Chapter XIII
ECCLESIASTICAL RITES AND THE RISE OF CIVIL MARRIAGE IN THE SOUTHERN COLONIES
[BIBLIOGRAPHICAL NOTE XIII.--For Virginia the chief materials have been drawn from Hening's Statutes at Large (Richmond, 1809-23), and the laws comprised in Acts of the Assembly (fol., Williamsburg, 1769). The third volume of O'Callaghan, Documents Rel. to the Col. History of New York, has an interesting memorial of the bishop of London written in 1677; and there are some references to marriage in Strachey, For the Colony in Virginea Britannea: Lawes Diuine, Morall, and Martiall, being "Dale's Code" (London, 1612): in Force, Tracts, III; Spotswood, Letters, constituting Vols. I and II, new series, of the Collections of the Va. Hist. Soc. (Richmond, 1882-85); Beverley, History of Virginia (reprint, Richmond, 1855); and the acts of the assembly of 1619 contained in the Colonial Records of Virginia (Richmond, 1874). Cooke, Virginia (Boston, 1884), gives a curious proclamation of Governor Wyatt for the regulation of courtship. In Vol. IV of the Va. Magazine of Hist. and Biog. (Richmond, July, 1896) there is a unique "Marriage Agreement" which throws some light on the economic affairs of the provincial household; and further illustrations of domestic and social customs may be found in Goodwin, The Colonial Cavalier (Boston, 1895); and Fiske, Old Virginia and Her Neighbors (Boston, 1898).
The principal sources for Maryland are Browne, Archives of Maryland (Baltimore, 1883-91); Bacon, Laws of Maryland (fol., Annapolis, 1765); and, to supplement these, the Laws of Maryland made since 1763 (fol., Annapolis, 1777); or the same (fol., Annapolis, 1787). Streeter, "Papers Rel. to the Early Hist. of Maryland," in Md. Hist. Soc. Publications (Baltimore, 1876), publishes a record of the first wedding in the colony, with the marriage license bond. The matrimonial doctrines of the Labadists are discussed by James, "The Labadist Colony in Maryland," in J. H. U. S., XVII (Baltimore, 1899); and the character of the episcopal clergy is described by Browne, Maryland (Boston, 1884), and by Lodge, Short History (New York, 1882).
On this subject, as on most topics for the period, the extremely valuable Colonial Records of North Carolina (Raleigh, 1886-90) are a mine of information; and they are enriched by Colonel Saunders's "Prefatory Notes." The first matrimonial statute, passed by the assembly of Albemarle in 1669, is also contained in Chalmers, Political Annals: in Carroll, Hist. Coll. of South Carolina (New York, 1836); and in Hawks, History of North Carolina (Fayetteville, 1857-58), likewise of service on other points. The various statutes of the eighteenth century may be consulted in Iredell-Martin's Public Acts of the Gen. Assembly (Newbern, 1804); in Swan's Revisal (ed. 1752); or Davis's Revisal (ed. 1773). Similar collections of laws for South Carolina are Cooper and McCord's Statutes at Large (Columbia, 1837-41), and Brevard's Alphabetical Digest (Charleston, 1814)--both of which contain useful editorial notes. Constitutional provisions are, of course, found in Poore, Charters (Washington, 1877). The works of Friedberg and the Atlantic article of Cook, elsewhere mentioned, are still of service; and Weeks in his valuable monograph, "Church and State in North Carolina," in J. H. U. S., XI (Baltimore, 1893), has traced from the sources the struggle of the Presbyterian with the Episcopalian government party for the privilege of using their own rites in the celebration of marriage.]
I. THE RELIGIOUS CEREMONY AND LAY ADMINISTRATION IN VIRGINIA
Throughout the colonial period in Virginia the religious marriage ceremony, according to the rites of the Church of England, was prescribed by law. Indeed, it was not until 1794 that the lay celebration before a magistrate was permitted, and then only in certain exceptional cases. But in two important particulars, even in the earliest statutes, there is a remarkable advance upon the custom of the mother-country. In the first place, it is noteworthy that the administration of matrimonial law is gradually intrusted to the county officers and the local courts. Here, as in New England, there is a quickening of the forces of local self-government; and the lay tribunals gained important functions which in England belonged to the ecclesiastical courts. Again, the legislation of 1631-32 embodies the essential principles of the Hardwicke act of 1753. The institution of marriage begins to be protected and defined by careful statutory provisions and is no longer left to the perils of uncertain custom. Banns or license, parental consent, certificate, and registration are all soon introduced. Marriage becomes in effect a civil contract long before it is squarely acknowledged to be such by the law.
The brief act of 7 Charles I., 1632, provides that "no mynister shall celebrate matrimony betweene any persons without a facultie or lycense graunted by the Governor, except the baynes of matrimony have beene first published three severall Sundays or holydays in the time of devyne service in the parish churches where the sayd persons dwell, accordinge to the booke of common prayer." The minister is forbidden to "ioyne any persons soe licensed in marriage at any unreasonable tymes, but only betweene the howers of eight and twelve in the forenoone." If the marriage is after publication of banns without license, and the persons are under twenty-one years of age, the consent of parents is required before legal celebration.[704] It was also enacted that all marriages should be solemnized in church "except in case of necessity."[705]
[Footnote 704: HENING, Statutes, I, 156, 157. See also the act of 8 Chas. I., expressed in about the same terms, ibid., 181.]
[Footnote 705: Ibid., 158, 183.]
The act of 1632 determined the broad outline of the marriage law of Virginia until after the Revolution. But two or three important modifications were made by subsequent legislation. Thus, an act of the Commonwealth period, 1657-58, enforces the provision that "ministers only shall celebrate marriages;" and significantly adds that they shall not do so without license or publication of banns "as formerly," under a penalty of "tenne thousand pounds of tobacco to ease the leavye of that county." No license is to be granted "without certificate vnder the hands of the parents, masters, or guardians of the parties to be married."[706] Again, the first act of the Restoration, 1661-62, requires license or "thrice publication according to the prescription of the rubric in the common prayer booke, which injoynes that if the persons to be marryed dwell in severall parishes the banes must be asked in both parishes, and that the curate of one parish shall not solemnize the matrimony untill he have a certificate from the curate of the other parish, that the banes have been there thrice published, and noe objection made" to the union. For violation of the law by the minister the penalty of 1657-58 is retained. But this statute goes farther and declares that "any pretended marriage hereafter made by any other then a minister" shall be "reputed null, and the children borne out of such marriage of the parents" shall be "esteemed illegitimate and the parents suffer such punishment as by the laws prohibiting fornication ought to be inflicted."[707] This act of the Restoration, like that of the Duke of York, 1665, was probably invalid as transcending the requirements of the English common law.[708] In part it may have been intended to punish violation of the marriage law by dissenters, and its severity must have been keenly felt. At any rate, it was repealed in 1696 and replaced by an "act for the prevention of clandestine marriages." The preamble recites that "many great and grievous mischeifes have arisen and dayly doe arise by clandestine and secret marriages to the utter ruin of many heirs and heiresses," and that "the laws now in force ... do inflict too small a punishment for so heinous and great an offence." The minister guilty of violating the provision for banns or license, which is re-enacted, is to suffer imprisonment "for one whole year without bayle or mainprize and shall forfeitt and pay the sume of five hundred pounds currant money, one moyety thereof to our sovereign lord the king, ... and the other moyety to him or them that shall sue or informe for the same." No licenses are to be granted without a certificate from the clerk of the county court; and the certificate may not be issued by the clerk without the consent of the parent or guardian given in person or by writing attested by two witnesses, under penalty of a year's imprisonment and the payment of a fine of five hundred pounds current money. The clause of the preceding act making the issue of irregular marriages illegitimate is not repeated in this act or subsequently--an admission, seemingly, that the provision was originally null and void. But a female between the ages of twelve and sixteen contracting such a marriage forfeits during coverture her inheritance to the next of kin. After the death of her husband the inheritance reverts to her or those who should have claimed "in case this act had never been made."[709] This clause was retained in subsequent legislation.[710] By the act of 1705 still more careful provision is made for license and certificate; and if any minister, contrary to the spirit of the law, shall "go out of this her majesty's colony and dominion" and there join in matrimony "persons belonging to this country," without license or publication, he is to suffer the same penalty as if the offense had been done in the province.[711]
[Footnote 706: Ibid., 433. By the act of 1646 the penalty for celebration without license or banns was 1,000 pounds of tobacco: ibid., 332.]
[Footnote 707: Ibid., II, 49-51. By the law of 1788 the issue of even "incestuous" marriages are made legitimate: ibid., XII, 689.]
[Footnote 708: See chap. xiv, i, b), below.]
[Footnote 709: HENING, Statutes, III, 149-51.]
[Footnote 710: See the act of 1705, ibid., 443, 444; and that of 1748, ibid., VI, 83.]
[Footnote 711: Ibid., III, 441, 442.]
No relaxation in the illiberal rule requiring solemnization by a clergyman of the establishment was made until after the Revolution. First in 1780 the court of each county was authorized to license not more than four ministers of any religious society to solemnize marriages. In 1784 ministers of all denominations, except itinerants, were put on the same level in this regard. Already the preceding year laymen "in the western waters" had grudgingly been empowered to act, provided they make use of the ritual of the English church; but it was not until 1830 that it became possible, when the court saw fit, to appoint laymen for this purpose in all counties of the commonwealth; and this policy has survived to the present hour.[712]
[Footnote 712: See chap, xvi, where this legislation is treated in detail.]
But if the Anglican clergy during the entire colonial period were given a monopoly of matrimonial business, it by no means follows that the dissenters, whose numbers were constantly gaining, ever tamely submitted. On the contrary, they often took the law into their own hands and had their marriages celebrated before their own ministers, or resorted to the local magistrates. This fact is made clear by the act of 1780 and subsequent statutes, by which marriages irregularly contracted are declared valid. Indeed, as early as 1677 we have evidence that dissenters refused to observe an unjust and probably invalid law. A memorial of the bishop of London in that year laments that in Virginia there is a great "defect in the execution of those two wholesome laws ... of the Assembly, the one prohibiting all marriages to be solemnized without a lawful minister imposing the punishment due for fornication on the parties & making their children illegitimate & so not capable of inheriting, the other prohibiting any persone the ministeriall Function without proveing himself to have first received Orders from some Bishop in England."[713]
[Footnote 713: O'CALLAGHAN, Doc. Rel. to Col. Hist. of N. Y., III, 253.]
As already stated, the matrimonial laws of Virginia were from an early day locally administered, and mainly by the civil magistrate. The minister of every parish was required to keep a "booke wherein shall be written the day and yeare of every christeninge, wedding, and buriall;"[714] and annually on the first day of June it was the duty of the church wardens and ministers to make a return to the quarter court of all marriages solemnized during the year.[715] By the act of 1642 the report is to be made to the "commander of every monethly court;"[716] and in 1661-62 the duty of registration is laid upon the reader equally with the minister.[717] At length, in 1780, the officiating minister is required to transmit a certificate of every marriage solemnized by him to the clerk of the county court for record.[718] It was the minister's duty to publish the banns thrice, as required by law. But in consequence of the scarcity of clergymen of the established church, in some places it became practically impossible to comply with the statutes. So, in 1705, the clerk or reader in any parish having no minister was empowered to publish banns and, "if no objection be made," to grant a certificate thereof to the officiating minister.[719]
[Footnote 714: HENING, Statutes, I, 158, 182, 183 (1632).]
[Footnote 715: Ibid., 155.]
[Footnote 716: Ibid., 242. Cf. the act of the Commonwealth, 1657-58, ibid., 433.]
[Footnote 717: Ibid., II, 54.]
[Footnote 718: Ibid., X, 362.]
[Footnote 719: Ibid., III, 442. Cf. the act of 1748: ibid., VI, 82.]
In Virginia, as we have seen, the governor's license instead of banns takes the place of the license of the English bishop. Licenses are not to be issued "without certificate under the hands of the parents, masters or guardians."[720] On account of the rapid growth of population, in which was an ever-increasing proportion of dissenters, and on account of the scarcity of ministers of the established church, the demand for licenses became so great that, in 1661, the clerks of the county courts were empowered to issue them. "Whereas," runs the statute, "many times lycences are granted and the persons are marryed out of the parishes, which lycences have been usually granted by the governor, whose knowledge of persons cannot possibly extend over the whole country," therefore persons desiring to be married by license are required to give bond to the clerk that there is no lawful impediment. The clerk is then to write the license and certify to the first justice in the commission for the county, or else to the person appointed for this business by the governor, who shall sign it.[721] Later the personal or written consent of the parent or guardian is required before the clerk may issue certificate.[722] But by the act of 1705 a bond is required in all cases, and parental consent only in the case of minors. The license is then issued by the clerk for the signature of the magistrate or the governor's deputy.[723]
[Footnote 720: Act of 1657-58: ibid., I, 433.]
[Footnote 721: HENING, op. cit., II, 54, 55; cf. 28 (1660-61). Only the clerk of the county in which the woman, her parents, or guardians dwell may act: ibid., 281.]
[Footnote 722: Ibid., III, 150 (1696).]
[Footnote 723: Ibid., 442, 443.]
The granting of licenses was an important source of income for the governor, he receiving two hundred pounds of tobacco or twenty shillings for each license issued. Such, for example, was the law in the days of Beverley.[724] These fees were collected by the sheriff and turned over to the governor or secretary of the colony.[725] At the beginning of the Revolution, in order to provide for the expense of the militia, a tax of forty shillings was laid by the assembly upon each marriage license;[726] and in the next year the law granting license fees to the governor was repealed.[727] The legal fee allowed the minister was twenty shillings or two hundred pounds of tobacco for each marriage when celebrated by license, and five shillings or fifty pounds of tobacco when celebrated by banns.[728] In 1792, however, the uniform fee for a marriage was fixed at one dollar.[729]
[Footnote 724: BEVERLEY, Hist. of Va., 211, 212; also 1 _Mass. Hist. Coll._, V, 136; and HENING, op. cit., III, 445; VI, 84, 85; II, 55.]
[Footnote 725: Ibid., II, 28.]
[Footnote 726: Ibid., IX, 66 (1775). The tax was raised to ten pounds in 1780: ibid., X, 245.]
[Footnote 727: Ibid., 225.]
[Footnote 728: SPOTSWOOD, Letters, I, 128 n. 90; BEVERLEY, Hist. of Va., 211; HENING, op. cit., III, 45; VI, 84, 85, etc. Earlier the marriage fee was 2 shillings: ibid., I, 160, 184.]
[Footnote 729: Acts of the Gen. Assembly, 203.]
Marriages within the "levitical degrees prohibited by the laws of England" were forbidden;[730] and curious and stringent regulations concerning the secret marriage of indented servants were made. Thus in 1642-43, since "many great abuses & much detriment hath been found to arise both against the law of God and likewise to the service of manye masters of families in the collony" by secret marriage of servants, it is provided that a man servant contracting a secret marriage with a maid servant shall serve an additional year after the completion of the term of indenture; while a maid servant so offending is to double the time of her service. A freeman for secretly marrying an indented maid servant must double the value of her service and pay a fine of five hundred pounds of tobacco to the parish where the offense is committed.[731] The unjust discrimination against female servants was done away with in 1657-58.[732] A still more rigorous law was passed in 1661-62. The minister is prohibited under a penalty of ten thousand pounds of tobacco from either publishing the banns or celebrating the contract of marriage without a certificate of consent from the masters of both the persons, who are each to suffer the penalty of a year's extra service, as before; while the freeman clandestinely marrying a servant is to pay to the master fifteen hundred pounds of tobacco or a year's service.[733] But in 1748 for the offending parties the year's extra service is commuted at "five pounds current money."[734] It may be noted that in this Virginia legislation there is no provision like that of Plymouth for compelling the consent of stubborn masters.
[Footnote 730: HENING, op. cit., IV, 245 (1730). Marriage with a deceased wife's sister is forbidden: ibid., XII, 689 (1788).]
[Footnote 731: Ibid., I, 252, 253.]
[Footnote 732: Ibid., 438. By this act either the man or the woman suffers a penalty of one year's extra service.]
[Footnote 733: Ibid., II, 114. The penalty for a freeman was made 1,000 pounds of tobacco in 1705: ibid., III, 444.]
[Footnote 734: Ibid., VI, 83, 84.]
The matrimonial history of Virginia begins with the nuptials of Ann Burras and John Laydon, celebrated in 1608.[735] A few years later, in Dale's code, appear the first marital regulations, though to what extent they were ever carried out must remain uncertain. Every minister is required to "keepe a faithful and true Record, or Church Booke, of all Christnings, Marriages, and deaths of such our people, as shall happen within their Fort, or Fortresse, Townes or Towne at any time, vpon the burthen of a neglectfull conscience, and vpon paine of losing their Entertainment."[736]
[Footnote 735: On this marriage see WINSOR, _Nar. and Crit. Hist._, III, 132; HOLMES, Annals, I, 162; CAMPBELL, _Hist. of Va._, 65.]
[Footnote 736: WILLIAM STRACHEY, _For the Colony in Virginea Britannea, Lawes Diuine, Morall, and Martiall_, 11: in FORCE, Tracts, III.]
The statutes of the Dominion are silent as to the celebration of pre-contract or espousals; and the penalties prescribed for adultery and fornication are in marked contrast with those of early New England. Persons were presented for these offenses by the church wardens at the annual visitations;[737] and the culprits were punished by fines or whipping.[738] Nor do the laws concern themselves with the regulation of courtship and "sinful dalliance" in New England style; although a proclamation of Governor Wyatt shows that his excellency was willing to supply the law's defect in this regard. He announces that "every minister should give notice in his church that what man or woman soever should use any word or speech tending to a contract of marriage to two several persons at one time," such "as might entangle or breed scruples in their consciences, should for such their offense, either undergo corporal correction, or be punished by fine or otherwise, according to the quality of the person so offending."[739]
[Footnote 737: HENING, op. cit., I, 240, 310, etc. The following curious judgment was rendered by the governor and council sitting as a court in 1627: "Upon the presentment of the church-wardens of Stanley Hundred for suspicion of incontinency betweene Henry Kinge and the wife of John Jackson, they lyinge together in her husband's absence; it is thought fitt that the sayd Kinge shall remove his habitation from her, and not to use or frequent her company until her husband's return."--Ibid., 145, note. This may be compared with the following record of the same court in 1631: "Because Edw. Grymes lay with Alice West he gives security not to marry any woman till further order from the Governor and Council."--Ibid., 551.]
[Footnote 738: Ibid., 433; III, 74, 139, 361; Acts of the Gen. Assembly, 287. The first representative assembly, which met at Jamestown in the summer of 1619, enacted, "Against excesse in apparell that every man be cessed in the church for all publique contributions, if he be unmarried according to his owne apparell, if he be married according to his owne and his wives, or either of their apparell."--Col. Rec. of Va. (ed. BANCROFT), 20. The same assembly provided that "All Ministers in the Colony shall once a year, namely in the moneth of Marche, bring to the Secretary of Estate a true account of all Christenings, burials and marriages, upon paine, if they faill, to be censured for their negligence by the Governor and Counsell of Estate; likewise where there be no ministers, that the comanders of the place doe supply the same duty,"--Ibid., 26.]
[Footnote 739: Quoted by COOKE, Virginia, 149; also FISKE, _Old Virginia and Her Neighbors_, I, 246, 247.]
Very little material has been collected regarding wedding customs in Virginia.[740] But this sketch may be concluded by reference to a curious "marriage agreement" which took place in Eastville, Northampton county, in 1714, and which throws light on domestic economy in the Old Dominion. Mr. John Custis and Frances, his wife, having fallen out, are inspired with hope and faith that they may renew "perfect love and friendship" by bond and covenant. First, therefore, it is duly stipulated that "the sd Frances shall return to the sd John all the money, Plate and other things what soever that she hath from him or removed out of the house upon oath and be obliged never to take away by herself or any other, anything of value from him again or run him in debt without his consent, nor sell, give away or dispose of anything of value out of the family without his consent, upon the condition that the plate and damaske linen" shall not be given away or otherwise disposed of by the said John during her life, but be delivered to his children "by the said Frances immediately after her decease." Next it is agreed that "Frances shall henceforth for bear to call him y^e sd John any vile names or give him any ill language, Neither shall he give her any," but they are "to live lovingly together and to behave themselves to each other as a good husband & good wife ought to doe. And that she shall not intermeddle with his affairs but that all business belonging to the husband's management shall be solely transacted by him, neither shall he intermeddle in her domestique affairs but that all business properly belonging to the management of the wife shall be solely transacted by her." Again, after settling his debts, John gives bond in the sum of one thousand pounds that he will keep "true and perfect accounts of all the profitts and disbursements of his whole Estate," present and future, in Virginia or the rest of the world, and that he will "produce the same accounts yearly if it be required upon oath. And that after all debts hereafter necessarily accrueing; for buying cloaths, tools and all the necessary [things] for the servants and the plantations, paying leavys and Quitt-rents & making necessary repairs of his whole estate and alsoe all other necessary charges acrewing for the use & benefitt of the estate which is to descend to the child of ye said Frances are deducted and paid he shall freely & without grudging allow one full moity ... of his whole estate" to her annually, "for clothing herself and the children with a reasonable proportion thereof and the remainder to be all laid out in the education of the children & for furnishing ... all things ... necessary for house keeping (that are to be brought from England) and Phisick," so long as she remains peacefully with him; and that he shall allow for her maintenance and that of the family "one bushell of wheat for every week and a sufficient quantity of Indian Corn and as much flessh of all kinds as the stocks of Cattle, Sheep and hoggs" will stand, with "sufficient quantity of Cyder and Brandy if so much be made on the plantation." But if Frances exceed her allowance, then it is to cease, and the "bond to be voyd." Out of her allowance Frances is to have "free liberty to keep a white servant if she shall think fitt;" also the usual colored servants, among whom are mentioned "Jenny," "Queen," and "Billy boy," who are to "tend the garden, goe of errands or with the coach, catch horses, and doe all other necessary works" both in and about the house. Moreover, with impulsive generosity, "ye sd John" binds himself, not only to allow Frances "fifteen pounds of wool and fifteen pounds of fine dresst flax or fifteen pounds of wool in lieu thereof every year to spin for any use in the family she shall think fit;" but even to suffer her "to give away twenty yards of Virginia cloth every Year to charitable uses if soe much remain after the servants are clothed." Finally, pending the marketing of the tobacco crop in England, which will take twelve months, Frances is graciously endowed by John with fifty pounds in money for support of herself and the family, if there should happen to be so much left when all the debts are paid.[741]
[Footnote 740: See, however, GOODWIN, The Colonial Cavalier, 45 ff.; and on social customs in general FISKE, op. cit., II, 174, 269.]
[Footnote 741: For this document see The Virginia Mag. of Hist. and Biog., IV (July, 1896), 64-66.]
II. OPTIONAL CIVIL MARRIAGE AND THE RISE OF OBLIGATORY RELIGIOUS CELEBRATION IN MARYLAND
The earliest extant record of a marriage in Maryland, we are told, is that of William Edwin and Mary Whitehead, dated March 26, 1638. They were married by license, with security to the Lord Proprietor for the payment of "one thousand weight of merchantable tobacco, to be paid upon demand, in case the said William Edwin hath precontracted himself to any other woman than Mary Whitehead (spinster)," or in case there is any other lawful impediment to the marriage.[742] According to Bozman, many similar marriage-license bonds have been preserved.[743] The requirement of a "caution," in such cases, is enforced in the act of the assembly passed in 1640.[744] No marriage may be solemnized without banns "three days before published in some Chappell or other place of the County where publique instnts are used to be notified, or else afore oath mad & caution entered in the County Court that neither partie is apprentice or ward or precontracted or within the forbidden degrees of consanguinity or under goverm^t of parents or tutors and certificate of such oath & caution taken from the Judge or Register of the Court."[745]
[Footnote 742: STREETER, Papers Rel. to the Early History of Md., 278, 279. This license may be compared with the bonds required by Governor Andros in New England or by the New York governors: see chaps, xii and xiv.]
