The term marriage was defined, in the Institutes of Justinian, as the lawful union of a man and a woman, including an inseparable association of their lives.[1]

Written almost fourteen centuries ago, few, if any, of the many definitions of marriage, improve upon that given in the Institutes of this old philosopher-lawyer-Emperor of the Romans.[2]

As the basis of the marriage contract is the necessity of society for some rule for the appropriation of the opposite sexes to one another and the protection of that relation, when once established, it is in one form or another, the oldest institution of man and the source of our most antique laws and customs.[3]

The Chinese inform us that in the beginning, human beings, like other animals, without morality or community laws, wandered through the plains and forests, using their women in common; that the offspring of such unions knew their mothers, but rarely knew who their fathers were and that this custom continued among men, until the Emperor Fou-hi established the marriage custom.[4]

While the ancient “Heathen Chinese” were thus holding their women in common, there is evidence that among the old Teutons and Hindus, the “marriage by capture” and “rape marriages” were still recognized by law, long before the “bride-sale” or “sale marriages,” so generally obtaining in ancient Assyria and Babylon, were established in Germany.[5]

Some historians claim that, in the early days of heathenry, capture was the only method used by young men for securing their brides and the supply of consorts depended upon the strength of the male, rather than the existence of “the tender passion.”[6]

But the pictures of violence obtaining in these ancient days of heathenry are so obscured by the mists of the past and such a large field is left for the construction of ingenious theories, surrounded by romances of connubial bliss, resulting from this early custom of primitive society, that notwithstanding the general popularity of the theory of “marriage by capture,” some of the most eminent authorities are inclined to deny that such a custom ever existed at all.[7]

Some writers maintain that the rights of the individual were never more clearly defined in marriage, than by primitive man, and that this is in accord with the common tendency of the male, to attribute a religious meaning to the ordinary intercourse with woman.[8]

The Biblical theory of the custom, dates from the command to our first parents, in Genesis: “Be fruitful, and multiply and replenish the earth.”[9]

In the beginning, we find that from the rib, which the Lord had taken from Adam, he made a woman “and he brought her unto the man.”[10]

From Christian testimony, we have the evidence of the first book of Moses, upon the antiquity of this institution, for when Shechem, the son of Hamor, after defiling Dinah, the daughter of Leah, longed for her, in marriage, his father went to Jacob and his sons and communed with them, saying: “The soul of my son Shechem longeth for your daughter; I pray you give her him to wife. And make ye marriages with us, and give your daughters unto us and take our daughters unto you.”[11]

So according to the Bible story, we find that the institution of marriage obtained seventeen centuries before Christ and these old patriarchs were plighting the troth of their son and daughter and talking of dowries and marriage portions, much as the parents of the twentieth century youth now arrange such matters.

There has always been three principal forms of marriage, from the earliest historical times, monogamy, or the marriage of one man to one woman at a time, polygamy, or the marriage of one man to several women at the same time, and polyandry, or the marriage of one woman to two or more husbands at the same time.[12]

Since the days of our first parents, according to the Bible story, monogamy has been the institution best suited to the progress of society and the proper evolution of the human race, for the most progressive nations of the world’s history have embraced monogamy as a rule of social conduct.

The old Hebrews, however, made wonderful strides while practicing polygamy, an institution established by Lamech, in the sixth generation after Adam, which grew apace with the progress of the race, until in Solomon’s time, the king had acquired a round thousand women, from the different nationalities of the world, seven hundred princesses as wives and three hundred concubines.[13]

Polygamy was also practiced in Persia and is to-day, in Turkey and other Oriental countries, but under Roman rule it slowly died out in the east. It was prohibited by Diocletian and other preceding Emperors and except in the single instance of the Mormons, in Utah, it has never reappeared in any countries subject to either the Roman or Teutonic laws.[14]

Polyandry no doubt had its origin in unfertile regions, in the endeavor to limit the population to the resources of the district; it is almost an obsolete custom, but is still practiced in parts of India, Thibet and Ceylon.[15]

The marriage customs of the Romans furnish the basis for the marriage laws of the civilized world, and even the Hebrew and Teutonic influence is small compared to that exerted upon this institution, by the Roman law. The general conception of the marriage relation, by the Romans, was an exalted one, as it was regarded as an equal partnership in the whole of life, effecting an equal distribution in both the secular and sacred rights of the individuals.[16]

