitterly opposed, especially in the House of Commons, by men who claimed variously that it threatened the balance of the constitution; offended against the law of God; would weaken the English race in biology and numbers; promote fornication among the poor; and render innocent young women defenceless against treacherous seducers.83

Considering the level of debate in England, it is surprising that there was not a similar debate on the marriage legislation already in existence in Ireland. There are similarities between the passing of the Hardwicke's Marriage Act and Irish marriage statutes. In both countries, statute regulation of marriage appears to have been motivated by a desire to protect the interests of the propertied elite. David Lemmings has argued that Hardwicke's Marriage Act ‘was clearly drafted to maximize support among the landowners predominantly represented in parliament’ who were concerned about the vulnerability of their estates under the ecclesiastical law on marriage. Lemmings also notes that the Act was motivated primarily by a desire ‘to prevent marriages among children of the social elite which were not sanctioned by their parents and other relations’.84 However, despite the similar protection of propertied interests through marriage regulation, there was no equivalent to Hardwicke's Marriage Act in Ireland. As the Act did not apply to Ireland, the legal validity of the private verbal marriage contract, per verba de presenti, and the precontract to marriage, per verba de futuro, remained.

The key to this issue in Ireland is that only certain marriages were regulated. While the passing of Hardwicke's Marriage Act has been attributed to the interests of the propertied elite in parliament, in application the Act affected all parts of society. In Ireland, however, the political climate was such that the threat represented by clandestine marriage applied only in the case of a propertied protestant woman marrying a catholic man, and it was this scenario that Irish marriage legislation aimed to avoid, initially by punishments to deter abductors, and clergy performing such unions, and then by declaring these matches void. As only certain marriages were thought to be a threat to the protestant ascendancy, only certain marriages were regulated. The absence of a public debate in Ireland further illustrates the different political circumstances that motivated marriage law in both countries. Irish marriage statutes were essentially piecemeal measures dealing with specific perceived threats to protestant interests, and therefore marriage regulation (p.33) in Ireland had more in common with other penal legislation in Ireland than it did with Hardwicke's Marriage Act.

Changes in marriage law from the late eighteenth century were based on a change in government policy towards catholics to one of conciliation and ‘gradual absorption into political society’.85 By the end of the eighteenth century, catholics could testify allegiance under oath, inherit property, purchase land and vote for parliament. In 1781–82 it was reaffirmed that marriages between protestant dissenters were ‘good and valid’.86 In 1792 legislation on intermarriage was repealed to enable protestants and catholics to marry if the ceremony was performed by clergy from the established Church.87 The relaxation in government policy that applied to Presbyterian ministers was not however extended to catholic clergy. The 1792 Act repealing legislation on intermarriage reaffirmed that a catholic priest was still forbidden by law to marry a catholic and a protestant and, although the death penalty for catholic clergy who celebrated such marriages was removed in 1833, such marriages remained void in law.88 The protection of property interests therefore continued to form the basis of marriage legislation in Ireland until the 1830s.

Until the nineteenth century, there appears to have been little interest in Ireland in regulating marriage in general. The first Act which reduced the differences between English and Irish marriage law was in 1818, when section 13 of Hardwicke's Marriage Act, which dealt with contracts, was copied verbatim into Irish law, overriding the legality of private verbal contracts or marriage and pre-contract in Ireland.89

In the courts, the main consequences of a legal system that rendered some marriages void arose in prosecutions against bigamy. The most important case in this respect is Regina v Milles, heard in the Court of Queen's Bench in Ireland in 1842. The case centred on a charge of bigamy against George Milles, and the verdict was based on the validity of his first marriage, conducted by a Presbyterian minister. Milles was a member of the Church of Ireland, and his first ‘wife’, Hester Graham, was not a catholic, but it was not disclosed whether she was a member of the established Church or a protestant dissenter. Milles's second marriage took place in England, according to the rules of the established Church.

Cases of bigamy by necessity focused on the question of what constituted a valid marriage. In Regina v Milles it was held that a marriage contract per verba de presenti, though consummated, did not constitute a valid marriage in Ireland. A valid marriage by law required the presence of a clergyman in holy orders. A Presbyterian minister was not regarded as competent to celebrate the marriage between a member of (p.34) the established Church and a Presbyterian. Milles's first marriage was therefore declared void and he was acquitted of the charge of bigamy.90 The decision of the court in the Milles case was controversial and the authority of the ruling was questioned in later prosecutions.91 The confusion surrounding the case led to the 1844 ‘act for marriages in Ireland; and for registering such marriages’, which attempted to clarify the legal position of various marriages.