[Footnote 743: In the "book in the land office, entitled, Liber No. 1": BOZMAN, Hist. of Maryland, II, 604, who gives the following example: "November 2d, 1638. This day came William Lewis, planter, and made oath, that he is not precontracted to any other woman than Ursula Gifford, and that there is no impediment of consanguinity, affinity, or any other lawful impediment to his knowledge, why he should not be married to the said Ursula Gifford; and further he acknowledgeth himself to owe unto the lord proprietor 1000 lb. tobacco in case there be any precontract or other lawful impediment whatsoever as aforesaid, either on the part of the said William Lewis or the said Ursula Gifford."]
[Footnote 744: Among the thirty-six bills of the assembly of February, 1639/40, which according to Bozman were engrossed for a third reading, but not finally enacted into laws, was one giving the so-called "county court" jurisdiction in "all causes matrimonial, for as much as concerns the trial of covenants and contracts, and the punishment of faults committed against the same; and all offences of incest; attempting of another's chastity; defamation; temerarious administration; detention of legacies; clandestine marriage without banns thrice published or bond entered in the court."--BOZMAN, op. cit., II, 106, 128, 129. Since at this time there was but one organized county, St. Mary's, and this "county court" is made a tribunal of appeal in all civil common-law cases, the body is really the supreme provincial court, and it is given about the same jurisdiction thereafter exercised by the latter.]
[Footnote 745: _Archives of Md.: Proceedings and Acts of the General Assembly_, 1637-64, 97.]
By the act of 1658, passed during the Fendall government, the civil ceremony is made legal. Persons desiring to be married have liberty to apply either to a magistrate or to a minister; but in all cases, under severe penalty, a certificate of the publication of banns at the county court, or in some church, chapel, or meeting, is required.[746] Banns or a license from the governor or lieutenant-general is prescribed by the act of 1662; and, as before, the ceremony may be performed by either a minister or a magistrate, but in presence of two witnesses. Otherwise the marriage is void.[747] Thus far no form of words at the nuptials had been prescribed. Therefore in 1666, by a statute which was to remain in force three years, a modification of the English ritual was adopted.[748]
[Footnote 746: Ibid., 374. The fine for each of the parties violating the statute is 1,000 pounds of tobacco; for the magistrate or minister, 5,000 pounds, one half to the Lord Proprietor, the other half to the informer. In 1650 it is provided that adultery shall receive punishment as the court may see fit, but "not extending to life or member": ibid., 286. The penalty is the same in 1654: ibid., 344. In the last-named year "the names of all that shall be borne, married or buried ... shall be Exhibited to the Clarke of Every Court who shall Inst Register thereof who shall be allowed five pounds of Tobacco as a ffee due to him for every such Regist^r made and kept."--Ibid., 345.]
[Footnote 747: Ibid., 442, 443. This act is approved in 1664: ibid., 537.]
[Footnote 748: "The man taking the woman by the R^t hand shall say I A B doe take thee C D to my wedded wife To have and to hould from this day forward for better for worse for Rich or for Poore in sickness & in health till death us do part and thereto I plight thee my troth which being finished lett her hand goe." Similar words are to be used by the woman: ibid., 1664-76, 148.]
The general provisions of the law of 1662 are repeated in the act of 1676, except that the intention to allow complete liberty with respect to the form of celebration is more accented. Instead of a "minister or magistrate," as in the former act, any "priest, minister, pastor, or magistrate" may now conduct the celebration; and, as before, a marriage not so solemnized is declared null and void; though it is highly probable that such a requirement was invalid as being inconsistent with the English common law.[749]
[Footnote 749: Ibid., 1666-76, 522, 523.]
Up to this point, under the Catholic proprietors of the palatinate, absolute toleration had prevailed. Optional civil or ecclesiastical rites were sanctioned. But now arose a struggle for supremacy between the toleration party composed of Catholics and Quakers, who began to take strong root in the province, and a bigoted Protestant faction. "As happened twenty years before, a minority in the colony, in sympathy with the dominant party in England, wished to control in matters of religion, and, backed by the home government, renew a policy of intolerance in their own interests. Now, of course, this minority was composed of Protestants of the Established Church, instead of Puritans, as in the days of the Commonwealth."[750] The Episcopal minority triumphed with the establishment of the royal government in 1692, the Church of England was set up, and Catholics and dissenters were taxed for its support. A reactionary policy was begun with respect to the marriage celebration, and we have in this instance the only clear example of such retrogression that can be found in American history.[751] Only in Maryland was civil marriage entirely abrogated after it was once introduced.[752]
[Footnote 750: LODGE, Short History, 105. Elsewhere this writer says the Episcopal church in Maryland was as "contemptible an ecclesiastical organization as history can show." "It is not easy to conceive the utter degradation of the mass of the Maryland clergy. Secure in their houses and glebes, with a tax settled by law, and collected by the sheriffs for their benefit, they set decency and public opinion at defiance. They hunted, raced horses, drank, gambled, and were the parasites and boon companions of the wealthy planters. A common jest was the question:
'Who is a monster of the first renown? 'A lettered sot, a drunkard in a gown.'
"They extorted marriage fees from the poor by breaking off in the middle of the service, and refusing to continue until they were paid."--Ibid., 123, 120-24; cf. BROWNE, Maryland, 184 ff.]
[Footnote 751: See, however, the case of North Carolina below, where the original toleration of the early years was later somewhat curtailed; and that of West Virginia.]
[Footnote 752: Compare COOK, "Mar. Cel. in the Colonies," Atlantic, LXI, 356, 357.]
The change did not take place all at once. A beginning was made by the law of 1692 which in part deprived members of the established church of the privilege of the civil celebration, but as yet did not interfere with the liberty of others. As under the preceding acts, either a minister or a magistrate may perform the ceremony; but now it is provided that he "shall joyn them in manner and forme as is sett down & expressed in the Liturgy of the Church of England w^{ch} being finished the Minister, Pastor, or Magistrate shall say I being hereunto by Law Authorized do pronounce you lawfull man and wife."[753]
[Footnote 753: _Archives of Md.: Procds. and Acts of the Gen. Assem._, 1684-92, 450, 451.]
A more rigorous statute, affecting members of the establishment, appears in 1702. To "prevent all illegal and unlawful Marriages, not allowable by the Church of England," it is enacted that "no Minister, Priest or Magistrate shall presume to join together in Marriage, any persons whatsoever, contrary to the Table of Marriages, by this Act appointed to be set up in every Parish-Church within this Province," under penalty of five thousand pounds of tobacco for violation, and with a like punishment for each of the parties to such a marriage. To "prevent any Lay-Persons" from acting "where any Minister or Priest can be had, and to ascertain what shall be paid for Marriages," it is provided that "in every Parish where any Minister or Incumbent shall reside and have charge of souls therein, no Justice or Magistrate, being a Lay-Man, shall join any Persons in Marriage, under penalty of Five Thousand Pounds of Tobacco ... to our Sovereign Lord the King." The marriage fee is fixed at five shillings sterling, provided the persons to be married come to the parish church or chapel at time of divine service.[754]
[Footnote 754: BACON, Laws of Maryland, 1702, chap. i, §§ iv, v.]
In 1717 was passed a more elaborate act, which remained in force throughout the colonial period, but which did not extend to "persons of different persuasions from the Church of England," who are still to enjoy their own "manner of proceedings" unaltered. "Persons who desire Marriage" are to "apply themselves to a Minister ... and shall cause due Publication to be made, according to the Rubrick of the Church of England, of their Intent to marry, at some Church or Chapel of Ease belonging to the Parish" wherein the woman resides. In "case there be no Minister, Curate or Reader in such Parish, an Advertisement or public Notification ... shall be set up at the Court-house Door of the County, where such Marriage shall be intended, there to remain for the Space of Three Weeks at the least." The clerk of the county court is required to make a certificate of publication, on presenting which any "qualified" minister is empowered to solemnize the marriage "according to the Liturgy of the Church of England." For proceeding without certificate of publication or the governor's license, the minister and each of the parties shall severally forfeit five thousand pounds of tobacco, as under the act of 1702; and for evasion of the law by getting married in any place outside the province, except where the woman is a resident, the man is to suffer the same penalty.[755] But it is important to note that neither the act of 1702 nor that of 1717 invalidates an irregular or clandestine marriage.
[Footnote 755: BACON, op. cit., 1717, chap. xv, §§ i-v. The fee for marriage after license is "10 shillings and no more;" after publication of banns it is 100 pounds of tobacco or 6 shillings and 8 pence current money.]
Another statute of 1717 prescribes severe penalties for miscegenation. Any free negro or mulatto intermarrying with a white person shall become a slave for life, unless the free mulatto in question be "born of a white woman," when he is merely condemned to service for seven years. On the other hand, servitude for this same period is the punishment prescribed in case a white man or woman intermarry with a negro or mulatto.[756] Two years before a law provides that for joining any negro whatsoever or a mulatto slave to any white person the minister, pastor, or magistrate shall forfeit five thousand pounds of tobacco, one half to the use of free schools, and the other half to the informer.[757]
[Footnote 756: Ibid., chap. xiii, § v.]
[Footnote 757: Ibid., 1715, chap. xliv, § xxv.]
It is significant that throughout the whole colonial period all persons in Maryland, except members of the establishment, should have had unrestricted liberty to contract civil marriage, only to have that liberty taken away after the Revolution began. By the reactionary law of 1777, "the rites of marriage between any white persons, subjects or inhabitants of this State, shall not be celebrated by any person within this State, unless by ministers of the Church of England, ministers dissenting from that Church, or Romish priests, appointed or ordained according to the rites ... of their respective churches, or in such manner as hath been heretofore used and practiced in this State by the society of people called Quakers."[758] This monument of religious conservatism has survived to our own time.
[Footnote 758: KILTY, Laws, 1777, chap. 12, sec. 5; also Laws of Md., 1763-87 (Annapolis, 1787), chap. xii, sec. v; cf. COOK, "Mar. Cel. in the Colonies," Atlantic, LXI, 357.]
No attempt is here made to describe wedding customs in the colonial era;[759] but the Archives of Maryland contain a unique document, entitled "Articles of Courtship," which may serve as companion-piece and counterpart to the "Marriage Agreement" with which the domestic economy of Virginia, half a century later, has already been illustrated. In this instance Robert Harwood essays by formal indenture to compound a lawsuit and at the same time reclaim the reluctant affections of Elizabeth Gary, despite the fact that ungallantly he had sought to requite her fickleness through "slanders and unhandsome attempts." From the "Articles of agreement ... made the 24^{th} of September 1657 between Peter Sharpe of Putuxent County in th^e Province of Maryland Chirurgeon of the one p^{te,} and Robert Harwood of the Same County planter of the other parte," it appears that "there hath been a Suit Commenced by the Said Peter Sharpe before the Governour and Councell ... a gainst the abovenamed Robert Harwood on the behalf of Elizabeth Gary Daughter of Iudith now the wife of the Said Peter Sharpe, for reparation for Slanders, and undhandsome attempts charged to be acted and reported by the Said Robert Harwood to the great Detriment of the Said Elizabeth, and of the Said Peter Sharpe his wife and family;" and, on the other side, that Robert, "for his own Vindication, doth much insist upon a former promise of Marriage Grounded upon a Mutuall declared affection" between him and Elizabeth, "obtained after a long familiaritie and Sollicitation;" with which engagement the said Peter and Judith his wife "are much dissatisfied," but which they are nevertheless willing to see followed by wedlock, if Elizabeth really have the proper "affection and resolution of marriage to and with the Said Robert."
[Footnote 759: The Quakers were strong in Maryland and practiced the same rites as their brothers elsewhere. The Labadists, who had a colony in the province, thoroughly disliked the Friends, though in some respects the doctrines of the two bodies were strikingly alike. The Labadists were even more narrow than the Pennsylvania Friends regarding intermarriage with gentiles. A convert was expected to leave his unregenerate spouse behind when he joined the society; see JAMES, "The Labadist Colony in Maryland," J. H. U. S., XVII, 12 ff., 17 ff.]
Therefore it is duly stipulated that the insistent suitor shall have a fair chance to ensnare the coy damsel on neutral ground. "Imprimis the said Peter Sharpe doth for himself and his heirs ... agree that the Said Elizabeth Gary shall within fifteen dayes ... be conveyed to the house of m^r Thomas Davis at the Cliftes and there she is to remaine for the Space of six weekes," the said Robert "during all the Said Time" being given "full free and perfect Liberty (bringing one or more of the Neighbours with him) to have all freedom of discourse" with her, and "to use all faire and Lawfull Endeavours" to win her consent to marry him. That Robert's "nerve" and zeal were confidently relied upon is revealed by the proviso that "one or more of the Neighbours" are "alwayes to be present" with the lovers at the above specified courting, the "Said Rob^t Harwood paying for the Said Elizabeth Gary her Entertainment during her Stay at the Said Davis his house."
Next it is covenanted by Peter, "if it should by Gods permission, So happen" that Elizabeth shall "within the Said prefixed time give her consent," that he will not directly or indirectly, "neither by himself nor by any other person or persons," try to hinder the marriage, which "shall be permitted to take effect without obstruction." On his part Robert doth agree that, if in the time set he fail to gain Elizabeth's consent to "intermarry with him," he "will from thence forth totally and absolutely discharge the Said Elizabeth" from all former promises; and will "never after by himself, or any other person or persons, either by words Letters or any other way directly or indirectly Endeavour to gain" her affections, "or to procure any familiaritie of discourse with her or willingly to Come into her Company." But if "Robert and Elizabeth shall entermarry," the docile bridegroom "shall first enter into Good Caution and Securitie not to upbraid or deride or any other way Exercise, or use any bitherness" toward the bride, "for or in relation to any former passages between them;" and in case of "breach of this his Engagement he shall from thenceforth be absolutely disabled and made uncapable of Entermedling with or disposing of any part of the Estate now belonging to the Said Elizabeth, or any part of the produce thereof."
Finally it is stipulated that "in the Cause forme^rly depending and now to be withdrawen" Robert is to "beare his own Charge," as well as those "on th^e plaintiffes behalf," if the marriage take place, otherwise Peter is to pay his own costs. Thereupon the instrument is "signed, sealed and delivered in the presence of Thomas Turner Clerk," under date of September 26, 1657.[760]
[Footnote 760: _Archives of Md.: Judicial and Testamentary Business of the Provincial Court_, 1649/50-57, 531-33.]
III. THE STRUGGLE FOR CIVIL MARRIAGE AND FREE RELIGIOUS CELEBRATION IN NORTH CAROLINA
From the outset the colony of North Carolina had a population of diverse nationalities and various religious creeds. The "Fundamental Constitutions" of 1669, granted by the Earl of Clarendon and his colleagues, provided, hesitatingly, for the establishment of the English church;[761] but it was not until after the beginning of the eighteenth century that an attempt was made to enforce the Episcopal system by statute. In the meantime, the regular clergy were few, and dissenters came in large numbers; for lest "Jews, heathens, and other dissenters from the purity of the Christian religion may be scared and kept at a distance," the Constitutions had inconsistently guaranteed a qualified religious freedom.[762] Among the sects represented were Protestants from Germany, Huguenots from France, and Independents from New England. Later the Quakers and Presbyterians became relatively strong; and they stoutly resented the bigoted tyranny of the Episcopal minority, which was sustained by the government by whom the matrimonial legislation was shaped. The intolerance was the harder to bear because of the low character of the English clergy, some of whom in vice and dissipation being worthy rivals of the brawling and cock-fighting parsons of Maryland and Virginia. To this class belonged Rev. Daniel Brett, the first Episcopal clergyman who came to the colony; and Rev. John Boyd, notorious for open drunkenness.[763]
[Footnote 761: "Fundamental Constitutions," c. 96: POORE, Charters, II, 1406. The charter of 1663 allows the proprietors to use their discretion in dispensing from the liturgy and ceremonies of the English church: ibid., 1389. The supplementary charter of 1665 declares that no one shall be "in any way molested, punished, disquieted or called in question, for any differences in opinion, or practice in matter of religious concernments, who do not actually disturb the civil peace." All are to enjoy "judgment and conscience in matter of religion."--Ibid., 1397.]
[Footnote 762: After thus expressing the motive for toleration, the Constitutions curiously provide that any seven or more persons agreeing in any religion may form themselves into a "church or profession;" and no person over seventeen years of age "shall have any benefit or protection of the law, or be capable of any place of profit or honor, who is not a member" of such a church or profession, "having his name recorded in some one, and but one religious record at once."--Ibid., 1407.]
[Footnote 763: N. C. Col. Records, IV, 264; HAWKS, _Hist. of N. C._, II, 341. For Virginia see LODGE, Short History, 60 ff. Cf. HOWARD, Local Const. History, I, 133, 134.]
During nearly half a century following the charter[764] there was in practice full toleration as to the form of the marriage celebration. The very first statute of the "Assembly of Albemarle," the first legislative body after the "Fundamental Constitutions" went into effect, provides in characteristic American style for the solemnization of marriage. "Forasmuch," runs this act, "as there may be divers people that are minded to be joyned together in the holy state of Wedlock and for that there is noe minister as yet in this County by whom the said Partyes may be joyned in Wedlock according to the rites and customs of our native Country the Kingdome of England;" therefore, that "none may be hindred from this soe necessary a worke for the preservation of Mankind and settlement of this County it is enacted And be it enacted by the Pallatine and Lords Proprietors of Carolina by and with the advice and consent of the Present Grand Assembly ... that any two persons to be joyned together in the holy state of matrimony takeing three or fower of their Neighbors along with them and repairing to the Governor or any one of the Councell before him declaring that they doe joyne together in the holy state of Wedlock And doe accept one the other for man and wife; and the said Governor or Councellor before whom such act is performed giveing certificate thereof and the said certificate being registered in the Secretary's Office or by the Register of the Precinct or in such other Office as shall hereafter for that use be provided. It shall be deemed a Lawfull Marriage and Partyes violating this Marriage shall be punishable as if they had binn marryed by a minister according to the rites and customs of England."[765]
[Footnote 764: Paragraphs 45 and 84 of the Fundamental Constitutions (1669) provide for matrimonial jurisdiction and for registration. Paragraph 87 declares that "no marriage shall be lawful, whatever contract and ceremony they have used, till both parties mutually own it before the register of the place where they were married, and he register it, with the names of the father and mother of each party."--POORE, Charters, II, 1402, 1406. Compare HEWITT, An Hist. Account of the Rise and Progress of South Carolina and Georgia (London, 1779), 321-47.]
[Footnote 765: N. C. Col. Rec., I, 184; also in HAWKS, Hist. of N. C., II, 152, 153; and CARROLL, Hist. Coll. of S. C., II.]
This timely act was ratified by the Proprietors, January 20, 1669/70; and there can be no doubt of its validity. It is a straightforward and sensible measure, such as the pioneer, forced to resort to self-help, has so often shown himself capable of throughout the history of the Anglo-Saxon race. Its clear expression, good English, and respectable spelling speak well for the training and intelligence of the first settlers of Carolina; although the act has been sneered at and ridiculed by some people who ought to know better.[766]
[Footnote 766: Thus DOYLE, Eng. Colonies, I, 453, says the acts of the assembly of 1669/70, of which the marriage act is one, tended to make North Carolina "an Alsatia for ready and profligate adventurers." So also GEORGE CHALMERS, Political Annals of the United Provinces: in CARROLL, Hist. Coll. of S. C., II, 291, concludes, "From this remarkable law we may judge of their state of religion and morals." On the other hand, HAWKS, Hist. of N. C., II, 152, 153, says of this statute: "It has given rise to some abortive efforts at wit, which, if genuine, would, we think, be sadly misplaced; and has, besides, sorely troubled the over-sensitive and camel-swallowers who thank God they are 'not as other men are;'" justly adding: "It is difficult to conjecture any other course, which under the circumstances, they could reasonably have adopted. The very fact that any plan was devised to afford a legal and decent mode of entering into the marriage contract, certainly implies that the moral sense of the community revolted at general concubinage." Cf. also WEEKS, Church and State in N. C.: in J. H. U. S., XI, 244.]
From the beginning the Quakers seem to have been allowed to solemnize marriage in their own way; and this they contrived to do even after the English forms were prescribed by statute. According to Hawks, the "Friends were entitled, by express grant from the proprietors, thus to adhere to their peculiar usage; for they had declared to them as an inducement to emigrate, 'there is full and free liberty of conscience granted to all, so that no man is to be molested or called in question for matters of religious concern; but every one to be obedient to the civil government, worshipping God after his own way.'"[767] The records of the monthly meeting in North Carolina reveal the Friends using the same simple rites as elsewhere in the colonies. The betrothed man and woman proclaimed their own banns, "passing the meeting" twice as in Pennsylvania. Thus at a monthly meeting of Friends "in Pasquotank y^e 11^{th} of y^e first month 1707/8," held "as their manner is, to Inspect into y^e affairs of y^e Church," Zachariah Nixon and Elizabeth Symons appear the "second time & declare their Intentions of taking Each Other in Marriage and being approved by the said meeting are left to their liberty to take each other."[768]
[Footnote 767: HAWKS, op. cit., II, 154. These are nearly the words of the charter of 1665: POORE, op. cit., II, 1397. Cf. also WEEKS, op. cit., 244, 245.]
[Footnote 768: "Records of the Friends Monthly Meeting in Pasquotank Precinct": in N. C. Col. Rec., I, 688. There is a similar entry in 1711: ibid., 813. Two years earlier we find a "precinct" court--about the only part of the machinery of the "Fundamental Constitutions" which was ever made use of (HOWARD, Local Const. Hist., I, 129)--sentencing for adultery: "Ordered that Ellinor Mearle be punished by receiving Ten Stripes on her Back well laid & pay cost also Ex[=o]."--Records of Perquiman's Precinct Court, in N. C. Col. Rec., I, 626 (1705).]
It appears, then, that civil marriage, side by side with religious marriage according to the rites of each denomination, was lawful until 1715. By the so-called "Vestries Act" of that year, for the establishment of the Church of England in the province, magistrates are authorized to join people in wedlock only in "such parishes where no minister shall be resident." If any layman, except in such parishes, presume to act, he shall be fined five pounds, one-half to the parish for the use of the poor, and one-half to the resident minister or incumbent. After license or banns no marriage may be lawfully celebrated by minister, priest, or magistrate contrary to the table of marriages, which the church wardens and vestry are to have set up in every church or chapel.[769] But there is no invalidating clause for neglect. Already in 1704 some provision had been made by statute for registration.[770] Now it is enacted that the "inhabitants and freemen of each precinct" by majority vote are to elect three freeholders, from whom the governor or commander in chief is to choose one as register of deeds; and until there be a clerk of the parish church, such register is to record betrothals and marriages. Every "master or mistress of a family who shall neglect to register the birth or death of any person born or dying within his or her house or plantation; and every married man who shall neglect to remit to the said register a certificate of his marriage and cause the same to be registered, for longer than one month," must pay a fine of one shilling a month for the period of delay, provided the whole penalty do not exceed twenty shillings.[771]
[Footnote 769: N. C. Col. Rec., II, 212, 213.]
[Footnote 770: Ibid., 877, 878.]
[Footnote 771: IREDELL-MARTIN, Public Acts of the Assembly (Newbern, 1804), I, 18, 19.]
