On Jactitation of Marriage

As it happens, jactitation is both a legal and a medical term. In this article, only the legal meaning of the term will be addressed. In particular, its legal meaning with regard to marriage will be the focus here. This curious and antiquated legal option was less commonly used at the end of the nineteenth century and was finally abolished near the end of the last century. However, it was used from time to time during our favorite decade and it is quite possible that at least a few Regency authors may find its provisions useful as an uncommon plot twist for a romance set during that era.

On jactitation of marriage . . .

The word jactitation has its roots in medieval Latin, in particular, Canon Law. It has the meaning of boasting or making a false declaration, in public, to the detriment of someone else. Jactitation of marriage was essentially when one party boasted that they were married to another, when, in fact, they had never participated in a wedding ceremony with that person. The injured party would then have grounds to bring a "Cause of Jactitation of Marriage" against the person making the false declarations. According to the Online edition of the Oxford English Dictionary, the first recorded instance of such a suit in England was in 1685.

The English Marriage Act, which came to be known as "Lord Harwicke’s Marriage Act," passed by Parliament, in 1753, significantly reduced the number of jactitation suits which were pursued in British courts. The Act required that a marriage license, or the calling of the banns, along with a formal wedding ceremony, conducted by a clergyman, in the presence of witnesses, followed by a record of the marriage entered into the parish registry, was the standard for a legal marriage in Britain. The provisions of the Act made it less likely that a person could successfully claim that they were the spouse of someone to whom they were not legally married. Even so, there were still some instances of suits for jactitation of marriage brought in British courts during the Regency.

During the Regency, as had been the case in previous centuries, since these suits concerned some aspect of marriage, causes for jactitation of marriage had to be brought in ecclesiastical courts. In Britain, since these courts represented the Church of England, they held their authority from the Crown, giving their judgements much the same weight as those handed down in civil courts. Since such causes for jactitation of marriage were not considered to involve church doctrine, they were typically initiated in the lower-level courts. Though it was entirely possible for complex cases to be escalated to higher church courts. Causes for jactitation of marriage remained under the jurisdiction of the ecclesiastical courts until the Matrimonial Causes Act of 1857 transferred them to a newly created civil court. This new court not only had jurisdiction for suits for jactitation of marriage, it also had jurisdiction for proceedings for divorce as well as all probate cases.

In 1820, as part of his judgement in a case of jactitation of marriage, Lord Hawke vs. Elizabeth Corri, the judge, William Scott, Baron Stowell, wrote that such cases were intended

. . . for the protection of persons against the extreme inconvenience of unjust claims and pretensions to a marriage which has no existence at all. If a person pretends such marriage and proclaims it to others, the law considers it as a malicious act and subjecting the party against whom it is set up to various disadvantages of fortune and reputation, and imposing upon the public (which for many reasons is interested in knowing the real state and condition of individuals who compose it) an untrue character, interfering in many possible consequences with the good order of society, as well as the rights of those who are entitled to its protection — it is therefore a fit subject for legal redress— and this redress is obtained by charging the supposed offence with having falsely and maliciously boasted of a matrimonial connection; and upon proof of the fact obtaining sentence, enjoining him or her to abstain in future from such false or injurious representations, . . .

A suit for jactitation of marriage could only be brought against the person who falsely claimed to be married to the petitioner, that is, the person who brought the suit. And only the respondent, the person who falsely claimed to be married to the petitioner, could be sued. Third parties who might be aware of the respondent’s remarks did not have standing to bring such a suit, no matter how much they might wish to seek redress for the petitioner. The only exception was if the petitioner was still a minor, in which case their parents, typically their father, would have the legal standing to bring such a lawsuit on behalf of their child. It was not possible for anyone to bring a cause for jactitation of marriage against any third party who might allege that a marriage had been contracted between two other parties. For example, if Prunella Postlethwaite publicly claimed that her sister, Prudence, was married to Lord Gilbert Gotrocks, Lord Gotrocks could not bring suit against Prunella. However, if Prudence herself claimed, in public, that she was married to Lord Gotrocks, he would have been able to sue her for jactitation of marriage. Nor could Lord Gotrocks brother, or best friend, bring such a suit, against either Prunella or Prudence, since they were not the injured party and would therefore have no legal standing in court.