Following a similar Act in England in 1836, the 1844 Irish Marriage Act established a marriage registrar and provided for the registration of marriages outside the Church of Ireland. Regulations concerning Presbyterian, Quaker and Jewish marriages were also established.92 It was ruled that a Church of Ireland protestant could marry a Presbyterian in a marriage ceremony conducted by a Presbyterian minister. The Act repealed the 1735 and 1749 legislation on clandestine marriage which had established parental authority to void the marriage of minors and replaced this with a general requirement for the marriage of minors.93

However the Irish Act differed significantly from the English Act in that it did not apply in any way to catholic marriages. Measures concerning degraded clergy and catholic priests were left in place and catholic marriages, subject to regulation by the Catholic Church, were to be ‘celebrated in the same manner and subject to the same limitations’ as before.94 The English Act, in contrast, allowed for the registration of catholic marriages if they took place in a catholic church licensed as a separate building.95

The 1844 Act established the marriage registrar in Ireland and therefore provided the means for the legally recognised civil marriage ceremony. Church of Ireland marriages were to continue, as before, to be solemnised according to the Rubric of the Book of Common Prayer. The only difference was that instead of the publication of banns, notice was to be given to the newly established marriage registrar, except when a special Licence had been acquired by the Archbishop of Armagh.

Conclusion

The development of marriage law in this period illustrates a shift from the acceptance of marriage as a private contract, rendered legitimate by mutual consent freely given, to the idea of marriage as a matter of public interest, subject to statutory regulation.

English common law was informed by contemporary ideology that recognised the supremacy of paternal authority in the family.96 By the common law doctrine of coverture, a married woman's property passed (p.35) into the possession of her husband and therefore legally married women were placed in a position of dependence on husbands and fathers. The significance of statute law is that it was particular in application and farreaching in consequence, as it changed the common law and overrode inferior laws such as ecclesiastical law.

The fact that Irish statute regulation of marriage predated English developments illustrates the different political contexts within which English common law operated. The development of Irish statute law reveals several concurrent concerns of the political elite. Clandestine marriage and abduction of heiresses were particularly problematic, considering the concern to protect protestant property interests that was at the heart of the political situation in Ireland at this time. By increasing paternal authority over the marriage choices of children, protestant landowners could veto intermarriage within their family. Furthermore, by creating exceptions to the common law on property, political concerns were dealt with, without upsetting the patriarchal balance of power within Irish families. Therefore, in particular situations, this patriarchal structure was overturned by Irish statute law: when a catholic man married a protestant woman, his common law entitlement to her property was removed, whereas a catholic woman who married a catholic man and then converted to Protestantism was legally entitled to claim one-third of his property.

The place of the family in Irish marriage law can be summed up as follows: where the requirements of the patriarchal family did not interfere with the needs of the political elite in Ireland, it was given the support of law. Marriage legislation in Ireland was focused on ‘a particular class of people’ who were regarded as a threat to protestant property interests.97 The political situation in Ireland, coupled with the importance of marriage in a society which valued property as the basis of political power, motivated statute legislation that was concerned primarily with the protection of protestant property interests.

Notes

(1) David Lemmings, ‘Marriage and the law in the eighteenth century: Hardwicke's Marriage Act of 1753’, Historical Journal, 39:2 (1996), p. 340.

(2) Mary Lyndon Shanley, Feminism, marriage and the law in Victorian England, 1850–1895 (London: Tauris, 1989), p. 11.

(3) Lawrence Stone, The family, sex and marriage in England, 1500–1800 (London: Weidenfeld and Nicolson, 1977), pp. 270–3.

(4) Lemmings, ‘Marriage and the law in the eighteenth century’, p. 341.

(5) 33 Henry VIII, c. 1 (Ireland).

(p.36) (6) O’Dowd, ‘Women and the law’, p. 96.

(7) Erickson, Women and property p. 24.

(8) Sarah Chapone, The hardships of the English laws in relation to wives with an explanation of the original curse of subjection passed upon the woman. In an humble address to the legislature (Dublin, 1735), p. 32.