The act of 1715 fixes the minister's marriage fee at five shillings; and to retain a monopoly of this perquisite at all hazards was the unswerving purpose of the Episcopal clergy throughout the colonial period. The governors, too, found the stipend for issuing marriage licenses a lucrative source of revenue. In 1730 the royal instructions to Governor Burrington declare, "to the end Ecclesiastical Jurisdiction of the Bishop of London may take place in that our Province so far as may be We do think fit that you give all countenance & encouragement to the exercise of the same excepting only the collating the Benefices Granting licenses for Marriages and probate of Wills which we have reserved to you our Governor and to the Commander in chief of our said Province for the time being as far as by law we may."[772] The license fee was fixed at ten shillings.[773]
[Footnote 772: N. C. Col. Rec., III, 110, 111.]
[Footnote 773: Ibid., 160. According to COOK, "Colonel Byrd, writing about 1728, says that in North Carolina, 'for want of men in holy orders, justices of the peace and members of the council were empowered to celebrate marriage.'"--Op. cit., 355, 356.]
A new law was passed in 1741, which, though it does not expressly forbid dissenting ministers from performing the marriage ceremony, at any rate, as Weeks insists, makes "dissent burdensome and humiliating," puts a "premium on conformity," and constitutes "religious persecution."[774] "To prevent clandestine marriages" it is enacted "that every Clergyman of the Church of England, or for want of such, any lawful magistrate, within this Government" may join persons in the "holy state of matrimony." By implication this provision widens the area within which a magistrate is empowered to act, for by the law of 1715 a layman may not perform the ceremony in any parish where a "minister or priest" resides, thus probably including dissenters, who in the present case do not count. The next clause gives still further chances for lay celebration; for, while a justice of the peace may not join in marriage "any persons whatsoever in any parish where a minister shall reside and have a cure," still by implication he may do so in any parish in the colony by obtaining permission from the minister, and, of course, in all cases turning over to said minister the legally prescribed fee.[775] Another provision of this statute may perhaps justify the inference that dissenting ministers are not absolutely excluded. To prevent "that abominable mixture and spurious issue" which would follow, it is enacted, "That if any white man or woman, being free, shall intermarry with an indian, negro, mustee, or mulatto man or woman, or any person of mixt blood, to the third generation, bond or free, he shall, by judgment of the county court, forfeit and pay the sum of fifty pounds, proclamation money, to the use of the parish;" and any persons, including dissenting ministers, are forbidden to solemnize such marriages, under the same penalty.[776] The marriage of servants indented or by custom is also dealt with. It is provided "That if any minister or reader shall willingly publish, or cause or suffer to be published, the banns of matrimony between any servants, or between a free person and a servant; or if any minister or justice of the peace shall willingly celebrate the rites of matrimony between any such, without a certificate from the master or mistress of such servant, that it is done by their consent; he shall forfeit and pay five pounds, proclamation money, to the use of the master or owner." Every servant so married without consent shall serve the master or mistress "one whole year, after the time of service by indenture or custom is expired."[777]
[Footnote 774: WEEKS, Church and State, 244, 245.]
[Footnote 775: The justice shall not act in any parish where a minister resides and has cure, "without permission first had and obtained from such Minister under penalty of five pounds proclamation money, to the use of the minister."--IREDELL-MARTIN, Public Acts, I, 45; for the fee see ibid., 46.]
[Footnote 776: Ibid., 46; SWAN'S Revisal (ed. 1752), 127-30; cf. WEEKS, op. cit., 244, 245.]
[Footnote 777: IREDELL-MARTIN, op. cit., I, 45.]
Regarding the scope and intent of the law of 1741, Weeks remarks that "in this, as in the former cases, the Assembly did not undertake to give" the right of celebrating marriages to the established clergy, "but simply recognized it as resting on prescription. But they might have granted this right to Dissenters as they proposed doing in the act of 1770. The Quakers seem to have been allowed to marry after their own fashion from the first," and why not grant the same privilege "to Presbyterians and Baptists"? Instead of taking such a just and tolerant course, "their preachers were debarred from performing the ceremony even among their own flocks. They were thus put to grave inconvenience, and the law of 1766 recites that the Presbyterians refused to consider themselves as bound by its provisions." Surely there was good reason to take this position, considering the previous law and custom of the colony. The Episcopalian government party seems to have been conscious of this fact, as appears from the discussion of the clergy bill of 1762. "The governor and council," continues Weeks, "tried to force on the lower house a clause by which it was enacted that 'no Dissenting minister of any denomination whatever shall presume on any pretence to Marry any person, under the penalty of forfeiting £50.' The law does not seem to have been successful, but it is a clear statement of the tendency of the act of 1741, and shows the position of a certain element in the province."[778]
[Footnote 778: WEEKS, op. cit., 245; cf. N. C. Col. Rec., VI, 881, 952, 954.]
The assembly rested from further matrimonial legislation until the passage of the act of 1766, already mentioned, which gave some relief to the Presbyterians, but not to any other dissenting body. Aside from the greed for the marriage fees, the principal motive leading to its passage was not justice, as will presently appear, but a desire to reward and strengthen the sympathy of the Presbyterians for the government in its struggle with the Regulators. The preamble of the act recites that because "the presbyterian, or dissenting clergy, conceiving themselves not included in the restrictions mentioned" in the act of 1741, have "joined many persons together in holy matrimony, without either licence or publication; whereby the payment of the just and legal fees to the governor on such occasions, has been eluded, and the validity of marriages may be endangered:" therefore all such marriages now celebrated or to be celebrated before the first day of January next are declared valid. Henceforth no minister of the Church of England or justice of the peace may celebrate marriage without a certificate of three times publication of banns, or a license from the governor or the commander in chief, "who is authorized hereby to grant the same, on certificate of the county court" of the person's "having taken and filed ... the usual bond," under the "penalty of fifty pounds, proclamation money; with condition that there is no lawful cause to obstruct the marriage for which such license is given." Presbyterian missionaries or itinerants in the western parishes, as well as all other dissenters in the province, are in effect excluded by the provision that after January 1 any Presbyterian minister regularly called to any congregation in this province may celebrate matrimony "in their usual and accustomed manner." But in all cases a license from the governor is requisite; and the marriage fee, it is carefully added, is always reserved to the clergyman of the Church of England having cure of any parish, no matter whether a dissenting minister or a justice performs the ceremony. Furthermore, a marriage celebrated without a license is declared "illegal and void."[779]
[Footnote 779: IREDELL-MARTIN, op. cit., I, 157, 158; DAVIS, Revisal (ed. 1773), 350.
"It was proposed to limit this law to three years, which was not done. It provided for no Dissenters except Presbyterians. But it seems that the original intention was to cover the case of all Dissenters. The second section probably read 'dissenting or of the dissenting Presbyterian clergy.' The clause in italics was stricken out and the phrase 'dissenting or Presbyterian clergy' took its place, thus excluding all Dissenters except Presbyterians."--WEEKS, op. cit., 245 n. 2; cf. N. C. Col. Rec., VII, 411, 329, 331.]
Governor Tryon, who approved the act of 1766, was not overfond of the Presbyterians as such, and all other "sectaries" he looked upon "as enemies to society and a scandal to common sense."[780] The next year, writing to the Earl of Shelburne, he says the law of 1766 "has more objects in view than appears on the sight of it." The Marriage Act of "1741 to which it has relation entitles every Justice of the Peace to marry by licence. In abuse of this privilege many Justices performed the marriage ceremony without licence ... and took the fee allowed to the Governor, most generally dividing the spoil between the Justice and the Clerk of the county who gave the bond and certificate. Another tendency of this Act was to prevent the frequent abuses of rascally fellows who travelled thro' the province under the title of ministers of the Presbyterian and other sectaries and who being beggars in conscience as well as in circumstances sought all opportunities to perform that sacred office to the great prejudice of the country. It is also to be observed most of the justices in the back or western settlements are Presbyterians, who by the Act of 1741 had the power to marry by licence: Therefore upon the whole I do not conceive the allowing the Presbyterian ministers the privilege to marry in their usual and accustomed manner can be of any real prejudice to the established Church especially as the marriage fee is reserved to the ministers of the parish; and the licence to be granted under the hand and seal of the Governor, this last provision prevents the former abuses in the application of the fee collected. The Act also provides a summary and effectual method for the Governor to oblige the county court clerks to account for the fees due to him: a recovery tho' an equitable one, was never yet secured but in temporary laws."[781]
[Footnote 780: SAUNDERS, "Prefatory Notes," N. C. Col. Rec., VIII, xlv.]
[Footnote 781: "Letter from Governor Tryon to Earl of Shelburne, Brunswick, 31st January 1767," N. C. Col. Rec., VII, 432, 433. On this act see also SAUNDERS, "Prefatory Notes," ibid., VIII, xlv.]
The Presbyterians were by no means satisfied with the reward their loyalty had received. Especially did the "rascally" missionaries of the western frontiers feel themselves abused. Petitions protesting in strong terms against the act were presented by the clergy. Those of Mecklenburg, for instance, regard themselves as "highly injured and aggrieved" by the statute, "the preamble whereof scandalizes the Presbyterian clergy."[782] The petitioners of Tryon county say they are "much aggrieved," the law depriving them of a privilege "which a million of our fellow-professors in America now enjoy ... neither was it ever taken from Dissenters in America until it was taken from us by this act."[783] The "manly protest from the inhabitants of Orange and Rowan claims that the right of 'dissenting ministers' to perform the marriage ceremony after their own fashion was a 'priviledge they were debarred of in no other part of his majesty's Dominions; and as we humbly conceive, a priviledge they stand entitled to, by the Act of Toleration, and in fine, a priviledge granted even to the very Catholics in Ireland and the Protestants in France.'"[784]
[Footnote 782: See the petition for repeal ibid., X, 1015; cf. WEEKS, op. cit., 246, 247, who has collected these passages.]
[Footnote 783: N. C. Col. Rec., VIII, 80_b_. There was also a petition from the people of Anson: ibid., 78.]
[Footnote 784: Ibid., 82; WEEKS, op. cit., 246, 247. This petition was presented to Tryon by "Herman Husband the leader of the Regulators": WEEKS, op. cit., 247, 248, referring to SWAIN, "War of Regulation," N. C. University Mag., IX (1859-60), 339.]
The vigorous resistance aroused by the unjust law of 1766, and the continued services rendered by the Presbyterian pastors to the governor in his struggle with the Regulators had the desired result. In December, 1770, a legislative committee brought in a report recommending a new law. "Upon perusing the several Acts of Assembly concerning the solemnization of the rites[785] of matrimony and considering the great number of Presbyterian Inhabitants settled in the western Frontier Counties in this Province and the difficulties and expenses they must necessarily be under," the committee "Can't but think that the restraints and penalties in the Said Acts are in some measure hard and oppressive and that they have a just and reasonable claim to the attention of the Legislative body for granting to them a religious toleration in that particular, and that it is well becoming the Catholic and liberal principles of the Members of the House Representatives of this Colony, to appoint a Committee to prepare and bring in a Bill for impowering all regular Presbyterian Ministers in this Province to Solemnize the rites of Marriage, according to the Westminster confession of Faith, by publication in their religious Assemblies, where the parties are best known, and by License, without any Tax or Fees to the Clergy of the Establishment."[786] Such a bill was accordingly brought in and passed with the governor's approval, "but with a clause suspending its operation until the pleasure of the King should be known."[787]
[Footnote 785: It is "rights" in the text, but this appears to be a "slip," for lower down the proper spelling is used.]
[Footnote 786: N. C. Col. Rec., VIII, 322 (Dec. 17, 1770).]
[Footnote 787: SAUNDERS, "Prefatory Notes," N. C. Col, Rec., VIII, xlv; also ibid., VIII, 297, 300; IX, 7.]
No relief was offered by this act to the other dissenters; and the report of Governor Tryon shows that he felt himself under special obligations to the Presbyterians. According to Saunders, he said that the act was an "indulgence" to which they were well "entitled because of the attachment they had shown to the Government;" and it appears, aside from the "merits of the case," that something was due from Tryon to the Presbyterians "for the support their pastors gave him in 1768." Certainly "the letters in which all the Presbyterian pastors in the Province united to praise Tryon and denounce the Regulators were as strong in language as they were opportune in point of time. Indeed, old Parson Micklejohn of the Established Church was not more pronounced in enforcing the duty of obedience to 'the powers that be' as being of divine origin than the Presbytarian pastors were. The Governor in his report put him" and these ministers "on the same footing in this regard."[788]
[Footnote 788: SAUNDERS, op. cit., xlv.]
The act had passed the house and received the governor's signature; but the battle was not yet won. It is perhaps not surprising that the ear of George III., in the days immediately following the Stamp Act, should have inclined more to the desires[789] of the loyalist clergy of the English church than to the complaints of "sectaries" in a rebellious province. Accordingly, the marriage act was disallowed by his Majesty; and the law of 1766 remained in force until 1778, two years after the constitution of 1776 had brought the establishment to an end.[790]
[Footnote 789: "It is interesting to note with what satanic disregard of the rights of man the leaders in the Establishment can write. Says Reed [minister in Craven County]: 'The bill was pushed by the dissenting interest, and [because of] the dangerous situation of the province from such formidable number of malcontents [Regulators], the governor acted with the greatest prudence in passing the bill with a suspending clause.... Should this act receive the royal assent it would be a fatal stroke to the Church of England, but as the insurrection is entirely quelled, I flatter myself with hopes that the act will meet with a repulse.'"--WEEKS, op. cit., 247; N. C. Col. Rec., IX, 6. Later the Board of Trade wrote that the law was in effect a "bounty to the tolerated religion at the expense of the established," and petitioned for its disallowance: N. C. Col. Rec., IX, 7, 245, 251, 284, 366.]
[Footnote 790: SAUNDERS, op. cit., xlv, errs in saying that the law of 1766 was repealed soon after its passage.]
IV. EPISCOPAL RITES BY LAW AND FREE CIVIL OR RELIGIOUS CELEBRATION BY CUSTOM IN SOUTH CAROLINA AND GEORGIA
The history of marriage in South Carolina runs much the same course as in the northern province; except that we hear of no struggle by the privileged establishment to enforce the statutes eventually enacted in its behalf. For a time, under the same charters, the two colonies were ruled in the same way by the proprietors; and in South Carolina for over three decades there was apparently full toleration with respect to matrimonial rites. That such was the case near the close of the seventeenth century may be inferred from the registration act of 1696. It is required that "every man which hereafter shall be married according to the rubrick of the Church of England, or by any other contract or ceremony," shall record his marriage in the register's office within thirty days after celebration, or else forfeit "one royall" for neglect. But at the time of registration he must produce "a certificate from under the hand of the parson, minister, magistrate, or otherwise," attested by "six persons at least met and congregated at such religious meateing" where the ceremony took place. For neglecting to file the certificate the register forfeits his office.[791]
[Footnote 791: COOPER, Statutes at Large, II, 120, 121 (act of March 1695/6).]
The Church of England was established by law in 1704. In the act for that purpose it is declared that "no justice or magistrate, being a layman, shall presume to join any persons in marriage, under penalty of one hundred pounds currant money of this province." Vestries are to provide a fit person as register of births, christenings, marriages, and burials, except those of "negroes, Mullatoes, and Indian slaves;" and a fine is prescribed for wedding contrary to the table of forbidden degrees.[792] All these provisions are repeated in the new act of 1706 for the "establishment of religious worship" in the province.[793] Six years thereafter the full text of the law of Henry VIII., "for marriages to stand notwithstanding Pre-Contracts" is adopted; and it appears again and again in the statute book until recent days.[794]
[Footnote 792: Ibid., 242, 243; also in N. C. Col. Rec., II, 867-82.]
[Footnote 793: COOPER, op. cit., II, 289-91; also in BREVARD, Alphabetical Digest of Laws of S. C., 41-44. In both these acts elaborate provision is made for registration.]
[Footnote 794: COOPER, op. cit., II, 475, 476, where 32 H. VIII., c. 38, is put in force; and it is retained in _Revised Statutes_ (Columbia, 1873), 481. In 1712, likewise, a part of the statute 1 Jac. I., c. 11, regarding bigamy was adopted: COOPER, II, 508.]
No further important change was made in the law before the Revolution. The act of 1706, giving a monopoly of the business of solemnizing matrimony to the established clergy, remained nominally in force. A fine could be levied for neglect of its provisions. But in the "Up" or "Back" country it was quietly disregarded; and, apparently without a contest, custom sanctioned the optional civil ceremony or optional ecclesiastical rites according to the usage of each denomination. "In the early stages of our juridical and civil history," says Brevard, "the laws of the province on this subject were in conformity to the English; but as the population ... encreased by emigrants from all countries, and of different religious denominations, this adherence to Episcopal regulations and forms was gradually relaxed, and at length generally disregarded." The church act of 1706, he adds, must have gone into "effectual and general operation." But, except partially, "it seems never to have extended farther than about sixty miles from Charleston."[795]
[Footnote 795: Editorial note in BREVARD, _Alphabetical Digest of Laws of S. C._, II, 41, 42, notes.]
What has just been said regarding South Carolina applies equally to Georgia, whose territory had belonged to South Carolina since the original grant of 1663. But the charter issued to James Oglethorpe and his associates in 1732 expressly abrogates the laws of the parent colony,[796] and gives the power to enact new laws to the corporation of associates as trustees for the colony. The Episcopal system was introduced, but it was not rigidly enforced. The charter to Oglethorpe "guaranteed liberty of conscience to all except papists,[797] and the spirit exhibited in ecclesiastical legislation was one of toleration. Hence a considerable Puritan element was drawn to the Colony."[798] The preamble of the act of 1785 shows that it had been the custom for justices, ministers, and "preachers of the gospel" to solemnize marriage. Such marriages are made valid and the practice legalized for the future.[799]
[Footnote 796: With an exception relating to military power: POORE, Charters, I, 373, 374. Georgia was made a royal province in 1751; but the policy of toleration was maintained: HOLMES, Annals, II, 45; STORY, Commentaries, I, 102. In early days the province suffered the usual evils from scarcity of women: Coll. Georgia Hist. Soc., II, 105; III, 32, 144.]
[Footnote 797: POORE, Charters, I, 375.]
[Footnote 798: COOK, "Mar. Cel. in Col.," Atlantic, LXI, 356.]
[Footnote 799: Digest of the Laws of Georgia (Philadelphia, 1801), 314.]
It appears, then, that throughout the southern colonies matrimonial legislation was tending in the same direction. Everywhere, except in Maryland, the optional civil ceremony was legally or practically recognized, though under various restrictions. Marriage was already a civil contract of mutual partnership; and, notwithstanding an occasional invalidating clause for neglect of the prescribed forms, the common-law marriage by mutual consent was probably valid, though, so far as it appears, the records of the provincial courts are almost entirely silent on that question.[800] In short, in its principal elements, throughout the South matrimonial law had reached or was strongly tending toward the existing American type.
[Footnote 800: Even in Virginia civil marriages were frequent before the Revolution, though liable to penalty. For Maryland the view of the text as to the common-law contract was sustained in the case of Cheseldine v. Brewer, 1 Har. and McH., 152 (1739). This decision was, however, overruled in Denison v. Denison (1871), 35 Md., 361, 379, in which Justice Alvey says: "We think we are safe in saying that there has never been a time in the history of the state, whether before its independence of Great Britain or since, when some ceremony or celebration was not deemed necessary to a valid marriage. In the early days of the province, it was not absolutely necessary that a minister of religion should officiate,--a judge or magistrate could perform the ceremony--but still, in all cases, some formal celebration was required." Of course, the opinion of a judge long after the colonial era, not professing to be based on evidence, can have little weight in settling the present historical problem. Though the laws of the Maryland assembly, like those of Connecticut and Rhode Island (STORY, Commentaries, I, § 171), were not required to be submitted to the king for approval, it cannot be assumed that such laws could deprive a person of any liberty secured by the common law, but they might bestow greater privileges. Cf. BISHOP, Mar., Div., and Sep., I, § 416.
A statute of North Carolina, in 1715, declared that the common law should be in force in that province (IREDELL, Laws, 1715, 18, 19; STORY, op. cit., I, § 142). Yet in this century it has been held that the common law of the state recognizes no marriage not according to the statutes; as to which statement, "the court observed in a subsequent case, 'we express no opinion.' But such, all agree, is not the common law of England."--BISHOP, op. cit., I, § 412; citing State v. Samuel, 2 Dev. and Bat., 177; and State v. Ta-cha-na-tah, 64 N. C., 614.
Several decisions of the courts of Tennessee have regard to the colonial laws of North Carolina, the parent commonwealth, and on the whole sustain the view that informal marriages were good despite the statutes. In the case of Bashaw v. the State, 1829 (1 Yerger, 177-97), which gives a history of North Carolina matrimonial legislation for the period 1715-1829, it was held that the celebration must be according to the statutes which had superseded the common law. The same view is taken two years later in Grisham v. the State (2 Yerger, 589, 592). But in Andrews v. Page, 1868 (3 Heiskell, Tenn. Reports, 653, 667), the opposite position is taken, the court holding rightly that the acts of 1741 and 1778 do not expressly prohibit the common-law marriage.
The common-law principle of marriage by mutual consent prevailed in South Carolina (compare 10 McCord, Statutes, 357, ed. note; and the case Vaigneur v. Kirk, 2 S. C. Equity Reports, 640-46, with H. W. Desaussure's note, 646). Referring to the law of South Carolina, generally, BREVARD, Alphabetical Digest, II, 41, note, says: "How far the informality of a marriage may afford ground for questioning its validity, on a trial for polygamy, may perhaps admit of some doubt." Historically, however, the doubt is exceedingly small that such an informal contract would be valid.
It is doubtful whether there were any courts in the southern colonies vested with full matrimonial jurisdiction: see BISHOP, op. cit., I, §§ 115-49.]
Chapter XIV
OPTIONAL CIVIL OR ECCLESIASTICAL MARRIAGE IN THE MIDDLE COLONIES
[BIBLIOGRAPHICAL NOTE XIV.--The New York Colonial MSS., of more service for the history of divorce, afford several important documents available for the present chapter. The use of these papers is facilitated by O'Callaghan's Calendar of Historical Manuscripts (Albany, 1866). Among the treasures also preserved in the State Library at Albany may be found the MS. copy of the Dongan Laws, including the marriage act of 1684 concerning which there has been much discussion; and some forty volumes of MSS. Marriage License Bonds, of interest to the genealogist and historian. The use of these is made easier by the published Names of Persons for Whom Marriage Licenses Were Issued by the Secretary of the Province of New York, Previous to 1784 (Albany, 1860), to which O'Callaghan has given an Introduction.
The most important source for the province is the Documents Relating to the Colonial History of New York (Albany, 1856-83), edited by O'Callaghan and Fernow. Original material may also be found in the Records of New Amsterdam (New York, 1897); Munsell's Annals of Albany (Albany, 1850-59); the same compiler's Collections on the History of Albany (Albany, 1865-71); and Valentine's Manual of the Corporation of the City of New York (New York, 1843 ff.). For the Dutch period we have O'Callaghan's Laws and Ordinances (Albany, 1868); for the proprietary government, "The Duke of Yorke's Book of Laws," in Linn's Charter and Laws (Harrisburg, 1879); earlier in Vol. I of the Collections of the New York Historical Society for the Year 1809 (New York, 1811); and recently in Vol. I of the Colonial Laws of New York (Albany, 1894), while the last-named collection covers the period of the royal province, and is enriched by Cumming's Historical Note and his comments on the various statutes and papers. The celebrated "Lauderdale Peerage Case," so important for understanding the marriage law of New York for the period between 1691 and 1772, may be found in the English Law Reports, X (London, 1885); and also abridged in Cook, Reports of Cases Decided by the English Courts, XXXVII (Albany, 1887). In connection with this case several members of the American bar submitted written opinions, and three of those published are in the New York State Library: see Fowler, Letter and Opinion (New York, May 11, 1885); Seward, Answers to the Interrogations of Brodie and Sons (New York, June, 1885); and Webster, Opinion on the Law of Marriage in the Colony of New York (New York, May 26, 1885). But far more conclusive than the views of the witnesses and expert advisers called at the trial is the remarkable paper of Rev. John Rodgers, found in the cabinet of President Stiles by the historian Holmes, entitled "A brief view of the state of religious liberty in New York 1773," in 2 Mass. Hist. Coll., I (Boston, 1838).
