Abbildungen der Seite


By T. Algernon Earle, and R. D. Radcliffe, M.a., F.s.a.

Read 5th March, 1891.

AMONG the many interesting documents in the muniment room at Croxteth, is a copy of a curious Case and Opinions, dated 12th July, 1648, relating to a contract of marriage, made when under age, by Richard, afterwards second Viscount Molyneux, and the Lady Henrietta Maria Stanley, daughter of the seventh Earl of Derby. Inasmuch as this gives an interesting statement of the law governing such contracts, and is a contemporary commentary on a custom, at the time it was written of frequent occurrence and long standing, it seems to be well worth recording at length.

Of these " Child Marriages," Strype says in his Memorials (b. ii, p. 313), that " in the latter part of "the sixteenth century the nation became scan"dalous for the frequency of divorces, especially "among the richer sort, one occasion being the "covetousness of the nobility and gentry, who "used often to marry their children when they "were young boys and girls, that they might join "land to land; and, being grown up, they many "times disliked each other, and then separation "and divorce followed, to the breach of espousals "and the displeasure of God."

Instances in our own two counties are numerous enough; and, strange to say, the first Lord Molyneux was in early life contracted in marriage to Fleetwood, daughter and heiress of Richard Barton, of Barton Row, co. Lanc.; but the marriage not having been consummated, and he " being of the "age of fourteen years and not consenting thereto," it was dissolved by the Bishop of Chester, 15th February, 1607.'

The document with which we are concerned, and which is exhibited by the kind permission of the Earl of Sefton, K.G., consists of a brief Statement of the Case, with Questions for the Opinion of Counsel, and their Answers to the same, as follows :—

The Lord Molyneux beinge of the age of 16 : marryeth the ladie M. Stanley beinge of the age of 9 : yeares wlh the consent of the parents on both sides: Att her age of 12 : (they liveinge in severall places) nothinge was done toth' givinge either the dissent or assent of either of them. Butt since she beinge of the age of 16 : the lord Molineux hath seveall tymes pressed to pfecte the marryage butt she referred herselfe wholly to her parents without givinge anie other answere, and they have delayed him : butt have not given anie answere of assent or dissent.

1. Whether by mutuall consent of all pties the marryage

may yett be dissolved? [Ans.] If there had bcene anie expresse tacite consent, as by livinge together or the like, I conceive itt is a full marriage, and cannott be dissolved by agreem' of both pties.

2. Noe acte beinge done by either ptie utt her age of 12,

whether her libertie of disassent contineues? [Ans.] If they lived asunder I doe take itt either ptie may disassent and marry elsewhere, unlesse some acte can be pved to evidence theire mutuall assent, though anie small circumstance may be evidence of such assent.

1 Chctham Society Series, xxxi, p. 176.

3. Admittinge she may dissent, whether he hath nott the

same libertie?

[Ans.] He hath the same libertie, yett because the circumstances that are to pve such an assent be so manie & undetermined in law: I should advise my lord to have that determined in some iudiciall way, the consequence beinge great on either side, & I doe nott knowe anie other place whether this may be iudically determined butt either in the lords house or by Comission under the great seale, but the former is more speedie.

4. Admittinge neither hath power to dissent, whatt remedie

there is as the law nowe stands to force a cohabitation?

[Ans.] There is noe settled course to force a cohabitation, butt if she be taken from him an action of trespasse lyes ag' him or her that takes her, though I conceive the best way wilbe to petiton the lords settinge forth the truth of the case & pray their order

1. for her declaringe her assent or dissent.

2. for stayinge her in the kingdome till that be done.

3. ffor orderinge a cohabitaton as ag't her mother whoe

hinders in case noe sufficient dissent.

Math: Hale.

When a man att full age is contracted with a woman under the age of 12: yeares they are both att libertie to disassent & each may marry where they will att pleasure, the man before the assent of the woman, and the woman before such assent to the man, that assent of hers must be after the age of 12:

If a man att the age of 14: marrie a woman of the age of 10: he may as well disagree as she may, though he were att the age of consent, because in contracts of matrimonie either both must be bound, or equall electon of disagreem' given to both, & soe d conversb if the woman be of the age of consent and the man under. Co: Litt: (sect: 104.)