The three forms of marriage, by the early Roman law, were (1) Confarreatio, consisting of a religious ceremony, ending in the sacrifice of an ox, and the distribution of a broken wheaten cake, by a priest; (2) Coemptio in manum, a conveyance or formal sale of the woman, to the man, and (3) Usus, or the right of a wife, by prescription, arising from the cohabitation of the wife with the husband, for one year, without an absence for over three consecutive nights.[17]

If the woman lived with the man without either the religious ceremony or the formal sale, she did not become his wife, unless she had lived with him for a year, without absenting herself for three consecutive nights.[18]

This latter form was called “passing into the hand” of her husband and until this Hand power had been created, the property rights of the wife remained unaffected by the marriage. Marriages with Hand in an early day were almost universal, however, for the women did not prefer the free marriage, which would place them, in law, outside the legal family of the husband.[19] Marriages within the Levitical degrees were prohibited by the early Roman Emperors, and while first cousins might lawfully marry, until the end of the Republic,[20] the Emperor Theodosius prohibited their marriage under pain of death by burning.[21]

Uncles and nieces and aunts and nephews were prohibited from marrying, until the period of the Emperor Claudius, who desired to marry his brother’s daughter, Agrippina, and so passed a decree of the Senate allowing such a marriage.[22]

Concubinage was a “permitted connection,” under the Roman law, from the earliest times, down to the period of the philosopher Emperor, Leo, A. D. 887 when it was prohibited by law.[23] The Justinian Code recognized the legality of the relation and fixed the legal and property status of the concubine and her progeny and various Christian Emperors, in the early days of the Empire passed laws regulating the relation known as Concubinatus.[24]

The woman was left in the same relation as the law found her; she was not raised to the level of the husband and while her children were entitled to support from the father, they were not legitimate, but could inherit from the mother.[25] Under the Roman law, however, children born in concubinage, could be legitimated by the subsequent marriage of their parents,[26] and this early Roman law was the foundation for the custom obtaining in England, France, Germany, Normandy and Scotland, prior to the Norman Conquest, of legitimating the children born out of lawful wedlock, by the subsequent marriage of their parents. At the wedding of a couple having children prior to their marriage, it was the general custom, in the countries named, to place the children under a cloak, or mantle, which was also spread over the parents, and the children of such a union were thereafter known in the law, as “mantle children,” to distinguish them from children regularly born in lawful wedlock.[27]

According to Selden, this ceremony was observed, in England, when the children of John of Gaunt and Catherine Swinford were legitimated by Parliament,[28] and in Normandy, Duke Richard espoused Gunnora, “in Christian fashion,” and “the children were covered with the mantle.”[29]

Neither the ancient Hebrews, Greeks, Mohammedans or Romans, regarded marriage as a religious ordinance, but the relation could be established, according to the laws and customs of all these ancient people, by the interchange of consent.[30]

In Cnut’s time, in England, we find that he made laws to prevent the sale of a woman to a man whom she disliked,[31] but even at this stage of English society, the church approved these sale marriages and condoned the old betrothals of the Anglo-Saxons, and preserved the forms of ceremonies which still constitute the curious cabinet of antiquities of the English church.[32]

The early Christian church, however, did not treat marriage as a sacrament; the doctrine that marriage was a sacrament was evolved from the Fifth Chapter of the Epistle of St. Paul, to the Ephesians and it was not until the Council of Trent, in the year 1563 that the Roman Catholic Church required the celebration of marriage to be accompanied by a religious ceremony.[33]

In England, as early as the seventh century, the concern of the church about all sins pertaining to the flesh, caused it to raise its voice upon questions concerning marriage and divorce.[34]

By the middle of the twelfth century according to the laws of England, marriage was held to appertain to the spiritual forum.[35]

In the memorable law suit of Richard de Anesty, in 1143, a marriage solemnly celebrated by the church, and from which a child had been born, was declared to be void in favor of a prior marriage, constituted by a mere exchange of consenting words, without the formality of a religious ceremony at all.[36]

