MATRIMONIAL INSTITUTIONS IN THE
UNITED STATES
[Bibliographical Note XII.—For this chapter a large quantity of
files and records of Massachusetts colonial and provincial courts has
been examined. In the office of the Clerk of Courts for Middlesex
county (Cambridge) have been used the Records of the County Court
for Middlesex, 1649-86, 4 vols., MSS. folio, Vol. II missing; supplemented
by the Files of the County Court for Middlesex, 1655-99; and followed
by the Records of the Court of General Sessions of the Peace for
Middlesex, 1692-1822, 9 vols., MSS. folio, the ninth volume containing
also Records of the Court of Pleas and General Sessions of the Peace,
October 1686, to March, 1688. In the office of the Clerk of the Supreme
Judicial Court for the County of Suffolk (Boston) have likewise been
examined the Records of the Court of General Sessions of the Peace,
1702-32, 4 vols., MSS. folio, with a fifth volume of fragments, 1738-80;
the Minute Books of the Court of General Sessions of the Peace,
January 3, 1743, to August 3, 1773, 5 vols., MSS. folio; the Records
of the Superior Court of Judicature, Court of Assize and General
Goal Delivery in the Province of Massachusetts Bay, 1692-1780, 33
vols., MSS. folio, Vol. II containing also the records of certain courts
during the Andros period, 1686-87; and the Early Court Files of
Suffolk, 1629-1800—being papers of colonial and provincial courts held
in Suffolk county, of the Superior Court of Judicature held in the
several counties, and of the Supreme Judicial Court prior to last
century, with miscellaneous papers, the whole collection comprising
several hundred volumes, of which only those for the period 1629-1730
have been covered by this investigation. Careful examination has also
been made of the MSS. folio volume of Records of the County Court
of Suffolk, October 1671, to April, 1680, in the possession of the Boston
Athenæum.
Very important are the published Colonial Records of Plymouth
(Boston, 1855-61); Massachusetts Bay (Boston, 1853-54); New Haven
(Hartford, 1857-58); Connecticut (Hartford, 1850-87); Rhode Island
(Providence, 1856 ff.); and the Provincial, Town, and State Papers of
New Hampshire (Concord, 1867-83).
The necessary complement of the records is of course found in the
various compilations of statutes. For Massachusetts it has seemed
best to cite by preference Whitmore's fine facsimile edition of the
Colonial Laws (Vol. I, 1660-72, Boston, 1887; Vol. II, 1672-86, Boston,
1889), which should be used in connection with his Bibliographical
Sketch of the Laws of the Massachusetts Colony, 1630-86 (Boston, 1890);
and Ames and Goodell's Acts and Resolves (5 vols., Boston, 1869-86),
which with the three supplementary volumes (Boston, 1892-96),
cover the period of the provincial charter and carry us beyond the
Revolution. The following original digests have also been employed:
The Book of the General Lawes and Libertyes of the Massachusetts
Colony (Boston, 1660); The General Laws and Liberties (Boston, 1672)—these
two earliest codes being those reprinted by Whitmore; Acts
and Laws, 1692-1714 (Boston, 1714); Acts and Laws, 1692-1765 (Boston,
1769); Acts and Laws (Boston, 1759); and the collection entitled Charters
and General Laws of the Colony and Province of Massachusetts
Bay (Boston, 1814). The first digests of New Haven and Connecticut
plantations are comprised in Trumbull's True Blue Laws (Hartford,
1876). There is also a reprint of the Code of 1650, to which is added
extracts from Laws and Judicial Proceedings of New Haven Colony
commonly called Blue Laws (Hartford, 1822); and a facsimile reprint
of The Book of the General Laws of 1673 (Hartford, 1865). For the
eighteenth century we have the Acts and Laws of his Majesties Colony
of Connecticut in New England (New London, 1715); Acts and Laws
of his Majesties English Colony of Connecticut (New London, 1750);
Acts and Laws (New Haven, 1769); and the Acts and Laws (New
London, 1784). For New Hampshire, the "Province Laws" published
in Vol. VIII of the New Hampshire Historical Society Collections;
the Acts and Laws passed by the General Court or Assembly, 1696-1725
(Boston, 1726); the Acts and Laws (Portsmouth, 1761); and the
Acts and Laws, 1696-1771 (Portsmouth, 1771), have been cited. To
follow the tangled thread of Rhode Island legislation on any subject is
a perplexing task; but the development of the written marriage law
may be traced with tolerable clearness in the published digests. See
Staples's Proceedings of the First General Assembly ... and the
Code adopted by that Assembly in 1647 (Providence, 1847); Rider's
facsimile reprint of the code of 1705, entitled Laws and Acts of his
Majesties Colony of Rhode Island, 1636-1705 (Providence, 1896); his
facsimile reprint of the code of 1719, entitled The Charter and the
Laws of his Majesties Colony of Rhode-Island in America (Providence,
1895); also the original Acts and Laws (Newport, 1730); with Rider's facsimile
reprint, entitled Supplementary Pages to the Digest of 1730 (Providence, [1898]);
the original folio editions of the Acts and Laws dated
respectively 1745, 1752, 1767 (Newport); and Gregory's facsimile reprint
of the compilation of 1772, entitled Acts and Laws ... passed since
the Revision in June 1767 (Providence, 1893). The Plymouth codes are
printed in Vol. XI of the Colonial Records of that colony; and they are
given in convenient form in Brigham's Compact, with the Charter and
Laws of New Plymouth (Boston, 1836).
Original material has also been gleaned from the Collections
(Boston, 1806-97) and the Proceedings of the Massachusetts Historical
Society (Boston, 1879 ff.); Bradford's History of Plymouth Plantation
(Boston, 1856); Winthrop's History of New England, 1630-49 (Boston,
1853); Hutchinson's History of Massachusetts, 1628-1774 (Vol. I, Salem,
1795; Vol. II, Boston, 1795; Vol. III, London, 1828); Cotton Mather's
Magnalia Christi Americana (Hartford, 1820); Increase Mather's
Answer of Several Ministers (Boston, 1695), on marriage with wife's
sister; The Andros Tracts (Boston, 1868-74); Young's Chronicles of
the Pilgrims, 1602-25 (2d ed., Boston, 1844); Historical Collections of
the Essex Institute (Salem, 1896); Lechford's Note-Book, 1638-71 (Cambridge,
1885), idem, Plain Dealing (Boston, 1867); reprinted also in
3 Mass. Hist. Soc. Collections, III; Dunton's Life and Errors (Westminster,
1818); his Letters from New-England (Prince Society, Boston,
1867); the "Town Records of Boston," 1634-1777; and the "Town
Records of Dorchester," both in the Reports of the Boston Record
Commission; "Town Records of Salem," 1634-59, in Vol. IX of Hist.
Coll. Essex Inst.; especially Sewall's "Diary," in 5 Mass. Hist. Coll.,
V, VI, VII (Boston, 1878-80); and his "Letter-Book," in 6 Mass. Hist.
Coll., I, II (Boston, 1886), both of which afford a wealth of illustration
for almost every phase of wedding and other social customs.
Among recent writings relating to the general subject most important
are Shirley, "Early Jurisprudence of New Hampshire," in Proceedings
of the New Hamp. Hist. Society, 1876-84 (Concord, 1885);
Earle, Customs and Fashions in Old New England (New York, 1894);
Weeden, Economic and Social History of New England, 1620-1789
(Boston, 1891); Goodwin, Pilgrim Republic (Boston, 1888); Howe,
Puritan Republic (Indianapolis, 1899); Arnold, History of Rhode Island
(New York, 1874); Friedberg, Eheschliessung (Leipzig, 1865); Cook,
"Marriage Celebration in the Colonies," in Atlantic Monthly, LXI
(Boston, 1888); Bishop, Marriage, Divorce, and Separation (Chicago,
1891); Lodge, Short History of the English Colonies (New York, 1882);
Trumbull, History of Connecticut (New Haven, 1818); Hollister, History
of Connecticut (Hartford, 1857); Atwater, History of the Colony
of New Haven (New Haven, 1881); Freeman, History of Cape Cod
(Boston, 1869); Bailey, Historical Sketches of Andover (Boston, 1880);
Bliss, Side Glimpses from the Colonial Meeting-House (Boston, 1896);
idem, Colonial Times on Buzzard's Bay (Boston, 1888); Brooks, The
Olden Time Series: The Days of the Spinning-Wheel in New England
(Boston, 1886); articles by Scudder, Whitmore, Edes, McKenzie,
Morse, and Goddard, in Memorial History of Boston (Boston, 1882-83);
and Newhall, Ye Great and General Court (Lynn, 1897).
Illustrative material has likewise been gathered from a large
number of writers, among whom are Palfrey, History of New England
(Boston, 1888-90); Carlier, Le mariage aux États-Unis (Paris, 1860);
Oliver, Puritan Commonwealth (Boston, 1856); Doyle, English Colonies
(New York, 1882-87); Ellis, Puritan Age (Boston, 1888); Dexter, Congregationalism
(New York, 1880); Bacon, Genesis of the New England
Churches (New York, 1874); Belknap, History of New Hampshire
(Dover, 1812); Green, Short History of Rhode Island (Providence,
1877); Sanford, History of Connecticut (Hartford, 1888); Hawthorne,
Grandfather's Chair (Boston, 1893); Campbell, The Puritan in Holland,
England, and America (New York, 1892); Hildreth, History of
the United States (New York, 1882); Snow, History of Boston (Boston,
1824); Shurtleff, Topographical and Historical Description of Boston
(Boston, 1872); Gilman, The Story of Boston (New York, 1889); Drake
(S. G.), History and Antiquities of Boston (Boston, 1854); Drake (S.
A.), Old Landmarks of Boston (Boston, 1889); Drake (S. A.), The Making
of New England (New York, 1887); Prime, Along New England
Roads (New York, 1892); Read, in the Collections of the Old Colony
Historical Society, No. 2 (Taunton, 1880); and Brigham, in Proceedings
of the Mass. Hist. Society, IV.
Among the works drawn upon in the treatment of special topics
are Stiles's Bundling (Albany, 1871); supplemented by his History
of Windsor (New York, 1859); and the very suggestive paper of
Charles Francis Adams, Some Phases of Sexual Morality and Church
Discipline in Colonial New England, reprinted from the Mass. Hist.
Soc. Proceedings, June, 1891 (Cambridge, 1891); while there is an interesting
passage relating to the same custom in Burnaby's Travels
through the Middle Settlements in North America, 1759-60 (London,
1798); as also a characteristic reference in Irving's Knickerbocker History
of New York (Philadelphia, 1871). For the first time the history
of the stigma of the "scarlet letter" has been treated from the
sources in Davis's careful monograph, The Law of Adultery and
Ignominious Punishments (Worcester, 1895). In connection with the
influence of the Levitical law on the New England conception of
marriage and the family, Amram's The Jewish Law of Divorce (Philadelphia,
1896), and Mielziner's The Jewish Law of Marriage and
Divorce (Cincinnati, 1884) are important. Of most service for the
legal character of New England slave marriages are Moore's Notes
on the History of Slavery in Massachusetts (New York, 1866); his
"Slave Marriages in Massachusetts," in the Historical Magazine,
XV (1869), containing a significant ritual used by Rev. Samuel Phillips,
minister at Andover, 1710-71; and Steiner's "History of Slavery in
Connecticut," in Johns Hopkins University Studies, XI (Baltimore,
1893). The originality of the system of civil registration created by
the New England settlers is appreciated by Kuczynski, "The Registration
Laws in the Colonies of Massachusetts Bay and New Plymouth,"
in Publications of the Am. Statistical Ass., VII, 65-73 (Boston, 1901).
See also Bibliographical Note XV.]
The continuity of English law and custom in the New
England colonies is not more striking than the innovation.
First of all it would indeed be strange if the planting of new
states in the wilderness should not have afforded to thoughtful
men a rare opportunity for freeing themselves from the
trammels of antiquated methods and traditions which the
"inertia of vested interests" might yet for ages sustain in
the native land. In some instances the influences of a new
and primitive environment might cause an unconscious return
to the practices of earlier days. Religious and ecclesiastical
ideas must necessarily play the leading part. In fact, the
zeal with which the Pioneers of Plymouth and Massachusetts
Bay proscribed the ceremonies and usages of the Roman and
Anglican churches has had much to do with the character of
civil institutions in the United States. On the part even of
the Puritan there was thus sometimes a strong reaction in
favor of the temporal power in matters hitherto regarded as
exclusively pertaining to the spiritual jurisdiction. The sway
of the so-called theocracy in Massachusetts and New Haven
tended, sometimes inadvertently, to foster the growth of the
American idea of complete separation of church and state.
Thereby the forces of local self-government were quickened.
Thus for a time the town-meeting and the congregation were
practically one and the same; but authority was exercised in
the name of the lay township and not in that of the ecclesiastical
parish. So also the probate of wills, the administration
of estates, the exercise of chancery jurisdiction,[357] and the
supervision of primary and secondary education[358] were taken
out of the hands of the church and vested mainly in the
local community. The process of secularization in legal
functions proceeded with rapid strides.
In no respect was the change more remarkable than in the
administration of matrimonial law and in the conception of
the marriage contract. Here, as in so many other instances,
our ancestors anticipated the thought and the legislation of
the mother-country by more than two hundred years.[359] It
will be remembered that in the beginning of the seventeenth
century—and ever since the thirteenth—English marriage
law was in an anomalous and most chaotic state. The Reformation
in England had brought no real change in the canonical
conception of the form of wedlock, though its sacramental
nature was denied. On the one hand was the church at the
demand of the state trying to enforce ecclesiastical rites and
to secure publicity by requirement of banns, parental consent,
and registration; on the other was the "irregular" or
common-law marriage, entered into without any of these
safeguards, by mere private agreement; and the validity of
the latter was not squarely impeached by the church, though
the disregard of the priestly office was punished by spiritual
censure. All this is changed in the colonies. In place of
confusion and complexity is found simplicity. In New England
particularly civil rites, civil registration, and uniform
theory of marriage tend at once to prevent the manifold evils
growing out of a lax or uncertain law. The conception of
wedlock which existed there from the beginning was identical
with that which later found expression in the writings of
Milton and the legislation of Cromwell. Marriage was
declared to be, not a sacrament, but a civil contract in which
the intervention of a priest was unnecessary and out of place.
Governor Winthrop, in commenting upon "a great marriage
to be solemnized at Boston," in 1647, expresses the
sentiment prevailing during the first three-quarters of a
century after the settlement. The bridegroom was "of
Hingham, Mr. Hubbard's[360] church," and the latter "was
procured to preach and came to Boston to that end. But
the magistrates, hearing of it, sent to him to forbear. The
reasons were, 1. for that his spirit had been discovered to be
averse to our ecclesiastical and civil government, and he was
a bold man, and would speak his mind. 2. we were not
willing to bring in the English custom of ministers performing
the solemnity of marriage, which sermons at such times
might induce, but if any ministers were present and would
bestow a word of exhortation, etc., it was permitted."[361] The
last remark reminds us of the benediction of the early
Christian priest, who, like the Puritan, discriminated between
the religious act and the marriage. Sermons, however, were
originally proscribed at the nuptials, though they were
permitted at the betrothal.[362]
The early colonial laws, generally, required that all
marriages should be celebrated before a justice of the peace
or other magistrate, sometimes under penalty of nullity for
those solemnized in any other way.[363] Where no statutory
provision to the contrary existed the common-law marriage
by private consent was valid.[364] The question now arises as
to the causes which determined the establishment of civil
marriage in the New England colonies. Was it set up in
imitation of the practice in Holland? Did it come as a
natural result of the general tendency of Protestant, and
especially of Puritan, thought? Or was it perhaps the
product of both influences combined? Already in the
middle of the eighteenth century colonial historians were at
a loss to account for it. Thus Governor Hutchinson makes
a difficulty of understanding why the lay celebration was
introduced. "Their laws concerning marriage and divorce,"
he says, "are somewhat singular. I suppose there had been
no instance of a marriage, lawfully celebrated, by a layman
in England, when they left it. I believe there was no
instance of marriage by a clergyman after they arrived,
during their charter; but it was always done by a magistrate,
or by persons specially appointed for that purpose....
It is difficult to assign a reason for so sudden a
change, especially as there was no established form of the
marriage covenant."[365]
On the other hand, Governor Bradford believed that the
civil celebration was introduced by the Pilgrims directly
from Holland. The first marriage in Plymouth Plantation—that
of Edward Winslow and Susannah White[366]—occurred
on May 12 (22), 1621. This, he declares "according to ye
laudable custome of ye Low-Cuntries, in which they had
lived, was thought most requisite to be performed by the
magistrate, as being a civill thing, upon which many questions
aboute inheritances doo depende, with other things most proper
to their cognizans, and most consonante to ye scriptures,
Ruth 4, and no wher found in ye gospell to be layed on ye
ministers as a part of their office. 'This decree or law about
marriage was published by ye State of ye Low-Cuntries
Ano: 1590. That those of any religion, after lawfull and
open publication, coming before ye magistrats in ye Town or
Stat-house, were to be orderly (by them) married one to
another.' Petits Hist. fol: 1029. And this practiss hath
continued amongst, not only them, but hath been followed
by all ye famous churches of Christ in these parts to this
time,—Ano: 1646."[367]
The testimony of Bradford must, indeed, command our
earnest attention, though in the matter of dates he is apparently
misled by his authority. For, as already seen,[368] two of
the Netherland provinces had established civil marriage as
early as 1580; while it was not extended to them all until
seventy-six years later. Nor is the mere fact that, seemingly
without discussion, civil marriage was adopted by Massachusetts
and her daughter-colonies, as well as by Plymouth,
necessarily a fatal objection to this theory of origin, though
it has a bearing upon the question which must be carefully
considered. For the New England Pilgrim and Puritan
alike were simply doing what their brethren did a few years
after when they found their opportunity in the days of the
Commonwealth. If America owes the institution of civil
marriage to Holland, it is so not merely because of the residence
of the Scrooby congregation at Leyden, but because
of the profound influence which Dutch Puritanism exerted
upon the Puritanism of England for a hundred years after
the Spanish and Tudor persecutions began. It can scarcely
be doubted that in various ways Dutch ideas made themselves
felt in the remarkable legislative and constitutional
experimentation of Cromwell's reign.[369] Moreover, the argument
is strengthened by the fact that the Fathers of the
English Reformation, unlike Luther and his followers, do
not seem to have raised a single voice in favor of the lay
ceremony.
Nevertheless, though Dutch custom undoubtedly furnished
a direct precedent which should not be ignored, it
seems highly probable that without the influence of Holland
the early establishment of civil marriage in New England
was inevitable. It was required by the spirit of Protestantism.
Under favorable conditions, which New England did
and old England did not afford, it was sure to arise as a consequence
of rejecting the sacramental theory of wedlock.[370]
There is another factor of the problem which must be
reckoned with. The New England Puritans were steeped
to the marrow in Hebraism; and, as we shall presently see,
the growth of a sentiment in favor of lay marriage was fostered
by the example of the Jewish law.[371] It is vain to apologize
for them on the ground that under the influence of the
Mosaic code they really regarded the officiating magistrate
as the "minister of God." In his "judicial" capacity the
magistrate may, indeed, have been looked upon as a divine
agent.[372] That is the well-known casuistry by which Luther
and the early Protestants persuaded themselves that absolute
divorce through the temporal court is not forbidden by
the scriptural precepts.[373] But it is a grave error to suppose
that the seventeenth-century Puritan had this in mind when
he rejected the priestly ceremony. Doubtless he did not
forget that marriage from its social and ethical sides is something
higher than a mere civil contract. Yet for more than
half a century after the settlement so intent was he in emphasizing
its secular character that in the statutes the words
"holy" or "sacred" as applied to it very seldom, if ever,
appear. "Honorable" or some similar epithet is the strongest
term usually employed. Even the publication of banns,
as will hereafter be seen, was at first ordinarily required to
be made, not on the sabbath, but at public "lecture" or on
training day.[374]
The difference between the colonists and their Anglican
adversaries in this regard is brought out in an interesting
way through the experience of Edward Winslow, whose
second marriage has just been mentioned. In 1634 he was
sent on public business to England, where, partly in the
interest of Merry-Mount Morton, Mason, and Sir Ferdinando
Gorges, he was accused by Archbishop Laud—whose scheme
for setting up a governor-general and a bishop in the colonies
seemed likely to be frustrated by Winslow's petition
relative to the encroachments of the French and Dutch—of
"teaching in ye church publickly," and of performing the
marriage ceremony. The latter offense he had committed
in his capacity as magistrate. In reply to the charge he
excused himself on the ground that the colonists were "necessitated
so to doe, having for a long time togeather at first no
minister; besids, it was no new-thing, for he had been so
maried him selfe in Holland, by ye magistrats in their statthouse."[375]
But "with more courage and candor than caution,
he proceeded to defend the practice on its merits, declaring
that he knew no scriptural ground for confining this office to
the clergy; while from the relations which marriage often
had to property and to business obligations, there seemed
good reason for making it a civil contract, as in Holland."[376]
As a consequence Winslow was imprisoned in the Fleet for
seventeen weeks.[377]
It appears certain, then, that in the two older colonies
the lay ceremony was invariably required from the beginning.[378]
But in neither case does there seem to have been
any direct legislation on the subject for many years. Indeed,
were there no prudential reason,[379] a positive legal sanction
may well have been deemed superfluous while public opinion
was so sensitive and so united. The first extant order of
the general court of Plymouth requiring celebration before
a civil officer was passed, it is said,[380] in 1671. But in this
jurisdiction, as in Massachusetts, the assistants or "magistrates"
had always exercised this function; and it had long
been the custom for the general court to appoint commissioners
in the particular towns to join persons in marriage.[381]
The earliest statute of Massachusetts relating to the
celebration is the act of 1646, providing "that no person
whatsoever in this Jurisdiction, shall joyne any persons
together in Marriage, but the Magistrate, or such other as
the General Court, or Court of Assistants shal Authorize in
such place, where no Magistrate is neer."[382] In practice the
last provision of this act was carried out in various ways.
Thus, for example, any citizen might be appointed for a
particular town during the pleasure of the court.[383] Or, in
absence of the regular officer, a commission might be issued
to perform the ceremony in specified cases; as when Henry
Chickering was given authority to marry "two or three
couples, legally published at Dedham."[384] In one instance
we find a curious optional commission in which are inserted
the names of three persons, either one of whom is empowered
to join "Mr. John Apleton and Mrs. Priscilla Glover" in
marriage.[385] But, as a rule, one or more of the three commissioners,
chosen for the ending of small causes in towns
where no assistant resided, was authorized by the county
court to perform this duty.[386]
The law and custom of the other New England colonies
were essentially the same as those already discussed. Everywhere
marriage was regarded as a civil contract and the
celebration was performed by a civil magistrate. In New
Hampshire members of the council could act.[387] In Rhode
Island, besides the magistrate, "none but Quakers[388] and
clergymen of the Church of England could perform the
ceremony," and these were given such authority by special
grant of the king.[389] The law of New Haven, 1648, is
peculiar in requiring not only that the marriage be performed
before a magistrate or someone expressly allowed by
the general court; but when the persons to be united are
"able to go forth," that it be solemnized in some public
place,[390] under penalty of five pounds for "every such miscarriage."[391]
In Connecticut, likewise, compulsory civil
marriage was adopted.[392]
During the "usurpation" period, beginning in 1686, the
laws requiring civil marriage were set aside. Joseph Dudley,
who entered upon his duties as president of New England
in May of that year, published "an order of council, authorizing
and empowering ministers and justices of the peace, the
order says, 'to consummate marriages,' after three several
times publication or licence from the president or deputy."[393]
With this compromise Governor Andros was not satisfied;
and it was his intention to allow marriages to be performed
only by the Episcopal clergy. To do this at once, however,
was impracticable. "Magistrates," says Hutchinson, "still
continued to give people in matrimony. Other provision
could not immediately be made." For at the time there
was but one Episcopal clergyman in the country; and "Sir
Edmund considered the Congregational ministers as mere
laymen. Randolph wrote to the bishop of London, 'I
press for able and sober ministers, and we will contribute
largely to their maintenance; but one thing will mainly
help, when no marriages shall hereafter be allowed lawful
but such as are made by the ministers of the church of
England."[394] Another restraint upon marriage was accounted
a still more serious hardship. "None were allowed
to marry except they entered into bonds with sureties to
the governor, to be forfeited in case there should afterwards
appear to have been any lawful impediment."[395]
This requirement in many cases amounted to a practical
prohibition.[396]
The "first marriage at Boston with prayer-book and ring"
occurred on May 18/28, 1686, just four days after Dudley
received his commission as president of New England.[397] But
there is evidence that zealous opposition to the religious
ceremony existed up to the very beginning of this period.
Thus, according to Savage, "Lawrence Vanderbosk, a Huguenot
clergyman, undertook to solemnize marriages in Boston
in 1685." But he was brought before a tribunal for this
enormity and promised "to do no more such things," yet in
September, says Judge Sewall, "he joined together Giles Sylvester
and Hannah, widow of Benjamin Gillam. The reverend
offender went to New York the same week."[398]
Gradually, however, the stern Puritanism of the colonists
became softened; the prejudice against ecclesiastical rites
rapidly subsided; marriages were solemnized even by the
Congregational clergy;[399] and soon after the struggle for the
charters, laws were enacted allowing the ministers of all
denominations to perform the ceremony. Yet, in Rhode
Island, it was not until 1733 that the "settled and ordained
ministers and elders of every society and denomination of
Christians" were permitted to join persons in marriage, the
legal fee therefor being fixed at three shillings.[400] By an act
of October, 1694, the same privilege was conferred upon
the "ordayned ministers of the severall plantations" of Connecticut—in
order, says the general court, to satisfy "such
as are conscienciously desirous to be" so joined.[401] For Massachusetts
a similar statute was passed in 1692, authorizing
all "settled ministers" to solemnize marriages, but only in
their "respective towns;" while, on the other hand, the
authority of the justice of the peace extended throughout
the county.[402] The careful limitation of the respective districts
of the minister and magistrate was doubtless intended
to act as a check upon clandestine unions, as by the more
stringent act of 1695. By this statute none may join any
persons in marriage who are not inhabitants or residents of
the county or town; nor without a proper certificate of due
publication and parental consent from the clerks of the
towns where the parties respectively dwell. For celebrating
a marriage contrary to the act the minister or justice suffers
a penalty of fifty pounds and is forever disabled to join
persons in marriage, with the added liability of prosecution
from the parent or guardian.[403] By several subsequent acts
the powers of the clergy are still further enlarged. Thus in
1763 they are empowered to solemnize marriages in "parishes"
and "districts" composed of "parts of towns" in "as
ample a manner" as in the several towns where they dwell.[404]
In 1773 they are allowed to perform the ceremony, not
merely within their official districts, but for any whose
"ministerial taxes" they are entitled to receive; or if for
any cause a parish is without a minister, or if the incumbent
himself desires to get married, then the next minister of the
same denomination in the town may lawfully act.[405]
So it appears that the proclamation of President Dudley
in 1686 marks an epoch of some importance in institutional
history. For by it the principle of American law, generally
recognized at present by the statutes of the various states,
and imitated by English legislation, was first recognized.
Almost everywhere in this country the lay and the religious
celebrations are equally valid; and it is not without interest to
note that long before the Revolution the priest had once
more practically superseded the magistrate at the nuptials.[406]
It was already regarded as good social "form" to have the
nuptials solemnized by religious rites.
No prescribed marriage ritual existed. The intention of
the persons entering into the covenant might be expressed
in any fitting words.[407] In the early period weddings were
usually celebrated quietly in the home of the bride. But it
must not be understood that all festivity was for long rigorously
proscribed. Soon feasting was added to prayer and
the singing of psalms.[408] A sumptuary law of 1637, forbidding
the sale of buns and cakes in the markets, victualling
houses, and elsewhere, carefully makes an exception of
"such cakes as shalbee made for any buriall, or marriage,
or such like speciall occation."[409] The ancient practice of our
teutonic ancestors of "bedding" the newly married pair was
maintained in some quarters. Judge Sewall had that experience
when he took his second wife.[410] "In Marblehead
bridesmaids and groomsmen put the wedded couple to bed;"
and we are told that "along the New Hampshire and upper
Massachusetts coast, the groom was led to the bridal chamber
clad in a brocaded night-gown. This may have occasionally
taken place among the gentry," comments Mrs.
Earle, "but I fancy brocaded night-gowns were not common
wear among New England country folk."[411] Another "survival"
was the sham "bride-stealing" which was long kept
up in the Connecticut valley. "The last bride stolen in
Hadley was Mrs. Job Marsh, in the year 1783;" and to this
day "in certain localities in Rhode Island, the young men
of the neighborhood invade the bridal chamber and pull the
bride downstairs, and even out-of-doors, thus forcing the
husband to follow to her rescue. If the room or house-door
be locked against this invasion, the rough visitors break the
lock."[412] Furthermore, numerous instances of "smock marriages"
in New England are recorded. Here the English
superstition elsewhere mentioned[413] took the special form that
"if the bride were married 'in her shift on the king's highway,'
a creditor could follow her person no farther in pursuit
of his debt."[414]
In the eighteenth century weddings were accompanied
by much revelry and extravagance. Gloves, rings, and
scarves, as at funerals, were given away in such profusion as
to call for legislation to check the abuse.[415] Unstinted feasting
and drinking were the order of the day. "Sack-posset"
appears to have been the favorite wedding beverage.[416] "All
the friends were entertained at the bride's home with a collation
or supper, and afterward a dance; while in the country
they were the most important social events. The banns
were proclaimed in church, and all the neighbors were
invited from the pulpit to attend the ceremony. On the day
of the wedding muskets were fired, a procession was formed,
and marched to the bride's house, where the marriage took
place; and then came a dinner, a dance, and great merry-making.
Usually these wedding feasts lasted through the
day and evening, but they were sometimes kept up for two
or three days. On one occasion at New London there was
a great wedding dance on the day after the marriage, when
ninety-two ladies and gentlemen assembled and proceeded
to dance ninety-two jigs, fifty-two contra-dances, forty-five
minuets, and seventeen hornpipes. This was probably an
extreme case; but all over New England weddings were
great occasions, and were celebrated with much pomp and
rejoicing."[417]
Of the New England marriage celebration at the beginning
of the eighteenth century we have some vivid, though
imperfect, sketches from the inimitable pen of Judge Sewall.
Next to funerals, weddings seem to have been his chief
recreation. The brief and naïve entries in his Diary reveal
to us the mingled praying, psalm-singing, and posset which
enlivened those festive occasions. Thus on October 22, 1713,
he writes: "I go to Salem.... See Mr. Noyes marry Mr.
Aaron Porter and Mrs. Susan Sewall, at my Brother's. Was
a pretty deal of Company present.... Mr. Noyes made a
Speech, said Love was the Sugar to sweeten every condition
in the married Relation. Pray'd once. Did all very well.
After the Sack-Posset, etc., Sung the 45th Psalm from the
8th verse to the end, five staves. I set it to Windsor Tune.
I had a very good Turkey-Leather Psalm-Book which I
look'd in while Mr. Noyes Read: and then I gave it to the
Bridegroom saying, 'I give you this Psalm-Book in order to
your perpetuating this song: and I would have you pray that
it may be an Introduction to our Singing with the Choir
above.'"[418]
Again in 1720 we find him solemnizing the marriage of
his daughter, Mrs. Judith Sewall, with Mr. William Cooper.
"I said to Mr. Simeon Stoddard and his wife, Sir, Madam,
The Great Honor you have conferr'd on the Bridegroom and
the Bride, by being present at this Solemnity does very conveniently
supercede any further enquiry after your Consent.
And the part I am desired to take in this Wedding, renders
the way of my giving my Consent very Compendious:
There's no maner of room left for that previous Question,
Who giveth this Woman to be married to this Man? Dear
child, you give me your Hand for one moment, and the
Bridegroom forever. Spouse, You Accept and receive this
Woman now given you, etc. Mr. Sewall pray'd before the
Wedding, and Mr. Coleman after. Sung the 115. Psalm
from the 9. verse to the end, in the New Hall, St. David's
which I set. Then we had our Cake and Sack-posset."[419]
It is a fact of great historical interest that in the New
England colonies the administration of matrimonial law was
relegated to the sphere of local self-government. The
requirement of previous publication, parental consent, and
registration was everywhere carried into effect by the officers
of the town as a part of their regular functions; and by-laws
for their guidance were enacted in town-meeting.
The first extant statute for the regulation of marriage is
contained in the revision of the Plymouth laws made in
1636, and repeated under a slightly altered form in the revision
of 1658. It is a model of brevity and precision; and it
marks an epoch in the history of English jurisprudence,
attempting, as it does in few words, a remedy for many of
the evils which continued for two centuries to vex the mother-country.
No one "under the covert of parents" is allowed
to marry without their approbation. But in case such
approval "cannot be had then it shall be with the consent of
the Gove[~r] or some assistant to whom the persons are knowne
whose care it shall be to see the marriage be fitt before it be
allowed by him." After the consent of parent or magistrate
has thus been obtained, the marriage is to be published in
"meeting" three several times before it is solemnized. Or,
if there is no meeting, then fifteen days' notice by posting
in the usual public place shall be sufficient; provided the
"writing be vnder some magistrats hand or by his order."[420]
The Old Colony, likewise, made careful provision for
registration. By an act of 1646 it is declared the duty of
the town clerk to keep a register of the "day and yeare of the
marriage, birth, and buriall of euery man, woman, and child"
within his township. He is to have "thripence apece for each
particular person soe registered." The persons marrying are
themselves required, within one month, to report their marriage
to him under penalty of three shillings for neglect—one-half
to the Colony and the other half to the register
"upon his complaint." The clerk must also submit annually
to the general court at its March meeting a written report of
all registrations made by him during the year. By this act,
moreover, the publication of banns was devolved upon him.[421]
The laws of the other colonies differed only in details
from those of Plymouth. In Massachusetts the first order
of the general court on the subject was passed in 1639. The
intention is to be thrice published, not at divine service on
the sabbath, it may be noted, but in town-meeting or at
"publike lecture" in "both the townes where the parties, or
either of them, do ordinarily reside." If no public lecture
is held in the town, then fourteen days' notice may be given
in writing on "some poast standing in publike viewe" and
used solely for this purpose.[422] The "poast" is to be provided
by the town under penalty of ten shillings for default.[423]
Later it became customary for the town clerk or his deputy
to publish the banns on Sunday, "after the blessing to the
evening exercise was pronounced;" and so in 1696-97 we
find the town-meeting of Charlestown ordering that "publishments
should be made 'on Lecture days or any other
public times, and not restrained to Sabbath Days only.'"[424]
Sometimes on petition the legislature granted to individuals
special permission to marry.[425] Originally the registration of
births, deaths, and marriages devolved upon the town clerk;
but it seems to have been neglected by him. For in 1642
the general court laid this duty upon the clerk of the writs
in each town, under penalty for default, requiring him to
make annual return of all names registered to the recorder
of the county court.[426] A similar report to the same officer is
to be submitted each year by all magistrates or persons
appointed to solemnize marriages; and the "new married
man" shall likewise, within one month, bring in to the clerk
of the writs a certificate of his marriage.[427] Under the
Province laws the duties of recorder were again performed
by the clerk of the township; and under severe penalty
persons might not be joined in marriage without presenting
a proper certificate of publication and satisfactory evidence
of parental consent.[428]
Previous to 1692, of course, the legal history of New
Hampshire is in the main identical with that of Massachusetts.[429]
But in the pioneer stage the township was sufficient
unto itself. "Dover and Portsmouth, for nearly twenty
years, had no central authority.[430] They had no ministry in
any form, nor any magistrates, except such as might be
created by any mining hamlet in an unorganized territory,
or afterward as the result of forming themselves into
societies. This, however, did not prevent people either
from marrying or dying. The result was that marriage in
New Hampshire has borne from the outset not only the
character of a civil contract, but the impress of our township
system."[431] After the establishment of the royal province
the contract might be solemnized by "virtue either of publishment,
or of a licence from the Governor. The granting
of these licences was accounted a part of the royal prerogative;"[432]
and it was complained of as leading to abuse.[433]
The statutes of Connecticut contain a curious provision,
which will receive further notice hereafter. Distinction is
made between the "contract" and the "covenant." Eight
days' public notice of the proposed engagement must be
given; and after the contract the betrothed pair must "forbeare"
for a second period of eight days before joining in
the covenant.[434] By the code of 1673 persons are not to be
joined in wedlock "before the intention ... hath been
sufficiently published at some publick Lecture or Town meeting
in the Towns where the parties or either of them do
ordinarily reside, or be set up in Writing ... upon some
post of their Meeting House Door in publick view, there to
stand so as it may be read eight days before such marriage."[435]
In general, the marriage laws of both Connecticut[436] and New
Haven[437] on the topic considered are plainly modeled upon
those of Massachusetts, and so need not here receive further
analysis.
Some interesting details may be gleaned from the matrimonial
legislation of Rhode Island. The code of 1647
requires the publication of banns at two town-meetings, confirmation
before the head officer, and registration in the town
clerk's book; otherwise the marriage is void. It is further
enacted that the "man that goes contrarie to this present
Ordinance ... shall forfeit five pounds to the parents of
the Maid, and be bound to his good behaviour; and all the
accessories shall forfeit five pounds a man, halfe ... to
the grieved parents and the other halfe to the Town."[438]
Thus was established at an early day, says Arnold, a system
of registration "such as recent legislation has attempted to
revive."[439] In 1656 it was permitted either to publish marriages
at town-meeting, or "on a traininge day at ye head
of ye Companie,"[440] or by a "Writinge under ye Magistrates
hands fixed upon some noted place in ye Towne."[441] If "the
banns were forbidden, the case was to be heard by two
magistrates; should they allow it, the parties might marry;
but if not, the general Court of trials were to decide."[442] A
later version of the law of 1647, of uncertain date, is somewhat
more detailed. The "man yt hath A respect to a maid
& doth desi[re] to Obtaine her in Marriage ... shall
first acquaint her Parents thereof & upon their consenting
thereto he shall have Baines of matrimony set up in a Publick
Place in ye Town or be Published two severll times
In A Public Assembly In the Town & then remaine from
After ye first Publication Tenn Days." Afterward, "before
one of the Generll officers" the celebration may take place
according to "ye usuwal Custome of this place & then a Certificate
Shall be given by ye Officer yt Ioynes them togeather
in Marriage to ye party So married who shall Carry it to the
Clarke of ye Town where ye Marriage was Solemnized &
have it Placed upon Record." For violation of the act the
same penalties are imposed on the principals and accessories
as in 1647; and the children "yt any shall have wthout this
due & orderly Course of Law ... shall be looked at not
to be Legitimate."[443] It appears that the execution of the
laws was sadly neglected, and so by an act of 1698 all marriages
thus far solemnized, but not duly registered, are declared
valid. Persons married in future are ordered within
ten days to make return to the town clerk; while the latter
is required to submit annually to the head officer of the town
or to the chief justice of the peace a report of all births,
marriages, and deaths by him recorded.[444] Three years later
a more stringent statute appears. Persons from another
colony or township must present to the officer performing the
ceremony a magistrate's certificate of proper publication and
qualification.[445] "Fine and suspension from office were the
penalties for any violation of this act by a magistrate, and
fine, imprisonment, or whipping, is the punishments for the
principals who disregard it."[446] After various changes[447] the
law of the provincial era reached its full development in the
code of 1767. A dual system of banns and lay publication
is provided. If application be made to a "settled and ordained"
minister of any denomination, he shall "openly
and by public speaking" proclaim the banns on three several
Sundays, holidays, or days of public worship "in the Meeting
in the Town, where the Parties respectively belong." If
lay publication be preferred, the assistant, warden, or justice,
under his hand and seal, is required to post a notice in some
public place in each of the towns where the parties dwell fifteen
days before the wedding.[448] A method of "under-writing"
in case of objection is prescribed. With leave of any assistant,
justice, or warden, the person opposing the marriage is
to make the objection "in writing under his or her Hand,
therein assigning the Impediment, and affix the same under
the Publication;" but in case of oral banns the written objection,
in the presence of two witnesses, is to be delivered
to the minister or elder who proclaimed the banns. The
person forbidding the marriage must enter into recognizance
with two good sureties to appear at the next court of general
sessions of the peace and there "make good and prove" his
allegations, or, in default, pay to the persons to be wedded
"all such Damages as they shall sustain by Means of staying
their Marriage." A certificate of publication must be
produced; two credible witnesses to the ceremony are required;
the person conducting the celebration must give
a certificate[449] thereof to the newly wedded pair; and he
is entitled to a fee of three shillings. Only fines are imposed
for violation of the act by the solemnizer or by the
parties. Neither by this law nor apparently by any statute
subsequent to the act of 1663 is a contract declared void for
non-observance of legal forms.[450]
In conclusion it may be noted that generally throughout
New England neglect of the prescribed forms did not invalidate
marriage, though the offender against the law
might be punished.[451] It is historically probable, where
words of nullity were not contained in the statute, that the
irregular contract by simple present agreement, without
intervention of a minister or magistrate, was valid. But
this is a disputed point which will hereafter be considered
in connection with the history of common-law marriage in
the United States.[452]
It may be an exaggeration to say that the Mosaic code
was the corpus juris of the Puritan.[453] But it is certain that
the early private law of New England was profoundly
influenced by it. The family in many respects took on
a patriarchal character. The sway of the house-father,
though in the main just, became in theory despotic. Even
the conception of marriage as a civil contract gained support
from the Jewish law.[454] Our ancestors loved to cite the
book of Ruth and other scriptural texts in its favor; and
their view of the proper relations of husband and wife, those
of parent and child, or those of man and woman before
marriage, was derived directly from the biblical ordinances.[455]
Thus "old bachelors," though rare in early New England,
were looked upon with disfavor. They were regarded
almost as "suspected criminals."[456] Connecticut "in 1636
would not allow any young unmarried man to keep house."[457]
A special order of the town of Windsor was necessary, in
1682, to permit "Isaac Sheldon and Samuel Rockwell to
keep house together, 'so they carry themselves soberly and
do not entertain idle persons to the evil expense of time by
day or night.'"[458] Hartford taxed "lone-men" twenty shillings
a week "for the selfish luxury of solitary living."[459]
Even in the eighteenth century a general statute of Connecticut,
under the same penalty of twenty shillings a week,
forbade any "house-keeper" or "master of a family," without
"allowance of the selectmen," to give "entertainment
or habitation" to a single person; and "such Bourders,
Sojourners, and Young persons" are required to "attend to
the Worship of God" in the families where they live and
"to be subject to the domestick Government of the same," or
else forfeit five shillings for every breach of the law.[460] In
Rhode Island in one instance "single persons of three
months' residence paid five shillings, while the 'rate of
faculties and personal abilities' was left at the discretion of
the assessors."[461] According to a New Haven law, in order
to "suppress inconvenience" and disorders inconsistent with
the "mind of God in the fifth commandment," single
persons, not in service or dwelling with their relatives, are
forbidden to diet or lodge alone; but they are required to
live in "licensed" families; and the "governors" of such
families are ordered to "observe the course, carriage, and
behaviour, of every such single person, whether he or she
walk diligently in a constant lawful imployment, attending
both family duties and the publick worship of God, and
keeping good order day and night or otherwise."[462]
Similar measures were adopted by the other colonies.
