OBLIGATORY CIVIL MARRIAGE IN THE NEW ENGLAND COLONIES
[BIBLIOGRAPHICAL NOTE XII.--For this chapter a large quantity
of files and records of Massachusetts colonial and provincial
courts has been examined. In the office of the Clerk of Courts
for Middlesex county (Cambridge) have been used the _Records
of the County Court for Middlesex_, 1649-86, 4 vols., MSS.
folio, Vol. II missing; supplemented by the _Files of the County
Court for Middlesex_, 1655-99; and followed by the _Records
of the Court of General Sessions of the Peace for Middlesex_,
1692-1822, 9 vols., MSS. folio, the ninth volume containing
also _Records of the Court of Pleas and General Sessions of
the Peace_, October 1686, to March, 1688. In the office of the
Clerk of the Supreme Judicial Court for the County of Suffolk
(Boston) have likewise been examined the _Records of the Court
of General Sessions of the Peace_, 1702-32, 4 vols., MSS. folio,
with a fifth volume of fragments, 1738-80; the _Minute Books
of the Court of General Sessions of the Peace_, January 3,
1743, to August 3, 1773, 5 vols., MSS. folio; the _Records of
the Superior Court of Judicature, Court of Assize and General
Goal Delivery in the Province of Massachusetts Bay_, 1692-1780,
33 vols., MSS. folio, Vol. II containing also the records of
certain courts during the Andros period, 1686-87; and the _Early
Court Files of Suffolk_, 1629-1800--being papers of colonial
and provincial courts held in Suffolk county, of the Superior
Court of Judicature held in the several counties, and of the
Supreme Judicial Court prior to last century, with miscellaneous
papers, the whole collection comprising several hundred volumes,
of which only those for the period 1629-1730 have been covered
by this investigation. Careful examination has also been made
of the MSS. folio volume of _Records of the County Court of
Suffolk_, October 1671, to April, 1680, in the possession of the
Boston Athenæum.
Very important are the published _Colonial Records of Plymouth_
(Boston, 1855-61); _Massachusetts Bay_ (Boston, 1853-54); _New
Haven_ (Hartford, 1857-58); _Connecticut_ (Hartford, 1850-87);
_Rhode Island_ (Providence, 1856 ff.); and the _Provincial,
Town, and State Papers of New Hampshire_ (Concord, 1867-83).
The necessary complement of the records is of course found in
the various compilations of statutes. For Massachusetts it has
seemed best to cite by preference Whitmore's fine facsimile
edition of the _Colonial Laws_ (Vol. I, 1660-72, Boston,
1887; Vol. II, 1672-86, Boston, 1889), which should be used
in connection with his _Bibliographical Sketch of the Laws of
the Massachusetts Colony_, 1630-86 (Boston, 1890); and Ames
and Goodell's _Acts and Resolves_ (5 vols., Boston, 1869-86),
which with the three supplementary volumes (Boston, 1892-96),
cover the period of the provincial charter and carry us beyond
the Revolution. The following original digests have also been
employed: _The Book of the General Lawes and Libertyes of the
Massachusetts Colony_ (Boston, 1660); _The General Laws and
Liberties_ (Boston, 1672)--these two earliest codes being those
reprinted by Whitmore; _Acts and Laws_, 1692-1714 (Boston,
1714); _Acts and Laws_, 1692-1765 (Boston, 1769); _Acts and
Laws_ (Boston, 1759); and the collection entitled _Charters and
General Laws of the Colony and Province of Massachusetts Bay_
(Boston, 1814). The first digests of New Haven and Connecticut
plantations are comprised in Trumbull's _True Blue Laws_
(Hartford, 1876). There is also a reprint of the _Code of 1650,
to which is added extracts from Laws and Judicial Proceedings of
New Haven Colony commonly called Blue Laws_ (Hartford, 1822);
and a facsimile reprint of _The Book of the General Laws of
1673_ (Hartford, 1865). For the eighteenth century we have the
_Acts and Laws of his Majesties Colony of Connecticut in New
England_ (New London, 1715); _Acts and Laws of his Majesties
English Colony of Connecticut_ (New London, 1750); _Acts and
Laws_ (New Haven, 1769); and the _Acts and Laws_ (New London,
1784). For New Hampshire, the "Province Laws" published in Vol.
VIII of the _New Hampshire Historical Society Collections_;
the _Acts and Laws passed by the General Court or Assembly_,
1696-1725 (Boston, 1726); the _Acts and Laws_ (Portsmouth,
1761); and the _Acts and Laws_, 1696-1771 (Portsmouth, 1771),
have been cited. To follow the tangled thread of Rhode Island
legislation on any subject is a perplexing task; but the
development of the written marriage law may be traced with
tolerable clearness in the published digests. See Staples's
_Proceedings of the First General Assembly ... and the Code
adopted by that Assembly in 1647_ (Providence, 1847); Rider's
facsimile reprint of the code of 1705, entitled _Laws and
Acts of his Majesties Colony of Rhode Island_, 1636-1705
(Providence, 1896); his facsimile reprint of the code of 1719,
entitled _The Charter and the Laws of his Majesties Colony of
Rhode-Island in America_ (Providence, 1895); also the original
_Acts and Laws_ (Newport, 1730); with Rider's facsimile
reprint, entitled _Supplementary Pages to the Digest of 1730_
(Providence, [1898]); the original folio editions of the _Acts
and Laws_ dated respectively 1745, 1752, 1767 (Newport); and
Gregory's facsimile reprint of the compilation of 1772, entitled
_Acts and Laws ... passed since the Revision in June 1767_
(Providence, 1893). The Plymouth codes are printed in Vol. XI of
the _Colonial Records_ of that colony; and they are given in
convenient form in Brigham's _Compact, with the Charter and Laws
of New Plymouth_ (Boston, 1836).
Original material has also been gleaned from the _Collections_
(Boston, 1806-97) and the _Proceedings_ of the Massachusetts
Historical Society (Boston, 1879 ff.); Bradford's _History of
Plymouth Plantation_ (Boston, 1856); Winthrop's _History of
New England_, 1630-49 (Boston, 1853); Hutchinson's _History
of Massachusetts_, 1628-1774 (Vol. I, Salem, 1795; Vol.
II, Boston, 1795; Vol. III, London, 1828); Cotton Mather's
_Magnalia Christi Americana_ (Hartford, 1820); Increase Mather's
_Answer of Several Ministers_ (Boston, 1695), on marriage with
wife's sister; _The Andros Tracts_ (Boston, 1868-74); Young's
_Chronicles of the Pilgrims_, 1602-25 (2d ed., Boston, 1844);
_Historical Collections of the Essex Institute_ (Salem, 1896);
Lechford's _Note-Book_, 1638-71 (Cambridge, 1885), _idem_,
_Plain Dealing_ (Boston, 1867); reprinted also in 3 _Mass. Hist.
Soc. Collections_, III; Dunton's _Life and Errors_ (Westminster,
1818); his _Letters from New-England_ (Prince Society, Boston,
1867); the "Town Records of Boston," 1634-1777; and the "Town
Records of Dorchester," both in the _Reports of the Boston
Record Commission_; "Town Records of Salem," 1634-59, in Vol.
IX of _Hist. Coll. Essex Inst._; especially Sewall's "Diary,"
in 5 _Mass. Hist. Coll._, V, VI, VII (Boston, 1878-80); and his
"Letter-Book," in 6 _Mass. Hist. Coll._, I, II (Boston, 1886),
both of which afford a wealth of illustration for almost every
phase of wedding and other social customs.
Among recent writings relating to the general subject most
important are Shirley, "Early Jurisprudence of New Hampshire,"
in _Proceedings of the New Hamp. Hist. Society_, 1876-84
(Concord, 1885); Earle, _Customs and Fashions in Old New
England_ (New York, 1894); Weeden, _Economic and Social
History of New England_, 1620-1789 (Boston, 1891); Goodwin,
_Pilgrim Republic_ (Boston, 1888); Howe, _Puritan Republic_
(Indianapolis, 1899); Arnold, _History of Rhode Island_ (New
York, 1874); Friedberg, _Eheschliessung_ (Leipzig, 1865); Cook,
"Marriage Celebration in the Colonies," in _Atlantic Monthly_,
LXI (Boston, 1888); Bishop, _Marriage, Divorce, and Separation_
(Chicago, 1891); Lodge, _Short History of the English Colonies_
(New York, 1882); Trumbull, _History of Connecticut_ (New Haven,
1818); Hollister, _History of Connecticut_ (Hartford, 1857);
Atwater, _History of the Colony of New Haven_ (New Haven,
1881); Freeman, _History of Cape Cod_ (Boston, 1869); Bailey,
_Historical Sketches of Andover_ (Boston, 1880); Bliss, _Side
Glimpses from the Colonial Meeting-House_ (Boston, 1896);
_idem_, _Colonial Times on Buzzard's Bay_ (Boston, 1888);
Brooks, _The Olden Time Series: The Days of the Spinning-Wheel
in New England_ (Boston, 1886); articles by Scudder, Whitmore,
Edes, McKenzie, Morse, and Goddard, in _Memorial History of
Boston_ (Boston, 1882-83); and Newhall, _Ye Great and General
Court_ (Lynn, 1897).