For the history of bundling, besides the mention in Valentine's Manual, should be consulted the case of Seger v. Slingerland in Caine's Reports, II (New York and Albany, 1860), where the custom was judicially considered; also Lamb, History of the City of New York (New York and Chicago, 1877); and especially Stiles, Bundling (Albany, 1871). Stiles, History of the City of Brooklyn (Brooklyn, 1867-70), gives an account of the restrictions put on the remarriage of widows in the old Dutch wills; and there are some notices of marriage law and customs in Grant, Memoirs of an American Lady (New York, 1809); Weise, History of the City of Albany (Albany, 1884); Watson, Annals and Occurrences of New York City and State (Philadelphia, 1846); Vanderbilt, Social History of Flatbush (New York, 1882; new ed., 1899); Ostrander, History of the City of Brooklyn and King's County (Brooklyn, 1894); Gerard, The Old Stadt Huys of New Amsterdam (New York, 1875); Hazard, Annals of Pennsylvania (Philadelphia, 1850); and especially Earle's Colonial Days in Old New York (New York, 1896). In 1786 a brief account of wedding customs in New York state was given by Hannah Thompson, "Letters," in Pa. Mag. of Hist. and Biog., XIV (Philadelphia, 1890); and in 1748 the governor's lucrative monopoly of marriage-license fees is described by the Swedish botanist Kalm, Travels in North America (Warrington, 1770): see Hart, Source-Book of American History (New York, 1899), extract 50. Cook, "The Marriage Celebration in the Colonies," Atlantic, LXI (Boston, 1888), discusses the subject for the middle provinces; and for the historical background Brodhead, History of the State of New York (New York, 1853-71); O'Callaghan, History of New Netherland (2d ed., New York, 1855); Friedberg, Eheschliessung (Leipzig, 1865); and his Geschichte der Civilehe (Hamburg, 1877), have been of most service.
For New Jersey, Leaming and Spicer, Grants, Concessions, and Original Constitutions (2d ed., Philadelphia, 1881), is of first-rate importance. This collection is supplemented by the documents in New Jersey Archives (Newark, 1880-86); and Smith, History of the Colony of Nova-Caesaria or New Jersey (Burlington, 1765; reprint, 1877); while the law of 1719 may be found in Acts of the General Assembly (Woodbridge, 1752); or in Allinson, Acts of the General Assembly, 1702-1776 (Burlington, 1776).
The early legislation of Pennsylvania is contained in Linn's convenient Charter to William Penn, and Laws of the Province of Pa., 1682-1700 (Harrisburg, 1879), which is supplemented by Nead's valuable Historical Notes. Some illustrations of judicial and administrative proceedings have been gleaned from the Colonial Records of Pa. (Harrisburg, 1838-53); and the marriage laws enacted from 1700 onward are cited in Carey and Bioren, Laws (Philadelphia, 1803); the Laws of the Commonwealth of Pa., 1700-1810 (Philadelphia, 1810); and Pepper and Lewis, Digest (Philadelphia, 1896). For the doctrines of the Friends one must go to the founder. William Penn's Select Works (1 vol. fol., London, 1771; 5 vols., 8vo, London, 1782) are a mine Of information on every phase of Quaker teaching; and the same is true of William Sewel's History of the Rise, Increase, and Progress of the Christian People called Quakers (original Dutch ed., Amsterdam, 1717; first English ed., London, 1722), a work whose scrupulous accuracy has never been impeached. On the other hand, for the false charges brought against the Friends by their orthodox antagonists one should read Thomas Underhill, Hell broke loose: or an History of the Quakers Both Old and New (London, 1660), who has raked together scandals of every description; Nathaniel Smith, The Quaker's Spiritual Court (London, 1668); and Gerard Croese, Historia quakeriana (Amsterdam, 1695; English ed., London, 1696), the book whose errors called forth Sewel's History. More recently Quaker rites and wedding customs have been described by Watson, Annals of Philadelphia (last ed., Philadelphia, 1881); Hallowell, Quaker Invasion of Mass. (Boston, 1883); Applegarth, "Quakers in Pennsylvania," J. H. U. S., X (Baltimore, 1892); and in a lively sketch, drawn mainly from records of the Monthly Meeting, by Earle, "Among Friends," in New England Magazine, XIX (Boston, 1898). There is a typical Quaker marriage certificate of 1692 in Vol. XIII of the Pa. Mag. of Hist, and Biog. (Philadelphia, 1889). A brief summary of the matrimonial laws of the colony may be found in Gordon, History of Pennsylvania (Philadelphia, 1829).]
I. NEW YORK
The history of matrimonial institutions in the middle colonies is on the whole less attractive than in New England. At any rate, it is less interesting in the sense of being less eventful. The original materials from which to construct it are less abundant. There is nothing equal to the Diary of the inimitable Sewall from which it may be filled out and embellished. It is not quickened by the struggle to maintain or to introduce diverse forms of celebration resting upon opposing theories as to the nature of the nuptial contract. There is little answering to the Puritan thoroughness in regulating the conduct of domestic life, even among the Quakers. Hence the legislative and judicial records are relatively meager. In New York, notably, between 1684 and the Revolution the law-book is a complete blank. On the other hand, in Pennsylvania, after the establishment of the proprietary government, the predominance of Quaker sentiment enables the original usages and the early statutes regarding wedlock to run their even course for generations without essential change. Still the study of marriage in the middle section of the English colonies is not devoid of social interest. There, on account of mixed population and diverse religious sects, toleration in the main prevailed. The quaint records of the Dutch and the homely ceremonial of the Friends may even prove entertaining, while in this field, as in every other, the thought and experience of New York and Pennsylvania have done much to form and fix the types of law and administration now prevailing in the United States.
a) Law and custom in New Netherland.--Long before the first plantations were established on the Hudson, as already seen, optional civil marriage had been sanctioned in several of the Dutch states, and as early as 1656 it was extended to the United Netherlands. In Holland independents of both old and New England found encouragement and also a model in the effort to realize similar ideas born of their common Protestantism.
It is therefore strange at first glance that a thorough-going civil-marriage law should not have been introduced in New Netherland from the beginning. The laws of the mother-country, even after 1656, varied considerably in details among the different provinces. In their content they generally rested on the basis of the later Roman statutes.[801] From the desire to check the evils of clandestine contracts, in many instances rigorous measures had been adopted. Usually parental consent, often publication of banns, was made essential to a valid marriage.[802] The laws of Guelderland were especially severe;[803] and these according to Fernow, "naturally prevailed" in New Netherland; for a "majority of the early settlers" came from that province. "In Guelderland," he declares, "a marriage was void, if the express consent of the father, or if dead of the mother had not been obtained for the marriage of a son. With regard to daughters the law was still more rigorous; even a marriage, entered into by a girl with parental consent, did not emancipate her from parental authority, if she was still under age at her husband's death: she had to place herself again under the guardianship of her father or mother. Neither were parents obliged to give before a Court of Justice any reasons in case they refused consent. This law had its foundation in the Codex Justinianus."[804]
[Footnote 801: O'CALLAGHAN, _Introduction to Names of Persons for Whom Marriage Licenses Were Issued_, p. iii.]
[Footnote 802: FRIEDBERG, Eheschliessung, 478 ff., 485 ff., gives the details, citing the Dutch authorities.]
[Footnote 803: Compare the summaries of FRIEDBERG, op. cit., 487, 488, 491.]
[Footnote 804: FERNOW, Doc. Rel. to Col. Hist. of N. Y., XIV, 243, note.]
In all respects except the celebration optional civil or ecclesiastical marriage was sanctioned in New Netherland. It is doubtless safe to assume that during the early years of the Dutch colony banns and parental consent, probably according to the law of Guelderland, were required; but legally, so far as the evidence at hand shows, the covenant had to be solemnized by a minister with religious rites. The first legislation by the local authorities appears to have been enacted only ten years before the first establishment of English rule. The occasion was the violation of the "custom of our Fatherland" in the publication of banns by the magistrates of Gravesend, as appears from the following letter addressed to them by Peter Stuyvesant:[805]
"Worthy and dear friends.
"I received in due time your letter of the 13^{th} inst. sent to me by the Fiscal, which has been communicated to the High Council. We have been very much astonished that you arrogate to yourself the publication of marriage-proclamations within your village without our or the Council's knowledge, in cases where both parties live beyond the jurisdiction of your village. As to the allegation made by you, that the person is a freeman of your village, he is the same in the City of Amsterdam and here in this City and for this reason must the marriage-proclamation be reported and published here as well as there according to the customs of our Fatherland. We do not deny, that matrimony is ruled by divine and by human laws, but they who enter upon this state must do it according to these divine and human laws, with the consent or knowledge of their parents, tutors or guardians and then notify thereof the Commissary, appointed by higher authority, at the place where they reside or where they have previously been living during the last year. Your final request, that we should send you a copy of the order and power of attorney, which his [evidently Johannis van Beeck's] father has given us concerning this son, is not complied with, as we do not think ourselves bound to do it, considering yours being a subordinate jurisdiction and subject to us; besides the father would be displeased and it would be unreasonable in us, to communicate to others, what an honest and prominent man has written to us in a detailed letter.
"Thus much in answer to your open letter. This further serves as cover of the enclosed order and resolution made by us and the Council, which you must promptly obey, not because we wish to prevent the marriage, but that according to divine and human laws and ordinances they may be put in practice, proclaimed and affixed, at the proper place and without infraction of anybody's rights.
"Relying thereupon we commend you with cordial greetings to God's protection and remain
Your well-affected friend and Governor
P. Stuyvesant."
[Footnote 805: Ibid. The letter is dated Jan. 20, 1654.]
The ordinance mentioned in the letter bears date of January 19, 1654/5, and runs as follows:
Since the magistrates at Gravesend "have presumed and undertaken publickly to post notices of marriage" of persons "domiciled in and about this city of New Amsterdam," far beyond their proper district; therefore the "Director General and Council order and notify the aforesaid Magistrates of Gravesend and all others within this Province, to annul such posting of intentions of Marriage, and on sight hereof to withdraw the same, and in all cases to proceed with and confirm no such Marriage, either privately or publickly, before and until such persons, according to Netherland style, have entered and received their bans and proclamations of marriage where they are dwelling and have resided the last years."[806]
[Footnote 806: O'CALLAGHAN, Laws and Ordinances, 152, 153. For this ordinance see also New York Colonial MSS., XII, 40; and compare ibid., IV, 456; V, 197; VIII, 647. Consult WEBSTER, Opinion on the Law of Marriage prevailing in the Colony of N. Y., 1772, 19, 20 (Lauderdale Peerage Case), who discusses these ordinances.]
This important measure was supplemented by another four years later. The preamble recites that it had become common for betrothed persons to put off marrying for a long time after the proclamation of their banns, "which is directly in contravention of, and contrary to the excellent order and customs of our Fatherland." Therefore it is ordered that thenceforward all persons must be married within one month after publication, unless they can give a good excuse.[807] Light is thrown on the real motive for the adoption of this act by its provision that no man and woman are henceforth to live together until lawfully married. It seems to have been the custom, in too many instances, for betrothed couples whose banns had been asked the first time to begin living together as if already man and wife. They looked upon themselves as at least half married; and we are thus confronted by a state of affairs strikingly similar to that which we have found existing in New England in consequence of the laws governing pre-contract. Doubtless couples through indifference, the refusal to fulfil the contract on the part of an unscrupulous lover, or for other reasons, were now and then led to protract the irregular marital relation beyond the completion of the term prescribed for the publication of banns. Moreover, as in New England, the custom of queesting or bundling imported from the old home may have proved a snare for the unwary feet of the young men and maidens of New Netherland. Indeed, the practice of bundling has been assigned by New York writers as the proximate cause of the singular provision referred to. "It was one of the ordinances of the time," says Valentine, "that upon an agreement of marriage, the bans should be published from the pulpit three times, before the marriage could be solemnized. Impatient of the delay, however, the youthful couple were often inclined to be satisfied with their moral obligations towards each other, and to waive the immediate fulfillment of the legal ceremony; in the meantime ... the indulgence of cohabitation, then called 'bundling,' was practiced. It was for a long time winked at by the community, but its violence against the tenets of propriety was obvious, and at the time [1656] before spoken of, in which the city authorities resolved to set themselves to the reformation of abuses, this custom came under their prohibatory decrees." There were "those who still maintained its advantageous results, even though the contract of marriage were subsequently violated. The latter instances, it was contended, were comparatively few, and were set off by the increase of population which came" through this means. Yet the reformers "triumphed, and in 1658 it was ordered, that henceforth the mere publication of bans should not justify cohabitation."[808] The custom of bundling was, however, too tenacious to be stopped by a decree of the legislator. For more than a century in New York it continued to flourish, and sometimes to bear evil fruit, as is clearly revealed in the case of Seger v. Slingerland, which was decided in 1804.[809] Another action shows that forty years later the practice existed in the neighboring state of Pennsylvania. In this instance the plaintiff admits that "the custom in courtship which he has denominated bundling" prevails "very generally" in the part of the country where the interested persons reside; and in this suit, as in the New York case, the defendant won on appeal because of the connivance of the parents in the misconduct of their daughter.[810]
[Footnote 807: BRODHEAD, Hist. of the State of N. Y., I, 639. For the text of the ordinance of Jan. 15, 1658, see _N. Y. Col. MSS._, XVI, 40, 129; also O'CALLAGHAN, op. cit., 328, 329; and Law Reports, X (1885), 729 (Lauderdale Peerage Case).]
[Footnote 808: VALENTINE, Manual of the Corporation, 1858, 497, 498; cf. also LAMB, History of the City of N. Y., I, 183.]
[Footnote 809: CAINE, Reports, II, 219, 220. This was a case on appeal by the original defendant who had been sued for damage for debauching the plaintiff's daughter. The defendant won on the ground of connivance of the parents of the girl. "We lay out of view," says the court, "the custom which it is agreed prevails in that part of the country for young people, who are courting, to sleep together." "Nor is it an excuse for the parent to say that promises of marriage had been exchanged." Cf. also STILES, Origin and Hist. of Bundling, 44 ff., 109-11.]
[Footnote 810: Case of Hollis v. Wells (1845), 3 _Pa. Law Journal_ (Philadelphia, 1872), 29-33. Under head of "A Custom Must be Moral," these two cases are discussed in LAWSON (J. D.), The Law of Usages and Customs (St. Louis, 1881), 58-60.]
According to the old Dutch law, enforced in New Netherland, all persons desiring to form a valid union were required to appear before the minister or the court, as they saw fit, in the place where they had "their fixed domicil for the last year and day, and to apply there, for three Sundays or market days, when publication of the banns was to be made in the church or the court-house, or other place where the court of justice was held; and every one who had any impediment to propose, was obliged to state the same in the mean time, on pain of being otherwise deprived of that right."[811]
[Footnote 811: O'CALLAGHAN, _Names of Persons for Whom Marriage Licenses Were Issued_, p. iii.]
The following document of 1655, contained in Fernow's collection relating to the plantations on the Delaware when under the Dutch jurisdiction, may serve to illustrate the prescribed formality in applying for publication of banns:
"Appears Toms Broen, as father and guardian of his daughter, Jannetje Tomas and consents to the marriage between her and Willem Mauritz here present and requests that their legal bans might be published; the names being, of the bridegroom Willem Mauritz, bachelor, from Walle Schier, about 33 years old, of the bride Jannetje Tomas, spinster, born in New-Netherland, about 16 years old. Witness Stuyte Andries."[812]
[Footnote 812: Addressed to the vice-director and his council: FERNOW, Doc. Rel. to Col. Hist. of N. Y., XII, 137 (Dec. 29, 1655). For a similar application see ibid., XII, 153, 154. For further record of entry of banns before the "mayor of New York" (1670-71) see Records of New Amsterdam, VI, 262, 334.]
From the same collection, two years later, we learn that "Laurens Pieters bachelor from Lier and Catlyne Jans of Gottenburch in Sweden were confirmed in marriage after proclamation of banns on the previous Sundays."[813]
[Footnote 813: Dec. 24, 1657: FERNOW, loc. cit., 156.]
The civil courts in New Netherland possessed full jurisdiction in all suits or matrimonial causes, including cases of separation and divorce.[814] For an understanding of the relation of the lower and higher courts, the procedure in such cases, and the details of the law, the often-mentioned case of Johannis van Beeck and Maria Verleth is instructive. The facts in this case appear to have been the proximate cause of the ordinance of 1654/5 and the letter of Stuyvesant already submitted. It is all the more interesting because it involves the double question of irregular banns and unlawful celebration, as shown by the final decree. On January 26, 1654, takes place the first step in the proceedings. Cornelis van Tienhoven, the schout, lodges formal complaint before the burgomasters and schepens of New Amsterdam against the court of Gravesend for illegally "granting and confirming the Banns of Matrimony betwixt Johan van Beeck and Maria Verleth, who both have their domicil in and about this city of New Amsterdam;" suggesting that such conduct tends to the infringement of the good policy of the fatherland, as also the privileges and jurisdiction of the city, and to prepare a way for sons and daughters to go secretly and get married. In reply, says the record, the "Burgomasters, and Schepens ... do hereby refer the foregoing complaint and proposition made by Cornelis van Tienhoven, in quality as Schout, to their High Mightinesses the Director-General and Councillors of New Fetherland."[815] But this did not end the matter.[816] On February 10, pending the decision of the higher court, van Beeck petitioned the burgomasters and schepens "that his bans with Maria Varleth may be entered and be properly proclaimed here" in New Amsterdam. Whereupon the court "engage to do same because it is usual and custom of Fathld to have publcts where domicil is and married where he pleases."[817] After a little delay, the court keeps its promise. On February 19 the burgomasters and schepens solemnly examined the petition, noting (1) who instituted marriage and the apostles' teaching; (2) the proper ages and the attained ages of both parties; (3) consent of parents on the girl's side; (4) distance between this and fatherland; (5) that "matters by long delay might come to be disclosed ... which would bring disgrace on both families;" therefore that "proper ecclesiastical proclamations ... ought to be made at the earliest opportunity and followed afterwards by their marriage."[818] This resolution seems a trifle indiscreet, in view of the fact that the original case had been referred to their High Mightinesses. It is therefore not strange that a communication signed by Stuyvesant himself should express surprise that van Beeck should have affixed by a poster "that his marriage, contracted not only without his father's knowledge, but contrary to his express prohibition to marry abroad has been declared lawful and proper by Resolution of the Burgomasters and Schepens ... ; of which Resolution the Director General and Council are ignorant;" at the same time requesting an "authentic copy" of the resolution, with "written reasons" for failing to submit the same for approbation of the higher court.[819] This was on March 2, 1654. Apparently, after republication of the banns, van Beeck had had the marriage ceremony performed outside of the Dutch jurisdiction, probably because of the doubtful legality of the course taken by the officials of New Amsterdam. The records are silent as to the further proceedings in the case, except as they may be inferred from the following decree of the higher court, rendered not earlier, apparently, than 1656, which leaves us in doubt as to how the original complaint against the magistrates of Gravesend was disposed of:
"Whereas, the Director-General and Council of New Netherland have heard the charge of the Fiscal against Johannis van Beecq, a free merchant and inhabitant of this City of New Amsterdam, defendant, who has been duly summoned by the Court Messenger Elslandt in the name of the Fiscal on three Court days and who has had himself married by an unauthorized countryman, named Goodman Crab, living at Greenwich, against the laudable laws and customs of the United Netherlands and, as the Fiscal further states and proves in his charge, contrary to the advice and command of his lawful guardian,[820] the Hon^{ble} Director-General, also without previously publishing the bans and who has so far failed to make his appearance, of Netherland and without previous publication of the bans, is hereby declared ... unlawful and the said Jan van Beecq and Maria Verleth are commanded to live separate under penalty of being punished according to law for living in concubinage."[821]
[Footnote 814: For a discussion of the divorce jurisdiction of the Dutch courts see chap. xv, below.]
[Footnote 815: VALENTINE, Manual of the Corporation, 1845-46, 368; Records of New Amsterdam, I, 155.]
[Footnote 816: While these proceedings were in progress, another appeal, growing out of the case, came from the schout, burgomasters, and schepens, in the city hall, special session of Feb. 8, 1656. Case of "Maria Verleth, pltf. v. Joost van Beeck, deft." The defendant maintains, as the marriage between Johannis van Beeck and Maria Verleth is not yet declared legal, that certain "letters are not her's, until the marriage be legalized." But should the marriage be declared lawful by the court, supreme council, and consistory, he consents that she shall have them. He only wants his right. The court lets Maria have the letters provisionally, because it has never been informed that the marriage has been declared illegal, and it has already announced that it must respect the proclamation of the church and the "marriage tie of said young people."--Records of New Amsterdam, II, 36.]
[Footnote 817: Ibid., I, 159, 160.]
[Footnote 818: Ibid., 164, 165. Earlier on the same day, the record says, van Beeck prays "that disposal be made of petition and remonstrance;" but no action was taken because the bench was not complete: ibid., 163, 164.]
[Footnote 819: Records of New Amsterdam, I, 173, 174.]
"And whereas the Fiscal demands by his motion, exhibited on the 1st of September, 1654, that the said van Beecq be condemned in contumacy,
"Therefore, after proper invocation of the Lord, the Director-General and Council of New Netherland, in the name and behalf of their Noble High: Might: the Lords-States-General of the United Netherlands and of the Noble Lords-Directors of the Privileged West India Company administering justice at the requisition of the Fiscal, declare, that the Fiscal's charges are true and founded in law and therefore the marriage of Johannis van Beecq and Maria Verleth, solemnized at Greenwich and confirmed by an unauthorized person contrary to the laudable laws and customs
[Footnote 820: See the reference to power of attorney in Stuyvesant's letter, p. 269, above.]
[Footnote 821: FERNOW, Doc. Rel. to Col. Hist. of N. Y., XIV, 291.]
From the evidence already presented it is perhaps not rash to infer that marriage by mere private consent, in words of the present tense, was not valid in New Netherland. Publication of banns and celebration before an authorized person were essential. The principle, therefore, of the English common-law marriage did not obtain. It had been superseded by statute. These records afford other evidence to sustain this conclusion. Thus in February, 1662, William Beeckman, of "Fort Altena on the South-River," writes to Stuyvesant and the council, complaining that one Laers, a Finnish priest, who was granted a divorce from his wife two months before, has "married himself again last Sunday"--an act "which in my opinion (under currection) he has no right to do. I expect your Honors' orders, how to conduct myself in regard to it."[822] As a result the marriage was declared to be "null, void, illegal;" seemingly on the ground that self-marriage was not tolerated by the usages of the Reformed church. Clearly in the opinion of the court the performance of the ceremony by a person legally competent was necessary to a valid contract. It is possible, however, that the decree was unjust because of unfair representation of the facts by Beeckman, who is accused of being a tyrant. In a letter to Stuyvesant, remonstrating against his treatment, Laers says: "I cannot discover anything illegal in it [his conduct]. I acted just in the same manner as I had done before in respect to others; exactly as others do who are not prosecuted for it, and I can conscientiously assure you that it was done without any evil intentions. Had I known that my marrying myself in this manner should have been so unfavorably interpreted, I should have submitted to the usage of the Reformed Church. But I did not know it. Wherefore I pray once more the honorable general that he will vouchsafe me his aid."[823]
[Footnote 822: Ibid., XII, 359, 360. The case is also discussed by GERARD, The Old Stadt Huys of New Amsterdam, 390, 391.]
