Scotland remained unaffected by Hardwick’s Marriage Act of 1753 (see our article on clandestine marriage in the February 2014 issue). Here, for a marriage to be deemed ‘regular’ it merely required the ceremony to be carried out by an ordained minister, and to be preceded by proclamation or banns. Parental permission was not required, girls as young as 12 and boys of 14 could legally marry without it. This rule remained in force until 1939, when the age of consent was raised to 16 for both sexes. Nor was it a requirement for the couple to marry in a church. It was not uncommon for the ceremony to be carried out in the bride’s home, or the parish manse.

These differences stem from the way in which marriage is viewed in Scotland. In England and Wales it was viewed as a religious ceremony, in Scotland as a mutual consent between the two parties. It is this difference that ensured ‘irregular’ marriages were recognised as being legally binding.

‘Irregular’ marriage in Scotland did not require residency (of 21 days) until the reform bill known as the ‘Cooling Off Act’ was passed in 1856, introduced by Lord Brougham, the Scottish-born former Lord Chancellor. Before this date, in order to be recognised by law, an ‘irregular’ marriage came in three forms:

• A couple were legally married if they declared themselves to be so in front of witnesses, regardless of whether this was followed by a sexual connection. Marriage contracted in this way without witnesses was also legal, but much harder to prove in court.
• A promise of marriage, followed by a sexual relationship, was regarded as a legal marriage – but this had to be backed up by some kind of proof, such as a written promise of marriage, or an oath sworn before witnesses.
• Marriages ‘by habit and repute’ were also legal if a couple usually presented themselves in public as husband and wife, even if no formal declaration of marriage was made.

While frowned upon by the Church, it was tolerated for fear that if not recognised by law, the couple involved would be deemed ‘living in sin’. References to ‘irregular’ marriages regularly appear in Scottish kirk session minutes, when the couple would be reprimanded and either be married again or required to pay a fine, or sometimes both.

Thus from 1754 Scotland provided English sweethearts with the opportunity for elopement. The fame of Gretna Green spread and became synonymous with clandestine marriages. However, Gretna was not alone; nor was it unique to English couples unable to gain parental consent. Border crossing points on the Eastern side of the country sparked up a brisk trade in the performing of such marriages – Lamberton Toll, Coldstream, Paxton Toll, Mordington to name but a few.

Other social groups that this system of marriage appealed to were members of dissenting religions, particularly Presbyterians. It was also popular with agricultural workers who needed to marry in a hurry, not because of a pregnancy, but because of the lack of opportunity presented by the remote rural nature of the Border region . The twice yearly hiring fairs, plus market days and holidays would see a surge in business in towns throughout the Borders. One former jeweller in the town of Berwick recalled that it was not unusual to sell 12-18 rings on such mornings, for use later that day at Lamberton Toll.

A fascinating, if somewhat lengthy article appears in the Berwickshire News and General Advertiser on 12 March 1889. It is the recollections of a former occupant of Coldstream Toll, then the Bridge Inn, where the back room was used for the purpose of irregular marriage on many occasions. From this account we can glean a host of information about the, ‘who, where, when and why’ and the celebrants calling themselves ‘priests’ who conducted the marriages. The writer tells us that the spring hirings in England were a particularly busy period with up to 10 ‘cases’ presenting themselves for marriage during the night and hours of darkness on Fair Day at Wooler, 14 miles to the south, alone. He states that the practice was equally as popular among the local rural population on the Scottish side of the Tweed.

The Coldstream ‘priests’
The people performing these ceremonies add colour and go a long way to explaining the scarcity of records that surround these ‘irregular’ unions that can frustrate and confuse the family researcher.

Before 1855, no formal registration of a birth, marriage or death was required by law in Scotland, and the ceremony did not require the presence of a minister. In the early days, the trade of ‘marrying the folk’ was performed by largely uneducated and illiterate people – or idlers as described by the former occupant of the Bridge Inn.

Pattie Mudie and Jack Armstrong were two of the well-known Coldstream ‘priests’. No records exist of the marriages they conducted as they either refused to keep them or were unable to do so. There was also Mr Ewan the tailor, who is described as being a bit of a dandy but rather unpopular with the more sober clientele due to his fondness of the ‘aqua vitae’ (ie whisky)!

Probably the best known Coldstream ‘priest’ was William Dickson, a shoemaker by trade. Widowed, his health ailing and with a young family to provide for, he reluctantly assumed the role of priest and celebrated many marriages between 1840 and 1857. In 1844 Dickson began to keep meticulous records and conducted the ceremonies in a sincere, respectful manner which made him very popular. This popularity came at a cost when he incurred the wrath of the local Minister, the Rev Thomas Smith Goldie, who took Dickson to court in 1844.

The case was heard in Edinburgh and dismissed, unlike those of two of his Coldstream predecessors Andrew Rutherford and James Angus, who were banished from Scotland never to return on pain of death. This was not for performing ‘irregular’ marriages, but for assuming the appearance of clergymen!

The last entry in Dickson’s register appears on 25 July 1857. He is known to have officiated at 1,446 weddings. It is believed there may have been many more.

A change in the lawThe narrator and innkeeper in the newspaper article of 1889 remonstrates about the change of the law regarding the 21-day residency rule in 1856, with the passing of Lord Brougham’s ‘Cooling Off Act’. Cool off it did but the practice of irregular marriage continued, albeit on a much lesser scale until its abolition in 1939. The change in the law obviously hit his own pocket hard. He says:

My malison be upon all those who took ‘airt and pairt’ in the making of a law which deprived me and many more of a considerable amount of income and poor folks the pleasure of getting cheaply married without the compulsory interference of a busybody in the shape of a minister or a registrar who cannot tie the marriage knot one whit tighter that I have seen it done in my ain house in the auld fashioned way.

Ironically, tradition has it that Lord Brougham himself was married in Coldstream under the old system in 1819 at the Newcastle Arms Inn – but as ever there is no surviving written record!