Illustrative material has likewise been gathered from a large
number of writers, among whom are Palfrey, _History of New
England_ (Boston, 1888-90); Carlier, _Le mariage aux États-Unis_
(Paris, 1860); Oliver, _Puritan Commonwealth_ (Boston, 1856);
Doyle, _English Colonies_ (New York, 1882-87); Ellis, _Puritan
Age_ (Boston, 1888); Dexter, _Congregationalism_ (New York,
1880); Bacon, _Genesis of the New England Churches_ (New York,
1874); Belknap, _History of New Hampshire_ (Dover, 1812);
Green, _Short History of Rhode Island_ (Providence, 1877);
Sanford, _History of Connecticut_ (Hartford, 1888); Hawthorne,
_Grandfather's Chair_ (Boston, 1893); Campbell, _The Puritan
in Holland, England, and America_ (New York, 1892); Hildreth,
_History of the United States_ (New York, 1882); Snow, _History
of Boston_ (Boston, 1824); Shurtleff, _Topographical and
Historical Description of Boston_ (Boston, 1872); Gilman, _The
Story of Boston_ (New York, 1889); Drake (S. G.), _History and
Antiquities of Boston_ (Boston, 1854); Drake (S. A.), _Old
Landmarks of Boston_ (Boston, 1889); Drake (S. A.), _The Making
of New England_ (New York, 1887); Prime, _Along New England
Roads_ (New York, 1892); Read, in the _Collections of the Old
Colony Historical Society_, No. 2 (Taunton, 1880); and Brigham,
in _Proceedings of the Mass. Hist. Society_, IV.
Among the works drawn upon in the treatment of special topics
are Stiles's _Bundling_ (Albany, 1871); supplemented by his
_History of Windsor_ (New York, 1859); and the very suggestive
paper of Charles Francis Adams, _Some Phases of Sexual Morality
and Church Discipline in Colonial New England_, reprinted from
the _Mass. Hist. Soc. Proceedings_, June, 1891 (Cambridge,
1891); while there is an interesting passage relating to
the same custom in Burnaby's _Travels through the Middle
Settlements in North America_, 1759-60 (London, 1798); as also a
characteristic reference in Irving's _Knickerbocker History of
New York_ (Philadelphia, 1871). For the first time the history
of the stigma of the "scarlet letter" has been treated from the
sources in Davis's careful monograph, _The Law of Adultery and
Ignominious Punishments_ (Worcester, 1895). In connection with
the influence of the Levitical law on the New England conception
of marriage and the family, Amram's _The Jewish Law of Divorce_
(Philadelphia, 1896), and Mielziner's _The Jewish Law of
Marriage and Divorce_ (Cincinnati, 1884) are important. Of most
service for the legal character of New England slave marriages
are Moore's _Notes on the History of Slavery in Massachusetts_
(New York, 1866); his "Slave Marriages in Massachusetts," in
the _Historical Magazine_, XV (1869), containing a significant
ritual used by Rev. Samuel Phillips, minister at Andover,
1710-71; and Steiner's "History of Slavery in Connecticut,"
in _Johns Hopkins University Studies_, XI (Baltimore, 1893).
The originality of the system of civil registration created
by the New England settlers is appreciated by Kuczynski, "The
Registration Laws in the Colonies of Massachusetts Bay and New
Plymouth," in _Publications of the Am. Statistical Ass._, VII,
65-73 (Boston, 1901). See also Bibliographical Note XV.]
I. THE MAGISTRATE SUPERSEDES THE PRIEST AT THE NUPTIALS
The continuity of English law and custom in the New England colonies
is not more striking than the innovation. First of all it would
indeed be strange if the planting of new states in the wilderness
should not have afforded to thoughtful men a rare opportunity for
freeing themselves from the trammels of antiquated methods and
traditions which the "inertia of vested interests" might yet for
ages sustain in the native land. In some instances the influences of
a new and primitive environment might cause an unconscious return to
the practices of earlier days. Religious and ecclesiastical ideas
must necessarily play the leading part. In fact, the zeal with
which the Pioneers of Plymouth and Massachusetts Bay proscribed the
ceremonies and usages of the Roman and Anglican churches has had
much to do with the character of civil institutions in the United
States. On the part even of the Puritan there was thus sometimes a
strong reaction in favor of the temporal power in matters hitherto
regarded as exclusively pertaining to the spiritual jurisdiction.
The sway of the so-called theocracy in Massachusetts and New Haven
tended, sometimes inadvertently, to foster the growth of the
American idea of complete separation of church and state. Thereby
the forces of local self-government were quickened. Thus for a time
the town-meeting and the congregation were practically one and the
same; but authority was exercised in the name of the lay township
and not in that of the ecclesiastical parish. So also the probate
of wills, the administration of estates, the exercise of chancery
jurisdiction,[357] and the supervision of primary and secondary
education[358] were taken out of the hands of the church and vested
mainly in the local community. The process of secularization in
legal functions proceeded with rapid strides.
[Footnote 357: In Massachusetts the county courts had an
equity jurisdiction; _Mass. Col. Rec._, V, 477, 478; _Acts and
Resolves_, I, 75, 356; WASHBURN, _Judicial Hist. of Mass._, 34,
166, 167; HOWARD, _Local Const. Hist._, I, 330, 331. See the able
article by WOODRUFF, "Chancery in Massachusetts," _Law Quarterly
Review_ (London, 1889), V, 370-86.]
[Footnote 358: An important epoch in the history of social
progress is reached when our New England ancestors recognized
the support of popular education as a proper function of local
government. The event is all the more remarkable because it led
the development of thought in the mother-country by more than
two centuries and a half. However, the primary motive of the
Massachusetts act of 1647 for the establishment of elementary and
grammar schools was to provide religious knowledge. "It being
one cheife p'iect of y^t ould deluder, Satan, to keepe men from
the knowledge of y^e Scriptures, as in form^r times by keeping
y^m in an unknowne tongue, so in these latt^r times by p'swading
from y^e use of tongues, y^t so at least y^e true sence & meaning
of y^e originall might be clouded by false glosses of saint
seeming deceivers, y^t learning may not be buried in y^e grave
of o^r fath^{rs} in y^e church & co[=m]onwealth," etc.--_Mass.
Col. Rec._, II, 203. _Cf._ also HOWARD, _Local Const. Hist._, I,
66-70; and _idem_, "The State University in America," _Atlantic
Monthly_, LXVII (1891), 332 ff.]
In no respect was the change more remarkable than in the
administration of matrimonial law and in the conception of the
marriage contract. Here, as in so many other instances, our
ancestors anticipated the thought and the legislation of the
mother-country by more than two hundred years.[359] It will be
remembered that in the beginning of the seventeenth century--and
ever since the thirteenth--English marriage law was in an anomalous
and most chaotic state. The Reformation in England had brought no
real change in the canonical conception of the form of wedlock,
though its sacramental nature was denied. On the one hand was the
church at the demand of the state trying to enforce ecclesiastical
rites and to secure publicity by requirement of banns, parental
consent, and registration; on the other was the "irregular" or
common-law marriage, entered into without any of these safeguards,
by mere private agreement; and the validity of the latter was not
squarely impeached by the church, though the disregard of the
priestly office was punished by spiritual censure. All this is
changed in the colonies. In place of confusion and complexity is
found simplicity. In New England particularly civil rites, civil
registration, and uniform theory of marriage tend at once to prevent
the manifold evils growing out of a lax or uncertain law. The
conception of wedlock which existed there from the beginning was
identical with that which later found expression in the writings of
Milton and the legislation of Cromwell. Marriage was declared to be,
not a sacrament, but a civil contract in which the intervention of a
priest was unnecessary and out of place.
[Footnote 359: Many of the enactments of the colonies are
described by Lord Campbell as "anticipating and going beyond most
of the salutary amendments which have been adopted in the reigns
of William IV. and Victoria."--GOODWIN, _Pilgrim Republic_, 251.]
Governor Winthrop, in commenting upon "a great marriage to be
solemnized at Boston," in 1647, expresses the sentiment prevailing
during the first three-quarters of a century after the settlement.
The bridegroom was "of Hingham, Mr. Hubbard's[360] church," and the
latter "was procured to preach and came to Boston to that end. But
the magistrates, hearing of it, sent to him to forbear. The reasons
were, 1. for that his spirit had been discovered to be averse to
our ecclesiastical and civil government, and he was a bold man,
and would speak his mind. 2. we were not willing to bring in the
English custom of ministers performing the solemnity of marriage,
which sermons at such times might induce, but if any ministers
were present and would bestow a word of exhortation, etc., it was
permitted."[361] The last remark reminds us of the benediction of
the early Christian priest, who, like the Puritan, discriminated
between the religious act and the marriage. Sermons, however, were
originally proscribed at the nuptials, though they were permitted at
the betrothal.[362]
[Footnote 360: Peter "Hobart": GOODWIN, _Pilgrim Republic_, 596;
DEXTER, _Congregationalism_, 458 n. 166; YOUNG, _Chronicles of
the Pilgrims_, 402 n. 2.]