Soon after this decision, Glanville acknowledged the jurisdiction of the ecclesiastical courts upon all issues touching the validity of marriage and because of the acknowledged inability of the king’s court to solve the issue, where the legitimacy of a litigant had been raised, the canon law was subsequently looked to in all such cases.[37]

In 1215, at the Council of Lateran, Pope Innocent III. extended to the whole western portion of Christendom the custom of publishing “banns of marriage,” calling upon all men to declare any just cause of impediment, if any could be urged to the union and from this time on, marriages with banns, had certain legal advantages over a marriage without banns, but still the unblessed, formless marriage was a marriage, before the law.[38]

During the reign of Henry II., Alexander III. decreed that a marriage by mere consent, in terms of a present, existing contract, would be given precedence over a later marriage by another man with the same woman, duly solemnized in religious form, and followed by physical union.[39] It seems a strong case, to give effect to the bare consent, in present form, “unhallowed and unconsummated” as against a solemn formal contract, followed by a consummated union, yet this decree was consistent with the ecclesiastical law, as interpreted from the middle of the twelfth century until the Council of Trent, and no religious ceremony or the presence of a priest was essential to constitute a valid marriage, before the catholic church.[40]

In 1254 the interesting case of William de Cardunville, a tenant in chief of the Crown, came before the court, upon an inquisitio post-mortem, to determine which of two conflicting claimants was his rightful heir. He had solemnly espoused one Alice, with whom he had lived for sixteen years and had several children, the youngest being a son, four years old, named Richard. Long before his espousel of Alice, he had lived with and had a son by one Joan, and this son was also named Richard and was twenty-four years old at the death of his father. Joan established a common-law marriage, without the religious ceremony, and she was adjudged the rightful wife of the deceased and her son, the first begotten Richard, was awarded the livery.[41]

From an early date, the interpretation of the English Courts, as to the validity of a marriage based upon a present mutual consent of the parties, was followed in the United States, with the exception of Massachusetts, Maryland, West Virginia and Kentucky.

In the year 1810, Chief Justice Parsons, then on the bench of the Supreme Court of Massachusetts, rendered a decision, in which he denied that according to the common law a valid marriage could be made, by the mutual agreement of the parties alone.[42]

Chancellor Kent, however, in 1809, as Chief Justice of the Supreme Court of New York, held that:

This latter exposition of the common law of England has been generally followed in the United States, and may be said to obtain, generally, in all the states, other than those mentioned above, except where the local statutes provide otherwise.[44]

Clearly, by the law of nature, marriage may be constituted by the mutual present consent of two competent persons, of the opposite sex, without other formality than the performed inclination of the individuals concerned and so the common, or unwritten law, recognized the legality of such a contract. The law of nature was adopted as the surest guide to the law of man, in this relation.

Considerable uncertainty and some confusion resulted in England as to the essentials of a valid marriage and the acts necessary to constitute a marriage, prior to the eighteenth century, but during the reign of George II., in 1753, a statute was passed,[45] requiring all marriages to be celebrated by a clergyman and in a church, unless by special dispensation by the Archbishop of Canterbury. This statute was repealed in 1836 when a purely civil marriage before only a Registrar, was permitted by the law of England, in lieu of the ecclesiastical ceremony.[46]

Touching the issue as to the validity of a marriage not solemnized by religious ceremony, is the interesting and famous case of The Queen vs. Millis,[47] wherein the House of Lords, erroneously decided that such a marriage was void, according to the English law, in the year 1843.

The Irish Court of King’s Bench was equally divided upon the issue and in the House of Lords, after the decision of the English judges had been given against the validity of the marriage at which no clergyman had been present, Lords Lyndhurst, Cottenham and Abinger were for holding the marriage void, while Lords Brougham, Denman and Campbell, were in favor of its validity, but on account of the precise form in which the question was put to the House, the effect of the division was to hold the marriage void, and thus a mere accident gave the decision in favor of the erroneous view that from the earliest time in English law, the presence of an ordained clergyman was essential to the celebration of a valid marriage, when, as we have seen, from the decisions and history of the law, this was not the case, either in England or according to the Roman law, until the Council of Trent.[48]