(9) Lee Holcombe, Wives and property: reform of the married women's property law in nineteenth-century England (Toronto: University of Toronto Press, 1983), pp. 18–36.

(10) Ibid., p. 45.

(11) Tim Stretton, Women waging law in Elizabethan England (Cambridge: Cambridge University Press, 1998), pp. 25–9, 130–1; Mary O’Dowd, ‘Women and the Irish chancery court in the late sixteenth and early seventeenth centuries’, Irish Historical Studies, 31 (November 1999).

(12) J. H. Baker, An introduction to English legal history (London: Butterworths, 1990), p. 546.

(13) S. L. Ollard, Gordon Cross and Maurice F. Bond (eds), A dictionary of English church history (London: Mowbray, 1948), pp. 364–9.

(14) Art Cosgrove, ‘Marriage in medieval Ireland’ in Art Cosgrove (ed.), Marriage in Ireland (Dublin: College Press, 1985), p. 27.

(15) Margaret MacCurtain, ‘Marriage in Tudor Ireland’ in Cosgrove (ed.), Marriage in Ireland, p. 63.

(16) W. J. Byrne, A dictionary of English law (London: Sweet and Maxwell, 1923), p. 562.

(17) 2 Elizabeth I, c. 1 (Ireland).

(18) Patrick J. Corish, ‘Catholic marriage under the penal code’ in Cosgrove (ed.), Marriage in Ireland, p. 68.

(19) 25 Henry VIII, c. 19 (England).

(20) 28 Henry VIII, c. 2 (Ireland).

(21) 33 Henry VIII, c. 6 (Ireland).

(22) 28 Henry VIII, c. 5 (Ireland).

(23) 2 Elizabeth I, c. 2 (Ireland); 17 & 18 Charles II, c. 7 (Ireland).

(24) 17 & 18 Charles II, c. 3 (Ireland).

(25) 17 & 18 Charles II, c. 6 (Ireland).

(26) Henry Wood, A guide to the records deposited in the Public Records Office of Ireland (Dublin: His Majesty's Stationery Office, 1919), p. 222.

(27) William R. Duncan and Paula E. Scully, Marriage breakdown in Ireland: law and practice (Dublin: Butterworths, 1990), p. 1.

(28) Sean J. Connolly, Religion, law and power: the making of protestant Ireland 1660–1760 (Oxford: Clarendon Press, 1992), p. 145.

(29) J. G. Simms, ‘The restoration, 1660–85’ in T. W. Moody, F. X. Martin and F. J. Byrne (eds), A new history of Ireland, iii: Early modern Ireland 1534–1691 (Oxford: Clarendon Press, 1991), p. 437.

(30) Martin Ingram, Church courts, sex and marriage in England, 1570–1640 (Cambridge: Cambridge University Press, 1987), p. 372.

(31) Baker, An introduction to English legal history, p. 565.

(p.37) (32) W. G. Brooke, ‘Rights of married women in England and Ireland’, Irish Law Times and Solicitors Journal, 7 (1873), p. 280.

(33) 10 Henry VII, c. 10 (Ireland); 21 & 22 George III, c. 47 (Ireland).

(34) F. H. Newark, Notes in Irish legal history (Belfast: M. Boyd, 1960), p. 16.

(35) 6 George I, c. 5 (Ireland); 21 & 22 George III, c. 47 (Ireland); 40 George III, c. 38 (Ireland).

(36) W. N. Osbourough, ‘The legislation of the pre-Union Irish parliament’ in W. N. Osborough (ed.), Studies in Irish legal history (Dublin: Four Courts Press, 1999), pp. 85–6.

(37) Patrick J. Corish, ‘The Cromwellian regime, 1650–60’ in Moody, Martin and Byrne (eds), A new history of Ireland, iii, pp. 357–61.

(38) Ibid., p. 386.

(39) Connolly, Religion, law and power, pp. 264–5.

(40) 10 Charles I, c. 21 (Ireland); 12 George I, c. 1 (Ireland).

(41) 10 Charles I, c. 17 (Ireland).

(42) 10 Charles I, c. 1 (Ireland).

(43) Kelly, ‘The abduction of women of fortune’, p. 10.

(44) Ibid., p. 41.

(45) Barnard, The abduction of a Limerick heiress, p. 8.

(46) Ibid., p. 9.

(47) 9 William III, c. 3 (Ireland).

(48) Connolly, Religion, law and power, p. 263.