A respondent in a suit for jactitation of marriage had only three options by which to defend themselves, they could: 1) deny they had made any such statement, 2) prove that they were actually married to the petitioner in the case, or, 3) prove that the petitioner was aware of their false statements and had acceded to them, or had not denied them, if the statements were made within their hearing. The first type of defense would crumble immediately, if the petitioner had any witnesses who could verify that the respondent had boasted that they were married. The second defense, proof of a valid marriage between the petitioner and the respondent, would have been very strong. However, after the passage of the Marriage Act, the usual practice was to give the "marriage lines," that is, the document which served as a marriage certificate, to the bride, after the wedding had been recorded in the parish register. Which might pose a problem for a man who was claiming to be married to a woman. If there was a marriage certificate, it is much more likely it would be in her possession than in his, which could make proving the case more of a challenge. The third defense, that the petitioner was aware that the respondent was boasting that they were married and had not denied the statements, would also require witnesses who had heard the respondent make such statements in the presence of the petitioner. Without irreproachable witnesses, such a defense would be hard to prove in court.

In 1687, in the jactitation of marriage case of Boyle vs. Boyle, the man was convicted of falsely claiming that he was married to a woman who then brought suit against him. Having lost the case, the man was sentences to being burned in the hand. This severe penalty may have been imposed because the man already had a wife and was therefore attempting to commit bigamy. By the eighteenth century, and right through the Regency, if a respondent lost a suit for jactitation of marriage, the usual penalties were that the respondent was prohibited from making such false claims ever again, and, in most cases, the respondent was also required to pay all court costs. Unfortunately, if third parties had been making claims of a marriage between the petitioner and the respondent, the judge’s decree did not apply to them, which means they could continue to make such false claims, though not with total impunity. In such cases, the petitioner’s best recourse would be to bring a suit of slander or libel against those third parties, in a civil court.

It must be noted that judgements for causes of jactitation of marriage, either way, did not constitute legal proof of a marriage, or non-marriage, with regard to other court cases in which those same parties might be involved. For example, a favorable judgement in a jactitation case would not constitute a legal divorce, so a petitioner who won a jactitation suit, and was married to the respondent, would still be legally married to them. This was the case when Elizabeth Chudleigh, the Duchess of Kingston, was prosecuted, in Parliament, for bigamy, in 1776. She had attempted to use a favorable decree in a suit for jactitation against her first husband, Lord Augustus John Hervey, whom she had married in a private ceremony as a girl. The Members of the House of Lords refused to accept the judgement of jactitation as proof she had been free to marry the Duke of Kingston and she was found guilty. The only result of a judgement for jactitation would be that the respondent would no longer be able to make statements that they were married to the petitioner. However, if the marriage was legal and was known to the court, the dismissal of the cause for jactitation would serve to affirm the couple’s marriage.

A notable suit for jactitation of marriage began in the spring of 1819. Edward Hervey, Lord Hawke, brought suit against Augusta Elizabeth Corri, a young woman who was representing herself as his second wife. In their filing for the suit, Lord Hawke’s solicitors stated:

That Lord Hawke is, in no way, married or united with this lady, (meaning, as the Court presumes, neigher in fact nor in law); that she has falsely and maliciously boasted and reported, that she is married to him, whereas, in fact, no marriage has taken place; and that, on her being desired to desist from such conduct, she paid no attention, but continued, falsely and maliciously, to boast and report such fact, to the no small prejudice and injury of the complainant.

