Scottish Marriage by Declaration - Irregular Marriage - Sheriff Court Records

While you are researching your Scottish family history you will come across different wordings in the civil marriage registers (marriage certificates) that begin in 1855. These are the ‘Statutory Registers’ which you can search on ScotlandsPeople.

You may have seen, “After Publication according to the Forms of the Church of Scotland/Free Church/United Presbyterian Church of Scotland/Roman Catholic Church”. 

You may also see, ‘By Declaration in the presence of [names of witnesses].” In these cases, you will also see, “Warrant of the Sheriff Substitute of the [name of Sheriff Court]”.

I am including an image from ScotlandsPeople, which shows both of these types of entry on the same page. What’s the difference? Why is there a difference? Will the Sheriff Court records tell me more?

Until the mid-twentieth century, you could marry in Scotland by declaration. What does this mean? Basically, you said in front of witnesses that you were married and that was it; you were married. This was also known as an ‘irregular marriage’ (sometimes also referred to as a clandestine marriage) as opposed to a ‘regular marriage’ when a minister (or clergyman) performed the service.

An irregular marriage was quicker to arrange as the banns were not read. Although used by people throughout Scotland, it was perhaps the convenience of the marriage, along with the lower age requirement for marrying in Scotland without parental consent, that made places like Gretna Green on the border with England so popular for ‘runaway weddings’.

Both of these types of marriage were legal. The Church did not approve of irregular marriages and for that reason these frequently appear in Kirk Session records, but that’s a subject for another day.

Before 1855, when civil registration began, couples could declare in front of witnesses that they were married and that was that. 

After 1855, this type of marriage by declaration continued, but how was it to be recorded? To have the marriage registered the couple went to the Sheriff Court to receive a warrant. That warrant authorised the registration of the marriage.

Looking back at the marriage register is helpful here. We often make a dash for the names and dates but always take time to look at the headings. In the case of an irregular marriage, we see under the heading ‘When, Where and How Married’, the words ‘By Declaration in the presence of [names of witnesses].’

Another column heading is ‘If a regular Marriage, Signature of officiating Minister and Witnesses. If irregular, Date of Conviction, Decree of Declarator, or Sheriff’s Warrant.” Again in the case of irregular marriage, we usually see it completed, ‘Warrant of the Sheriff Substitute of the [name of Sheriff Court]’.

Are there corresponding records kept by the Sheriff Court?

Yes. These can be helpful, but not usually. Surviving records are generally found in the ‘Diet Books’ or ‘Minute Books’ of the sheriff court and are usually quite brief. In the example shown here, we see that the only extra information we are given is a bit more detail about the witnesses. I would never say not to follow the paper trail, just don’t get your hopes up.

Of course, there are often surviving church marriage registers post-1855 too which are occasionally useful. In general though, the information in the marriage register you can easily access on ScotlandsPeople will tell you just as much, if not more, than the corresponding church records. If you are up against a brick wall and can visit the National Records of Scotland, look at everything you possibly can.

Were all irregular marriages after 1855 registered?

There is evidence that they were not. I would like to do further study into this but occurrences in the Kirk Session minutes of the parish of Canonbie have been noted where a couple were reproved by the Kirk for being irregularly married and no corresponding record can be found in the marriage registers on ScotlandsPeople. 

Keep learning about Scottish genealogy by attending our free Scottish Indexes Conferences. The next is scheduled for 23 October 2021.

Sheriff Court records

If you have been doing genealogy for more than five minutes you will have discovered that our Victorian ancestors were not quite as well behaved as we may have have been led to believe. The number of children born outside marriage, or within weeks of the marriage astounded me when I began researching.

This can present a real challenge to the family historian. In Scotland a marriage certificate after 1855 will sometimes give both parents’ names even in a case of illegitimacy. Sometimes, though, even with a name of the father, finding him can be more than a little challenging, as so little information is given about him. This can lead to the inevitable brick wall.

There are various ways to overcome this, one being the Kirk Session records of the Church of Scotland and other Presbyterian churches. These were well explained in the episode of ‘Who Do You Think You Are?’ featuring Annie Lennox. These are certainly a very sensible first port of call.

As the nineteenth century progressed, the Kirk Session records tend to decline in usefulness as fewer people are recorded in them, especially in the larger towns. This also means a record of baptism naming both parents is unlikely.