[Footnote 361: WINTHROP, _History of New England_ (ed. SAVAGE,
1853), II, 382 (313).]
[Footnote 362: See especially DEXTER, _Congregationalism_, 458,
who has pointed out the error of Mr. Savage (WINTHROP, _Hist. of
New England_, II, 382 n. 2) in confusing the nuptials with the
"contraction."]
The early colonial laws, generally, required that all marriages
should be celebrated before a justice of the peace or other
magistrate, sometimes under penalty of nullity for those solemnized
in any other way.[363] Where no statutory provision to the contrary
existed the common-law marriage by private consent was valid.[364]
The question now arises as to the causes which determined the
establishment of civil marriage in the New England colonies. Was
it set up in imitation of the practice in Holland? Did it come
as a natural result of the general tendency of Protestant, and
especially of Puritan, thought? Or was it perhaps the product of
both influences combined? Already in the middle of the eighteenth
century colonial historians were at a loss to account for it. Thus
Governor Hutchinson makes a difficulty of understanding why the
lay celebration was introduced. "Their laws concerning marriage
and divorce," he says, "are somewhat singular. I suppose there had
been no instance of a marriage, lawfully celebrated, by a layman
in England, when they left it. I believe there was no instance of
marriage by a clergyman after they arrived, during their charter;
but it was always done by a magistrate, or by persons specially
appointed for that purpose.... It is difficult to assign a reason
for so sudden a change, especially as there was no established form
of the marriage covenant."[365]
[Footnote 363: The fact that ministers as such were not allowed
to celebrate in New England until near the end of the seventeenth
century is, of course, well known to students. Very many,
however, who now insist on the religious ceremony are ignorant of
the fact; and it is not a little surprising to find so reputable
a writer as AUGUSTE CARLIER, speaking of the "émigrants dans la
Nouvelle Angleterre," declaring that marriage "se formait sous
les yeux et avec l'approbation du chef de famille; il était
consacré par le pasteur; d'après les prescriptions impératives
de la loi, mais surtout pour obéir à la conscience d'un devoir
religieux."--_Le mariage aux États-Unis_, 8, 9.]
[Footnote 364: BISHOP, _Marriage, Divorce, and Sep._, I, 176,
178; FRIEDBERG, _Eheschliessung_, 471, 472.]
[Footnote 365: HUTCHINSON, _Hist. of Mass._, I, 392. Compare
COOK, "Mar. Celebration in the Colonies," _Atlantic Monthly_,
LXI, 351, who, following Hutchinson, thinks that the colonists
instituted "a form of marriage celebration unique in modern
times."]
On the other hand, Governor Bradford believed that the civil
celebration was introduced by the Pilgrims directly from Holland.
The first marriage in Plymouth Plantation--that of Edward Winslow
and Susannah White[366]--occurred on May 12 (22), 1621. This, he
declares "according to y^e laudable custome of y^e Low-Cuntries, in
which they had lived, was thought most requisite to be performed by
the magistrate, as being a civill thing, upon which many questions
aboute inheritances doo depende, with other things most proper to
their cognizans, and most consonante to y^e scriptures, Ruth 4, and
no wher found in y^e gospell to be layed on y^e ministers as a part
of their office. 'This decree or law about marriage was published
by y^e State of y^e Low-Cuntries An^o: 1590. That those of any
religion, after lawfull and open publication, coming before y^e
magistrats in y^e Town or Stat-house, were to be orderly (by them)
married one to another.' Petits Hist. fol: 1029. And this practiss
hath continued amongst, not only them, but hath been followed by all
y^e famous churches of Christ in these parts to this time,--An^o:
1646."[367]
[Footnote 366: On this marriage see also GOODWIN, _Pilgrim
Republic_, 181; SHIRLEY, "Early Jurisprudence of New Hampshire,"
_Procds. New Hamp. Hist. Soc._ (1876-84), 309; BACON, _Genesis
of the New England Churches_, 339-41; YOUNG, _Chronicles of the
Pilgrims_, 201.]
[Footnote 367: BRADFORD, _Hist. of Plymouth_, 101. The work
mentioned by Bradford, according to Mr. Deane, "is probably
_La grande Chronique ancienne et moderne de Holland, Zélande,
Westfrise, Utrecht_, &c., by Jean-François le Petit, 1601, and
1611."--BRADFORD, _op. cit._, 101, note by the editor.]
The testimony of Bradford must, indeed, command our earnest
attention, though in the matter of dates he is apparently misled
by his authority. For, as already seen,[368] two of the Netherland
provinces had established civil marriage as early as 1580; while it
was not extended to them all until seventy-six years later. Nor is
the mere fact that, seemingly without discussion, civil marriage
was adopted by Massachusetts and her daughter-colonies, as well
as by Plymouth, necessarily a fatal objection to this theory of
origin, though it has a bearing upon the question which must be
carefully considered. For the New England Pilgrim and Puritan alike
were simply doing what their brethren did a few years after when
they found their opportunity in the days of the Commonwealth. If
America owes the institution of civil marriage to Holland, it is so
not merely because of the residence of the Scrooby congregation at
Leyden, but because of the profound influence which Dutch Puritanism
exerted upon the Puritanism of England for a hundred years after
the Spanish and Tudor persecutions began. It can scarcely be
doubted that in various ways Dutch ideas made themselves felt in
the remarkable legislative and constitutional experimentation of
Cromwell's reign.[369] Moreover, the argument is strengthened by the
fact that the Fathers of the English Reformation, unlike Luther and
his followers, do not seem to have raised a single voice in favor of
the lay ceremony.
[Footnote 368: See chap. x, sec. i.]
[Footnote 369: The evidence for the influence of Holland upon
English and American institutions is presented in CAMPBELL,
_The Puritan in Holland, England, and America_ (New York,
1892), an able and timely work, calling attention to many facts
strangely neglected by previous writers, but too sweeping in its
general conclusion that American law and institutions, in their
essential characteristics, are not Anglo-Saxon, but Dutch. For
the interrelations of the Puritans in England and Holland see
especially _op. cit._, I, 485 ff.; II, 44 ff.]
Nevertheless, though Dutch custom undoubtedly furnished a direct
precedent which should not be ignored, it seems highly probable
that without the influence of Holland the early establishment of
civil marriage in New England was inevitable. It was required by
the spirit of Protestantism. Under favorable conditions, which New
England did and old England did not afford, it was sure to arise as
a consequence of rejecting the sacramental theory of wedlock.[370]
There is another factor of the problem which must be reckoned with.
The New England Puritans were steeped to the marrow in Hebraism;
and, as we shall presently see, the growth of a sentiment in favor
of lay marriage was fostered by the example of the Jewish law.[371]
It is vain to apologize for them on the ground that under the
influence of the Mosaic code they really regarded the officiating
magistrate as the "minister of God." In his "judicial" capacity
the magistrate may, indeed, have been looked upon as a divine
agent.[372] That is the well-known casuistry by which Luther and the
early Protestants persuaded themselves that absolute divorce through
the temporal court is not forbidden by the scriptural precepts.[373]
But it is a grave error to suppose that the seventeenth-century
Puritan had this in mind when he rejected the priestly ceremony.
Doubtless he did not forget that marriage from its social and
ethical sides is something higher than a _mere_ civil contract. Yet
for more than half a century after the settlement so intent was he
in emphasizing its secular character that in the statutes the words
"holy" or "sacred" as applied to it very seldom, if ever, appear.
"Honorable" or some similar epithet is the strongest term usually
employed. Even the publication of banns, as will hereafter be seen,
was at first ordinarily required to be made, not on the sabbath, but
at public "lecture" or on training day.[374]
[Footnote 370: At a very early day the English Separatists are
found advocating civil marriage: see BACON, _Genesis of the New
England Churches_, 107, who states Greenwood's view (1587).]
[Footnote 371: See sec. iv, below.]
[Footnote 372: ELLIS, _Puritan Age_, 185.]
[Footnote 373: See chap. xi, sec. ii.]
[Footnote 374: But publication of banns on the sabbath was not
ordinarily _prohibited_, the laws being usually silent as to
that, while naming other days. Probably in some towns from the
beginning sabbath publication may have been customary, as it was,
apparently, at Andover: BAILEY, _Hist. Sketches of Andover_, 75.
_Cf._ BACON, _Genesis of the New England Churches_, 339-41, who
also seems to misapprehend the attitude of the Separatist and
Puritan in his anxiety to show that early New England marriages
were not "godless."]
The difference between the colonists and their Anglican adversaries
in this regard is brought out in an interesting way through the
experience of Edward Winslow, whose second marriage has just been
mentioned. In 1634 he was sent on public business to England,
where, partly in the interest of Merry-Mount Morton, Mason, and Sir
Ferdinando Gorges, he was accused by Archbishop Laud--whose scheme
for setting up a governor-general and a bishop in the colonies
seemed likely to be frustrated by Winslow's petition relative to
the encroachments of the French and Dutch--of "teaching in y^e
church publickly," and of performing the marriage ceremony. The
latter offense he had committed in his capacity as magistrate.