The law of Plymouth provides that "wheras great Inconvenience
hath arisen by single persons in this Collonie being
for themselues and not betakeing themselues to live in well
Gourned famillies. It is enacted by the Court that henceforth
noe single person be suffered to liue by himselfe or in
any family but such as the Celectmen of the Towne shall
approue of; and if any person or persons shall refuse or
neglect to attend such order as shalbe giuen them by the
Celectmen; that such person or persons shalbe sumoned to
the Court to be proceeded with as the matter shall require."[463]
"Whereas," runs a statute of Massachusetts, "there is a
loose and sinful custom of going or riding from town to
town, ... oftimes men and women together, upon pretence
of going to lectures, but it appears ... merely to
drink and revel in ordinaries and taverns, which is in itself
scandalous, and it is to be feared a notable means to debauch
our youth and hazard the chastity of those that are drawn
fourth thereunto: for prevention whereof," it is ordered
"that all single persons who merely for their pleasure take
such journeys ... shall be reputed and accounted riotous
and unsober persons, and of ill behavior ... and shall be
committed to prison for ten days, or pay a fine of forty shillings
for each offence," unless they can "give bonds and sufficient
sureties for good behavior in twenty pounds."[464] Earlier
it was decreed that the "Select men of every Town, in the
several precincts, and quarters where they dwel, shal have a
vigilant eye over their brethren and neighbours, to see,
first that none of them shall suffer so much barbarism in any
of their families, as not to endeavour to teach, by themselves
or others, their children & apprentices, so much learning, as
may enable them perfectly to read the english tongue &
knowledg of the Capital laws." Once a week children and
apprentices are to be catechised "in the grounds and principles
of Religion," or at least taught "some short orthodox
catachism without book;" and they are to be bred and
brought up "in some honest Lawfull calling ... profitable
for themselves and the Common-wealth," if their parents or
masters "will not, or cannot train them up in learning to fitt
them for higher imployments." If parents and masters
neglect their duty, "whereby children & servants become
rude, stubborn & unruly, the sayd Select men with the help
of two Magistrates or the next County Court for that Shire,
shall take such children or apprentices from them," and
until they come of age place them with persons who will
more strictly look after their government as the law directs.[465]
It was further enacted that every town shall order and dispose
to service or otherwise all "single persons and inmates"
within its borders, anyone feeling aggrieved thereby "to
have Liberty to appeale to the next County Court."[466]
These laws were not wholly a dead letter, as shown by the
judicial records. Thus on April 2, 1672, "Thomas Henshaw
and Thomas Hall, singlemen, being convicted of living
from under family government ... , are ordered forthwith
to submit themselves" to such government "and to
appear at the next court and bring with them certificate
thereof."[467] Nevertheless complaint is made that the town
officers are negligent. In 1668 the legislature directs the
clerk of each shire court to send "to the Constables of the
Towns" within the shire an order which they are "enjoyned
faithfully to execute." In the preamble it is recited that
the neglect of the laws, "as by sad experience from Court to
Court abundantly appears, doth occasion much sin and prophaness
to increase among us, to the dishonour of God, and
the ensnaring of many Children and Servants, by the dissolute
lives and practices of such as do live from under Family
Government, and is a great discouragement to those Family
Governours, who conscientiously endeavour to bring up their
Youth in all Christian nurture, as the Laws of God and this
Common wealth doth require: These are therefore ... to
require you to acquaint the Select men of your Town, that
the Court doth expect and will require, that the said Laws
be accordingly attended... : and you are also required
to take a list of the names of those young persons ... who
do live from under Family Government, viz., do not serve
their Parents or Masters, as Children, Apprentices, hired
Servants, or Journey men ought to do, and usually did in
our Native Country, being subject to their commands and
discipline."[468]
The manuscript files of Middlesex show that lists[469] of
delinquent single persons were taken by the constables as
required; and that some of them were summoned to appear
before the court. Following is the "answer" of Robert
Williams, whose name is in the list given in the margin:
"I do desire to liue under family gouernment and haue
so desired euer sinc my time was out with my master that I
liued with and all the time sinc commited myself into mens
housis of good report as neer as I could and do desir to walk
inofenciue to all men and furder I do hop that the men
which I do work with will say as I do if the honered court
will desir it indeed I am not a saruant yet do submit myself
to family ordor I [will] do as a saruant what els the honered
court would haue me do mor I hope I shall be willing to obay
the finil power."[470]
In a society where marriages were formed very early,
girls often wedding at sixteen or less, and where widows were
wooed almost at the bier of the dear departed,[471] it is perhaps
not surprising if "old maids" were ridiculed and sometimes
despised. A woman became an "antient maid" at twenty-five.[472]
In an often quoted passage of his Life and Errors,
John Dunton thus praises a woman who remained single, not
from "necessity," but from "choice," and who knew that
time is a "dressing-room for Eternity, and therefore reserves
most of her hours for better uses than those of the Comb, the
Toilet, and the Glass":
"It is true an old (or super-annuated) maid in Boston is
thought such a curse as nothing can exceed it (and look'd
upon as a dismal spectacle); yet she, by her good-nature,
gravity, and strict virtue, convinces all (so much as the
fleering Beaus) that it is not her necessity, but her choice,
that keeps her a Virgin. She is now about thirty years (the
age which they call a Thornback), yet she never disguises
herself, and talks as little as she thinks of Love. She never
reads any Plays or Romances, goes to no Balls, or Dancing-match,
as they do who go (to such Fairs) in order to meet
with Chapmen. Her looks, her speech, her whole behaviour,
are so very chaste, that but once (at Governor's Island,
where we went to be merry at roasting a hog) going to kiss
her, I thought she would have blushed to death."[473]
But bachelors and "thornbacks" were not the only people
who caused the lawmaker anxiety. He kept a sharp eye on
married persons living away from their mates. An act of
the Massachusetts general court, in 1647, after reciting that
diverse married persons are living in the jurisdiction, whose
wives or husbands are in England or elsewhere, and who are
guilty of making love to women, of attempting marriage or
even attaining it, or are under "suspition of uncleannes"—the
vice which seems to have sorely vexed the good people
of those days—and all of whom are a great dishonor to God
and a reproof to religion, commonwealth, and church—orders
that every such person shall be incontinently sent
back "by ye first oportunity of shiping," unless present on
transient business or to "make way" for the family to come
over.[474] Such complaints were by no means groundless and
the courts were often called upon to execute the law. Under
the circumstances bigamy was easily committed, though not
always permanently concealed. On December 3, 1639, the
pretended marriage of James Luxford was declared void;
"all that hee hath" was given to his victim; and he himself
was fined, set in the stocks, and ordered "sent away to
England by the first opportunity."[475] In 1644 the "marriage
of John Richardson to Elizabeth Frier was annulled upon
proof that he had a former wife living in England."[476] Henry
Jackson—whose case seems to justify the act of 1647—was
presented in 1672-73 "for lying, in saying he was single
and attempting marriage with several," though since confessing
that he has a wife beyond the sea; "for living from
under family government; and for carrying a fire brand at
night near a hay stack;" on all of which counts, we are prepared
to hear, he got twenty stripes, had to pay costs, and
was ordered away to "England by the next ship."[477]
More numerous are the cases of "living apart." For
example in 1637 the general court decreed that Isaac
Davies should be sent home to his wife in England.[478] Three
years later "Willi Wake" in like manner was advised to
seek his consort.[479] Edward Iron in 1651 "upon promise to
take some effectual course to send for his wife now in England"
was "granted liberty to abide in the country until the
next return of ships." Should his attempt fail, then he
was "ordered to depart out of this jurisdiction by the next
opportunity."[480] For similar absence from his spouse James
Underwood in 1654 was fined at Salem.[481] In 1663 for the
same offense Christopher Blake was presented by the grand
jury of Suffolk, although in his petition he avers that for
three years he had "been desirous of getting his wife across
but she refused to come;" and that he had never "presented
himself as a single man, but always openly manifested the
true state of his condition." Accordingly the general court
ordered the prosecution "stayed for a year."[482] In 1671
Paul Hall, presented in the same county, "appeared and
declared he was informed his wife was dead." The court,
being skeptical, commanded him to "repair to the last place
of her abode or bring in a certificate of her death."[483] Delinquent
wives were looked after with equal vigilance. In
1668 the constable of Boston is ordered to summon "before
the county court two women and one man for living apart
from their spouses contrary to law."[484] A presentment of
Sarah Pickering failed in 1674 because she produced evidence
that her husband had renounced her.[485] Even when
both partners were in the jurisdiction the law was not less
harshly administered. On June 17, 1672, for "disorderly
living apart," Michael Smith and wife, "inhabitants of
Charlestoun" were "admonished and ordered to pay costs."[486]
The case of "Abr. Hagborne" in 1663 is more remarkable.
Although he had come to the colony twenty-two years
before; had lived contentedly with his wife for fourteen or
fifteen years until she "did depart" for England; had sent
for her to return home and provided for her transportation,
"whereby the innocence of Living Apart is on your peticoners
part;" and "had no idea the law against living apart would
apply to the known settled inhabitants, brethren and freemen
whose wives unnaturally desert them;" yet the county
court "was pleased to require him to depart the Countrie &
to repayre vnto his wife." So he "humbly petitions" the
general court that he may not be compelled to return to
England and that he may "not be put vpon [religious]
temptacoñs or aboue his strength or any kind of iniun[~cc]on
[injunction] of going to Serue other Gods;" but may be
"allowed to continue his Abode here ... vnder the
Shadow of that happie Gouernment in Co[=m]onwealth and
Churches ... those few days of his pilgrimage that
remayne." A gracious answer, it is perhaps needless to
add, was the meet reward of so just and so skilful a prayer.[487]
In like spirit single women and wives in the absence of
their husbands were forbidden to "lodge any inmate or
sojourner," except with the approval of the selectmen or
other magistrates.[488] Of course, these were pioneer days.
The peace of the settlements was probably disturbed by
loose and riotous adventurers, outcasts from the society of
the Old World. Doubtless these measures, aside from
religious motives, were in some degree useful police ordinances;
as were also those prohibiting the husband from
beating his wife, and the wife from striking her spouse.[489]
But the colonists went farther and prescribed the death
penalty for disobedience to parents, following the precepts of
the Mosaic law.[490] Furthermore, they attempted to regulate
courtship by statute, in a way which, however wholesome,
would scarcely be relished by the young men and maidens
of our generation. Thus the general court of Plymouth prohibits
"any motion of marriage to any man's daughter or
mayde servant" without having "first obtayned leaue" of the
parents or master under penalty of fine and corporal punishment
in the discretion of the bench. But appeal is allowed
to the magistrate, when the master "through any sinister
end or couetous desire," witholds his consent.[491] The courts
were not wholly without business growing out of this legislation,
as appears from illustrations collected by Mr. Goodwin.
"In 1652 Jonathan Coventry was indicted for 'making a
motion of marriage' to Katherine Bradbury, servant to
Mr. Bourne, of Marshfield, without the latter's consent.[492]
Coventry left the Colony before arrest.... In 1648
Thomas Dunham was ordered to abstain from visiting
or sending to Martha Knott, of Sandwich, from October 4
till the first Tuesday of December, that the Court may better
learn of his pretended contract, unless the Governor, on
the clearing of things, give him leave. A romantic case was
that of Governor Thomas Prence against Arthur Howland,
Jr., nephew of the Pilgrim.[493] The tolerant course of the
elder Arthur Howland toward the Quakers had earned
Prence's hearty ill-will; and when, in 1660, he found that
Arthur, Jr., had wooed his daughter Elizabeth, he had the
swain before the General Court, where he was fined £5 for
making love without her father's permission. The couple
remained constant, for in 1667 the irate Governor once more
brought up young Arthur, who was again fined £5 because
he had 'disorderly and unrighteously endeavored to obtain
the affections of Mistress Elizabeth Prence,' and was put
under bond of £50 to 'refrain and desist.' But Prence, like
Canute, was unable to control the forces of Nature. This
action was in July; but before the next spring the imperious
Governor seemed to have been forced to capitulate, for
Arthur and Elizabeth were united."[494] On the other hand,
the right of a lover to appeal to the magistrate, in case his
"motion" were hindered through "sinister end or couetous
desire," was occasionally of practical value. In 1646, for
instance, Richard Taylor complained to the general court
of Plymouth that he was prevented from marrying Ruth
Wheildon by her father Gabriel; but when before the court
Gabriel yielded and promised no longer to oppose the marriage.[495]
The records show that parents might be held accountable
for "miscarriages" resulting from unreasonable opposition.[496]
To the close of the colonial era a law of Connecticut provided
that "if any Man shall directly or indirectly endeavour
to draw away the affections of any Maid ... , on pretence
of Marriage, before he hath obtained Liberty and Allowance"
from her parent, governor, or guardian, should there
be any, "he shall forfeit the sum of Five Pounds to the
Party grieved; double that amount for the second offence;
and for a third transgression suffer imprisonment, besides
paying the costs of prosecution."[497]
An elaborate statute of New Haven, for the regulation of
proposals, provides "that whosoever within this jurisdiction
shall attempt, or endeavor to inveagle, or draw the affections
of any maide, or maide-servant, whether daughter, kinswoman,
or in other relation, for himself, or for any other
person, without the consent of father, master, governor, or
such other, who hath the present interest, or charge, or (in
absence of such) of the nearest magistrate, whether it be
by speech, writing, message, company-keeping, unnecessary
familiarity, disorderly night meetings, sinful dalliance, gifts,
or any other way, directly or indirectly, every such person
(besides all damages which the parent, governor, or person
intrusted or interested, may sustain by such unlawful proceedings)
shall pay to the plantation forty shillings for the
first offence; and for the second offence towards the same
party four pounds; and for the third offence he shal be
further fined, imprisoned, or corporally punished, as the
plantation court, or court of magistrates considering all
circumstances, shal determine."[498]
The foregoing act was probably suggested by the Massachusetts
law of 1647, which is likewise here presented. It
is declared that, "whereas God hath committed the care and
power into the hands of parents for the disposing their
Children in Marriage, so that it is against rule, to seek to
draw away the affections of young maidens under pretence of
purpose of marriage, before their parents have given way
and allowance in that respect; and whereas it is common
practise in divers places for young men irregularly and
disorderly to watch all advantages for their evil purposes,
to insinuate into the affections of young Maidens
by coming to them in places and seasons unknown
to their parents for such ends, whereby much evil hath
grown amongst us, to the dishonour of God and damage
of parties; for prevention whereof for time to come. It is
further Ordered, that whatsoever person from henceforth
shall endeavour, directly or indirectly, to draw away the
affection of any mayd in this jurisdiction, under pretence of
marriage, before he hath obtained liberty and allowance
from her parents or Governors or in absence of such of the
nearest magistrate, he shall forfeit for the first offence five
pounds, for the second towards the partie ten pounds, and
be bound to forbeare any further attempt and proceedings
in that unlawful designe, without or against the allowance
aforesayd. And for the third offence upon information or
complaint by such parents or Governors to any Magistrate,
giving bond to prosecute the party, he shall be committed in
prison, and upon hearing and conviction by the next court,
shal be adjudged to continue in prison, untill the Court of
Assistants shall see cause to release him."[499]
The courts were not without employment under this
statute. In 1658 Paul Wilson appeared before the county
court of Middlesex, sitting in Charlestown, "to answer the
complaint of Deacon Upham for violent soliciting his
daughter against his will." Whereupon the tribunal
"admonished Wilson of his evil behavior towards the said
Upham and his daughter Priscilla, and ordered him to give
bond of ten pounds for his regular behavior towards the said
parties." Accordingly the culprit gave bond "yt he will
no more frequent the company of Priscilla Upham, nor
by no means whether direct or indirect, make any more
addresses vnto her without her fathers leave first orderly
had & obteined."[500] For a similar offense, in 1672, the
county court of Suffolk fined Benjamin Scott five pounds.[501]
Two years later, before the same tribunal, Thomas Irons was
presented "for procuring Richard Barnum to publish a
marriage" between himself and Mary Arnold without her
father's leave;[502] while the next February, as we learn from
the record, John Lorin stood "convict on his own confession
of making love to Mary Willis without her parents consent
and after being forwarned by them, £5."[503]
Although parents might be prosecuted for "unreasonably
denying any child timely or convenient marriage,"[504] it is
evident that lovers had to be very circumspect in old colonial
days. In a community where power to dispose of a son or
daughter in wedlock was believed to be the gift of heaven,
it is not strange that "allowance" was sometimes hard to
gain. Praising the chaste reserve of the gentle "old maid"
of Boston whom he had learned to admire, John Dunton
thus expresses the dominant view: "I am sure this is most
agreeable to the Virgin modesty, which should make Marriage
an act" rather of "obedience" than "choice." "And
they that think their Friends too slowpaced in the matter give
certain proof that lust is the sole motive."[505] Nor was the
average New England house-father at all likely to allow
sentiment to get the better of prudence in seeking a match
for his child. He was more apt to be governed by a spirit of
cold calculation which never for an instant lost sight of the
"main chance." Judge Sewall, for example, can hardly be
called "slowpaced" in providing his daughters with wooers.
He superintends the whole "business" of love-making with
never-flagging zeal. Poor, timid daughter Betty is fairly
worried into matrimony, perhaps as the only sure way of
escaping her father's nagging. What a procession of "captains"
and "persons of worth" he parades before the reluctant
girl before he succeeds in gaining his will! The first who
"wished to speak with her" is Captain Tuthill, who appears
as a suitor when she is but seventeen years of age. After
the judge had made careful and satisfactory inquiry as to the
captain's estate—which he finds valued at £600 or £700—and
the young man "in good Business, and like to be in
better;"[506] and after having his daughter read to him about
the courtship of Adam and Eve "as a soothing and alluring
preparation for the thought of matrimony,"[507] the lover is
invited to call. Of this visit and its surprising result Sewall
thus writes in his Diary: "At night Capt. Tuthill comes to
speak with Betty, who hid her self all alone in the coach
for several hours till he was gon, so that we sought at several
houses, till at last came in of her self, and look'd very wild."[508]
A number of others in rapid succession have little better
luck with the coy maiden. The next fall, however, on
returning from a journey to Rhode Island, the judge finds
his "family in health, only disturb'd at Betty's denying Mr.
Hirst." A month later he sadly records that he supposes
even this suitor has "taken his final leave."[509] Nevertheless
two days after, on October 26, 1699, he addresses Betty at
"Brantry," where she had gone on a visit, the following
characteristic letter:
"Mr. Hirst waits upon you once more to see if you can
bid him welcome. It ought to be seriously considered, that
your drawing back from him after all that has passed
between you, will be to your Prejudice; and will tend to
discourage persons of worth from making their Court to you.
And you had need well to consider whether you are able to
bear his final Leaving of you, howsoever it may seem gratefull
to you at present. When persons come toward us, we are
apt to look upon their Undesirable Circumstances mostly;
and therefore to shun them. But when persons retire from
us for good and all, we are in danger of looking only on that
which is desirable in them to our wofull Disquiet. Whereas
'tis the property of a good Balance to turn where the most
weight is, though there be some also in the other Scale. I
do not see but that the Match is well liked by judicious persons,
and such as are your Cordial Friends, and mine also.
"Yet notwithstanding, if you find in yourself an i[=m]ovable,
incurable Aversion from him, and ca[=n]ot love, and honour,
and obey him, I shall say no more, nor give you any further
trouble in this matter. It had better be off than on. So
praying God to pardon us, and pity our Undeserving, and to
direct and strengthen and settle you in making a right Judgment,
and giving a right Answer, I take leave, who am, dear
child, your loving father. Your mother remembers to
you."[510]
Either this letter had the desired influence or Betty was
unable to endure the "wofull disquiet" of a "final leaving;"
for a year later it stands written that "Mr. Grove Hirst and
Elizabeth Sewall are married by Mr. Cotton Mather."[511]
The colonists were extremely anxious to restrain vice by
legislation. The whole field of private morals was brought
under the purview of the magistrate. Unchastity and
sexual crimes, especially, they were determined to prevent
at all hazards; and, in consequence, the early colonial and
court records are far from pleasant reading. Conjugal infidelity
is especially abhorred by the lawmaker. Originally,
in all the New England colonies save Rhode Island and
Plymouth, death was the penalty prescribed for adultery
with a "married or espoused wife." In the New World the
Puritan thus actually realized what Luther, Hooper, and
other Reformation Fathers ardently desired as an ideal fulfilment
of the Mosaic code.[512] The capital law of Massachusetts,
at any rate, was not a dead letter, as is clearly shown
by the records of the early period. The only attempt to
put in force the original act of 1631 was, indeed, a failure.
It appears that in 1637 two men and one woman were convicted;
but on the ground that the statute had been "made
by the court of assistants by allowance of the general court,"
and for fear lest it had not been "sufficiently published,"
the extreme penalty was not administered. Instead the
culprits were whipped and then banished on pain of death
should they return.[513] The act of 1631 was, however, at once
confirmed,[514] and it remained in force until superseded by the
"Body of Liberties," whose provision on this point was not
abrogated during the period of the colonial charter. Under
the law as thus constituted two persons were condemned
and executed in 1644.[515] Further, in his Magnalia Cotton
Mather mentions the execution of an adulterer from Weymouth.[516]
These are the only cases of capital punishment for
this offense yet discovered; but a number of persons narrowly
escaped it, where the evidence seems sufficient to warrant
the death penalty. Apparently the courts shrank from
pronouncing sentence according to the full rigor of the law,[517]
satisfying themselves with lesser punishments, such as imprisonment,
banishment,[518] or whipping.
In Plymouth the death penalty for adultery seems never
to have been established.[519] Instead, the "scarlet letter," a
punishment even more terrible to bear, was there adopted
as a permanent badge earlier than in any other colony;
while in England it appears never to have been so employed
for any crime.[520] So far as known, the oldest typical case of
bearing such a "stigma" continuously for adultery occurred
in 1639. In that year a woman was sentenced to be "whipt
at a cart tayle" through the streets, and to "weare a badge
vpon her left sleeue during her aboad" within the government.
If found at any time abroad without the badge, she
was to be "burned in the face wth a hott iron."[521] Two years
later a man and a woman for the same offense were severely
whipped "at the publik post" and condemned while in the
colony to wear the letters AD "vpon the outeside of their
vppermost garment, in the most emenent place thereof."[522]
So the custom was already developed in judicial practice
when the oldest statute providing for the "scarlet letter"
appeared in 1658. It was then enacted "that whosoeuer
shall comitt Adultery shalbee seuerly punished by whiping
two seuerall times; viz: once whiles the Court is in being att
which they are convicted of the fact and 2cond time as the
Court shall order; and likewise to weare two Capital letters
ziz; AD cut out in cloth and sewed on theire vpermost Garments
on theire arme or backe; and if at any time they
shalbee taken without the said letters whiles they are in the
Gourment soe worn to bee forth with taken and publickly
whipt."[523]
The Plymouth statute was copied into the Cutt Code for
New Hampshire in 1679-80.[524] By the act of 1701, taken
from the Massachusetts law of 1694, the initial letter is still
prescribed;[525] and down to its repeal in 1792 the law was frequently
enforced by the courts.[526]
It is an evidence of the more humane tendency of Rhode
Island legislation that neither death nor the scarlet badge
seems ever to have been prescribed for adultery, although
the offense was otherwise harshly punished. The culprit is
to be "publickly set on the Gallows in the Day Time, with a
Rope about his or her Neck, for the Space of One Hour;
and on his or her Return from the Gallows to the Gaol, shall
be publickly whipped on his or her naked Back, not exceeding
Thirty Stripes; and shall stand committed to the Gaol of the
County wherein convicted, until he or she shall pay all Costs
of Prosecution."[527]
In Connecticut a brand appears to have superseded the
death penalty at least by 1673, as shown in the code of that
year. The provision of this code is retained almost exactly
in the compilation of 1769, requiring "that whosoever shall
commit adultery with a Married Woman or one Betrothed
to another Man, both of them shall be severely Punished, by
Whipping on the naked Body, and Stigmatized or Burnt on
the Forehead with the Letter A, on a hot Iron: And each of
them shall wear a Halter about their Necks, on the outside
of their Garments, during their Abode in this Colony, so as
it may be Visible: And as often as either of them shall be
found without their Halters, worn as aforesaid, they shall,
upon Information, and Proof of the same, made before an
Assistant or Justice of the Peace, ... be Whipt, not
exceeding Twenty Stripes."[528]
As a detail of interest it may be observed that nowhere
save in Connecticut is the continuous wearing of a halter
provided for by statute; although for offenses other than
adultery several decisions show that during the seventeenth
century this punishment was employed in the Bay Colony.[529]
Furthermore, in Connecticut, as will hereafter appear, the
law of incest differs from that of adultery in not requiring a
rope to be so worn.
The statute of Massachusetts prescribing the death penalty
for adultery did not survive the fall of the charter. So
in 1794 the scarlet letter was substituted.[530] The act published
on June 20 of that year, and remaining in force until after
the close of the provincial era, varies in several important
details, though not essentially, from the laws of Plymouth
and Connecticut already presented. The offenders "shall
be set upon the gallows by the space of an hour, with a rope
about their neck, and the other end cast over the gallows;
and in the way from thence to the common goal shall be
severely whip'd, not exceeding forty stripes each." Also the
offenders "shall forever wear a capital A, of two inches long
and proportionate bigness, cut out in cloth of a contrary color
to their cloaths, and sewed upon their upper garments, on
the outside of the arm, or on their back, in open view." If
"found without their letters so worn, during their abode in
this province, they shall, by warrant from a justice of peace,
be forthwith apprehended and ordered to be publicly whip'd,
not exceeding fifteen stripes, and so from time to time,
toties quoties."[531]
Apparently writers have thus far failed to discover positive
evidence that the provision of this act regarding the
capital letter was ever carried out. A search in the manuscript
records of the superior court of judicature, however,
has disclosed several interesting cases. The earliest sentence
occurred in March, 1707, when Mathew Fuller and Hannah
Parker were indicted before a superior court at Plymouth.
In the exact terms of the statute Hannah was sentenced to
be set on the gallows, receive thirty stripes upon her naked
back, and forever after to wear the capital A. But, singularly
enough, her paramour was acquitted, no reason being assigned
therefor either in the court record or in the files.[532] Again in
1721 Jemima Colefix, for sinning with a free negro and bearing
a mulatto child, received a similar sentence; and in this
case also the accused man was acquitted of being the putative
father as had been charged.[533] The next case is dated February
9, 1730-31; and it shows that men as well as women had
to endure this penalty. Before a court held in Boston "the
jurors present John Warren, miller, and Rachel Gould for
adultery," both being married persons. Although they
pleaded not guilty, they were each set on the gallows, given
thirty-nine stripes, and condemned to wear the capital
letter.[534] Twenty years later, on September 26, 1752, "Daniel
Bayley, cooper, and Mary Rainer" received the same punishment,
except that they each suffered forty stripes, the full
number allowed by the statute.[535] Finally after the lapse of
thirty years more, just as the War of Independence was
drawing to a close, we learn from the records that, following
the usual stripes and exposure on the scaffold, Jerusha Doolittle
was condemned to wear the fatal A as a badge of shame
"forever."[536]
This closes the list of cases found in which the stigma
is referred to. On the other hand, there are a number of
sentences for adultery, or for what would ordinarily be so
regarded, where this penalty is not imposed. These are the
cases of semi-adulterous conduct, nominally provided for by
the act of 1694, in which there is either no charge or not
sufficient evidence of absolute transgression.[537] Usually one
and sometimes both of the culprits are married. Fines,
stripes, and occasionally banishment are the penalties imposed.
As in the early period, there is manifestly a hesitation
to urge conviction for "adultery" so as to involve the
extreme penalty of the scarlet letter. The courts thus
seem to favor a strict construction of the statute, giving the
accused the benefit of the more lenient interpretation. In
several cases the jury declines to convict for the offense
charged where the evidence would clearly seem enough to
sustain a verdict.[538]
Throughout New England, Rhode Island alone excepted,
persons guilty of incest—that is to say, of uniting within
the degrees of consanguinity or affinity legally forbidden—were
stigmatized with an initial letter precisely as in the
case of adultery. An act of Massachusetts in 1692, "for the
punishing of capital offenders," makes this offense a felony
punishable with death.[539] Because some of the "articles"
dealing with capital crimes, among which is incest, "were
conceived in very uncertain and doubtful terms," and
because in such cases the penalty of death was not "conformable
to ye Laws of England," the act was disallowed by
the privy council in August, 1695.[540] However, in June of
the same year a new act for the prevention of incestuous
marriages had been adopted by the general court; and this
remained in force during the provincial era. By it the forbidden
degrees are enumerated in harmony with the English
ecclesiastical law. For violation of its provision exactly the
same penalty in the same words is imposed as by the statute
of 1694 for the punishment of adultery, except that in place of
A a capital I is to be continuously worn.[541] This act of 1695
was adopted by New Hampshire in 1714,[542] and by Connecticut
in 1702, the provision regarding the initial letter reappearing
in the statute books of the latter commonwealth until 1821.[543]
In Massachusetts the legal stigma for incest was often
imposed by judicial sentence. As already noticed by
Davis, such a sentence in 1743 was executed upon Andrew
Fleming, of Groton, who had first been set on the gallows
for an hour and whipped forty stripes.[544] Hitherto no other
examples of wearing the capital I seem to have been discovered.
But a careful search in the manuscript records of
the superior court for the period ending in 1780 has brought
to light five additional cases. The first of these occurred in
1729 and the last in 1759. In every instance the culprit is
punished with rope and gallows, stripes, and the scarlet letter.[545]
The New England Puritans were, of course, very serious
in their efforts to check sexual immorality. Their laws are
characteristic of the age. As yet small progress had been
made in enlightened theories of crime and its punishment.
Besides they were steeped to the core in Hebraism. More
or less as a religious duty they accepted and re-enacted the
harsh precepts of the primitive Jewish code. It is not a
little curious, however, to see them preserving an ancient
English usage, almost extinct in the mother-country—in
some instances regulating it by statute—which "thwarted
their endeavors for complete propriety."[546] This was the
custom of pre-contract, contraction, or betrothal, which
everywhere in New England was celebrated with due solemnity.
Such was the case in Massachusetts.[547] By the Connecticut
statute, as already noted, the "contract" was carefully
distinguished from the "covenant;" and because many
persons entangle themselves by rash and inconsiderate
promises for their future joining in marriage, the act of 1640
requires eight days' public notice of the betrothal, after
which a second period of eight days must elapse before the
covenant is sealed.[548] The pre-contract was in use also in New
Hampshire[549] and Plymouth. In the latter jurisdiction the
"couple—having the consent of the parents or guardians,
in the case of minors—made before two witnesses a solemn
promise of marriage in due time, the ceremony having the
formality of the magisterial weddings then in vogue."[550]
Undoubtedly pre-contract was derived from the English
"espousals," which, it has already appeared, were a direct
survival of the beweddung of the Anglo-Saxon laws. But in
New England the betrothal gained a peculiar legal significance.
"The betrothed woman was put, both by law and
social custom, one step above the woman who was not betrothed,
and one step below the woman who was married.
This was so both as respects the civil and the criminal law."[551]
In Massachusetts, Connecticut, and New Haven the "espoused
wife" like the married wife is to suffer death for
adultery;[552] while for fornication, on the other hand, the single
woman and her partner in guilt are much less severely punished.
The betrothed woman "was sentenced to wear the
brand of the 'scarlet letter,' precisely as if she were married."[553]
Thus in New England the betrothal regained a sanction
similar to that which it possessed according to primitive
Germanic custom. It was, in fact, a kind of marriage.
The espoused couple were separated from the world and
placed in a relation whose sacredness might not be
violated as respects others without the most serious
consequences. On the other hand, it was entirely in
harmony with this theory that when they "were guilty of
incontinence with each other after pre-contract before marriage,
their punishment was in general one half, or less than
one half, what it would have been had there been no betrothment."[554]
By the statute of Plymouth, for example, the
penalty in such cases was fifty shillings for each person and
imprisonment for a period not exceeding three days, or if
the guilty persons "will not or cannot" pay the fine, they
are to suffer "corporal punishment by whipping" instead;
while for transgression before contract the fine was twice as
much.[555] This was, in effect, to place a premium[556] upon wrongdoing
committed between the espousals and the nuptials.
Naturally the immorality of such offenses seemed thus to be
lessened; and, as will presently appear, a vast amount of
sexual license was the natural result.
The evil consequences of this anomalous state of the law
were rendered all the more serious through the custom of
"bundling" which obtained a wide prevalence in New England
as it did also in New York and the other middle
colonies. According to Stiles, who has produced the only
general history of the subject, bundling "was practiced in
two forms; first, between strangers, as a simple domestic
makeshift arrangement, often arising from the necessities of
a new country, and by no means peculiar to America; and,
secondly between lovers, who shared the same couch, with
the mutual understanding that innocent endearments should
not be exceeded."[557] It is the second form with which we are
here most concerned; and in its origin this likewise appears
to have been "a custom of convenience." It was long
regarded as a gross or licentious practice peculiar to New
England. Thus Irving taunts the people of Connecticut with
having tried to deprave the manners of the "Dutch lasses
of the Nederlandts" through the introduction of that "horrible"
usage.[558] But the Dutch maidens needed no lessons
from their Yankee sisters in this regard; for in their "queesting"
they had brought with them a form of bundling from
Holland.[559] Indeed, it is not at all improbable that in this case
Pilgrim and Puritan alike may have been strongly influenced
by Dutch precedent, as they certainly were in more important
institutions. Such an inference seems all the more
justifiable, for as yet no trace of bundling has been reported
"in any localities of England itself, the mother country;"[560]
though in Ireland, Scotland, and Wales evidences of its
recent existence are not wanting,[561] and the custom seems
clearly to be deeply planted in the ancient usage of the German
race.[562]
In New England, however, it was by no means confined
to Connecticut.[563] It prevailed in the sister-provinces, and
especially in both western[564] and eastern Massachusetts, down
to the revolutionary period and perhaps for a good many
years to come. Burnaby,[565] writing of his visit to that colony
in 1759-60, gives a lively account of the custom, under the
name of "tarrying," significantly observing that it takes
place between the permission to pay court and the banns.
In his view, bundling is on the whole an innocent practice,
seldom being attended by evil consequences. On the other
hand, that veracious historian, Rev. Samuel Peters, reproves
Burnaby for presenting the custom in "an unfavorable light,
and as prevailing among the lower class of people;"
whereas, according to Peters, it exists among "all classes, to
the great honor of the country, its religion and ladies."[566]
Again in 1777 Lieutenant Anbury, "a British officer, who
served in America during the Revolutionary War, and whose
letters preserve many sprightly and interesting pictures of
the manners and customs of that period,"[567] chats racily of
an invitation to bundle which he received at Williamstown,
Mass.—a courtesy brought about through the scarcity
of beds for the entertainment of strangers.[568] Charles
Francis Adams finds positive proof of the existence of the
custom "within a ten-mile radius of Boston" at least until
1781;[569] and he also quotes a reference to it from a letter of
Abigail Adams written three years later.[570] Nor apparently
was bundling entirely abandoned in eastern Massachusetts
until nearly fifty years thereafter, Cape Cod having the
"dubious honor" of holding out against the "advance of
civilization" in this regard until 1827.[571] The next year, in
Franklin county, Me., a letter to the Portland Yankee
reveals the custom existing in full vigor.[572]
According to the judgment of Stiles, bundling "came
nearest to being a universal custom from 1750 to 1780."
Contrary to the popular view,[573] it appears to have been
confined to the more humble and less cultivated classes;
"to those whose limited means compelled them to economize
strictly in their expenditure of firewood and candle-light."[574]
No evidence has yet been produced showing that
it made its appearance in the main centers of New England
civilization.
Though bundling could arise only in a comparatively rude
state of society, it seems in itself to have been neither very
vicious nor very immoral. Yet manifestly it was easily capable
of abuse. Under dangerous conditions it might readily
degenerate into coarseness and vice. Such conditions were
not wanting throughout the colonial era. The general tone
of sexual morality was not high. The laws and usages
already presented, which in effect invited transgression on
the part of engaged lovers, afforded a constant temptation.[575]
Bundling thus has its chief moral significance as an adjunct
of pre-contract which must be held responsible for a very
large share of the sexual misconduct revealed in the judicial
records. Before the general court of Plymouth the cases of
"uncleanness" after contract and before marriage are very
numerous. According to Goodwin, they averaged one a
year; and this appears to be a conservative estimate. By
actual count the records of that colony, for the twenty-eight
years between 1633 and 1661, show at least twenty-four
sentences for ante-nuptial offenses, chiefly after betrothal;
while during the seventeen years following 1661 there are not
less than forty-one such judgments. Members of some of
the most illustrious families of New England were guilty of
indiscretions in this regard.[576] In several of the early cases
the husband was publicly whipped in view of the wife, who
sat near in the stocks.[577]
The manuscript records of two counties of Massachusetts
for a portion of the seventeenth century appear to demonstrate
that such "miscarriages" before complete wedlock
were not less frequent in the Bay Colony.[578] A thorough
analysis of the records of the county court of Suffolk, covering
the ten years 1671-80, brings to light twenty of these
cases, while during the same period there are forty-three
instances of transgression by "single women."[579] Now, it is
important to remember that the statutes of Massachusetts,
unlike those of Plymouth, do not discriminate between the
offenses of single persons and those committed with each
other by espoused lovers.[580] The question therefore arises as
to whether the custom of pre-contract—for pre-contract was
not established by law in that province—can be held in any
way accountable for these facts. A comparison of the penalties
imposed in the two classes of cases, as exhibited in
Tables I and II, shows that an affirmative answer must be
given. The sins of betrothed persons are in general punished
with far less rigor than those of single men and women.
Thus twenty-one out of forty-three single women, and eight
out of thirteen single men, are sentenced to stripes alone,
nineteen of them receiving each from fifteen to forty lashes;
TABLE I
Cases of Fornication before Marriage in the County Court of
Suffolk County, Mass., 1671-80
| 1. Fine only | 3 | married | couples |
| £5 (both) | 1 | " | " |
| £3 " | 1 | " | " |
| 40s. " | 1 | " | " |
| 2. Fine and confession before the congregation or stripes | 2 | " | " |
| 3. Fine or stripes | 15 | " | " |
| a) Fine— | | | |
| £5 (both) | 3 | " | " |
| £4 " | 3 | " | " |
| £3 " | 1 | " | " |
| 50s. " | 1 | " | " |
| 40s. " | 7 | " | " |
| b) Stripes— | | | |
| 20 | | 2 husbands | 0 wives |
| 15 | | 12 " | 2 " |
| 10 | | 1 " | 13 " |
TABLE II
Cases of Fornication by Single Persons in the County Court of
Suffolk County, Mass., 1671-80
The most noticeable feature of these cases is the tendency on the part of single
men to confess the crime and accept punishment, besides becoming bound as putative
fathers. All the convictions for fornication are by confession or pleading guilty.
| 1. Single women convicted | 43 |
| a) Fine or stripes | 22 |
| £15 or 20 stripes | 1 |
| £5 or {20 stripes | 1 |
| {15 stripes | 4 |
| £3 or {20 stripes | 1 |
| {15 stripes | 3 |
| 50s. or {15 stripes | 3 |
| {10 stripes | 2 |
| 40s. or {15 stripes | 2 |
| {10 stripes | 4 |
| b) Stripes alone | 21 |
| 40 (20 each in two places) | 2 |
| 30 | 2 |
| 20 | 11 |
| 15 | 4 |
| 10 | 2 |
| 2. Single men, confession | 13 |
| a) Fine or stripes | 5 |
| £5 or 20 stripes | 4 |
| 40s. or 15 stripes | 1 |
| b) Stripes alone | 8 |
| 30 | 3 |
| 20 | 5 |
| c) Putative fathers | 17 |
while in no case is a single man or woman merely fined. On
the other hand, out of twenty married couples punished for
ante-nuptial misconduct, fifteen are given the choice of fines
or stripes, three are merely fined; and in no instance is whipping
alone the penalty decreed. Furthermore, the fines are
on the average smaller in these cases than in others, although
as regards both fines and stripes the sentences are sadly lacking
in uniformity. The conclusion seems irresistible that, in
harmony with popular sentiment, the courts, exercising the
discretion granted by the statute, were inclined to deal more
leniently with the faults of the betrothed than with those of
less favored bachelors and spinsters.
Similar evidence is afforded by the incomplete records of
the county court of Middlesex for the period 1629-86, supplemented
by the Files. These contain in all thirty cases of
transgression before marriage, eight of which fall within the
ten years covered by the Suffolk records already considered.
Most of the severe sentences (Table III) occur in this period
and the six years immediately following, although the heaviest
fine, twenty pounds for the couple, is imposed in 1663.[581]
Seemingly, from the few cases known, single persons were
treated more harshly than those who were betrothed.[582]
On presentment by the grand jury[583] or voluntarily confessions
were made by wives and husbands before the court;
and these documents contain evidence of the close relation
TABLE III
Cases of Fornication before Marriage in the County Court of
Middlesex County, Mass., 1649-86 [Except 1663-71]
During the same period these records contain five cases of fornication by
single persons.
| 1. Fine only | 15 | married | couples |
| £20 (together) | 1 | " | " |
| £5 " | 3 | " | " |
| £4 " | 6 | " | " |
| £3 " | 2 | " | " |
| 40s. " | 3 | " | " |
| 2. Fine or stripes | | | |
| a) Fine | 10 | " | " |
| £1 (together) | 5 | " | " |
| £6 " | 1 | " | " |
| £4 " | 3 | " | " |
| £3 " | 1 | " | " |
| 50s. (wife) | 1 | | |
| b) Stripes | 10 | " | |
| 20 | 6 husbands | 0 wives | |
| 15 | 1 husband | 0 " | |
| 10 | 3 husband | 10 " | |
| 3. Stripes only | | | |
| 15 | 1 husband (the wife 50s. or whipped) | | |
| 4. Confessions and petitions | 3 married couples | | |
| 5. Convicted and respited | 1 married couple | | |
existing between the colonial church and state. On October
31, 1671, for instance, Christopher Wheaton and Martha his
wife were sentenced in Boston to make an acknowledgment
"in publique at Hull to ye Satisfaction of ye Congregation,
& pay twenty Shillings fine," on pain of being whipped
ten stripes each by the constable.[584] An elaborate "church
confession," found among the Middlesex Files, would seem
to prove that in another case the decree of the court was
obeyed; and that the written acknowledgment made before
the congregation was returned to the court for record.[585]
The files and records of the same two counties, supplemented
by the record of the superior court, may next be
examined for the period of the second charter. The impression
made by their contents is decidedly disagreeable
and depressing. The coarser and more heinous sexual crimes
are growing more frequent, although due allowance must be
made for the increase of population. Indeed, the bulk of
the records of the general sessions appears to be concerned
with sexual immorality of almost every kind.[586] Inquiry is,
however, here restricted to the two classes of cases thus far
considered. For convenience the material is treated chronologically
in two divisions. The first division covers the
period ending in 1725; and the second the years 1726-80.
Within the former period (Table IV) the records of the
general sessions of Suffolk for the years 1702-25, inclusive,
TABLE IV
Summary of Fornication Cases Before the General Sessions of Suffolk
County, 1702-25, and the General Sessions of Middlesex
County, 1692-1725
Between 1702 and 1725 the following cases brought conviction
before the general sessions for Suffolk county:
| Cases of fornication where the woman alone was sentenced | 104 |
| Cases of conception before marriage with fine, and in a few cases fine or whipping for husband, or both husband and wife | 48 |
| Cases of woman fined or whipped, and putative (or acknowledged) father sentenced to maintenance of child | 44 |
Between 1692 and 1725 there were the following convictions
before the general sessions for Middlesex county (each case stands
for both man and woman if both were tried):
| Cases of fornication | 135 |
| Cases of fornication and conception before marriage | 155 |
yield forty-eight cases of conviction of married couples for
pre-nuptial misconduct, as compared with 148 cases of single
women sentenced for the same offenses.[587] The corresponding
records of the general sessions of Middlesex for the years
1692-1725 contain the extraordinary number of 155 cases
of the first class, as compared with 135 of the second. In a
great many instances the husband or both husband and wife
appear "freely and voluntarily" and confess their guilt.
TABLE V
Fornication Cases before the General Sessions of Middlesex County,
Mass., for Each Quinquennium, 1726-80[588]
| Quinquennium | |
| | 26 | 31 | 36 | 41 | 46 | 51 | 56 | 61 | 66 | 71 | 76 | Total |
| | - | - | - | - | - | - | - | - | - | - | - | |
| | 30 | 35 | 40 | 45 | 50 | 55 | 60 | 65 | 70 | 75 | 80 | |
| Single women | | | | | | | | | | | | 523 |
| Appeared and confessed | .. | 13 | 2 | 4 | 12 | 4 | 10 | 6 | 5 | 13 | 21 | ... |
| Confessed on recognizance | 2 | 3 | 12 | 3 | 9 | 7 | 9 | 6 | 4 | 2 | 2 | ... |
| Pleaded guilty | 9 | 2 | 3 | 12 | 10 | 4 | 11 | 11 | 13 | 5 | 2 | ... |
| Pleaded guilty and named man | 1 | 3 | 1 | 4 | 5 | 6 | 21 | 18 | 16 | 7 | 3 | ... |
| Conf. on recogniz'nce and named man | 10 | 4 | 6 | 4 | 3 | 6 | 16 | 11 | 15 | 9 | 1 | ... |
| Appeared, confessed, and named man | 4 | 15 | 5 | 1 | 5 | 4 | 3 | 9 | 15 | 16 | 45 | ... |
| Married couples | | | | | | | | | | | | 160 |
| Appeared and confessed | 37 | 65 | 16 | 3 | 1 | .. | 1 | .. | .. | .. | .. | ... |
| Pleaded guilty | 15 | 9 | 8 | 1 | 1 | .. | .. | .. | .. | .. | .. | ... |
| Pleaded not guilty, but convicted | 2 | .. | 1 | .. | .. | .. | .. | .. | .. | .. | .. | ... |
| Wives[589] | 31 | | | | | | | | | | | |
| Appeared and confessed | 2 | 1 | 3 | .. | 1 | .. | .. | .. | 1 | .. | .. | ... |
| Pleaded guilty | 3 | .. | .. | .. | 1 | 2 | 6 | 7 | 4 | .. | .. | ... |
| Total | 85 | 115 | 57 | 32 | 48 | 33 | 77 | 68 | 73 | 52 | 74 | 714 |
This is especially true during the decade following 1715,
there being five such confessions at one sitting of the court,
four of them on one page of the record.