There is however another, often overlooked, source available and that is the Sheriff Court records. The Sheriff Courts deal with criminal and civil cases, and in looking for paternity cases we generally begin with the records of civil cases. A good place to begin is the decree books, where these exist. These are usually neatly written volumes, covering at most a few years at a time. The decree records the outcome of the case and will be helpful in giving us a brief summary of the facts as established by the court. The disadvantage has been is that these records are often time-consuming to search. The National Records of Scotland (NRS) hold them, but as they are not stored in the same building as the search room they must be ordered in advance a day or two before your visit. All of this is could seem quite a hassle and you have no guarantee of finding anything.

That is why I am so pleased to tell you that we have uploaded a new set of records to our website: Paternity Cases in the Decree Books of Jedburgh Sheriff Court. Our index to these records has been produced with the kind assistance of Margaret Hamilton. The books have been searched for paternity cases where the mother of an illegitimate child is taking the father (or his relatives) to court to receive aliment for the child.

You can search our court records page by mother or father and see if there is a case relating to your ancestors:

www.maxwellancestry.com

You can search by mother’s name alone, or by father’s name alone to see if your ancestor is in the database. You can also search by year to narrow down the results. Once we expand the database I will prepare some ‘how to’ guides. Follow me on Twitter to keep up-to-date @maxwellancestry

John Flynn the Vagabond

Looking through the Kirkcudbright Sheriff Court Records of Criminal Trials April 1858 to March 1859, as you do, I found the following case which interested me. This is just one the thousands of criminal trials from the South of Scotland. We hope to produce an index but in the meantime we can easily search them for you; just email me: emma@maxwellancestry.com

This criminal court material has been bound but originally was folded. When folded the following would have been seen form the outside to inform as to the bundle’s contents (it now appears in page 34 of the book: NRS reference SC16/51/16 pages 29 to 34).

SCHEDULE, No. 1.

Punishment for Desertion of Wives,

and Refusal to Maintain Ille-

gitimate Children

_______________

Petition and Complaint

of

John Thomson

Inspector of the Poor of the Parish of

Girthon

Against

John Flynn, now or

lately residing in Castle

Douglas

[Page 29 of book]

Unto the Honourable The Sheriff of the County of Kirkcudbright or His Substitute. The Petition and Complaint of John Thomson, residing in Gatehouse-of-Fleet Inspector of the Poor of the Parish of Girthon in the County of the aforesaid, with concourse of George Hamilton Esquire Procurator Fiscal of the said County:

Humbly Sheweth,

Than and Act was passed by the Scottish Parliament in the year One thousand five hundred and seventy-nine, Chapter Seventy-four, intituled. ‘An Act for Punischment of Strang and Idle Beggars and Reliefe of the Pure and Impotent.’

That by Statute Eight and Ninth Victoria, Chapter Eighty-third, passed of date the Fourth day of August, One thousand eight hundred and forty-five, intituled ‘An Act for the Amendment and better Administration of the Laws relating to the Relief of the Poor in Scotland,’ it is enacted, Sction Eightieth, ‘That every Husband or Father who shall desert or neglect to maintain his Wife or Children, being able so to do, and every Mother and every putative Father of an Illegitimate Child, after the Paternity has been admitted or otherwise established, shall refuse or neglect to maintain such a child, being able to so do, whereby such a Wife or Children or Child shall become chargeable to any Parish or Combination, shall be deemed to be a Vagabond under the provisions of the aforesaid Act of the Scottish Parliament, passed in the Year One Thousand five hundred and seventy-nine, and may be prosecuted criminally before the Sheriff of the County in which such Parish or Combination or any Portion thereof is situated, at the Instance of the Instance of the Inspector of the Poor of such a Parish or Combination, and shall, upon Conviction, be punishable by Fine or Imprisonment, with or without hard Labour, at the discretion of the said Sheriff.’ That

John Flynn Labourer now or lately residing in Castle Douglas and now or lately working on the Castle Douglas & Dumfries line of Railway.

has been guilty of a breach of the said Enactment, in so far as*

That the said John Flynn is the Husband of Ann Colquhoun or Flynn presently residing in Gatehouse of Fleet in the parish of Girthon, and


*Here insert the narrative of the particular offence, taking care to observe the description in the Statute, particularly narrating - 1st That the part is Husband or Father or Putative Father, or the Mother, as the case may be; 2d. The desertion or neglect, or refused to maintain being able so to do; 3d. That the Wife or child has thereby become chargeable to the Parish.