[Footnote 823: GERARD, op. cit., 391, who says Laers was not legally bound to conform to the usage of the Reformed church. See also the documents in this case in O'CALLAGHAN, op. cit., XII, 358, 359, 363, 366, 367.]
Another case, or rather pair of cases, occurring during the restoration of Dutch rule in 1674, seems conclusive as to the severity of the law. On the fifth of February of that year, as the fiscal alleges, Jacob Fabricius, a Lutheran preacher, had "contrary to the laws of this government married Ralph Doxy and Mary van Harris ... without having any lawful authority thereto and without publication of bans." For this offense it is suggested in the complaint that the culprit be severely whipped and "forever banished this government cum expensis." After hearing the fiscal's charge, the confession of Fabricius, and a "report" of the latter's previous bad behavior, the court decides not to "proceed against him in the most rigorous manner, considering his age and late position, but they condemn him and declare him incapable to perform the functions of a minister and what is connected with them within this province for the time of one year. After this time has elapsed Deft. shall be held to ask for a special 'consent' before he shall be re-admitted to the performance of the said functions."[824]
[Footnote 824: FERNOW, op. cit., XII, 512: case of the Fiscal v. Jacob Fabricius, March 1, 1674, before Governor-General Colve and the council. A version of the case is also given by O'CALLAGHAN, op. cit., II, 693, who translates "license" where Fernow uses "consent" in the last sentence.
It is greatly to be feared that Brother Fabricius was a rather uncomfortable inhabitant; for at the same session of the court the fiscal charges that he did "beat and use force and violence against Marretie Jurians, in her own house," for which it is thought he ought to be "condemned in a fine of five Beavers with costs." The defendant admits the charge; "but says that the above named Marretie Jurians did provoke him with harsh language." Their honors, however, deemed it just to assess him "two Beavers with costs": O'CALLAGHAN, loc. cit., 693. Later Fabricius was accused of riotous conduct at Newcastle on June 4, 1674, but he denied the charge and offered to bring witnesses: FERNOW, op. cit., XII, 521. Possibly religious bickerings had something to do with his troubles. At any rate on June 1, 1675, the Lutherans on the Delaware petitioned that he be confirmed as pastor: ibid., 529. On April 18, following his suspension for marrying Doxy, he had the hardihood to ask that the sentence be mitigated, so that "he might be at least allowed to baptize, if he may not preach and act as minister;" but the court declined his request: ibid., 512.]
The case against Ralph Doxy is complicated by additional charges. The fiscal makes no direct reference to the unauthorized celebration or to the failure to publish the banns, though from the judgment of the court we perceive that these offenses were considered; but accuses him of entering "in an unlawful manner, into the married state with Mary van Harris, making use for that purpose, of a forged certificate," further alleging that he "hath still a wife alive who resides in New England;" for which delinquencies he ought to be severely whipped and "banished the country forever, with costs." In his reply, Doxy "denies ever having been married to a woman before," but confesses "his guilt as regards the forged certificate," saying "that through love for Mary Harris he had allowed it to be executed by a certain Englishman, now gone to the Barbadoes, and therefore prays forgiveness." The court declared the marriage unlawful on the two counts for which Fabricius was suspended; but "finding the charge against him of having a second (sic) wife in New England unfounded, he is therefore permitted to confirm himself in wedlock with the abovenamed Mary, according to the laws of the government." For the forged certificate "he is pardoned for this time on his promise of improvement, and request for forgiveness[825]."
[Footnote 825: O'CALLAGHAN, op. cit., II, 691, 692. On these two cases see FOWLER, Letter and Opinion, 60 ff. (Lauderdale Peerage Case).]
With the exception of the restriction put upon bundling, if that were indeed the purpose of the act of 1658, the Dutch law-makers do not seem to have busied themselves with the regulation of courtship. Sexual transgressions were severely dealt with, although not with the same rigor as in New England or even in early Virginia. Neither the death penalty nor the scarlet letter appears. Fornicators, if single, were required to contract marriage or pay a heavy fine.[826] Adulterers fared worse. Some illustrations from the judicial records in such cases have been gleaned by Cowley from the Colonial Manuscripts. Among these are the sentence to whipping and banishment of Ytie [Yutie] Jansen, "for living in adultery with Jan Parcel, and also the sentence of Laurens Duyts, who, for selling his wife, Yutie Jansen, and forcing her to live in adultery with another man, and for living also himself in adultery, was 'to have a rope tied around his neck, and to be severely flogged; to have his right ear cut off, and to be banished for fifty years.' John Parcel, for living in adultery with this Yutie Jansen, whom he had thus bought from her own husband, was 'to be placed at the whipping-post, with two rods in his arm,' to be banished twenty years and pay a fine of a hundred guilders [forty dollars], with costs. The fourth party, Geesje Jansen, for living in adultery with Laurens Duyts, was 'to be conducted to the whipping-post, and fastened thereto, the upper part of her body being stripped naked, and two rods placed in her hand; to be afterwards conducted, in that wise, outside the city gates, and banished the province for the term of thirty years, with costs.' Moreover, Iva Dircksen, for adultery, was 'to be conducted to the place where justice is administered, and there to witness the punishments inflicted this day, and then to be banished for the term of fifty years.'"[827]
[Footnote 826: O'CALLAGHAN, Laws and Ordinances, 495.]
[Footnote 827: COWLEY, Our Divorce Courts, 33, 34; citing _New York Colonial MSS., 1630-1664_: Dutch: Part I, Vol. VIII, 1049, 1051, 1653, 1055, 1057.]
Breach of promise suits are not infrequent. Sometimes it is the faithless swain who is prosecuted for his broken troth; as in 1669, when Elizabeth Stedwill called Jan Hendrix van Gunst to account;[828] or when Maria Besems seeks pecuniary satisfaction for the like offense of Boudewyn van Nieuwland.[829] Sometimes it is the maid who asserts the woman's privilege, if not her legal right, to change her mind; as in the case of Pieter Koch v. Annetie Cornelissen van Vorst, which took place in New Amsterdam, 1653-54, and may serve as an example. On February 24 the defendant's stepfather delivers her "papers" to the burgomasters and schepens, who order that each party shall have a copy of the other's papers, and that the defendant shall appear in person. Then the case drags along for nearly a year, over no less than eight sessions of the court, before the pleadings and other preliminaries are finished. At last, on February 19, 1654, the papers are sent by the lower court to the director-general and council for advice. Apparently in consequence of this advice the documents are then submitted to a special committee of three men, who hand in their report on the 18th of the following May. Upon this report the decision of the burgomasters and schepens was based, though they resolved to keep the judgment in "abeyance" until "requested" by the parties to the suit. From the records it appears that there was an oral promise of marriage; that the plaintiff had given presents to his betrothed; and that she, because of his "misbehaviour," was not disposed to keep her engagement. The court, however, decided that a promise once given should remain in force. Neither person without the consent of the other and the approbation of the court should marry. The defendant was allowed to keep her presents until marriage or until, with the knowledge of the magistracy, the betrothed should set each other free. Costs were to be borne equally by the parties.[830]
[Footnote 828: Records of New Amsterdam, VI, 203.]
[Footnote 829: GERARD, The Old Stadt Huys, 27. Cf. ibid., 26, 27, where cases of breach of promise are mentioned in 1642, 1644, 1653, and 1656.]
[Footnote 830: Records of New Amsterdam, I, 54; see ibid., 167, 199, 200. It may perhaps be inferred that the couple concluded to release each other; for only seven years after the trial (May 24, 1661) "Annetje Dircks, widow of Pieter Koch," is mentioned; ibid., III, 310; and similar phrase is twice repeated: ibid., 403; IV, 34.
There are other cases. "In 1654 Greetje Waemans produced a marriage ring and two letters, promissory of marriage, and requested that on that evidence Daniel de Silla be 'condemned to legally marry her.' He vainly pleaded his unfortunate habit of some days drinking too much, and that on those days he did much which he regretted; among other things his bacchanalian love-making of Greetje. François Soleil, the New Amsterdam gunsmith, another recreant lover, swore he would rather go away and live with the Indians (a terrible threat) than marry the fair Rose whom he had left to droop neglected--and unmarried."--EARLE, Colonial Days in Old New York, 51; and for mention of other cases, in connection with Dutch wedding gifts, see ibid., 52, 53.]
It is not surprising that among a people so thrifty and sensible as the pioneers of New Netherland the remarriage of a widow or a widower should be accompanied, or anticipated, by prudential measures, designed to protect the interests of the children of the first union. For this reason the wills and marriage contracts, specimens of which have been preserved, are of peculiar interest. According to Stiles, a well-known investigator of deeds and wills in Williamsburgh[831] makes the remark "that the old Dutch wills seem not to trust the widow in a second marriage. The restraints placed upon remarriages, by wills, were generally in favor of the children of the first marriage; and the widows thus restricted generally signed consents to accept the bequests in lieu of dower, for the good reason that propriety did not allow them to refuse so soon after the death of their first husband, and because the devises and bequests in lieu of dower vested an estate for life, or three thirds of the estate subject to a contingency in their own control, instead of one third absolutely. The will of Cornelius van Catts of Bushwick, dated in 1726, and expressed in a sort of half Dutch dialect, devises to his wife Annetjie, his whole estate ... while she remains his widow--both real and personal. 'But if she happen to marry, then I geff her nothing of my estate, neither real nor personal. I geff to my well-beloved son, Cornelius, the best horse that I have, or else £7, 10s., for his good as my eldest son. And then my two children, Cornelius Catts and David Catts, all heef [half] of my whole effects, land and movables, that is to say, Cornelius Catts heef of all, and David Catts heef of all. But my wife can be master of all for bringing up to good learning my two children.... But if she comes to marry again, then her husband can take her away from the farm, and all will be left for the children, Cornelius Catts and David Catts, heef and heef.'"[832]
[Footnote 831: J. M. STEARNS.]
[Footnote 832: STILES, History of Brooklyn, I, 233, 234.
The author adds: "So also in the will of John Burrows, of Newton, July 7, 1678, he devises to his son John his then dwelling-house, farm, orchard, out-houses, and lands, etc. 'But not to dispossess my beloved wife during the time of her widowhood. But if she marry, then her husband must provide for her as I have done.' So also the will of Thomas Skillman, of Newton, in 1739."--Ibid., 233, 234.
"Often joint-wills were made by husband and wife, each with equal rights, if survivor. This was peculiarly a Dutch fashion. In Fordham, in 1670 and 1673, Claude de Maistre and his wife Hester du Bois, Pierre Cresson and his wife Rachel Cloos, Gabriel Carboosie and Brieta Walferts, all made joint-wills. The last-named husband in his half of the will enjoined loss of property if Brieta married again. Perhaps he thought there had been enough marrying and giving in marriage already in that family, for Brieta had had three husbands,--a Dane, a Frieslander, and a German,--and his first wife had had four, and he--well, several I guess; and there were a number of children; and you couldn't expect any poor Dutchman to find it easy to make a will in all that confusion. In Albany may be found several joint-wills, among them two dated 1663 and 1676; others in the Schuyler family."--EARLE, Colonial Days in Old New York, 54, 55.]
It was not, however, the first husband alone who took such precautions. After betrothal careful marriage contracts were often drawn up when either a widow or a widower was about to re-enter wedded life. The following is a sample of these stipulations, dated July 27, 1656:
"Appears Geertruyt Jacops, widow of the late Mr. Roeloff de Haes, now betrothed to Jacob Crabbe and declares her intention of proving and assigning their father's inheritance to the children, left by him, Mr. de Haes, and born in wedlock by her, Geertruyt Jacops, to wit Johannes de Haes, old about 10 years, Marrietje de Haes, old about 9 years, and Annitje, old about three years, and assigns herewith to each of the aforesaid children the sum of 6 carolus guilders, declaring at the same time upon her conscience, in place of an oath that she, affiant, hereby satisfies the aforesaid children out of their father's inheritance and this declaration is made in presence and with the consent of her affianced husband Jacobus Crabbe, and she Geertruyt Jacops, has nominated, constituted, and appointed ... as guardians of the aforesaid children the Worthy Oloff Stevensen and Hendrick Kip, both burghers and inhabitants of the Manhattans."[833]
[Footnote 833: Before the vice-director on the Delaware: FERNOW, Doc. Rel. to Col. Hist. of N. Y., XII, 149, 150.
Here is a somewhat more elaborate contract in which one party is a widower:
"In the name of the Lord Amen, be it known by the contents of this present instrument, that in the year sixteen hundred and sixty-three the eighteenth day of May, appeared before me, Johannes La Montagne in the service of, etc., Meyndert Frederickse [Smith], widower of the late Cataryna Burger, who declares in the presence of the aforesaid witnesses, that for God's honor he has contracted a future marriage with Pietertien Teunise, spinster (jonge dochter), and before the consummation of the same, he, the subscriber, assents to the following conditions, firstly, that the aforesaid betrothed persons, for the maintenance of said marriage, will collect and bring together, all such existing estates and effects of whatever nature; in whatever place, and with whatever persons, the same may be lying or deposited, nothing excepted, which each now has and posesses, to be by them possesed in common, according to the law of our Fatherland, except that out of the bridegroom's estate, to-wit, from the estate left by Caterina Burger deceased, be reserved the sum of eight hundred guilders payable in beavers, for the children left by her; to wit Frederick Meyndersen aged six years, and Burgert Meyndersen aged three years, being their maternal (matrimonial) inheritance; moreover said married persons shall be holden to bring up said children in the fear of the Lord, to teach them to read and write in the schools, to maintain them in food and clothing till their majority or married state, without diminishing their maternal estate, which the subscriber promises without craft or guile, and for the same binding his person and estate, real and personal, present and future, nothing excepted, subject to all laws and judges." In the presence of the children's guardians and the "orphan master."--MUNSELL'S Collections on the Hist. of Albany, IV, 321. For similar contracts see ibid., 311 (Sept. 23, 1662), 345.]
b) Law and custom under the Duke of York.--In 1664 New Netherland passed into the hands of the Duke of York, whose patent from Charles II. directed him to establish authority "not contrary to but as neare as conveniently may bee agreeable to, the Lawes Statutes and Government of this our Realme of England."[834] After studying the New England laws, especially those of Connecticut and Massachusetts, Colonel Richard Nicholls, the duke's deputy governor, promulgated a code which was in force on Long Island, or Yorkshire, from March 1, 1665.[835] On August 6, 1674, Governor Andros ordered the duke's laws to be enforced throughout "New York" except "such as shall have apparent inconveniences in them,"[836] and in 1676 they were established in the Delaware region, "except the constables' courts, county rates, and some other things peculiar to Long Island."[837] It follows that for a short time after the conquest, in the province and on the Delaware, the Dutch laws were still observed; and, of course, the old usages and customs long survived.
[Footnote 834: See the charter in New York Colonial Laws, I, 1-5; and compare COOK, "The Mar. Cel. in the Colonies," Atlantic, LXI, 360 ff.]
[Footnote 835: BRODHEAD, Hist. of N. Y., II, 18, 63, 66, 67; Colonial Laws of N. Y., I, xii, 100, 101. The code of the Duke of York has been thrice published: in Collections of N. Y. Hist. Soc., I, 305-97, for the year 1809 (New York, 1811); in the recent Colonial Laws of New York (Albany, 1894), I, 6-100, where a critical note on the original copies may be found; and as the Duke of Yorke's Book of Laws, a part of LINN'S Charter and Laws of Pennsylvania (Harrisburg, 1879), the edition here cited by preference.]
[Footnote 836: O'CALLAGHAN, Doc. Rel. to Col. Hist. of N. Y., III, 226, 227; N. Y. Col. Laws, I, xii, xiv, 107 (Andros's order). Cf. DONGAN'S report in O'CALLAGHAN, op. cit., III, 390 (1686); also see HILDRETH, Hist. of U. S., II, 44 ff., 76 ff.; LODGE, Short Hist., 297-99; BRODHEAD, Hist. of N. Y., II, 273; HOWARD, Local Const. Hist., I, 105, notes.]
[Footnote 837: HAZARD, Annals of Pa., 427; N. Y. Col. Laws, I, xii.]
By the duke's code optional civil marriage was established in New York. "Whereas," declares the preamble, "by the Law of England no Marriage is Lawfully Consummated without a Minister whose office it is to join the parties in Matrimony after the Banes thrice published in the Church or a Lycence first had and obtained from some person thereunto Authorized, All which formality cannot be duly practiced in these parts. Yet to the end that a decent rule therein may be preserved It is Ordained that from henceforth the names and surnames of each Party who sue for Marriage shall be Publiquely read in their Parish Church or place of usuall Meeting, where they both then Inhabit, three severall Lords days successively." An optional procedure by license or by ecclesiastical banns was thus introduced; but in one respect the liberality of the Dutch law was not imitated. Unqualified permission to publish intentions of marriage by civil notice, instead of banns in church, was not granted. Yet, in effect, such discretion is often allowed; for "where no Church or Meeting place shall happen to bee," fourteen days written notice on "three doors of each parish" where the parties respectively dwell, namely on the doors of the constable, and two of the overseers, is declared sufficient.
Optional religious or civil celebration is established. After proper notice, as already described, the ceremony may be performed by "any minister" or "any justice of the peace," but on one important condition: the parties are required to "purge themselves by oath before the minister or justice that they are not under the bonds of matrimony to any other person living;" and in case of obtaining a "double marriage" by perjury, we catch a glimpse of the influence of New England thoroughness on Colonel Nicholls, in the barbarous provision that the persons "offending shall bee boared through the tongue with a read hot Iron and moreover proceeded against as in Case of Adultery." But the party "approved innocent" and "ignorant of the other's wicked fraud" may recover damages against the "nocent," and is permitted to contract a new marriage as if nothing had happened.[838] For the marriage of any "Daughter, Maid, or Servant" the "known consent" of the parent, master, or dame is required; and for celebration without such consent, or without preceding banns or other legal notice, or the governor's license in place of notice, the minister or justice is to "forfeit twenty pounds and be put out of his office."[839]
[Footnote 838: Duke of Yorke's Book of Laws: in Charter and Laws, 19, 36; Col. Laws of N. Y., I, 45, 46. In at least one case this provision was carried out: on Oct. 5, 1672, Dan Sutton, for perjury and bigamy was sentenced to have his tongue bored through with a red-hot iron: Law Reports, X, 733 (Lauderdale Peerage Case); for the text of the duke's marriage law of 1664/65 see ibid., X, 730, 731.]
[Footnote 839: Duke of Yorke's Book of Laws, 37.]
The declaration of the preamble that "by the Law of England no Marriage is Lawfully Consummated without a Minister" may prove misleading, unless the vital distinction between "legality" and "validity," already emphasized, be kept in mind. In 1665 a marriage in England without a minister was valid, but it was not lawful and might be punished. In the present instance, however, all doubt as to the meaning of the law is set at rest by the further provision that "if any man shall hereafter presume to Marry contrary to these Lawes prescribed the Person offending shall be proceeded against as for Adultery or fornication, ... the Children so begotten shall be Reputed Bastards, And the Parents suffer such paines and penalties by fines or Punishment as they have deserved."[840] Since this provision is clearly contrary to the existing law of England, it would seem to be invalid as transcending the legislative power granted to the duke by the royal charter; and even the king could not have changed the law of England.
[Footnote 840: Ibid.]
Later in 1665 provision is made relative to the legal age for matrimony. All persons are to be "accompted of fitt age to Marry, when the Man shall attaine to the age of twenty one, and the Women of Eighteene years."[841] In the next year the not very lucid interpretation is vouchsafed that this law is to be understood "of such persons onely as are under guardianshipp, and itt is not in any wayes to take of the naturall bounds of Duty and obligation which Children owe to their parents."[842] If this declaration has any sense, it may perhaps mean that, without consent, only orphans under guardianship, and not those whose parents are living, have full authority to marry at the ages mentioned.
[Footnote 841: Ibid., 65.]
[Footnote 842: Ibid., 70.]
A system of registration is likewise provided for. The names and surnames of all the inhabitants of every parish in the government are to be registered; and "to prevent future inconveniences which may arise about the age of Orphants, The Certaine Marriage of Men and Women or the decease of persons imported into this Country whereof no positive Certificate can be granted, as to the age of one, Marriage of another or the Death of another, The Minister or Town Clark of every parrish shall well and truly and plainly" record all births, marriages, and deaths happening within his district "in a Book to be provided by the Church-wardener for that purpose." If a master of a family or anyone concerned fail, within one month, to report the birth, marriage, or death of a person related to him, he shall pay a fine of five shillings.[843]
[Footnote 843: Duke of Yorke's Book of Laws, 13, 14; Col. Laws of N. Y., I, 19.]
Another provision reveals the tender solicitude of the English common law for the wife in a way which a century later would have warmed the heart of Sir William Blackstone himself. "No man shall harbour, conceal or detain Contrary to the concent of the Husband any Married woman, upon penalty of five Shillings for every hour" that she "remains under his Roof." Still there really might be occasions when even a "married woman" could reasonably claim some share of public protection. For has not the "common law" itself, in certain emergencies, placed her on a level with the bondwoman? Therefore it is provided "always that any woman flying from the barbarous Cruelty of Her Husband to the House of the Constable or one of the Overseers of the same Parish; may be protected by them in the manner as is Directed for Servants in such Cases, and not otherwise."[844]
[Footnote 844: Duke of Yorke's Book of Laws, 36; _Col. Laws of N. Y._, I, 46.]
Again on producing a "sufficient" certificate "from any forraigne parts" under the "hand and seal of some creditable person and known magistrate," that either spouse is dead, the other is free to marry again. The same liberty is accorded the survivor when either party has been absent for five full years without knowledge on a journey by sea or land usually made in "a year or less or in a few days." But in that case a veritable trap is laid for the feet of Enoch Arden, in a provision, imitated from the laws of New England, the stupidity of which is only less surprising than the fact that in substance it has survived in statutes of far more recent times. It is "provided always that if either the man or the woman shall at any time after the Expiration of five years Returne and bring full Testimony that hee or shee have divers wayes endeavoured by writings or Messages to make known to his wife, or her Husband, that Shee or hee were then living, or that they were by Imprisonment or Bond Slavery with the Turks or other Heathen, Lawfully hendred from giving such information;" then such person may "Challenge his or her premarriage, and obtain an order for their Cohabiting as formerly." But "if neither shall sue for such an order," they "may by mutuall agreement Enter a Release to each other in the office of Records, and both remain free from their former obligations."[845]
[Footnote 845: Ibid., 46, 47; Duke of Yorke's Book of Laws, 36, 37. "The father onely of the Children as are begotten in Lawfull Marriage," continues the statute, "is to provide for such Children as shall be adjudged in the Court of Assizes only."]