The results for the later period (Table V) are still more
striking. Before the Middlesex court alone, during the
fifty-five years commencing in 1726, were 523 cases of single
women and 191 cases of married couples; but 189 of these
couples were tried during the twenty-five years ending in
1750—there being but two isolated cases of confession after
that date—and 181 within the first fifteen years. On the
TABLE VI
Penalties Imposed in Cases Comprised in Table V[590]
| Fine | Single | Married | Wives |
| | Women | Couples | |
| £12½ | .. | 1 | .. |
| £9 | 1 | .. | .. |
| £6 | 1 | 2 | .. |
| £5 | 18 | 37 | .. |
| £4 | 48 | 61 | 3 |
| £3 | 6 | .. | .. |
| 50s | 10 | .. | 1 |
| 40s | 24 | 2 | 4 |
| 30s | 9 | .. | 3 |
| 25s | 8 | 1 | .. |
| 20s | 43 | 3 | .. |
| 15s | 20 | .. | .. |
| 10s | 96 | 2 | 2 |
| 5s | 169 | .. | 16 |
| 4s | 11 | .. | .. |
| 3s | 13 | .. | 2 |
| 2s | 7 | .. | .. |
| 1s | 10 | .. | 1 |
| Total | 494 | 109 | 32 |
other hand, 337 single women were convicted during the
twenty-five and 257 during the same fifteen years. Again,
118 out of the 181 married couples tried between 1726 and
1740 appeared and, presumably, freely confessed their faults.
The leading years in this regard are 1730 with twelve, 1732
with twenty-nine, and 1734 with sixteen confessions. The
leading quinquennium is the second (1731-35) with sixty-six
confessions as compared with thirty-nine in the first
(1726-30) and nineteen in the third (1736-40). To offset
these figures we find thirteen presumably voluntary confessions
by single women in the second quinquennium, none in
the first, and two in the third. These facts seem to point
directly to the action of special causes in producing this
kind of immorality, or, at any rate, its confession. Whether
this action was local for Middlesex cannot positively be
determined from these documents alone; although, as will
soon appear, other evidence shows that this cannot be
assumed. After 1725 the records for Suffolk are incomplete;
but it is surprising that during the seven years (September,
1725, to October, 1732) covered by Table VII there
were in that county only seven convictions of married
couples, not one of whom freely confessed, as compared with
forty-eight cases of single women, including one confession.
There can be little doubt that in the eighteenth century,
just as in the age preceding, the general cause of this ante-nuptial
immorality—and probably also of some part of the
similar misconduct of single persons whose engagements
were not followed by wedlock—was the custom of solemn
pre-contract which still survived. During the second quarter
of the eighteenth century the penalties were relatively
severe, though not so rigorous as during the period of the
first charter; but the facts exhibited in Table VI show that
the courts still treated pre-nuptial offenders more mercifully
than those who were not married.
To determine the special cause of the sudden rise in the
number of confessions during the same period is a more
difficult matter. It is not improbable that a suggestion of
Charles Francis Adams, regarding another aspect of the
problem, may give us a clue to its right solution. Already
the practice of church confession of these offenses, in obedience
to judicial decree, has been noticed; and independently
of the courts, as a religious expiation, such acknowledgments
were required by the authority of particular churches. In
the eighteenth century, if not earlier, under the "seven
months rule," the culpable parents were forced to humble
TABLE VII
Fornication Cases before the General Sessions of Suffolk County,
Mass., September, 1725, to October, 1732[591]
| | Year |
| | 1725 | 1726 | 1727 | 1728 | 1729 | 1730 | 1731 | 1732 | Total |
| Single women: | | | | | | | | | |
| Confessed | .. | .. | .. | .. | .. | .. | .. | .. | 1 |
| £3 or 10 stripes | .. | .. | 1 | .. | .. | .. | .. | .. | .. |
| Pleaded guilty | .. | .. | .. | .. | .. | .. | .. | .. | 8 |
| £4 or 10 stripes | .. | .. | 2 | .. | .. | .. | .. | .. | .. |
| £3 or 10 stripes | .. | .. | 2 | .. | .. | 1 | .. | .. | .. |
| £2 or 10 stripes | .. | .. | .. | 1 | .. | 1 | .. | 1 | .. |
| Pleaded not guilty, but convicted | .. | .. | .. | .. | .. | .. | .. | .. | 3 |
| £5 or 10 stripes | .. | .. | .. | .. | .. | 1 | .. | .. | .. |
| 10 stripes | .. | .. | .. | 1 | .. | 1 | .. | .. | .. |
| Pleaded guilty and named man | .. | .. | .. | .. | .. | .. | .. | .. | 35 |
| £5 or 10 stripes | .. | 1 | .. | .. | .. | .. | .. | .. | .. |
| £4 or 10 stripes | 2 | 2 | 1 | .. | 2 | .. | .. | .. | .. |
| £3 or 10 stripes | 1 | 2 | 2 | 5 | 3 | 4 | 3 | 1 | .. |
| £2 or 10 stripes | .. | .. | .. | 1 | 1 | .. | 1 | 3 | .. |
| Came in freely and accused a man | .. | .. | .. | .. | .. | .. | .. | .. | 1 |
| £2 or 10 stripes | .. | .. | .. | .. | .. | .. | 1 | .. | .. |
| Married couples: | | | | | | | | | |
| Fornication before marriage, man alone accus'd | .. | .. | .. | .. | .. | .. | .. | .. | 2 |
| 20s. or 10 stripes | .. | .. | .. | .. | .. | 1 | 1 | .. | .. |
| Fornication before mar'ge, woman alone accus'd | .. | .. | .. | .. | .. | .. | .. | .. | 5 |
| 40s. or 10 stripes | .. | 1 | .. | .. | 1 | 1 | .. | .. | .. |
| 20s. or 10 stripes | 1 | 1 | .. | .. | .. | .. | .. | .. | .. |
| Total | 4 | 7 | 8 | 8 | 7 | 10 | 6 | 5 | 55 |
themselves before the whole congregation or else expose their
innocent child to the danger of eternal perdition.[592] Yet, in
spite of the fact that the clergy had thus devised a punishment
more terrible to bear than the fines or stripes imposed
by the criminal law, during the very period under consideration
the church records show a great increase in the
number of confessions. Adams suggests that an explanation
may be found in the religious excitement which generally
prevailed during the second quarter of the eighteenth
century, the period which includes the "Great Awakening"
under Whitefield in 1740, the Northampton revival of 1735,
"engineered and presided over by Jonathan Edwards,"
and earlier "harvests" of the same character.[593] At Braintree,
for example, there was a vast increase in the number
of church confessions during the pastorate of John Hancock,
1726-43. It was "everywhere noticed that the women, and
especially the young women, were peculiarly susceptible to
attacks of the spiritual epidemic. Jonathan Edwards for
instance mentions, in the case of Northampton, how the
young men of that place had become 'addicted to night-walking
and frequenting the taverns, and leud practices,'
and how they would 'get together in conventions of both
sexes for mirth and jollity, which they called frolicks; and
they would spend the greater part of the night in them;'
and among the first indications of the approach of the epidemic
noticed by him was the case of a young woman who
had been one of the greatest 'company keepers' in the
whole town, who became 'serious, giving evidence of a heart
truly broken and sanctified.' This same state of affairs
doubtless then prevailed in Braintree, and indeed throughout
New England. The whole community was in a sensitive
condition morally and physically."[594] The morbid quickening
of the conscience would thus naturally result in a greater
number of confessions rather than in an increase of sexual
license; and this same cause seems adequate to explain the
extraordinary number of confessions which we have found
in the contemporary court records.[595] Besides, after the sin
had been disclosed before the congregation, an acknowledgment
in court would almost necessarily follow. It would be
very strange, however, if there were not a considerable
increase in immorality. The practice of bundling, as
Adams believes,[596] may have afforded ready opportunity. Any
violent or protracted disturbance of the mental or nervous
equilibrium, often tending to produce sexual excesses, would
be sure to find "vent" in so dangerous a custom, especially
when sanctioned by the recognized doctrine of betrothal.
Finally it is not without interest to note that the higher
legal significance of the "contraction," as compared with
that of the English sponsalia, is due mainly to the influence
of the Jewish law. The code of Moses mentions no
fixed ceremonies for concluding marriage.[597] But precisely
the same relation as by the Puritans is fixed between
marriage and betrothal. For criminal assault upon the
betrothed "damsel that is a virgin" and for adultery the
death penalty is prescribed.[598] Later, however, the rabbinical
law establishes "certain legal formalities for the act of concluding
marriage. The act consisted of two distinct parts,
intervened by the lapse of a certain time, the betrothment
and the nuptials."[599] To constitute a legal betrothment the
mere consent of the parties did not suffice. The performance
of a solemn act was required. This consisted in the
man's giving to his chosen bride in the presence of two
witnesses either a written instrument, sh'tar, or a piece of
money, kaseph, and saying: "Be thou consecrated (wedded)
to me."[600] The contract thus made is not a "mere promise
to marry," with civil consequences for non-fulfilment. "It
is the very initiation of marriage. The betrothed parties
are in some respects regarded as married, though not yet
entitled to the marital rights nor bound to fulfil any of the
mutual duties of conjugal life.... The betrothment
could be dissolved only through death or a formal bill of
divorce."[601]
Among the Jews it was quite customary for the betrothal
to be preceded by an "engagement," but it was not legally
required.[602] The Puritan went farther in this regard, regulating
proposal and courtship, as well as the pre-contract
and nuptials, by statute.
The New England contraction or public betrothal, when
its social and legal consequences are considered, is thus
seen to be an institution of far more historical interest than
the scanty attention it has hitherto received would lead one
to infer. This is all the more apparent when the accompanying
practice of legal courtship is kept in view. Never,
perhaps, in any modern society has parental control been so
pronounced. But if consent were once given and sealed by
a contract in due form, it could not be lightly withdrawn.
The early records abound in notices of suits for breach of
promise. The colonists were a litigious people; and members
even of some of the best families do not hesitate to
drag their matrimonial difficulties into court. Sometimes a
jilted lover sues his fickle sweetheart; or a forlorn maiden
seeks satisfaction from her betrothed spouse. Thus the
Massachusetts court "orders that Joyce Bradwicke shall
giue unto Alex: Becke the so[=m]e of xxs, for promiseing him
marriage wthout her ffrends consent, & nowe refuseing to
[p=]forme the same."[603] Likewise in the Plymouth jurisdiction
we find John Sutton complaining "against Mary Russell, in
an action of the case, to the damage of two hundred pounds,
for engageing herselfe to another by promise of marriage,
whenas shee had engaged herselfe by promise of marriage
vnto the said John before. The jury find for the plaintiffe
fifteen pounds damage, and the cost of the suite which came
to 1lb 10s 6d."[604] But this did not entirely end the matter.
In 1662-63 the case was taken up for review, Mary having
in the meantime become the wife of John Jacob. After a
careful rehearing, the court reaches the curious decision
that Mary's "actinges haue bine such ... as may not
reflect vpon her disparagement, wee apprehending that what
wrong hath bine vnto John Sutton heerin hath bine rather
occationed by her father than by ... herselfe, shee haueing
heard such thinges concerning the said Sutton as might
justly discurrage her, although the truth of these reports
wee see not cause to determine." Whereupon, oddly enough,
it is decreed "that the abouesaid John Sutton doe pay vnto
John Jacob ... the su[=m]e of fifty shillings."[605]
Sometimes a parent joins with his aggrieved child in
seeking reparation; as when "Richard Siluester, in the behalfe
of his daughter, and Dinah Siluester in the behalfe of
herselfe" recover twenty pounds and costs from John Palmer,
"for acteing fraudulently against the said Dinah, in
not [p=]forming his engagement to her in point of marriage."[606]
The proceedings of the Massachusetts courts contain the
record of many similar suits under a variety of conditions.
Some are ordinary cases of breach of promise.[607] In 1735 a
woman was awarded two hundred pounds and costs at the
expense of her betrothed who after jilting her had married
another, although he had first beguiled her into deeding him
a piece of land "worth £100."[608] Hopestill Aldrich in 1764
was not so successful. The higher court on appeal declined
to give her damage, because after beginning her action
against the faithless Darius Daniels she had married David
Bowin, "who is still living and is her lawful husband."[609] A
number of cases afford further evidence of the danger lurking
in the New England doctrine of espousals, the indemnity
sought being intended in part to punish personal wrongs
committed under cover of pre-contract.[610]
Puritan lovers did not always hesitate to prosecute their
parents for refusing marriage when permission had once
been given. Such was the fate of Hope Allen, who admitted
before the Massachusetts court that "he did give his consent
yt ye said Mr. Deacon should haue his daughter;" and accordingly
for breaking his word he was censured, and had
to pay a fine of ten pounds for his "irregular procedure."[611]
The action might take a still more interesting form, including
both the recreant parents and the promised consort in
the same complaint. In this way Richard Sutton alleges
"against Moses Symonds and Sarah, his wife, and Elizabeth
theire daughter, that shee, the said Elizabeth, hath made a
promise of marriage vnto him, and is hindered by the parents
... from proceeding with her therin." The court after
due consideration decides that Moses ought to pay the said
Richard "the su[=m]e of three pounds, for satisfaction for his
time and charges spent about the [p=]mises;" but not without
kindly releasing the couple from their engagement,
"vnless on second considerations they shall see cause to renew
theire former couenants."[612]
These illustrations would seem to show that the blighted
hopes and disappointed affections of New England lovers
were not judicially reckoned at an extortionate figure. But
those were the days of "small change" in all domestic affairs.
As a matter of fact, the colonists were a close-fisted,
bargaining race;[613] and in no respect perhaps were they more
prudent than in their matrimonial transactions. Sometimes
very careful contracts were executed in court regarding the
property rights of the future husband and wife.[614] Often before
betrothal and almost invariably before wedlock an exact
arrangement was made between the parents touching the
marriage portion on either side. The "higgling of dowries,"
suggests Weeden, was one of the most "singular practices"
of New England life.[615] Even paupers were provided a marriage
portion at the county's charge.[616] No shrewder hand at
a bargain existed than Judge Sewall, whose Diary and
Letter-Book are crowded with illustrations of this and other
matrimonial customs. In 1712 we find him planning a
match between his daughter Mary and young Samuel Gerrish.
So he dines with the father and "discourses" with
him "about my Daughter Mary's Portion. I stood for making
£550 doe: because now twas in six parts, the Land was
not worth so much. He urg'd for £600. at last would split
the £50. Finally Feb. 20. I agreed to charge the House
Rent and Difference of Money, and make it up to £600."[617]
The worthy magistrate was not less thrifty in managing
his own courtships, never for a moment allowing mere sentiment
to get the better of prudence. From the outset he
was lucky; for in 1676, according to tradition, he received
as a dowry with his first wife, Hannah Hull, her weight in
pine-tree shillings, which her father, the mint-master, measured
out to him against her body in his own scales. In
reality, his wife brought him much more than this fabled
treasure; for six years after the wedding he came into the
enjoyment of the mint-master's large estate, thus laying the
foundation of his own fortune and official career.[618] Hannah
lived with him more than forty years, bearing him seven
sons and seven daughters. On her death the judge writes
to a friend: "Wife expired on Satterday Oct. 19th, a little
before Sun-Sett; and I lost my most constant lover, my most
laborious Nurse; which produc'd a Flood of Tears in our
Bed Chamber."[619]
Soon, however, he was able to stem the torrent of his
grief, for on the sixth day of the next February he enters in
his diary: "Wandering in my mind whether to lead a Single
or a Married Life."[620] Indeed, several weeks before this,
when his wife was hardly two months dead, his mind and
feet had begun to wander in the direction of Madam Winthrop,[621]
upon whom, in his usual kindly way, he had bestowed
certain tokens of his regard.[622] But for the present
the charms of Widow Winthrop had to yield to those of
Widow Dennison, whose goodly estate he had come to admire
through having drawn her husband's will.[623] Attending
her home from the funeral of her late consort, he "prayed
God to keep house with her."[624] This was in March. Presently
he opens serious negotiations. He makes her numerous
presents, among which are "A pound of Reasons
and Proportionable Almonds;" a "Psalm-Book neatly bound
in England with Turkey-Leather;" the "last two News Letters;"
"Dr. Mathers Sermons very well bound," and "told
her in it we were invited to a wedding;" a "pair of Shoe-buckles,
cost 5s 3d;" and "Two cases with a Knife and a
fork in each; one Turtle shell tackling: the other long with
Ivory handles Squar'd, cost 4s 6d."[625] In November, after
much visiting and chaffering, he came to the point. "I told
her 'twas time now to finish our Business: Ask'd her what I
should allow her; she not speaking; I told her I was willing
to give Two [Hundred] and Fifty pounds per a[=n]um,
during her life, if it should please God to take me out
of this world before her. She answer'd she had better
keep as she was, than give a Certainty for an uncertainty;
she should pay dear for dwelling at Boston. I desired her
to make proposals, but she made none. I had Thoughts of
Publishment next Thorsday, the 6th. But I now seem far
from it. May God, who has the pity of a Father, Direct and
help me."[626]
This is by no means the end. The courtship drags along,
and they continue to "higgle like hucksters and pedlers."[627]
"She said she thought twas Hard to part with All, and have
nothing to bestow on her Kindred. I said, I did not intend
anything of the Movables, I intended all the personal Estate
to be to her. She said I seem'd to be in hurry on Satterday
... which was the reason she gave me no proposals.
Whereas I had ask'd her long before to give me proposals in
Writing; and she upbraided me, That I who had never
written her a Letter, should ask her to write." So the
thrifty judge, although his "bowels" did "yern toward
Mrs. Dennison," must even decide that God "in his Providence"
directed him to "desist."[628] Later the widow grew
more kind. On the following Lord's day she came to see
him in the evening, walking all the way from Roxbury.
She "ask'd pardon if she had affronted me;" and plainly
let it be seen that she was not averse to the match, if only
she were not called upon to "put all out of her Hand and
power" and could "reserve something to bestow" on her
deceased husband's friends "that might want." But, says
Samuel, "I could not observe that she made me any offer of
any part all this while." So "she went away in the bitter
Cold, no Moon being up, to my great pain. I saluted her at
parting."[629]
Then the judge turned to Widow Tilly, whom he married
on the next Thanksgiving day (October 29, 1719), though
she pleaded her "Unworthiness of such a thing with much
Respect."[630] But the union was short-lived; for in May of
the next year "a very Extraordinary, awful Dispensation"
came to the Judge. "About midnight," he writes, "my dear
wife expired to our great astonishment, especially mine."[631]
Already by the following December he wants God to "yet
again provide such a good Wife for me, that I may be able
to say I have obtained Favour of the Lord."[632] For in the
meantime his mind has been "wandering" again toward
Catherine Winthrop. But the gentle widow is now very coy
and close at a bargain. After many visits and some interesting
love passages,[633] the judge writes, she "was Courteous
to me; but took occasion to speak pretty earnestly about my
keeping a Coach: I said 'twould cost £100. per a[=n]um: she
said twould cost but £40."[634] Clearly the issue was getting
too sharply joined; and it is not wholly surprising that the
lady was a trifle cool at her suitor's next visit.[635] Later he
asked her "when our proceedings should be made publick:
She said they were like to be no more publick than they were
already. Offer'd me no Wine that I remember." She did
not offer to help him on with his coat, nor at his request
would she send her servant Juno to light him home.[636] It is
to be feared that Catherine had not forgiven her suitor for
leaving her for Widow Dennison, and was now getting
"even." But the judge stood manfully to his arms. At the
next meeting "I told her ... I was come to enquire
whether she could find in her heart to leave that House and
Neighborhood, and go and dwell with me at the South-end;
I think she said softly, Not yet. I told her it did not ly in
my Lands to keep a coach.... Told her I had an Antipathy
against those who would pretend to give themselves;
but nothing of their Estate. I would [give] a proportion of
my Estate with my self. And I su[=p]os'd she would do so."[637]
It goes without saying that when Sewall made his next call
the lady was "not at home." After one or two more futile
efforts[638] at coming to terms the grapes began to sour. The
aged wooer somewhat spitefully closes this unlucky chapter
of his courtships with the ungallant remark that "I did not
bid her draw off her Glove as sometimes I had done. Her
dress was not so clean as sometimes it had been. Jehovah
jireh."[639] Thus Eros regained his sight.
Several other attempts prove not more successful in providing
the venerable widower with a suitable place to rest
his "weary Head in Modesty."[640] But at last, humbly confessing
himself, "aged, and feeble, and exhausted," he offers
himself as a husband to Mrs. Mary Gibbs, of Newton, who
is all too yielding in her reply.[641] For with this gentle dame
the astute wooer, erstwhile so meek, at once proceeds to drive
the sharpest bargain in the long history of his courtships.
As she had no property to leave him by will, he insists upon
the following harsh conditions: "I Rode to Newtown in the
Coach, and visited Mrs. Gibbs. Spake of the proposals I
had intimated per Mr. H. Gibbs; for her Sons to be bound
to save me harmless as to her Administration; and to pay
me £100. provided their Mother died before me: I to pay
her £50. per a[=n]um during her Life, if I left her a Widow.
She said 'twas hard, she knew not how to have her children
bound to pay that Sum; she might dye in a little time. Mr.
Cotton, whom she call'd spake to the same purpose, spake of
a Joynture. I said I was peremptory as to the indemnifying
Bond; Offer'd to take up with that alone, and allow her
forty pounds per a[=n]um."[642]
These terms, "hard" as they were and again insisted upon
with most unromantic bluntness,[643] were at length accepted by
the amiable Mary; who, surviving her kindly though grasping
spouse, was no doubt by his side, according to his wish,
to "carry it tenderly"[644] with him when he passed to his last
reckoning.
The Separatist and the Puritan, regarding marriage as
"purely a civil contractual relation," logically conceded that
"the parties may marry themselves as they may make other
contracts." But, "like all other civil institutions, this may
be regulated by municipal law. It should therefore be
sanctioned by the civil authority;" and for that reason
persons may be fined for marrying without observing the
forms prescribed by the statutes.[645] Nevertheless such legal
restraint, however wholesome and reasonable, seems to have
been resented by the more radical as an interference with
individual liberty; though doubtless the disregard of the
marriage laws was in part due to the rudeness of an early
society.
Instances of self-betrothal and self-gifta seem to have
been frequent in all the New England colonies. Thus, in
1678, Edward Wanton was fined £10 by the general court
of Plymouth for "marrying himself," and Thomas Boarman
paid £5 for the same offense. In 1684 William Gifford was
fined fifty shillings for contracting a "disorderly marriage."[646]
More interesting is the case of Edward Perry, on Cape Cod,
who appears to have been guilty of self-marriage in 1654.
For this he was fined £5; and Thomas Tupper, of Sandwich,
for neglecting to perform the ceremony, "was 'disallowed'
by the court from solemnizing marriages in future."[647]
Then "magistrate Prence, when passing by on his return
from court to Eastham, was to marry him rightly. Perry
refused to be re-married, and was fined £5 more, with the
discouraging notice that his fine would be repeated every
three months till he complied."[648]
Marriages by the primitive form of "hand-fasting" were
not unknown in Massachusetts. An intelligent French
refugee, who visited Boston two years after the revocation
of the Edict of Nantes, writes that "there are those who
practice no Formality of Marriage except joining Hands, and
so live in Common."[649] But the most celebrated instance of
self-gifta is the case of Governor Richard Bellingham, who
in 1641 entered into a private marriage with Penelope Pelham,
herself "about forming a contract with another."[650]
"Two errors more," says Winthrop, "he committed upon it.
1. That he would not have his contract published where he
dwelt, contrary to an order of court. 2. He married himself
contrary to the constant practice of the country."[651] The
governor was therefore indicted for his offense by the grand
jury; but "he declined to leave his place on the bench" over
which he presided, "in order to take a position in the dock,
and thus 'escaped both trial and punishment.'"[652] The secretary
"postponed the case amidst excitement, and it was
not again called up."[653]
In spite of the constantly increasing severity of the
penalties, clandestine marriages gave the lawmaker much
trouble.[654] This is plainly revealed by the laws, already cited,
relating to banns, consent, registration, and celebration,[655]
especially by those of Rhode Island. The act of 1647 provides
"that no contract or agreement between a Man and a
Woman to owne each other as Man and Wife, shall be
owned from henceforth threwout the Whole Colonie as a lawfull
marriage, nor their Children or Issue so coming together
to be legitimate or lawfullie begotten," but such as conform
to the statute.[656] The clause relating to the issue of irregular
marriages is noteworthy; for it is contrary to the usual tenor
of the colonial laws, which—anticipating the policy of
William III.—usually imposed severe penalties upon the
offenders without affecting the legitimacy of the children.
But even so stringent a remedy did not suffice. A new law
in 1665 enforces that of 1647, adding the penalty prescribed
for "fornication" for non-observance; but making the
important exception in favor of existing irregular marriages
"that any persons now living within the confines expressed
in our late charter, ... that are reputed to live together
as man and wife by the common observation or account of
there neighbours before this act was passed, shall not come
vnder any of the censures, fines, or penaltyes in any of the
fore premised acts or orders, or in this present [order] concearning
marriages," though "there may have been some
neglect of the due observation of the rules and directions to
that end therein contained."[657] It appears that "some persons"
had "taken advantage of the law" to render the children
of unregistered marriages illegitimate. An explanatory
statute was therefore enacted in 1698 declaring such marriages
lawful;[658] and in the subsequent legislation of this colony the
lawmaker was content to punish the parties to irregular
marriages without affecting the status of the offspring.[659]
The clergy of New England, and especially those of
Massachusetts, were much agitated over the question of the
degrees of relationship which should be prohibited in wedlock.
Marriage of first cousins, by affinity as well as by blood,
and with a deceased wife's sister was strongly opposed. That
of cousins german had been legalized by a statute of Henry
VIII. in 1540;[660] and the earliest fruit of this act was the
marriage of that monarch with Catherine Howard, first
cousin of Ann Boleyn, his former wife.[661] Within less than
two years thereafter Catherine lost her head; and Sewall,
who like the Mathers regarded such marriages as incestuous,
draws a grim moral from her fate.[662] Indeed, the Puritans,
were in sore straits, fearing lest the "English Nation,"
while rejecting the excessive strictness of the Roman church
in this regard, had gone "beyond the golden mean towards
the other Extream."[663] In their anxiety to obey the Mosaic
law they even exceeded its requirements.[664] Already in 1679
the general court, in reply to interrogation, had decided that
marriage with a deceased wife's sister was unlawful,[665] thus
taking the position which has been stubbornly maintained
ever since by the English House of Lords. Interest in the
matter seems, however, to have culminated in 1695. In that
year a meeting of the ministers of Boston, Charlestown, and
Dorchester, with Increase Mather at their head, came to the
same conclusion as the general court in 1679.[666] This led
directly to the passage of the celebrated law against incestuous
marriages of the following June,[667] by which the general
court, though not taking "in hand to determine what is the
whole breadth of the divine commandment," proceeded,
among other prohibitions, to forbid marriage with a wife's
sister or niece.[668] For violation of the law, we have already
seen, the culprit was condemned, as in the case of adultery, to
wear the "scarlet letter." This act[669] remained nominally in
force until after the Revolution; but the statute of 1785 in
which these prohibitions do not appear was adopted seemingly
without discussion.[670]
The colonial laws on this subject were not allowed to
slumber. From the records of the Connecticut court of
assistants, for instance, it appears that in May, 1694, Nathaniel
Finch is complained of "for that he hath unlawfully
married to Elizabeth Hemmeway," sister "of the said Finch
his first wife." The pleas of Finch's attorney are "esteemed
to be insufficient, and also of an offensive nature." Accordingly,
having considered all the facts of the case, the "rules
of God's word, the judgment of most able Divines, and the
Laws of this colony," the court finds the "said marriage to
be incestuous and unlawful," and therefore declares it "to
be wholly null and void;" further relegating the case to the
county court to be held at New Haven the next June, "to
lay such punishment on the said Finch for his said offence
as the nature thereof doth require."[671]
While the Massachusetts act of 1695 does not expressly
prohibit a woman from wedding her husband's brother, a
passage in Sewall's Diary shows that such unions were already
treated as unlawful. On December 25, 1691, he
writes, the "marriage of Hana Owen with her Husband's
brother, is declar'd null by the court of Assistants. She
commanded not to entertain him; enjoin'd to make a confession
at Braintrey before the Congregation on Lecture
Day, or Sabbath, pay fees of court and prison," and "to be
dismissed."[672]
Finally in this connection a word regarding the treatment
of slave marriages in New England may not be wholly
out of place. With respect to the morality of slavery and
the slave trade as viewed by the Puritan the record is perfectly
clear. He was no better and no worse than his contemporaries.
In his eyes the commerce in human chattels,
whether red, black, or white,[673] was as legitimate a business as
the handling of West India molasses; though like the
Spaniard he may sometimes have excused or extolled it as
affording a field for missionary work. "The seventeenth
century," observes Weeden, "organized the new western
countries, and created an immense opportunity for labor.
The eighteenth coolly and deliberately set Europe at the
task of depopulating whole districts of Africa, and of transporting
the captives, by a necessarily brutal, vicious, and
horrible traffic, to the new civilizations of America....
New England entered upon this long path of twisted
social development—the wanton destruction of barbaric
life in the hope of new civilized life, this perversion of the
force of the individual barbarian into an opportunity for
social mischief—with no more and no less consciousness
than prevailed elsewhere at that time. The Winthrops
and other Puritan colonists asked and received Indian
captives for slaves as freely as any partisan went for loot
or plunder."[674]
With respect to matrimonial rights nothing can be more
misleading than the self-gratulations of writers who have
treated colonial history from what Charles Francis Adams
has aptly called the "filio-pietistic" point of view.[675] Thus
in his early edition Bancroft, referring to the alleged mitigating
character of Massachusetts legislation, securing to
the slave such protection "as the Hebrew scriptures seemed
to enjoin," declares that "this brought about a total modification
of the character of negro slavery by giving to the
slave the rights of marriage and the family."[676] Palfrey goes
even farther in his zeal, solemnly assuring us that "from the
reverence entertained by the Fathers of New England for
the nuptial tie, it is safe to infer that slave husbands and
wives were never parted."[677] In like spirit statesmen, jurists,
and historians have reiterated the assertion that slavery was
not hereditary in Massachusetts. "In all her annals," says
Charles Sumner, "no person was ever born a slave" on her
soil; and if, in fact, "the issue of slaves was sometimes held
in bondage, it was never by sanction of any statute or law of
Colony or Commonwealth."[678] Similar statements are made
by Hurd, Washburn, and Belknap.[679] Justice Gray declares
that "previously to the adoption of the State Constitution
in 1780 negro slavery existed to some extent, and negroes
held as slaves might be sold, but all children of slaves were
by law free."[680] The unsupported dictum of Palfrey is
equally confident. "In fact," he says, "no person was ever
born in legal slavery in Massachusetts."[681]
Since the appearance of Moore's able monograph it is
perhaps needless to explain that the facts are against these
comfortable theories. Slavery was authorized by statute in
Massachusetts under sanction of the Mosaic law; and so the
children of slave mothers were also slaves.[682] The evils of the
institution may, indeed, have been somewhat mitigated by
the simple industrial conditions which then prevailed. The
climate and soil were ill suited to slave labor. Occasionally
there may have been a mind far enough ahead of the age to
perceive dimly the social danger lurking in the system.
Almost the only clear voice raised against it is that of
Samuel Sewall,[683] whose practice nevertheless was not always
consistent with his doctrine.[684] Mixture of race was not
favored. But not until 1705 was intermarriage between a
white person and a negro or mulatto forbidden by statute.[685]
Through Sewall's influence the prohibition was not then
extended to Indians;[686] and he succeeded in having a clause
retained in the act enjoining that "no master shall unreasonably
deny marriage to his negro with one of the same
nation."[687] A passage in his diary shows that the laws relating
to banns, as also, it is safe to infer, those regarding
celebration and registration, were applied in the case of
such unions; while at the same time we are given a pleasing
picture of the humane treatment which slaves sometimes
received from their masters. On September 26, 1700, he
records that "Mr. John Wait and Eunice his Wife, and
Mrs. Debora Thair come to Speak to me about the Marriage
of Sebastian, Negro Servt of said Wait, with Jane, Negro
Servt of said Thair. Mr. Wait desired they might be published
in order to Marriage. Mrs. Thair insisted that
Sebastian might have one day in six allow'd him for the
support of Jane, his intended wife and her children, if it
should please God to give her any. Mr. Wait now wholly
declin'd that, but freely offer'd to allow Bastian Five pounds,
in Money [=p] a[=n]um towards the Su[=p]ort of his children [=p] said
Jane (besides Sabastians cloathing and Diet). I persuaded
Jane and Mrs. Thair to agree to it, and so it was concluded;
and Mrs. Thair gave up the Note of Publication to Mr. Wait
for him to carry it to Wm Griggs, the Town Clerk, and to
Williams in order to have them published according to law."[688]
Examples of such kindly usage were doubtless not uncommon
among New England slave-owners, just as they
were often found at all times in the South. But it is vain
to apologize for a system, wicked and corrupting in itself,
on the ground of individual benevolence or of laws which
inconsistently in certain particulars seem to recognize the
spiritual and social equality of human chattels. In a community
where a black man or woman for sexual misconduct
with a member of the favored race was condemned by
statute to be sold into another province;[689] where Indian
prisoners were divided among the captors, and sold as legitimate
spoil;[690] where African fathers and mothers, bought on
their native soil for watered rum with short measure, were
shipped across the ocean in stifling death-traps,[691] to be
"knocked down" from the auction block to the highest
bidder,[692] it seems rather more than absurd to assume that
under the benign influence of Puritan religion and morality
slave wives and husbands were never parted through the
lust or greed of their owners. Nor in general was the
alleged hope of converting the "benighted heathen to enjoy
the blessings of a Gospel dispensation" more than a soothing
balm to quiet the incipient throes of a rudimentary
conscience in this regard.[693] Nay, in New England as elsewhere,
the Christianizing of the blacks was sometimes
actually discouraged, lest it should put in jeopardy the
white man's property in them. During the seventeenth and
eighteenth centuries a typical "case of conscience" arose.
Would not the baptism of a slave in effect be a dangerous
admission of his spiritual equality with the master? "Could
an intelligent being, who, through the Mediator, had participated
in the spirit of God, and by his own inward
experience had become conscious of a Supreme Being, and
of relations between that Being and humanity be rightfully
held in bondage? From New England to Carolina, the
'notion' prevailed that 'being baptized is inconsistent with
the state of slavery;' and this early apprehension proved an
obstacle to the 'conversion of these poor people.' The
sentiment was so deep and so general that South Carolina
in 1712, Maryland in 1715, Virginia repeatedly from 1667
to 1748, set forth by special enactments that baptism did
not confer freedom."[694]
Naturally the Puritan was deeply exercised by the same
scruples. He sorely dreaded lest through extending the
means of grace to his serf Christ should inadvertently be
put "in bondage." But he solved the problem in the same
way as his southern brother—at the expense of the bondman.
In Massachusetts as in Rhode Island slavery was
consecrated "without regard to the religion of the slave."[695]
Accordingly in 1696 "the ministers of Boston" submitted
to the general court "That ye wel-knowne Discouragemt
upon ye endeavours of masters to Christianize their slaves,
may be removed by a Law which may take away all pretext
to Release from just servitude, by receiving of Baptisme."
But to the credit of the court, we are told, "this proposal
was not noticed."[696] Over forty years later a different result
was reached by the clergy of Connecticut. At a meeting of
the General Association for that colony in 1738, "It was
inquired—whether the infant slaves of Christian masters
may be baptized in the right of their masters—they
solemnly promising to train them in the nurture and admonition
of the Lord: and whether it is the duty of such
masters to offer such children and thus religiously to
promise. Both questions were affirmatively answered."[697]
Thus the negro of Connecticut was admitted to the covenant
of grace without jeopardizing his owner's chattel
interest in his body.
The attitude of Massachusetts slave-owners on this
problem is revealed in Sewall's "question" from the Athenian
Oracle: "What then should hinder but these be
Baptized? If only the Covetousness of their Masters, who
for fear of losing their Bodies, will venture their Souls;
which of the two are we to esteem the greater Heathens?
Now that this is notorious Matter of Fact, that they are so
far from persuading those poor Creatures to Come to Baptism,
that they discourage them from it, and rather hinder them
as much as possible, though many of the wretches, as we
have been informed, earnestly desire it; this we believe,
none that are concern'd in the Plantations, if they are
ingenuous, will deny, but own they don't at all care to have
them Baptized. Talk to a Planter of the Soul of a Negro,
and he'll be apt to tell ye (or at least his Actions speak it
loudly) that the Body of one of them may be worth twenty
Pounds; but the Souls of an hundred of them would not
yield him one Farthing; and therefore he's not at all solicitous
about them, though the true Reason is indeed, because
of that Custom of giving them their Freedom, after turning
Christians." Whether this custom be "reasonable" the
writer doubts; for neither the "Father of the Faithful" nor
St. Paul commands masters to liberate their slaves and
Christianity does not "alter any Civil Right." In the
"mean time, if there be such a Law or Custom for their
Freedom, to encourage 'em to Christianity, be it reasonable
or otherwise, this is certain, that none can excuse those who
for that Reason should in any way hinder or discourage 'em
from being Christians; some of whose excuses are almost
too shameful to repeat, since they seem to reflect on the
Christian Religion, as if that made Men more untractable
and ungovernable, than when bred in Ignorance and Heathenism."[698]
Much of the same casuistry is manifested in dealing with
the question of slave marriages. A bondman might be
made amenable to the law of banns and celebration; but his
continued enjoyment of marital rights and family life was
absolutely precarious. As Moore suggests, the proviso of
the act of 1705 forbidding the "unreasonable denial of
marriage to negroes is very interesting. Legislation against
the arbitrary exercise and abuse of authority proves its
existence and the previous practice."[699] Besides, the adoption
of that law was prompted perhaps as much by self-interest
as by regard for morality. It was in effect a prudent police
ordinance. Masters were liable for the legal fines imposed
on their slaves for sexual offenses. It might be cheaper and
less troublesome to allow orderly wedlock. "Moreover it
is too well known," writes Sewall, "what Temptations
Masters are under, to connive at the Fornication of their
Slaves; lest they should be obliged to find them Wives, or
pay their Fines. It seems to be practically pleaded that
they might be Lawless; 'tis thought much of, that the Law
should have satisfaction for their Thefts, and other Immoralities;
by which means, Holiness to the Lord is more
rarely engraven upon this sort of servitude. It is likewise
most lamentable to think, how in taking Negroes out of
Africa, and selling of them here, That which God has
joined together, men do boldly rend asunder; Men from
their Country, Husbands from their Wives, Parents from
their Children. How horrible is the Uncleanness, Mortality,
if not Murder, that the ships are guilty of that bring great
Crouds of these miserable Men and Women. Methinks when
we are bemoaning the barbarous Usage of our Friends and
Kinsfolk in Africa: it might not be unreasonable to enquire
whether we are not culpable in forcing the Africans to
become Slaves amongst ourselves."[700]
For another reason families were in constant danger of
being separated. The breeding of slaves was not generally
regarded as convenient or profitable in New England.
According to Belknap, "negro children were considered an
incumbrance in a family; and when weaned, were given
away like puppies," and they were "publickly advertised in
the news-papers" to be so disposed of.[701]
That there was something grotesque in using the solemn
ritual of the church in the marriage of slaves was faintly
realized. In 1748 Rev. Noah Hobart "challenged the want
of flexibility in the forms of the Liturgy of the Church of
England, as tending 'to introduce irreligion and profaneness'—especially
in the use of the office of Matrimony for
marriages contracted between slaves." The use of the
phrase "with all my worldly goods I thee endow, in the
name of the Father, and of the Son, and of the Holy Ghost"
he regarded as particularly sacrilegious, although the
prayers employed by the Congregational minister at slave
weddings were equally profane.[702]
In at least one instance a sufficiently flexible special
ritual was composed which very frankly discloses the idea
of its author, and probably also that of a majority of his
brethren, as to the real character of a slave marriage.
According to Moore, it was discovered at Northampton, N. H.,
in 1868, by Mr. J. Wingate Thornton; and it was prepared
and used by Rev. Samuel Phillips, of Andover, Mass., whose
ministry there, beginning in 1710 and ending with his
death in 1771, was a prolonged and eminently distinguished
service of more than half of the eighteenth century." This
"Form of a Negro-Marriage" is a decidedly safe and practical
service from the master's point of view. The minister
says:
"You S: do now in the Presence of God, and these
Witnesses, Take R: to be your Wife; Promising that so far
as shall be consistent with ye Relation wch you now sustain,
as a Servant, you will Perform ye Part of an Husband
towards her; And in particular, you Promise, that you will
Love her: And that, as you shall have ye Opportty & Ability,
you will take a proper Care of her in Sickness and Health,
in Prosperity & Adversity: And that you will be True &
Faithfull to her, and will Cleave to her only, so long as
God, in his Provdce, shall continue your and her abode in
Such Place (or Places) as that you can conveniently come
together." Similar words are repeated to the woman; and
when each in turn has sealed this unique troth-plight, the
minister continues: "I then agreeable to your Request, and
wth ye Consent of your Masters & Mistresses, do Declare,
that you have Licence given you to be conversant and
familiar together, as Husband and Wife, so long as God
shall continue your Places of abode as aforesaid; and so
long as you shall behave your-selves as it becometh Servants
to doe: For you must, both of you, bear in mind, that you
Remain Still as really and truly as ever, your Master's
Property, and therefore it will be justly expected, both by
God and Man, that you behave and conduct your-selves, as
Obedient and faithfull Servants towards your respective
Masters & Mistresses for the Time being."[703]
Through this ingenious device, it is clear, the permanence
of the slave's nuptial bond, with all his connubial and
family rights, was made absolutely dependent upon his
owner's will.
[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.]
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]
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]
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]
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]
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]
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]
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]
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.
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]
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]
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
ye 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]
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 govermt of parents or tutors and certificate
of such oath & caution taken from the Judge or Register
of the Court."[745]
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]
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]
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]
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
wch being finished the Minister, Pastor, or Magistrate
shall say I being hereunto by Law Authorized do pronounce
you lawfull man and wife."[753]
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]
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.
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]
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.
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 24th of September 1657
between Peter Sharpe of Putuxent County in the Province
of Maryland Chirurgeon of the one pte, 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."
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
mr 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 Robt 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 formerly depending
and now to be withdrawen" Robert is to "beare
his own Charge," as well as those "on the 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]
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]
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]
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]
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 ye 11th of ye first month 1707/8,"
held "as their manner is, to Inspect into ye affairs of ye
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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.
[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).]
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]
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 13th 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."
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]
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]
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]
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]
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]
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 Honble 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]
"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
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]
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]
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]."
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]
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]
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]
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]
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.
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]
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.
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.
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]
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]
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]
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 ye Lawes and disorders
may for the future not passe unpunished, especially
in prsons of Lesser qualitys whoe if this [conduct] of
Mr. Whartons [whoe" being "in Commission" and bearing
"the office of a Justice of ye 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 "prmisses to the Judgemt. of his Honor. the
Governor. 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.
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]
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
acct 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]
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 ye
ocation." So they make their appeal to the "cheife," knowing
that a magistrate's "authority is to preserve mens persons
and Estates, but ye 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]
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.
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.
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]
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]
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."
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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.
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]
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]
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.
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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 ye unlawfull Marriage of Rd Noble, of
ye County of New Castle, Ordered that ye Justices of that
County have notice given by ye Secrtrs, 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 ye Prohibitions of ye 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 ye future, & being severely checked was dismissed."[929]
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]
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]
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]
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]
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]
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]
[Bibliographical Note XV.—The most valuable original material
for the history of divorce in Massachusetts during the period of the
first charter is afforded by the decisions of the court of assistants in
the exercise of its primary jurisdiction. These may be found in Vol. I
of the Colonial Records, to September 7, 1641; the Barlow MS. Records
of the Court of Assistants, October 28, 1641, to March 5, 1643/44; published
by Whitmore in Bibliographical Sketch of the Laws of the Mass.
Colony (Boston, 1890); and, after an interval for which the record is
missing, in Noble's Records of the Court of Assistants, March 3, 1673, to
March 23, 1691/92 (Boston, 1901). A number of cases have been found
in the MSS. Early Court Files of Suffolk, supplemented by the MSS.
Records of the County Court of Suffolk, and the MSS. Records of the
County Court of Middlesex. The Massachusetts Colonial Records are,
of course, very important. There is an instructive passage in the first
volume of Hutchinson's History of Mass. (Salem, 1795); and much aid
has been given by Whitmore in the work already cited; Newhall,
Ye Great and General Court (Lynn, 1897); Goodwin, Pilgrim Republic
(Boston, 1888); and Cowley, Our Divorce Courts (Lowell, 1880).
The last-named work in part had already appeared in the Albany
Law Journal, XX (Albany, 1879). It may be read in connection
with the same writer's Famous Divorces of All Ages (Lowell, 1878);
and his Browne's Divorce and its Consequences (Lowell, 1877). For
the period of the second charter the divorce record is missing until
1739. Between that date and 1760 the Suffolk Files already mentioned
yield eleven cases. From 1760 to 1786 there is a continuous and
apparently complete record in a MS. "Divorce" book in the office
of the clerk of the supreme judicial court for Suffolk county.
An interesting petition may be found in the eighth volume of the
Collections of the New Hampshire Historical Society; and in general
for all the New England colonies the records and the various collections
of laws mentioned in Bibliographical Note XII have been used.