In reply to the charge he excused himself on the ground that the
colonists were "necessitated so to doe, having for a long time
togeather at first no minister; besids, it was no new-thing, for he
had been so maried him selfe in Holland, by y^e magistrats in their
statthouse."[375] But "with more courage and candor than caution, he
proceeded to defend the practice on its merits, declaring that he
knew no scriptural ground for confining this office to the clergy;
while from the relations which marriage often had to property and
to business obligations, there seemed good reason for making it a
civil contract, as in Holland."[376] As a consequence Winslow was
imprisoned in the Fleet for seventeen weeks.[377]
[Footnote 375: BRADFORD, _Hist. of Plymouth Plantation_, 327-30.]
[Footnote 376: GOODWIN, _Pilgrim Republic_, 386.]
[Footnote 377: _Cf._ PALFREY, _Hist. of New England_, I, 543.]
It appears certain, then, that in the two older colonies the lay
ceremony was invariably required from the beginning.[378] But in
neither case does there seem to have been any direct legislation
on the subject for many years. Indeed, were there no prudential
reason,[379] a positive legal sanction may well have been deemed
superfluous while public opinion was so sensitive and so united.
The first extant order of the general court of Plymouth requiring
celebration before a civil officer was passed, it is said,[380] in
1671. But in this jurisdiction, as in Massachusetts, the assistants
or "magistrates" had always exercised this function; and it had
long been the custom for the general court to appoint commissioners
in the particular towns to join persons in marriage.[381] The
earliest statute of Massachusetts relating to the celebration is
the act of 1646, providing "that no person whatsoever in this
Jurisdiction, shall joyne any persons together in Marriage, but
the Magistrate, or such other as the General Court, or Court of
Assistants shal Authorize in such place, where no Magistrate
is neer."[382] In practice the last provision of this act was
carried out in various ways. Thus, for example, any citizen might
be appointed for a particular town during the pleasure of the
court.[383] Or, in absence of the regular officer, a commission
might be issued to perform the ceremony in specified cases; as
when Henry Chickering was given authority to marry "two or three
couples, legally published at Dedham."[384] In one instance we find
a curious optional commission in which are inserted the names of
three persons, either one of whom is empowered to join "M^{r.} John
Apleton and M^{rs.} Priscilla Glover" in marriage.[385] But, as a
rule, one or more of the three commissioners, chosen for the ending
of small causes in towns where no assistant resided, was authorized
by the county court to perform this duty.[386]
[Footnote 378: WEEDEN, _Ecc. and Soc. Hist. of New England_, I,
217 ff., has some interesting gleanings on the civil contract.]
[Footnote 379: "To make a law that marriage should not be
solemnized by ministers is repugnant to the laws of England; but
to bring it a custom by practice for the magistrate to perform it
is by no law made repugnant."--WINTHROP, _Hist. of New England_,
II, 313, 314 (382). _Cf._ COOK, in _Atlantic Monthly_, LXI, 351.]
[Footnote 380: By BRIGHAM, _Mass. Hist. Soc. Proceedings_,
IV, 283, 284. In general on civil marriage in New England see
LECHFORD, _Plain Dealing_ (Boston, 1867), 86, 87, or in 3
_Mass. Hist. Coll._, III, 94; DUNTON, _Life and Errors_ (1686),
in 2 _Mass. Hist. Coll._, II; _Mem. Hist. of Boston_, I, 196;
READ, in _Coll. of Old Col. Hist. Soc._, No. 2, 9; FRIEDBERG,
_Eheschliessung_, 470-78; DRAKE, _Making of New England_, 98;
OLIVER, _Puritan Commonwealth_, 415; HILDRETH, _Hist. of U. S._,
I, 192; WEEDEN, _Ecc. and Soc. Hist. of New England_, I, 217
ff., and Index; COOK, "Marriage Celebration in the Colonies," in
_Atlantic Monthly_, LXI, 350 ff.; and especially the excellent
chapter in EARLE'S _Customs and Fashions of Old New England_,
36-81.
SEWALL'S _Diary_, in 5 _Mass. Hist. Coll._, V, VI, VII; and his
_Letter Books_, in 6 _Mass. Hist. Coll._, I, II, are a mine of
information on social usages connected with dowers, courting, and
wedlock. For very interesting records of marriages celebrated by
magistrates at Salem in the seventeenth century see _Hist. Coll.
Essex. Inst._, I, II.]
[Footnote 381: _Plym. Col. Rec._, II, 155; IV, 10, 22, 43, 65,
73, 74, 108, 186; VI, 217, etc. _Cf._ 3 _Mass. Hist. Coll._, II,
270. In one instance we find the court abrogating a commission:
FREEMAN, _Hist. of Cape Cod_, I, 208.]
[Footnote 382: WHITMORE, _Colonial Laws of Mass._ (1660-72), 172;
_ibid._ (1672-86), 102. _Cf._ _Mass. Hist. Soc. Procds._, IV,
283, 284. Compare NEWHALL, _Ye Great and General Court_, 367.]
[Footnote 383: So, in 1646, the court "granted co[=m]ission to
M^r Edw^d Rawson to see people ioyne in marriage in Newberry,"
during pleasure, Watertown receiving a similar commission: _Mass.
Col. Rec._, II, 166. In 1651, on petition, Captain William
Gerrish was similarly appointed for Newberry: _ibid._, III,
256; IV, Part I, 65; _cf. ibid._, IV, Part II, 63; V, 483. Such
commissioners were usually so appointed at the request of the
inhabitants. See two further examples for 1654, _ibid._, III,
345, 346. On May 29, 1663, we find a "humble request by two men
to _General Court_ that Lieu. Goodinnough be authorized to marry
their son and daughter. Granted with addition that Goodinnough be
authorised to marry all who apply to him in that town [Sudbury?]
and who have been properly published."--_MSS. Early Court Files of
Suffolk_, No. 519.]
[Footnote 384: _Mass. Col. Rec._, IV, Part I, 407. In October,
1647, Captain Wm. Hathorne was commissioned to marry Thomas
Jeggles and Abigail Sharpe, in the absence of "y^e major
Gennerall."--_Mass. Col. Rec._, III, 115. The _MSS. Early Court
Files of Suffolk_, No. 221, under date of Nov. 13, 1655, contains
the following: "Order by the deputies in _General Court_ for
appointing Captain Hathorne to join together in marriage at
Salem such as desire it, there not being in or near there any
Magistrate. The Magistrates judge meet that the Deputies of Salem
be authorized to join in marriage. The Deputies judge meet to
leave the choice to the town of Salem."]
[Footnote 385: _Mass. Col. Rec._, IV, Part I, 74; _cf. ibid._,
407; and SHIRLEY, "Early Jurisprudence of New Hamp.," in _Procds.
of New Hamp. Hist. Soc._ (1876-84), 308.]
[Footnote 386: At a "County Court at Charlestown," June 25, 1658,
"Mr. Richard Russell at the request of the freemen of Charlestown
is empowered to solemnize marriages and to take oaths in civil
cases."--_MSS. Records of the County Court of Middlesex_, I, 133.
See also _Mass. Col. Rec._, IV, Part I, 255 (1656), 322 (1658).
The "associates," who sat with the "magistrates" to compose the
county court, were often commanded to join persons in marriage:
_ibid._, V, 139, 145, 101.]
The law and custom of the other New England colonies were
essentially the same as those already discussed. Everywhere
marriage was regarded as a civil contract and the celebration was
performed by a civil magistrate. In New Hampshire members of the
council could act.[387] In Rhode Island, besides the magistrate,
"none but Quakers[388] and clergymen of the Church of England
could perform the ceremony," and these were given such authority
by special grant of the king.[389] The law of New Haven, 1648, is
peculiar in requiring not only that the marriage be performed before
a magistrate or someone expressly allowed by the general court;
but when the persons to be united are "able to go forth," that it
be solemnized in some public place,[390] under penalty of five
pounds for "every such miscarriage."[391] In Connecticut, likewise,
compulsory civil marriage was adopted.[392]
[Footnote 387: See the Cutt Code in _Provincial Papers_, I, 396,
397; also _New Hamp. Hist. Soc. Coll._, VIII, 23, 117, 118; _cf._
SHIRLEY, "Early Jurisprudence of New Hamp.," _Procds. New Hamp.
Hist. Soc._ (1876-84), 307 ff.]
[Footnote 388: "A good story is told of Wm. Wanton--governor of
Rhode Island, 1732-3--in Deane's Scituate. Before his removal
from that place to Newport, prior to 1700, he had married Ruth
Bryant, daughter of a Congregational deacon. Wanton's family were
Quakers. Religious objections were made to the match on both
sides. He said, 'Friend Ruth, let us break from this unreasonable
bondage--_I_ will give up _my_ religion, and _thou_ shalt
_thine_, and we will go over to the Church of England, _and go to
the devil together_.' They fulfilled this resolution so far, says
our author, as to go to the Church of England, and marrying and
adhering to the Church of England during life."--ARNOLD, _Hist.
of Rhode Island_, II, 113, note.]