But while both the temporal and spiritual courts recognized the validity of marriages based alone upon mutual consent, followed by a physical union, the religious ceremony in an early day, was held essential to endow the wife with the right to the husband’s land. Bracton tells us that the endowment can only be made at the church door, for while the marriage may be contracted elsewhere, the bride can only be endowed at the door of the church.[49]

This rule, however, was of course inconsistent with the recognition of the validity of the marriage and both the ecclesiastic and temporal courts went to the extreme limit to legitimize the offspring of marriages, not the result of a wilful criminal relation. Retroactive and putative marriages were recognized, both in the temporal and ecclesiastical courts, when the legitimacy of children depended upon such a construction and in cases where the parents had married within the prohibited degrees of consanguinity, or if a woman, in good faith, married a man already married and believed that he was single and had children by him, the children would be held legitimate and capable of inheriting, under the law.[50]

The courts, in order to legitimize the offspring of doubtful marriages, went the full limit, in upholding the marriage relation from a very early day, but the consort who abandoned her husband to dwell with her adulterer, was written beyond the pale of the law. By an old statute, of the reign of Edward I., a woman who eloped and abode with her adulterer was punished by a loss of dower[51] and this statute was enforced, in the case of William and Margaret Paynel, which originated in 1302.[52]

These parties petitioned the king for dower that was due the woman, as the widow of her first husband, John de Camoys. It was charged that Margaret had eloped with William and committed adultery with him. In answer, William and Margaret produced a solemn charter, whereby her first husband had “given, granted, released and quit-claimed” the said Margaret to William. They also introduced evidence to the effect that after they went to live together they had been charged with adultery in the court Christian, and that by the oath of compurgators, among whom were married and unmarried ladies and a prioress, they had successfully met this charge and they offered to leave to the decision of a jury the issue whether or not they were guilty of adultery in living together. The court, however, in a lengthy decree, held that the facts on their face constituted adultery and since no reconciliation of the first husband was shown, the woman was not entitled to dower, under this statute.[53]

This illustrates the easy morality of the olden times, so contrary to our present standards, touching the marital relation, yet this case is not a parallel to many which could be cited in the golden days of Greece and Rome. So little sanctity was attached to the marital relation in Greece, even in the days of Pericles, that men were accustomed to loan their wives to their friends and the literature of the period made poetry of marital infidelity and fornication and adultery seemed about the commonest employment of both individuals and gods and goddesses. The Romans had more of the religious tendencies than the Greeks, but it is said that the Younger Cato loaned his wife, Marcia, to the orator Hortensius and took her back again, after his death.[54]

Such conduct seems almost unbelievable, because so contrary to the natural moral instincts, yet the natural selection between two adults of the opposite sexes, although in derogation of the rights of the life-partner of either, seems hardly so depraved as the consent by the natural parents, to the marriage of infants of tender years, which custom was so prevalent in England and France in the past centuries.

During the middle ages, in England, the marriages of little children were frequently arranged by their parents, for the purpose of avoiding wardship and to prevent the children from forming improper attachments, or to effect advantageous family connections for the parents.

History records that Thomas, Lord Berkeley, was contracted to Margaret, daughter of Gerald Warren, Lord Lisle, in the forty-first year of Edward III., when the girl was only seven years old, and because of her tender years, it was stipulated that she should remain with her father for four years, but on account of sickness in the family, they were married when she was eight years old.[55]

Maurice, fourth Lord Berkeley, was knighted at seven years of age, to prevent his wardship, and he was married at the age of eight, to Elizabeth, daughter of Lord Spencer, when the bride was also but eight years old.[56]

Hundreds of similar cases could be mentioned in France and England, and in tropical countries, where the women develop at an earlier age, the marriages occur at a corresponding earlier age. In Brazil, in the past century parents married their children when still in years of infancy and the case of a Brazilian traveler, enroute to England, who demanded a half-fare ticket for his wife, who was under twelve years of age, occurred in the year 1853.[57]

We are also told that the Hungarians of the seventeenth century often betrothed their children while still in their cradles, and the marriages were celebrated at the earliest possible age.[58]