Durfee, Gleanings from the Judicial History of Rhode Island
(Providence, 1883), and Arnold, History of the State of Rhode Island
(New York, 1874), are also helpful. Trumbull, Appeal to the Public
(New Haven, 1788), gives some statistics in connection with the alleged
laxity of Connecticut divorce laws; but historically his statements are
misleading and very inaccurate.
In the southern colonies the English divorce laws were in abeyance,
except in case of separate alimony. The meager materials existing
for a "negative" sketch are therefore derived almost wholly from
the judicial decisions. Among these—cited more fully in the footnotes—the
most instructive are: for Virginia, Fulcher v. Fulcher, in
1 Palmer's Calendar of Va. State Papers (Richmond, 1875), 29; Purcell
v. Purcell, 4 Hening and Munford's Reports (Richmond, 1854), 506; and
Almond v. Almond, 4 Randolph's Reports, 662, or 15 American Decisions,
781. For Maryland, Galwith v. Galwith, 4 Harris and McHenry's Md.
Reports (Annapolis, 1818), 477; Farnshill v. Murray, 1 Bland's Reports,
479, or 18 American Decisions, 344; Helms v. Franciscus, 2 Bland's
Reports, 544, or 20 American Decisions, 402; Wallingsford v. Wallingsford,
6 Harris and Johnson's Reports, 485; Macnamara's case, Scott's
case, Govane's case, all in 2 Bland's Reports, 566, 568, 570; Crane v.
Meginnis, 1 Gill and Johnson's Ch. Reports, 468, or 19 American
Decisions, 237; Wright v. Wright's Lessee, 2 Md. Reports, 429, or 56
American Decisions, 723; and Jamison v. Jamison, 4 Md. Ch. Reports,
289, 295. For Georgia see Finch v. Finch, 14 Georgia Reports, 362; and
especially Head v. Head, 2 Kelly's Reports, 191.
The New York Colonial MSS. preserved in the State Library at
Albany have yielded several documents of importance for the chapter.
Cadwallader Colden, the last governor of the province, has an instructive
passage in his Letters on Smith's History of New York: Collections
New York Historical Society, Fund Series, I, 1868, showing that in the
early period divorces were granted by the royal governors. Various
cases and illustrations have been gleaned from Gerard, The Old Stadt
Huys; Valentine, Manual of the Corporation; Records of New
Amsterdam; Munsell, Annals of Albany; Duke of Yorke's Book of
Laws; New Jersey Archives; O'Callaghan, Ordinances; and especially
O'Callaghan and Fernow, Documents—all of which have been described
in Bibliographical Note XIV. A number of extracts from old records
have been borrowed from Alice Morse Earle's excellent book Colonial
Days in Old New York (New York, 1896); and among the decisions
cited, Chancellor Kent's opinion in Williamson v. Williamson, Johnson's
Chancery Reports, 488, 491; and that of Chancellor Walworth in
Wood v. Wood, 2 Paige's Chancery Reports, 108, 111, bearing on the
validity of the common law in the province, are of special interest.
The materials for Pennsylvania are furnished by Linn, Charter and
Laws; the Colonial Records of Pennsylvania; Bioren, Laws (Philadelphia,
1803); and Gordon, History of Pennsylvania (Philadelphia,
1829). Lastly, for the entire group of colonies, Kent, Commentaries
(Boston, 1884); Story, Commentaries (Boston, 1891); and particularly
Bishop, Marriage, Divorce, and Separation (Chicago, 1891), have been
of service.]
Under normal conditions civil divorce is the counterpart
of civil marriage. Naturally, in the New England colonies
the same influences which determined the rise of civil marriage
secured also the adoption of a liberal policy respecting
divorce. In each case there was a reaction against the
forms and abuses of the ancient canonical and ecclesiastical
systems; while at the same time the innovations were in a
measure sustained by appeal to the Levitical code. Everywhere
as a result the ideas of the Reformation Fathers—the
general trend of Protestantism—found effective expression
in statute and judicial decree. For in most respects throughout
New England the broad modern doctrines of the Reformatio
Legum of Edward VI.'s commission, though scarcely
even now completely victorious in the mother-land, were
from the outset put in practice by both Puritan and Separatist.
The American legal conception of divorce as pertaining,
not to the criminal, but exclusively to the civil jurisdiction,
had its birth in the seventeenth century.[947] In all the New
England colonies the canonical decree of separation from
bed and board was practically, though not entirely, abandoned.
On the other hand, a dissolution of the bond of
matrimony was freely granted for various causes, such as
desertion, cruelty, or breach of the marriage vow; and
usually, though not always, the husband and wife were dealt
with as equals before the law. These general principles
will be illustrated, somewhat in detail, by reference to the
history of the particular provinces.
a) Massachusetts.—For the Bay Colony we have a concise
summary from the pen of Governor Hutchinson, who
presided in the divorce court for many years. "In matters
of divorce," he says, "they left the rules of the canon law
out of the question; with respect to some of them, prudently
enough. I never heard of a separation, under the first
charter, a mensa et thoro. Where it is practised, the innocent
party often suffers more than the guilty. In general
what would have been cause for such a separation in the
spiritual courts, was sufficient, with them, for a divorce a
vinculo. Female adultery was never doubted to have been
sufficient cause; but male adultery, after some debate and
consultation with the elders, was judged not sufficient.
Desertion a year or two, when there was evidence of a determined
design not to return, was always good cause; so was
cruel usage of the husband. Consanguinity they settled in
the same degrees as it is settled in England and in the
levitical laws."[948]
By the code of 1660 the court of assistants, sitting twice
a year, is given authority to hear and determine "all causes
of divorce."[949] This is the only extant law on the subject for
the period of the first charter. It is, however, almost certain
that the assistants in the "quarter courts," or other
tribunals, possessed such jurisdiction from the beginning.
It is probably intended to be covered by the authority conferred
on the quarter courts in 1639;[950] and the evidence of
the Halsall case shows that as early as 1656 "the power of
divorce doth properly belong" to the court of assistants.
From the same case it has been inferred that the code of
1649 may have contained a like provision.[951]
Neither the right of appeal nor the causes or kinds of
divorce are defined by the statutes. Information regarding
these important points must be sought in the cases themselves.
As a result of the failure of positive legislation,
there is a lack of precision and harmony in the judicial
practice of the entire colonial and provincial eras. For the
period 1639-92, as shown in Table I, forty actions for
divorce or annulment of marriage have been discovered.
Thirty-one of these are mentioned by Newhall, Whitmore,
Goodwin, and Cowley, not less than eighteen being found
by the latter in the assistants' records for the years 1673-92,
since edited by Mr. Noble.[952] The remaining nine cases are
here added from further search in the court records and the
Suffolk Files. The records of the court of assistants from
1644 to 1673 are missing; else doubtless the list might be
considerably enlarged.
The first case thus far brought to light is that of James
Luxford, elsewhere considered. On December 3, 1639, his
bigamous marriage was declared void by the "Court of
Assistants or Quarter Court;" and very righteously "all
that he hath" as a kind of alimony was given to the woman
last married and to her children.[953] A similar instance of
having two wives was dealt with in November, 1644.[954]
TABLE I
Cases of Divorce and Annulment of Marriage in Massachusetts, 1639-92
| No. | Where Found[955] | Date | Case | Cause | Court | Decree |
| 1 | C.R., I, 283 | Dec. 3. | Second wife v. | Another | Assistants | Marriage |
| | | 1639 | Jas. Luxford | wife | | void |
| 2 | W., 42 | Mar. 5, | Anne v. | Desertion, | Assistants | Mar. |
| | | 1643/4 | Dennis Clarke | adultery | | dissolved |
| 3 | W., 42; | Nov. 13, | Eliz. Frier v. | Another | Assistants | Marriage |
| | C.R., II, 86 | 1644 | J. Richardson | wife | blh | void |
| 4 | C.R., IV, i, 32 | Oct. 16, | Wm. v. | Deser., | General | Mar. |
| | | 1650 | Eleanor Palmer | remarriage | court | dissolved |
| 5 | C.R., III, 277, | May 26, | Dorothy v. | Long | General | Leave to |
| | IV, i, 89 | 27,1652 | Wm. Pester | absence | court | marry |
| 6 | C.R., III, 350, | May 14, | Dorcas v. | Desertion, | General | Mar. |
| | IV, i, 190 | 1654 | Jno. Hall | adultery? | court | dissolved |
| 7 | Suff. Files, 257 | Before | Sam. and Apphia | None given | Assistants | See text |
| | | 1656 | Freeman | | | |
| 8 | Suff. Files, 257 | 1655-59 | Joan v. | Adultery | Assists. to | Mar. |
| | C.R., IV, i, | | Geo. Halsall | | general ct. | dissolved; |
| | 272, 380, 401 | | | | | reversed on ap. |
| 9 | C.R., I, 85, | June 9, | Petition of Wm. | None given | Co. ct. on | Denied |
| | IV, i, 259, 269 | 1656 | Clements | | ref. of g. ct. | |
| 10 | C.R., IV, i, 282 | Oct. 14, | Petition of | Deser., | Co. ct. on | None |
| | | 1656 | Mary Batchiler | remarriage | ref. of g. ct. | appears |
| 11 | C.R., IV, ii, 8 | May 22, | Rachel v. | None given | General | Mar. |
| | | 1661 | Jos. Langton | | court | dissolved |
| 12 | C.R. IV, ii, 91 | Oct. 21, | Mary v. | Deficiency | General | Denied |
| | | 1663 | E. White | | court | |
| 13 | Suff. Files, 651 | Sept. 9, | Petition of | Deser., | Assistants | Mar. |
| | | 1664 | Sarah Helwis | remarriage | | dissolved |
| 14 | Suff. Files, 913 | Jan. 28, | Christ. and | Adult., | Assists. | None |
| | | 1668/9 | Eliz. Lawson | cruelty of h.; | from co. ct. | appears |
| | | | | bad cond. of wife | | |
| 15 | Plym. Rec., | Aug. 3, | James v. | Desertion, | General | Mar. |
| | v, 33 | 1670 | Eliz. Skiffe | adultery | court | dissolved |
| 16 | C.R. IV, | Oct., | Eliz. v. | Desertion, | General | Mar. |
| | ii, 465 | 1670 | Henry Stevens | adultery? | court | dissolved |
| 17 | Suff. Files, | Oct., | Kath. v. | Adultery, | Assistants | Mar. |
| | 1148; N., 32 | 1672 | Ed. Nailer | cruelty | | dissolved |
| 18 | Suff. Files, | Mch. 4, | Mary v. | Deser., | Assistants | Mar. |
| | 1360; N., 30 | 1674/5 | Wm. Sanders | remarriage | | dissolved |
| 19 | Suff. Files, | 1673-77 | Hugh and | Disease | Assistants | Sep. b.b.? |
| | 1644; N., 91 | | Mary Drury | and imp. of h. | | |
| 20 | Rec. Suff. co. | Before | Philip and | See text | See text | Mar. |
| | ct., 506 | 1678 | Mary Wharton | | | dissolved |
| 21 | Suff. Files, | Sept. 9, | Hugh v. | Another | Assists.; | Denied on |
| | 1741; C.R., V, | 1678 | Dorcas March | husband | app. to g. ct. | app. |
| | 205; N., 127. | | | | | |
| 22 | C.R., V, 188 | May 9, | Mary v. | Long | General | Leave to |
| | | 1678 | Henry Maddox | absence | court | marry |
| 23 | N., 127 | 1678 | Hope v. | Desertion, | Assistants | Mar. |
| | | | Sam. Ambrose | adultery, failure | | dissolved |
| | | | | to provide | | |
| 24 | N., 138 | 1678 | Rebeckah v. | None given | Assistants | Mar. |
| | | | Rich. Cooly | | | dissolved |
| 25 | Suff. Files, | Oct. 15, | Mary v. | None given | General | Mar. |
| | 1807; C.R., V, | 1679 | Aug. Lyndon | | court | dissolved |
| | 248, 249 | | | | | |
| 26 | N., 144 | 1679 | Mary v. | Deser., | Assistants | Mar. |
| | | | Job Bishop | remarriage | | dissolved |
| 27 | N., 147 | 1679 | Mary v. | Assistants | | |
| | | | Jos. White | | | |
| 28 | N., 168 | 1680 | Sus. v. | Deser., | Assistants | Mar. |
| | | | Ed. Goodwin | fail. to prov. | | dissolved |
| 29 | N., 197 | 1681 | Sam. v. | Adultery, | Assistants | Mar. |
| | | | Mary Holton | desertion | | dissolved |
| 30 | N., 200 | 1681 | Dorcas v. | Deser., | Assistants | Mar. |
| | | | Christ. Smith | fail. to prov. | | dissolved |
| 31 | N., 208 | 1681 | Rachel v. | | Assistants | Mar. |
| | | | Lawrence Clenton | | | dissolved |
| 32 | N., 227 | 1682 | Eliz. v. | Bigamy | Assistants | Mar. |
| | | | Robt. Street | | | dissolved |
| 33 | N., 229 | 1683 | Petition of | | Assistants | Denied |
| | | | Ann Perry | | Assistants | Denied |
| 34 | N., 240 | 1683 | Eliz. v. | Incest, | Assistants | Mar. |
| | | | Nich. Maning | desertion | | dissolved |
| 35 | N., 256, 258 | 1684 | Sarah v. | | Assistants | Mar. |
| | | | Thos. Cooper | | | dissolved |
| 36 | Suff. Files, 2347 | Sep. 17, 1685 | Petition of | Adultery | Assistants | Mar. |
| | | | Thos. Winsor | | | dissolved |
| 37 | N., 326 | 1690 | Phillip v. | Deser., | Assistants | Mar. |
| | | | Hannah Goss | remarriage | | dissolved |
| 38 | N., 242 | 1690-91 | Mary v. | Adultery, | Assistants | |
| | | | Sam. Stebbins | desertion | | |
| 39 | N., 361 | 1691 | Hannah and | Affinity | Assistants | Marriage |
| | | | Josiah Owen | (bro's wife) | | void |
| 40 | N., 342 | 1690 | Sam. and | Affinity | Assistants | Marriage |
| | | | Reb. Newton | (uncle's wid.) | void | |
Earlier in the same year "Anne Clarke" was released from
her husband Dennis for desertion, "refusing to accompany
with hir," and for living in adultery with another woman.[956]
The case of Joan and George Halsall, 1655-59, is especially
enlightening regarding the early law and procedure in
divorce suits. Joan's original petition was presented to the
general court, by which, as already noted, the matter was
referred to the assistants for "final determination." In a
later petition to the last-named tribunal the injured wife
complains not only of her husband's "frequent abusing
himself with Hester Lug," but "also of his wicked, constant
& unsufferable expense" in "mulled sack and otherwise"
with another woman of equally bad reputation,
humbly asking that she "may be dismissed from her intolerable
burden—an uncleane yoake-fellow."[957] The decree
of the court is missing, but elsewhere we learn that her
prayer was granted.[958] The fact is noteworthy; for seemingly
this marriage was dissolved solely for the man's adultery.[959]
If so, down to 1776, as will later appear, it is the only
known clear exception to the rule mentioned by Governor
Hutchinson. The case was, however, not yet ended. Halsall
appealed to the general court; and so, on November 12,
1659, after the decree of the assistants had been in force
for three years, it was declared void and George was allowed
to "have and enjoy the said Joan Halsall, his wife, again."[960]
Jurisdiction on appeal thus belonged to the general
court. This is further shown by the peculir case of Hugh
and Dorcas March. In 1678, for "ye peace & satisfaction"
of his conscience, Hugh asked the court of assistants to
decide whether he might legally retain Dorcas as his wife,
alleging that her former husband was living and hinting
that a divorce from him had never been secured. With
much parade of law and logic, in a long and vague petition,
probably drafted by his attorney, he betrays far more
anxiety to get rid of his spouse than to quiet the throes of
an outraged conscience. The secret of this is clearly disclosed
by Dorcas in the counter-petition, written by her own
hand, and proving her to be a better lawyer than her husband's
counsel. It seems she had been "for some yeares ye
wife of Benoni Blackleach," with whom she had formerly
lived in Connecticut. About nine years before the present
action Blackleach "was taken in a crime worthy of death by
ye Law," but he escaped from his captors. Six months
thereafter he sent her a letter saying he dared not call her
his wife, and subscribing himself her "friend not husband."
Later, not knowing for six years whether he was living or
dead, Dorcas came to her friends in Massachusetts, bringing
with her, on the advice of "ye honored Gouernor Winthrop,"
the "testimonys" sworn against her guilty consort. These,
together with a petition for the determination of her status,
she laid before "ye honord Court in Boston," Governor Winthrop
being present when the case was "agitated." This
tribunal adjudged her a "free woman," as "some of ye
honored Magistrates did tell" her.[961] Presently she was
solicited in marriage by March, he giving her an "Ingagement
vnder his hand of one hundred pounds of ye best of
his estate," promising "yt he would remove his children
from him yt they might not make any disturbance between"
them. Then they were "published," joined in wedlock
"by ye honord Deputy Governor," and thereafter "Lived
comfortably." Next we reach the heart of the business.
Hugh's children "liveing in ye familie" did "shamefully
slight" her, purloining from her box the said "writing" of
a hundred pounds; and their father disowned her as his
wife. This conduct, she suggests, is due to a desire to
"please his children" rather than to the scruples of a tender
conscience. The magistrates were not moved by her plea.
According to the record, "It was put ... whither Hugh
March & said Dorcas might still lawfully live as man &
wife;" and "the Court Resolved it in the Negative."[962] With
this decree Hugh was not content. So on October 2, 1678,
he prays the general court "to put a full Determination to
the case." After a fortnight that body responded by overruling
the lower court's decision, and declaring that the
"sajd March ought to take the sajd Dorcas & reteyne hir
as a wife, and to obserue & fullfill the marriage covenant
according to his Engagement."[963]
In 1668 a petition to the county court of Suffolk for a
"bill of divorce" was referred to the assistants, because it
"was not proper to the cognizance" of the former body.[964]
On the other hand, in the exercise of its superior authority
a case might be sent to the lower court with power to render
a final decree. Thus in May, 1656, was so referred "unto
County Court of Charlestown" the petition of William
Clements of Watertown, "craving a divorce from his wife
who for several years hath refused marriage fellowship with
him."[965] The lower court proved conservative. Not only was
a divorce denied, but the couple were commanded to "own
each other according to their marriage covenant," on pain
of being "severely punished" for refusal.[966]
The general court was at once the legislature and the
supreme judicial tribunal of the colony. In relegating the
trial of divorce suits to the court of assistants it by no
means surrendered its right to exercise the primary jurisdiction.
A number of cases make it almost certain that it
entertained and decided such cases in the first instance.
William Palmer was so divorced in 1650.[967] Two years later
Dorothy Pester, having waited "wth patience tenn yeeres for
the retourne of her husband" William, prays "that she
might not still be held in such bondage." Whereupon the
court mercifully granted her "libertje to marry when God
by his providence shall afoord her an Oppertunitje."[968] In the
same way in 1654 Dorcas Hall was released on account
of the desertion and other misconduct of her spouse.[969]
"Rachel Langton, or Verney," was set "free from her late
husband, Joseph," in 1661, no cause being assigned.[970] In
1663 the petition of Margaret Bennet in behalf of her
daughter Mary White was denied.[971] A decree was granted
in a peculiar form in 1670. In answer to the petition of
Elizabeth Stevens, whose husband had deserted her and
been guilty of "familiarity" with another woman, the
"Court judgeth it meete to declare, that the petitioners
marrying again another man shall not be indangered
thereby as a transgression of our lawes."[972] The petition of
Mary Maddox in 1678 alleges that her husband Henry had
been absent unheard of for "a thirteen yeares." She was
accordingly freed from the conjugal bond and put "at
liberty to dispose of herself as she shall see meete."[973] Very
generous alimony is sometimes allowed the injured woman.
On October 15, 1679, because Augustine Lyndon "hath in
so many Particulars Broken Covenant," his wife Mary is
granted a full divorce, besides being awarded two-thirds of
her husband's lands and the "small matter that now Remaineth
in Deacon Allen's hands" for the use of herself
and children, "till the County Court shall take further
Order." The next day, on a second petition, additional
property is decreed to the "late wife of Augustine Lyndon
now Mary Sanderson," showing apparently that she was
permitted to resume her maiden name.[974] The eight[975] divorces
just enumerated are all granted by the general court on
petitions precisely similar to those regarding other matters
dealt with by that body in the first instance. To all intents
and purposes they are "legislative" divorces; as much so,
in fact, as are those so often sanctioned by the state legislatures
during the present century.
The remaining cases mentioned in the table are for the
most part very simple and require but little comment here.
Two are only known from incidental notice in other records.[976]
Four are contained in the Suffolk Files.[977] In one of these
the divorced husband, who had broken the marriage vow
and been guilty of "Inhuman Carriage & Satanic Cruelty"
toward his wife and children, was banished ten miles from
Boston; and later, when he was permitted to visit that town
on business, he was required to give bond "to be on good
behavior towards his late wife."[978] It is significant that
during the seventeenth century not a single clear case of
divorce from bed and board has been discovered in any of
the Massachusetts records.[979]
During the period of the second charter divorce controversies
and all matrimonial questions are to be "heard and
determined by the governour and council,"[980] whose decrees
may be executed by arresting and committing the "body" of
the person disregarding them.[981] By a law of 1641 it had
already been provided that the divorced wife, if the innocent
party, should retain her right of dower in one-third of the
husband's real property for life.[982] A later act makes provision
for alimony. The "superior court of judicature" is empowered
in case of divorce or nullity to assign the woman
"such reasonable part of the estate of her late husband as in
their discretion the circumstances of the estate may admit,
not exceeding one-third part thereof."[983] As in the earlier
period, the causes and kinds of divorce are not determined
by legislation; but an act of 1695 declares that the penalty
for "polygamy"—at this time death—shall not apply to
those who marry when the husband or wife has been absent
wilfully or unheard of "by the space of seven years together."[984]
Three years later the term of absence is shortened, the law
taking the form it sometimes has in the other colonies. It
is provided that "if any married person, man or woman, has
lately or shall hereafter go to sea in a ship or other vessel
bound from one port to another where the passage is usually
made in three months' time, and such ship or other vessel
has not been or shall not be heard of within the space of
three full years ... , or shall only be heard of under such
circumstances as may rather confirm the opinion, commonly
received, of the whole company's being utterly lost, in every
such case the matter being laid before the governour and
council, ... the man or woman whose relation is in this
manner parted from him or her may be esteemed single and
unmarried; and upon such declaration thereof, and license
obtained from that board, may lawfully marry again."[985]
After 1692 the legislature does not seem to have interfered
in divorce suits either on appeal or in the first instance.
In a few cases the county court of general sessions of the
peace is found granting separate maintenance. Thus in
1710/11, on petition of Elizabeth Goddard, two men are
appointed to examine certain accounts of her husband John,
and to "take into their hands for the use of the Petitioner
what shall appear to be due to him."[986] In 1725 Dorothy,
"the wife of John Jackson of Boston Starchmaker," asks for
separate maintenance, alleging that her husband had utterly
refused to provide for her support, and that she "would run
the hazzard of her life in case she should attempt to Enter
into his house." The court orders Jackson to take his wife
home, support her according to his ability, "and keep his
Majesty's Peace." On refusal, he is required to enter into
recognizance in the sum of fifty pounds to make Dorothy a
weekly allowance of eight shillings.[987]
TABLE II
Divorce Cases Before the Governor and Council of Massachusetts, 1739-60
(Found in MSS. Files of Suffolk County, Vol. DCCXCIII)
| No. | No. of File | Date | Case | Cause | Decree | Hus. Occupation | Years Mar. |
| 1 | .29726 | 27-12-38 | Gill v. Mary Belchar | Coer. to mar. | | Yeoman | |
| 2 | .29727 | 24- 6-40 | Jesse v. Grace Turner | Incapacity | M. void | Farmer | 5 |
| 3 | .29728 | 27- 4-44 | Eliz. v. Jos. Bredeen | Incapacity | | Carp't'r | 11 |
| 4 | .29729 | 5-12-52 | G. v. M. Rainer [Raymond] | Adultery | M. diss. | Husb'n | |
| 5 | .29730 | 13- 6-51 | Eliz. v. Ezekiel Eldridge | Bigamy | M. void | | 1 |
| 6 | .29730 | 26-12-52 | Susanna v. Ezek. Eldridge | Deser., remar. | M. diss. | | 8 |
| 7 | .29731 | 20- 2-53 | Ben. v. Jemima Green | Adult., bast. | M. diss. | | |
| 8 | .29732 | 9- 4-54 | Petition of Hannah Wood | 5 yrs. absence | Lv. tom. | Mariner | |
| 9 | .29733a | 1-11-54 | Mary v. Wm. Clapham | Adult., bast. | Sep. b.b. | Gent. | |
| 10 | .29733b | -12-54 | Mary v. Geo. Arthur | Cr'l., was. est. | Sep. b.b. | Gent. | 13 |
| 11 | .29734 | - -57 | Dan v. May McCarthy | Adultery | Mariner | | |
The history of divorce legislation is a complete blank for
nearly half a century under the provincial charter. Between
1692 and 1739 the record of the governor and council in
such suits is entirely missing. For the next twenty-one
years, 1739-60, eleven cases have been gathered from the
court files (Table II); while during the following twenty-six
years, 1760-86, a continuous and apparently complete record,
showing ninety-six cases, is contained in a manuscript volume
preserved in the office of the clerk of the supreme judicial
court for Suffolk county (Table III).
TABLE III
Divorce Cases Before the Governor and Council, or the Council, of Massachusetts, 1760-86
(From MS. Book of "Divorces" in Office of Clerk of Supreme Judicial Court, Suffolk County)
| No. | Page | Date of Decree | Case | Cause | Decree | Husband's Occupation | Years Married |
| | | | | Charge[988] | Specifications | | | |
| 1 | 1 | 22- 4-60 | Wm. v. Eleanor Arbuthnot | | Adultery, elopement | Mar. dissolved | Soldier [officer] | 3 |
| 2 | 2 | 9- 6-60 | Henrietta v. Hugh Cane | | Bigamy, desertion, cruelty | Deferred | | |
| 3 | 4 | 10- 6-60 | Jane v. Joshua Eustis | | Adultery, desertion | Mar. dissolved | | ¾ |
| 4 | 5 | 5- 6-60 | Petition of Eunice Coffin | | Five years'absence | Leave to marry | Mariner | |
| 5 | 6 | 8-10-60 | Mary v. Rich. Hunt | | Cruelty | Accommodated | Truckman | 12 |
| 5a | 7 | 14- 2-61 | Mary v. Rich. Hunt | | Cruelty, failure to provide | Separate b. b.[988] | | |
| 6 | 11 | 11- 3-61 | Stephen v. Tabitha Lufkin | | Adultery, wasting estate | Mar. dissolved[988] | Mariner | 6 |
| 7 | 15 | 21- 4-62 | Petition of Ruth Woodberry | | Four years' absence | Leave to marry | Mariner | |
| 8 | 16 | 29- 7-62 | Wm. v. Hannah Davidson | | Bigamy | Marriage void | Gardener | 4 |
| 9 | 18 | 14- 2-63 | Ed. v. Rebecca Holman | | Adultery | Mar. dissolved[988] | Husbandman | 8 |
| 10 | 21 | 13- 7-63 | James v. Mary Torrey | | Adultery, elopement | Mar. dissolved[988] | | 8 |
| 11 | 24 | 15- 2-64 | Eliz. v. Mark Keith | | Cruelty, refuses bed | Separate b. b. | | 2 |
| 12 | 27 | 7-11-64 | Elias v. Bethia Parmenter | | Adultery, bastard | Mar. dissolved[988] | Soldier [captive] | 9 |
| 13 | 29 | 10- 4-65 | Ben. v. Lydia Ingersoll | | Adultery | Mar. dissolved[988] | Mariner | |
| 14 | 32 | 20- 6-65 | Margaret v. Fred Knodle | | Cruelty | Dismissed | Yeoman | |
| 15 | 33 | 14- 8-65 | Rachel v. John Wormley | | Bigamy | Marriage void[988] | | 8 |
| 16 | 35 | 24- 9-66 | Russell v. Mary Knight | | Adultery | Mar. dissolved | Cooper | 14 |
| 17 | 37 | 6- 5-67 | Thos. v. Abigail Hammet | | Adultery | Mar. dissolved | Yeoman | 17 |
| 18 | 40 | 16-12-67 | Mary v. Jno. Fairservice | | Cruelty, adult., att. to poison | Separate b. b. | Trader | 13 |
| 19 | 44 | 5- 2-68 | Ann v. Cornelius Vansise | | Desertion, failure to provide | Separate b. b. | | |
| 20 | 45 | 15- 6-68 | Jas. v. Mary Dougherty | | Adultery | Mar. dissolved[988] | Trader | 11 |
| 21 | 48 | 14- 9-68 | Lucy v. Scipio Purnan | | Cruel., sells wife, fail. to prov. | Separate b. b. | Truckman | 7 |
| 22 | 51 | 17- 4-70 | Jno. v. Anna Bragg | Adultery | Adultery | Mar. dissolved[988] | Cordwainer | 17 |
| 23 | 54 | 16-7-70 | Wm. v. Susanna Chambers | | Adultery | Mar. dissolved[988] | Mariner | 15 |
| 24 | 57 | 18-10-70 | Sam. v. Sarah Lefebure | | Bigamy | Marriage void[988] | Mariner | 1 |
| 25 | 59 | 9- 5-71 | Mary v. Henry Bates | | Bigamy, desertion | Marriage void[988] | | 6 |
| 26 | 62 | 19- 9-71 | Mehetable v. Josh. Nicholson | | Bigamy | Marriage void[988] | Mariner[?] | 2 |
| 27 | 64 | 23-10-71 | Jno. v. Jane Crosley | | Adultery | Mar. dissolved[988] | Ropemaker | 6 |
| 28 | 66 | 28-10-71 | Cadwell v. Charlotte Ford | | Adultery, drunkenness | Mar. dissolved | Husbandman | 3 |
| 29 | 68 | 17-10-71 | Abagail v. Jos. Bradstreet | | Desertion, sequest. fruits of wife's estate | Separate b. b. | Physician | 1½ |
| 30 | 70 | 10-12-72 | Jas. v. Hannah Richardson | | Adul., threats to life and pr'ty | Mar. dissolved | Esquire | 20 |
| 31 | 73 | 3- 2-73 | Jos. v. Eunice Price | | Adultery, elopement, bastard | Mar. dissolved[988] | Yeoman | 7 |
| 32 | 75 | 4- 3-78 | Sarah v. Enoch Kingsley | | Desertion, remarriage | Mar. dissolved[988] | | 13 |
| 33 | 78 | 2- 3-73 | Sarah v. Wm. Gould | | Cruelty, adult., ven. disease | Mar. dissolved[988] | Merchant | 13 |
| 34 | 80 | 4-11-73 | Martha v. Adam Air | | Cruelty, adult., fail. to prov. | Mar. dissolved | Turner | 4 |
| 35 | 83 | 15- 6-74 | Martha v. Wm. Jones | | Desertion, remarriage | Mar. dissolved[988] | Tailor | 12 |
| 36 | 85 | 15- 6-74 | Abigail v. John Pell | | Adult., ven. dis., fail. to prov. | Mar. dissolved | Gentleman | 10 |
| 37 | 87 | 21-11-76 | Asaph v. Naomi Leonard | Adultery | Adultery, elopement | Mar. dissolved[988] | | 28 |
| 38 | 90 | ?-12-76 | J. C. v. Mary Lewis | Adultery | Adultery | Mar. dissolved[988] | | |
| 39 | 92 | 27- 5-77 | Isaiah v. Mary Thomas | Adultery | Adultery | Mar. dissolved | Printer | 7 |
| 40 | 96 | 5- 9-77 | Rosanna v. Wm. Scott | Adultery | Adultery | Mar. dissolved[988] | | 11 |
| 41 | 101 | 30- 1-78 | Joshua v. Sarah Jay | Adultery | Adultery | Mar. dissolved[988] | Innholder | 19 |
| 42 | 104 | 14- 7-78 | Wm. v. Sarah Sturgis | Adultery | Adultery | Mar. dissolved | Mariner | |
| 43 | 107 | 15-10-78 | Jas. v. Hannah Thompson | Adultery | Adultery, squandered estate | Mar. dissolved[988] | Mariner | 2 |
| 44 | 110 | 25- 2-79 | Eliz. v. Samuel Bemis | Adultery | Adult., cruelty, fail. to prov. | Mar. dissolved[988] | Yeoman | 3 |
| 45 | 113 | 30-12-79 | Ed. v. Isabella Dawes | Adultery | Adultery, elopement | Mar. dissolved[988] | Peruke maker | 9 |
| 46 | 117 | 28- 2-80 | Rose v. Timothy Corles | Adultery | Adultery, failure to provide | Mar. dissolved[988] | Yeoman | 9 |
| 47 | 120 | 20- 2-80 | Deborah v. Ashael Owen | Adultery | Ad., des., remar., fail. to prov. | Mar. dissolved[988] | | 28 |
| 48 | 122 | 19- 9-80 | Chloe v. Luke Welch | Adultery | Adult., deser., fail. to prov. | Mar. dissolved[988] | Laborer [soldier] | 10 |
| 49 | 126 | 21- 9-80 | Alice v. Wm. Gray | Adultery | Adultery, failure to provide | Mar. dissolved[988] | | 10 |
| 50 | 128 144 | 21- 9-80 | Sarah v. Valentine Wheeler | Adultery | Adultery, desertion | Mar. dissolved[988] | | 34 |
| 51 | 131 | 6-10-80 | Mary v. Jno. Marshall | Adultery | Adultery, desertion | Mar. dissolved[988] | | 26 |
| 52 | 134 | 22-12-80 | Rebecca v. Jacob Dunnell | Adultery | Adultery, desertion, bastard | Mar. dissolved[988] | Mariner | 7 |
| 53 | 137 | 24- 1-81 | Geo. v. Phebe Shearman | Incapacity | Incapacity | Mar. dissolved[988] | | |
| 54 | 140 | 25- 1-81 | Eliz. v. Samuel Bemis | Adultery | Cruelty, ven. dis., adult. | | Husbandman | 1½ |
| 55 | 145 | 26- 5-81 | Mary v. Geo. Lobb | Cruelty | Cruelty, failure to provide | Separate b. b. | Mariner | 2 |
| 56 | 149 | 29- 9-81 | Amzi v. Jerusha Doolittle | Adultery | Adultery, elopement | Mar. dissolved | | |
| 57 | 150 | 29- 2-81 | Belah v. Amos Marsh | Adultery | Adultery, desertion, | Mar. dissolved | Husbandman | |
| 58 | 153 | 29-11-81 | Abigail v. Jno. Daniels | Adultery | Cruelty, adult., wasted estate | Mar. dissolved | | 31 |
| 59 | 156 | 3- 5-82 | J. P. v. Eliz. Barrere | Adultery | Has bastard | Mar. dissolved | | |
| 60 | 158 | 3- 5-82 | David v. Mary Hoit | Adultery | Adult., bastard, elopement | Mar. dissolved[988] | | 11 |
| 61 | 161 | 5- 6-82 | Rhoda v. Ben. Pidgin | Adultery | Deser., remar., fail. to prov. | Mar. dissolved | | 14 |
| 62 | 163 | 23-12-82 | Eliz. v. Thomas Finnecy | Adult., cruelty | Adultery, cruelty | Mar. dissolved | Mariner | 4 |
| 63 | 165 | 25- 2-83 | Ebenezer v. Anna Tarbox | Adultery | Has bastard | Mar. dissolved | Sailor [captive] | 3 |
| 64 | 166 | 15- 4-83 | Squire v. Dorcas Baker | Adultery | Has bastard | Mar. dissolved[988] | Soldier | 12 |
| 65 | 168 | 14- 5-83 | Ann v. David Gardner | Cruelty | Cruelty, failure to provide | Separate b. b. | | 22 |
| 66 | 170 | 4- 6-83 | Mary v. Stephen Holman | Adultery | Adultery, disease, desertion, failure to provide | Mar. dissolved | | 5 |
| 67 | 172 | 11- 6-83 | Z. W. v. Juda Thayer | Adultery | Desertion, bastard | Mar. dissolved[988] | Yeoman | 11 |
| 68 | 173 | 18- 6-83 | Thos. v. Rosanna Crippen | Adultery | Adultery, elopement | Mar. dissolved | | |
| 69 | 175 | 18- 6-83 | Alice v. Lemuel Hill | Adultery | Adultery, deser., remarriage | Mar. dissolved | | |
| 70 | 176 | 19- 6-83 | Mime v. T. J. Carnes | Adult., cruelty | Cruelty, bastard | Mar. dissolved | | 6 |
| 71 | 178 | 3- 7-83 | David v. Mary Harwood | Adultery | Adultery, elopement | Mar. dissolved | Husbandman | |
| 72 | 179 | 3- 7-83 | Sarah v. Stephen Temple | Adultery | Adultery, esp. with daughter | Mar. dissolved | | 25 |
| 73 | 181 | 17-10-83 | Sam. v. Margaret Crafts | Adultery | Adultery, elopement, bastard | Mar. dissolved[988] | Laborer | 15 |
| 74 | 184 | 17-10-83 | Puella v. Sam Kelly | Adultery | Adultery, another wife | Mar. dissolved[988] | | 5 |
| 75 | 186 | 27-10-83 | Albert v. Ann Fitch | Adultery | Adultery, elopement | Mar. dissolved[988] | Mariner | 6 |
| 76 | 188 | 29- 1-84 | Phin. v. Sybil Chamberlain | Adultery | Adultery | Mar. dissolved[988] | | 7 |
| 77 | 189 | 16- 2-84 | Sarah v. Abel Sawyer | Adultery | Adultery, venereal disease | Mar. dissolved | | 21 |
| 78 | 191 | 26- 2-84 | Jeremiah v. Mary Higerty | Adultery | Adultery | Mar. dissolved[988] | Mariner | 14 |
| 79 | 192 | 26- 2-84 | Andrew v. Eliz. Gage | Adultery | Bastard children | Mar. dissolved | Mariner | 18 |
| 80 | 194 | 4- 3-8 | Mary v. Wm. Pedley | Adult., cruelty | Adultery, cruelty | Mar. dissolved[988] | Mariner | 5 |
| 81 | 196 | 16- 3-84 | Hannah v. David Dudley | Adultery | Coresp. in 73, desertion | Mar. dissolved[988] | | 24 |
| 82 | 198 | 16- 3-84 | Hannah v. Nehemiah Adams | Adultery | Turned wife out; took another woman | Mar. dissolved[988] | Husbandman | 11 |
| 83 | 199 | 18- 3-84 | Sarah v. Francis Rust | Adult., cruelty | Adultery, cruelty | Denied | Trader | 5 |
| 83a | 204 | 11- 6-84 | Sarah v. Francis Rust | Cruelty | Cruelty | Separate b. b. | | |
| 84 | 201 | 10- 5-84 | Helena v. Jas. Bayard | Cruelty | Cruelty | Separate b. b. | Mariner | 27 |
| 85 | 202 | 4- 6-84 | Sibbla v. G. W. Babcock | Another wife | Another wife | Mar. dissolved[988] | Mariner | 4 |
| 86 | 205 | 6- 7-84 | Mary v. Thos. Smith | Adultery | Adult., deser., fail. to prov. | Mar. dissolved[988] | Husbandman | 12 |
| 87 | 206 | 18-10-84 | Sarah v. Wm. Vernon | Adult., cruelty | Adult., cruelty, fail. to prov. | Denied | Merchant | 6 |
| 87a | 214 | 21- 7-85 | Sarah v. Wm. Vernon | Adultery | Adultery with negress | Mar. dissolved | | |
| 87b | 222 | 1-11-85 | Sarah v. Wm. Vernon | | Suit for alimony | Denied | | |
| 88 | 208 | 27-10-84 | Appey v. Jno. Pumpelly | Adultery | Deser., remar., fail. to prov. | Mar. dissolved[988] | | 24 |
| 89 | 209 | 16- 2-85 | Patience v. Wm. Cornell | Adultery | Adultery, turned wife out | Mar. dissolved | Cordwainer | 21 |
| 90 | 211 | 3- 3-85 | Sarah v. Jno. Backus | Adultery | Adult., deser., fail. to prov. | Mar. dissolved[988] | | 6 |
| 91 | 212 | 3- 3-85 | Jacob v. Hannah Millard | Adultery | Adultery, elopement | Mar. dissolved[988] | Yeoman | 17 |
| 92 | 216 | 26-10-85 | Hannah v. Moses Elwell | Adultery | Adultery, desertion | Mar. dissolved[988] | Yeoman | 12 |
| 93 | 218 | 23-11-85 | Domin. v. Martha Record | Adultery | Adultery, elopement | Mar. dissolved[988] | | 17 |
| 94 | 220 | 24-11-85 | Jno. v. Hannah Wales | Adultery | Adultery, intoxication | Mar. dissolved | | 4 |
| 95 | 224 | 8- 2-86 | Anna v. Ebenezer Pelton | Adultery | Bas., remar., des., fail. to pro. | Mar. dissolved[988] | | 5 |
| 96 | 226 | 18- 2-86 | Rebec v. Ebenezer Simpson | Adult., cruelty | Adult., cruelty, fail. to prov. | Mar. dissolved[989] | Blacksmith | 20 |
A glance at the tables exhibiting the more important
details connected with these actions discloses several important
facts. For the period covered by Table III the average
yearly number of cases is less than four, although the number
rapidly increases after 1780. It is significant that in
twenty-three out of seventy-six instances, for both tables,
when the occupation is known, the husband is entered as a
"mariner." The wife is plaintiff in sixty-one out of one
hundred and seven petitions; and in fifty-three of the ninety-six
cases listed in Table III the defendant, though summoned,
fails to appear at the trial. The courts, as in the
early period, still hesitate to grant the wife a divorce when
the husband's adultery is the sole ground assigned. Before
1776 there is not a single clear instance[990] of such a divorce,
although after that date marriages are freely dissolved for
this cause. Another important innovation is of somewhat
earlier date. Twelve out of the one hundred and seven
cases entered in the two tables—about one in nine—are
separations from bed and board, the two earliest occurring
in 1754. In five of these the petitioner asks for either partial
or absolute divorce, as the court may determine. Thus in
1767 Mary Fairservice, whose husband was guilty of adultery
and cruelty with attempt to poison, "humbly prays
... that the Bonds of Marriage ... may be dissolved,
or otherwise if ... this cannot by Law be done, that she
may be divorced from Bed and Board." According to the
record the husband appears to have been overanxious for a
complete release; so the court granted only partial divorce
and gave the wife alimony, although she had not asked for it
in her petition. On the other hand, in each of the other four
cases a full dissolution of the marriage bond was decreed.[991]
Separation from bed and board was prayed for and
granted in one instance which reveals the fact that cruelty,
however aggravated, was not regarded as sufficient ground
for a full divorce. This is the case of Lucy and Scipio Purnan,
free negroes, decided in 1768. Although Scipio was
in "good business" and lived "in good fashion," as we are
told in the petition, he turned his wife out of doors and
refused to provide for her support. Furthermore, in 1765,
he "sold her to one William Alford who with the help of
another man seized bound and gagged her at midnight and
carried her off to Province of New York and there sold her
'being a black woman.'" After again being sold "she ran
away back to Boston." Nevertheless Lucy sued for a mere
separation with alimony and the custody of her child. The
court granted her prayer, except that the child is not mentioned
in the decree.[992] The conservatism of the court regarding
this cause is further disclosed by the case of Sarah Rust
in 1784. In her petition she asks for a dissolution of wedlock
on the double ground of adultery and extreme cruelty.
For lack of evidence as to the first-named offense sufficient
to warrant either full or partial divorce, her prayer was
denied, nothing being said in the decree concerning the
charge of cruelty. Sarah then brought suit for cruelty
alone, alleging that on the fifth of June, "as she was going
into the yard of a dwelling house where a pitying friend has
given her license to take shelter," Francis "waylaid & with
a club beat & mangled her in a most atrocious and cruel
manner," attempting to take her life. Accordingly the
court allowed her a separation from bed and board.[993] An
earlier case constitutes a notable exception to the policy of
the court touching another ground of action. In 1771
Abigail Bradstreet got a partial divorce from her husband
Joseph, who had abandoned her because he had "married a
woman with less money than he might have expected." This
case is unique; for in no other instance is separation granted
where desertion alone without adultery or cruelty is charged.[994]
A few other cases illustrating general facts or principles
may be mentioned. In only one instance is the common-law
action against the adulterer referred to.[995] Suits for
divorce or nullity on the ground of bigamous marriages are
of frequent occurrence.[996] On October 15, 1751, Ezekiel
Eldridge, indicted for feloniously taking two wives, pleaded
guilty and "pray'd the Court that he might be allow'd the
Benefit of the Clergy which was Granted him." He was
"thereupon burnt in the hand in the face of the Court" and
allowed to "go without day Paying Costs." Thereafter one
of his victims secured a divorce and his marriage with the
other was declared null and void.[997] In six cases the decree is
preceded by previous written or oral agreement by the parties.[998]
The petition in cases of long absence under the act of 1698
is illustrated by the case of Eunice Coffin, in 1760, whose
husband had been absent on a whaling voyage for five years
without word. "The Petitioner hath the highest reason to
imagine that the sloop ... was lost at Sea, for ... a
few day[s] after they sailed there was the most terrible
Storm that had been known since Nantucket hath been
settled." So the court adjudged Eunice single and granted
her "license" to marry again.[999] Finally it may be noted
that in one instance a negro slave was granted a divorce by
the governor and council in the regular way.[1000]
b) New Hampshire, Plymouth, and New Haven.—The
Massachusetts act of 1698 regarding desertion or long
absence in precisely the same terms is embodied in the laws
of New Hampshire,[1001] whose policy respecting divorce seems
to have been identical with that of the Bay Province. The
causes of divorce, except desertion, are not defined by law.