[Footnote 389: GREEN, _Short Hist. of Rhode Island_, 152, 153;
ARNOLD, _Hist. of Rhode Island_, II, 113. By the code of 1647
marriages were to be celebrated ("confirmed") before the "head
officer of the towne": STAPLES, _Proceedings of the First Gen.
Assembly, 1647_ (Providence, 1847), 47, 48; _R.I. Col. Rec._, I,
187. On the head officer see HOWARD, _Local Const. Hist._, I,
88, 89. According to the law of 1663 the intentions are to be
published, and "afterwards before one of the Gener^{ll} officers
shall they be married": in RIDER'S reprint of the _Laws and Acts_
(1705), 12. But in RIDER'S reprint of _The Charter and the Laws_
(1719), 12, it is declared lawful for "any Assistant, Justice of
the Peace, or Warden" to perform the ceremony. The act cited is
one of a group dated 1662; and it appears to be a modification
of the law just cited from the collection of 1705. The act of
1701 reserves the right of Quakers and members of the Church
of England to be married according to their own usage: RIDER,
_Charter and Laws_ (1719), 48; also in _Acts and Laws_ (Newport,
1730), 44, 46.]
[Footnote 390: "This requirement was sufficiently answered when
spectators were present; and usually marriages were solemnized
at the home of the bride."--ATWATER, _Hist. of the Colony of New
Haven_, 363.]
[Footnote 391: _New Haven Col. Rec._, II, 599, 600.]
[Footnote 392: The civil-marriage form is recognized by
the code of 1650: see TRUMBULL, _Blue Laws_, 167; COOK, in
_Atlantic Monthly_, LXI, 351; SANFORD, _Hist. of Conn._, 125;
and HOLLISTER, _Hist. of Conn._, I, 438. By the code of 1673 no
person is to solemnize marriages "but the Magistrates, or such
other as the General Court shall Authorize in such places where
no Magistrate is near": see the reprint of _The Book of the
General Laws of 1673_ (Hartford, 1865), 46.]
During the "usurpation" period, beginning in 1686, the laws
requiring civil marriage were set aside. Joseph Dudley, who
entered upon his duties as president of New England in May of that
year, published "an order of council, authorizing and empowering
ministers and justices of the peace, the order says, 'to consummate
marriages,' after three several times publication or licence from
the president or deputy."[393] With this compromise Governor Andros
was not satisfied; and it was his intention to allow marriages to be
performed only by the Episcopal clergy. To do this at once, however,
was impracticable. "Magistrates," says Hutchinson, "still continued
to give people in matrimony. Other provision could not immediately
be made." For at the time there was but one Episcopal clergyman in
the country; and "Sir Edmund considered the Congregational ministers
as mere laymen. Randolph wrote to the bishop of London, 'I press for
able and sober ministers, and we will contribute largely to their
maintenance; but one thing will mainly help, when no marriages shall
hereafter be allowed lawful but such as are made by the ministers
of the church of England."[394] Another restraint upon marriage was
accounted a still more serious hardship. "None were allowed to marry
except they entered into bonds with sureties to the governor, to be
forfeited in case there should afterwards appear to have been any
lawful impediment."[395] This requirement in many cases amounted to
a practical prohibition.[396]
[Footnote 393: HUTCHINSON, _Hist. of Mass._, I, 392, note; _cf._
SNOW, _Hist. of Boston_, 172, 173, 192; DRAKE, _Hist. of Boston_,
472, 473; SHIRLEY, "Early Jurisprudence of New Hamp.," _Procds.
New Hamp. Hist. Soc._ (1876-84), 308; WHITMORE, in _Mem. Hist.
Bost._, II, 1, 2.]
[Footnote 394: HUTCHINSON, _Hist. of Mass._, I, 318; _cf._
ARNOLD, _Hist. of Rhode Island_, I, 498, 499; GREEN, _Short
Hist. of Rhode Island_, 103. TRUMBULL, _Hist. of Conn._, I,
372, followed by HOLLISTER, _Hist. of Conn._, I, 317, makes the
following extraordinary statement: "Magistrates only were allowed
to join people in the bands of wedlock. The governor (Andros) not
only deprived the clergy of the perquisite from marriages, but
soon superseded the laws for their support."]
[Footnote 395: HUTCHINSON, _Hist. of Mass._, I, 318. At least
twenty-two of these bonds are extant. One, dated Jan. 11,
1686-87, given "unto Edward Randolph, Esq., Secretary of his
Majesty's Territory and Dominion," may be found among the
"Usurpation Papers" in 3 _Mass. Hist. Coll._, VII, 170; and also
in _New Hamp. Provincial Papers_, II, 18. The other twenty-one
are in the _Early Court Files of Suffolk_, Nos. 29996-30016.
Following is a copy of the first:
"Know all men by these p^{re}sents that Wee John Harris of the
Isle of Shoales ffisherman and Jabesh Negus of Boston Carpenter
are houlden and firmely bound vnto his Excellency S^r Edmund
Andros Kn^t Cap^t G[~r]all and Governour in Cheife vnder his most
Sacred Ma^ty James the Second King of England ec in and over
the Territory & Dominion of New England ~ In two Hundred pounds
Currant money of New England aforesaid to be paid to his said
Excellency S^r Edmund Andros his Executo^rs Admin^rs or Assignes.
To which payment well and truly to be made Wee bind ourfelves and
each of vs and each of our heires Executo^rs and Administrato^rs
Joyntly and feurally in the whole and for the whole firmely by
these p^{re}sents. Dated the 24th day of June Anno Dni 1587 Annoq
R R Jacobii Secdi nunc Anglice ec Tertio.
"The Condicon of this Obligãcon is fuch That if hereafter there
fhall not appeare any Lawfull Lett or Impediment by reason of any
p^{re}contract Consanguinity Affinity or any other Lawfull meanes
whatsoeur But that the above said John Harris and Mary Sparks of
Ipswich Spinster may Lawfully solemnize Marriage togeather; And
in the same afterwards Lawfully remaine and Continue Like man and
wife~ according to the Lawes in that behalfe made and provided
That then this Obligac[~c]on to be void or else to Remaine in
full force & virtue.
+----+
"Signed Sealed and Deliured [Signed] John Harris |Seal|
+----+
+----+
"In the p^{re}sence of vs. [ " ] Jabesh Negues |Seal|
+----+
[Signed] "Jn Bonamy
[ " ] Wm Marshall"
The earliest bond is dated June 24, 1687 (1587 in the MS.),
and the latest Oct. 24, 1688. They are alike in all essential
respects, differing very slightly from the above sample either
in form or wording. They are all for £200; and all are executed
in Boston, as shown by the names of the witnesses, although only
six are "dated in Boston." Seventeen of them were witnessed by
John Bonamy, and thirteen by Pe[ter] Heyman. These seemingly were
men who made a business of witnessing in Boston; and all the
other witnesses appear in connection with them. The bridegroom is
always a bondsman. In one case, that of the fifteenth bond, dated
March 5, 1687/8, the other signer is a woman, but not the bride.
The other bondsman is never of the same name as the bride to be.
The places of residence are Salem, Boston, Piscataqua, Nevis, and
Plymouth; the counties of Bristol, Suffolk, and Plymouth; while
in one case the man is from "Rhode Island."]
[Footnote 396: TRUMBULL, _Hist. of Conn._, I, 372; HOLLISTER,
_Hist. of Conn._, I, 317.]
The "first marriage at Boston with prayer-book and ring" occurred
on May 18/28, 1686, just four days after Dudley received his
commission as president of New England.[397] But there is evidence
that zealous opposition to the religious ceremony existed up to the
very beginning of this period. Thus, according to Savage, "Lawrence
Vanderbosk, a Huguenot clergyman, undertook to solemnize marriages
in Boston in 1685." But he was brought before a tribunal for this
enormity and promised "to do no more such things," yet in September,
says Judge Sewall, "he joined together Giles Sylvester and Hannah,
widow of Benjamin Gillam. The reverend offender went to New York the
same week."[398]
[Footnote 397: GOODWIN, _Pilgrim Republic_, 596; DRAKE, _Hist. of
Boston_, 472; DOYLE, _Eng. Colonies_, III, 232.]
[Footnote 398: Note by WHITMORE, _Andros Tracts_, II, 37. "'Tis
confessed," says Increase Mather referring to this incident,
"that once or twice a Debauched _Priest_ has appeared amongst
them; particularly one _Vardenbosch_, who, besides the good work
of _Baptizing_ a noted whore or two of his acquaintance, made
private _Marriages_ without any previous publication of _Banes_
(which is a nusance & _Bane_ to all humane society); and yet
so tender was the government as only to give them some _Orall
Rebukes_, upon which the guilty Knaves have run away."--MATHER,
"A Vindication of New England," _Andros Tracts_, II, 36, 37.