The law, which can never rise superior to the prevalent sense of right in a given community, recognized the validity of these child marriages, in these several countries, just as it validated the “sale marriages” of the old Saxon days[59] and in early feudal times recognized the validity of exactions known as “Maiden-rent,” a sum paid to the Lord of the Manor, in the nature of a fine, in consideration of his relinquishment of his accustomed right of spending the first night with the bride of his tenant.[60]

As the relics of a barbarous age, such licentious customs, like the evidences of genius and depravity frequently found co-existent in the same individual, are interesting from a historical standpoint, as existing facts connected with the given institutions of a past age and also because many of the ancient customs, in altered form, furnish the basis for the later customs and practices, gradually changed, with the passing years, to meet the different conditions and institutions of later periods.

The custom of giving a dowry, or marriage portion, which has obtained from an ancient period, is no doubt the result of the old practice of paying for the wife in money, the presents, land, or sums paid by way of settlement being a mere modification of the old sale and purchase of the bride by the husband.[61]

In patriarchial days, we find Shechem, the son of Hamer, negotiating with old Jacob and his sons, for the marriage of Dinah and he said unto them: “Ask me never so much dowry and gift and I will give according as ye shall say unto me; but give me the damsel to wife.”[62]

The donatio propter nuptias,[63] of the Romans, and the old marriage dowry, the source of so much legislation and litigation in ancient England, France and other continental countries, is traceable, directly or indirectly to this old practice. Indeed, the oldest known laws treat of the marriage dowry, as we find that the code of Hammurabi, written 2250 years before Christ provided for the return of the dowry, in case of the divorcement of a barren wife.[64]

Money was given the bride, from an early day in France, and we find that when Clovis married the Princess Clotilde, he sent, by proxy, a sou and a denier, which became by law, the usual marriage offering, in that country.[65] Caesar speaks of the marriage settlement, as a custom he found to exist amount the ancient Gauls;[66] it obtained among the Hebrews, at an early date[67] and has come to be a part of the marriage laws of most of the civilized countries.[68]

Under the old Angle-Saxon law, dower could be assigned only at the church door.[69] Speaking on this subject, Littleton says:

Accordingly, we find, when Edward I. married Marguerite of France, in 1299, he endowed her at the door of Canterbury Cathedral, in order that the gift could be witnessed by all the persons who had assembled to see the marriage ceremony.[71]

Selden says that the use of marriage rings, grew out of the old custom of giving the bride a dowry, the ring being given as a symbol of the husband’s good will, in lieu of the dowry money, of previous days.[72]

However this may be, the custom of giving wedding rings to the bride dates from an early period. We find that Isaac propitiated the favor of Rebekah by presenting her with a massive ear-ring and two bracelets.[73] The betrothal ring was used in ancient Rome, and the Christian church no doubt adopted the wedding ring, from the pagan custom of the Italians, as a convenient sign of marriage.[74]

In the ninth century the ring was used by the Romans for betrothal purposes and not as an insignia of marriage;[75] it was used by the Anglo-Saxons, on the betrothal of their infant children, the ring being placed on the right hand, until the marriage, when it was transferred to the left,[76] and thus grew the custom, until finally, it became a part of the English law, that a wedding ring should be used at all church marriages.[77] This custom is still retained by the Catholics, among whom the ring is consecrated by the priest, sprinkled with holy water, in the form of a cross and then returned to the bridegroom.[78]

The superstitions of olden times, which attached to the marriage ceremony, as celebrated in the early days of “little knowledge,” as some writers refer to the antique periods of the human race, are also responsible for the present custom of throwing rice, old shoes, stockings, bouquets, and such like practices, at marriages.

The custom of throwing rice was no doubt borrowed from the ancient Persians, as rice was no inconsiderable portion of the marriage ceremony in Persia.[79] Rice was considered an emblem of fruitfulness and the contracting parties, after their betrothal, met at midnight, on a bed, in the presence of two sponsors. The sponsor for the man, touched the woman’s forehead and asked her if she would have the man; the same ceremony was gone through with by the sponsor for the woman and the hands of the contracting parties were then joined and rice was scattered over them and prayers for their fruitfulness were offered.[80]

Rice also constitutes an important part in the marriages of the Hindus, the Brahmins, Javanese, the inhabitants of Elba and is quite generally used, in other European countries.[81]

The custom of throwing a shoe after the bridal couple, so generally followed, in England, Scotland and the United States, as a token of good luck, is directly traceable to the old Jewish law, making the shoe a sign of renunciation of dominion or authority, as well as a symbol of exchange.