(49) Ibid., p. 269.

(50) O’Dowd, ‘Women and the law’, p. 105.

(51) Ibid., p. 107.

(52) 2 Anne, c. 6 (Ireland).

(53) 8 Anne, c. 3 (Ireland).

(54) 6 Anne, c. 16 (Ireland).

(55) Kelly, ‘The abduction of women of fortune’, p. 11.

(56) Ibid., pp. 10–12.

(57) Ibid., p. 12.

(58) Ibid., pp.13–14.

(59) Ibid., p. 12.

(60) Barnard, The abduction of a Limerick heiress, p. 8.

(61) Ibid., pp. 15–32.

(62) Ibid., p. 9.

(63) Margaret Weiner, Matters of felony: a reconstruction (London: Heinemann, 1967).

(64) Kelly, ‘The abduction of women of fortune’, p. 32.

(65) Dorothea Herbert, Retrospections of Dorothea Herbert 1770–1806 (Dublin: Town House, 1988), p. 112.

(66) 8 Anne, c. 3 (Ireland).

(67) Kelly, ‘The abduction of women of fortune’, p. 16.

(68) 12 George I, c. 3 (Ireland).

(69) 9 George II, c. 11 (Ireland).

(70) O’Dowd, ‘Women and the law’, p. 108.

(p.38) (71) 19 George II, c. 13 (Ireland).

(72) 23 George II, c. 10 (Ireland).

(73) The Queen v John Burke, 9 June 1843, Irish law reports particularly of points of practice argued and determined in the courts of Queen's Bench, Common Pleas and Exchequer of Pleas during the years 1842 and 1843 (Dublin: R. Carrick, 1843), p. 549.

(74) 7 & 8 Victoria, c. 81 (Ireland).

(75) 17 & 18 Charles II, c. 6 (Ireland).

(76) Copy from Mr Gurney's short-hand notes of the argument in the case of the Queen v George Millis heard on the 13th, 14th, 16th and 17th February 1843 (Dublin, 1843), p. i.

(77) 6 George I, c. 5 (Ireland).

(78) 11 George II, c. 10 (Ireland).

(79) 21 & 22 George III, c. 25 (Ireland).

(80) David W. Hayton, ‘Exclusion, conformity, and parliamentary representation: the impact of the sacramental test on Irish dissenting politics’ in Kevin Herlihy (ed.), The politics of Irish dissent, 1650–1800 (Dublin: Four Courts Press, 1997), p. 53.

(81) 5 & 6 Victoria, c. 116 (Ireland).

(82) 26 George II, c. 33 (England).

(83) Lemmings, ‘Marriage and the law in the eighteenth century’, p. 340.

(84) Ibid., p. 347.

(85) Oliver MacDonagh, ‘Ireland under the Union, 1801–70’ in W. E. Vaughan (ed.), A new history of Ireland v. Ireland under the Union, I: 1801–70 (Oxford: Clarendon Press, 1989), p. xlviii.

(86) 21 & 22 George II, c. 25 (Ireland).

(87) 32 George III, c. 21 (Ireland).

(88) 3 & 4 William IV, c. 103 (Ireland).

(89) 58 George III, c. 81 (Ireland).

(90) Report of the cases of Regina v Milles and Regina v Carroll in the Queens's Bench in Ireland in Easter and Trinity terms 1842 (Dublin, 1842).

(91) W. Harris Faloon, The marriage law of Ireland (Dublin: Hodges and Figgis, 1881), p. 20.

(92) 7 & 8 Victoria, c. 51 (Ireland).

(93) 7 & 8 Victoria, c. 81 (Ireland).

(94) Ibid.

(95) 6 & 7 William IV, c. 85 (England).

(96) O’Dowd, ‘Women and the law’, p. 96.

(97) Report of the cases of Regina v Millis and Regina v Carroll, p. 103.

Notes:

(1) David Lemmings, ‘Marriage and the law in the eighteenth century: Hardwicke's Marriage Act of 1753’, Historical Journal, 39:2 (1996), p. 340.

(2) Mary Lyndon Shanley, Feminism, marriage and the law in Victorian England, 1850–1895 (London: Tauris, 1989), p. 11.

(3) Lawrence Stone, The family, sex and marriage in England, 1500–1800 (London: Weidenfeld and Nicolson, 1977), pp. 270–3.

