I very unexpectedly recd. yours but was sorely disappointed to find the specious parade of yr. Epistle End in a question about Matrimony. It appears plain to me that tho' the Law is a subject you are more acquainted with than with Any other, yet tis but an Instrument by wch. you consider the most agreable Subjects, Rather than a Subject itself. Thus the painter uses his Art to portray his beautiful Mistress, thus the Logician may talk bawdy in Syllogism, & thus you consider Matrimony as a point of Law wch. once was the Subject of yr. softer muse. But as I suspect you are interested in this Quest: being dispos'd to taste the Sweets without the encumbrance of that state I shall therefore consider yr. Question with more gravity. & 1st, by Marriage in Reputation I suppose you mean, One that does not comply with the Law of Marriages; if so the Question may possibly be local. In England I so suppose any couple within their famous Act can reap no benefit from their marriage if it does not comply; but those that are not within that Act I do suppose may provided it be really a marriage i.e. there be proof of Mutual promisses & subsequent Correspondt. behaviour, for I dont suppose that Whore & Rogue can claim it. If then there be Mutual Promises &c., as I suppose to be the Case with the Quakers, it does not appear even to me why the Estates of Dower & Curtesy should not arise from it, & I think that the late seen Act respecting marriages at home (wch. indeed I am but Slightly acquainted with) seems to suppose that reputed marriages are attended with that privilidge & therefore has prescrib'd a rigid method wch. if swerved from subjects the Parson to a heavy fine &c., & the marriage nul & void. Now it is known that former Acts have laid fines on a Parson marrying contrary to certain Injunctions, yet still the marriage was good & consequently must draw the Priviledges. I take that to be but a reputed marriage in as much as it is not upheld by the Law, seing the Law is broke in the doing it. As suppose it be after the hour appointed, the Parson is liable &c. Yet the Rite takes place id quod fieri non debet.1 Much stronger is the Instance of Marriage in the Fleet2 which as far as I understand them were mere show performances by Imposters in Pontificalia & at unlawfull hours & could amt. to no more than a Mutual Promise before common witness, but I never heard of such a marriage being void ipso facto, so that the Quest depends on regulating Acts. In England57it must now be Served; with us perhaps not, & least of all with you where so great a Body of the People marry in that way & thereby establish the Law; but I can't look on that as a reputed Marriage where there is no proof of Mutual Promises.
Dft
; written on the second leaf of James Brenton's letter to RTP of Oct. 23, 1757.
1.
That which ought not to be done.
2.
Fleet Prison, London, England, where clandestine marriages without the usually required banns took place until outlawed by Lord Hardwicke's Act, 1753 (John Ashton, The Fleet: In River; Prison and Marriages [London, 1888]).