One or two incidents gleaned from the records for the period of the duke's laws may serve to illustrate the difficulties of matrimonial administration on the Delaware. Thus in 1678, in a case similar to that of Laers above cited, the minister, reader, and churchwardens present to the local court at Newcastle Walter Wharton, justice of the peace, for marrying himself or being married "contrary to the Knowne Lawes of England & alsoe contrary to the Lawes and customes of this place and Province;" as likewise for granting certain lands without proper authority. The said "Mr. Wharton not appearing in three following Court dayes, and to the end the Reproach may bee taken away from the River and that Such notorious breatches of y^e Lawes and disorders may for the future not passe unpunished, especially in p^rsons of Lesser qualitys whoe if this [conduct] of M^r. Whartons [whoe" being "in Commission" and bearing "the office of a Justice of y^e peace ougt to give good examples to others] had not been Reguarded, migt att all tymes" hold it for a "bad president": the court do therefore submit the "p^rmisses to the Judgem^t. of his Hono^r. the Governo^r. for to Inflict such punishment" as he "shall thinke fitt & expedient." We are only informed in the record that the accused is "to bee out of the Commission of Justices & left to the Law."[846] One regrets that we are not told whether the "law" treated his marriage as void.
[Footnote 846: FERNOW, Doc. Rel. to Col. Hist. N. Y., XII, 596; mentioned also by HAZARD, Annals of Pa., 451, 454, 455. On the same day the local court fined him ten pounds and costs for neglecting his judicial duties: FERNOW, loc. cit., 596, 597.]
The Delaware papers, for the next year, contain also a long letter to Governor Andros from Luke Watson, of "Whoorekill"--whose spelling is, if possible, more ingenious than usual even for that fertile region--complaining of the many shortcomings of Captain John Avery, magistrate and president of the court. It seems that the captain was fond of having his own way; sometimes, when his colleagues on the bench presumed to give a contrary "judgment," going out of the court "in a greate Rage and feury, ... Cursing and swaring," and even suggesting that they were "ffooles, Knaues, and Rouges." He is accused, moreover, of taking upon himself "to grant a Licence to Marry Daniel Browne to Sussan Garland, widdow, without any publiqueation, which Marrige was effected, notwithstanding it is Generally knowne or at Least the said Daniel confesses that he knows no other but that he haue a wife living in England." This was not the captain's worst indiscretion in the discharge of his official matrimonial duties. We learn that in taking "vpon himselfe to Marry the widdow Clament to one Bryant Rowles, without publiquecation notwithstanding she was out aske at Least a Month to another man, namly Edward Cocke," he prepared a sad tragedy in real life. For when the "said Cocke" heard that the widow had jilted him he said "it would be his death." So he "went home, fell sick, and in forty eight hours after dyed," declaring in his last breath "that her marrying was the cause of his dyeing."[847]
[Footnote 847: Ibid., 624, 625.]
At this time Governor Andros, replying to the inquiries of the Lords of Trade, reports that because of the "scarcity of Ministers & [the] Law admitting marriages by Justices no acc^t cann be giuen of the number marryed." He adds that "ministers haue been so scarce" and "Religions" so many that he can give no statement of the number of births or christenings.[848] In 1695 Mr. Miller, an English clergyman, "complains that many marriages are by a justice of the peace."[849]
[Footnote 848: O'CALLAGHAN, Doc. Rel. to Col. Hist. of N. Y., III, 261 (1678); VALENTINE, Manual of the Corporation, 1851, 453. The year before the bishop of London complains that the Virginia marriage laws are not enforced: O'CALLAGHAN, op. cit., III, 253 (July 17, 1677).]
[Footnote 849: EARLE, Col. Days in Old New York, 60.]
The duke's code makes no provision for the celebration of marriage except before a minister or a justice of the peace. The Quakers of Long Island, who earlier had suffered severely from the intolerance of the Dutch,[850] continued nevertheless to practice their own simple but solemn rites. For so doing they were harshly dealt with by the courts, as appears in a petition to Governor Andros and his council from two of their number in 1680,[851] praying for the "Remission of a Fine imposed for Contravention of the Marriage Laws." The paper is in the form of an "address from Henry Willis and John Bowne, Concerning the proceedings of a Court of Sessions against vs, who said they fined us 10 lbs a peece for suffering our daughters to marrie contrary to their law, which proceeding we are satisfied is without precedent and we can count it noe lesse but a mistake or hasty oversight and though we have endeaverd for its removall yet Execution is eished forth and Jos. Lee vndershiref hath seazed Hen: Willis barne of corn and since taken from Jo. Bowne 5 good milch cowes and drove them away by night and kept them pownded from food" more than a night and a day, so that the neighbors were "generally troubled at it." Then the petitioners proceed to reason with the enemy, using the soft word which turneth away wrath. "Now in simplisity, we doe seriously entreat all that may be conserned herein seriously to consider it and in the cooleness of your spirits without anger or hard thoughts truly to waye it in the balance of Equity where the witness of God may arise in every Contience to testifie, whether If such things should goe on ... it would not be to the rewenating of families and to the kindling of Gods anger against a place or people which we truly desire may be prevented, by takeing away y^e ocation." So they make their appeal to the "cheife," knowing that a magistrate's "authority is to preserve mens persons and Estates, but y^e prerogative of the contience that belongs to God and we dare not but yeald obedience thereunto;" for "we do not act--as sometimes resented (sic)--in stobourness obstainancy or contempt of authority but in simplisity."[852]
[Footnote 850: See O'CALLAGHAN, Hist. of New Netherland, II, 345-55, 450-57. Under the lead of the clerical bigots, Drisius and Megapolensis, the Reformed church in New Netherland banished Lutherans and tormented the Quakers. A number of Friends, expelled from Massachusetts, arrived in New Amsterdam in 1657, and were at once persecuted with fiendish cruelty. Nevertheless, the Quakers grew apace in numbers, settling by preference in Jamaica and Flushing on Long Island. Among them was John Bowne, a recent convert and signer of the petition quoted in the text. In 1662 he was fined for allowing his house to be used as a Quaker conventicle; and in the next year he was banished to Holland. This resulted in calling down upon the head of Stuyvesant a severe and just rebuke from the directors. See also BRODHEAD, Hist. of N. Y., I, 636, 705; O'CALLAGHAN, op. cit., 338-42, 428; EARLE, op. cit., 260; and WALLER, Hist. of Flushing, 37-47, 77, note. It is a pity that a writer of such merit as Mr. Waller should have reiterated (46, 47) the baseless and long since exposed slanders against the Quakers in New England.]
[Footnote 851: FERNOW, op. cit., XIV, 752, 753; also in _New York Colonial MSS._, XXIX, 202.]
[Footnote 852: The petition concludes with the following exhortation: "and we earnestly desire y^e Lord may perswade your hearts, vnto whome we are now concerned, that y^e may remoue y^e cause of this our address and open that eye in you that can see vs as we are, who can pray for those thats in authority that vnder them we may live a peaceable holy and Godlike life
Y^e 4th day of y^e 7^{th} mo: 1680
"Henry Willis John Bowne." ]
From this evidence it would seem that the magistrates of Long Island were not less thrifty in their zeal than were their brethren in Massachusetts from whose pious robbery and legal cruelty the Wardwells suffered.[853] It is noticeable, too, that only fines are spoken of. Nothing is said of invalidating marriages celebrated in the Quaker fashion. From this the suggestion already made gains support that the nullifying clause in the duke's code was illegal; and we may, perhaps, also infer that it was not attempted to be carried out in practice by the courts. Certain it is that in 1661, only four years before the adoption of the duke's laws, a marriage celebrated in England according to Quaker rites was held legal in a trial which took place at the Nottingham assizes.[854] The marriage law of 1665, at least so far as it was valid, remained in force until the passage of the so-called "Dongan" act of 1684.[855] This statute[856] was one of the thirty-one acts receiving the governor's signature and passed at the second session of the first representative assembly of New York, elected in 1683 under the reluctant and grudging sanction of the Duke of York.[857] By it no striking change is made in the broad outline of matrimonial administration; but in the details several important alterations appear. The provision regarding optional civil or ecclesiastical banns is identical with that of the earlier law, except that posting on the constable's door in each parish, instead of on "three doors," is deemed sufficient. License "under the hand and seale of the governour" in place of banns is still allowed. As before, any minister or justice within the province is authorized to perform the ceremony; but now the persons are required to "bring a Certificate from under the ministers hand that published them or under the Constable hand on whose doores their names were affixed which Certificate shall be sent to the office of the Register of the County and there Entred on Record together with a Certificate of their Marriage with the day and date thereof from the party by whom they were marryed there to remaine in perpetuam rei memoriam;" and it is provided, further, that the persons purge themselves by oath, if required, that they are not already under bonds of matrimony. But in this connection, instead of the clause as to boring through the tongue with a red-hot iron, it is declared that "if it shall afterwards happen to be proved that either ... of the said partyes" has thus contracted a bigamous marriage through false swearing, he "shall suffer as in Cases of perjury and further be proceeded against as in Cases of polygamy."[858] The act is liberal in another respect. At last the Quakers are granted relief in a provision which in substance finds many repetitions in American legislation during the two centuries to come. Nothing, we are told, is "intended to prejudice the Custome and manner of marriage amongst the Quakers, but their manner and forme" shall be judged lawful; provided they allow "none to marry that are restrained by the Law of God contained in the five bookes of Moses; and that they permitt none to be marryed within their Congregation or meeting of any other persuasion then themselves," except after banns or license and record made according to law.
[Footnote 853: HALLOWELL, Quaker Invasion of Massachusetts, 99-104.]
[Footnote 854: New York Colonial MSS., XXIX, 203 (New York State Library). Regarding this decision, which settled the character of marriage law in England, SEWEL, History ... of the Quakers, 292, has a striking passage: "It happened about this Time in England, that some covetous Persons, to engross Inheritances to themselves, would call the Marriages of those called Quakers in question. And it was in this Year that such a Cause was tried at the Assizes at Nottingham; a certain Man dying, and leaving his Wife with Child, and an Estate in Copyhold Lands: When the Woman was delivered, one that was near of kin to her deceased Husband, endeavoured to prove the Child illegitimate: And the Plaintiff's Council willing to blacken the Quakers, so called, asserted the Child to be illegitimate, because the Marriage of its Parents was not according to Law; and said bluntly, and very indecently, That the Quakers went together like brute Beasts. After the Council on both sides had pleaded, the Judge, whose name was Archer, opened the Case to the Jury, and told them That there was a Marriage in Paradise, when Adam took Eve and Eve took Adam; and that it was the Consent of the Parties that made a Marriage. And as for the Quakers (said he) he did not know their Opinion; but he did not believe they went together as brute Beasts, ... but as Christians; and therefore he did believe the Marriage was lawful, and the Child lawful Heir. And the better to satisfy the jury, he related to them this Case: A Man that was weak of Body, and kept his Bed, had a Desire in that Condition to Marry, and did declare before Witnesses that he did take such a Woman to be his Wife; and the Woman declared, that she took that Man to be her Husband. This Marriage was afterwards called in question: But all the Bishops did at that time conclude it to be a lawfull Marriage." The jury found for the child.]
[Footnote 855: In 1674 the duke's laws were ordered put in execution "except those requiring amendment or alteration": Colonial Laws of N. Y., I, xiv, 107. On Nov. 9, 1674, Governor Andros issued a proclamation to that effect: ibid., xiv, 107, 108.]
[Footnote 856: "The original of this act is not in the office of the Secretary of State. This copy was made from the manuscript compilation of the 'Dongan laws' formerly in the office of the Secretary of State, but now in the New York State Library. The date of its passage, as October 23, 1684, is given by E. B. O'Callaghan, in Hist. Int. to Journals of the Legislative Council of N. Y., p. 12."--CUMMING'S note to the act, Col. Laws of N. Y., I, 150.]
[Footnote 857: See his two letters to Andros (1675 and 1676 respectively) in Col. Laws of N. Y., I, xiv, xv; and also the instruction to Dongan, 1682, allowing a general assembly to be summoned: ibid., xv, 108-10. The duke's letters are also in O'CALLAGHAN, Doc. Rel. to Col. Hist. of N. Y., III, 230, 235.]
[Footnote 858: Col. Laws of N. Y., I, 150, 151. This seems to be a decided mitigation of the original penalty: see "An act to prevent wilfull Perjury," passed by the Assembly Nov. 1, 1683: ibid., 129-31.]
There is in this act one essential variation from that of 1665, which it is of the highest importance to note, and which has been entirely overlooked by writers[859] who have discussed the character of the marriage law of New York after 1684. The invalidating clause, unless by implication, in case of neglect of the required forms and procedure, does not appear. It is merely declared that if "any man Shall p'sume to marry contrary to the Law prescribed the person offending shall be proceeded against as for fornication;" and the minister or justice performing the ceremony shall forfeit twenty pounds and be suspended from his benefice or office.[860] The penalty for fornication according to the duke's law, which seems to have been still in force, was "enjoyning Marriage, fine, or Corporal punishment" at the "discretion of the Court."[861] Thus by any fair interpretation of a penal statute, after 1684, an irregular marriage per verba de praesenti was illegal though valid in New York, just as it was in the mother-country.
[Footnote 859: By COOK, for instance, who says the Dongan act was "substantially a re-enactment of the Duke's Laws of 1664, and seems not to have been repealed prior to the Revolution."--"Marriage Celebration in the Colonies," Atlantic, LXI, 360.]
[Footnote 860: Col. Laws of N. Y., I, 151.]
[Footnote 861: Ibid., 35. The view presented in the text as to the penal clause in the act of 1684 is sustained by the opinion of Lord Watson in the Lauderdale Peerage Case: COOK, Reports of Cases Decided by the Eng. Courts, XXXVII, 357, 358.]
c) Law and custom in the Royal Province.--The Dongan act of 1684, continuing as it does the general provisions of the duke's law, and indeed differing but little--except perhaps in the matter of lay celebration--from the earlier usage of the Dutch, is in harmony with the administrative practice which prevailed in New York until the Revolution; though, as will presently appear, there is good reason to believe that it was repealed in 1691. The provision regarding certificate and registration corresponds with the custom, though the local officers were negligent and the records are far from complete.[862] Perhaps, as a rule, marriage was preceded by banns or civil notice; but license must have been popular, especially among the well-to-do, and a lucrative source of income to the governors, as the forty manuscript volumes of marriage-license bonds, preserved among the treasures of the State Library at Albany, amply bear witness.[863]
[Footnote 862: For example, a marriage record was continuously kept at Trinity Church, New York, only for the years 1746-64. In general, the records were imperfect at a much later period: see MYRON A. MONSON, in Hist. Genealog. Register, XLI, 93.]
[Footnote 863: These MSS. are a rich mine for the genealogist. For this purpose they are made easily accessible through the Names of Persons for Whom Marriage Licenses Were Issued, printed by order of Gideon J. Tucker, secretary of state, Albany, 1860. On the period covered by the New York licenses see HOFFMAN, Chancery Practice, 15; and Law Reports, X, 728 f.]
An instructive piece of evidence as to the importance of the license fee is given by Professor Peter Kalm, the Swedish botanist and traveler, writing in 1748. He mentions the small salary allowed the royal governor by the assembly, the whole of which is sometimes lost through "dissension with the inhabitants;" and he declares that but for three "stated profits" the governor "would be obliged either to resign his office, or to be content with an income too small for his dignity; or else to conform himself in everything" to their inclinations. These extraordinary sources of income are the fees for passports, permission to keep public houses, and marriage licenses. "Few people," he says, "who intend to be married, unless they be very poor, will have their banns published from the pulpit; but instead of this they get licenses from the governor, which impower any minister to marry them. Now for such a license the governor receives about half a guinea, and this collected throughout the whole province, amounts to a considerable sum."[864]
[Footnote 864: KALM, Travels in North America (translated by JOHN REINHOLD FORSTER, Warrington, 1770), I, 259-62; see also the extract in HART, Source-Book of American History, 128-30; and for the dates ibid., 100.]
In fact, just as in England in our own day,[865] it was "deemed most plebeian, almost vulgar, to be married by publication of the banns for three Sundays in church, or posting them according to the law, as was the universal and fashionable custom in New England." This notice from a New York newspaper, dated December 13, 1765, will show how widespread had been the aversion to the publication of banns:
"We are credibly informed that there was married last Sunday evening, by the Rev. Mr. Auchmuty, a very respectable couple that had published three different times in Trinity church. A laudable example and worthy to be followed. If this decent and for many reasons proper method of publication was once generally to take place, we should have no more clandestine marriages; and save the expense of licenses, no inconsiderable sum these hard and depressing times."
[Footnote 865: See chap x, sec. iii, above.]
For another reason the times became more "hard and depressing" and banns more economical, perhaps more patriotic, as Mrs. Earle further shows by an extract from Holt's New York Gazette and Post-boy for December 6, 1765:
"As no Licenses for Marriage could be obtained since the first of November for Want of Stamped Paper, we can assure the Publick several Genteel Couple were publish'd in the different Churches of this City last Week; and we hear that the young Ladies of this Place are determined to Join Hands with none but such as will to the utmost endeavour to abolish the Custom of marrying with License which Amounts to many Hundred per annum which might be saved."[866]
[Footnote 866: EARLE, Col. Days in Old New York, 58, 59.]
The character of the governor's license may be seen in the following sample, issued in 1732:
"By his excellency William Cosby, Esq., Captain general and governor in chief of the provinces of New York, New Jersey, and territories thereon depending, in America, vice-admiral of the same, and colonel in his majesty's army, &c.
"To any Protestant Minister:
"Whereas there is a mutual purpose of marriage between Jacob Glenn of the City of Albany, merchant, of the one party, and Elizabeth Cuyler of the same city, spinster, of the other party, for which they have desired my license, and have given bond upon conditions, that neither of them have any lawful let or impediment of pre-contract, affinity, or consanguinity to hinder their being joined in the holy bands of matrimony; these are therefore to authorize and empower you to join the said Jacob Glenn and Elizabeth Cuyler in the holy bands of matrimony and them to pronounce man and wife."[867]
[Footnote 867: MUNSELL'S Annals of Albany, II, 182.]
A goodly store of folklore relating to wedding customs among the Dutch and English of New York has been gathered by Vanderbilt, Earle, and other writers. There was no lack of feasting and pastime. As in the fatherland, maypoles were set up before the door in honor of newly wedded pairs. The fashion of "coming out bride," "that is the public appearance of bride and groom, and sometimes of entire bridal party in wedding array, at Church the Sunday after the marriage," was observed with due pomp and splendor. Collections for the parish poor or to build a church were received from the guests on the bridal day; and bumpers of "sack-posset" seem to have been as keenly relished by the worthy burghers of New York as by good old Samuel Sewall and his Massachusetts brethren.[868] At wedding time there was "open house" and plenty of feasting; but the festivity does not appear to have reached the excess practiced by the Pennsylvania Friends.[869] Hannah Thompson, wife of the secretary of Congress, while residing in New York in 1786, wrote to John Miflin, of Philadelphia, that the "Gentleman's Parents keep open house just in the same manner as the Brides Parents. The Gentlemen go from the Bridegrooms house to drink Punch with and to give joy to his Father. The Brides Visitors go In the same manner from the Brides to his Mothers to pay their Compliments to her. There is so much driving about at these times that in our narrow streets there is some danger. The Wedding-House resembles a bee-hive. Company perpetually flying in and out."[870]
[Footnote 868: For these customs and others see EARLE, op. cit., 60 ff.; and compare VANDERBILT, Social Customs of Flatbush, 149 ff.; WATSON, Annals and Occurrences of New York City and State, 211-17 (written in 1828 regarding customs twelve years before the Revolution); OSTRANDER, History of the City of Brooklyn and King's County, I, 79-83; New York Hist. Coll., Fund Series, 1880, XIII, 355, where Rev. John Sharpe tells us that negroes are married merely by mutual consent without blessing of the church; and ibid., Second Series, II, 347-49, where courtship among the New York Indians is described.]
[Footnote 869: See sec. ii, b) below.]
[Footnote 870: HANNAH THOMPSON, Letters: in Pa. Mag. of Hist. and Biol., XIV, 35.]
But in the main domestic life was peaceful and prosaic. Family woes were seldom dragged into court. The "capital laws" contained in the duke's code do, indeed, show their New England origin by prescribing death as the penalty alike for denying God or the king's titles, or wantonly smiting a parent; but these were practically a "dead letter."[871] Mrs. Grant bears witness to the happiness and tranquillity of marital life in Albany. "Inconstancy or even indifference among married couples was unheard of, even where there happened to be considerable disparity in point of intellect. The extreme affection they bore their mutual offspring was a bond that forever endeared them to each other. Marriage in this colony was always early, very often happy, and very seldom indeed interested. When a man had no son, there was nothing to be expected with a daughter but a well brought-up female slave, and the furniture of the best bed-chamber. At the death of her father she obtained another division of his effects, such as he thought she needed or deserved, for there was no rule in these cases."[872]
[Footnote 871: Duke of Yorke's Book of Laws, 14, 15; cf. WEISE, Hist. of Albany, 195, 196.]
[Footnote 872: GRANT, Memoirs of an American Lady, 48; quoted also by EARLE, op. cit., 55, 56.]
So much for custom and the actual legal practice. We may now turn to the controversy as to whether subsequently to 1691 there was any valid statutory regulation of marriage in New York until after the close of the provincial period. The uncertainty arose in consequence of the following resolution of the assembly, April 24, 1691: "Upon an information.... That the several Laws made formerly by the General Assembly, and his late Royal Highness, James Duke of York;" and also "the several Ordinances or reputed Laws made by the preceding Governors and Councils, for the Rule of their Majesties Subjects within this Province, are reported amongst the people, to be still in force;" it is resolved, nemine contradicente, that the first-named laws of the assembly, "not being observed, and not ratified and approved by His Royal Highness, nor the late King, are null, void, and of none effect;" as also are the "several Ordinances made by the Governors and councils, being contrary to the constitution of England, and the practice of the government of their Majesties other plantations in America."[873]
[Footnote 873: See CUMMING'S "Historical Note," Col. Laws of N. Y., I, xix. CUMMING cites the note of Robert Ludlow Fowler to Fac Simile of the Laws and Acts of the General Assembly ... as printed and sold by William Bradford, 1694, 78 ff.]
The terms of the resolution are very clear; but unfortunately, so far as has yet been discovered, no record exists of its having been placed before the governor and council for approval. Nor does the validity of this resolution or that of the act of 1684 ever appear to have been tested in the provincial courts. Singularly enough, this dual question was not judicially considered until the "Lauderdale Peerage Case," in 1885, which grew out of a marriage solemnized one hundred and thirteen years before--on the very eve of the Revolution. The record of the trial and judgment in this case is really equivalent to a treatise by learned jurists on the matrimonial law of New York, from the Dutch Ordinance of 1654 to the adoption of the constitution of 1777. Moreover, distinguished American lawyers were called as expert witnesses or to submit written opinions.[874] From the record in the case[875] it appears that on July 11, 1772, two days before his death, Colonel Richard Maitland and Mary McAdams were married in New York city by Rev. John Ogilvie, an ordained clergyman of the Church of England, and then assistant minister of Trinity Church. The main question at issue, and the only one with which we are here concerned, was the requisites for a valid marriage in the province of New York in that year. As recited in the syllabus, there were produced, inter alia, in support of the marriage from the custody of the family a certificate in legal form; an affidavit, signed by the mayor of New York, to the effect that the officiating minister had made oath of the truth of the statements in the certificate; a will of date anterior to the marriage, by which Colonel Maitland left all his property to his wife and the children then born; copies of letters showing that one of the executors wrote to his co-executors in England, a brother of the bridegroom, stating that he was a witness to the ceremony of marriage; that the woman signed herself in the man's surname; that the children were recognized and taken care of by members of the man's family; and also war office records showing that the woman received a pension as Maitland's widow.[876] But evidence was not forthcoming of previous license or publication of banns. Did the neglect of license or banns invalidate the marriage? It was contended by the witnesses and advisers of the counter-claimant that the statute of 1665 and that of 1684 rendered license or banns indispensable, and that such continued to be the law of New York down to the marriage in 1772.[877]
[Footnote 874: American witnesses for the claimant were E. J. Phelps, the United States minister, S. P. Nash, and C. Cary, of the American bar. Those for the counter-claimant were R. L. Fowler, of the American bar, and G. F. Edmunds, chairman of the Committee on Judiciary of the United States Senate: _Law Reports_, X, 728 n. 1. See also WEBSTER, _Opinion on the Law of Marriage in the Col. of N. Y._ (New York, May 26, 1885); SEWARD, Answer to Interrogations of Brodie and Sons (New York, June, 1885); and FOWLER, Letter and Opinion (New York, May 11, 1885). Copies of these three opinions are in the State Library, Albany. Written opinions were also submitted by James C. Carter and William Evarts, of New York.]