(4) Lemmings, ‘Marriage and the law in the eighteenth century’, p. 341.

(5) 33 Henry VIII, c. 1 (Ireland).

(p.36) (6) O’Dowd, ‘Women and the law’, p. 96.

(7) Erickson, Women and property p. 24.

(8) Sarah Chapone, The hardships of the English laws in relation to wives with an explanation of the original curse of subjection passed upon the woman. In an humble address to the legislature (Dublin, 1735), p. 32.

(9) Lee Holcombe, Wives and property: reform of the married women's property law in nineteenth-century England (Toronto: University of Toronto Press, 1983), pp. 18–36.

(10) Ibid., p. 45.

(11) Tim Stretton, Women waging law in Elizabethan England (Cambridge: Cambridge University Press, 1998), pp. 25–9, 130–1; Mary O’Dowd, ‘Women and the Irish chancery court in the late sixteenth and early seventeenth centuries’, Irish Historical Studies, 31 (November 1999).

(12) J. H. Baker, An introduction to English legal history (London: Butterworths, 1990), p. 546.

(13) S. L. Ollard, Gordon Cross and Maurice F. Bond (eds), A dictionary of English church history (London: Mowbray, 1948), pp. 364–9.

(14) Art Cosgrove, ‘Marriage in medieval Ireland’ in Art Cosgrove (ed.), Marriage in Ireland (Dublin: College Press, 1985), p. 27.

(15) Margaret MacCurtain, ‘Marriage in Tudor Ireland’ in Cosgrove (ed.), Marriage in Ireland, p. 63.

(16) W. J. Byrne, A dictionary of English law (London: Sweet and Maxwell, 1923), p. 562.

(17) 2 Elizabeth I, c. 1 (Ireland).

(18) Patrick J. Corish, ‘Catholic marriage under the penal code’ in Cosgrove (ed.), Marriage in Ireland, p. 68.

(19) 25 Henry VIII, c. 19 (England).

(20) 28 Henry VIII, c. 2 (Ireland).

(21) 33 Henry VIII, c. 6 (Ireland).

(22) 28 Henry VIII, c. 5 (Ireland).

(23) 2 Elizabeth I, c. 2 (Ireland); 17 & 18 Charles II, c. 7 (Ireland).

(24) 17 & 18 Charles II, c. 3 (Ireland).

(25) 17 & 18 Charles II, c. 6 (Ireland).

(26) Henry Wood, A guide to the records deposited in the Public Records Office of Ireland (Dublin: His Majesty's Stationery Office, 1919), p. 222.

(27) William R. Duncan and Paula E. Scully, Marriage breakdown in Ireland: law and practice (Dublin: Butterworths, 1990), p. 1.

(28) Sean J. Connolly, Religion, law and power: the making of protestant Ireland 1660–1760 (Oxford: Clarendon Press, 1992), p. 145.

(29) J. G. Simms, ‘The restoration, 1660–85’ in T. W. Moody, F. X. Martin and F. J. Byrne (eds), A new history of Ireland, iii: Early modern Ireland 1534–1691 (Oxford: Clarendon Press, 1991), p. 437.

(30) Martin Ingram, Church courts, sex and marriage in England, 1570–1640 (Cambridge: Cambridge University Press, 1987), p. 372.

(31) Baker, An introduction to English legal history, p. 565.

(p.37) (32) W. G. Brooke, ‘Rights of married women in England and Ireland’, Irish Law Times and Solicitors Journal, 7 (1873), p. 280.

(33) 10 Henry VII, c. 10 (Ireland); 21 & 22 George III, c. 47 (Ireland).

(34) F. H. Newark, Notes in Irish legal history (Belfast: M. Boyd, 1960), p. 16.

(35) 6 George I, c. 5 (Ireland); 21 & 22 George III, c. 47 (Ireland); 40 George III, c. 38 (Ireland).

(36) W. N. Osbourough, ‘The legislation of the pre-Union Irish parliament’ in W. N. Osborough (ed.), Studies in Irish legal history (Dublin: Four Courts Press, 1999), pp. 85–6.

(37) Patrick J. Corish, ‘The Cromwellian regime, 1650–60’ in Moody, Martin and Byrne (eds), A new history of Ireland, iii, pp. 357–61.

(38) Ibid., p. 386.

(39) Connolly, Religion, law and power, pp. 264–5.