Thus, under the Mosaic law, the brother of a childless man was bound to marry his widow and until he renounced his right, she could not marry another. If refused, the woman was obliged to “loose his shoe from off his foot” and “spit before his face,” as an assertion of her complete independence.[82] The custom was followed, according to Bible evidence, in the espousal between Ruth and Boaz, for “as it was the custom in Israel concerning changing, that a man plucked off his shoe and delivered it to his neighbor,” so the kinsman of this famous woman plucked off his shoe and gave it to Boaz, as a token of his renunciation of Ruth and of Boaz’s right to marry her.[83]

That this custom was later used by the early Christians, would seem to be confirmed by the story connected with the proposal of the Emperor Vladimir to the daughter of Raguald, for when asked if she would not marry the Emperor, she replied: “I will not take off my shoe to the son of a slave.”[84] And as a part of the betrothal, in the early Anglo-Saxon days, we read that when the marriage was completed, the father of the bride took off her shoe and handed it to the bridegroom, who touched her on the head with it, as a token of the exchange and of his power over her.[85]

Stocking throwing, at weddings, in England, has existed from a very early day and is said to be purely a British custom.[86]

A letter describing the marriage, at court, of Sir Philip Herbert, in 1604, says that “at night there was sewing into the sheet, casting off the bride’s left hose, with many other pretty sorceries.”[87]

In Fletcher’s Poems, written in 1656, is a verse descriptive of Clarinda’s wedding, referring to this old custom:

It is reported that this custom, as well as that of putting the bride to bed, was followed at the wedding of Mary, Queen of Scots, to Lord Darnley; that the same ceremony was gone through with, at the wedding of Mary II. and the sedate Prince of Orange and that this custom was followed at nearly all the marriages of the crowned heads during the middle ages, in England, until George III. set aside the joyful custom of “posset-drinking and stocking throwing,” on his wedding night.[88]

The common law liability of the community property of the wife and her husband for the ante-nuptial debts of his wife, gave rise to a peculiar custom, in England, known as “Smock-marriages,” or “Marriage in a Shift.” This custom obtained from early Saxon days into the eighteenth century and the debtor bride often came to the wedding arrayed only in a plain white “smock” or “shift,” as a public declaration or warning to her creditors that she took no property to her husband, as a basis for charging him with responsibility for her debts.[89]

This eccentric custom, known as “marriage in a smock,” in England, under which a widow was married with nothing on but a “shift,” or “smock,” upon the theory that her second husband would thereby escape liability for the debts contracted by her former husband, was also followed in the Colonies.

This notion that a bride who lacked modesty, as well as money could throw off her debts with her dress, by going to church in her smock or under garment and thus let her creditors “shift” for themselves, finds many examples in the English cases during the seventeenth and eighteenth centuries.

On October 17, 1714, Anne Sellwood, of Chilters, All Saints, Wiltshire and John Bridmore, were united in the holy bonds of matrimony and against the record in the parish register occurs the memorandum: “The aforesaid Anne Sellwood was married in her shift, without any clothes or head-gear on.”[90]

In 1766 a Whitehaven bride also sought to attain the same end, by going to church, as became any decent woman, undressing herself to her sole under-garment for the ceremony and donning her clothes again as soon as the knot was tied.[91] And it is recorded that somewhere between the years 1838 and 1844, a Lincolnshire curate officiated at a wedding where the bride stood before him, enveloped only in a sheet.[92]

While such attempts evidence a perhaps dishonest effort to evade the law of debtor and creditor, these “smock-marriages” nevertheless evince a most laudable inclination on the part of such bold brides to save the purse of their intended husbands, so while modern husbands would not appreciate the entire return to this now obsolete custom, they would not object to the effort of brides, while decently clad, in emulation of the spirit evinced by these ancient dames of the “shift marriage” period, of using their best efforts to spare the pocket-books of the men of their choice.

