Marriage and Madness: The Origins of the Marriage of Lunatics Act (1742)

In 2021, the Parliament of the Irish Republic—as the last legislature in Great Britain and Ireland—abolished an act to prevent the marriage of lunatics. This Act had its origins in a British statute of 1742, which was subsequently extended to Ireland and was in force in all parts of the British isles from 1811 until 1959, when it was abolished for England and Wales. The Act has been almost completely ignored by (legal) history. Quite undeservedly so, for it may claim to be the first English general act since the Elizabethan settlement to interfere with the traditional canon law of marriage, predating the much more famous Hardwicke Marriage Act by more than a decade. The Lunatics’ Marriage Act absolutely voidedthe marriages of persons found to be lunatics by a commission under the great seal, or committed to the care of trustees by Act of Parliament. Persons fitting this description could no longer contract a valid marriage after June 24, 1742—even during a lucid interval—unless they had previously been declared of sane mind by the lord high chancellor, the lord keeper, the lords commissioners, or the trustees. There is little to suggest that unsuitable marriages by lunatics were a widespread problem in mid-eighteenth-century England (unlike unsuitable marriages by minors, which were targeted by the Hardwicke Act). Given the English reluctance to pass general acts in this period, why was the esoteric topic of lunatics’ marriage singled out for general legislative treatment, rather than being dealt with—like the thorny issue of divorce—through private acts on a case-by-case basis? This paper is an attempt to answer this puzzling question. The investigation takes us into high society and high politics.