(40) 10 Charles I, c. 21 (Ireland); 12 George I, c. 1 (Ireland).

(41) 10 Charles I, c. 17 (Ireland).

(42) 10 Charles I, c. 1 (Ireland).

(43) Kelly, ‘The abduction of women of fortune’, p. 10.

(44) Ibid., p. 41.

(45) Barnard, The abduction of a Limerick heiress, p. 8.

(46) Ibid., p. 9.

(47) 9 William III, c. 3 (Ireland).

(48) Connolly, Religion, law and power, p. 263.

(49) Ibid., p. 269.

(50) O’Dowd, ‘Women and the law’, p. 105.

(51) Ibid., p. 107.

(52) 2 Anne, c. 6 (Ireland).

(53) 8 Anne, c. 3 (Ireland).

(54) 6 Anne, c. 16 (Ireland).

(55) Kelly, ‘The abduction of women of fortune’, p. 11.

(56) Ibid., pp. 10–12.

(57) Ibid., p. 12.

(58) Ibid., pp.13–14.

(59) Ibid., p. 12.

(60) Barnard, The abduction of a Limerick heiress, p. 8.

(61) Ibid., pp. 15–32.

(62) Ibid., p. 9.

(63) Margaret Weiner, Matters of felony: a reconstruction (London: Heinemann, 1967).

(64) Kelly, ‘The abduction of women of fortune’, p. 32.

(65) Dorothea Herbert, Retrospections of Dorothea Herbert 1770–1806 (Dublin: Town House, 1988), p. 112.

(66) 8 Anne, c. 3 (Ireland).

(67) Kelly, ‘The abduction of women of fortune’, p. 16.

(68) 12 George I, c. 3 (Ireland).

(69) 9 George II, c. 11 (Ireland).

(70) O’Dowd, ‘Women and the law’, p. 108.

(p.38) (71) 19 George II, c. 13 (Ireland).

(72) 23 George II, c. 10 (Ireland).

(73) The Queen v John Burke, 9 June 1843, Irish law reports particularly of points of practice argued and determined in the courts of Queen's Bench, Common Pleas and Exchequer of Pleas during the years 1842 and 1843 (Dublin: R. Carrick, 1843), p. 549.

(74) 7 & 8 Victoria, c. 81 (Ireland).

(75) 17 & 18 Charles II, c. 6 (Ireland).

(76) Copy from Mr Gurney's short-hand notes of the argument in the case of the Queen v George Millis heard on the 13th, 14th, 16th and 17th February 1843 (Dublin, 1843), p. i.

(77) 6 George I, c. 5 (Ireland).

(78) 11 George II, c. 10 (Ireland).

(79) 21 & 22 George III, c. 25 (Ireland).

(80) David W. Hayton, ‘Exclusion, conformity, and parliamentary representation: the impact of the sacramental test on Irish dissenting politics’ in Kevin Herlihy (ed.), The politics of Irish dissent, 1650–1800 (Dublin: Four Courts Press, 1997), p. 53.

(81) 5 & 6 Victoria, c. 116 (Ireland).

(82) 26 George II, c. 33 (England).

(83) Lemmings, ‘Marriage and the law in the eighteenth century’, p. 340.

(84) Ibid., p. 347.

(85) Oliver MacDonagh, ‘Ireland under the Union, 1801–70’ in W. E. Vaughan (ed.), A new history of Ireland v. Ireland under the Union, I: 1801–70 (Oxford: Clarendon Press, 1989), p. xlviii.

(86) 21 & 22 George II, c. 25 (Ireland).

(87) 32 George III, c. 21 (Ireland).

(88) 3 & 4 William IV, c. 103 (Ireland).

(89) 58 George III, c. 81 (Ireland).

(90) Report of the cases of Regina v Milles and Regina v Carroll in the Queens's Bench in Ireland in Easter and Trinity terms 1842 (Dublin, 1842).

(91) W. Harris Faloon, The marriage law of Ireland (Dublin: Hodges and Figgis, 1881), p. 20.

(92) 7 & 8 Victoria, c. 51 (Ireland).

(93) 7 & 8 Victoria, c. 81 (Ireland).

(94) Ibid.

(95) 6 & 7 William IV, c. 85 (England).

(96) O’Dowd, ‘Women and the law’, p. 96.

(97) Report of the cases of Regina v Millis and Regina v Carroll, p. 103.