A: att the age of consent by licence and consent of parents married M: beinge wthin age to consent, afterwards M: accomplished the age of consent, A: beinge of the age of xxi, & M: att the age of consent desires to pfecte his marriage accordinge to the originall agreemt of parents, by a motion unto M: and her parents; M: denied to assent of herselfe butt referred herselfe to her parents, and since the age of consent noe other disassent; and M: is nowe att 16: yeares of age and upwards.

1. Whether for want of disassent att full age hath tyme con

sumated this marriage?

2. If nott because M: ne\9 assented what is A: his remedie

either to make M: his wife and receive her portOn, or be freed from that bond, and so enabled to marry another?

[Ans.] In this case it was nev' in the power of A: to dissent or avoid this marriage unlesse M: at the age of 12: yeares had declared her dissent & desire to have avoyded the marryage. And if M: had then published her dissent in due forme and made her potestation as the law requireth, then M: might have avoyded this marryage & contracte, and in that case A: by consequence had been also freed and might have married another woman. Butt nowe M: havinge nott dissented att the tyme aforesaid the lawe psumeth her consent and they remaine husband and wife, & I knowe noe remedie att law to avoid itt or to dissolve itt till death.

July i2rh A. M. Ducke.


The document is endorsed :—
The copie of the cases and opinions:

in another hand—

relateing to Contracte of Marriage made underage
betweene the Ld Molyneux and M. Stanley

and, in another hand—

Not fitt to be showne unless we lay orselves open
to make their bargaine.

Richard, second Viscount Molyneux, one of the parties to this " Child Marriage," was twenty-third in direct male descent from the original Molyneux, grantee of Sefton. He was the eldest son "of Sir Richard Molyneux, of Sefton (Knight and Baronet, created Viscount Molyneux, of Maryborough, in the Peerage of Ireland, 22nd December, 1628), by his wife Mary, daughter and coheir of Sir Thomas Caryll, of Denton, in the county of Sussex, Knight.

In the Diary, or Calendar, of James, seventh Earl of Derby, preserved at Knowsley, an entry in his handwriting records the birth of "his daughter, Henrietta Maria, on 17th November, 1630. At the time of the "Child Marriage," according to the Statement of Case, she was nine years old, so that it must have taken place in the year 1639.2 At this time, the Case says, the bridegroom was sixteen years of age; therefore he must have been born in 1623. In Dugdale's Visitation of Lancashire, made in 1665, Caryll, third Viscount Molyneux, is returned as being then forty-one years old, implying that he was born in 1624, which is consistent with the birth of his elder brother Richard in 1623.3 The bride, spoken of in her father's letters and diary as Mary, was born at Chelsea, on the day above named, and was the second daughter, and third child, of her illustrious parents. According to Madame De Witt,4 she was her mother's companion during the siege of Lathom House, in the spring of 1644. And in her father's Diary is an interesting record of how she saved the life of her brother William, when he was falling over a precipice at Castle Rushen, in the Isle of Man, in the month of November, 1645.

The first Viscount Molyneux died in 1636, and was buried at Sefton on the gth of March in that year.5 In the Calendar of Domestic State Papers, for the year 1635-36, an incomplete copy of his funeral certificate is printed, reciting his burial at Sefton, and that his eldest son was already married to Mary, daughter of James, Lord Strange.

Appended to the certificate is an information of Edward Asfolte [? Holt, of whom more presently],

2 One wonders where: was i! in the old Chapel at Knowsley, now desecrated, and turned into the kitchen? or in that at Lathom, long since levelled to the ground? The Vicar of Ormskirk writes that there is no record of it in the Ormskirk parish registers.

3 In the Domestic State Papers there is a letter, dated 27th November, 1633, from John Dinley, writing from the Hague, to Sir Francis Nethersole, saying that "the Queen of Bohemia wishes him to inquire after a young son "of Lady Fulgiam's [Foljambe's], or Mollenex [Molyneux], who has been "recommended to her for a page." This probably refers to our hero.

4 Lady of Lathom, p. 92.

5 Buried : "Richardus Molyneux Vicecomes de Maryborough, 9 March" [1636J.— Sefton Registers.

« ZurückWeiter »