Which was all well and good, except for the fact that this was actually an egregious misrepresentation of the facts. It is not clear whether or not Lord Hawke told his solicitors the truth about his relationship with Miss Corri. In their own filing, Miss Corri’s solicitors explained that she was a respectable and innocent young woman who had met Lord Hawke, who was then a widower, early in 1814. He courted her, paying his addresses most arduously, until he proposed marriage to her. She accompanied him to Doctor’s Commons, where she believed he had obtained a special license for their marriage. On the evening of 19 March 1814, in a house at 22 Park Lane, London, Miss Corri and Lord Hawke went through a marriage ceremony, officiated by a man whom Lord Hawke introduced to Miss Corri as a clergyman in the Church of England. At the request of Lord Hawke, the marriage was kept secret for a few months. However, from that time, the couple were living together as man and wife, in the Park Lane house in London, in Lord Hawke’s family seat in Yorkshire, and on a trip to Paris. Lord Hawke introduced Augusta as Lady Hawke, not only to his friends, and retainers, but also to his children by his first wife.

Apparently, the marriage certificate was a forgery and the man who officiated at the wedding ceremony at the Park Lane house in March of 1814, was an impostor. It seems that Lord Hawke felt he could not convince Miss Corri to share his bed in any other way but by going through a false wedding ceremony with her. By the end of 1818, he had grown tired of her and had become interested in another woman. But Augusta, in good faith, was continuing to represent herself as Lady Hawke. It is not clear if Lord Hawke had actually told her the truth, that she was not legally married to him, or not. What is known is that by the spring of 1819, he had grown frustrated with Augusta’s assertions that she was indeed Lady Hawke, as he wished to be known as a single man again. Therefore, he decided to bring suit against her for jactitation of marriage. Unfortunately for Lord Hawke, all of these facts became known to the court and, much to Lord Hawks’ chagrin, the case was dismissed, in May of 1820. Though Miss Corri had won her case, the end result was that it was publicly revealed that she was not legally married to Lord Hawke and had spent several years living with him as his wife, without benefit of clergy.

The number of suits for jactitation of marriage dwindled though the rest of the nineteenth century and into the twentieth. However, there were still a few cases which were brought to court from time to time, through those years. The last case on record went to court in 1968. It was not until the passage of the Family Law Act, in 1986, that the right to petition for jactitation of marriage was officially abolished in the United Kingdom. The right to petition for jactitation of marriage was not abolished in the Republic of Ireland until almost a decade later, in 1995.

Dear Regency Authors, might a cause for jactitation of marriage make an intriguing plot point in an upcoming story of romance set in our favorite decade? Perhaps one of your characters is in a situation like Miss Augusta Corri, and has been tricked into what she thinks is a marriage, only to later be sued for jactitation of marriage when her lover wishes to dispense with her and take another lover. Perhaps the villain of a story publicly and repeatedly boasts that he is married to a young heiress in an isolated rural area, thinking to force her and her family to accept him as her husband. Will the villain’s plot be defeated when the hero helps the young woman to bring a cause of jactitation of marriage against him? Or, might a couple put it about that they are married, when in fact, they are not, because they love one another and their families are trying to keep them apart. If the young lady is a minor, might her father try to bring a suit for jactitation of marriage against the young man, only to be defeated in court, since the young woman has repeatedly and publicly acquiesced in her beloved’s claims that they are man and wife? Are there other ways in which a suit for jactitation of marriage might play a part in an upcoming Regency romance?

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About Kathryn Kane

Historian with a particular interest the English Regency era.   An avid reader of novels set in that time, holding strong opinions on the historical accuracy to be found in said novels.
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18 Responses to On Jactitation of Marriage

  1. Roger Street says:

    An interesting article Kathryn. When I studied to become a solicitor many years ago a petition for jactitation of marriage was still available, as was an action for restitution of conjugal rights, though I was not involved in any such proceedings myself either professionally or personally!

    • Kathryn Kane says:

      Nice to hear from you! Happy New Year!!!

      I suspect such cases were fraught with emotion for those involved. Probably a good thing you did not have to deal with any of them.

      While I was doing my research, I ran across information on the restitution of conjugal rights and learned that some parties, usually women, were willing to go to jail rather than return to their spouse. So even if the case was won, the party making the demand may not have gotten what they wanted.