Alice Morse Earle, in her interesting volume, “Customs in old New England,” refers to a “smock-marriage” at Westerly, Rhode Island.[93]

The traveler Kalm also describes such a marriage in Pennsylvania, in 1748, where the bridegroom, with the proper spirit of chivalry, in order to save the appearance of his bride and also his credit, met the bride in her scant drapery, half way between her house and his own, well provided with warm garments which he dressed her in, after formally announcing, in the presence of the assembled guests, that the wedding clothes which he placed upon her belonged to him and were only loaned to the bride, especially for the occasion.

John Gatchell married Sarah Cloutman, while she was clad only in her “shift,” or “smock,” in Lincoln County, Maine, in 1767,[94] and in accordance with the popular opinion that the creditors of the bride’s first husband could not follow her farther than the king’s highway, if she was married only in her “shift,” many “smock-marriages” occurred at York, Maine, as recorded in the early history of Wells and Kennebunkport. The wedding of the Widow Mary Bradley occurred while she was clad only in her “shift,” or under-garment, during the cold weather in the month of February, 1774; she went to meet the bridegroom, thus thinly clad and the minister found her with chattering teeth and shivering from the cold. Her groom had not been as thoughtful as the Pennsylvania bridegroom, in loaning her clothing for the occasion, so the gallant gentleman of the cloth kindly threw his cloak around the freezing bride, to protect her from the wintry blasts.[95]

In Hall’s “History of Eastern Vermont,” there is a graphic account of the marriage of the Widow Lovejoy to Asa Averill. The widow was not even clad in her “shift,” or under-garment, but appeared at the ceremony, in a nude condition, hidden behind a curtain, in a recess of the chimney.

Mr. William C. Prime, in his interesting book, “Along New England Roads,” gives an account of two such marriages that came under his observation. He describes how the widow Hannah Ward, of Newfane, Vermont, was married to Major Moses Joy, in 1789, while the bride, perfectly nude, stood in a closet. She held her hand out of a diamond shaped hole in the closet door to Joy, and the ceremony was thus performed, in the absence even of “smock or shift.”[96] Immediately after the ceremony, however, she appeared resplendent in her wedding garments, which the gallant Major had provided for her, in the closet.

In the other marriage, according to this old custom, as described by Mr. Prime, the nude bride left her room by a window, at night and standing on the top rung of a high ladder, she donned her wedding garments and thus abandoned the old obligations of her widowhood.[97]

One of the most curious variations of this custom, however, is the account given, by Gustavus Vassa, of a “smock-marriage” which occurred on the gallows, in New York, in 1784. A felon who had been sentenced to death was about to be hanged, when he was liberated to wed a woman clad only in her “shift.”[98]

This strange belief in gallows matches, that a condemned felon could be thus rescued, by marriage to any woman who would take him from the gallows, is placed by Barrington in the list of legal vulgar errors. But, as suggested by a writer in Chambers Journal, under the subject “Matrimonial Curiosities,” it seems doubtful if such a queer idea could have taken possession of the popular mind, unless there was some foundation for it, in the law.[99] It is perhaps but one of many such customs, arising from some isolated case, wherein the Court recognized it, which gave it currency and caused it to be followed in other instances.

We are told that in 1725 a woman petitioned King George I., for the pardon of a convicted felon, in order that she might wed him, under Tyburn Tree.[100]

Manningham states that this was the custom, not the law, in olden times, in France, and Italy, and that if any notorious strumpet would beg a convicted felon, about to be hanged for her husband, her plea would be granted, in order that their joint lives might be bettered by so holy an action.[101]

Sterill reports a case that he had seen wherein a woman, clad only in her smock, or under-garment, begged a condemned person for her husband, with a white wand in her hand.[102]

Whatever recognition the law gave this custom, that it actually existed in England, and France is evidenced by the many references to the practice, in story and rhyme, published during the seventeenth and eighteenth centuries.

Montaigne tells a story of a Picardian, who, seeing a lame dame advancing toward him, cried out: “She limps, she limps, despatch me quickly.”[103] The ballads of Roxburghe also tell, in rhyme, how a merchant of Chichester, who had killed a German, after his sentence and last speech upon the gallows, was wooed by no less than ten goodly maidens, who thus addressed him: