Regular and Irregular Marriages and their History in Scotland


From the Scottish records, it is not clear when William Hay (age 24) and Jane Ann Taylor (age 22) were married in Cornhill, Northumberland, England -- they paid the consignation fee in Makerstoun on June 3rd, their marriage was recorded in Makerstoun on June 29, 1787, so their marriage ceremony in England was sometime June 4-28, 1787. Their first child Annie was born sometime before her baptism, recorded in Makerstoun seven months later, on January 27, 1788. It is also not clear why they travelled to Cornhill, England to get married. Cornhill, Northumberland, England parish records are available for 1787, but these did not include a record for our William and Jane. There were very few Cornhill marriage records; the book is actually termed "Banns of Marriage" but this was a form book that included both the banns and the solemnization of marriage, and there were instances of no banns but a marriage. Several of the entries actually record marriages that took place for Cornhill residents getting married in Scotland! Curiously, there was a 1779 record for a William Hay:
               • #105 Banns of Marriage between William Hay of the Parish of Coldstream and Jane Cumming of the Parish of Branxton were published in this chapel by William Whinfield, Curate. Married in this ___ by ___ this __ day of __ in the Year One-Thousand Seven Hundred and ___ by me ___ This marriage was solemnized between us ___ in the presence of ___. Married in Scotland. [the second half was pre-printed and the blank spaces were not filled in. "Married in Scotland" was handwritten in large letters at the end. The date was determined to be 1779 based on the entries before and after this record. It is assumed this is no relation to our Hay family, but a curious coincidence. It is definitely not our William as he would only have been 16 at this time.]
                 three records only for 1787:
               • #139 May 27, 1787 James Tate and Christian Cook (by William Whinfield, Curator)
               • #140 June 22, 1787 John Shiell and Margaret Sanderson, witnessed by John Sanderson and Joseph Atkinson (solemnized by Richard Powley, Minister)
               • #141 August 16, 1787 Alexander Jeffrey and Isabela Winter (by Richard Powley, Minister)

It appears that at this time the ministery duties in Cornhill were shared by two ministers -- Mr. William Whinfield (1721-1799) of Coldstream ("Nicar of Branxton and Curate of this Chapelry 44 years last past" -- written by Richard Powley in the Cornhill Parish death record), and Mr. Richard Powley of Branxton/Doddington/Kelso -- as both are listed in the record book (and no other curate/minister for this period). Several records listed that Whinfield published the banns and Powley solemnized the marriage, so it appears the two ministers worked closely together for many years -- Whinfield's last record entry was in 1790 and Powley's in 1802. Both Whinfield and Powley are listed as Curate/Sub-Curate, Minister/Officiating Minister -- mostly for the Banns both Whinfield and Powley were listed as Curates as this is a civil matter, and mostly for the marriages they were listed as Ministers. In 1782 Powley listed himself as the Curate of Branxton and in December of the same year, Curate of Cornhill. On four records in 1783-1784 he wrote he was the Curate of Doddington. Additionally, on one record for June, 1786 he wrote he was the Minster at Kelso. No further information has been located for either Powley or Whinfield through the Fasti books on the ministers of the Church of Scotland.

There is no mention of our Hay-Taylor marriage in the Cornhill book. While this would seem to indicate they went to Cornhill to be married by some other minister, likely a "secessionist," this may not be the case. None of the records in the Cornhill book at this time period list a marriage in England for a Scottish couple, while there were many listings for Cornhill couples getting married in Scotland (after banns in England). It seems more than coincidental that on June 1786 Powley listed himself as a minister of the Kelso Parish, and a year later was a minister in Cornhill, about the time of William and Jane's marriage (based on June 22, 1787 marriage above). Since marriages were not to take place without banns, it is surmised that another possibility is that perhaps William and Jane's marriage was not "officially" performed in Cornhill, and thus was not entered in the book, since they would not have had the occasion for three weeks of banns in England. Also, it is noteworthy that there were many records of dissenters in these books -- one section is titled "Register of Dissenters for Year of 1798" and another "Baptism of Dissenters transferred." Included in these sections are names of parishioners who are found in the "regular" section of the books. Also, these two dissenter sections follow a register of death records that includes that of Whinfield above. This suggests that at this time the Cornhill church may well have been one of the secessionist churches. The fact that neither Whinfield nor Powley can be found in the Church of Scotland Fasti book also suggests they are secessionists. Check Kelso records for 1786 and 1787 to see if Powley is listed in Kelso church

