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.