[Page 30]

is the father of the three children born by her to [date.?? (obscured by binding)] That the said John Flynn has for some time de[serted] his said wife and children, and refuses, or ref[used] to maintain them although he is perfectly able so to do; That in consequence of the said desertion and refusal or neglect by the said John Flynn the said wife and children have become charge[able] to the said Parish of Girthon, and the pet[itioner] the said John Thomson has has advanced and i[s] still advancing sums of money for the suppo[rt] of the said Wife and Children.

The Petitioner herewith produces Extract from Marriage Register Kept by the Roman Catholic Clergyman at Dalbeattie of Marriage between the said John Flynn & Ann Colquhoun

That therefore the said John Flynn
ought to be punished in terms of the foresaid Enactments.

May it please your Lord to consider the foregoing, and in respect of what is before stated, to grant warrant to Officers of Court and Assistants, to apprehend the person of the said
John Flynn, and to bring him before you to answer to this Complaint ; and thereafter, upon what has been therein stated being either admitted or proven, to Decern and Adjudge the said John Flynn, as a Vagabond in terms of the before recited Statutes, to forfeit and pay such fine, not exceeding £10 Sterling, as to your Lordship may seem proper, and, in the event of failure to pay the same, to grant Warrant to imprison the said John Flynn for such period, not exceeding 60 days, as your Lordship shall fix, unless paid before the expiration of such period, or to Decern or Adjudge the said John Flynn to be imprisoned in the Common Gaol or House of Correction of Kirkcudbright and for such period, not exceeding 60 days, as to your Lodrship may seem proper, and grant Warrant to imprison him accordingly, or to do otherwise in the premises as your Lordship may see cause, all in terms of the foresaid Acts of Parliament.

According to Justice, &c.

John Thomson


14 March 1859
Wants concurrence
Henry Hamilton Pror. Fiscal

[page 31]

At Gatehouse on the 5th day of April 1845 John Flynn and Ann Colquhoun were married by me in the presence of Bartlry McKenna, Samuel Rogers and others - (signed) John Strain.

Extracted from Marriage Register this 24th day of March 1859.

Alexander Gordon

Dalbeattie
24 March 1859



[page 32 back of page 31]

Certificate of Marriage
Between
John Flynn
&
Ann Colquhoun
5 April 1845

Produced with
Petn. & Complt. of Inspr.
of Girthon v John
Flynn



[page 33]

Having considered the foregoing Petition and Complaint, grants Warrant to Officers of Court and their Assistants to apprehend the person of John Flynn complained on, and to bring him before the Steward or his Substitute for examination, and to answer to the complaint.

(signed) W H Dunbar
Kirkcudbright 31 March 1859


At Kirkcudbright the eighth day of April,
Eighteen hundred & fifty nine years
In presence of W. H. Dunbar. Esq. Steward Substitute
of the Stewartry of Kirkcudbright

Compeared the Prosecutor John Thomson with his
Agent W. S. Ewart, Writer in Gatehouse. Compeared also
the said John Flynn and the foregoing Complaint having
been read over to him he answers that he is not
guilty of the charge therein contained.

(signed) John Flynn                  (signed) W H Dunbar

The prosecutor adduced the following Witnesses in
support of the Complaint who were examined upon oath:-

Ann Colquhoun or Flynn, residing in Gatehouse.
John Thomson, Inspr. of Poor, Gatehouse.
The prrosecutor adduced his Proof
(signed) W. S. Ewart Pror.

The pannel stated that he had no evidence to adduce in exculpation.
(signed) W H Dunbar



[page 34]

Kirkcudbright 8th April 1859. The Steward Substitute finds the pannel the said John Flynn guilty of the charge set forth in the foregoing Petition and Sentences and Adjudges him to be imprisoned in the prison of Kirkcudbright for the period of Sixty days from this date with hard labour, and grants warrant to all concerned and Decrees.

(signed) W. H. Dunbar