As early as 1681, after the establishment of the independent
government, the president and council appear to have possessed
jurisdiction in such controversies. In that year a
quaint petition is presented by Sarah Pearce, "not knowing
where to find redress under Heaven but from your honorable
council of this province," praying to be "disobliged" from
her union with Hubbartus Mattoon with whom for "sundry
years past she was married;" because, owing to more than
seven years' wilful desertion, aggravated by unfaithfulness,
she has been sadly disappointed in her hope of "a comfortable
living with him;" and since, unless she mistake, by the
"unerring rule of God and the laws of our nation," either or
both of the causes assigned should free her from the nuptial
bond. At the same time she humbly requests their honors
in their justice to weigh "his strange embracement" of her
estate while she lived with him; and his "solemn threatenings"
since desertion to destroy her "by poison, or knocking
of the head" if she come near him. Whether the court
granted the petition does not appear.[1002]
For the other New England colonies a point of special
interest is the existence of legislative divorce. The popular
assemblies, bearing the name of "general courts," are seen
freely passing decrees of divorce, and this function is usually
exercised concurrently with the law tribunals or by way of
supplementing their jurisdiction.[1003] From the record of
proceedings in such cases many an interesting glimpse is
obtained of the social life of the times. Thus the general
court of Plymouth grants dissolution of wedlock for desertion
and adultery; but the conservatism of public sentiment
in this regard is shown by the fact that for the seventy-two
years during which that colony existed as a separate jurisdiction
only six instances of divorce have been discovered. The
first case occurred in 1661, when Elizabeth Burge on the
scriptural ground was released from her husband Thomas,
who for his misconduct was sentenced to be severely whipped
at Plymouth and again at Sandwich. The court took care
that Elizabeth's temporal interests should be protected.
Not only did she receive one-third of her late husband's
"estate, viz., lands, goods, and chattles, as her proper right
forever;" but with his consent she got also "an old cotton
bed and bolster, a pillow, a sheet, and two blankets ...
with some other smale thinges ... to the vallue of forty
shillings."[1004] The experience of William Tubbs, of Scituate,
is unique. His wife Marcye was notoriously unfaithful to
her nuptial vow and eventually eloped with another man.
So he sought a divorce; and accordingly in 1664, "after the
patriarchal style," as Goodwin observes, William Paybody of
Duxbury gave him a "writing of divorcement," with Lieutenant
Nash and John Sprague as witnesses. This document
the general court treated as a nullity, fining Paybody
five pounds and each of the witnesses three pounds for their
resort to self-help. But four years later that court came to
his relief in the regular way. In July, 1668, after serving
due notice on the libellee through letters addressed to the
government of "Road Iland"—where "Goodwife Tubbs"
had fled with her paramour—he was pronounced "legally
cleare from his couenant of marriage formerly made with
Marcye, his late wife," with the privilege of marrying again,
"if hee see fit soe to doe;" while she is solemnly declared
to have cut herself off from the "[p=]son" and "estate of the
said William."[1005] For similar cause and on the same conditions
John Williams was released from his wife Sarah in
1674.[1006] The next year "Edward Jenkins, of Taunton, petitioned
that his daughter Mary be divorced from Marmaduke
Atkinson, who had been out of the Colony and made no provision
for her during seven years or more. The decision was
a singular one; namely that while the court sees no cause to
grant a divorce 'yett they doe apprehend her to be noe longer
bound, but doe leave her to her libertie to marry if she
please.'"[1007] This was probably the court's homely way of
saying that, the common-law term of seven years' absence
without word having expired, it regarded the marriage as
ipso facto dissolved without judicial process, though a formal
decree was the more prudent course in case a second marriage
were contemplated.[1008] In the Plymouth records, as often
elsewhere, the term "divorce," following common-law usage,
is employed for a sentence of nullity in case of a void or
voidable marriage. Thus in 1680 Nicholas Wade, of Scituate,
and his daughter, Elizabeth Stevens, present a petition
"wherein they complaine of a great and sore crosse," her
husband being a man of "debauged life, expressed by his
plurallitie of wifes." Elizabeth was therefore "dismissed"
from her conjugal bond; while the "debauged" Stevens for
his "abominable wickedness" was "centansed to be seueerly
whipt att the post."[1009] The last case is that of John Glover
of Barnstable whose marriage with Mary his wife was dissolved
in 1686 on account of her unfaithfulness.[1010] It is
significant that four of the six petitions just enumerated are
brought against the wife on the scriptural ground and none
against the husband for the same cause. From this fact it
may perhaps be inferred that in Plymouth Plantation, as at
that time in Massachusetts, male adultery was not recognized
as a legal ground of divorce.[1011]
Similar illustrations of the life and thought of the times
are afforded by the records of New Haven colony. In that
"biblical commonwealth" it is, of course, not surprising that
the influence of Judaism should be strongly felt. By the
"capital laws" adultery is punished with death; so, before
1648, it is ordered that if "any marryed person proved an
Adulterer, or an Adulteresse, shall by flight, or otherwise,
so withdraw or keep out of the Jurisdiction, that the course
of Justice (according to the mind and Law of God here
established) cannot proceed to due execution, upon the complaint,
proof, and prosecution, made by the party concerned,
and interessed, a separation or Divorce, shall by sentence of
the Court of Magistrates be granted," and the innocent party
"have liberty to marry again." For physical incompetency
marriage may be "declared void and a nullity;" and here we
get a glimpse of the carnal motives for wedlock handed down
from the Mosaic code and tenaciously surviving in all modern
systems of law. Avoidance of marital "duty" is the real
ground of action. Therefore should the man deceive the
wife as to the fact, then such "satisfaction shall be made to
the injured woman, out of the estate of the offender, and
such fine paid to the Jurisdiction, as the Court of Magistrates
shall judge meet."[1012] In like spirit an unusually stringent
rule as to desertion is laid down. If either party shall wilfully
abandon the other, "peremptorily refusing all Matrimoniall
society, and shall obstinately persist therein, after
due means have been used to convince and reclaim, the husband
or wife so deserted, may justly seek and expect relief,
according to 1 Cor. 7:15."[1013] Here no definite term of wilful
desertion is fixed. But in 1663 divorce with remarriage is
permitted in case of seven years' absence, when the deserted
consort has "noe certaine intelligence" of the other's being
alive or purposing to return.[1014] Whether this comprehends
the case of wilful desertion we are not told.
c) Connecticut.—The laws of Connecticut relating to
divorce gained a surprisingly early maturity. Perhaps in
none of the other colonies was so liberal, and on the whole
so wisely conservative, a policy adopted. That plantation
almost deserves the patriotic eulogy bestowed upon it by
Swift, who declares in 1795 that the "institution of a court
for the decision of such controversies, and the limitation of
their power to such cases as the public good requires to be
remedied, gives the practice adopted by" the Connecticut
"laws, a decided preference to the practice of all other
nations, and renders our mode of granting divorces, as favourable
as the other modes have been unfavourable, to the virtue
and happiness of mankind."[1015] Certainly in the middle of the
seventeenth century no state, with the possible exception of
Holland, possessed a system so modern in its character.
Separation from bed and board was rejected. Only in one
instance, it is said, and that by the assembly, was such a
decree ever granted.[1016] Reasonable and fairly liberal causes
of divorce a vinculo were clearly specified; husband and wife
were treated with even justice; and, although legislative
divorce, always liable to abuse, was permitted, the greater
part of litigation seems always to have been intrusted to the
regular courts. In short, Connecticut, in all the more essential
respects, anticipated the present policy of civilized
nations by nearly two hundred years.
By the act of 1667 the court of assistants is empowered
to grant bills of divorce from the bond of matrimony to
either party, with the privilege of remarriage, for adultery,
fraudulent contract, three years' wilful desertion with total
neglect of duty, or for seven years' "providential" absence
unheard of.[1017] This law was re-enacted in 1677;[1018] and the four
causes, with scarcely the change of a word in the terms of
the statute, appear in the revision of 1715,[1019] and again and
again in the succeeding compilations until 1843, when two
new grounds—"habitual intemperance" and "intolerable
cruelty"—were added.[1020] The real scope of this singularly
liberal provision for divorce thus early adopted cannot, however,
be fully appreciated unless two important facts be kept
in mind. First, in judicial practice adultery acquired a very
broad meaning. Not only did it cover the misconduct of the
husband as well as that of the wife, but the statute was interpreted
to allow the latter a divorce for the "criminal connection"
of the man with any single women.[1021] Secondly,
"fraudulent contract" was construed "according to its plain
and natural import, that is a contract obtained by fraud,"
and not in the very restricted and conventional sense which
the courts, perhaps misled by a remark of Blackstone, have
in later years sometimes adopted.[1022]
Long before the act of 1667, and for one hundred and
eighty-three years thereafter, the legislative assembly of
Connecticut, side by side with the court of assistants or its
successors, reserved to itself the right of granting bills of
divorce. This power seems in the main to have been exercised
with caution, though there are not lacking signs that
it was sometimes abused. The general policy, according to
Swift, was only to grant relief in this way in "cases of intolerable
cruelty, and inveterate hatred, and such gross misbehaviour
and wickedness as defeat the design of marriage,
and presumptive proof of a criminal connection ... ,
where the positive proof required by law cannot be had."[1023]
Yet this wise rule, if legislative divorce is to be allowed at
all, does not in all cases seem to have been rigidly followed.
The first instance of action by the general court in such
questions found in the records occurs in 1655. "Considering
the sad complaint of Goody Beckwith of Fairfield, in
reference to her husband," and weighing the evidence presented
"of ye manner" of his "departure and discontinuance,"
the assembly declares that if the "said Goody Beckwith, wife
of Thomas, shall uppon her oath testifie to the Magistrates
that are shortly to keepe Courte at Strattford, that her husband's
departure was as others have testified it to bee; and
yt shee hath not heard from him nor of him any wayes since
hee deserted her, the said Magistrates may give her a bill of
Divorce."[1024] This is, of course, an example of granting the
court jurisdiction in a particular case where perhaps the evidence
was otherwise insufficient to warrant a decree. Two
years later the general court frees Robert Wade of Seabrook
from his "Couenant of marriage" with Joane his "late wife,"
because of the evidence presented to them of her "unworthy,
sinfull, yea, unnaturall cariage" in staying in England and
"disowning fellowship" with him for "neare fifteene yeares."[1025]
Again in 1660, taking time by the forelock in the behalf of
Sarah North, the same body orders that if she "hear not of
her husband by that ye seauenth year be expired, (he haueing
bene absent six already) ... then, she shalbe free from
her coniugal bonds."[1026] So also two years later, "vpon good
consideration and solid reasons"—of what nature the record
saith not—Bridget Baxter is likewise released; and because
the estate which her late husband left with her "is sold to
pay debts, all excepting a bed and her wearing aparell," the
creditors of "ye said estate" are prohibited from "seizing
extending or any way troubleing ye remainder, vntil ye Court
see cause to ye contrary."[1027] In 1670 Hanna Huitt "is at
liberty to marry if shee see cause," for the absence of Thomas
during "eight years and better."[1028]
The case of Elizabeth Rogers is of special interest; for it
is much to be feared that the worthy deputies and magistrates
regarded "free thinking" as a sufficient cause for dissolution
of wedlock. In 1675 she laid her petition before
the court of assistants, which found "some difficulties as to a
present issue finally." Yet the case being one which called
"for compassion to the woman under so great distress and
hazard," it was referred for settlement to the general court,
Mrs. Rogers having liberty meanwhile to dwell with her
father.[1029] Accordingly, at its next session the assembly,
accepting the "allegations and proofes presented to clear the
righteousness of her desires," released Elizabeth from her
"conjugall bond."[1030] A year later provision is made for alimony
with custody of the children; and now at last the
reason for Goodwife Rogers's "great distress and hazard,"
thus far carefully omitted from the record, is clearly divulged.
"Her husband," runs the order, "being so hettridox in his
opinion and practice," and having even "in open Court
declared that he did vtterly renounce all the vissible
worship of New England, and professedly declare against
the Christian Sabboth as a mere invention," the court
grants the mother and her father, Mathew Griswold, the
care and custody of the children "to be brought up and
nurtured by them (in the admonition and fear of the
Lord)," also ordering John Rogers to pay "towards the
mayntenance of his children, the sume of twenty pownds"
in four equal annual instalments. In case "he fayle of
payment, the reversion of the land by sayd John Rogers
made ouer to Elizabeth his late wife, at Mamacock" is to be
held as security.[1031]
Another case, that of Richard Edwards, deserves notice,
for as late as 1690 it affords us an example of the reference
of public questions to the elders. In October of that year
Edwards presented a petition for divorce from his wife Elizabeth.
The general court "declare they doe not find reason
to grant" it.[1032] But Richard is bound to have "releife therein
if the law of God or man will affoarde it him." So he comes
before the court again "desireing that a councill of able
diuines upon his charge might be called to consider his case
and giue their resolves upon the same to the court." The
latter, though not "fully sattisfyed to alter their apprehensions
from what they were formerly, yet considering the
deplorable state of the petitioner, and the many intolerable
temptations he lyes open too, are willing to doe what they
can for his releife, and to recomend it to the Genll Court
October next to consider the case, and doe desire that the
Reuerend Mr. Hooker" and five other ministers give their
attendance upon the court "to hear the case and grant what
light they can come at" to guide the issue.[1033] No definite
ground for the petition, it will be observed, is assigned; but
one may safely hazard a guess that "hettridox" opinions
were again involved. At any rate, Richard's plan was successful.
The next October he was released "from his conjugall
tye," the court first "haueing considered the case with
seriousnesse and taken the best advice they could com at by
the word of God and learned and worthy diuines."[1034]
As time went on, the cases of legislative divorce became
few and far between. The courts were felt to be the proper
place for such business.[1035] In 1753 Mary Larkum was freed
from her husband Job on account of his "barbarous and
inhuman carriage toward her."[1036] In 1761 the assembly set
aside a divorce granted two years before by the superior
court for alleged wilful desertion;[1037] and at rare intervals that
body was appealed to during the next seventy-five years.[1038]
There was a sudden increase of business in 1837.[1039] From
that date until 1850 the annual crop of legislative divorces
is surprisingly large.[1040] Sometimes the "resolve" granting
the petition is curt and informal; while often it is entirely
silent as to the exact cause of complaint.[1041] It would seem
that the practice of intrusting proper judicial business to
popular political bodies was yielding the usual evil fruit;
for at last, in 1849, a statute provides that the "Superior
Court shall have sole and exclusive jurisdiction of all petitions
for divorce."[1042]
d) Rhode Island.—It is, however, in the judicial history
of Rhode Island that legislative divorce has left its deepest
mark and had its worst consequences. In the American
colonies and states this practice has perhaps never caused
the same hardships or flagrant injustice as it did in England
previous to the act of 1857. Ordinarily, as in that country,
relief has not in effect and of necessity, owing to the cost of
the proceedings, been entirely denied to anyone because he
was poor. On the other hand, popular political assemblies,
such as American state legislatures, are on other grounds ill
fitted for judicial functions. Their ignorance or carelessness
may produce results bad for society. For they possess
nothing like the legal knowledge and experience of the
House of Lords, in which petitions for divorce were first
considered. Before the legislative trial, as in England, the
facts have not already been fairly well ascertained in the
law and spiritual actions; and if the same harsh discrimination
between rich and poor does not appear, there is at least
equal opportunity for jobbery and favoritism. It is well
that the custom practically has long ceased to exist in the
United States.
The legislation of Rhode Island begins with a conservative
measure in 1650. It is "ordered, that no bill of divorce
shall stand legall ... butt that which is sued for, by the
partie grieved" and not "for any other case but that of
Adulterie." This cause may be proved by the injured person,
"eyther by the man against the woman, or by the woman
against the man, before the Generall Assemblie" which by
the act is given exclusive jurisdiction in such questions.
After separation "each partie shall be as free from" the
other as "before they came together."[1043] But in 1655 a change
is made in jurisdiction, as also by implication, in the legal
grounds of divorce. First we have a striking example of
the tendency of Rhode Island to vest important functions in
the officers of the local community. "It is ordered, that in
case of adulterie, a generall or towne magistrate may grant a
bill of divorce against ye partie offendinge uppon ye demand
of ye partie offended." Furthermore, other grounds of
complaint are contemplated, though they are not clearly
expressed; for it is declared that "in all other cases of
separation or divorce between man and wife, all persons
shall addresse themselves for release to ye Generall Court
of Commissioners"—the name which the assembly bore
during the parliamentary charter. Here we have the usual
reservation of special cases to the legislature, among which,
it seems clear, separation from bed and board is had in
view.[1044]
In the early days the assembly did not lack business. At
the June session, 1655, John and Elizabeth Coggeshall, who
had separated "by mutuall and voluntarie consent," were
each allowed on separate petition to contract further marriage.[1045]
Two other cases occurred the same year;[1046] and later
examples have been collected. In 1665 the assembly "granted
a divorce for the adultery of the wife on her own confession,
and at the same time sentenced her to pay a fine and be
whipped."[1047] At this time is also recorded the pathetic story
of Horod Long. In her petition addressed to the royal
commissioners,[1048] then in the colony, she says: "I was upon the
death of my father sent to London by my mother in much
sorrow and griefe of spiritt, and then taken by one John
Hickes vnknown to any of my friends, and by the said Hickes
privately married in the vnder Church of Paules, called Saint
Faith's Church, and in a little while after, to my great griefe,
brought to New England, when I was betweene thirteene
and fourteene years of age." After living two years and a
half at Weymouth the pair came to Rhode Island in 1640.
"Not long after," Horod continues, "there happened a difference
betweene the said John Hickes and myselfe, soe that
the authority that then was vnder grace, saw cause to part
vs, and ordered I should have the estate sent me by my
mother." Evidently she was allowed to resume her maiden
name. Here we catch a glimpse of the earliest known divorce
in Rhode Island. After the separation Hickes fled to the
Dutch,[1049] taking with him, in defiance of the court's order,
most of the wife's property. Thus she was "put to great
hardshipe and straight;" for she was friendless and "not
brought up to labour." To gain a maintenance, therefore,
without any formal celebration or other proceedings, she
allowed herself to be "drawne by George Gardener," and
lived with him as his wife, being so reputed by the neighbors,
for near twenty years, bearing him "many children."
Clearly, as further shown by the testimony, we have here a
case of "common-law" marriage. Yet during this time
Horod alleges she had "much oppression of spiritt" regarding
her questionable condition; but Gardener, who had
enjoyed the remnant of her estate and all her labor, refused
either to allow her a separate support or to cease to trouble
her. So in her distress of mind she appealed to the commissioners
for relief, asking separate maintenance for herself
and child, and that "hee may bee restrained from ever
meddling with" her. The commissioners referred the matter
to the governor, requesting him to "doe justice to the poore
petitioner;" and the governor placed it in the hands of the
assembly. That body was without compassion; for the woman
had "impudently" discovered "her owne nakedness." She
and her partner were treated as ordinary offenders, being
each fined twenty pounds, and warned henceforth not "to
lead soe scandalous a life, lest they feel the extreamest
penalty that either is or shall be provided in such cases."[1050]
To this same eventful year, 1667, belongs the only case
of partial divorce yet discovered. Richard and Mary Pray
joined in a petition asking a complete dissolution of their
nuptial bond. The assembly denied their prayer, but
allowed them to live apart without the right of remarriage.[1051]
On the powers of the general court at this time Arnold
makes the following comment: "Not only were divorces
granted and a separate maintenance awarded to the wife,
but the whole property of the husband was attached and
held by the Assembly, until the provisions of the decree
had been satisfied. In the case of John Porter ... they
went even further, and annulled all transfers of property
... made by him since the separation from his wife,
which had not already been recorded. Upon his settling a
satisfactory estate upon his wife these disabilities were
removed."[1052]
After the establishment of the royal charter the ordinary
jurisdiction in divorce matters was vested in the court of
trials, composed of the governor and assistants who formed
a part of the assembly; but the latter body continued to
act when it saw fit. But "it would seem," says Arnold,
"that the separate powers of the magistrates were not distinctly
defined or well understood, for a censure was passed
upon John Green, Assistant of Warwick, for having granted,
by his own authority, a bill of divorce. This proceeding
was sharply reproved by the Assembly, as being a usurpation
of judicial power in superseding the action of the Court
of Trials. The town of Warwick declared the divorce to be
legal, and protested against this censure upon their leader."[1053]
In this case it may perhaps be right to infer that a reminiscence
existed of the order of 1655, already cited, vesting
jurisdiction in the principal cases of divorce in a single
"town" or "general" magistrate, the latter term applying
to an "assistant" under the royal charter. The assembly in
1676 released John Belou "from all matrimonial engagements"
to his wife Hannah.[1054] An entry in the records of
Muddy River, Mass., for July 30 of the same year, informs
us that John "Lewis came from Road Island where his wife
gave him a paper of dismission from her in Novr. last &
libertie to marrie another woman & he is now engaged to
ye widow Williams to marry her, by theire own confessions."[1055]
In 1683 we have an interesting example of the summary
punishment of a divorced man by the legislature, doubtless
for the misconduct which led to the decree. "The power
of the Assembly to expel its members was rarely exercised,
but at the adjourned session, a deputy from Warwick,
against whom complaints were brought and a divorce
granted on petition of his wife," at this time, "was deemed
unfit to hold his seat, and was therefore expelled."[1056] Two
years thereafter a law was passed making "five years neglect
or absence of either party" a ground for divorce;[1057] but the
period was extended to seven years in 1749.[1058]
According to Judge Durfee, after power to grant divorces
came to the superior court in 1747[1059] the jurisdiction of the
assembly "languished;" but "it continued, nevertheless, to
be invoked in exceptional cases,[1060] which either were not
provided for by the statute or were too flimsey or too
whimsical for judicial treatment. There is an uncanny
tradition, still vaguely surviving, that in such cases grave
legislators were sometimes plied in the lobby with solicitations
and arguments too peculiar for public discussion.
After the constitution the more usual course for the
assembly was, not to hear the petition, but to authorize the
supreme court to hear it by special act, if without such act
the court was incompetent. Divorces, however, were granted
as late as 1850. In January, 1851, the assembly had several
petitions pending before it and transferred them, together
with all documents and depositions in support of them, to
the supreme court, 'where,' the resolution of transfer tartly
remarks, 'the said petitions should have been filed,' and at
the same time authorized and required the court to try
them."[1061]
It is an established principle of jurisprudence that colonists
settling in an uninhabited land take with them all the
laws of the mother-country which are suited to their new
circumstances.[1062] This doctrine is sustained by the decisions
of the Courts.[1063] It follows, according to the views strongly
supported by Bishop, "that all such laws of England, relating
to marriage and divorce, by whatsoever names there
known, are, as they existed at the respective times of the
settlements here, common law in our several states."[1064] The
law of divorce which the American colonists brought with
them in the seventeenth century allowed a separation from
bed and board by decree of an ecclesiastical court, and for
two causes only, adultery and cruelty. Absolute divorce
was not recognized. But while the colonists carried with
them the English law, they did not bring likewise the English
courts. Therefore it "results that these laws can practically
be administered with us only as far and as fast as
tribunals are established on which, directly or by implication,
is conferred the jurisdiction." The laws slumber, so to
speak, until quickened through the creation of courts by the
legislature. "Between the arrival in a colony of the law
from the mother-country, and the organization of courts for
its enforcement, some space of time must intervene. And
during such space the law must be practically in abeyance,
or inoperative." Should a "tribunal be created with jurisdiction
extending to a part only of the law, such part will
become operative, but the rest will remain inert as before."[1065]
Besides, for our present purpose it is highly important to
note that the English courts "have specifically held, that the
matrimonial law of the ecclesiastical tribunals is a branch of
the law which colonists take with them."[1066]
Since, therefore, the church courts were never established
in any of our American provinces, it follows by the foregoing
rule that there was no tribunal competent to decree a divorce
or separation in such of them as had not assigned the jurisdiction
in question to some other body. This was the case
throughout the southern colonies. Their statute books are
entirely silent on the subject of divorce jurisdiction. Judicial
separations from bed and board did not exist; nor prior
to the Revolution has there been discovered a single case of
absolute divorce by legislative act—a practice so common in
New England during the same period—although Parliament
had set the example before the close of the seventeenth century.
On the other hand, separations by mutual consent, or
on account of bad conduct, or parol[1067] separations in some
form, did occur, as they always do occur in any society; and
it is from the meager records of judicial actions regarding
separate maintenance in such cases that one learns something
concerning the state of southern law and custom before
the Revolution.
In Virginia we find the county court, which had gained
a share of the equity jurisdiction,[1068] hearing and granting
petitions for separate alimony. Thus in 1691 the prayer
"of Ruth Fulcher for separate maintenance against her husband,
John Fulcher," was referred by the governor and
council, constituting the "general court,"[1069] to the justices of
a county court, "who, after hearing the testimony, decided in
favour of the plaintiff."[1070]
Now, by the English law alimony could not be granted
in an independent action, but only as incident to a divorce
by decree of the ecclesiastical court. Moreover, in Virginia
no colonial statute had ever conferred this portion of the
ecclesiastical jurisdiction upon the local courts or upon any
other tribunal. How, then, consistently with the principles
just stated, could a petition for separate maintenance be entertained
by the county magistrates as falling within their
equity jurisdiction? From two decisions in the early part
of the present century the dual innovation is represented as
the result of justifiable self-help under the stress of circumstances;
while, in the absence of a statute authorizing it,
the assumption of the power of the ecclesiastical court by the
equity tribunal is looked upon as a natural and logical
course. In the first of these cases, arising in 1810, the
superior court of chancery affirms its own jurisdiction in
suits for alimony. The chancellor, after conceding that
the authorities are in doubt and divided, holds "that in
every well-regulated government there must somewhere exist
a power of affording a remedy where the law affords none;
and this peculiarly belongs to a court of equity; and as husband
and wife are considered as one person in law, it is evident
that in this case the law can afford no remedy; which is
universally admitted to be a sufficient ground to give this
court jurisdiction, and therefore it must entertain the bill."[1071]
Thirteen years later this "reasoning of the chancellor on
the point of jurisdiction" is pronounced "sound," in a suit
for separate maintenance which was carried from the chancery
court of Fredericksburg to the Virginia court of appeals.
In his opinion Judge Carr says: "I find no case with us, in
which the subject has been before this court. Having no
Ecclesiastical Tribunal, the powers of that court seem to have
been considered as vesting originally in the old General
Court. From thence, some of them have been distributed
to other courts, as they were branched out.... I know of
no law which has given to any court the trial of matrimonial
causes, except so far as relates to incestuous marriages, as to
which a power is given to the Court of Chancery to annul
them." Judge Tucker, he continues, in his edition of Blackstone,[1072]
"says with respect to suits for alimony after a divorce
a mensa et thoro, as there is no court in Virginia which
possesses jurisdiction in such cases, there can be no room
for suits of this nature; unless, perhaps, the High Court of
Chancery should sustain them as incidental to its equitable
jurisdiction." "I believe," adds Judge Carr, "that in practice
the County Courts, sitting as courts of equity, have
assumed the power of giving separate maintenance in cases
of separation; but by what rule they have been regulated, I
know not."[1073]
But the colonial and state courts of equity, in "exercising
the authority, not of granting divorces, but alimony, where
the latter was the only relief prayed," seem to have acted
contrary to the more approved legal rule; and Bishop suggests
that their course may have been influenced by a misunderstanding
of the policy of the commonwealth. In the
time of Cromwell "the ecclesiastical courts were abolished;
thereupon the equity judges were expressly authorized, it
appears by a clause in their commissions,[1074] to decide causes
of alimony, and after the Restoration their decrees were by
statute confirmed. Misapprehensions of this matter have
sometimes led to the inference that the equity courts took
cognizance of the question simply as of their own appropriate
jurisdiction, because of the extinguishment of ecclesiastical
tribunals, or as succeeding to them. But this obviously
was not so; since, had the jurisdiction been theirs, they
would have exercised it as well when there were ecclesiastical
courts as when there were none, for the latter never
claimed it, their alimony being only an incident in the
divorce suit; and since any jurisdiction which they might
assume as successors of the defunct ecclesiastical courts
could have been only to decide causes of divorce, with
their incidental alimony, not to grant an alimony before
unknown." The granting of separate alimony without a
divorce is now common in the states;[1075] and, from whatever
source the courts have derived their power, it is entirely
justifiable as satisfying a social need. In the absence of
statutory sanction justice may demand that some existing
body shall promptly grant relief; though it is doubtless
true that the authority to do so cannot be logically assumed
as the legitimate inheritance of equity tribunals from the
ecclesiastical courts.
The colonial law of Maryland on the subject does not
differ essentially from that of Virginia, although there are
some divergences of interest. Judicial divorces were not
granted. A number of early cases show that the high court
of chancery took cognizance of suits for separate alimony as
naturally belonging to its jurisdiction in the absence of
ecclesiastical courts. Of these perhaps the most important
for the facts presented, though the precise ground of the
judgment is not clearly expressed, is the action of Galwith
v. Galwith which in 1689 came before the provincial court
on appeal from the court of Calvert county. The record of
the lower tribunal states that at the June term, 1685, "the
appellee, being the wife of the appellant," presented a petition
"setting forth, that within a few years certain false, evil,
and scandalous reports were raised and spread abroad against
her by some malicious persons," causing "great dissention
and difference between her husband and herself, insomuch
that he refused to entertain her in his house, or allow her a
competent maintenance elsewhere, by which she was reduced
to great poverty and want." Whereupon, in June, 1684,
she "applied to the county court for relief and redress
therein, at which time the court hearing and considering the
premises, granted an order that her husband should allow
... her 2000 wt. of tobacco for her maintenance the year
next ensuing." Now the "year was completed and ended,
and her said husband not being reconciled nor willing" to
take back either herself or the child, "which she hitherto
had maintained," she "would in a short time be brought to
extreme poverty and necessity without further assistance
from the court." Therefore she prayed that the court would
give order that her husband might "take her home to dwell
with him, which she was desirous to do, or else that he
might be enjoined to allow her a competent maintenance for
herself and child." Accordingly the "said John Galwith"
was commanded to "take home his said wife Jane Galwith,
to dwell with him as man and wife ought to do; otherwise
to allow ... her 3000 wt. of tobacco a year, commencing
from that day."
John then appealed to the higher tribunal, assigning for
errors: (1) that the county court passed judgment against
him upon reading the petition without calling him to answer,
"so that he is condemned unheard contrary to the law, and
against the statute of Magna Charta;" (2) that the county
court had "no jurisdiction of the matter in difference ... ,
being touching Alimony, which is not recoverable there but
in chancery, or the court of the ordinary;" (3) that the
county court cannot take "cognizance of matters relating to
causes of separation and divorce between man and wife, but
such matters are only triable and examinable in the court of
the ordinary."[1076] The judgment was reversed, but on what
particular ground we are not told; so that from the apparent
inconsistency of the last two specifications, one might be in
doubt, were the fact not well established, whether the high
court of chancery had jurisdiction; for surely alimony is
strictly a matter "relating to causes of separation and
divorce," cognizance of which is said in the report to belong
in effect to the bishop of London as ordinary. One point,
however, seems clear: the county court had no power in
such causes; and that is what one would infer according
to the doctrine of the Virginia judges before quoted; for,
unlike the county courts of Virginia, those of Maryland had
no equity jurisdiction.[1077]
Some other decisions of a later date throw light on the
colonial practice. In Macnamara's case, involving alimony,
decided before the Revolution, "the defendant claimed an
appeal to the Arches Court in England. His right thereto
seems to have been acknowledged, it does not appear on what
principle."[1078] Again, in 1828, it was declared in Farnshill v.
Murray that "there never having been an ecclesiastical court,
and no power to grant a divorce by annulling for any cause,
a contract of marriage which was originally valid ever having
been conferred upon any of the courts of justice, it follows
that a divorce can only be granted by an act of the
general assembly;" but in the provincial era alimony was
customarily granted by the court of chancery.[1079] Similar
evidence two years later is afforded by the opinion in Helms
v. Franciscus, where the parties had a written agreement to
live apart. In the absence of the ecclesiastical court it is
affirmed, "the high court of chancery always had, even under
the provincial government, entire jurisdiction of such claims
for alimony, or for separate maintenance out of the husband's
estate founded on his misconduct," but chancery may not
meddle with causes of marriage and divorce. Moreover, it is
laid down, apparently as the rule in the colonial as well as
in the modern period, that separate maintenance may be
assigned by the equity court only on the two grounds of
misconduct admitted in the ecclesiastical tribunals as proper
reasons for a divorce a mensa et thoro.[1080] It may also be
noted that the jurisdiction in suits for alimony, assumed
prior to the Revolution by the courts of equity, was later
confirmed by statute. In 1777 it was enacted that the
"chancellor shall and may hear and determine all causes
for alimony, in as full and ample a manner as such causes
could be heard and determined by the laws of England in
the ecclesiastical courts there."[1081] Commenting on this act
Bishop remarks that "as the ecclesiastical courts in England
had no power over alimony except in connection with divorce,
it would not have been an extravagant interpretation to derive
from this statute authority to decree both divorce and alimony,
to the extent exercised in those courts. But it was
held, instead, that the wife could have under it the sort of
alimony we are considering, for any cause authorizing in
England a divorce from bed and board, and even sometimes
for other causes;[1082] yet not the divorce."[1083]
It is just possible, finally, that absolute divorces were
granted in Maryland by the colonial assembly—a common
practice after the Revolution. "In this state," it was held
in 1829, "the act of divorcing man and wife has been performed
by the legislature, for the want, perhaps, of ecclesiastical
authority to effect it, or borrowing, perchance, the
power from the parliament of Great Britain.... However
this may be, divorces in this state, from the earliest times
have emanated from the general assembly, and can now be
viewed in no other light than as regular exertions of legislative
power." But no evidence is forthcoming for the "earliest
times."[1084]
The law and custom prevailing in the Carolinas are in
harmony with those of Virginia and Maryland, and need not
here be considered. The same is probably true of Georgia,
as appears from the case of Head v. Head, which will receive
some notice in another connection.[1085] From the opinion in
this suit we infer that in the colonial period the English
common law, including the law administered by the ecclesiastical
courts, governed the subject of divorce. By an act
of February 25, 1784, the common law and such statutes as
were in force "in the Province of Georgia in 1776, so far as
they were not contrary to the constitution, laws, and form
of government of the state," were adopted. Accordingly, up
to 1784 an absolute divorce could not be given, and the only
causes recognized for a partial divorce were those of the
common law. But even such limited divorces were not
granted; for there had been no legislation on the subject,
and therefore no courts existed in the colony competent to
act. Through exercise of its sovereign power the legislature
might, indeed, have granted divorces, partial or complete,
after the British model; and according to the opinion in this
case the legislature had exercised this function for some time
prior to 1798, when the constitution transferred the primary
jurisdiction in all cases from the legislative body to the
courts. "We have searched in vain," says Justice Nisbet,
"for any legislation upon the law of divorce before 1798.
If the legislature had passed laws declaring what would be
good cause for divorce at any time anterior to 1798, without
controversy those laws would have repealed the common law,
and the legal principles mentioned in the constitution would
have been referable to them. But there were no such laws
passed. It is true that, before 1798, the legislature ...
did grant divorces upon special application.... These
acts do not even exhibit the grounds upon which they were
passed." Thus far the judge, apparently, is speaking of the
period between the Revolution and the constitution of 1798.
We are not told by him whether any legislative divorces
were granted in the colonial era, though that is highly
improbable. At any rate, it is nearly certain that the common
law was not repealed by any provincial statute. For
"no such laws have come down to us. If there were any
... they are too deeply buried beneath the deposits of
time for our power of revelation;" though, probably, a "diligent
search in the colonial records preserved in England,
but not accessible to this court, might convict us of error."[1086]
Touching the question of divorce the Middle Colonies
held a place much closer to the extreme conservatism of the
South than to the broad liberalism of New England. In
New Netherland, indeed, it was natural that the Reformation
doctrines on this subject should prevail. The civil
courts exercised every kind of matrimonial jurisdiction.
Already we have seen them trying cases of breach of promise
and annulling marriages for the lack of legal forms.[1087] So
also they possessed full power to dissolve the nuptial bond.
As early as 1655 John Hicks obtained a divorce on
account of his wife's adultery, with leave to remarry. Two
years later John George Baldingh was granted a similar
decree on the same ground. Anneke Adriaens was released
from her husband for bigamy in 1664.[1088] In 1674, the year
of interregnum, Governor Colve, with the fiscal and council,
heard the petition of Catrina Lane for "letters of divorce"
from her husband Daniel, who, being accused of committing
a heinous crime, had broken jail and absconded. After due
consideration, the court ordered that a "divorce and separation"
should be granted if the husband do not within six
months appear and "purge" himself of the charge.[1089] The
allowance of this delay before a decree of divorce shall take
effect, in case of absence of the defendant, appears to be the
rule; for in the same year the prayer of Abigail Messenger,
deserted wife of Richard Darlin, for divorce with the privilege
of remarriage, is for "cogent reasons, provisionally postponed
... six months, during which time the supplicant's
husband is commanded to purge himself from this accusation,"
or in default the supplicant shall be permitted to urge
her suit.[1090] Thirteen years earlier Laers, the Finnish priest
who later got himself into trouble by performing his own
wedding ceremony, is said, in a "meeting," to have secured
a divorce from his wife on account of her elopement with
Jacob Jongh.[1091]
In 1659 we find what appears to be a cause of separation
from bed and board with assignment of alimony. Since
"Nicolaas Velthuyzen cannot resolve to live any more in
love with his wife," therefore it is decreed "that he shall
provisionally supply her with one fat hog, two skepels of
maize, according to his own offer for her support, and further
disposition shall be made for the maintenance of her
and her children."[1092] To this same year, also, belongs a case
which seems to be the complement of the English action for
jactitation. The plaintiff brings suit because the defendant
has privately accused him of having another wife; whereupon
the court orders the accuser to prove his charge.[1093]
There is also mention of a separation by mutual agreement
made originally before the local commissaries at Albany.
A record of the higher court at New York in 1670 recites:
"Whereas strife and difference hath arisen betweene Albert
Andriesen and Gertruyde Vosburgh his wife with ye which
ye commissaryes at Albany being acquainted" and, finding
their "Inclinations averse from living together as man and
wife ought to doe they did by consent make an Agreement
of their Seperation as likewise how their estates are to be
divided betweene them." Therefore the court doth "Ratifye
and Confirme what hath beene Already ordered as to that
perticular by ye which each partye is to res[t] satisfyed
without giving any further trouble upon this occasion."[1094]
"Tender parents," writes Mrs. Earle, "could not unduly
shelter a daughter who had left her husband's bed and
board. He could promptly apply to the court for an order
for her return to him, and an injunction to her parents
against harboring her. It has been plain to see in all such
cases which I have chanced upon in colonial records that the
Court had a strong leaning towards the husband's side of the
case."[1095] This fact appears in a case coming before the local
authorities of New Amsterdam in 1665, which, moreover,
affords an illustration of the sensible Dutch custom of arbitration
in such domestic differences. A trouble having
arisen between Arent Jureaensen Lantsman and his spouse
Beletje, the burgomasters and schepens refer the matter for
adjustment "to reverend Dome. Johannes Megapolenses and
Dome. Samuel Driesius." If the arbitrators fail to settle
the difficulty by next court day, warning is given that "proceedings
may be expected according to the Style and custom
of law, as an example to other evil housekeepers."
Later Lantsman avers that his wife's parents will not listen
to the arbitrators; and so he prays that the court may order
his wife to return to him. Thereupon Beletje appears and
says she will not return because her husband has often
broken his promises to amend. So the court takes a hand
on the husband's behalf, forbidding the wife's father, Lodowyck
Pas, to keep her above fourteen days, during which
time the consorts must be reconciled or else apply to the
court again. At the same time Lantsman is duly warned
that if further complaint of bad behavior be made, he shall
be handed over to the "Honorable Governor General to be
punished by his Honor in such manner whether by separation
from bed and board imprisonment or otherwise as by
his Honor shall then be deemed proper as an example to
other householders." But the wife's parent seems to have
disregarded the mandate. For, later, sworn jurymen decide
that "Beletje Lodowyck" must return to her husband, and
that her father shall no longer harbor her without the husband's
consent; and this verdict is approved by the court.[1096]
"A curious feature of this marriage quarrel," adds Mrs.
Earle, "is the fact that this Lantsman, who was so determined
to retain his wife, had been more than recreant about
marrying her. The banns had been published, the wedding-day
set, but Bridegroom Lantsman did not appear. Upon
being hunted up and reprimanded, his only proffered excuse
was the very simple one that his clothes were not ready."[1097]
A few other cases of separation, occasionally with arbitration,
have been gleaned, some of them occurring long
after the English rule began. For example, William Hallet
petitions "that his wife may be obliged to live with him
agreeably to the decision of referees, or in the case of her
refusal to comply, that he be granted a divorce."[1098] Whether
his prayer was allowed we are not told. In 1697 Daniel
Vanolinda prayed "that his wife be 'ordyred to go and live
with him where he thinks convenient.' The wife's father
was promptly notified by the Albany magistrates that he was
'discharged to shelter her in his house or elsewhere, upon
Penalty as he will answer at his Perill;' and she returned
to her husband."[1099] The same writer from whom the record
of this case is borrowed says "Nicasius de Sille, magistrate
of New Utrecht and poet of New Netherland, separated his
life from that of his wife because—so he said—she spent
too much money," and also because "she was too fond of
schnapps,—which her respected later life did not confirm."[1100]
Likewise "when Anniatje Fabritius requested an order of
court for her husband to vacate her house with a view of
final separation from him, it was decided by the arbitrators
that no legal steps should be taken, but that 'the parties
comport themselves as they ought, in order that they win
back each others affections, leaving each other in meanwhile
unmolested'—which was very sensible advice. Another
married pair having 'met with great discouragement' (which
is certainly a most polite expression to employ on such a
subject), agreed each to go his and her way, after an exact
halving of all their possessions."[1101] But the most remarkable
case of reconciliation through help of the court is that of
Anneke Schaets, daughter of Domine Schaets, first minister
at Fort Orange. It seems, according to Mrs. Earle,
that her conduct had in some way scandalized her father's
congregation, so that she "refrained from contaminating
attendance at communion;" whereupon the dominie, out of
resentment, quarreled with the brethren and persisted in
"ripping up new differences and offences." At last, after
being removed from his clerical office for disobeying a judicial
summons, matters were adjusted. Anneke "was ordered
off to New York to her husband, 'with a letter of recommendation;
and as she was so headstrong, and would not
depart without the Sheriff's and Constable's interference, her
disobedience was annexed to the letter.'" The record of
the court made in July, 1681, runs as follows: "Tho: Davidtse
promisses to conduct himself well and honorably
towards his wife Anneke Schaets, to Love and never neglect
her, but faithfully and properly to maintain and support
her with her children according to his means, hereby making
null and void all questions that have occurred and transpired
between them, but are entirely reconciled: and for the better
assurance of his real Intention and good Resolution to observe
the same, he requests that two good men be named to
oversee his conduct at New York towards his said wife, being
entirely disposed and inclined to live honorably and well
with her as a Christian man ought, subjecting himself willingly
to the rule and censure of the said men. On the other
hand his wife Anneke Schaets, promises also to conduct herself
quietly and well and to accompany him to New York
with her children and property, not to leave him any more,
but to serve and help him and with him to share the sweets
and the sours as becomes a Christian spouse: Requesting all
differences which had ever existed between them both may
be hereby quashed and brougt no more to light or cast up,
as she on her side is heartily disposed to. Their Worships
of the Court Recommend parties on both Sides to observe
strictly their Reconciliation now made."[1102]
If one may judge from the scattered fragments of court
records thus preserved, the little settlements in New Netherland
and early New York were afflicted by their fair share of
domestic ills. In the main, however, family life was placid
and prosaic. Few cases of absolute divorce, or even of permanent
separation, occurred; and this is probably due, at
least in part, to the system of friendly arbitration and to the
kindly paternalism of the Dutch magistrates.
After the conquest, according to the weight of legal authority,[1103]
the people of New York province acquired the rights
and privileges of the English common law. The ecclesiastical
courts were "regular tribunals of England, and the law
administered in them" a part of the general law of the land.[1104]
But so far as divorce is concerned, in New York, as in the
southern colonies, this law was practically in abeyance
throughout the entire provincial era. The code of the duke
of York, it is true, does contain a provision on this subject.