      I imagine you find hobby-horses much more engaging! 😉

      May your strides ever be long ones,

      Kat

  2. the plot bunny which occurred to me was of Miss X, penniless heroine, who is travelling to London to stay with her aunt. A stagecoach accident leaves her stranded, and the innkeeper sneers at her meagre possessions and lack of maid. Haughtily, Miss X, who is clearly a lady, declares that her luggage and maid went on ahead, and she will write to her husband, Lord Y to rescue her. The innkeeper says, “Ho well, your husband is already here!” and fetches Lord Y, who is furious.
    “Funny, I never knew I had a wife; you realise this means a Jactitation of Marriage suit?” Miss X stammers that she made a name up out of whole cloth and did not realise there was a real one. Lord Y sneers and says she can either be sued or accept that he is going to want his marital rights while she is in this inn. Miss X sobs for she is ruined either way. He kisses her, and finds out she is a total innocent, and proposes a compromise.
    Unknown to Miss X, Lord Y is fleeing a marriage his mother is arranging for him with a bosom bow of hers who has a daughter. Lord Y is fleeing because he has met both bosom bow and daughter.
    He tells Miss X that if she will marry him by special licence – he happens to have one in his pocket since he was planning on marrying almost anyone else – then he will promise to see her looked after providing she gives him an heir.
    The majority of the story is about husband and wife learning to fall in love.

    • Kathryn Kane says:

      Oooohhh!!!! I love stories of a marriage of convenience with the parties learning about one another and coming to love one another. Particularly if that love puts a spoke in the wheel of others’ plans for them! I think that is a truly superior plot bunny!

      Happy New Year!!!

      Kat

      PS – I fixed the typo. 😉

      • I thought it was open to a lot of fun, and possibly a bit raunchier than I usually go for. If I wasn’t already writing 3 books at once … one of which is about a viscount who is disguised, for a wager, as a gardener, and one of which is the first of a series called the 7 Stepsisters. The other is out of the scope of this page being set in Elizabethan England with dragons.
        And a Happy New Year to you, mine has started well on the writing front with an award in the Georgian section from the Jane Austen Readers for ‘The Valiant Viscount’.
        I was telling my editor my plot bunny and she told me how to spell the damn word; I have now saved it in my spell checker.

        • Kathryn Kane says:

          Congratulations on your award!!! It is always nice to know one’s work is appreciated.

          Well, if you are planning to use jactitation of marriage in an upcoming story, it will be nice to have the correct spelling in your spell checker. 😉 Sounds like you have an excellent editor. An invaluable partner for an author.

          =^..^=

          • My editor, Giselle Marks, who also writes excellent regencies [and has also won an award and bullied me firmly into entering] is a great content editor as well as editing for typos, spelling, and anachronistic words. I thoroughly recommend her to anyone looking for an editor.

  3. A quick question here: I have a boneheaded clunch who keeps claiming that the widowed mother of my heroine is essentially betrothed to him, despite that she keeps saying no. Since betrothal was a contract which was serious enough that jilting could be sued for breach of promise, does his claim become tantamount to jactitation? I have had the man the widow favours threaten it, since the clunch tries to order her behavior and that of her daughters.

    • Kathryn Kane says:

      So far as I could tell, jactitation of marriage suits could only be brought in instances where one person falsely claimed to be married to someone else. I think this was because marriage had more affect on property rights than did most betrothals, even though betrothals did constitute a contract.

      My guess is that your heroine’s mom would have grounds to bring a defamation or slander suit against the clunch, since, at least technically, he was damaging her reputation and her options for legitimate marriage with his false claims. The clunch might even be thought to be damaging the reputation and marriage prospects for the daughters as well, giving them grounds for a slander or defamation suit.

      Hope that helps.

      Regards,

      Kat

  4. still, there’s nothing wrong with the mother’s real betrothed threatening him with it, even if he can’t carry it through, saying he is ‘perilously close to a Jactitiation of Marriage suit’ as he has claimed he has the rights of a step father over her daughters

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