The following article was posted to the soc.scotland.culture newsgroup by Jack Campion and is reproduced here with his permission. The source book he mentions is not out of print after all but can be bought from Thins in Edinburgh.
Following on from the discussion here of "marriage by habit and repute", I found a sidelight on Scottish irregular marriage in Marshall's "The Life and Times of Leith"(John Donald, 1986). I'll quote this at length since the book is probably out of print and hard to get hold of outside Scotland. It shows that the issue is much more than a legal one: religious democracy and the transition from the village to a proto-urban society were involved.
" For more than half a century a steady stream of fines went to benefit the poor from couples found to be irregularly married. This was a matter affecting Leith probably more than any other place in Scotland, and presented the kirk sessions of both North Leith and South Leith with a particularly frustrating problem. In Scots law it was sufficient for a couple to declare before witnesses that they took each other as husband and wife for the marriage to be legal; but the Church was implacably opposed to such unions, as no record of the transaction was normally made, and the marriage could easily be denied later Many a girl was left with a baby and no income, when the father denied the union. Again, if the man was in the armed forces he might be killed or drowned, but if the marriage was irregular the wife was not informed of her husband's death; she only heard of it by chance from others. Unable to prove her marriage, she did not qualify for a widow's pension, and could not even claim a place on the poor roll. With both soldiers and sailors constantly coming and going, irregular or clandestine marriage became common in Leith.
Regular marriage was a ceremony performed by the parish minister, when the details were recorded by the session clerk. Scotland, however, was for so long in a disturbed state, between wars, epidemics and religious differences, that it was not always easy for everyone ot have access to a minister to perform a marriage, and various forms of irregular marriage were practised, as well as no ceremony at all. Couples cohabiting, behaving as husband and wife, and accepted as such by the neighbours, would, if it came to a trial, be adjudged as married 'by habit and repute'. But this anarchic situation was acceptable neither to Church nor State, and in 1661 the Scots Parliament legislated against clandestine marriage, imposing a range of fines, and three months' imprisonment for offenders. The act was to be operated by kirk sessions and the money from fines applied to 'pious uses within the several parishes'. Those celebrating irregular marriages were also to be banished for life: but in the 'killing times' larger issues were filling men's minds, and the act was ineffective. A second act was passed in 1698 with severer penalties, and the two kirk sessions in Leith began actively pursuing the parties to clandestine unions.
At first about half a dozen cases a year were reported in South Leith, but after the reintroduction of patronage in 1712 this rate more than doubled. Patronage was the system whereby the laird or chief heritor in a parish could nominate a minister to fill the charges without reference to the wishes of the congregation. This was a widely unpopular measure, and a clandestine marriage was a form of defiance of the parish minister. Another steep rise in irregular marriages took place from about 1729, and through the 1730s the average reached 22 cases per annum, a very worrying development in the life of a village of 5,000 souls. This increase matched the rise of feeling in the Church which led to the Secession from the Establishment in 1733. The first such breakaway in South Leith took place in 1740.
Irregular marriages stood at 25 in a year until about 1765, and this took no account of the marriages of Seceders or Episcopalians, all of which were, strictly speaking, irregular, the parish minister having no part in them. This whole tragic business came to an abrupt end in 1784, when two acts of Parliament in 1753 and 1781, covering 'England, Wales and Berwick', were extended to Scotland. Briefly, these acts provided that marriages celebrated in churches other than parish churches, and by ministers other than the parish minister, should be deemed valid and legal. By this time the population of Leith was increasing to such a degree that it had become virtually impossible for the elders to be aware of all that was going on in the town in the way their predecessors had known the details of life in the village.
Clandestine marriage was generally discovered when the first child was born and the parents sought the privilege of baptism for their children. They came to the session, confessed their fault, and were, 'rebuked, exhorted, and ordered to pay the charges'. The fines went to the poor box, the normal fees for a regular marriage were then paid, and the marriage was thus regularised. Then the baby was baptised. When all was said and done, the only ones to benefit from irregular marriage were the poor.
One question this raises for me: why didn't people perform their own baptisms as well, if they didn't regard the parish minister as legitimate?
The churches formed by the 1733 Secession went through about a century of further schism, before rejoining the Church of Scotland (just in time to take part in the Disruption of 1843). They seem to have adapted themselves to Leith's particular local conditions: the Relief Church was considered notably broadminded, "a great kirk for captains and company porters". 18th century Leith also had a schism among its (presumably tiny) Episcopalian church, between Jacobite and Royalist fractions, and saw the rise of the Glasites, Methodism, and Congregationalism; maybe no other town in Europe had such a complicated mix of Christian sects."
[ Followups to soc.culture.scottish - Leith has been rather less Celtic than Birmingham for the last 500-odd years, and I don't know of any historic record of the clan system having operated there at any time. ]
----------------------------------------------------------------------------- Jack Campin jack@purr.demon.co.uk T/L, 2 Haddington Place, Edinburgh EH7 4AE, Scotland (+44) 131 556 5272 --------------------- Save Scunthorpe from Censorship ---------------------