[Footnote 875: In Law Reports, X (1885), 692-762; and in COOK, Reports of Cases Decided by Eng. Courts, XXXVII, 341-69. The case was referred by the House of Lords to the Lords' "Committee for Privileges" for hearing.]
[Footnote 876: Law Reports, X, 693.]
[Footnote 877: Ibid., 794.]
Thus in his written opinion Mr. Sidney Webster, in answer to the question "whether the law of marriage in New York, in 1772, was contained in Dongan's law of 1684, supplemented, where defective, by the older laws of the Duke of York and of the Dutch?" says that he thinks the "fundamental law" of the colony of New York when the case arose, was made up of so much of the Dutch law as was unrepealed and remained in force; so much of the English common law as had been established after the conquest in 1664; so much of the English parliamentary statutes[878] as had been enacted and specially made applicable; and the colonial statutes legally enacted and sanctioned by the crown. "I have not seen nor heard," he continues, "of a denyal that the ... law of 1684 was a valid enactment" at the date of its passage. "In so far as it covered matters and also punishments embraced in any previous statute, or ruled by the common law, and was inconsistent therewith, it repealed or abrogated both by implication." Any contract of marriage made in "palpable violation" of the requirements of either of these laws, while in force, would be void; and "if it could be found that the marriage law of 1684 was repealed prior to 1828, then, in the absence of any positive law to the contrary," the duke's law "would by implication be revived."[879] So he concludes that in 1772, for a valid contract, there must be previous banns or license, as well as solemnization by a clergyman or magistrate.[880] With this conclusion the opinion of Mr. Evarts coincides. "The statute of the Assembly in 1684," he says, "unquestionably was in force in 1772. The essentials of a valid marriage according to the law of New York in 1772, were that the ceremony should be performed by a minister or a justice of the peace, and that such marriage could be lawfully performed only after the publication of the banns prescribed by the act of ... 1684, or in default of such publication ... , by a license from the governor."[881]
[Footnote 878: This opinion is not convincing; for the common law had not been "established," in the sense of enacted or declared; nor were there any British statutes which bore upon the marriage celebration in New York.]
[Footnote 879: By the law of 1828 it was declared that a marriage, "so far as validity is concerned," is a civil contract "to which the consent of parties capable in law of contracting, shall be essential."--Revised Statutes, 1827-28, II, 138.]
[Footnote 880: WEBSTER, Opinion, 2 ff., 55, 59, 70. He cites Fenton v. Reed (4 JOHNSON, Reports, 51), in favor of validity of consensual or common-law marriage; and Milford v. Worcester (7 Mass. Rep., 48), on the opposite side. In substantial agreement with Webster are the opinion of SEWARD, Answer, 1-53; and that of FOWLER, Letter and Opinion, 60, 61, passim, who to prove the validity of the duke's law cites the cases of Fabricius and Ralph Doxy, above discussed.
The counter-claimant also produced the case of Dan Sutton, sentenced for bigamy and bored through the tongue with a red-hot iron in 1672--a case plainly irrelevant, so far as the question of marriage contract is concerned; and likewise the case of Mary Jones, 1680, for having a bastard child, "she pretending to be married before delivered; but without either license or publication. She was fined £5 or to receive twenty stripes on the back"--a sentence which perhaps tells on the claimant's side, for it punishes an illegal act, but says nothing of nullifying the marriage; or, if the marriage may be regarded as invalidated by implication, the sentence is illegal as contrary to English law. For these citations see Law Reports, X, 733.]
[Footnote 881: Evarts's opinion cited by COOK, "Mar. Cel. in the Colonies"--Atlantic, LXI, 361.]
For the claimant also a mass of evidence was presented. Important decisions were cited;[882] and it was pointed out that in the acts of the legislature published after 1684 neither the statute of that year nor the duke's law appears; "nor in fact" were "any of the laws prior to 1691" printed in subsequent collections.[883] Sir. F. Herschell, counsel, urged that "unless it is expressly provided that the failure to comply" with the requirement of the statutes in question "shall render a marriage null and void, the courts will not so construe;" and he holds that the resolution of the assembly, 1691, was valid; for "everybody" acted as if the laws repealed by it were not in force.[884] In short, "the substantial effect of the evidence of those called for the claimant," as summarized in the report of the case, was "that the law prevailing in New York with regard to the requisites for a marriage in the year 1772 was the common law of England as interpreted by the American courts, i. e., that there should be a contract of marriage per verba de presenti; and that the 35th article of the constitution of the state of New York, adopted in 1777, ... shewed that the common law of England, as then understood, governed this subject."[885]
[Footnote 882: The American witnesses for the claimant cited Jackson v. Gilchrist (15 JOHNSON, Rep., 89); Constantine v. Windle (6 HILL, Rep., 176); Humbert v. Trinity Church (24 WENDELL, Rep., 625): HOFFMAN, Chancery Practice (2d ed., New York, 1843); Revised Statutes of N. Y. (ed. 1830), 729; and Fenton v. Reed (4 JOHNSON, Rep., 52), the leading case for "common-law" marriage.]
[Footnote 883: Law Reports, X, 728. The act of 1684 is preserved in MS. in the New York State Library; and this I have examined through the courtesy of Mr. Griswold.]
[Footnote 884: Law Reports, X, 734. Herschell cites King v. The Inhab. of Birmingham (8 B. & C., 29); and Dr. Lushington in Caterall v. Sweetman (1 ROBERTSON, Ecc. Reports, 321).]
[Footnote 885: Law Reports, X, 728. The reference to the thirty-fifth article of the constitution of 1777 adds little weight to the argument. Except as concerns any established denomination of Christians or the sovereignty of the crown, that article provides that "such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York," as together did form the law of that colony on April 19, 1775, should be the law of the state: POORE, Charters, II, 1337, 1338.]
Such was the unanimous decision of the committee of Lords constituting the court, whose members submitted their opinions separately. The Earl of Selborne doubted whether the acts of 1665 and 1684 were in force in 1772 and significantly suggests that, if they were in force, failure of banns and license would not invalidate a marriage. He further argues strongly that in the present instance there is no absolute proof that banns or license was lacking; for the church records are often imperfect. In any event, therefore, the rule omnia praesumunter rita acta ought to govern the case; for one cannot conceive of any circumstance more properly requiring its application.[886] In harmony with this view was the able opinion of Lord Blackburn, which in effect maintained the validity of the common law in New York subsequent to 1684. The original English settlers, he argues, "carried with them all the immunities and privileges and laws of England.... That being so, from the time when the colony of New York was first settled it had primâ facie the marriage law of England such as it was in the latter part of the seventeenth century;" and in England at that time a marriage "solemnized according to the form of the Church of England, and by a clergyman of the Church of England ... was valid to constitute matrimony: although if it was a clandestine or irregular marriage without banns or a license, the clergyman who performed it might be liable to censure" and punishment. In addition his lordship significantly raises a doubt as to whether the Duke of York had power to introduce a new law of marriage essentially different from that of England as regards the absolute requirement of license or banns.[887]
[Footnote 886: Law Reports, X, 742.]
[Footnote 887: Law Reports, X, 744-49.]
Accordingly, the other judges agreeing, the laws of 1665 and 1684 were set aside as not in force; and the claim of Major Frederick Henry Maitland, descendant of Colonel Richard Maitland, to the earldom of Lauderdale was sustained.[888]
[Footnote 888: Ibid., 762. Of course, the question as to whether the presence of a clergyman at the ceremony was essential to a valid marriage was not raised; and if it had been raised in 1885, the court might possibly have decided that it was requisite, in harmony with the judgment in the Queen v. Millis. History must, however, decide the other way. But compare the conclusion of COOK, "Mar. Cel. in the Col.," Atlantic, LXI, 361, who infers from this decision that "this 'common-law marriage,' falsely so-called--the 'free marriage' of the later Roman law, of the canon law, and of the Scotch law,--did not exist in New York (or, indeed, in any of the other colonies) prior to the Revolution."]
There can be little doubt that this was a righteous judgment, in harmony with the entire history of the English decisions down to the case of the Queen v. Millis, whose character has already been considered.[889] Furthermore, its justice is rendered almost certain by a witness, not called in the trial, but whose evidence given in 1773, the very next year after the marriage in question, is assuredly worthy of more attention than any produced by the American experts in 1885. This testimony is given by Rev. John Rodgers, in a paper read before the "Reverend General Convention of the Delegates from the Associated Churches of Connecticut, and the Synod of New York and Philadelphia," met at Stamford, September, 1, 1773; the manuscript being found in the cabinet of President Stiles by the historian, Abiel Holmes:
"There has no law been made in this province relating to marriages, nor do any of the English statutes concerning them extend to it. They stand therefore on the common law of the land; and as words de presenti constitute a marriage by that law, the courts of judicature, on any contest, must leave the question married or not to the jury of the county upon the proofs that are offered, as they do with respect to any other enquiry relating to matter of fact. This is attended with some inconvenience; but the politicians contend that they would be greater, if the legislature should interpose by a law to prevent clandestine marriages; and it is much to be doubted, whether the several branches would be brought to any unanimity on the subject, were it attempted. The rites of marriage were at first celebrated by the justices of the peace, as well as the clergy, either upon the governor's licence, or the publication of bans thrice in some place of worship. This was the case till the year 1748, before which time the licences ran, to all Protestant ministers; but upon application of the Episcopal clergy who meant to monopolize this business, they are since directed to all Protestant ministers of the Gospel, and from the time of this alteration the justices do not intermeddle, except in such counties where clergymen are scarce. But marriages are celebrated by clergymen of all denominations without distinction, and yet for any law to the contrary, a marriage with or without licence or publication, and with or without the aid of a clergyman or magistrate, will be valid in law. A contract in words de presenti, proved by witnesses and subsequent cohabitation as man and wife, constitutes a marriage of legal validity, as already suggested."[890]
[Footnote 889: See Vol. I, 316-20, above.]
[Footnote 890: RODGERS, _A Brief View of the State of Religious Liberty in the Colony of New York_: in 2 Mass. Hist. Coll., I, 152. On the authorship, see ibid., II, 270.]
After this it seems only necessary to add that if it should appear strange that the legal practice in the administration of matrimonial law, during the provincial period, harmonizes in the main with that prescribed by the laws of 1665 and and 1684, it is sufficient to say that this is so by force of custom; while, so far as license is concerned, that was maintained by virtue of the power granted to the royal governors in their instructions.[891]
[Footnote 891: In their instructions the governors are directed to issue marriage licenses, and usually to hang up the "table of marriages" according to the English canons: O'CALLAGHAN, Doc. Rel. to Col. Hist., N. Y., III, 372 (instructions to Dongan, May 29, 1686), 688 (to Sloughter, Jan. 31, 1689), 821 (to Fletcher, March 7, 1691/92); ibid., IV, 288 (to Bellomont, Aug. 31, 1697), 558 (Bellomont's instructions to Lieutenant-Governor Nanfan), 766 (a letter of Bellomont to secretary of Board of Trade, telling of the trick by which Rev. Symon Smith got a license for Baldridge, the pirate, Oct. 19, 1700); ibid., V, 135 (instructions to Hunter); ibid., VII, 830 (Governor Moore to Lords of Trade, mentioning his power to license, June 12, 1766).]
II. NEW JERSEY, PENNSYLVANIA, AND DELAWARE
a) Law and custom in New Jersey.--The population of New Jersey was far more homogeneously English than was that of New York and Pennsylvania. It was composed of members of various religious sects. Some Quakers settled in East New Jersey and more in West New Jersey, but they were never numerically strong. The vast majority of the people were Scotch Presbyterians and New England Congregationalists; so that family law shows decided traces of Puritan influence.[892] Circumstances, however, favored toleration in this regard; and hence only in details were the New Jersey matrimonial law and custom different from those which existed in New York.
[Footnote 892: Compare COOK, "Mar. Cel. in the Colonies," Atlantic, LXI, 358, 359.]
The legal history of the province begins in the year of the English conquest of New Netherland. In 1664 a very liberal plan of government, called the "Concessions and Agreement," was established by the proprietors, Lord Berkeley and Sir George Carteret. All "faithful subjects of the king" are admitted to "plant and become freemen" of the said province of New Jersey. No one is to be "molested, punished, disquieted or called in question, for any difference in opinion or practice in matters of religious concernments," provided he do not disturb the "civil peace."[893]
[Footnote 893: For the Concessions see SMITH, Hist. of the Col. of Nova-Caesaria, or New Jersey, 512 ff.]
Under this instrument in 1668 the first matrimonial legislation appears. "For the preventing of unlawful marriages, it is ordered ... that no person or persons, son, daughter, maid, or servant, shall be married without the consent" of parents, masters, or overseers, "and three times published ... at some public meeting or kirk, where the party or parties have their most usual abode;" or their "purpose" be set up in writing "on some publick house where they live," there to "abide" for the space of fourteen days before the celebration, which, "if possible" is to be performed in a public place. "None but some approved minister or justice of the peace within this Province, or some chief officer, where such are not, shall be allowed to marry or admit of any to join in marriage, in their presence;" under the penalty of twenty pounds[894] and removal from office for neglect. But in place of banns or civil notice, the governor may grant his license to "any that are at their own disposing," if they "clear themselves by oath or certificate;" or to any others "under tuition," provided the parents, masters, or overseers are present to give their consent, or such consent be "attested by some public officer" before the license is issued.[895]
[Footnote 894: Later reduced to ten pounds: _Acts of the Assembly_, 1693, 332.]
[Footnote 895: LEAMING AND SPICER, _Grants, Concessions, and Original Constitutions_, 81, 82 ("Laws in Cartaret's Time").]
This act, which, it may be noted, does not contain a clause expressly invalidating a marriage for non-observance of its provisions, seems to have remained in force for fifteen years. But in 1682 "that part of the province called East New Jersey came by purchase into the possession of William Penn and other Quakers," who formed an association called the Twenty-four Proprietors. By these a body of rules known as the "Fundamental Constitutions" was established, containing a provision for the celebration of marriage, after the Quaker fashion, very similar to the law for Pennsylvania made in England the same year by Penn and his associates.[896] All marriages "not forbidden in the law of God shall be esteemed lawful where the Parents or Guardians being first acquainted, the Marriage is publickly intimated in such Places and Manner as is agreeable to Mens different Perswasions in Religion, being afterwards still solemnized before creditable Witnesses, by taking one another as Husband and Wife, and a certificate of the whole, under the Parties and Witnesses Hands, being brought to the proper Register for that End, under a Penalty if neglected."[897] In March of the same year a statute was passed differing in several respects from the preceding. Parents or guardians are to be consulted and give their consent. "Intentions" are to be published for "at least three weeks" before solemnization, which "shall be performed by and before some justice of the peace or other magistrate," unless he "refuse to be present;" the certificate shall be entered "in the register of the town and county" where the marriage takes place; and a record of publication is likewise to be kept by the clerk of the "assembly" or public place where it occurs.[898] Cook thinks this statute may "have been a compromise between the Quaker and the Puritan practice, that left out the very feature in each which was most desirable. For the parties were to take each other as husband and wife, but not 'before creditable witnesses;' while, on the other hand," by the terms of the law, if the "justice or magistrate refused to be present, it would appear that the parties could marry themselves."[899] But that they could undoubtedly do under the former law, since there is no nullifying clause, and the only penalty mentioned is clearly for failure to file the certificate.
[Footnote 896: Cf. COOK, loc. cit., 359; and LINN, Charter and Laws, 101.]
[Footnote 897: "Fundamental Constitutions," sec. xx: in _New Jersey Archives_, I, 408; and LEAMING AND SPICER, Grants, etc., 164.]
[Footnote 898: A "Bill for the General Laws of the Province of East New Jersey," March, 1682/83: LEAMING AND SPICER, op. cit., 236. By this act marriage within the degrees there named is declared void: ibid., 243.
The "Fundamental Constitutions" had provided that there should be a "register in each county for births, marriages, burials, and servants, where their names, times, wages, and days of payment" should be recorded: LEAMING AND SPICER, op. cit., 163; and already in 1675, under the first proprietors, the "clerk of each town within this Province," in a book provided by the town, is to record "all births, marriages, and deaths" in his district: ibid., 100.]
[Footnote 899: COOK, loc. cit., 359.]
Already in 1676[900] West New Jersey was also acquired by Quaker proprietors; and in May, 1682, by an act of the general assembly, "for the preventing of clandestine and unlawful marriages," a system much like that of the eastern province was established. Justices within their jurisdictions are authorized to solemnize, when the persons have caused their intentions to be previously published for fourteen days in "some public place appointed for that purpose," and the "parents or trustees" show "no lawful reason against it." For celebrating without such consent, if it "may be reasonably obtained," the magistrate is to be fined at the discretion of the general assembly. Provision is likewise made for registration.[901]
[Footnote 900: See the "concessions" to West New Jersey: in SMITH, Hist. of N. J., 521 ff.]
[Footnote 901: LEAMING AND SPICER, op. cit., 446, 447.]
It will be observed that in all these measures for the two provinces of New Jersey civil marriage is recognized. It is optional under the act of 1668; but under the Quaker régime, of course, solemnization by a minister is not mentioned.
For about twenty years after the legislation just presented the proprietary rule was maintained in the two provinces. During the latter part of the period there was more or less friction and dissatisfaction. The jurisdictions, though not the property rights, were turned over to Governor-General Andros in 1688. Four years later all the interests of the proprietors were absolutely surrendered to the crown. The united colony was then joined with New York under the same governor, but with a council and assembly of its own; and this arrangement was continued until 1738, when New Jersey became an independent royal province.[902]
[Footnote 902: For the instrument of surrender see SMITH, Hist. of New Jersey, 211-19. There was a petition to separate from New York as early as 1728: ibid., 421 ff. Cf. also COOK, loc. cit., 359; THWAITES, Colonies, 211, 213, 214.]
After the union with New York, with characteristic intolerance, the Church of England was established; "but as the Episcopalians were a small minority of the population, and had but little zeal, the Establishment remained barely more than nominal."[903] To the "end the ecclesiastical jurisdiction of the said Lord Bishop of London, may take place in our said province, so far as conveniently may be"--run the instructions to Governor Cornbury in 1702--"we do think fit that you give all countenance and encouragement to the exercise of the same, excepting only the collating to benefices, granting licences for marriages, and probate of wills, which we have reserved to you." The table of marriage according to the English canons is to be "hung up in every orthodox church, and duly observed." For its "strict observance" the governor is to try to get a law passed by the assembly, if none already exists.[904]
[Footnote 903: COOK, loc. cit.]
[Footnote 904: Instructions to Lord Cornbury, 1702: in LEAMING AND SPICER, op. cit., 639; also in SMITH, op. cit., 253.]
The attempt to force the rites of the English church and the jurisdiction of the bishop of London on the people of New Jersey proved a failure. So, March 27, 1719, a new act appears, which shows that serious abuses, notably in the issue of licenses, must have existed during the orthodox rule. "Whereas of late Years," says the preamble, "several Young Persons have been, by the Wicked Practices of evil disposed Persons, and their Confederates, inticed, inveigled and deluded, led away and clandestinely so Married," to the "great Grief of their Parents and Relatives," it is therefore enacted that, under forfeit of five hundred pounds, no license shall be granted to a person under twenty-one years of age without consent of the parent or guardian, "signified by a certificate in writing" under his hand; which certificate must be filed in the office of the secretary of the province. The person presenting the certificate of parental consent, before issue of license, must "take an Oath upon the Four Holy Evangelists, of Almighty God, or if really of Tender Conscience, shall make a Solemn Affirmation and Declaration," that it is genuine; and besides, as in New York, he is required to execute a bond to the governor, with two sufficient sureties, in the penal sum of five hundred pounds.[905] In case of celebration by banns instead of license the procedure is the same. The certificate of consent must be presented by the persons to the clerk of the peace or to the county clerk; they must take the oath on the evangelists, and execute a bond of the same tenor as that already described. Thereupon the clerk, within fourteen days, "shall affix a Writing in a fair legible Hand, in the English Tongue, at three the most publick Places in said County, setting forth the Persons names, Places of Abode, and Intentions of Marriage." All religious societies may celebrate according to their own rites; and by implication ministers of the gospel, justices of the peace, and "others" may perform the ceremony.[906]
[Footnote 905: 5 Geo. I., in Acts of the General Assembly (Woodbridge, 1752), 79 ff. The form of bond is given p. 81. This statute is also in ALLINSON'S Acts of the Gen. Assem., 1702-76 (Burlington, 1776), 53-57.]
[Footnote 906: Under penalty of £200, ministers, justices, or others are forbidden to join persons in marriage without banns or proper license: Acts of the Gen. Assem. (1752), 79, 80, 82, 84.]
At this point legislation rested. No further change was made in the matrimonial law of New Jersey until long after the Revolution.[907] However, in 1765 a vain attempt was made by the Episcopal clergy, though a small minority in the province, to monopolize the income derived from the celebration of marriages on the governor's license, showing that they were not less greedy nor selfish than were their brethren of New York seventeen years before. In a letter to the Lords of Trade the "Bishop of London at the request of the clergy of ... New Jersey begs leave to represent, ... that by an old Law the Licences for Marriages are directed to any Protestant Minister or Justice of the Peace, which however necessary at the first Establishment of the Colony to facilitate Marriages, when there were few Ministers in the Country, seems at present not only prejudicial to the clergy, who are depriv'd of a considerable part of their Income, but gives occasion to many Inconveniences and abuses." It appears, as the letter further shows, that in 1760 the clergy petitioned Governor Boone to "alter the Direction of the Licences." The petition was declined on the ground that authority to make the change belonged to the Lords of Trade on application of the bishop of London. The request being now made to the bishop, the latter hopes that the lords "will take the matter into Consideration, and if they see no particular Objections will give their Instructions to the Governor of that Province, that for the future Marriage Licences may be directed only to a Protestant Minister of the Gospel." The Bishop's communication was forwarded by the Lords of Trade to Governor Franklin of New Jersey, with a sensible letter in which certain pertinent questions are so forcibly raised as seemingly to bring the correspondence to a speedy end. Their lordships see no objection to what the bishop proposes, "if there is no Law in force by which the Civil Magistrate is authorized to perform the Marriage Rites, or if long usage and custom has not established such a practice." But they add, "as it does not appear to Us from any Information we can collect here, how the case stands in respect to this matter, we desire you will by the first opportunity acquaint Us, whether the civil Magistrates in New Jersey do or do not perform those Ceremonies; and if they do; whether it is by virtue of any declared Law or by usage only; and if the latter, whether such practice may in your opinion be altered in the manner proposed by the Bishop of London without Inconvenience or Complaint."[908]
[Footnote 907: Until the act of March 4, 1795, by which the act of 1719 was repealed: Laws of the State (Newark, 1800), 160.]