It is there declared that "In Cases of Adultery all proceedings
shall bee accordinge to the Lawes of England which is
by Divorce (if sùrd) Corporall punishment or fine and Imprisonment."[1105]
In substance, therefore, separation from bed
and board, not complete divorce, is thus sanctioned for the
scriptural ground. But this provision in its practical result
does no more than say that the English law regarding judicial
separation a mensa et thoro shall be recognized in the
colony, and such would have been the case without it.
From the beginning it must have been a "dead letter;" for
no tribunal was clothed by statute with adequate jurisdiction
to enforce it. Possibly for a time the old Dutch law and
customs were in practice accepted as partially binding. We
have just seen evidence of the survival of arbitration in cases
of separation, and of marital reconciliations managed and
recorded by the courts. But, unless granted on this authority
in the brief period of transition, judicial divorce a vinculo
ceased in New York with the English conquest. According
to Chancellor Kent, who may not be quite accurate, "during
the period of our colonial government, for more than one
hundred years preceding the Revolution, no divorce took
place in the colony of New York; and for many years after
New York became an independent state, there was not any
lawful mode of dissolving a marriage in the lifetime of the
parties, but by a special act of the legislature."[1106]
Subsequent to the meeting of the first assembly of the
province in 1683 the writer has found no evidence of a
legislative divorce, though there is preserved a copy of
what appears to be a circular letter from King George III.
in 1773, commanding the provincial governors "not upon
any pretence whatsoever" to give their assent to any bill
"that may have been or shall hereafter be passed by the
Council and Assembly of the Province under your government
for the naturalization of Aliens, nor for the divorce of
persons joined together in Holy marriage nor for establishing
a Title" to lands originally acquired by aliens before
naturalization.[1107]
But if the legislature declined to interfere, during the
early period the executive stepped into the breach. Cadwallader
Colden, who died in 1776, tells us that "the Governors
of New York took on them the power of granting
divorces which has been in disuse at least ever since the
revolution neither is there any court in this province that
can give this remedy tho' in the neighboring Colonies a
divorce is more easily obtained than perhaps in any other
Christian Country;" and he significantly raises the "Query
whether this may not be for the advantage of a new country
which wants people. It is certain that the natural increase
of People in New England has been very great perhaps
more than in any other of the English Colonies."[1108]
Colden's declaration that divorces, even by authority
of the governor, were not granted after the revolution of
1689 harmonizes with the statement of Chancellor Kent.
A petition for such executive relief is preserved among the
New York Colonial Manuscripts. In this case Richard
Wood, who avers that he has lived in Westchester "about
fifteen years," during all which time he "hath endeauoured
to demeane himselfe as a true and loyall subject and serviceable
in his generation," prays for separation from his wife
Mary on account of "her most abominable words and
actions" purposely designed to "breed difference" between
them. The petition is addressed to Governor General
Andros; but no record of his excellency's action in the
premises is forthcoming.[1109] The granting of divorces by
executive authority is unprecedented; and it is just possible
that the governors immediately after the English occupation
believed their action in such cases in a way sustained by the
duke's law; though this hypothesis is scarcely probable.
For the other middle colonies the story is soon told.
New Jersey is in the same position as New York under
English rule. The statute book is silent on the subject of
divorce. If divorces were permitted at all, it must have
been by legislative authority; unless, indeed, in the early
period, as in the sister-province, the governors assumed the
power to act.
The Great Law of 1682 for Pennsylvania authorizes
divorce on the scriptural ground. The punishment for
adultery prescribed by this statute may be compared with
the penalties mentioned in the early New England and New
York codes. One convicted of that crime "shall for the
first offence be publicly whipt and suffer one whole year's
imprisonment in the house of correction, at hard labor, to
the behoof of the publick, and longer if the Magistrate see
meet. And both he and the woman shall be liable to a Bill
of Divorcement, if required by the grieved husband or wife,
within the said term of one whole year after Conviction."
For a second offense the penalty is "imprisonment in manner
aforesaid, During Life." If the husband or wife sins
with a person who is unmarried, then for the first offense
either shall suffer half a year's imprisonment; and for a
second transgression, imprisonment for life.[1110] Nearly the
same penalties are imposed for incest[1111] and for bigamy.[1112] It
will be noticed that the Great Law, which was re-enacted in
later statutes, deals with divorce much in the same spirit as
does the duke of York's code. In each case divorce is
allowed for the one scriptural cause; but whereas the New
York statute plainly intends the separation to be merely
from bed and board, "according to the law of England," on
the other hand, by its peculiar terms, the Pennsylvania act
seems to authorize "bills" for complete dissolution of wedlock.
However that may be, in this case, as in the other,
the law has no practical significance; for, with one exception
below named, the jurisdiction of the English spiritual
courts was not devolved upon any of the provincial tribunals.
Accordingly, the historian Gordon, in his summary of
the laws of the colony, is able to say that these "made no
general provision for the dissolution of marriage; and
divorce from bed and board was allowed in case of bigamy
only, on request of the first wife or husband, made in one
year after conviction."[1113]
Absolute divorces were, however, granted by legislative
authority. Of these an example occurs in 1769, when there
was laid before the council a "Bill sent up by the Assembly
for the Governors concurrence, entitled 'An Act to Dissolve
the Marriage of Curtis Grubb, of the County of Lancaster,
Iron Master, with Ann, his wife, late Ann Few,'" and to
enable them to contract further matrimony. After amendment
this bill was approved, and Curtis was allowed to
"take to Wife any other woman during the Natural Life of
the said Anne, in the same manner as he might or could do
if she, the said Anne was actually Dead."[1114] In the same
way, on March 21, 1772, the "marriage of George Kehmle
of the City of Philadelphia, Barber, with Elizabeth, his
wife," was dissolved; but on April 27, 1773, the decree was
declared void by the king in "an Instrument of Writing
under the Privy Seal;" and on the 11th of next October the
royal veto was published by a proclamation of the governor,
Jonn Penn.[1115] There is also extant an example of annulment
of wedlock by the legislative body. On March 20, 1772, a
bill to declare void the "pretended marriage of Rebecca
Vanakin with a Certain John Martin" was presented to the
governor; but after six months' deliberation, on September
19, it was returned to the assembly with his excellency's
veto.[1116] There is no evidence to show, however, that divorces
either partial or absolute were at all common in the Quaker
province.
[Bibliographical Note XVI.—For this chapter all the statutes
relating to marriage enacted in fifty-two states and territories since the
Revolution have been examined and compared, Hawaii not being included.
The session laws and various compilations of statutes consulted
are described in the Bibliographical Index, V, and need not here
be named in detail.
Hitherto a history of matrimonial legislation in the United States
has not appeared; but summaries of the laws of the various states have
been made for particular periods. Of these the most important is the
accurate digest for 1887-88—the time of compilation—contained in
Wright's Report on Marriage and Divorce (Washington, 1889; reprinted
without change, 1897). There is also a summary in Stimson, American
Statute Law (Boston, 1886), I, 664 ff.; and for the sake of completeness
may also be mentioned Vanness, A Digest of the Laws of New York
and New England, on Marriage, Dower, Divorce, etc. (Hartford, 1877);
Noble, A Compendium and Comparative View of the Thirty-Eight
State Laws of Marriage and Divorce (New York, 1882); with the
discussion of Cook, "Reform in the Celebration of Marriage," in
Atlantic Monthly, LXI (Boston, 1888); Convers, Marriage and Divorce
in the United States (Philadelphia, 1889); Snyder, The Geography of
Marriage or the Legal Perplexities of Wedlock in the United States
(New York, 1889); Ernst, The Law of Married Women in Massachusetts
(2d ed., Boston, 1897); and Whitney, Marriage and Divorce
(Philadelphia, New York, Boston, and Chicago, 1894). Consult the parliamentary
return of Marriage Law and Divorce Law in foreign countries
and the colonies (London, 1894); and see also Bibliographical Note
XVIII.]
The foundation of the marriage law of the United States
was laid long before the War of Independence. Some
features have since been pruned away, and others have been
changed or added; but the existing forms of celebration, the
modes of registration, and the leading principles of matrimonial
jurisprudence had already been developed. The
century has produced a great mass of legislation; but so far
as it is new it is concerned largely with administrative details,
often of very great importance as determining the effective
character of the law.
a) The solemnization.—In New England before the end
of the colonial period the religious ceremony had long since
been made optional with the lay celebration before a magistrate,
which was the only form allowed in the beginning.
This system is continued after the Revolution. As elsewhere
in the country, the minister and the justice of the peace now
share the business between them. The earlier statutes are
generally more strict than the later regarding the place of
residence and the territorial jurisdiction of the persons
authorized to celebrate matrimony. For example, by the
Massachusetts act of 1786 any justice of the peace may
solemnize lawful wedlock within his own county; while a
minister of the gospel, if "stated and ordained," may act
only in the "town, district, parish, or plantation where he
resides," provided one of the persons lives there too. If a
place be destitute of a minister of any denomination, then a
neighboring clergyman of the same society may serve; but
only in the town or district where the bride or bridegroom
dwells.[1117] In 1821 such ordained and stated minister, although
living outside of the district over which he is settled, may
conduct the ceremony at his own place of residence or at that
of either of the persons, provided one or both of them is a
member of his congregation. If there be no such minister
in the place, then the couple desiring to be married may go
to any other clergyman in the commonwealth, who in such
case is authorized to act.[1118] All previous laws on the subject
are repealed in 1834, when a new statute empowers the minister
or justice, each in his own place of residence or in that
of either of the persons, to perform the ceremony, if at least
one of them lives in his official district.[1119] The present law is
still broader in its terms. A marriage may now be solemnized
in any place within the commonwealth by Jewish
rabbis duly accredited; Friends according to their rites;
any minister of the gospel, ordained according to the usage
of his denomination, who resides in the commonwealth and
continues to perform the functions of his office; or, until
a few years ago, by any justice of the peace.[1120] By the act
of May 23, 1899, an important change is made. Henceforth
no justice of the peace may solemnize a marriage unless he
also holds the office of city or town clerk, city registrar, clerk
of a court, or that of assistant in either case; or "unless he
shall have been specially designated by the governor." The
latter may at his discretion name justices of the peace "who
may solemnize marriages in the city or town in which they
severally reside." Each place is to have at least one such
designated magistrate; but otherwise the number is not to
exceed one for every five thousand of its inhabitants. No
justice may act without a certificate of designation, which
the governor is authorized to revoke whenever he thinks fit;
and every year in January the secretary of the commonwealth
is required to send to the respective clerks or registrars
a list of the justices to which authority is thus granted.[1121]
However, by the Massachusetts law is prescribed the wise,
though unique, condition that the ceremony may be conducted
only by a person who is able to read and write the
English tongue.[1122]
The course of legislation in the other states has been
much the same as in Massachusetts previous to 1899. In
all of them throughout the century, except in Rhode Island,
justices of the peace in their respective counties have had
authority to solemnize marriages. In that commonwealth
any justice of the supreme court may now act,[1123] as earlier
could the assistants, justices of the peace, and justices of the
courts of common pleas.[1124] For over fifty years the judges of
the county and higher courts in Connecticut have had the
same power;[1125] and so during the assumption period had the
councilors, judges, and even the governor and deputy governor,
in Vermont.[1126] But in that state, after the admission
to the Union, the justice of the peace has always been the
only lay officer empowered to conduct the ceremony.
The law governing the ecclesiastical celebration has been
a matter of slower growth and of much experimentation.
That of Massachusetts has already been described. The
New Hampshire statute of 1791 provides that marriage may
be celebrated by any "ordained minister" in the county
where he is settled or has his permanent residence.[1127] For
many years thereafter no change was made in that requirement.[1128]
But in 1833 every resident "ordained minister," if
in "regular standing" with his denomination, is authorized
to act throughout the state, after causing the "credentials of
his ordination to be recorded in the office of the clerk of
common pleas, in the county where he shall solemnize any
marriage."[1129] The present law is the same in substance, except
that the filing of credentials is not mentioned. A non-resident
minister, similarly qualified, may now officiate anywhere
in the state, on receiving a commission from the
governor acting on the advice of the council; and within his
own parish, when having a pastoral charge wholly or partly
within the state.[1130] Authority in the state to join persons in
wedlock is granted to "settled" or "ordained" ministers or
elders of the leading churches by the Rhode Island laws of
1798;[1131] to the ministers or elders of any religious denomination
who may be "domiciled" in the state, by the revision
of 1844;[1132] and by the present law the same elder or minister
may obtain a license to join persons in marriage, when he
shall have registered his residence, the name of the parish
with which he was last "associated, if any, and the name of
the religious denomination to which he belongs, in the office
of the town clerk of the town in which he resides ... in
a book to be provided for that purpose," and "shall have
subscribed his name thereto."[1133]
By the first laws of Maine like authority, in the counties
where they dwell, is conferred upon ordained ministers, who
shall be duly appointed and licensed during pleasure by the
governor with the advice and consent of the council; provided
either of the persons resides in the same county.[1134] In
1828 this restriction is removed; and the ministers of any
denomination of Christians may be so commissioned for
counties other than those in which they dwell.[1135] The law
has since taken a different form. Power is now granted,
during the pleasure of the executive, to every ordained
minister of the gospel and to every person licensed to preach
by an association of ministers, religious seminary, or ecclesiastical
body, who shall be duly appointed and commissioned
for that purpose by the governor.[1136] Moreover, in this state
women, otherwise eligible under the constitution, may in the
same way be commissioned to celebrate matrimony.[1137] In
Vermont during the assumption period similar authority was
granted to "settled" ministers in their respective towns
while they continue in the ministry.[1138] The district of the
"ordained" minister was extended to the county in 1797.[1139]
Three years later, because "irregular itinerant preachers,
under pretence of being ordained ministers of the gospel,"
in remote parts of the county, practiced impositions, and
marriages solemnized by them were wholly illegal, it was
again restricted to the town;[1140] but the act making this
change was itself repealed in 1802.[1141] By a statute of 1806 a
minister is required to file credentials of his ordination with
the clerk of the town where he shall solemnize any marriage.[1142]
But a more liberal provision appears in the revision of 1839,
any resident minister of the gospel being then authorized to
celebrate wedlock throughout the state.[1143] By the law as it
now stands the same power is conferred upon a clergyman,
ordained according to the usage of his denomination, who
resides in the state, or else "labors statedly therein as a
minister or missionary."[1144]
Ordained ministers of the "several plantations" of Connecticut,
as already seen, in 1694 were first allowed to share
with the justices of the peace the function of joining persons
in marriage. Their power was restricted to their respective
towns in 1702. It was extended to the county in 1783;[1145] and
the clergyman is to have authority "while he continues
settled in the work of the ministry." In 1820 the word
"settled" was dropped. In the revision of 1821 marriages
celebrated according to the rites of any religious denomination
were declared valid.[1146] Authority to solemnize was
granted in 1847 to any clergyman regularly licensed according
to the forms and usages of the denomination to which
he belongs, and having charge of a society for one year or
more.[1147] Finally, since 1855, the same power has been conferred
upon all ordained or licensed clergymen of Connecticut
or any other state while engaged in the work of the
ministry.[1148]
The law of Connecticut still retains the broad provision
that marriages celebrated according to the rites of any religious
society within the state are valid.[1149] This, of course,
includes the Quakers, who in each of the other New England
states are expressly permitted to follow their own usages in
this regard, as also are the Jews in Rhode Island.[1150] No form
of ceremony is anywhere prescribed; nor, except in Rhode
Island, are any witnesses required by the statute.[1151] In New
Hampshire persons living together and acknowledging each
other as husband and wife, and generally reputed to be such
for the period of three years or until the death of one of
them, shall thereafter be deemed to have been legally married.[1152]
Various penalties are prescribed in the different
states for unauthorized celebration;[1153] but in Maine, Massachusetts,
New Hampshire, Vermont, and Rhode Island it is
expressly provided that when a marriage has been solemnized
by a person professing to be legally authorized, although
not so authorized, its validity shall be unaffected by such
lack of authority, if it is valid in other respects, and entered
into by the parties or one of them in the belief that they
were lawfully wedded.[1154] It is also enacted in Massachusetts,
Maine, New Hampshire, and Rhode Island that the validity
of a marriage shall not be affected by any omission or informality
in entering the intention to marry.[1155]
b) Forbidden degrees: void and voidable marriages.—In
none of these states is any definition of marriage laid
down in the statutes; but in effect matrimony is treated as a
relation partaking of the nature of both status and contract.[1156]
The age of valid consent to marriage—not to be confused
with the so-called "age of consent" under the criminal laws
enacted to protect a child from legally agreeing to its own
ruin[1157]—is prescribed only in New Hampshire, where it is
fourteen for males and thirteen for females.[1158] Elsewhere in
New England the common-law rule of fourteen for boys and
twelve for girls probably obtains. On the other hand, in all
these states, except New Hampshire, the age below which
parental consent is necessary for a legal contract is named in
the statute. For males it is everywhere set at twenty-one
years. For females it is eighteen years in Maine, Massachusetts,
and Vermont; and twenty-one years in Connecticut
and Rhode Island. But in Maine and Massachusetts consent
is required only when the minor has a parent or guardian
living in the commonwealth. The Rhode Island law
expressly provides that a license may be issued to a person
of over eighteen years when such person has no parent or
guardian residing in the state;[1159] and the same is true in Connecticut
of a female under age when a selectman of the
town where she has last resided six months gives his consent.[1160]
Massachusetts has taken wise precaution regarding
the marriage of minors below a certain age. By an act of
1894 no town or city clerk is permitted to receive a notice
of the intention of marriage of any male under eighteen or
any female under sixteen years of age, unless the "judge of
probate in each county after due hearing" shall "make an
order allowing the marriage under the age specified;" but
such order may be issued only when the minor resides in the
county where the judge holds court, or when the father,
mother, or guardian gives consent.[1161] A law of March 28,
1899, amending the above act, allows the probate judge to
make a similar order in case of a person of either sex whose
age is alleged to exceed that just specified, but who is unable
from any cause to produce an official record of his or her
birth, to overcome the reasonable doubt of the town or city
clerk or registrar. On receipt of a certified copy of this
order such local officer is required to receive the notice of
intention and issue a certificate, as in other cases.[1162]
The statutes of all of these states contain a list of kindred
by blood or affinity with whom marriage is prohibited. The
restrictions, of course, invariably include all persons in the
ascending or descending line; and also, as a rule, those
related within the third degree of collateral consanguinity.[1163]
Only in New Hampshire are first cousins now forbidden to
marry;[1164] but throughout New England the inhibition extends
to unions between aunts and nephews or uncles and nieces.
In Connecticut for a time we find a survival of mediæval
prejudice regarding affinity. Marriage with the daughter of
a wife's sister or brother was there first permitted in 1750.[1165]
But it was not until 1793 that the prohibition of wedlock
with a deceased wife's sister was dropped;[1166] while, curiously
enough, it was retained with respect to a deceased brother's
wife until 1816.[1167] By the existing law of all these states
marriage with a step-parent is forbidden; and in them all,
save Connecticut, a person may not, with impunity, wed a
father-in-law or a mother-in-law. Marriage within the forbidden
degrees is everywhere void;[1168] the children illegitimate,
and the offenders liable to severe penalties.[1169] In
Connecticut until some years after the beginning of the last
century, just as in old colonial days, offenders against the
law of prohibited degrees were "set upon the gallows" and
condemned to wear the "scarlet letter." The statute of that
state still required the adulterer to carry the halter round
his neck during life;[1170] and similar penalties were yet prescribed
in some other New England commonwealths.[1171]
Marriages may also be void or voidable on grounds other
than the forbidden degrees. Such grounds are want of lawful
age of consent, in Maine, Vermont, and Massachusetts;[1172]
insanity or idiocy, in those same states and in Rhode Island;[1173]
physical incapacity, fraud, or violence, in Vermont;[1174] and
bigamy everywhere except in Connecticut where the statute
is silent.[1175] In Maine[1176]—as formerly in Rhode Island[1177]—a
marriage between a white person and a negro, Indian, or
mulatto is void without legal process. Until 1843 Massachusetts
had a similar law; and its repeal at that time seems
to have been preceded for several years by much popular
interest and discussion. Petitions for and against the repeal,
numerously signed, were presented to the legislature. These
were referred to committees, and several formal reports
thereon were made. One of them, earnestly favoring the
abrogation of the existing law, alleges that the petitions
considered were in the aggregate signed by 3,674 men and
5,032 women. On the other hand, a House report in 1839
strongly opposes the proposed change and treats the petition
of many good women of Lynn, Brookfield, Dorchester, and
Plymouth with unseemly levity and ridicule.[1178] In Connecticut
a marriage attempted to be solemnized by an unauthorized
person, whether the parties act in good faith or not, is
likewise void without decree.[1179] Furthermore, in Maine, Vermont,
and Massachusetts marriages are void when residents,
"intending to return, go into another state and have their
marriage solemnized with intent to evade the prohibition
against incestuous or bigamous marriages, or against marriage
with an insane person or idiot, and afterwards return
and reside in the home state."[1180]
It should also be observed that unions which in some
states are void or voidable, in others may be merely prohibited
or placed under penalty. The laws of New England in
this regard, like those of the other commonwealths, are sometimes
confusing and far from uniform in their provisions;
and, as Wright suggests, marriages which by the language of
the statute appear to be simply forbidden or punishable may
nevertheless be construed as void or voidable by the courts.[1181]
For when the statute is silent the common law may be in force.
Bigamous marriages are so prohibited and punished in Connecticut;[1182]
the marriage of a female, procured by force,
menace, or duress, in Maine;[1183] and the clandestine marriage
of a girl under sixteen years of age, in Massachusetts.[1184] A
recent act of Connecticut has set up a bar to matrimony
which would be welcomed by the social reformer in other
states. Hereafter a couple, either of whom is epileptic,
imbecile, or feeble-minded, is forbidden to marry, when the
woman is under forty-five years of age; and any selectman
or other person aiding in procuring such a union or the
marriage of a pauper, when the woman is below that age, is
liable to a fine of not less than one thousand dollars or to
imprisonment for not less than one year, or to both penalties,
as the court may decide.[1185] The laws of Maine also put some
check upon the propagation of paupers, the town clerk being
forbidden to issue marriage licenses to such persons when
the overseers deposit in his office a list of the paupers in
their charge.[1186] A statute somewhat similar exists in Vermont.[1187]
On the other hand, the New England states afford
no example of direct statutory encouragement of wedlock
such as exists in a few instances elsewhere in this country;
though in all of them, except Rhode Island, indirect encouragement
is given through providing that illegitimate children
may be legitimized by the marriage of their parents.[1188]
Agreements in consideration of marriage are generally void
unless made in writing.[1189]
c) Certificate and record.—With respect to the notice of
intention required by law before a marriage may be solemnized,
the century may be divided into two very nearly equal
periods. During the first half in all of the New England
states proclamation by oral banns in the ancient ecclesiastical
manner, or a written notice through posting by the town
clerk, is left to the option of the persons; while during the
second half the simple license or certificate of the clerk is
deemed sufficient. In Connecticut the institution of banns
according to the form observed in colonial times was very
tenacious. By the statute of 1784 intentions of marriage
must either be "sufficiently published in some public Meeting,
or Congregation on the Lord's Day, or on some public
Fast, Thanksgiving, or Lecture Day in the Town, Parish, or
Society where the Parties, or either of them do ordinarily
Reside;" or else be "set up in fair Writing upon some Door,
or Post of their Meeting-House, or near the same in public
View, there to stand, so as it may be read," eight days before
the wedding.[1190] This provision—arising in a modification of
the act of 1640 made in 1672[1191]—appears in the revision of
1750 and each following edition of the laws until 1854, when
it gave place to the modern usage.[1192] The New Hampshire
plan is somewhat different. In that state there is a sort of
blending in one of the ecclesiastical and lay notices. By the
act of 1791 publication is to be made by the clerk; but at
three "several public meeting days, or three sabbath days,"
in the respective towns of the bride and groom.[1193] This plan
was retained until 1854.[1194] On the other hand, the Massachusetts
law of 1786 is typical in this regard. Intentions
must be announced in three public religious meetings, at
intervals of three days' distance exclusively, or they must be
posted by the town clerk during fourteen days. Should the
banns be forbidden and the reasons therefor assigned in
writing, the clerk is to "forbear issuing a certificate" until
the matter has been examined by two justices of the county,
quorum unus. But the person forbidding the banns must
cause the question to be determined within seven days,
unless the justices certify to the clerk that more time is
needed. If the objections to the marriage are not sustained,
the complainant must pay the costs of the proceedings, and
the clerk shall issue the license. For pulling down or defacing
a marriage notice a penalty of twenty shillings or of
one hour in the stocks is imposed.[1195] This dual system of
notice, with little change in the trial of banns, appears in the
statute-book until 1850.[1196] The experience of the other three
states is very similar: optional publication in church or by
posting being retained until the middle of the century, or in
some cases even to a much later time.[1197]
The various formalities to be observed in getting married
and in registering the facts connected therewith, as required
by the existing system, may now be briefly set forth. The
first step is application to the town clerk or registrar for
a license, or "certificate" as it is usually called. This takes
the place of the certificate of publication issued by the minister,
clerk, or other person asking the banns or posting the
notice, provided for in the earlier laws. By the Massachusetts
statute persons intending to be joined in marriage
shall "cause notice of their intention to be entered in the
office of the clerk or registrar of the city or town in which
they respectively dwell, or, if they do not dwell within the
commonwealth," then with the similar officer of the place
"in which they purpose to have the marriage solemnized.
If there is no such clerk or registrar in the place of their
residence, the entry shall be made in an adjoining city or
town." The certificate is issued at the time the notice is
filed; but certificate to a minor[1198] is forbidden except upon the
application or consent in writing of the parent, master, or
guardian, if living in the state, under penalty of not to
exceed one hundred dollars. To protect himself, the clerk
or registrar "may require of an applicant for such certificate
an affidavit setting forth the age of the parties;" which
"affidavit shall be sworn to before a justice of the peace, and
shall be sufficient proof of age to authorize the issuing of
the certificate." For a false statement in the affidavit the
penalty is not to exceed two hundred dollars.[1199] In this state
a town of more than two thousand inhabitants is allowed to
choose a person other than the clerk to be registrar.[1200]
The laws of Vermont and Maine differ but little in the
leading points from those of Massachusetts; but in Maine
the notice of intention must be recorded with the town clerk
where each person resides, if both live in the state, at least
five days before the marriage.[1201] More elaborate are the provisions
of the Rhode Island, New Hampshire, and Connecticut
statutes, requiring the clerk to enter on the certificate
the various facts gathered as statistics, to which reference
will again be made.[1202] In all cases a penalty, severe under
some recent enactments, is imposed upon the minister, justice,
or other officer who presumes to celebrate a marriage
without first receiving the certificate signed as the law
requires.[1203]
Provision is everywhere made for a "return" or report
by the persons or religious societies solemnizing marriages.[1204]
In Connecticut, Vermont, and Rhode Island the return is
made by indorsement upon the certificate, which is then
sent to the clerk or registrar of the city or town whence it
was issued or in which the celebration took place.[1205] By the
Connecticut law of 1899 the return must be made before or
during the first week of the month following the ceremony.[1206]
In Maine and Massachusetts the societies or persons authorized
to celebrate marriages are required to keep a record,
and from it make periodical return to the clerk or registrar
of the town in which the license was issued. By the Maine
law the return must be made by the fifteenth day of each
month, and a similar report sent to the clerk of the town
where the intention was entered.[1207] The Massachusetts statute
orders that between the first and tenth days of each month
the certificate of each marriage celebrated shall be sent to
the clerk or registrar of the city or town issuing the same,
and if the marriage be solemnized in a city or town other
than the place or places in which the persons reside, then a
copy of the certificate, or of either certificate in case two
were issued, must be returned to the proper officers of their
respective places.[1208] The Massachusetts laws provide also
that when marriages take place in another state between
persons living in the commonwealth, such persons shall
within seven days after their return file with the clerk or
registrar of the town in which either lived at the time a
certificate or declaration of the marriage, including the facts
relating thereto required by law.[1209] A like return of marriages
celebrated outside the state is prescribed in Maine[1210]
and New Hampshire.[1211] In Vermont a "male resident" so
married must within sixty days thereafter deposit with the
clerk of the town where he resides a certificate embracing
the statistics required by law.[1212] The statutes of Vermont
also provide that the head of a family who moves into the
state to become a permanent resident may cause a certificate
of his marriage, including the same statistics, to be recorded
in like manner.[1213]
In recent years most of the New England states have
made wiser provision than in the earlier period for the collection
and preservation of statistics relating to marriage.
The town clerk or registrar is required to keep a more complete
record. The statutes prescribe a large number of
details which must be entered by him, sometimes even as a
condition of granting the license. An illustration is afforded
by the Massachusetts act of 1897. Clerks are commanded
in each case to enter and report the date of the record; the
date and place of the marriage; the name, residence, and
official station of the person solemnizing; the name, place
of birth, residence, age, and color of each of the parties; the
number of the marriage, and whether either party is widowed
or divorced; the occupation of each; the names of the parents,
with the maiden names of the mothers; and the maiden
name of the bride in case she be widowed or divorced.[1214] A
similar list of facts is called for in New Hampshire;[1215] while the
recent enactments of Maine,[1216] Connecticut,[1217] and Rhode Island[1218]
on this subject are especially painstaking and elaborate.
Finally it may be noted, as a sign of the growing appreciation
of the needs of social and statistical science, that
throughout New England statutory provision has been made
for state registration of marriages. The local clerks and
registrars are required to make annual report of the facts
collected and recorded by them to the general registrar, who
is usually the secretary of the commonwealth or the secretary
of the state board of health.[1219] By the Rhode Island
statutes the original indorsed certificates, returned to the
town clerk and by him recorded, are to be sent to the secretary
of the state board of health, who is to cause abstracts
of them to be made and published. Thereafter they are to
be deposited in the office of the secretary of state, where
they shall be properly indexed and remain subject to inspection.[1220]
Connecticut is doing still better in this regard. By
a series of acts, beginning in 1893, that state is making a
praiseworthy effort to complete her marriage records from
the date of the first incorporation of the various towns to
the present time;[1221] and Maine has provided for the collection
and publication of the records of births, deaths, and marriages.[1222]
Vermont by an act of 1898 requires the secretary
of the state board of health to prepare and furnish the
town and city clerks blank forms to be used as books of
records of "births, marriages, divorces, and deaths." Return
is to be made by the local officers, from which every second
year the secretary of the state board of health is to publish
a report.[1223]
Throughout this period in the South matrimonial legislation
has moved more slowly than in New England and the
West, but toward the same goal. Sentiment has been more
conservative regarding innovation; and in general equal
progress has not been made in remodeling and improving
the details of administration or the safeguards of marriage
law. Originally, as elsewhere shown,[1225] the English ecclesiastical
forms were established in Virginia and nominally, in
a varying degree, in the neighboring colonies. Dissenters
were illiberally, often tyrannically, treated; and to satisfy
their consciences in this regard they were compelled to take
the law into their own hands. Still, at the Revolution, it
was apparent that the American type of matrimonial legislation,
as in its essential features already existing in New
England, must eventually triumph in the South.
a) Solemnization.—Old ideas were especially tenacious
in Virginia. For the first time, in 1780, as already suggested,[1226]
the monopoly of the Anglican clergy was restricted
through legislation. By the statute of that year, for the
purpose of "encouraging marriages" and "removing doubts
concerning the validity" of those heretofore celebrated by
dissenting clergymen, not only are all such marriages declared
"good and valid in law," but for the future ministers
of "any society or congregation of Christians," as well
as the Quakers and Menonists, are permitted to conduct the
celebration according to their own rules and usages. License
and banns are dispensed with in the case of Menonists and
Quakers,[1227] but the act limits the number of dissenting ministers
who may take advantage of its provisions. On recommendation
of the "elders of the several religious sects," the
court of each county is authorized to license not more than
four ministers of each dissenting society to solemnize marriages;
and the licenses are to be "signed by the judge or
elder magistrate under his hand and seal."[1228] Four years
later a new marriage act appears, by which the ordained
ministers of all societies of Christians are placed on the
same level. The provision for licensing a limited number is
not retained. Any minister may celebrate marriages of
"any persons" within the state, provided he first produce
to the court of the county or borough in which he resides
credentials of his ordination, and also of his being in regular
communion with the society of which he is reputed a
member, take the oath of allegiance to the commonwealth,
and enter into bond, with two or more sufficient securities,
in the sum of five hundred pounds current money for the
true and legal performance of his trust. A "testimonial"
is then issued to him by the court.[1229] "Itinerant" ministers,
however, are not entitled to a testimonial. If any minister
shall voluntarily decline, or be ejected from, his office, or "if
any of his securities shall give him notice in writing that
they desire to be released from their suretyship, in either of
these cases," should he refuse or neglect "to give up his
testimonials to the court from which they were obtained,
any one of his securities, without instituting a suit, may
proceed against him as if they were his special bail in an
action of debt until he is thereunto compelled or gives them
sufficient caution for their indemnification."[1230] By this act
also irregular marriages already contracted are made valid.
Its provisions regarding solemnization are retained in the
elaborate statute of 1792.[1231]
Thus far the religious ceremony only had been acknowledged
by law. A step toward civil marriage was taken in
1783. It is recited that, since "it hath been represented
... that many of the good people in the remote parts of
this commonwealth are destitute of any persons, authorized
by law, to solemnize marriages," therefore when it shall
seem necessary, in the scarcity of clergymen, the court of
any county "on the western waters" is empowered "to
nominate so many sober and discreet laymen as will supply
the deficiency." It is noticeable that such layman, "upon
taking the oath of allegiance" to the state, is to receive a
license to celebrate the rites of matrimony "according to
the forms and customs of the church of which he is reputed
a member." It appears from this statute that magistrates
in such places had already been in the habit of celebrating
marriages; and these marriages are now legalized.[1232] In
consequence of the scarcity of ministers, persons desiring
to be married were sometimes compelled to travel long distances
across the mountains, exposed to danger from the
Indians. Hence in 1794 the courts of Lee and Randolph
counties were authorized to nominate two resident laymen
in each to perform the ceremony within the county where
they respectively resided. These commissioners[1233] were to
take an oath of fidelity to the commonwealth; and each was
to "enter into bond for sufficient security in the sum of
fifteen hundred dollars" for the "true and faithful performance
of his trust." This act differs from that of 1783 in
being silent as to the use of the religious ceremony; and so
marks a step in advance toward full civil marriage.[1234]
The foundation of the law of Virginia regarding the marriage
celebration, both civil and religious, as it still exists, was
thus laid more than a hundred years ago. A few changes,
most of them of minor importance, have been made in later
years. From time to time, by special law, the benefits of
the act of 1794 were extended to other counties;[1235] and in
1830 this plan was adopted for the whole state. The court
of every county which should suffer "inconvenience" through
lack of ministers was then authorized to name one or two
persons to solemnize matrimony, on condition of giving
satisfactory bond, as required by earlier statutes.[1236] As the
law now stands, "the court of every county which deems
it expedient, may appoint one or more persons resident in
such county to celebrate the rites of marriage within the
same, or a particular district thereof, and upon any person
so appointed giving such a bond as is required of an ordained
minister, may make a like order" empowering him to act.
But the court may rescind this order at pleasure.[1237] It appears,
therefore, contrary to the usual custom, that in Virginia the
justice of the peace as such has no authority to perform the
marriage ceremony. Regarding the religious celebration,
the law remains very nearly as it was in 1784, except in one
or two important provisions. At least since 1819 Jews have
enjoyed the right of using their own marriage rites;[1238] while
already in 1812 ordained ministers in regular standing with
any society of Christians, residing in any adjacent state,
were authorized to solemnize wedlock in Virginia on filing
credentials and giving bond in the court of the county
where the marriage takes place, the oath of allegiance not
being required.[1239] The law was further liberalized in 1831.
Any ordained minister in regular communion, as before,
"who by the government and discipline of the church of
which he is a member, has been assigned to a circuit,
station, or district for the period of one year at the least,"
is allowed, on the same conditions as other ministers, to
obtain a "testimonial" from any county or corporation court
within such area authorizing him to perform the marriage
rites.[1240] With these changes the law of Virginia is complete,
except that it is couched in more general phrase. "When
a minister of any religious denomination shall, before the
court of any county or corporation in this state, produce
proof of his ordination, and of his being in regular communion
with the religious society of which he is reputed a
member, and give bond in the penalty of five hundred
dollars, such court may make an order authorizing him to
celebrate the rites of marriage." No ceremony is prescribed;
but each religious body, though having no minister, may
use its own forms.[1241]
West Virginia, made a separate state in 1863 by dismemberment
of the Old Dominion, has taken a much more conservative
course. In 1868 "any minister of the gospel," on
presenting the credentials of his ordination and of being in
regular communion, according to the plan of the mother-commonwealth,
is authorized to "celebrate the rites of marriage
in all the counties of the state;" and no person other
than a minister who has thus "complied" with the law shall
hereafter be permitted to perform the ceremony.[1242] No provision
whatever is made for the lay celebration. This reactionary
policy was, however, temporarily abandoned in 1873.
By a statute of that year the minister, otherwise to be qualified
as under the act of 1868, is required in addition to give
bond in the sum of fifteen hundred dollars; and each county
court, as in Virginia, is authorized to appoint one or more
laymen with power to solemnize wedlock.[1243] For four years
the lawmaker staid his hand; but in 1877 the illiberal principle
of the act of 1868 was again enforced.[1244] So to the
present hour only the religious celebration, either by a
clergyman or by the usages of a society having no officiating
minister, is legal in West Virginia. The lay ceremony is
not recognized there by statute.[1245]
It is less surprising that Kentucky, whose territory until
the admission of the state to the Union in 1792 was embraced
in the jurisdiction of Virginia, should have retained the
matrimonial law of the parent commonwealth. As regards
solemnization, the act of 1798 in its substance is almost
identical with the statutes of Virginia before that of 1794
appeared. It contains like provisions with respect to bond,
credentials, testimonial, and oath of allegiance on the part of
the minister; and Quakers, Menonists, and all societies of
Christians are allowed to use their own rites.[1246] In the next
year the county courts of the state are authorized each to
license one or more of their own magistrates to solemnize
marriages, "where there shall not be a sufficient number of
ministers of the gospel" for the purpose.[1247] By the present
law, which in all essential respects is identical with the act
of 1851, marriages may be celebrated either by ministers of
the gospel or priests of any denomination, in regular communion
with a religious society; by judges of the county
courts, and such justices of the peace as the county courts
may authorize; or according to the usage of any religious
society to which either person may belong.[1248]
In Maryland no progress has been made regarding the
marriage celebration since the Revolution. Ministers and
priests still have a monopoly of the matrimonial business, as
under the illiberal act of 1777, whose provisions have already
been summarized.[1249] Quakers are still allowed their own
rites; but, as in West Virginia, the lay celebration is not
authorized by the statute.[1250] Until 1896, with slight modification,
the marriage law of Maryland was in force in the
District of Columbia. By a statute of that year the ceremony
may be performed in the District by any justice of the
peace; any judge of a court of record; or by any ordained or
appointed minister residing anywhere in the United States,
if authorized by a justice of the Supreme Court.[1251]
Elsewhere the history of the matrimonial legislation of
North Carolina has been traced to the act of 1766, the last
statute adopted before the Revolution. The Quakers had
practiced their own rites throughout the colonial era. By
the act just mentioned the Presbyterians had been granted
the same privilege, but on humiliating terms. With these
exceptions, the clergy of the English church enjoyed a
monopoly of the marriage celebration; for no other dissenting
body save the Presbyterians was recognized by the law.
All this was changed in 1778, after the establishment had been
swept away. The "regular ministers of every denomination,
having the cure of souls," and all justices of the peace in the
state, are authorized to solemnize marriages; while the
Quakers are to enjoy their ancient privileges.[1252] So the law
remains at the present time.[1253]
Throughout the century the statutes of Tennessee governing
the celebration of wedlock have been practically the same
as those of North Carolina, the parent commonwealth, to
whose jurisdiction the territory belonged until 1796.[1254] At
present "all regular ministers of the gospel of every denomination,
and Jewish rabbis, having the cure of souls, and all
justices of the peace, judges, and chancellors in the state,"
as well as the governor and the speakers of the senate and
house, are authorized to celebrate marriages.[1255] No special
ceremony is prescribed.
During the period under review South Carolina, like
Pennsylvania, has made no legislative provision for the marriage
celebration. The same usage prevails since the Revolution
as before, except that in the colonial period usage prevailed
in spite of the statutes. What Brevard said in 1814
is still true. "It is customary in this state," he declares, "to
celebrate or publish the matrimonial contract, by or before a
minister of the gospel—of any sect, and without regard to
any particular form or ceremony—or by or before a justice
of the peace, or other lawful civil magistrate."[1256]
The optional civil or religious celebration before a minister
or justice, existing by custom in Georgia from the
foundation of the colony, was recognized by the act of
1785—the first legislation on the subject of matrimony after
the organization of the state.[1257] A few changes in details
have brought the law into harmony with the prevailing practice
of the country.[1258] At present marriages may be solemnized
by any judge, justice of the peace, minister of the
gospel, Jewish minister, "or other person of any religious
society or sect" authorized by its rules to perform the ceremony.[1259]
By a unique provision "colored ministers of the
gospel, or ministers of the gospel of African descent," are
allowed to celebrate marriages "between freedmen and freedwomen,
or persons of African descent, only."[1260]
In all the other states and territories of the South and
Southwest the optional religious or civil celebration before
a minister or judicial officer has been sanctioned by
statute from the beginning. Such is the case in Florida,
Arkansas, Indian Territory, Arizona, New Mexico, and Oklahoma;
as also in Alabama, Mississippi,[1261] and Missouri, where
in each case the typical optional plan was adopted under the
territorial legislation of 1805.[1262]
The laws of Louisiana have always shown ample evidence
of their Latin origin. This is especially true of those governing
marriage, divorce, and the family; except that the
celebration was determined by statute, and was therefore
soon brought into harmony with the practice prevailing in
the southwestern states, the contemporary Virginia plan
being at first adopted as a model. The vast region bearing
the name of Louisiana was acquired from France in 1803.
For the purpose of government it was presently divided
into two parts, lying respectively north and south of the
thirty-third parallel. The northern portion, called the "District
of Louisiana," for law and administration was attached
to Indiana Territory, while the southern portion, called the
"Territory of Orleans"—having about fifty thousand inhabitants,
French, Spanish, and English—in 1804 was provided
with a separate government in which the lawmaking power
was vested in a legislative council appointed by the president
of the United States. In the next year this council
was superseded by a representative assembly similar to that
existing in the Mississippi Territory;[1263] and at the same time
the northern region, under the new name of the Territory
of Louisiana, was given a centralized government in which
the legislative authority was in the hands of the governor
and three judges holding by presidential appointment.[1264] A
Digest of the Civil Laws now in force in the Territory of
Orleans was later prepared. This contains minute provisions
relating to marriage and divorce; but declares that,
"besides the preceding general rules, there are divers formalities
to be fulfilled for the publication and celebration of
marriages, which are established by a special act of the
legislature."[1265] But "such marriages only are recognized by
law as are contracted and solemnized according to the rules
which it prescribes."[1266]
On February 24, 1807, all contracts hitherto solemnized
by the judge of any county, a justice of the peace, minister
of the gospel, or by any person legally discharging the
duties of commandant, are validated so far as relates to the
ceremony and the authority of the person officiating, provided
they are in other respects according to law.[1267] On April 6
of the same year appears a very elaborate statute—the
"special act of the legislature" above mentioned—which in
many of its provisions still constitutes the matrimonial law
of Louisiana.[1268] By this act "any priest or minister of the
gospel, regularly ordained or admitted into any religious
society, may obtain a licence to celebrate marriages within
this territory." For this purpose he must produce the
usual credentials "to the judge of the parish within which
his domicile is situated, take the oath of allegiance, and the
oath of affirmation to support the constitution of the United
States, and give bond with security in the sum of two
thousand dollars, for the faithful performance of his trust."
Quakers and Menonists are allowed the use of their own
rites; and "when any parish judge shall think that there is
not a sufficient number" of qualified priests or ministers, he
may grant licenses to justices of the peace to "celebrate
marriages in the parish in which they reside," on their
giving a legal bond. All marriages must be celebrated in
the parish where one of the persons has his domicile and in
the presence of three witnesses.[1269]
The provisions of the act of 1807 requiring clergymen
to procure license and give bond were repealed two years
later.[1270] In 1820 marriages irregularly celebrated by the
parish justices were validated; and these magistrates were
in future given power to act.[1271] The law regarding the
religious ceremony was made more flexible in 1826. "If
there be no priest or minister of a religious sect domiciled
in any one of the parishes of this state," it was then enacted,
"the judge of that parish, if required by either of the
parties, is authorized to send to any priest or minister
residing in a neighboring parish a commission to come and
celebrate marriages in the parish" where the judge has his
jurisdiction.[1272] "Regularly commissioned notaries of the
state" for the parish of West Feliciana were authorized to
act in 1850.[1273] As the law now stands, the ceremony may be
performed by these notaries; by justices of the peace and
parish judges, within their respective parishes; by judges of
the district courts; and by any minister or priest, "whether
a citizen of the United States or not."[1274]
The first matrimonial legislation of Texas coincides with
the earliest experiment in organized rule by settlers from
the United States in that Mexican province. By an ordinance
of January 16, 1836, adopted by the provisional
government, all "judges, alcades, commissarios, and regularly
accredited ministers of the gospel of whatever denomination,"
are given "power to celebrate the rites of matrimony
in their respective municipalities, which shall be done in the
presence of not less than three disinterested witnesses."