For the passage in SEWALL'S _Diary_ referred to, see 5 _Mass.
Hist. Coll._, V, 98. There is a discussion of the first clerical
marriage in New England, with reference to Vanderbosk, in
_Historical Magazine and Notes and Queries_, VIII, 279, 348.]
Gradually, however, the stern Puritanism of the colonists became
softened; the prejudice against ecclesiastical rites rapidly
subsided; marriages were solemnized even by the Congregational
clergy;[399] and soon after the struggle for the charters, laws
were enacted allowing the ministers of all denominations to
perform the ceremony. Yet, in Rhode Island, it was not until 1733
that the "settled and ordained ministers and elders of every
society and denomination of Christians" were permitted to join
persons in marriage, the legal fee therefor being fixed at three
shillings.[400] By an act of October, 1694, the same privilege was
conferred upon the "ordayned ministers of the severall plantations"
of Connecticut--in order, says the general court, to satisfy
"such as are conscienciously desirous to be" so joined.[401] For
Massachusetts a similar statute was passed in 1692, authorizing
all "settled ministers" to solemnize marriages, but only in their
"respective towns;" while, on the other hand, the authority of
the justice of the peace extended throughout the county.[402] The
careful limitation of the respective districts of the minister and
magistrate was doubtless intended to act as a check upon clandestine
unions, as by the more stringent act of 1695. By this statute
none may join any persons in marriage who are not inhabitants or
residents of the county or town; nor without a proper certificate
of due publication and parental consent from the clerks of the
towns where the parties respectively dwell. For celebrating a
marriage contrary to the act the minister or justice suffers a
penalty of fifty pounds and is forever disabled to join persons in
marriage, with the added liability of prosecution from the parent
or guardian.[403] By several subsequent acts the powers of the
clergy are still further enlarged. Thus in 1763 they are empowered
to solemnize marriages in "parishes" and "districts" composed of
"parts of towns" in "as ample a manner" as in the several towns
where they dwell.[404] In 1773 they are allowed to perform the
ceremony, not merely within their official districts, but for any
whose "ministerial taxes" they are entitled to receive; or if for
any cause a parish is without a minister, or if the incumbent
himself desires to get married, then the next minister of the same
denomination in the town may lawfully act.[405]
[Footnote 399: During the Andros period Rev. Charles Morton--who
was installed as pastor of the church in Charlestown, Nov. 5,
1686--began to solemnize marriages. He was probably the first
Congregational minister in New England who did so. See EDES,
_Mem. Hist. of Boston_, II, 315.]
[Footnote 400: _Rhode Island Col. Rec._, IV, 490; RIDER, _Supp.
Pages to the Digest of 1730_, 258, 259; _Acts and Laws_ (1745),
176. _Cf._ ARNOLD, _Hist. of R. I._, II, 113; GREEN, _Short Hist.
of R. I._, 152, 153.]
[Footnote 401: _Conn. Col. Rec._, 136. As the law stood in 1769,
marriages might be solemnized by magistrates and justices, each
within his own county, and by any ordained minister within
his town or society during his continuance in the work of the
ministry: _Acts and Laws_ (New Haven, 1769), 144.]
[Footnote 402: _Acts and Resolves_, I, 61. On this act JUDGE
SEWALL makes the following characteristic entry in his _Diary_:
"Nov. 4, 1692. Law passes for Justices and Ministers Marrying
persons. By order of the Co[=m]ittee, I had drawn up a Bill for
Justices and such others as the Assembly should appoint to marry:
but came new-drawn and thus alter'd from the Deputies. It seems
they count the respect of it too much to be left any longer with
the Magistrate. And salaries are not spoken of; as if one sort
of men might live on the Aer. They are treated like a kind of
useless, worthless folk."--5 _Mass. Hist. Coll._, V, 368. The
marriage fee was fixed by this act at three shillings.]
[Footnote 403: _Charters and General Laws_ (Boston, 1814), 285;
_Acts and Resolves_, I, 209, 210. In Nov., 1704, James Gardner,
"preacher of the Gospel" at Dartmouth, that town being destitute
of an "ordained minister," was allowed to solemnize marriages:
_ibid._, VIII (Appendix, Vol. III), 92.]
[Footnote 404: _Acts and Resolves_, IV, 622; _Charters and Laws_,
655. _Cf._ the earlier act of 1716-17: _Acts and Resolves_, II,
60.]
[Footnote 405: _Acts and Resolves_, V, 231; _Charters and Laws_,
679.]
So it appears that the proclamation of President Dudley in 1686
marks an epoch of some importance in institutional history. For by
it the principle of American law, generally recognized at present
by the statutes of the various states, and imitated by English
legislation, was first recognized. Almost everywhere in this country
the lay and the religious celebrations are equally valid; and it is
not without interest to note that long before the Revolution the
priest had once more practically superseded the magistrate at the
nuptials.[406] It was already regarded as good social "form" to have
the nuptials solemnized by religious rites.
[Footnote 406: In Hutchinson's time marriages were usually
performed by the clergy. "Although," he says, "the law admits of
its being done by a justice of the peace, yet not one in many
hundred is performed by them;" and he adds in a note: "Perhaps,
in a few years, the people of England will be equally well
satisfied with the provision made by the late marriage act, and
no body will be at the pains of a journey to Scotland to avoid
conformity to it."--HUTCHINSON, _Hist. of Mass._, I, 392, 393.]
No prescribed marriage ritual existed. The intention of the persons
entering into the covenant might be expressed in any fitting
words.[407] In the early period weddings were usually celebrated
quietly in the home of the bride. But it must not be understood that
all festivity was for long rigorously proscribed. Soon feasting
was added to prayer and the singing of psalms.[408] A sumptuary
law of 1637, forbidding the sale of buns and cakes in the markets,
victualling houses, and elsewhere, carefully makes an exception of
"such cakes as shalbee made for any buriall, or marriage, or such
like speciall occation."[409] The ancient practice of our teutonic
ancestors of "bedding" the newly married pair was maintained in
some quarters. Judge Sewall had that experience when he took his
second wife.[410] "In Marblehead bridesmaids and groomsmen put the
wedded couple to bed;" and we are told that "along the New Hampshire
and upper Massachusetts coast, the groom was led to the bridal
chamber clad in a brocaded night-gown. This may have occasionally
taken place among the gentry," comments Mrs. Earle, "but I fancy
brocaded night-gowns were not common wear among New England country
folk."[411] Another "survival" was the sham "bride-stealing" which
was long kept up in the Connecticut valley. "The last bride
stolen in Hadley was Mrs. Job Marsh, in the year 1783;" and to
this day "in certain localities in Rhode Island, the young men
of the neighborhood invade the bridal chamber and pull the bride
downstairs, and even out-of-doors, thus forcing the husband to
follow to her rescue. If the room or house-door be locked against
this invasion, the rough visitors break the lock."[412] Furthermore,
numerous instances of "smock marriages" in New England are recorded.
Here the English superstition elsewhere mentioned[413] took the
special form that "if the bride were married 'in her shift on the
king's highway,' a creditor could follow her person no farther in
pursuit of his debt."[414]
[Footnote 407: See GILMAN, _The Story of Boston_, 177, 178, for
an account of the marriage ceremony in the time of the Mathers.]
[Footnote 408: LODGE, _Short History_, 462.]
[Footnote 409: _Mass. Col. Rec._, I. 214; _cf._ ATWATER, _Hist.
of the Col. of New Haven_, 363; BAILEY, _Hist. Sketches of
Andover_, 74, 75; WEEDEN, _Ecc. and Soc. Hist. of N. E._, I, 113.]
[Footnote 410: SEWALL, _Diary_, in 5 _Mass. Hist. Coll._, VII,
233.]
[Footnote 411: EARLE, _Customs and Fashions_, 73, 74.]
[Footnote 412: EARLE, _Customs and Fashions_, 77. "A poem, by
Mrs. Emma Willard, entitled 'Bride-Stealing, a Tale of New
England's Middle Ages,' is preserved in Everest's _Poets of
Connecticut_. It gives a poetical account of one among many
instances of 'stealing the bride' that occurred in the early
days of the colony."--HOLLISTER, _Hist. of Conn._, I, 438, note.
See also STILES, _Windsor_, 475; WEEDEN, _Ecc. and Soc. Hist.
of N. E._, I, 295; and HUNTINGTON, _Celebration of the 200th
Anniversary of Hadley_ (Northampton, 1859), 43.]
[Footnote 413: See above, chap. x, sec. ii, p. 441, note 3.]
[Footnote 414: EARLE, _Customs and Fashions_, 77-79, where
several instances are discussed. See also PRIME, _Along New
England Roads_; WEEDEN, _Ecc. and Soc. Hist. of N. E._, II, 538.]