[Footnote 908: New Jersey Archives, First Series, IX, 504, 520, 521.]
It is evident what a truthful answer from the governor must have been; but we hear no more of the matter.
b) Law and custom in Pennsylvania and Delaware.--It was one of the many false charges originally brought against the Quakers by their orthodox adversaries that they did not celebrate marriage in an orderly and decent way. They were even accused of repudiating the marital relation and of indulging on principle in licentious conduct.[909] There is no ground whatever for such slanders, unless the rejection of the ring, with the peculiar observances of the English church, and the insistence that marriage, as a divine ordinance, is a matter between man and his own conscience, in which the priest shall have nothing to do, may be counted a justification. The Quakers always held the institutions of marriage and the family in great esteem. From the beginning they have exacted due publicity in the celebration which was attended by a modest, though devout and severe, ceremonial. So important, indeed, was the nuptial contract in their eyes, as will presently appear, that the Pennsylvania Friends were too much inclined to extravagant display in the wedding festivities. One may well marvel what was Masson's notion of a religious rite when he wrote that the Quakers "had no religious ceremony in sanction of marriage."[910] "Professor Masson, as his context proves, had ample opportunity to avoid this blunder, and it can only be accounted for on the theory that his mind is prejudiced by the still popular notion that the presence and offices of an ordained minister are necessary to make a marriage ceremony religious and to secure the Divine sanction of the nuptial rites. The Quakers thought otherwise. They repudiated the claims of the clergy, and believed that God alone can join men and women in the solemn covenant."[911]
[Footnote 909: See, for example, the curious pamphlet of THOMAS UNDERHILL, Hell broke loose: Or An History of the Quakers Both Old and New. Setting forth many of their Opinions and Practices. Published to Antidote Christians against Formality in Religion and Apostasie (London, 1660), 16, 37, where, contradictorily, they are accused of believing, "that we sould endeavor to be perfect; and therefore to forbear all carnall acts of Generation, as being of Sin and of the Devil; and therefore Husband and Wife should part asunder, or abstain;" and that "marriage was made by Man;" while one of them is charged with defending a woman who went naked and confessing "That of late he went to bed with a woman, who was not his wife, and that he did it without sin."
Read also The Quakers Spiritual Court Proclaimed (London, 1668), 5, 6, by "Nathaniel Smith Student in Physick, who was himself a Quaker, and conversant among them for the space of about XIV years": "Not long before this, they spoke against Marriage, and said, That it was for Lust; and that men ought to live soverly, For all Lust came of the Devil: and so they spoke against Marriage in general; but this continued not above three or four Years, at which time they began to Marry in Prison: and there was the first Marriage that I ever knew of. After this, that their Ministers did marry in Prisons, then the Common sort would marry in the Meeting: And it was after this Manner; Those two that were resolved to go together, (and many times there was not one that did know it besides themselves,) the Man and the Woman would stand up in the midst of them, or in some convenient place; the Man declaring after this manner, I take this Woman to Wife: and after, departed and went together as Man and Wife."]
[Footnote 910: MASSON, Life and Times of Milton, V, 25; cf. HALLOWELL, Quaker Invasion of Mass., 23.]
[Footnote 911: HALLOWELL, op. cit., 23, 24.]
From their founders we may learn their doctrine of matrimony. "We marry none," says George Fox, "but are witnesses of it; marriage being God's joining not man's."[912] In harmony with this is Penn's declaration that the Quakers believe marriage to be "an ordinance of God, and that God only can rightly join men and women" in wedlock.[913] Elsewhere he declares that ceremonies the Friends "have refused not out of humor, but conscience reasonably grounded; inasmuch as no Scripture-example tells us, that the priest had any other part, of old time, than that of a witness among the rest, before whom the Jews used to take one another; and therefore this people look upon it as an imposition, to advance the power and the profits of the clergy; and for the use of the ring, it is enough to say, that it was an heathenish and vain custom, and never practiced among the people of God, Jews or primitive Christians."[914] Again, he claims that wedlock is a union which should only grow out of mutual inclination. "Never marry but for love," is his advice, "but see that thou lovest what is lovely."[915] Similar evidence is given by Sewel, the Quaker historian. "In their Method of Marriage," he says, "they also depart from the common Way: For in the Old Testament they find not that the Joyning of a Couple in Marriage ever was the Office of a Priest, nor in the Gospel any Preacher among Christians appointed thereto. Therefore it is their Custom, that when any intend to enter into Marriage, they first having the Consent of Parents or Guardians, acquaint the respective Mens and Womens Meetings of their Intention, and after due Enquiry, all Things appearing clear, they in Publick Meeting solemnly take each other in Marriage, with a Promise of Love and Fidelity, and not to leave one another before Death separates them. Of this a Certificate is drawn, mentioning the Names and Distinctions of the Persons thus joyned, which being first signed by themselves, those then that are present sign as witnesses."[916]
[Footnote 912: APPLEGARTH, "Quakers in Pennsylvania," _J. H. U.S._, X, 402.]
[Footnote 913: PENN, Rise and Progress (Manchester, 1834), 25, 27; cf. APPLEGARTH, op. cit., 402.]
[Footnote 914: PENN, Select Works, V, 225: cited by APPLEGARTH, op. cit., 401, 402.]
[Footnote 915: PENN, op. cit., V, 129: quoted by APPLEGARTH, op. cit., 401.]
[Footnote 916: SEWEL, History (London, 1722), 691.]
Commenting on this passage, Hallowell says: "This custom is still in force, and with some unimportant verbal amendments, the phraseology of early Friends is still preserved. After an appropriate silence, the groom and bride rise, and taking each other by the hand, each in turn repeats, 'In the presence of the Lord and this assembly, I take thee to be my wife (or husband), promising, with Divine assistance to be unto thee a loving and faithful husband (or wife) until death shall separate us.' For religious solemnity and tender, touching simplicity, the Quaker marriage ceremony has always challenged comparison, and if anyone desires to feel and realize the presence of God in a public or private gathering, let him attend a Quaker wedding."[917]
[Footnote 917: HALLOWELL, op. cit., 24, 25.]
These principles are revealed in the early legislation for Pennsylvania; for, while believing it an ordinance of God, the Friends held that the regulation and protection of marriage belong to the civil authority. In the "Laws agreed upon in England" May 5, 1682, it is provided "that all marriages (not forbidden by the law of God, as to nearness of blood and affinity ...) shall be encouraged; but the parents or guardians shall be first consulted, and the marriage shall be published before it be solemnized, and it shall be solemnized by taking one another as husband and wife, before credible witnesses, and a certificate of the whole, under the hands of parents and witnesses, shall be brought to the proper register of that county, and shall be registered in his office."[918]
[Footnote 918: "Laws Agreed upon in England": in LINN, Charter and Laws, 101. Cf. NEAD'S Historical Notes: ibid., 472. This law also provides for a "register of births, marriages, burials, wills, and letters of administration, distinct from the other registry."--Ibid., 101.]
This is a clear statement of the desires of the proprietor and his associates. Accordingly in a law enacted by the assembly in December, 1683, there is a provision regarding marriage only differing in details from the declaration made beyond the sea. The purpose of the act, as expressed in the preamble, is "to prevent Clandestine, Loose, and unseemly proceedings" in the province and its "territories." As before, marriage is to be encouraged; parental consent is required; the parties must clear themselves "from all other engagements assured by a Certificate from some Credible persons where they have lived;" affix their "intentions of Marriage on the Court, or Meeting-house Door of the County where they Dwell, one Month before the solemnization thereof;" the marriage shall be celebrated "by taking one another as husband and wife, before Sufficient Witnesses;" and a "certificate of the whole under the hands of parties and witnesses (at least twelve,) shall be brought to the Register of the County" where the marriage takes place and be with him filed for record. For neglect of the requirements of law the parties are to be fined ten pounds, and the "person so joining others in Marriage" twice that amount.[919] The "Great Law" of 1682, punishes adultery severely, sanctions divorce for that offense,[920] and contains the declaration, unique since old English days, that "no person, be it either widower or widow, shall contract marriage, much less marry, under one year after the decease of his wife or her husband."[921]
[Footnote 919: LINN, Charter and Laws, 151. See the same provision as to penalty (1684), ibid., 171, and (1693), 229.]
[Footnote 920: Ibid., 109; cf. 194.]
[Footnote 921: This is chap. 35 of the Great Law as given by HAZARD, Annals of Pa., 626, 627; but it was not engrossed and does not appear in LINN'S edition, which follows PATRICK ROBINSON'S copy: NEAD, Historical Notes: in LINN, op. cit., 481 n. 3.]
This provision of 1682 is declared fundamental, and by it in fact the main principles of the marriage law of Pennsylvania were defined. Still one or two important changes were subsequently made. Thus, in 1684, the certificate of their "clearness of all engagements" is to be produced to the "religious society" to which the persons "relate;" or to a justice of the peace of the county where they live.[922] From this requirement it may doubtless be inferred that either civil celebration before a magistrate or religious celebration according to the rites of any denomination was contemplated. Such is expressly declared to be the case by the act of 1693, which runs in nearly the same words as the preceding, except that now, after mentioning the twelve witnesses, it is provided that at least one justice of the peace of the county must be present at the solemnization; and provided also that "this Law shall not extend to any who shall marry or be marryed by any person authorized by the Church of England, so as they observe the methods of publication, Licensing & Solemnization" required by English law, "nor to any persons that marry in their own Society in the absence of a Justice of the peace."[923] With the exception of a provision in 1730, forbidding the justice in case of minors to subscribe as witness without a certificate of parental consent,[924] the law of 1693, re-enacted in 1700 and again in 1701,[925] still governs the nuptial celebration in Pennsylvania;[926] and previous to 1788 the marriage law of Delaware was practically the same.[927]
[Footnote 922: LINN, op. cit., 171.]
[Footnote 923: Ibid., 229.]
[Footnote 924: Cf. COOK, op. cit., 358. This act of Feb. 14, 1729/30, is contained in Laws of the Comm. of Pa., 1700-1810, I, 180, 181.]
[Footnote 925: BIOREN, Laws, I, 7, 34; LINN, op. cit., 229, note; also Laws of the Comm. of Pa., 1700-1810, I, 21-23.]
[Footnote 926: PEPPER AND LEWIS, Digest (1896), II, 2878 ff.]
[Footnote 927: See the act of 1700 in FRANKLIN AND HALL'S Laws of the Government of New Castle, Kent, and Sussex, upon Delaware (Philadelphia, 1752). It is especially provided that if any servant marry without the consent of his or her master, he or she shall, for such offense, serve for one year after the time of his or her servitude by indenture has expired; and if any free person marry a servant without consent of the master, he or she shall pay to the master, if the servant is a man, 12 pounds, and if a woman, 6 pounds, or one whole year's service; and the servant so marrying shall serve an additional year. Adultery is punished with a fine of 50 pounds or 21 lashes "well laid on." The penalty for fornication is 3 pounds or 21 lashes: ibid., 74.]
It remains to give a few illustrations of administrative practice and social custom. So far as it appears, the courts and magistrates were not given much employment in domestic controversies. But the provincial council seems to have exercised jurisdiction in divorce and matrimonial causes. For example, in 1685 we learn that "information being given to this board of y^e unlawfull Marriage of R^d Noble, of y^e County of New Castle, Ordered that y^e Justices of that County have notice given by y^e Secrt^{rs}, to Inspect the same and give report thereof to this board."[928] Again, in 1703 Andrew Bankson, one of the justices of Philadelphia county, on complaint of the president, got himself into trouble "for irregularly marrying a couple lately according to law, but against y^e Prohibitions of y^e Parents." When called to account before the council, the justice declared that he was "wholly ignorant of its being illegal, & was heartily sorry for what was done, promising that wether he should continue in Commission, or otherwise, this should be such a caution to him as to prevent him of committing the like for y^e future, & being severely checked was dismissed."[929]
[Footnote 928: Col. Records of Pa., I, 144.]
[Footnote 929: Col. Records of Pa. (Jan. 1703/4), II, 114, 115; also quoted by APPLEGARTH, Quakers in Pa., 413, note.]
Celebration on the president's license in place of civil notice similar to the plan existing in the royal provinces was introduced as early as 1684 and the practice was continued to the Revolution;[930] although marriages thus solemnized were looked at askance by the Quakers as hardly orthodox,[931] and there are the usual complaints of extortion.[932] The marriage certificate was itself an elaborate document of historical interest, not only because of the full statement therein of all the previous stages in the transaction, but because in simple phrase we catch many a glimpse of Quaker sentiment and teaching in regard to the nuptial covenant. Sometimes even at the marriage of persons of humble station, this instrument was signed by many persons; as in the case of John Roades and Hannah Willcox, in 1692, whose wedding certificate bears the names of fifty witnesses.[933]
[Footnote 930: Pa. Col. Rec., I, 121. "The Board then took into their Consideration the alterations proper to be made in the forms of Marriage Lycences."--Ibid., V, 69 (1747). Again, "Order'd, That the President sign all Marriage Lycences."--Ibid., V, 71 (1747).]
[Footnote 931: See the passage from WATSON, Annals of Phil., III, 434, below cited.]
[Footnote 932: On Sept. 29, 1755, in an address to the governor, the assembly declares that "they [the assembly] are not, however, chargeable with exacting Money from the people which by law they had no right to exact, as we apprehend the Governor does in the Fees for Marriage Licenses, by which many thousand Pounds have been drawn from the Inhabitants of this Province. If this be not dispensing with Law 'tis making Law, and we presume the Governor alone has no more right to do the one than the Assembly alone the other."--Pa. Col. Rec., VI, 633, 634. Cf. ibid., II, 455; IV, 175; and Pa. Archives (1728), I, 235, 236, where the bishop of London says that "some occasional perquisites that the Clergy us'd to enjoy, are now cut off" in the matter of licenses.]
[Footnote 933: "Whereas John Roades of the County of Philadelphia and Hannah Willcox daughter of Sarah Willcox of Schoolkil in the County aforesaid having declared theire Intentione of Takeing Each Other as Husband and Wife before several Men and Womens Meetings of the People called Quakers whose Proceedings Therein after deliberate Consideration Thereof and Consent of parties and Relations concerned being approved by the said Meeting.
"AND alsoe the said John Roades and Sarah Willcox having Published theire said Intentions in Writing according to the Lawes of thiss province Whereby the said Law is fulfilled....
"Now these are to CERTIFIE all Persons whome it may concern that for the full Determination of their Intentions this tenth day of the Ninth Month in the Yeare One Thousand Six Hundred and Ninety and two, they the said John Roades and Hannah Willcox in an Assembly of the aforesaid people Mett together for that end and purpose at the Dwelling House of Sarah Willcox aforesaid, according to the Example of the primitive Christians Recorded in the Scriptures of Truth did take each Other as Husband and Wife in Manner following (viz) he the said John Roades takeing the said Hannah Willcox by the Hand said friends in the feare of the Lord and Before you his people I take this my friend Hannah Willcox to be my wife promissing as the Lord shall Inable mee to be unto her a faithfull and Loving Husband till Death shall part us.... And the said Hannah Willcox in like Manner takeing the said John Roades by the Hand said friends I Likewise do in the fear of the Lord and in the presence of You his people take John Roades to be my Husband promising to be unto him a faithfull and Loving Wife till Death separate us.... AND the said John Roades and Hannah Willcox as a farther Confirmation thereof did then and there to these presents Set theire Hand. AND wee whose Names are hereunto Subscribed are Witnesses of the Same the Day and Yeare abovesaid."--In the Pa. Mag. of Hist. and Biog., XIII (1889), 112.
The custom of many witnesses signing the certificate survived to recent times: WATSON, Annals of Phil., III, 434.]
In the first half of the eighteenth century the Pennsylvania Friends, like the New England Puritans, were much worried over the question of forbidden degrees. They were sorely disturbed concerning marriage "between first cousins, or one person marrying two sisters, or a man marrying his wife's first cousin, or justices of the peace undertaking to marry people by virtue of licenses obtained to that end, or marriages by members of the sect with others not of that persuasion, in young couples 'keeping company' without the consent of their parents. In 1725 and 1731, Chester and Burlington Monthly Meetings sought the advice of Yearly Meeting upon these subjects," and decisions were subsequently rendered in the negative on every point.[934]
[Footnote 934: WATSON, op. cit., III, 434.]
A register of marriages was kept through a custodian appointed by the monthly meeting. From the records of the Philadelphia society, which have been preserved "for the first thirty-two years of the city," it appears that the first marriage solemnized was that of Thomas Smith and Priscilla Allen in 1682; and they, says Watson, "had before passed one Meeting in the Isle of Wight."[935] The monthly meeting was a mighty power, and it kept a sharp eye on all the social goings and comings of its members.[936] In fact, the constant surveillance of the meeting over the daily life of the individual reminds one of the way in which domestic conduct and private business were dealt with by provincial law and town ordinances in the New England colonies.[937] Courtship, espousal, and marriage were looked after much in the same spirit. The Quaker maid was lucky if she might receive her lover on the "stoop" in presence of father and mother.[938] The Friends were not content with the publicity given by posting the intention of marriage as prescribed by the law. In addition, it was the duty of the betrothed couple to ask their own banns, or to "pass the meeting," as it was called in solemn phrase. "In the intense silence of the Quaker assembly the man arose from his seat on his side of the meeting and said formally: 'I intend to take Dorcas Macy to be my wife if the Lord permit.' Dorcas then arose on the woman's side of the aisle or partition and said in turn: 'I intend to take Jonathan Coffin to be my husband if the Lord permit.'[939] A committee of 'weighty men and women' was then appointed to learn 'the conversation and clearness of the parties'--that is to learn specially whether either were entangled in any other matrimonial engagement. If the report of these inspectors proved favorable, the 'continuance of the intention of marriage' was permitted, they were 'liberated to proceed according to the devout order of truth,' and the engaged pair were said to have 'passed meeting.' But sometimes the committee of inspectors discovered obstacles, or 'disorderly walking,' or a previous flirtation. There still was redress; the offender had to make a self-condemnation and apology for his offense, in meeting, the next First day, in some such words as these: 'Friends, I am very sorry for my transgression, and desire mercy from God and forgiveness of all the people of God whom I have offended.' The marriage was usually then permitted. If a sober young Friend sought a wife in another town, his home meeting sent him off fortified with a certificate enumerating his virtues. One such ran partly thus:
'He is of sober and orderly behaviour; a frequenter of our Meetings and in good Eunity with us; is clear of all Women hereaway on account of Marriage so far as we can find; soe we recommend him to your further Care in accomplishing their Intending Marriage.'"[940]
[Footnote 935: Ibid., I, 503; III, 434.]
[Footnote 936: The meeting sometimes took part in the civil administration. Thus committees were frequently appointed by the Philadelphia meeting to lay out roads; ibid., I, 305.]
[Footnote 937: Cf. HOWARD, Local Const. Hist., I, 53 ff.]
[Footnote 938: EARLE, "Among Friends," New Eng. Mag., Sept., 1898, 20. "Courtship and marriage were closely hedged around. Friends were enjoined against proposing marriage without the consent of the meeting, against marrying any but a Friend, against 'keeping unreasonable company' with any woman not a Friend; against going to weddings of any who marry out of meeting; against being 'married by a priest.' They were enjoined also 'to be clear of one before being concerned with another,' in an engagement of marriage. Widows and widowers were reminded not to marry again too swiftly; 'not to let their minds out soon to another husband or wife;' and kinship was to be carefully regarded in thinking of wedding."--Ibid., 19, 20; cf. WATSON, Annals of Phil., III, 434.]
[Footnote 939: It seems to have been customary, at least in some meetings, to file the notice in writing for permanent record. The form was as follows:
"We the subscribers, A. B., son of C., and D. B.; and F. G., daughter of H., and I. G., purpose taking each other in marriage, which we hereby offer for the approbation of Friends."--APPLEGARTH, "Quakers in Pennsylvania," J. H. U. S., X, 402.]
[Footnote 940: EARLE, "Among Friends," New Eng. Mag., Sept., 1898, 20.]
Faithful Friends were enjoined by the meeting not to marry out of the society; and so the worldly lover was sometimes forced to turn Quaker or "lose his bride." On the other hand, says Earle, if a Friend took a wife "out of meeting, he might by profoundly humbling himself, and acknowledging his error, still be retained in the society, though for a time not in good report. No Quaker groom could express contrition for an offense in 'marrying out of meeting,' nor indeed submit patiently to discipline for it without unmanly disloyalty to his confiding consort.... One reads thus:
"'To the Monthly Meeting of friends now in meeting at So. Kingston. I through Inattention to the Lights of Christ have Married a wife out of the good order of Friends, neither was she a member of their Society. Therefore now being Sincible that their Rules and orders therein is Consistant with truth, and Seeing the Error of My Doings, am sorry for my Transgression therein, and Desire friends to pass by my offense, and still Continue their Care for me, desiring I may be preserved to walk according to good order for time to come.'"[941]
[Footnote 941: Ibid., 21.]
As already suggested, the Pennsylvania Friends indulged in much good cheer and sometimes in lavish display at the wedding time. A description given us by the annalist Watson may serve for the purpose of comparison between their nuptial festivals and those practiced by their New England contemporaries. "The wedding entertainments of olden times, he says, "were very expensive and harassing to the wedded. The house of the parent would be filled with company to dine; the same company would stay to tea and to supper. For two days punch was dealt out in profusion. The gentlemen saw the groom on the first floor, and then ascended to the second floor, where they saw the bride." Every man present, even though hundreds were invited, was privileged to kiss the bride and to repeat the process each day while the feast lasted. These were the same persons who had signed the marriage certificate in the meeting. Sometimes the "married pair for two weeks saw large tea parties at their home, having in attendance every night the groomsman and bridesmaids." All this was not enough. "When these ... entertainments were made, it was expected also that punch, cakes, and meats should be sent out very generally in the neighborhood even to those who were not visiters in the family."[942] In some towns another writer tells us, "the custom was after a wedding to set a table in front of the house and feast all passers-by. In the country Quaker brides had an 'infare' or wedding treat, often so liberal as to be a serious drag on the family that provided it." Moreover, it should be noted that the great wedding festival had been preceded by a similar feast or "treat" at the first "passing of the meeting," when the banns were published.[943]
[Footnote 942: WATSON, Annals of Phil., I, 178, 503.]
[Footnote 943: EARLE, loc. cit., 21. "In Philadelphia not only did the friends of the bride and groom come and eat and drink and all kiss the bride, but every evening for a week the entire bridal party received friends, and again the bride ran a gauntlet of kisses. When Mrs. Robert Erwin received her wedding visitors, four hundred gentlemen came in two days, ate the wedding cake, drank the wedding punch and, doubtless, all kissed her."--Ibid., 21.]
Such excesses seem inconsistent with traditional Quaker sobriety. One is astonished that they could have been tolerated so long. But at length it was decided that "passing" in one meeting should suffice.[944] To lessen the expenses the Philadelphia society in 1716 "advised no extraordinary provision for weddings, and the avoidance 'as much as may be of inviting those not under our discipline.'"[945] So the old frivolities "were relegated to the limbo of exploded vanities, and matrimonial alliances were attended with no other ceremony than that of the parties taking each other by the hand in public meeting and avowing their willingness to enter the connubial state." The certificate was then entered in the record book of the meeting and the celebration was complete.[946]
[Footnote 944: WATSON, op. cit., I, 504.]
[Footnote 945: EARLE, loc. cit.]
[Footnote 946: APPLEGARTH, "Quakers in Pa.," J. H. U. S., X. 402, 403, who gives a discussion of Quaker weddings, following WATSON. GORDON, Hist. of Pa., 70, 557, has a brief, concise account of the marriage law of the province.]