Research in this part of England at this time is further complicated since this part of England, the Eastern part at the Scottish border, was variously English and Scottish. Although in the late 18th century, Cornhill was definitely in England; the only parish records are for the Presbyterian Church of Scotland (the book is title "Marriage-Register for the Chapelry of Cornhill, commencing 25th March, 1754, Berwick upon Tweed. (By 1812, Cornhill was in Durham instead of Northumberland.) The Church of Scotland was Protestant (Presbyterian) and the Church of England was Anglican (Catholic). Along the borders there would have been both churches. In the late 18th century, our ancestors were all Protestant, according to records found. Also, at this time, Cornhill was clearly considered across the Border; however, since this had not always been the case, the people and churches of the area may have considered themselves "Scottish." Furthermore, it is noteworthy that the 1733 secession movement had started with Reverend Erskine in this very church in Cornhill. No information has been discovered about other secessionist churches in Cornhill in the late 18th century, or records of other Scottish couples traveling to Cornhill to be married; with more computerization of Scottish marriage records, and more information computerized about Scottish ministers, it is possible that other information may be discovered. It would be particularly interesting to discover any information on Powley as a "secessionist" minister.

Scottish Marriages in the Old Parochial Registers

Makerstoun, Roxburghshire
1787 William Hay consignation, 1792 Cranston Taylor consignation
By law, couples intending to marry had to have their intention proclaimed ("banns"), in the church, on three separate Sundays. The idea was to give the congregation the chance to bring forward any reasons why they should not marry. How marriages were recorded varied very much from parish to parish, and over time, and up to five instances could be recorded -- consignation, the three banns and marriage. The Consignation of Pledges involved the couple paying a deposit. If they (a) subsequently completed the marriage and (b) were not found guilty of prenuptial fornication (i.e., the first child appeared at least 9 months after the wedding), they could, in theory, get their deposit back, although they often had their arms twisted to convert it into a "gift" to the Parish funds. Although this custom had supposedly pretty well died out by the end of the 18th century, William and Jane did consign their pledge*** in Makerstoun on June 3, 1787. The three separate Proclamations (banns) were supposed to be on three separate Sundays. However, there are cases where two, or all three of the Proclamations might be made on the same day. This again would be in return for a contribution to Parish funds, and was sometimes a way of forestalling problems with the Session if the first child was likely to make its appearance a little earlier than hoped. Of these different events, some Parishes recorded all of them, some only one (often the first Proclamation), in the Register of Marriages. Sometimes more detail may be found in the Kirk Session records, which sometimes record each Proclamation (which was a source of revenue), even if the Register does not.

Marriage Forms and Practices

From the time of the Reformation and the founding of the Church of Scotland in 1560, marriage ceased to be a church sacrament; it became a civil matter based upon the consent of adult individuals. How the marriage took place, meaning its form, might have been regular or irregular, but it was a binding union. A regular marriage took place before a church minister following the reading of banns. An irregular marriage came about in one of three ways: by mutual agreement, or by a public promise followed by consummation, or by cohabitation and repute. In all cases, for regular and irregular marriages, both bride and groom had to be free to marry, not within forbidden degrees of kinship and over the age of consent (12 for brides and 14 for grooms).

Marriage Registers

In the Scottish church, "marriage" registers are usually registers of the proclamation of banns; sometimes the marriage is recorded as well. Proclamations were often read in the parishes of the bride and the groom, helpful to genealogists. Sometimes irregular marriages were recorded in the kirk session records because a fine or some other discipline was imposed. In a lot of cases the marriage has no record at all and it has been suggested the rate of unrecorded irregular marriages may be as high as 30 percent (Leneman, L. “Marriage North of the Border”).