In the eighteenth century weddings were accompanied by much revelry
and extravagance. Gloves, rings, and scarves, as at funerals, were
given away in such profusion as to call for legislation to check
the abuse.[415] Unstinted feasting and drinking were the order of
the day. "Sack-posset" appears to have been the favorite wedding
beverage.[416] "All the friends were entertained at the bride's
home with a collation or supper, and afterward a dance; while in the
country they were the most important social events. The banns were
proclaimed in church, and all the neighbors were invited from the
pulpit to attend the ceremony. On the day of the wedding muskets
were fired, a procession was formed, and marched to the bride's
house, where the marriage took place; and then came a dinner, a
dance, and great merry-making. Usually these wedding feasts lasted
through the day and evening, but they were sometimes kept up for
two or three days. On one occasion at New London there was a great
wedding dance on the day after the marriage, when ninety-two
ladies and gentlemen assembled and proceeded to dance ninety-two
jigs, fifty-two contra-dances, forty-five minuets, and seventeen
hornpipes. This was probably an extreme case; but all over New
England weddings were great occasions, and were celebrated with much
pomp and rejoicing."[417]
[Footnote 415: NOURSE, _Hist. of the Town of Harvard, Mass.,
1732-1893_ (Harvard, 1894), 498, gives details as to marriage
fees received and entered in his record by the local clergyman.
At first John Seccomb usually had 5 shillings; later, about 1750,
his fee became "one pound old tenor;" still later generally "a
dollar," or "half a dollar," and once a "pistareen." From 1760
Rev. Joseph Wheely usually records "2£ 5s." During the Revolution
the ordinary charge was six shillings legal money.]
[Footnote 416: Sack-posset was compounded of milk, spirits,
and other ingredients; and it was eaten with a spoon: SEWALL'S
_Diary_, in 5 _Mass. Hist. Coll._, VI, 403, note. On the
wonderful mixed drinks of the New England Puritans see MRS.
EARLE'S delightful chapter on "Old Colonial Drinks and Drinkers,"
_Customs and Fashions_, 163-83; and also BLISS, _Side Glimpses
from the Colonial Meeting-House_, 12-28.]
[Footnote 417: LODGE, _Short History_, 462, 463; _cf._ SANFORD,
_Hist. of Conn._, 125. BAILEY, _Hist. Sketches of Andover_,
74-78, gives interesting details as to weddings and marriage
settlements; and BROOKS, _Olden Time Series: Days of the
Spinning-Wheel_, 32, 33, reprints specimens of marriage notices
taken from newspapers of the eighteenth century. On these
festivities, advertisements, and settlements see also EARLE,
_Customs and Fashions_, 60-77.]
Of the New England marriage celebration at the beginning of the
eighteenth century we have some vivid, though imperfect, sketches
from the inimitable pen of Judge Sewall. Next to funerals, weddings
seem to have been his chief recreation. The brief and naïve entries
in his _Diary_ reveal to us the mingled praying, psalm-singing, and
posset which enlivened those festive occasions. Thus on October 22,
1713, he writes: "I go to Salem.... See Mr. Noyes marry Mr. Aaron
Porter and Mrs. Susan Sewall, at my Brother's. Was a pretty deal of
Company present.... Mr. Noyes made a Speech, said Love was the Sugar
to sweeten every condition in the married Relation. Pray'd once. Did
all very well. After the Sack-Posset, etc., Sung the 45th Psalm
from the 8th verse to the end, five staves. I set it to Windsor
Tune. I had a very good Turkey-Leather Psalm-Book which I look'd in
while Mr. Noyes Read: and then I gave it to the Bridegroom saying,
'I give you this Psalm-Book in order to your perpetuating this song:
and I would have you pray that it may be an Introduction to our
Singing with the Choir above.'"[418]
[Footnote 418: SEWALL'S _Diary_, in 5 _Mass. Hist. Coll._, VI,
403.]
Again in 1720 we find him solemnizing the marriage of his daughter,
Mrs. Judith Sewall, with Mr. William Cooper. "I said to Mr. Simeon
Stoddard and his wife, Sir, Madam, The Great Honor you have
conferr'd on the Bridegroom and the Bride, by being present at this
Solemnity does very conveniently supercede any further enquiry after
your Consent. And the part I am desired to take in this Wedding,
renders the way of my giving my Consent very Compendious: There's no
maner of room left for that previous Question, Who giveth this Woman
to be married to this Man? Dear child, you give me your Hand for one
moment, and the Bridegroom forever. Spouse, You Accept and receive
this Woman now given you, etc. Mr. Sewall pray'd before the Wedding,
and Mr. Coleman after. Sung the 115. Psalm from the 9. verse to the
end, in the New Hall, St. David's which I set. Then we had our Cake
and Sack-posset."[419]
[Footnote 419: _Ibid._, VII, 253.]
II. BANNS, CONSENT, AND REGISTRATION
It is a fact of great historical interest that in the New England
colonies the administration of matrimonial law was relegated to
the sphere of local self-government. The requirement of previous
publication, parental consent, and registration was everywhere
carried into effect by the officers of the town as a part of their
regular functions; and by-laws for their guidance were enacted in
town-meeting.
The first extant statute for the regulation of marriage is contained
in the revision of the Plymouth laws made in 1636, and repeated
under a slightly altered form in the revision of 1658. It is a model
of brevity and precision; and it marks an epoch in the history of
English jurisprudence, attempting, as it does in few words, a remedy
for many of the evils which continued for two centuries to vex the
mother-country. No one "under the covert of parents" is allowed to
marry without their approbation. But in case such approval "cannot
be had then it shall be with the consent of the Gove[~r] or some
assistant to whom the persons are knowne whose care it shall be to
see the marriage be fitt before it be allowed by him." After the
consent of parent or magistrate has thus been obtained, the marriage
is to be published in "meeting" three several times before it is
solemnized. Or, if there is no meeting, then fifteen days' notice by
posting in the usual public place shall be sufficient; provided the
"writing be vnder some magistrats hand or by his order."[420]
[Footnote 420: _Plym. Col. Rec._, XI, 13, 190; _cf._ PALFREY,
_Hist. of New England_, II, 20; and BRIGHAM, _Plym. Col. Laws_,
44, 272.]
The Old Colony, likewise, made careful provision for registration.
By an act of 1646 it is declared the duty of the town clerk to
keep a register of the "day and yeare of the marriage, birth, and
buriall of euery man, woman, and child" within his township. He is
to have "thripence apece for each particular person soe registered."
The persons marrying are themselves required, within one month,
to report their marriage to him under penalty of three shillings
for neglect--one-half to the Colony and the other half to the
register "upon his complaint." The clerk must also submit annually
to the general court at its March meeting a written report of all
registrations made by him during the year. By this act, moreover,
the publication of banns was devolved upon him.[421]
[Footnote 421: _Plym. Col. Rec._, XI, 189,190; _cf._ _ibid._, 52,
53. Records of births, deaths, and marriages are printed _ibid._,
VIII. The record of marriages was sometimes included in the
proceedings of the general court: _ibid._, I.]
The laws of the other colonies differed only in details from those
of Plymouth. In Massachusetts the first order of the general court
on the subject was passed in 1639. The intention is to be thrice
published, not at divine service on the sabbath, it may be noted,
but in town-meeting or at "publike lecture" in "both the townes
where the parties, or either of them, do ordinarily reside." If no
public lecture is held in the town, then fourteen days' notice may
be given in writing on "some poast standing in publike viewe" and
used solely for this purpose.[422] The "poast" is to be provided
by the town under penalty of ten shillings for default.[423] Later
it became customary for the town clerk or his deputy to publish
the banns on Sunday, "after the blessing to the evening exercise
was pronounced;" and so in 1696-97 we find the town-meeting of
Charlestown ordering that "publishments should be made 'on Lecture
days or any other public times, and not restrained to Sabbath
Days only.'"[424] Sometimes on petition the legislature granted
to individuals special permission to marry.[425] Originally the
registration of births, deaths, and marriages devolved upon the town
clerk; but it seems to have been neglected by him. For in 1642 the
general court laid this duty upon the clerk of the writs in each
town, under penalty for default, requiring him to make annual return
of all names registered to the recorder of the county court.[426]
A similar report to the same officer is to be submitted each year
by all magistrates or persons appointed to solemnize marriages; and
the "new married man" shall likewise, within one month, bring in to
the clerk of the writs a certificate of his marriage.[427] Under the
Province laws the duties of recorder were again performed by the
clerk of the township; and under severe penalty persons might not
be joined in marriage without presenting a proper certificate of
publication and satisfactory evidence of parental consent.[428]
[Footnote 422: In the edition of the laws, 1660, notice is to be
placed "upon some post of their Meeting-house door": WHITMORE,
_Col. Laws of Mass._ (1660-72), 51, 52: _cf._ _ibid._ (1672-86),
101.]
[Footnote 423: _Mass. Col. Rec._, I, 275; WHITMORE, _Col. Laws of
Mass._ (1660-72), 51, 52; _ibid._ (1672-86), 101.