Certificates are to be made by the person officiating, attested
by one or more witnesses, one of which is to be "given to
the bride, and the other filed with the archives of the
municipality." Marriages hitherto "celebrated by bond or
otherwise, under the heretofore existing laws," are declared
valid; "provided that all officers who have attended to the
same, shall on application of either party, or the friend of
either party, file the bond or other evidence of such marriages
with the archives and records of their respective
municipalities." This must be done in ten days after the
application, under penalty of one hundred dollars to the
injured person, and the same fine from time to time every
ten days till the papers are filed.[1275]
The "Republic of Texas" was soon after set up by
the settlers; and one of its first legislative measures was a
general marriage law. "Whereas," runs this noteworthy
act, which reveals the embarrassments of American pioneer
life, "in many parts of Texas no person legally authorized
to celebrate the rites of matrimony has existed; and whereas,
from that cause many persons have resorted to the practice
of marrying by bond, and others have been married by
various officers of justice not authorized" to do so; "and
whereas, public policy and the interests of families require
some legislative action on the subject:" therefore it is
enacted that "all persons who have so intermarried" are
authorized to go before any of the persons provided for in
this act, "and publicly solemnize the rites of matrimony;
and all marriages so solemnized are ... declared of
legal and binding effect, from the period the persons had
previously intermarried agreeably to the custom of the
times," and their issue is made legitimate. But the benefits
of the act are conditioned on there being no legal bar to the
marriage, and on celebration within six months from its passage.[1276]
For the future, all ordained ministers, judges of the
district courts, justices of the county courts, and all justices
of the peace of the several counties of the republic may
perform the marriage ceremony.[1277] The present law of the
state is identical with the statute of the republic just cited,
except that Jewish rabbis are also expressly empowered to
join persons in wedlock.[1278]
In only three instances, among the twenty-one commonwealths
and territories under discussion, are witnesses
required by statute at the celebration; although in Maryland,
in the case of Quaker weddings, the contracting parties
are to sign a "certificate to the effect that they have agreed
to take each other for husband and wife," which certificate
must be attested by twelve persons present, and within sixty
days entered in the records of the society to which one of
them belongs, or else in some court in the county or city
where the marriage takes place.[1279] But in Louisiana, by the
act of 1807, all contracts are to be solemnized "in the
presence of at least three witnesses, each of whom shall have
attained the age of majority;"[1280] and this provision is still
retained in the law.[1281] At least two adult competent witnesses
are required in Oklahoma; and the same number in Porto
Rico.[1282]
Nowhere is any form of words prescribed for a legal
celebration,[1283] although in several cases the ceremony is negatively
mentioned. Thus, in Tennessee, it is expressly stated
that no formula is requisite, except that the parties "shall
respectively declare, in the presence of the minister or
officer, that they accept each other as man and wife."[1284] The
Oklahoma law requires marriage to be "contracted by a
formal ceremony" in the presence of two witnesses.[1285] The
consent of persons "who may be lawfully married," declares
the North Carolina statute, "presently to take each other
as husband and wife, freely, seriously, and plainly expressed
by each in the presence of the other and in the presence"
of a minister or justice, and the consequent declaration by
him that they "are man and wife, shall be a valid and sufficient
marriage."[1286] By the law of Arkansas and Indian
Territory a marriage may be solemnized by a clergyman
according to the forms and customs of his society; or by a
civil officer in such a way as he "shall deem most appropriate."[1287]
Mississippi has adopted a similar provision.[1288] In
Arizona, by an act of 1887, "all persons who at any time
heretofore have lived together as husband and wife, and
who shall continue to live together" for one year after this
law takes effect, or until one of the parties shall die, if
within the year, "shall be considered as having been lawfully
married and their children legitimate."[1289] Two years
later the Arizona legislature produced the following extraordinary
"blanket" provision. It is most generously enacted
that "every ceremony of marriage or in the nature of a
marriage ceremony of any kind, in this Territory, whether
either or both or more of the parties to such ceremony be
lawfully competent to be the subjects of such marriage or
ceremony or not, shall be certified by a certificate stating
the fact and nature of such ceremony, the full name of each
of the parties concerned, and the full name of every officer,
priest, minister, and person by whatever style or designation
called or known, in any way taking part in the performance
of such ceremony, which certificate shall be drawn up
and signed by the parties to such ceremony and by every
officer, priest, minister, and person taking part" therein, and
be filed for record within twenty days.[1290]
The usual penalties are generally prescribed for unauthorized
solemnization.[1291] In most cases a marriage is not expressly
declared void for neglect of legal formalities; but the Mississippi
statute makes a license essential to a valid contract;[1292]
while, on the other hand, in Tennessee the validity of a
marriage is not affected by the omission of the baptismal
name of either person in the license and the use of a nickname
instead, if the parties can be identified and have
cohabited as man and wife.[1293] Furthermore, it is provided in
Virginia, West Virginia, Kentucky, and Georgia that celebration
before an unauthorized person professing to have
legal power shall not invalidate a contract entered into in
good faith by the parties.[1294] Marriages valid at common law
are still good in Florida.[1295] It is curious to find the statute
of 32 Henry VIII., chap. 38, for marriages to stand notwithstanding
pre-contracts—repealed for England under Edward
VI.—kept in full force by the laws of South Carolina at
least until 1873, and in those of Kentucky for some years
after the beginning of the century.[1296]
After the Civil War the South found itself confronted by
a very serious problem—that of the social and legal status
of several millions of freedmen. The unions of slave men
and women had existed, of course, only at the will of the
master. They had no legal force at all. It became necessary,
therefore, to determine and to recognize the marriages
of the newly enfranchised negro population. For this purpose
in many of the southern states special statutes were
enacted. In Virginia it was provided that when colored persons
prior to February 27, 1866, agreed to occupy the
relation of husband and wife, and were then cohabiting as
such, "whether the rites of matrimony had been celebrated
or not," they shall be deemed husband and wife; and all
their children shall be legitimate, whether born before or
after that date; as were also the children of such parents
who had then ceased living together.[1297] Similar laws were
passed in West Virginia, Tennessee, South Carolina, Texas,
Florida, and Arkansas.[1298] There is a like provision for the
District of Columbia.[1299] By the Maryland act all reputed
marriages of colored persons before March 22, 1867, are
validated, if the parties establish before a justice of the
peace the fact of the marriage, of which then a certificate
is directed to be placed on record.[1300] The Georgia law is
unique. Persons of color living together as husband and
wife, March 9, 1866, are to sustain that legal relation to each
other, unless a man then had two or more reputed wives, or
a woman two or more reputed husbands. In such event the
man shall immediately select one of his reputed wives, with
her consent, or the woman one of her reputed husbands,
with his consent; and the ceremony of marriage between
these two shall be performed, under severe penalty for
refusal.[1301]
b) Forbidden degrees: void and voidable marriages.—Everywhere
in the region under discussion, except perhaps
in Louisiana, according to the spirit, if not by the letter, of
the laws, marriage appears as a relation of status as well as
of contract. Only in a few instances, however, is it actually
defined or are its requirements formally laid down. Thus,
in Arkansas, Indian Territory, Oklahoma, Missouri, and New
Mexico it is a civil contract to which the consent of parties
capable in law of contracting is necessary.[1302] The same in
substance is true of the statute of Louisiana, whose rhetorical
Gallic phrases have not been essentially changed since
1807. "The law considers marriage in no other view than
as a civil contract.... Such marriages only are recognized
by law as are contracted and solemnized according to
the rules which it prescribes." Since they are thus considered
by the law merely as civil contracts, "it sanctions all
those marriages where the parties, at the time of making
them, were (1) willing to contract; (2) able to contract;
(3) did contract pursuant to the forms and solemnities prescribed....
No marriage is valid to which the parties
have not freely consented; consent is not free, (1) when
given to a ravisher, unless it has been given by the party
ravished, after she has been restored to the enjoyment of
liberty; (2) when it has been extorted by violence; (3) when
there is a mistake respecting the person whom one of the
parties intended to marry."[1303] By the Porto Rico code "marriage
is a civil institution, originating in a civil contract
whereby a man and a woman mutually agree to become husband
and wife and to discharge toward each other the duties
imposed by law. It is valid only when contracted and solemnized
in accordance with provisions of law."[1304] In Georgia,
"to constitute a valid marriage ... there must be (1)
parties able to contract; (2) an actual contract; (3) consummation
according to law." To constitute an actual contract
"the parties must be consenting thereto voluntarily, and
without any fraud practiced upon either. Drunkenness at
the time of marriage, brought about by art or contrivance
to induce consent," is held to be a fraud.[1305]
The age of consent to marriage is prescribed in fifteen of
these states and territories; and, as in other parts of the
country, it is often far too low, particularly in the case of
girls. For males it is eighteen in Arizona, New Mexico,
Oklahoma, Porto Rico, and West Virginia; seventeen in
Alabama, Arkansas, Indian Territory, and Georgia; sixteen
in North Carolina, Texas, and the District of Columbia; and
fourteen in Kentucky, Louisiana, and Virginia. For females
it is sixteen in Arizona, Porto Rico, and West Virginia; fifteen
in New Mexico and Oklahoma; fourteen in Alabama,
Arkansas, Indian Territory, Georgia, North Carolina, Texas,
and the District of Columbia; and only twelve in Kentucky,
Louisiana, and Virginia.[1306]
Eighteen commonwealths of the group and the District
of Columbia have fixed, for both sexes, the age below which
the consent of parent or guardian is necessary to a legal
contract. For males it is twenty-one in Alabama, Arizona,
Arkansas, Florida, Indian Territory, Oklahoma, Kentucky,
Louisiana, Maryland, Mississippi, Missouri, New Mexico,
Porto Rico, Texas, Virginia, West Virginia, and the District
of Columbia; eighteen in North Carolina; and but sixteen
in Tennessee.[1307]
For females, it is twenty-one in Florida, Kentucky,
Louisiana, Porto Rico, Virginia, and West Virginia; eighteen
in Alabama, Arkansas, Indian Territory, Mississippi, Missouri,
New Mexico, North Carolina, Oklahoma, and Texas;
and only sixteen in Arizona, Maryland, Tennessee, and the
District of Columbia.[1308] The age for females is eighteen in
Georgia; but by the statutes of that state parental consent
does not seem to be required for male minors, nor for females
when publication is by banns.[1309] In effect, the same appears
to be the case in South Carolina, since a penalty is affixed
for marrying a female under sixteen without parental consent;
while for male minors such consent is not prescribed.[1310]
But in Alabama, Florida, Maryland, Virginia, West Virginia,
and the District of Columbia, it should be noted, parental
consent is not required, if the minor has been previously
married. In several cases the statutes contain important
special provisions regarding the marriage of minors which
modify the general rule laid down as to age and parental
consent. By the law of Alabama, before the issuance of a
license for the marriage of persons under the ages of twenty-one
and eighteen respectively, the judge of probate, in addition
to parental consent, "must also require a bond to be
executed in the penal sum of two hundred dollars," payable
to the state, "with condition to be void if there is no lawful
cause why such marriage should not be celebrated."[1311] In
Kentucky, if a female under sixteen marry without legal
consent, a court in her county having general equity jurisdiction
may commit her estate to a receiver, who, under
direction of the court, may pay out the profits, after due
compensation, to her separate use during infancy. At the
age of twenty-one, the estate is to be delivered to her, unless
the court thinks fit to continue it longer in the receiver's
hands.[1312] Under similar conditions, in West Virginia the
county court is empowered, "upon petition of her next
friend," to commit the estate of a girl between twelve and
fourteen years of age to a receiver, who is to give bond for
the faithful performance of his trust.[1313] A Tennessee law of
1899 prohibits the issue of a license to persons under sixteen
years, without written consent of parent or guardian.[1314] In
Porto Rico marriage under the age of consent "shall, nevertheless,
be valid ipso facto and without an express declaration,
if one day after having arrived at the legal age of
puberty the parties shall have lived together without the
representative of either of them having brought suit against
its validity, or if the woman shall have conceived before the
legal age of puberty or before having established such suit."[1315]
The Romano-French origin of the Louisiana laws is in no
way more plainly revealed than in the elaborate provisions
regarding the Family Council. This institution is given a
prominent place in the regulation of domestic affairs;
and, in the United States, it is peculiar to Louisiana. It
has always exercised jurisdiction in approving the marriage
of minors; and in appointing "tutors" or guardians;
while at present its advice may be required in the disposal
of children of divorced parents. By the act of 1807 consent
of the parents is necessary to the marriage of minors of
either sex under twenty-one years of age. In case of disagreement
the father's approval is sufficient. If either parent
be dead or incapable of consenting, the other is authorized to
act, "although he or she may have contracted a second marriage."
But if the parents are both dead or incapable, the
grandfathers and grandmothers "shall supply their places as
to this consent, and in case of difference of opinion, a majority
shall prevail;[1316] when they are equally divided in their
opinions, the council of the family is invoked to decide."
The council is likewise called in when parents and grandparents
are all dead; but its decision must be made within
one month after it is convoked and consent requested, otherwise
the marriage may be celebrated. In all cases, whether
by parents, grandparents, or council, approval is to be given
or refused in presence of the parish judge. The consent
must be drawn up in writing by that officer in presence of
two witnesses and the persons consenting; and by all of these,
including the magistrate, it must be signed. A certificate of
consent is made out in duplicate: one copy being retained by
the judge and the other given to the persons whose marriage
is thus approved. In case of consent by the council the certificate
"shall state the names of those of the family who
assembled, their professions and places of residence, and
which of them consented," together with "the names of the
parties intending to marry."[1317]
The regulation of consent is simplified under the present
law, and the patriarchal features have in part disappeared.
"The minor of either sex ... must have received the
consent of his father and mother or of the survivor of
them; and if they are both dead, the consent of his tutor."
But the family council, or "meeting" as now called, still has
important functions; and its composition and proceedings
are carefully prescribed. In all cases the meeting is composed
of "at least five relations, or in default of relations,
friends of him in whose interests they are called upon to
deliberate. These relations or friends must be selected from
among those domiciled in the parish in which the meeting is
held, or in a neighboring parish," provided it be at a distance
of not more than thirty miles. "The relations shall
be selected according to their proximity, beginning with the
nearest;" and the "relation" shall be preferred to the "connection"
of the same degree; while among relations of the
same degree the eldest shall be preferred. No person who
has "interests conflicting with those of a minor" is competent
to serve in the meeting, "although one of the nearest
relations." Members of the meeting are appointed by the
parish judge: and it must be held "before the recorder of
the parish, a justice of the peace, or notary public appointed
by the judge for the purpose." A meeting may be called for
a fixed hour on three days' notice; and the members are to
take oath to give advice according to their best knowledge.[1318]
The laws of the southern and southwestern states regarding
the forbidden degrees of lineal and collateral consanguinity
are far from uniform in their details; but they are
determined by the same general principles as those of New
England already considered. Ascendants and descendants
are, of course, always included.[1319] In the side lines prohibition
does not usually extend to first cousins. But in
Arizona, Oklahoma, Indian Territory, Arkansas, Louisiana,
and Missouri these may not legally marry;[1320] and this restriction
was also maintained in Georgia until 1865.[1321] By the law
of Porto Rico collaterals by consanguinity may not marry
within the fourth degree; but the court may, for good cause,
on petition of an interested person, waive this impediment.[1322]
Furthermore, in every place, except in Tennessee, either expressly
or by implication, marriage between aunts and
nephews or uncles and nieces is forbidden.[1323] With respect
to affinity it is not surprising to find still greater conservatism
in communities where the influence of the English
church had originally been so strong. Marriage with a
brother's widow or a deceased wife's sister is forbidden by
the Virginia statute of 1788.[1324] The prohibition as to the
latter does not seem to have been entirely removed until
1849;[1325] while with regard to the former it lingered until
1860.[1326] In Maryland the law containing these two restrictions
and likewise prohibiting marriage with a deceased
husband's brother or a deceased sister's husband was
repealed as early as 1790.[1327] A statute of Louisiana, in
1827, declares that, since the new civil code (1825) had
abolished impediments on account of affinity existing "under
the Spanish laws," and because even before the promulgation
of that code "some doubts were entertained whether
the Spanish laws on this subject were still in force," therefore
to prevent litigation "all marriages between brothers-in-law
and sisters-in-law contracted before the code went into
effect shall be held valid."[1328] The law of Georgia which for
many years forbade wedlock with a sister-in-law or a brother-in-law
seems also to have been abrogated.[1329] Finally it may be
noted that by the rule still existing in Alabama and Mississippi
marriage with a step-mother or a step-father is
prohibited; and the same is true of Georgia, Kentucky,
Maryland, South Carolina, Tennessee, Texas, Virginia, West
Virginia, and the District of Columbia, where, in addition,
one is not permitted to contract matrimony with a father-in-law
or a mother-in-law.
According to the rule generally prevailing marriage
within the forbidden degrees is void or voidable;[1330] the children
are often declared illegitimate, either absolutely or
when born after annulment; and severe penalties are imposed
for violation of the law.[1331] Likewise, as elsewhere in
the country, marriages are declared void or voidable for a
variety of reasons other than the forbidden degrees. Here
the greatest confusion and uncertainty exist; and there is
most urgent need of a strong effort to bring the laws of the
different states into harmony in this regard. The evil is
aggravated through the fact that transgressions which render
a contract invalid in one state may in a neighboring community
merely subject the offender to fine or imprisonment.
Thus in Virginia, West Virginia, and apparently also in
Georgia a marriage is void or voidable when celebrated out
of the state by residents who seek to avoid the requirements
of their own law.[1332] In Maryland under like conditions a fine
is imposed[1333] and in the District of Columbia such a marriage
is illegal and may be declared void.[1334] On the other hand, in
Kentucky, when persons there resident "shall marry in another
state, such marriages shall be valid ... if valid
... where solemnized."[1335] The statutes of the other fifteen
states and territories, except when the motive is union
within the forbidden degrees,[1336] appear to be entirely silent
on the subject of clandestine marriage.
Bigamous marriages are invalid in Florida, Georgia, Kentucky,
Louisiana, Maryland, District of Columbia, Mississippi,
Missouri, North Carolina, South Carolina, Tennessee,
Virginia, and West Virginia; but in Alabama, Arizona,
Arkansas, Indian Territory, and Texas they are only prohibited
or made punishable; while the legislature of New
Mexico attaches a penalty for the offense of two to seven
years in the penitentiary.[1337] Marriages obtained by fraud
or by force, menace, or duress are dealt with in a similar
spirit. They are prohibited or punishable in Alabama,
Arizona, Mississippi, Missouri, Tennessee, and Texas;[1338] void
or voidable in District of Columbia, Arkansas, Indian
Territory, Georgia, Kentucky, and Louisiana;[1339] fraudulent
contract is a ground of divorce in Oklahoma; while the
statutes of the remaining states are either entirely silent,
as in the case of Florida, Maryland, New Mexico, Virginia,
and West Virginia; or such marriages are void at
common law where no statute exists; or under general
statutory provisions, as seems to be the case in North
Carolina and South Carolina.[1340] Various other grounds for
invalidating a marriage are here and there assigned. Such
is lack of understanding, in North Carolina and Oklahoma;
idiocy, in District of Columbia, Kentucky, and South Carolina;
lunacy, insanity, or an unsound mind, in the two states
last named, and also in Georgia, Virginia, West Virginia,
and the District of Columbia; want of legal age of consent,
in Alabama, Arkansas, Georgia, Kentucky, New Mexico,
North Carolina, Oklahoma, Texas, and West Virginia; want
of physical competence, in Arizona, Arkansas, Indian Territory,
Georgia, North Carolina, Texas, Virginia, and West
Virginia;[1341] or lack of proper solemnization, in Kentucky.[1342]
But in these states as elsewhere, it must be remembered, the
statutes are supplemented by the common law.
Very naturally, in the region where slavery existed before
the Civil War a horror of intermarriage between whites and
blacks is everywhere evinced by the statute-maker. Accordingly,
every state and territory in the group under examination—except
New Mexico, Porto Rico, and the District of Columbia—has
enacted rigorous laws to prevent miscegenation.
In Alabama and Tennessee such marriages are prohibited "to
the third generation" under severe penalties;[1343] in all the other
states they are declared void or voidable, and usually the
issue is absolutely illegitimate. Unfortunately, the statutes
on this subject show a deplorable lack of uniformity. They
are divergent in their most important provisions. Their language
is not always clear, and even when it is technically
exact, the occasional use of vulgar fractions to designate the
degree of African blood interdicted must often put its certain
interpretation far beyond the people whom it most
vitally concerns. Thus in Arkansas, Indian Territory, and
Kentucky[1344] marriage is void between a white person and a
negro or mulatto; in Georgia[1345] it is so between a white person
and a person of African descent; in Louisiana and Virginia,
between white persons and persons of "color;" in
West Virginia, between a white person and a negro; in
Oklahoma, between persons of the white race and those of
the negro race; in South Carolina, between a white person
and an Indian, negro, mulatto, mestizo, or half-breed; in
Florida between a white person and a colored person; in
Maryland between a white person and a negro or a person of
negro descent to the third generation inclusive; in North
Carolina the interdiction is the same, except that Indians are
included;[1346] in Texas the prohibition is between persons of
European blood and Africans or their descendants. Elsewhere
the lawmaker resorts to arithmetic. Marriage is void
in Mississippi[1347] between a white person and a person having
one-eighth or more negro or Mongolian blood; and in Missouri,
where the negro blood amounts to one-eighth or more.
Arizona, like Mississippi, objects strongly to the union of
whites and Chinese; so a marriage is declared void between
persons of "Caucasian" blood and Africans or "Mongolians,"
or with their descendants.[1348]
But numerous and varied as are the legal restrictions put
upon marriage in the southern and southwestern states, one
regrets to discover that not even a beginning has yet been
made in the effort to thus check the increase of paupers and
vagrants, or to prevent the hereditary transmission of tendencies
to vice, crime, or incurable disease.
In many cases indirect encouragement of matrimony is
given in the usual way through legitimation of children or
the suspension of penalty or prosecution.[1349] Since 1856 the
Statutes of New Mexico, in this connection, contain a somewhat
novel clause. It is "provided that when any persons
are found living together publicly as if they were married,
they shall be required immediately to contract marriage, if
there is no impediment to prevent their so doing; and if
they do not marry upon the first requirement of any justice,
they shall, upon accusation, be fined not less than twenty-five
nor more than eighty dollars for every time they shall
be so found."[1350] West Virginia favors wedlock in a different
way. Not only may either person bring suit, in the manner
very commonly prescribed, to annul or validate a doubtful
marriage; but in that event and "in every other case where
the validity of a marriage is called in question, it shall be
presumed that the marriage is valid, unless the contrary be
clearly proven."[1351] Georgia, however, is the only state which
offers direct encouragement. It is formally announced that
"marriage is encouraged by the law, and every effort to
restrain or discourage" it by "contract, condition, limitation,
or otherwise is invalid and void." Still, "prohibiting
marriage to a particular person or persons, or before a certain
seasonable age, or other prudential provision looking only to
the interest of the person to be benefitted, and not in general
restraint" of matrimony, will be allowed.[1352]
c) Certificate and record.—In the region whose laws are
under examination license from a county officer is now in most
cases essential before a marriage may be legally solemnized.
But originally in the older commonwealths there existed a
dual system of optional civil license or ecclesiastical banns,
which may be contrasted with the somewhat different system
by banns or posting so long preserved in the New England
states. Indeed, in at least two instances it still survives.
By the first legislation of Virginia after the Revolution
the provisions of the act of 1748 on this subject are retained.[1353]
In 1780 it is provided that "no persons, except the people
called Quakers and Menonists, shall hereafter be joined
together as man and wife without lawful license first had, or
thrice publication of banns in the respective parishes, or congregations,"
where such persons "severally" reside. Within
three months a "certificate of solemnization" is to be filed
with the clerk of the county where the marriage takes place.
The fee for performing the ceremony is fixed at "twenty-five
pounds of tobacco, and no more, to be paid in current money
at the rate which shall be settled by the grand jury."[1354] Under
the elaborate statute of 1792 a license, or oral banns in case
of members of the Protestant Episcopal church, is still
requisite. On submitting an approved bond in the sum of
one hundred and fifty dollars, license may be obtained from
the clerk of the court of the county where the woman
"usually resides." When either person is under twenty-one
years of age, consent of parent or guardian, written or oral,
is necessary before license may be issued. If written, the
consent must be attested by two witnesses, one of whom,
appearing in person, is to swear that the signature was made
in his presence. Within twelve months—the time already
fixed by the act of 1784—a certificate of the marriage must
be returned to the clerk of the county or corporation in
which it was solemnized.[1355]
Thus, with slight change, the law of Virginia remained
for over half a century.[1356] But in 1848 oral banns were
abolished and the modern system by civil license only was
established.[1357]
In North Carolina a dual system of banns and license,
similar to that of Virginia, was authorized by the act of
1778; and it did not yield to the modern plan until 1872,
when banns were abolished and bond for license was no
longer required.[1358] Tennessee retained the system of the
parent commonwealth, North Carolina, until, far down in
the century, it gave way to the typical American plan.[1359]
Kentucky does not seem to have followed the example of
Virginia; but civil license in all cases was there required
from the origin of the state.[1360] In Missouri, on the other
hand, in 1805 a triple optional system of banns, posting, or
license was established by the governor and judges of
Indiana Territory. Notice of intention to marry is to be
published for fifteen days at least, either orally on "three
several Sundays, holy days, or other days of public worship,
in the meeting in the towns where the parties respectively
belong;" or by affixing a written notice signed by one of the
judges or a justice of the peace in some public place where
the persons respectively dwell. Otherwise a license under
the governor's hand and seal, authorizing celebration without
publication, must be obtained. By this law persons
solemnizing marriages are to keep a record; and within three
months, in each case, they are required to make a return to
the registrar of the district.[1361] Banns, however, do not seem
ever to have been recognized after Missouri was admitted to
the Union. The act of 1825 is entirely silent as to both banns
and license. In place thereof it is provided that the marriage
of a minor may not be celebrated unless parent or
guardian be present and give consent; or else a written
certificate of assent must be produced under the hand of
such parent, guardian, or other person having legal control,
attested by the oath or affirmation of a witness of full age.[1362]
Maryland still clings to the system of license or ecclesiastical
banns substantially as it appears in the act of 1777.[1363]
The same was formerly true of the District of Columbia,
where the statute of Maryland was in force until 1896,[1364]
Georgia has been equally conservative. By the law of 1785
a magistrate or a clergyman may solemnize matrimony after
eight days' "public notice" or on receiving a license from
"his honor the governor, or register of probates."[1365] This
plan lasted only until 1799, when license or thrice publication
of banns, in the usual way, was substituted.[1366] So the
law remained[1367] until 1860, when a reactionary step was taken.
In December of that year an act was passed by the legislature,
to take effect January I, 1862, containing a paragraph
which made either license or ecclesiastical banns essential to
a valid marriage. However, on the repeal of this paragraph
in 1863, the old optional system by banns or license, without
declaring either essential to a valid contract, was restored;
and it has persisted to the present time.[1368]
The peculiar procedure observed in Louisiana with
respect to parental consent or the consent of the family
council, in the case of the marriage of minors, has already
been described in the preceding section. The act of 1807
contains also a general provision for notice and license.
Persons applying for license must satisfy the parish judge,
by two witnesses if necessary, that they are twenty-one
years of age; and the proof must be registered. The intentions
of the persons are then to be published by the judge
through "posting up a notice at the door of the nearest
church, [or] at the door of the court-house of the parish,
announcing a day on which a license would issue, unless
opposition should be made." If no objection be raised
within fifteen days, the license may be issued, provided the
intended husband execute a bond, with sufficient security,
"in a sum proportioned to his fortune, at the discretion of
the judge," that there is no legal impediment to the marriage.
But there is an important exception to the general
rule. In "certain cases," if minors are not concerned, "the
judge may dispense with the above mode of publishing marriages,
by his special license to that effect, and under his
own responsibility." Minors must apply to the judge of
the parish in which one of the persons has his domicile.
The application is then published, and "if no opposition be
made, the license shall be granted as directed in the case of
persons who have attained the age of twenty-one years."[1369]
The wholesome provision requiring notice to be published
for a certain period before issuance of the license is no
longer in force. Otherwise, though somewhat simplified,
the law of Louisiana remains today practically what it was
in 1807. License is always requisite; it must be issued by
the proper officer in the parish where either the bride or
groom is domiciled; and the provision for the bond is expressed
in exactly the same words as of old, except that the
duration of the security is limited to two years. In the parish
of Orleans licenses are granted by the board of health
and judges of the city courts; in the other parishes of the
state, by the clerks of the district courts, or by the district
judge when the clerk is himself a "party to the marriage."[1370]
The general features of matrimonial administration in
the entire group of states may now be presented in rapid
outline. Everywhere, except in Georgia and Maryland, as
already explained, and in New Mexico and South Carolina,
which have no legislation on the subject, license in every
case is required. The present law of Virginia does not
differ materially from that of earlier years. The marriage
license is issued by the clerk of the court of the county or
corporation in which the woman usually resides. If the
office of clerk be vacant, then the judge of the county court
or the mayor of the corporation may act, making return to
the clerk "as soon as there may be one." Before license is
granted for the marriage of a minor, there is requisite the
consent of the father or guardian, or, if none, of the mother,
given personally or in writing subscribed by a witness who
must swear that the writing was signed in his presence.
Similar functions are performed by the clerk of the county
court in West Virginia,[1371] Tennessee,[1372] and Arkansas; the clerk
of the circuit court, in Maryland, Texas, and Mississippi;
the county register or recorder of deeds, in North Carolina
and Missouri; the county ordinary or his deputy, in Georgia;
the county judge, in Florida; the county judge of probate,
in Alabama and Oklahoma; the clerk of the probate court,
in Arizona; the county clerk, in Kentucky; the clerk of the
district court, in Louisiana; the municipal judge, in Porto
Rico; and by the clerk of the supreme court of the District
of Columbia.[1373] As in Virginia, license must be obtained
from the proper officer of the county where the woman
resides, in Alabama, Florida, Mississippi, and West Virginia.
The same is true in Georgia, if the woman is "resident in
the state;" and in Kentucky, unless she is of full age or a
widow, and the license is issued on her personal or written
application, when it may be granted by any county clerk.
But in Maryland and North Carolina license must be
obtained in the county where the marriage is expected to
occur; in Tennessee, either in the county in which the bride
resides or in that where the marriage is to be solemnized;
while in Louisiana, as already seen, it may be issued in the
county where either the bride or the groom is domiciled.
The statutes of the remaining states appear to have no definite
provisions on this subject. The law of Porto Rico is
very careful in this regard. "Persons desiring to contract
marriage shall first present themselves before the municipal
judge of their domicile if they shall have the same domicile,"
or before that officer in their respective places of abode if
they have different domiciles; "and first being duly sworn,
shall be examined as to their legal capacities and incapacities
to enter into matrimony." They must also sign a sworn
declaration of their names, ages, and professions, with those
of their parents, which the judge is required to record in his
"marriage book." Not until ten days after the examination
may the judge issue the license, or refuse it if on proper trial
any objection to the marriage is sustained; nor may he issue
it in case the persons have different domiciles until the other
judge "has forwarded to him a copy of the record made by
the other contracting party."[1374] In Arkansas, Indian Territory,
Tennessee, and until recently in Mississippi,[1375] a bond in
a definite sum, conditioned that the parties may lawfully
marry, must be given by the person applying for the license.
The same is true for Alabama in the case of minors; and
also for Kentucky when the persons are unknown to the
clerk. In the other states, if demanded by the official,
oath or affidavit usually takes the place of bond. For solemnizing
a marriage without proper license presented the
offender is very generally subjected to severe penalties.[1376]
In every commonwealth, except South Carolina, Arkansas,
and Indian Territory,[1377] it is the duty of the person or
society conducting the celebration to make a "return"
thereof to the proper official, either in the county where the
woman dwells or in that of the marriage.[1378] This report must
be submitted within a fixed period, which is one month (or
thirty days) in Alabama, Louisiana, and Maryland; two
months (or sixty days) in Texas, Virginia, North Carolina,
and Arkansas; three months (or ninety days) in Kentucky,
Missouri, and Mississippi; six months in Tennessee; twenty
days in Arizona; ten days in Florida and the District of
Columbia; two days in Porto Rico; while in Oklahoma
return must be made "without delay." The return to the
clerk may be by a separate certificate, as in Alabama, Virginia,[1379]
Mississippi, Porto Rico, and Maryland; or by
"endorsement" or "certificate appended," as in North
Carolina, Oklahoma, Georgia, Tennessee,[1380] West Virginia,
Florida, Texas, and Arizona; or on a "coupon" issued with
the license, as in the District of Columbia.[1381] New Mexico
requires two reports a year, on the first days of July and
January, or a report "at every regular term of the probate
court for each county." In the District of Columbia every
minister celebrating marriage by license must "annually, in
the month of November, return on oath a list of the names
of the persons, and the time when married," to the clerk of
the supreme court.[1382] Mississippi has provided for bringing
delinquents to account. The clerk is directed "to examine
the records once a month, and if any ... person be found
in default, he shall institute inquiry," at the cost of the culprit,
summoning him to make return of the certificate
according to law.[1383] Similarly, in Missouri it is enacted that
the recorder of deeds "shall certify to the grand jury, at each
regular term of the court having criminal jurisdiction within
the county, a list of all marriage licenses issued by him,"
but not returned within the legal period of ninety days; the
negligent minister or officer being guilty of a misdemeanor
and liable to a fine of from five to twenty-five dollars.[1384] Only
in two cases is there provision for report of the marriages of
residents celebrated without the state. By the statutes both
of Virginia and West Virginia a certificate or statement of
such contracts verified by any person present at the ceremony
"may be returned" to the clerk of the court of the county
where the husband resides, or if he be not a resident, then
where the wife dwells; and the usual abstract of it must be
recorded by the clerk.[1385]
In a few instances the law directly provides for giving a
certificate to the newly wedded pair; although where the law
is silent the same may sometimes be done by custom when
request is made. Maryland, Porto Rico, Missouri, and the
District of Columbia have authorized such a certificate;[1386]
and Arkansas has enacted that after the license has been
returned to the clerk, and by him duly recorded, he shall at
once make out a certificate of such record, attach it to the
license, and send it back to the person who presented the
same.[1387]
The southern and southwestern states have in general
taken far less pains than those of New England to provide
by law for a full record of marriages and for collecting,
registering, and publishing the important social statistics
connected with family life. In fact, there is much less completeness
regarding essential details throughout the entire
field of matrimonial legislation. New Mexico, Missouri, and
Kentucky appear to be the only states or territories which
require every person solemnizing marriages to keep a record;
although the Quakers of Maryland, as already seen, must
enter the contracts by them solemnized in their own records,
or in the records of some court, city, or county where the
wedding occurs; and both Alabama and Mississippi require
marriages performed by the pastors of any religious society
to be registered in a book kept for the purpose.[1388]
Everywhere[1389] the clerk or other officer must keep a
register of the facts entered in the license, sometimes with
other data; and usually the original license is placed on file.
The laws of Virginia and West Virginia, being practically
the same, are perhaps more complete and more wisely drawn
as regards registration than those of any other state of this
group. In Virginia the clerk is required to keep three
books, to be called respectively the register of marriages, the
register of births, and the register of deaths. At the time
of issuing a license he is to ascertain, as nearly as may be,
the date and place of the proposed marriage, the full names
of the parties, whether they are single, widowed, or divorced,[1390]
the place of their birth and residence, the names of their
parents, and the husband's occupation. Within twenty days
after return of the license and certificate by the person
solemnizing, the clerk is to record a full abstract thereof in
his marriage register, setting forth the facts in convenient
tabular form.
These two states have also provided for the collection of
statistics from coroners, heads of families, and physicians;
and, like Kentucky and Arkansas, they have established
state systems of registration. On or before the first of March
annually the clerk or other official in every county is required
to submit to the state auditor of public accounts a full report
of the facts contained in his marriage register; and every
year the auditor is to prepare an abstract of the county
reports and submit it to the general assembly at each regular
session.[1391]
a) Solemnization.—For half a century after the Declaration
of Independence New York abstained from any legislation
regarding the marriage celebration. The optional civil
or ecclesiastical ceremony was still allowed as in the provincial
era. In the meantime acts were passed for the punishment
of bigamous and other unlawful unions; and in 1813
the statute-maker felt himself called upon to deal with the
same hard case of conscience which had long before troubled
the people of Virginia and Massachusetts. It was decreed that
"every negro, mulatto, or mestee within this state, who is now
a slave for life, shall continue such ... unless manumitted
according to law; and the ... baptizing of any slave
shall not be deemed ... a manumission." All marriages
contracted "wherein one or more of the parties was, were, or
may be slaves, shall be considered equally valid" as if they
were free; but here also it is carefully provided that nothing
in the law shall be construed so as to cause the bondman to
be manumitted.[1393]
The revised statutes of 1827-28 contain a general "title"
regulating matrimony which in many respects forms the
basis of the existing law. "For the purpose of being registered
and authenticated" marriage shall be solemnized only
by the following persons: (1) ministers of the gospel and
priests of every denomination; (2) mayors, recorders, and
aldermen of cities; (3) judges of the county courts and justices
of the peace. Quakers and Jews may "continue" to use
their own rites. Record of marriage certificates is provided
for; and in place of license or banns—neither of which is
mentioned—the person performing the ceremony is authorized
to identify the parties, if either is a stranger, by the
oath of some person whom he knows.[1394] The existing law
contains a similar provision. Under like circumstances the
minister or magistrate must ascertain from the applicants
their right to contract marriage, and for that purpose he
may examine one or both of them, or any other person under
oath, "which examination shall be reduced to writing and
subscribed by the parties."[1395] Throughout the century the
law regarding celebration has remained unchanged in general
character, although authority to perform the ceremony
has been extended to other officials and magistrates.[1396]
The state steadily maintained the validity of marriages
entered into by simple agreement without any formal celebration.
It was enacted in 1887 that the provisions of the
statute shall not be "construed to require the parties to any
marriage, or any minister or magistrate to solemnize the
same in the manner "therein prescribed;" but all lawful
marriages contracted in the manner heretofore in use in this
state, shall be as valid as if this article had not been passed."[1397]
The usual evils followed: but an effective remedy seems
at last to have been provided. By an act of April 11,
1901, a marriage must be solemnized either (1) by a clergyman
or minister of any religion, or the leader of the Society
for Ethical Culture in the city of New York; (2) a mayor,
recorder, alderman, police justice, or police magistrate of a
city; (3) a justice or judge of a court of record or municipal
court, or a justice of the peace; or (4) by "a written contract
of marriage signed by both parties, and at least two witnesses
who shall subscribe the same, stating the place of residence
of each of the parties and witnesses and the date and place
of marriage, and acknowledged by the parties and witnesses
in the manner required for the acknowledgment of a conveyance
of real estate to entitle the same to be recorded. Such
contract shall be filed within six months after its execution
in the office of the clerk of the town or city in which the
marriage was solemnized." After the first day of January,
1902, no marriage claimed to have been contracted otherwise
than in this article provided "shall be valid for any purpose
whatever." The act, however, declares the validity of every
lawful union formed "in the manner and pursuant to the
regulations" of a religious society to which either person
belongs.[1398] Thus with the beginning of the new century the
"common-law" marriage appears to have finished its long
course in New York state.
The statutes of that commonwealth relating to contract
or solemnization are extended to Indians residing in the
state; although it is especially provided that those "who
have heretofore or shall hereafter contract marriage according
to the Indian custom or usage, and shall cohabit as husband
and wife, shall be deemed lawfully married. Indian
marriages may be solemnized by peace-makers within their
jurisdiction with the same force and effect as by a justice of
the peace."[1399]
For New Jersey the first matrimonial law of the period
under review is that of March 4, 1795, repealing an act of
March 24, 1719. By this law every justice of the peace and
"every stated and ordained minister" in the commonwealth
is given power to perform the wedding ceremony; and, in
addition, every religious society is permitted to employ its
own usage in the marriage of its members; but such contracts
are to be recorded in the same way as those before a
minister or magistrate.[1400] Amendments were made from time
to time down to 1882, when an act appears which in nearly
all of its leading provisions is still in force.[1401] Marriage may
now be solemnized in the state by every judge of a court of
common pleas; any justice of the peace,[1402] mayor, recorder, or
police justice; and by every stated and ordained minister of
the gospel. In addition, every religious society in the state
may join together in wedlock persons one or both of whom
are its members; and by a later enactment authority is conferred
upon the chief justice and the associate justices of the
supreme court, the chancellor and every vice-chancellor of
the equity courts, in as full measure "as if the marriage
were solemnized by a stated and ordained minister of the
gospel."[1403] The marriage of a minor may not be solemnized
without certificate of parental consent, whose genuineness
must be proved by the oath of at least one witness of full age
and discretion.[1404]
Pennsylvania has shown remarkable conservatism in her
regulation of the marriage celebration. After two centuries,
the act of 1701, taking its form in that of 1693, is with
slight alteration still in force. It contains no precise designation
of the persons who may perform the ceremony. Its
spirit is revealed in the dictum of George Fox, elsewhere
quoted: "We marry none, but are witnesses of it." Self-betrothal
and self-gifta, as in early mediæval days, are still
practiced by the Quaker descendants of the ancient Teutons.
In 1885 a statute expressly authorizes a man and a woman
to solemnize their own marriage.[1405] This provision and a
later requirement of license in all cases are the only legislative
changes affecting the celebration since 1730, when
certificate of parental consent was demanded. Now, as in
1701, the bride and groom, taking each other by the hand,
are permitted to plight their vows in the presence of at least
twelve witnesses, one of whom being a justice of the peace;
although the courts have decided, as indeed they could
hardly fail to do, that this provision is merely "directory"
and not mandatory;[1406] for the original enactment declares
that it shall not extend "to any that marry in their own
society in the absence of a justice of the peace."[1407] Such is
the liberty permitted by the law; but the practice of the
majority of the people probably does not differ much from
the common usage elsewhere in the United States. From
an act of 1849, still retained in the statute-book, one may
perceive who are the officers usually called upon to perform
or witness the wedding ceremony. "Every person in whose
care or profession may be found the record kept by any
minister of the gospel, judge, alderman, or justice of the
peace, of any marriage contract solemnized" by or before
the same shall on application, and the payment or tender of
a fee of fifty cents, deliver to the applicant a full transcript
of such record, with a proper certificate of its correctness.[1408]
There is a sharp contrast between the broad liberalism of
Pennsylvania and the narrow, even reactionary, policy of
Delaware, whose territory also once formed a part of the
proprietary domain of William Penn. The act of January
29, 1790, is decidedly retrogressive. Its keynote is pitched
in the preamble, "Whereas," we are assured, "matrimony is
an honorable institution of Almighty God, designed for the
mutual convenience and happiness of mankind; and sober,
discreet, and advised union of persons in matrimony is the
duty of every good citizen, and the unadvised, clandestine,
loose, and unseemly proceedings in marriage, tend to introduce
a contempt and irreverent regard for that holy institution,
and a dissoluteness of manners among the thoughtless
part of the community;" furthermore, since evils may arise
"to persons secretly and improperly uniting themselves
... without knowledge of their parents, guardians, or
friends; and the causes are now removed, which rendered it
convenient to have marriages celebrated by justices of the
peace": therefore, under penalty of one hundred pounds lawful
money for disobedience, it is declared that marriages between
white persons may be celebrated only by "ministers
or preachers of the gospel, appointed or ordained according
to the rites and ceremonies of their respective churches, or
by the religious society to which they belong" according to
its established mode and usage.[1409] Civil marriage was thus
completely abrogated, to be grudgingly restored only after
more than fourscore years. Since 1874 the mayor of Wilmington
has had a share in the matrimonial business, otherwise
the law of 1790 still governs the nuptial celebration.[1410]
The foundation of Marietta in 1788, and the subsequent
organization of the first territory of the United States, under
the ordinance of 1787, constitutes an event scarcely second
in significance to any in the whole course of American history.
It marks the beginning of distinctively western institutions,
although these, especially as regards the local
political organisms, are in many respects predetermined and
molded by those of the two old middle states, New York and
Pennsylvania.[1411] The laws adopted or enacted for the region
of Ohio, both before and after that state was admitted to the
Union in 1802, form in principle and often in detail the
models or prototypes on which rest the legal systems of the
numerous commonwealths filling the vast expanse of territory
stretching from the Alleghanies to the Golden Gate.