An Increase in Regular Marriages

The number of irregular marriages increased after 1689 when William III and his government approved the disestablishment of the Episcopalian church in Scotland. At least two-thirds of the Episcopal ministers were unemployed and many went to Edinburgh to seek other forms of work. Some went into business marrying people, those who did not want banns proclaimed or chose not to be married in their home parish but wanted some kind of service with a minister. Edinburgh was the center for most irregular marriages and after the 1730s the ministers were not necessarily Episcopal.

According to law, a minister performing irregular marriages could be disciplined, even transported. However, this neither stopped the ministers nor put an end to irregular marriages. There was for a time a fashion for marrying in an irregular way. Needless to say, all was not happiness and bliss. There were disputes as to whether a marriage was legal. The Commissary Court of Edinburgh from 1560 to 1830 had the authority to find whether or not a marriage had taken place. Because marriage ceased to be a sacrament in 1560, divorce in Scotland could be granted from that date. The commissary court handled divorce cases as well. Decisions could be appealed to the Court of Session and, after the union with England in 1707, to the House of Lords; obviously a legal route taken only by the wealthy.

Finding Records of Irregular Marriages

There are two or three places to look, in the kirk session records of the home parish, in records of ministers or churches noted for irregular marriages, and in the records of the commissary court. The Scottish Parish Registers, West Lothian and Midlothian, contains the Calendar of Irregular marriages in the South Leith Kirk Session Records, 1697-1818 (Marshall, J.S. Edinburgh: Scottish Record Society, 1968).

Look for Commisary Court records for England in 1787. The marriage is not in Cornhill OPR but may be in the court records??

Conclusion

Scottish marriage law allowed couples to keep their options open and they did take advantage of being able to marry irregularly, especially in the 1700s. The numbers dropped in the 1800s and change came in 1939, when only the habit and repute form of irregular marriage continued to be recognized by the law. As for Gretna Green* its fame dates from 1754 when Lord Hardwicke's Act came into effect with the purpose of eliminating clandestine marriages in England. Gretna became a popular destination for runaway couples and remained so long after the law changed the residency requirements in 1856.

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* Gretna Green is a small village on the west coast in the south of Scotland in Dumfries and Galloway County. Its main claim to fame are the Blacksmith's Shops, where many runaway marriages were performed. These began in 1753 when an Act of Parliament, Lord Hardwicke's Marriage Act, was passed in England, which stated that if both parties to a marriage were not at least 21 years old, then consent to the marriage had to be given by the parents. This Act did not apply in Scotland where it was possible for boys to get married at 14 and girls at 12 years old with or without parental consent. Obviously, this was not relevant to our Scottish ancestors -- Jane was 22 and William was 24 upon their marriage.

Although the 1791 Statistical Abstract did not address irregular border marriages, the 1834-45 Coldstream (Berwick) Abstract did: "Three things seem requisite for promoting the happiness and morals of the people: ... 3d, A change in the law of marriage in Scotland; for, as the law at present stands, a declaration of the parties before two witnesses, constitutes a marriage. Hence persons in England, where marriage is regarded as a religious ceremony, which must be performed by a clergman of the Established church, very frequently come to Coldstream and other border parishes, and are married by persons of the lowest and most worthless character, who, it is said, perform a relgious ceremony in mockery of every thing sacred, and give the parties a certificate that they had declared themselves married persons. This led to the custom of persons in Scotland getting themselves married in the same irregular way; and although few comparatively belonging to Coldstream are now guilty of this breach of church law, yet many from other parishes are married at Coldstream bridge." August 1834

Note that Jane's brother Cranston Taylor also paid his consignation marriage fee in Makerstoun on May 27, 1792, indicating that his wife Mary is likely from Makerstoun. Interestingly, Jane and William had perhaps already moved from Makerstoun to nearby Linton -- son John Hay's 1789 birth/baptism was post-recorded in Linton, and perhaps also Isabella's 1792 birth/baptism, as these were entered in the Linton OPR after 1793 baptisms.

***Old Scots Money -- Scots money used to be expressed in pounds or merks, a merk being 13 shillings and 4 pence. The value between a pound Scots and a pound Sterling was considerable. After 1600, the former was worth about 1 shilling and eight pence in the latter currency, the value it remained at before the abolition of the currency in the following century.