This is surely true in general of the laws of marriage;
although Ohio, in still clinging to the optional plan of civil
license or oral ecclesiastical banns, has retained an archaic
feature which finds little imitation in the other western states.
By a law of the Northwestern Territory in 1788, after
banns, license, or notice by posting, persons may be joined
in wedlock before any judge of the general court, or of the
courts of common pleas in their respective districts, or before
a minister of any religious society or congregation where he
is settled; and the Quakers are especially guaranteed the
enjoyment of their peculiar rites.[1412] Four years later the
same authority is granted to all justices of the peace.[1413] In
1803 a new act appears. Now justices of the peace may
perform the ceremony in their proper counties; Quakers
and Menonists may use their own rites; and every "ordained"
minister of any society or congregation is given the
same authority, on presenting his credentials to the county
court of common pleas,[1414] and receiving a license to that effect.
But the function of such minister is no longer restricted to
his own congregation; he may act anywhere in the state.[1415]
The law was thus practically complete. Under the present
statute of Ohio[1416] any ordained minister after obtaining a license
from the county judge of probate; any justice of the
peace in his county; any religious society "agreeably to the
rules and regulations of their respective churches;" or the
mayor of any city or incorporated village, in the county
where it wholly or partly lies, is authorized to join persons
in wedlock. A clergyman still has authority throughout
the state; but since 1822, in each case, before he may legally
act, it is necessary to exhibit his license to the court of the
county where he intends to solemnize a marriage.[1417] When
the marriage is of a minor, without the authority of a license,
the person solemnizing is required to satisfy himself that
banns have been duly published, and that the consent of
parent or guardian has been obtained.[1418]
Indiana, admitted to the Union in 1816, Illinois in 1818,
Michigan in 1837, and Wisconsin in 1848, were all included
in the "Territory northwest of the Ohio," and, so far as they
had inhabitants, were therefore originally affected by the
laws and government established under the ordinance of
1787. Gradually, as each portion became a separate territory
or an independent state, the early statutes, already
considered in connection with Ohio, were retained, modified,
or superseded. So far as the marriage celebration is concerned,
the course of history in Indiana and Illinois need
not here be dwelt upon. In the former commonwealth the
ceremony may now be conducted by all ministers of the
gospel and priests of every denomination, throughout the
state; by judges of all courts of record, justices of the peace,
and mayors of cities, within their respective counties; and
by the Friends and German Baptists according to the rules
of those societies. But no marriage, legal in other respects,
is deemed void "on account of the incapacity of the person
solemnizing the same."[1419] The present law of Illinois shows
several variations. The ceremony may be performed either
by a minister of the gospel in regular standing with the
church or society to which he belongs; by a judge of any
court of record; a justice of the peace; any superintendent
of a public institution for the education of the deaf and
dumb in the state; or, if either of the persons is a member
of the "religious society known as Friends or Quakers, they
may be lawfully married by making known their intention
... to a standing committee of an official meeting, at
least one week before said marriage ... and by appearing
in a public meeting or private gathering, before official
witnesses of said body, with a certificate duly setting forth"
their names and residences, with those of the parents, if
living. This certificate, duly signed by the contracting
persons and by the official witnesses, must be publicly read
by one of the witnesses, and afterward entered in the records
of an organized meeting of the society. In addition, the
law guarantees every religious society the use of its own
rites.[1420]
By the first marriage law of Michigan Territory, adopted
in 1805 from the statutes of Massachusetts, so "far as is necessary
and suitable to the circumstances," the wedding ceremony
may be performed by justices of the peace and regular
ministers of the gospel, when at least one of the persons
marrying is an "inhabitant" or "resident" of the district
where such clergyman or magistrate dwells; and there is the
usual clause securing to all religious societies their peculiar
usage or customs.[1421] In 1820 the contemporary law of Ohio
was adopted, authorizing celebration, after license, banns, or
posting, by justices of the peace in their own counties, or by
ministers of the gospel in regular communion with any
society of Christians according to the forms of the church to
which they respectively belong.[1422] The same privilege is
expressly reserved to Quakers and Menonists in 1827;[1423]
while in 1832 "ordained ministers" in regular communion
with their societies, "but not otherwise," may perform the
ceremony, provided their credentials are first entered "of
record" with the county clerk.[1424] The present statute is in
substance nearly the same, except that the "ordained"
minister, who "continues to preach the gospel" in the state,
is not required to file his credentials as by the earlier acts.
Non-resident clergymen are also authorized to perform the
ceremony in the state, provided a proper record be kept and
a return duly made according to law; but in all cases the
person conducting the celebration is commanded first to
examine at least one of the persons on oath as to the legality
of the intended contract.[1425]
Wisconsin, whose law on the subject has been but slightly
altered since 1839, authorizes solemnization by justices of
the peace or court commissioners in the counties where they
are elected; and throughout the state by any judge of a
court of record, or by a minister or priest in regular communion
with any religious society, so long as he continues
to preach the gospel. Since 1851 Minnesota has had a
similar statute; except that court commissioners are not
mentioned, and instead the superintendent of the department
for the deaf and dumb in the Deaf, Dumb, and Blind Institute
of the state is given authority. In both Minnesota and
Wisconsin Quakers, on complying with the law as to return
of certificate, are permitted to use their own forms;[1426] a minister,
before being empowered to act, is required to file a
copy of his credentials of ordination with the clerk of the
court in some county, and receive from him a proper certificate
thereof; and the magistrate or other person performing
the ceremony may in all cases examine at least one of the
parties on oath as to the legality of the intended marriage.[1427]
In the remaining fifteen western states, not yet considered,
there is relative uniformity regarding the law of celebration.
Originating even as organized territories in recent years, these
commonwealths have profited by the experience of the older
communities whence their people have mainly come, and so
there has been less reason for experimentation. The history
of their marriage laws in general is therefore less eventful.
Everywhere the optional civil or religious celebration is
recognized. (1) In all cases justices of the peace are authorized
to conduct the solemnization. Occasionally, as in
Alaska, North Dakota, Oregon,[1428] Nevada, and Washington,
their power is expressly confined to their respective counties
or districts; elsewhere no such restriction appears. (2)
Everywhere without exception the judges or justices of the
higher courts of record are granted authority, although the
particular courts named vary considerably from state to
state. Thus, in Colorado, Kansas, Nebraska, and Wyoming
the statute simply allows any "judge" to perform the ceremony;
while in North Dakota the same power is bestowed
upon every judge of a "court of record," and in Alaska
and Oregon, on any "judicial officer" within his proper
jurisdiction. It is granted to judges of the district courts,
in their respective districts, in Nevada; to judges of the
supreme and district courts, in Montana and Utah; to these
same magistrates and to judges of probate, in Idaho; to the
justices of the supreme court and the judges of superior
courts, in California and Washington; to the justices of the
supreme court and the judges of the circuit or county courts,
in South Dakota; and to these same judges and to those of
the district courts, in Iowa. (3) Throughout these states, in
every instance, all ordained ministers, priests, or preachers of
the gospel, duly authorized by the usages of their respective
churches or societies, are allowed to celebrate matrimony;
but there is wide diversity in the phraseology of the statutes.
Their power is not limited to a particular place, but may be
exercised anywhere in the state. Only in one case among
these fifteen states, Nevada, is the clergyman required to
exhibit his credentials and take out a formal license. Sometimes,
as in Kansas, Nevada, and North Dakota, the Friends
are expressly permitted to observe their own rites; or, as in
California, Iowa, Nebraska, Montana, Washington, and the
two Dakotas, there is a general clause in the law favoring all
religious societies having peculiar methods of celebration.
City mayors are allowed the same authority as magistrates
and ministers in Iowa, Montana, Idaho, Utah, and South
Dakota. By the law of the last-named state, as in New
York, Indians are permitted to marry according to their own
forms; and in the West, during the earlier stage of development,
the governor has sometimes been granted authority to
join persons in wedlock, such being the case formerly in
Nevada and still in Idaho.
California, like New York, South Dakota, Wisconsin,
Minnesota, and some other states, requires special precautions
on the part of the person performing the ceremony,
tending to prevent illegal or clandestine unions. He must
first demand the "presentation of the marriage license; and
if he has any reason to doubt the correctness of its statement
of facts" as to identity of the persons, their names, ages, and
places of residence, or the consent of their parents or guardians
in case of minors, he must satisfy himself of the same;
and "for that purpose he may administer oaths and examine
the parties and witnesses in the like manner as the county
clerk does before issuing the license." Idaho has a similar
law; and that of Colorado allows the minister or magistrate,
in case of minors having no parents or guardian, to perform
the ceremony or not, according to his own judgment.[1429]
The statutes of many of the middle and western states
require the presence of witnesses at the celebration. One
witness is sufficient in South Dakota,[1430] as formerly in Dakota
Territory; but two witnesses must attend in Alaska, Michigan,
Montana, Minnesota since 1851, Idaho since 1864,
Nebraska since 1867, Nevada since 1861, North Dakota
since 1890, Oregon since 1854, Washington since 1866,
Wisconsin since 1849, and Wyoming since 1869. New York
requires one witness when the celebration takes place before
a minister or a magistrate, and two witnesses when the marriage
is by a written contract. The statutes sometimes contemplate
the presence of witnesses when in terms it is not
prescribed. Such is the case, for example, in New Jersey
and California.[1431] In Pennsylvania the provision of 1701
requiring the attendance of twelve witnesses has not been
expressly repealed; but, as already remarked, it is construed
by the courts as being merely "directory," and "it has been
ascertained that the requirement is no longer enforced.
Two witnesses must be present" in that state "when any
marriage is solemnized by the parties themselves."[1432]
No definite formula for the celebration is anywhere prescribed.
Sometimes the statute contains a statement to that
effect. Thus in Alaska, California, Idaho, Michigan, Minnesota,
Nebraska, Nevada, North Dakota, South Dakota,
Oregon, Pennsylvania, Washington, Wisconsin, and Wyoming
it is expressly provided that no particular form for the
ceremony is required, but the parties must solemnly declare
in the presence of the person officiating, and usually of the
attending witnesses, that they take each other as husband and
wife. The same is true of New York, if the ceremony is
performed by a magistrate; but when a clergyman officiates,
it may be "according to the forms and customs of the church
or society to which he belongs."[1433] In the case of Quakers or
religious societies having as such any peculiar mode of celebrating
marriage, the law usually provides, as already seen,
that the ceremony or other mode of joining in wedlock shall
be in accordance with their customs; and "where not so
stated it is, of course, implied."[1434]
The laws of Montana, South Dakota, and formerly those
of Idaho and California, contain a peculiar definition of
matrimony and a provision for contract by "declaration,"
which, taken together, in effect allow persons to solemnize
their own marriage, and to do so clandestinely, if they see
fit. So by the California statute, as it stood from 1873 to
1895, marriage is defined as a "personal relation arising out
of a civil contract, to which the consent of parties capable
of making it is necessary. Consent alone will not constitute
marriage; it must be followed by a solemnization, or by a
mutual assumption of marital rights, duties, or obligations."
Furthermore, "consent to and subsequent consummation of
marriage may be manifested in any form, and may be
proved under the same general rules of evidence as facts in
other cases." "Persons married without the solemnization
provided for" in the law "must jointly make a declaration
of marriage substantially showing: 1. The names, ages and
residences of the parties; 2. The fact of marriage; 3. That
the marriage has not been solemnized. If no record of the
solemnization of a marriage heretofore contracted be known
to exist, the parties may join in a written declaration ... ,
substantially showing: 1. The names, ages, and residences
of the parties; 2. The fact of marriage; 3. That no record
of such marriage is known to exist." This declaration must
be "subscribed by the parties and attested by at least three
witnesses." These provisions are essentially vicious; and
they gave rise to the so-called "contract" marriages, famous
in California judicial history, the most notorious case being
that of Sharon v. Sharon, which in its various phases was
for years before the state and federal courts.[1435] So great were
the evils of clandestine marriages, and the resulting conflicting
and often false claims to property or inheritance
under this law, that in 1895 a tardy remedy was sought in
legislation. Section 75 of the code, as above quoted, allowing
a declaration of marriage, was repealed outright. The
definition in sec. 55 was amended to read, "Consent alone
will not constitute marriage; it must be followed by a solemnization
authorized by this Code;" and for the future sec. 57,
instead of its former dangerous terms, declares that "consent
to a marriage and solemnization thereof may be proved
under the same general rules of evidence as facts are
proved in other cases."[1436]
Fourteen states of the middle and western group have
provided that when a marriage has been solemnized by a
person professing to be authorized, but not authorized by
law for that purpose, its validity is "not affected by such
lack of authority, if it is in other respects valid and consummated
with the belief of the parties, or either of them,
that they have been lawfully married."[1437] These states are
Idaho, Indiana, Michigan, Minnesota, Montana, New York,
Nebraska, North Dakota, Nevada, Oregon, Utah, Washington,
Wisconsin, and Wyoming. In all cases the person
falsely representing himself to have authority is made liable
to severe penalties.[1438] California requires that "marriage
must be licensed, solemnized, authenticated, and recorded;"
but it is not invalidated by non-compliance with the law
"by other than the parties" themselves.[1439] Idaho, Montana,
and South Dakota have similar statutes, although the act
of the parties is not thus excepted.[1440] In Iowa "marriages
solemnized, with the consent of parties, in any other manner"
than presented by the statute, "are valid; but the
parties thereto, and all persons aiding or abetting them,
shall forfeit to the school fund the sum of fifty dollars each;
but this shall not apply to the person conducting the ceremony,
if within ninety days thereafter he makes the required
return to the clerk of the district court."[1441] In Indiana "no
marriage shall be void or voidable for want of license or
other formality required by law, if either of the parties
thereto believed it to be legal marriage at the time."[1442] The
person solemnizing, in Colorado, is protected by the duly
issued license, if he has no personal knowledge of the
incompetency of the parties.[1443] In Ohio, "when the person
who solemnized the marriage had no license, it was held that
it was to be inferred that the parties openly and mutually
consented to a contract of present marriage;" and when they
thereafter cohabited as husband and wife, "this consent
constituted a legal marriage, and the man having then a
wife living might properly be convicted of bigamy."[1444]
b) Forbidden degrees: void and voidable marriages.—Nineteen
out of the twenty-five middle and western states
have each provided a statutory definition of marriage.[1445] In
Oregon, Indiana, and in Washington since 1854, it is defined
briefly as a civil contract; in Alaska it is a civil contract
which may be entered into by males of twenty-one and
females of eighteen years, if otherwise capable; in Colorado
and Kansas it is "considered in law" as a civil contract to
which the consent of the parties is essential; in Iowa[1446] since
1851, Nebraska since 1855, and Wyoming since 1869, it is
a civil contract to which the consent of parties capable in
law of contracting is necessary; in Michigan, Minnesota since
1866, Nevada since 1861, New York[1447] since 1828, and Wisconsin
since 1849, "so far as its validity in law is concerned,"
it is a civil contract under the same conditions as in the last-named
group of states. On the other hand, several commonwealths
have sanctioned a definition which seems to
imply the element of status in the marital relation. Thus
by the laws of Idaho, Montana, South Dakota, California,
and North Dakota, marriage is a personal relation, arising
out of a civil contract to which the consent of parties capable
of making it is necessary. In North Dakota, although marriage
is a personal relation so arising, it must be "entered
into, maintained, annulled, or dissolved" only as provided
by law; and in California, since the reform of 1895, consent
must be followed by a solemnization authorized by the code.
Moreover, in South Dakota the consent to a marriage "must
be to one commencing instantly, and not to an agreement to
marry afterwards." The law of Ohio is similar;[1448] and in
Idaho and California neither party to a nuptial contract is
"bound by a promise made in ignorance of the other's want
of personal chastity, and either is released therefrom by
unchaste conduct" of the other, unless both participated
therein.[1449]
In all the states of the group under review, except in
Colorado, New Jersey, and Pennsylvania, the age of consent
to marriage is fixed by the law, or it may be inferred from
its provisions. For males it is twenty-one in Alaska and
Washington;[1450] eighteen in California, Delaware,[1451] Idaho,[1452]
Indiana, Michigan, Minnesota, Montana, Nebraska, Nevada,
New York, Ohio, Oregon, South Dakota, Wisconsin, and
Wyoming; seventeen in Illinois; sixteen in Iowa,[1453] North
Dakota,[1454] and Utah;[1455] and only fifteen in Kansas. For females
it is eighteen in Alaska, Washington, Idaho, and New York;
sixteen in Delaware, Indiana, Michigan, Montana, Nebraska,
Nevada, Ohio, and Wyoming; fifteen in California, Minnesota,
Oregon, South Dakota, and Wisconsin; fourteen in
Illinois, Iowa, and Utah; thirteen in North Dakota; and only
twelve in Kansas.
The age below which the consent of parent or guardian
is required for the marriage of a minor is prescribed in all
cases, except in Alaska, Kansas, New York, and Michigan.[1456]
Such consent must precede the granting of license; or, where
the license system has not been adopted, it must be made
known by certificate or otherwise to the person or society
conducting the celebration before the ceremony may be performed.[1457]
In all cases, save the three named, the age for
males is twenty-one, except in Idaho, where it is eighteen.
For females it is eighteen in all these states, except in Idaho,
where it is sixteen; and in Pennsylvania and Wyoming, where
it is twenty-one. Formerly in Delaware indented servants
could not lawfully marry without the master's consent; and
for so doing such persons offending must "serve their respective
masters or mistresses six months after the time of their
servitude by indentures or engagements has expired; and if
any person being free, shall marry with a servant without
such consent ... he or she ... shall pay to the master
or mistress of the servant, if a man, ten pounds, and if a
woman, five pounds; and the servant so married shall abide
with the master or mistress according to indenture or
engagement six months as aforesaid."[1458] Later the penalty
for a free person marrying a servant, if a man, was fixed at
thirty dollars, of if a woman, at fifteen.[1459]
All the states under consideration have legislated concerning
forbidden degrees of consanguinity. Relations in
the direct line, with brothers and sisters, are, as elsewhere,
always included; although many of the newer states and
some of the older, have not thought it necessary to continue
the solemn farce derived from ancient ecclesiastical usage of
specifically interdicting wedlock with a grandparent or with
a grandchild; and sometimes the connections by affinity are
not mentioned, or, as in Wyoming, they are expressly exempted
from the inhibitions. Frequently, however, a man
is denied the privilege of taking his step-mother or his
mother-in-law to wife,[1460] and in every state of the group, expressly
or by implication,[1461] marriage between aunts and
nephews, or uncles and nieces, is forbidden. Minnesota since
1851, and Wisconsin since 1839, prohibit marriage between
persons nearer of kin than first cousins, computing by the
rules of the civil law; and in effect the same is true of Utah.[1462]
On the other hand, the statutes of Indiana, Ohio, Nevada,
and Washington are more severe, allowing marriage only
between persons "not nearer of kin than second cousins;"
first cousins are likewise prohibited from intermarrying in
Illinois, Kansas, Wyoming, the two Dakotas, Michigan,
Pennsylvania, Oregon, and, apparently in Colorado;[1463] while
in Alaska marriages are prohibited within the fourth degree
of the whole or the half-blood. But in no instance is a
union between a sister-in-law or a brother-in-law interdicted.
In all cases marriages within the prohibited degrees are
both incestuous and void, except in Delaware, Minnesota,
Oregon, Pennsylvania, Indiana, and South Dakota, where
they are only void; in New Jersey, where they are only
voidable;[1464] in Washington, where they are only incestuous;
and in Ohio, where they are not expressly declared to be
either incestuous or void. However, in the three states last
named such unions are forbidden and punished; and in general
for violation of the law by the persons contracting or
the person solemnizing marriages declared void or voidable
severe penalties are often imposed.[1465] By exception, in Colorado,
it is provided that nothing in the law regarding degrees
"shall be so construed as to prevent the people living
in that portion of the state acquired from Mexico from
marrying according to the customs of that country."[1466]
In these states the grounds for prohibiting wedlock other
than kinship or affinity are as varied, confusing, and contradictory
as in New England or the southern group. For the
same cause a contract declared void in one state may be
voidable or merely forbidden and punished in another. The
statutes disclose a great diversity of conditional or qualifying
clauses which render it almost hopeless to make any
trustworthy generalizations. Thus bigamous marriages are
void or voidable by judicial decree in California, Delaware,
Idaho, Indiana, Iowa, Kansas, Michigan, Minnesota, Montana,
Nebraska, Nevada, New Jersey, New York, North Dakota,
Oregon, Pennsylvania,[1467] South Dakota, Utah, Wisconsin,
and Wyoming; while in Colorado,[1468] Illinois, Ohio, and Washington
they are prohibited and made punishable. In Michigan,
Minnesota, Nevada, and Wisconsin the law applies only
when the marriage was solemnized in the state; while in
California, Idaho, Minnesota, North Dakota, New York, and
South Dakota such unions are void or voidable unless, as expressed
in the California statute, "the former husband or
wife was absent, and not known to such person to be living
for the space of five successive years immediately preceding
such subsequent marriage, or was generally reputed or believed
by such person to be dead" when the second marriage
was contracted; "in either of which cases the subsequent
marriage is valid until its nullity is adjudged by a competent
tribunal."[1469] Illinois and Ohio have each a similar provision.[1470]
On the abrogation of polygamy, Utah had a problem to
solve analogous to that of the southern states after the enfranchisement
of the negroes. By an act of March 9, 1896,
rights of inheritance were secured to the issue of bigamous
and polygamous marriages; and a few days later, by
general enactment, the children of such unions "heretofore
contracted between members of the Church of Jesus Christ
of Latter-day Saints, born on or prior to the fourth day of
January," 1896, were legitimated.[1471]
The laws of California, Idaho, Michigan, Minnesota,
Nebraska, North Dakota, Oregon, South Dakota, Utah,
Washington, Wisconsin, and Wyoming render a marriage
void or voidable when entered into by either person through
force or fraud;[1472] those of New York,[1473] when force, fraud, or
duress has been practiced; and those of Nevada, when fraud
has been proved.[1474] In Colorado the marriage of a female
obtained by force or fraud is prohibited and punished; in
Iowa, Kansas, Montana, and Nevada, when obtained by force,
menace, or duress; in Illinois, Montana, and New York,
when the marriage of either person has been gained through
false persuasion; while New Jersey, in more general phrase,
treats as void the marriage of a female "against her will."
Marriages are also void or, usually, voidable when either
person was of unsound mind, as in California, Idaho, or
South Dakota; or insane or an idiot, as in Illinois, Indiana,
Iowa, Kansas, Michigan, Nebraska, Utah, Wisconsin, and
Wyoming;[1475] or wanting in age or understanding, as in Indiana,
Kansas, Minnesota, Nevada, New Jersey, New York, Oregon,
Washington, and Wisconsin;[1476] or physically incompetent, as
in California, Idaho, Iowa, Kansas, Montana, Nebraska, New
Jersey, New York, Wyoming, and the two Dakotas;[1477] or
below age of legal consent, as in all the last-named states,
and also in Michigan, Nevada, Ohio, Utah, Wisconsin, and
Wyoming.[1478]
Several states of this group, like those of the South,
have attempted to check miscegenation by statute. Marriages
between white persons and negroes or mulattoes are
thus declared illegal and void in California,[1479] Colorado, Delaware,
and Idaho; and with negroes or Mongolians in Utah.
The prohibition of such unions in Nebraska extends to
persons having one-fourth, and in Indiana to those having
one-eighth, negro blood; while in Oregon since 1866 it has
been applied to those with one-half Indian or one-fourth
negro or Chinese blood in their veins.[1480] In Nevada similar
unions, without specification of the degree of dark blood,
are forbidden and punished. On the contrary, Michigan,
by an act of 1883, provides that "all marriages heretofore
contracted between white persons and those wholly or in
part of African descent are ... valid and effectual in
law for all purposes, and the issue" shall be deemed legitimate.[1481]
Among the commonwealths of this group Delaware alone
has the honor of trying through legislation to put some limit
upon the increase of the indigent and incapable classes, the
marriage of paupers being forbidden under penalty. Michigan
has taken a still more important step in advance, setting
a worthy example of social legislation which ought to be
followed throughout the country. By a stringent law of
1899, it is declared that no person afflicted with certain
syphilitic diseases "shall be capable of contracting marriage."
For so doing the transgressor shall be "deemed guilty of
felony and upon conviction thereof ... , shall be punished
by a fine of not less than five hundred dollars or more than
one thousand dollars, or by imprisonment in the state's
prison ... not more than five years, or by both such fine
and imprisonment in the discretion of the court." Furthermore,
it is especially provided that either husband or wife
may be examined as a witness; and in all cases arising under
the act a physician who has attended or prescribed for any
person so affected "shall be compelled to testify to any facts
found by him from such attendance."[1482]
An enlightened policy in a parallel direction is revealed
by a recent law of Minnesota, similar to that of Connecticut,
prohibiting the marriage of persons either of whom is epileptic,
imbecile, feeble-minded, or afflicted with insanity, when
the woman is under forty-five years of age;[1483] and Kansas has
just enacted the same restraint.[1484] On the other hand, in no
instance, apparently, has any effort yet been made to prevent
the clandestine marriage outside the state of residents who
thus seek to evade the requirements of their own laws.[1485]
Very generally, as elsewhere, indirect encouragement to
matrimony is given by the suspension of prosecution or
penalty, and through the legitimation of children. By the laws
of Dakota and California, "every contract in restraint of
the marriage of any person, other than a minor, is void;"[1486]
and the same is true in the latter state regarding conditions
of ownership imposing like restraints; but this rule "does
not affect limitations when the intent was not to forbid marriage,
but only to give the use until marriage."[1487] In many
cases it is provided that marriages contracted out of the state
are valid, if valid where they are formed; but Pennsylvania
is the only commonwealth in the Union, except Georgia,
directly promoting wedlock, her statute declaring that "all
marriages not forbidden by the law of God shall be
encouraged."[1488]
c) Certificate and record.—The laws of the middle and
western states have reached substantial harmony regarding
the preliminaries of marriage. The provisions for license
and the other leading features of matrimonial administration
in their main features are much the same, except in a few of
the older commonwealths, where the system of ecclesiastical
banns and some other peculiar usages are still maintained.
Thus in Delaware, by the act of 1790, no minister is allowed
to conduct the ceremony without first receiving a license
authorizing the persons to wed, or, instead, unless the banns
shall "be published between such persons intending to
marry, at some church, chapel, meetinghouse, or stationary
place of public religious worship belonging to the district, or
of the congregation wherein the woman so intending to be
married shall be resident, or in the next adjacent congregation
of the same society, on the two several Sundays before
the celebration thereof, immediately after divine service."
The license is granted by the president or commander-in-chief
duly attested under his sign manual; and it is issued
from the office of the secretary of state. "In order to avoid
fraud and collusion in obtaining such license," the person
applying is required to enter into bond with good security
in such sum as the president shall judge proper.[1489] All marriage
licenses are to be lodged with the prothonotaries and
justices of the peace of the respective counties, or with such
of them as the secretary may think fit for convenience of the
people, and these officers are required to submit a report
every six months.[1490] After a century the system thus outlined
is still maintained in its essential features. License or banns,
"published at some place of stated religious worship, within
the hundred of the woman's residence, on two Sabbaths
immediately after divine service," is yet sanctioned. The
requirement of bond is still retained.[1491] It is the duty of
the clerk of the peace to designate at least six justices of
the peace in his county to dispense licenses; and the state
derives a revenue of two dollars for each license issued. By
a provision still appearing in the statute-book, though obsolete
in practice, negroes or mulattoes may be married without
license or publication of banns; provided "that each
party (being free) shall produce the certificate of the justice
of the peace of the county that such party has made before
him satisfactory proof of freedom; or (being ... servant),
shall produce the written consent of his master or mistress."[1492]
The legislation of Ohio shows almost equal conservatism.
For many years after the organization of the Northwest
Territory a triple optional system of banns, license, or posting
was there maintained. The law of 1788 requires that
either on Sundays, holidays, or other days of public worship,
in the towns where the bride and groom respectively dwell,
the banns shall be thrice published; or that a written notice,
under the hand and seal of a judge or a justice of the peace
of the county, shall be affixed in some public place in such
towns; or else a license shall be obtained from the governor
authorizing the marriage without publication.[1493] The details
of the plan were changed in 1803. License is then to be
obtained from the clerk of the court of common pleas for the
county where the woman resides. Twice publication of
banns, the first time ten days before the wedding; or notice
by posting during fifteen days, is declared sufficient. In the
case of minors a license may be issued only when consent of
parent or guardian is personally given or certified to, attested
by two witnesses, one of whom must personally appear and
make oath or affirmation that he saw the parent or guardian
subscribe or acknowledge the same.[1494] After 1824 provision
for public posting is no longer made,[1495] thus reducing the
Ohio plan to the more familiar system of optional civil
license or ecclesiastical banns which still survives. License
is now issued by the judge of probate in the county of the
female; and the law governing the consent of parent or
guardian in case of minors is identical with that of 1803,
except that since 1810 persons under age who have before
been married are not required to give evidence of such
approval.[1496]
By the first matrimonial statute of Michigan in 1805 a
license system is not established; but evidence of parental
consent to the marriage of minors is to be presented to the
minister or magistrate performing the ceremony. Within
one hundred days the latter is to return a certificate of the
celebration to a clerk of the court in the district where it
takes place, who is required to keep a record and report
annually to the clerk of the superior court of the territory.[1497]
So the law remained until 1820, when the triple optional
system, as it then existed in Ohio, was introduced;[1498] but this
is not found in the existing law, which requires license in
all cases according to the more common American usage.
Neither banns nor license has at any time been required
in New York during the century. Instead, as already
pointed out, the person conducting the celebration is
authorized to identify the parties by examining them or any
other persons under oath.[1499] New Jersey has maintained a
similar plan, except that non-residents are required to obtain
a license from the county clerk five days before the wedding.[1500]
At present in case of minors the powers and procedure
of the person solemnizing are substantially the same
as those of the county clerk or other officer where the
license system prevails.[1501]
Pennsylvania has also followed methods peculiar to herself.
From 1730 to 1885 certificate of parental consent seems to
have been required for the marriage of minors; and such
certificate was presented directly to the person or society
conducting the celebration. By an act of the last-named
year there was introduced a license system which in 1893
was modified so as to permit a license to be obtained from
the clerk of the orphans' court, not only in the county
where the marriage is to take place but also in the county of
the residence of either the man or the woman.[1502] The clerk
is to keep a marriage-license docket, "in which he shall
make a complete record of the issuing of said licenses, and
all matters which he shall be required to ascertain, relative
to the rights" of the persons to obtain a license, "together
with their ages and residences." In getting a license the
persons may proceed in one of two ways. "Either separately
or together" they may apply directly to the clerk, who by
oath or affirmation is authorized to inquire concerning the
legality of the contemplated marriage, and if there be no legal
objection, to issue the license; or in like manner, if they prefer,
they may "appear before any magistrate, alderman, or
justice of the peace of the township, ward or county, wherein
either ... resides, and in the county where the license
is desired, who may ... inquire of them touching the
legality of the contemplated marriage." These answers and
the replies, duly subscribed and sworn to before the officer,
may be forwarded to the clerk of the court, who if satisfied
therewith, and that no legal objection to the marriage exists,
may issue the license. But if either of the persons intending
to marry is under the age of twenty-one, the consent of
parent or guardian, given personally or attested by witnesses
in the usual way, is necessary. The license shall have
appended to it two certificates, one marked "original" and
the other "duplicate." The certificate marked "original"
shall be given by the solemnizer to the persons married;
and the other must within thirty days be returned to the
clerk in the county of the celebration, to be filed of record.
It is, however, especially provided that in all cases where
the persons intend solemnizing their own marriage, the
clerk in "the proper county shall certify their right so to do
in a declaration in the following form": "Legal evidence
having been furnished to me, in accordance with the act of
assembly ... this certifies that I am satisfied that there
is no legal impediment to your joining yourselves together
in marriage." When self-gifta thus takes place, the persons
contracting are required to make duplicate certificates
of their own wedding celebration, returning one of them to
the clerk, as in other cases provided by law.[1503]
In the remaining nineteen states of this group not yet
considered, except Alaska, the simple license system has
been introduced. Save here and there in certain cases
specially provided for, a license is always required. Thus,
by the Minnesota law, "previous to persons being joined in
marriage, a license shall be obtained from the clerk of the
district court of the county in which the female resides," or,
if she be not a resident of the state, then from the same
officer "in the county where the marriage is to take place in
the state;" but if there shall be no such clerk in either of
the counties specified, no license is required. The clerk
may inquire of the persons under oath as to the legality of
the proposed marriage. If he "shall be satisfied that there
is no legal impediment thereto," he shall grant a license and
make a record thereof. Persons under age and not having
had a former husband or wife must have the consent of the
parents or guardians personally given or certified under
their hands and seals, "attested by two witnesses, one of
whom shall appear before said clerk, and make oath or
affirmation that he saw said parent or guardian subscribe, or
heard him or her acknowledge the same." If a "clerk shall
in any other manner issue or sign any marriage license, he
shall forfeit and pay a sum not exceeding one thousand
dollars" to the persons aggrieved. The statute allows the
clerk a fee of two dollars for each license issued.[1504]
Similar powers and functions are exercised by the clerk
of the district court in Iowa and Montana;[1505] the county
clerk, in California, Colorado, Illinois, Michigan,[1506] Nevada,
Oregon, Utah, Wisconsin, and Wyoming; the clerk of the
circuit court, in Indiana and South Dakota; the probate
judge, in Kansas and Ohio; the county judge, in Nebraska;
the county auditor, in Washington; the county recorder, in
Idaho; and by the judge of the county court, in North
Dakota. The license is issued by such officer from the
county of the woman's residence, in Indiana, Ohio, and
Oregon; from the county where either the man or the
woman resides, in Michigan; from the county where the
marriage is to take place, in California, Idaho, Illinois, Iowa,
Montana, Nebraska, North Dakota, South Dakota, and
Wyoming; from the "proper" county, in Kansas; and from
"any county," in Colorado; from "a county auditor" in
Washington; the county where one or both of the persons
dwell, or from any county when both are non-residents, in
Nevada; from the county of the bride's residence, or, if she
be a non-resident, from that of the proposed marriage, in
Wisconsin and Minnesota; and in Utah, from the county
where the female lives, provided that when she is a widow
or of full age, and it is granted on her application, it may be
issued from any county. In Kansas and Indiana a license is
not required in the case of Friends marrying according to
their own usage; and the same is true in Iowa, California, and
South Dakota, for the members of "any particular denomination
having, as such, any peculiar mode of entering the marriage
relation." Wisconsin requires the license to be obtained
not less than five days previous to the persons being joined
in marriage; and has also provided for celebration without
license in urgent cases. Upon the application of either
party to a proposed marriage, any county judge, court of
record, or presiding judge thereof, in his discretion, by order
may authorize solemnization without license or the five days'
notice. Such order must be delivered to the person performing
the ceremony, who is to return it in place of or in
connection with the license to the register of deeds or of
vital statistics.[1507] Michigan has likewise made provision for
cases of emergency where social expediency seems to require
exceptional rules. By a law of 1897, amended in 1899,
entitled "an act to provide for the protection of the reputation
and good name of certain persons," the judge of probate
in each county is authorized to issue without publicity a
license to any female who has lived with a man as his wife,
or who for any other reason expressed in her application,
deemed sufficient by the magistrate, "desires to keep the
exact date of the marriage a secret, to protect the good name
of herself and the reputation of her family."[1508]
Generally throughout the region under discussion penalties
by fine or imprisonment are prescribed for celebration
without a license or for illegally issuing the same.
In every instance, except in Alaska, the person or society
conducting the celebration is required to make a return to
the officer authorized to receive it, either in the town or,
usually, the county, where the license was issued, or in that
of the marriage.[1509] Such return is made either by separate
certificate, by indorsement on the license, or by certificate
appended to it. Several states, however, have enacted
special provisions. In South Dakota, for example, the
marriage certificate must be "filed with the clerk of the
city or town where the marriage was solemnized, or where
either of the parties resides," or with the "register of deeds
of such county." By the Colorado statute return is made
to the clerk issuing the license; and the solemnizer must
also send a report to the clerk of the county where the
marriage takes place. In Iowa the person performing the
ceremony is to make return to the clerk of the district court;
and, "when the services of a clergyman or magistrate are
dispensed with, the husband must make the return." California
has enacted that "when unmarried persons, not
minors, have been living together as man and wife, they may,
without a license, be married by any clergyman. A certificate
of such marriage must be made and delivered by the
clergyman to the parties, and recorded upon the records of
the church of which the clergyman is a representative;" and
"no other record need be made." Furthermore, when
members of a religious society, having as such peculiar rites,
are married without a license, as the law permits, they must
join in a written declaration of the marriage, which shall be
signed by themselves and attested by at least three witnesses.
Within thirty days after the wedding this declaration must
be filed by the husband with the county recorder, who, after
it is duly acknowledged, shall record the same as in grants
of real property.[1510] New York requires that the certificate,
given to each of the married persons on request, signed by
the officiating magistrate, shall be filed and recorded, if
within six months it is presented to the clerk of the city or
town where the marriage took place, or where either the
bride or groom resided. When it is a clergyman who conducts
the celebration, his certificate thereof may in the same
manner be filed and recorded, "if there be endorsed thereon
or annexed thereto, a certificate of any magistrate residing
within the same county with such clerk, setting forth that
the minister is personally known to such magistrate, and has
acknowledged the execution of the certificate in his presence;"
or that the execution was proved to the magistrate
by the oath of a witness known to him.[1511]
By the rules prevailing in every state, save New Jersey,
the official receiving the return must register or file the same
of record. The prescribed term within which the report of
the celebration must be submitted is thirty days (or "one
month") in California,[1512] Colorado, Idaho, Illinois, Kansas,
Minnesota, Montana, Nevada, New Jersey,[1513] North Dakota,
Ohio,[1514] Oregon, Pennsylvania,[1515] South Dakota, and Utah;
ninety days (or "three months"), in Indiana, Iowa, Michigan,
Nebraska, Washington, and Wyoming; and six months
in New York. South Dakota, in addition to the return by
the solemnizer, provides that within six months after the
wedding the certificate given to the persons married may be
"filed" in the manner above described; and, when thus
filed, it must be entered in a book to be provided by the
clerk or register for the purpose.[1516] By the Wisconsin law
the license, with a certificate of the marriage, must be
returned by the person conducting the celebration to the
register of deeds of the county where the license was issued,
provided that in cities of the first class the report shall be
sent to the registrar of vital statistics, who is to place it on
file.[1517] In Delaware the person solemnizing must keep a
record and "annually, in March, deliver to the recorder of
deeds for the county, a true extract therefrom" of all entries
for the year preceding.[1518]
Only in Wisconsin is there any provision for return when
the marriage of a resident takes place outside the state.
Provision for giving a certificate to the persons married,
on request or otherwise, is made by Alaska, California,
Idaho, Iowa, Michigan, Minnesota, Montana, Nebraska,
Nevada, New York, Oregon, Pennsylvania, South Dakota,
Washington, Wisconsin, and Wyoming. Creditable progress
is also shown in a number of the states of this group
in providing for a proper record of marriages, and for the
collection, registration, and publication of social statistics.
Thus in California, Delaware, Idaho, Iowa, Michigan,
Nevada, New Jersey, New York, Ohio, South Dakota, and
Wisconsin the person conducting the celebration is required
to keep a record;[1519] and everywhere, save in one instance, as
already seen, the clerk or other officer of the county or town
must register the facts contained in the license issued or the
certificate returned; and usually the original documents are
filed for preservation.[1520] Moreover, a goodly number of commonwealths
have wisely created systems of state registration
which promise to be of great service in the future of American
society. Beginning in 1881, Delaware has established such
a system. The state board of health, composed of "seven
physicians of skill," has general oversight, appointing one
of its own number as secretary, who performs the duties
of "superintendent of registration of vital statistics." To
him the recorders of the several counties are required to send
information.[1521] An elaborate registration act was adopted in
New Jersey in 1888; and this, as amended in 1892, is still
in force. Thirty days after the solemnization of any marriage
a certificate thereof is to be sent to the proper officer,
setting forth the "name, age, parentage, birthplace, occupation,
and residence of each of the persons married, the time
and place of the marriage, the condition of each of the persons
married, whether single or widowed, the name of the
minister, magistrate, or person by whom, or of the religious
society before which the marriage was solemnized, and the
names and residences of the witnesses." The certificate is
to be returned to the "registrar of vital statistics," or, if
there be none, the clerk of any city, borough, town, or other
municipal government, or to the assessor or clerk of a township.
These local officers are required each month to
forward the certificates and the "special return" provided
for by law to the state board of health, whose secretary is
styled the "medical superintendent of vital statistics."[1522]
Ohio has a similar plan of local and state administration.
The mayor of each of the smaller cities and villages, and six
persons nominated by the council, including two medical
practitioners, constitute a board of health which is authorized
to appoint a health officer and "create a complete and
accurate system of registration of births, marriages, deaths,
and interments, for the purpose of legal and genealogical investigations,
and to furnish facts for statistical, scientific,
and sanitary inquiries." The secretary of state is required
each year to prepare and submit to the general assembly a
full and accurate report of the statistics of Ohio.[1523] A system
of state registration of births, marriages, deaths, and divorces
has existed in Michigan since 1867. The secretary of
state is required to furnish the clerks of the respective counties
with suitable blank books for record and forms for reports.
The reports of these local officials are to be properly
bound and indexed under the direction of the secretary;
"and with such assistance as may be voluntarily rendered
by any authorized committee appointed by the medical faculty
of the University of Michigan, or by any regularly authorized
medical society ... , he shall prepare such tabular
statements, results, and deductions therefrom as will render
them of practical utility, and make report therof annually to
the governor." But in reality this report, under the general
direction of the secretary, is prepared and published by the
secretary of the state board of health.[1524]
As early as 1852 Wisconsin made provision for registration
of births, marriages, and deaths; and the plan then
adopted, with some modification, still exists. By a statute
of 1897 the register of vital statistics in every city having
such an officer is required to keep a record of all marriages
celebrated therein, in the same way as he does of births and
deaths. To him the persons or societies conducting marriage
celebrations are required to send certificates thereof;
and every week these certificates must by him be forwarded
to the register of deeds of the county or city. For the
commonwealth the secretary of the state board of health,
under the direction of the secretary of state, performs the
same functions as discharged by that official in Michigan.[1525]
Provision for similar registration, under authority of the
state boards of health, is made by the laws of Indiana, Iowa,
Kansas, Minnesota, and Pennsylvania. California has a similar
statute. Careful provision is made for keeping registers
of births by physicians and midwives; of deaths, by clergymen
who officiate at funerals, coroners who hold inquests,
sextons and undertakers who bury deceased persons; and by
those who conduct marriage celebrations. Certified copies
of all these registers are to be filed quarterly with the respective
county recorders; and every three months these
officials are required to transmit a "certified abstract" of
their own registers to the secretary of the state board of
health at Sacramento. This body consists of seven physicians
appointed for four years by the governor; and at each
biennial session of the legislature it is authorized to make a
report, "with such suggestions as to legislative action" as it
deems proper.[1526]
The New York law is very careful and elaborate. There
are local boards of health in towns, incorporated villages,
and cities. In the town the board consists of the clerk and
the justices of the peace, together with a "citizen" appointed
by them; in the incorporated villages, of from three to seven
members nominated by the village trustees. The village
and town boards each hold office for one year, and each is
authorized to appoint a "competent physician" to serve as
"health officer," who, in the case of the village, may not be
a member of the board. The city board is composed of six
members, at least one of whom shall be a physician, all appointed
by the common council. The board thus constituted
is authorized to choose a president and to select a competent
physician as health officer. The six members hold office for
one, two, and three years, respectively, by pairs. It is made
the duty of each of these local boards "to supervise and make
complete the registration of all births, marriages, and deaths
occurring within the limits of its jurisdiction in accordance
with the methods and forms prescribed by the state board of
health, and to secure the prompt forwarding of the certificates
of birth, marriage, and death to the state bureau of
vital statistics after local registration." To attain completeness
in such registration, "it shall be the duty of the
parents or custodians of every child, and the groom at every
marriage, or the clergyman or magistrate performing the
ceremony, to secure the return of the record of such birth or
marriage to the board of health or person designated by
them within thirty days from the date" of the same, "and
each record shall be duly attested by the physician or midwife
(if any) in attendance at such birth, or the clergyman
officiating at such marriage." If in any place the state
board of health ascertains that the registration is "not completely
and well made," it may notify the delinquent local
board that within one month such "defects and neglects in
the records must be amended and prevented." If the abuses
are not remedied within the period named, the state board is
required to take control of the records, and to "enforce the
rules and regulations" so as to make them complete.
The bureau of vital statistics has general charge of the
state system of registration, under direction of the state
board of health. The latter body consists of three "state
commissioners of health," appointed by the governor with
the advice and consent of the senate, and six other members,
three nominated by the governor, and three serving ex officio.
It appoints a secretary who is "superintendent of registration
of vital statistics;" and it makes an annual report to the
governor regarding "vital statistics and the sanitary condition
and prospects of the state."[1527]