The meeting-house on Sunday or lecture-day was a general
clearing-house for news and gossip; and not the least inviting
topics were supplied by the marriage notices. "There they read,
as from an old newspaper, of an intention of marriage between
persons known to everybody; and although the town clerk had
stood up in the congregation and screamed it at the top of his
voice, it was an endless subject of comment, especially if the
woman had as publicly renounced the intention--as women sometimes
did."--BLISS, _Colonial Times on Buzzard's Bay_, 77, 78.]
[Footnote 424: EDES, in _Mem. Hist. Bost._, II, 315, and n. 2.]
[Footnote 425: For instance, on May 22, 1651, such a petition
from Mary Longe was allowed, provided "she be published according
to law": _Mass. Col. Rec._, III, 232. Sept. 7, 1643, "Jacob
Sheath & Margaret Webbe are permitted to joyne in marriage,
though but twice published": _ibid._, II, 46. May 30, 1644,
"without further publishment," Robert Parke "hath libertye to
proceed in marriage with Alice Tompson": _ibid._, III, 3.]
[Footnote 426: _Mass. Col. Rec._, II, 15; IV, Part I, 290;
_cf._ _ibid._, I, 275, 276; and WHITMORE, _Col. Laws of Mass._
(1660-72), 188; _ibid._ (1672-86), 130. But town clerks continued
to act: _Salem Town Rec._, 148. The office of "Clark of the
writts" seems to have been created in 1641, primarily to issue
summons and attachments: _Mass. Col. Rec._, I, 344, 345. See also
"Province Laws of New Hampshire," in _Coll. of New Hamp. Hist.
Soc._, VIII, 31. Originally clerks of the writs were appointed
by the general court; but later it was ordered that they should
be licensed by the shire court or court of assistants. Those
presented for license were first nominated in town-meeting:
_Mass. Col. Rec._, II, 188; _Dorchester Town Rec._, 116; _Salem
Town Rec._, 148, 195; _Boston Town Rec._ (1660-1701), 100, 103,
130, 197. _Cf._ HOWARD, _Local Const. Hist._, I, 90, 91, 331.]
[Footnote 427: WHITMORE, _Col. Laws of Mass._ (1660-72), 188;
_ibid._ (1672-86), 130; _Mass. Col. Rec._, II, 59.]
[Footnote 428: See the acts of 1692 and 1696: _Acts and
Resolves_, I, 61, 209, 210. By the former statute ministers and
justices are required to make a quarterly report of marriages
solemnized by them to the clerk of the sessions of the peace. The
act of 1716, referred to in SEWALL'S _Diary_, provides that the
town clerk shall send in to the same officer an annual transcript
of marriages recorded by him. "The volume of such returns for
Suffolk County has very recently (written 1882) been transferred
to the custody of the city registrar of Boston."--SEWALL'S
_Diary_, in 5 _Mass. Hist. Coll._, VII, 112, and the note by the
editors.]
Previous to 1692, of course, the legal history of New Hampshire is
in the main identical with that of Massachusetts.[429] But in the
pioneer stage the township was sufficient unto itself. "Dover and
Portsmouth, for nearly twenty years, had no central authority.[430]
They had no ministry in any form, nor any magistrates, except
such as might be created by any mining hamlet in an unorganized
territory, or afterward as the result of forming themselves into
societies. This, however, did not prevent people either from
marrying or dying. The result was that marriage in New Hampshire
has borne from the outset not only the character of a civil
contract, but the impress of our township system."[431] After the
establishment of the royal province the contract might be solemnized
by "virtue either of publishment, or of a licence from the Governor.
The granting of these licences was accounted a part of the royal
prerogative;"[432] and it was complained of as leading to abuse.[433]
[Footnote 429: Intentions of marriage were to be published three
times, or else on fourteen days' written notice: "General Lawes
and Liberties of New Hamp.," _Coll. New Hamp. Hist. Soc._, VIII,
23. See also the Cutt Code, _Provincial Papers_, I, 396, 397.]
[Footnote 430: DOYLE, _English Colonies_, II, 201 ff.; LODGE,
_Short Hist._, 397 ff.; HILDRETH, _Hist. of U. S._, I, 200;
BANCROFT, _Hist. of U. S._, I, 217, 218, 262.]
[Footnote 431: SHIRLEY, "Early Jurisprudence of New Hampshire,"
_Procds. New Hamp. Hist. Soc._ (1876-84), 309.]
[Footnote 432: BELKNAP, _Hist. of New Hampshire_, III, 211.]
[Footnote 433: _Provincial Papers_, IV, 832 (1737).]
The statutes of Connecticut contain a curious provision, which
will receive further notice hereafter. Distinction is made between
the "contract" and the "covenant." Eight days' public notice of
the proposed engagement must be given; and after the contract the
betrothed pair must "forbeare" for a second period of eight days
before joining in the covenant.[434] By the code of 1673 persons
are not to be joined in wedlock "before the intention ... hath been
sufficiently published at some publick Lecture or Town meeting in
the Towns where the parties or either of them do ordinarily reside,
or be set up in Writing ... upon some post of their Meeting House
Door in publick view, there to stand so as it may be read eight days
before such marriage."[435] In general, the marriage laws of both
Connecticut[436] and New Haven[437] on the topic considered are
plainly modeled upon those of Massachusetts, and so need not here
receive further analysis.
[Footnote 434: _Conn. Col. Rec._, I, 47, 48 (1640), 540;
TRUMBULL, _True Blue Laws_, 106. Compare _The Code of 1650_
(Hartford, 1836), 67, 68.]
[Footnote 435: _The Book of General Laws of 1673_ (Hartford,
1865), 46. The _Acts and Laws_ (New London, 1715), 75, require
three publications or eight days' posting; while by the _Acts and
Laws_ (New Haven, 1769), 144-47, intentions are to be announced
only eight days before the celebration "in some public Meeting
or Congregation on the Lord's Day, or on some public Fast,
Thanksgiving, or Lecture Day, in the Town, Parish, or Society
where the Parties or either of them do ordinarily reside," or
else posted eight days, as before.]
[Footnote 436: For the law of registration see _Conn. Col. Rec._,
I, 48, 105, 106, 551; TRUMBULL, _op. cit._, 123.]
[Footnote 437: _New Haven Col. Rec._, II, 599, 600, 607;
TRUMBULL, _op. cit._, 241, 242, 255; ATWATER, _Hist. of New Haven
Colony_, 363.]
Some interesting details may be gleaned from the matrimonial
legislation of Rhode Island. The code of 1647 requires the
publication of banns at two town-meetings, confirmation before the
head officer, and registration in the town clerk's book; otherwise
the marriage is void. It is further enacted that the "man that goes
contrarie to this present Ordinance ... shall forfeit five pounds
to the parents of the Maid, and be bound to his good behaviour; and
all the accessories shall forfeit five pounds a man, halfe ... to
the grieved parents and the other halfe to the Town."[438] Thus was
established at an early day, says Arnold, a system of registration
"such as recent legislation has attempted to revive."[439] In 1656
it was permitted either to publish marriages at town-meeting, or
"on a traininge day at y^e head of y^e Companie,"[440] or by a
"Writinge under y^e Magistrates hands fixed upon some noted place
in y^e Towne."[441] If "the banns were forbidden, the case was
to be heard by two magistrates; should they allow it, the parties
might marry; but if not, the general Court of trials were to
decide."[442] A later version of the law of 1647, of uncertain
date, is somewhat more detailed. The "man y^t hath A respect to a
maid & doth desi[re] to Obtaine her in Marriage ... shall first
acquaint her Parents thereof & upon their consenting thereto he
shall have Baines of matrimony set up in a Publick Place in y^e Town
or be Published two sever^{ll} times In A Public Assembly In the
Town & then remaine from After y^e first Publication Tenn Days."
Afterward, "before one of the Gener^{ll} officers" the celebration
may take place according to "y^e usuwal Custome of this place &
then a Certificate Shall be given by y^e Officer y^t Ioynes them
togeather in Marriage to y^e party So married who shall Carry it
to the Clarke of y^e Town where y^e Marriage was Solemnized &
have it Placed upon Record." For violation of the act the same
penalties are imposed on the principals and accessories as in 1647;
and the children "y^t any shall have w^{th}out this due & orderly
Course of Law ... shall be looked at not to be Legitimate."[443]
It appears that the execution of the laws was sadly neglected, and
so by an act of 1698 all marriages thus far solemnized, but not
duly registered, are declared valid. Persons married in future are
ordered within ten days to make return to the town clerk; while the
latter is required to submit annually to the head officer of the
town or to the chief justice of the peace a report of all births,
marriages, and deaths by him recorded.[444] Three years later a more
stringent statute appears. Persons from another colony or township
must present to the officer performing the ceremony a magistrate's
certificate of proper publication and qualification.[445] "Fine
and suspension from office were the penalties for any violation of
this act by a magistrate, and fine, imprisonment, or whipping, is
the punishments for the principals who disregard it."[446] After
various changes[447] the law of the provincial era reached its
full development in the code of 1767. A dual system of banns and
lay publication is provided. If application be made to a "settled
and ordained" minister of any denomination, he shall "openly and
by public speaking" proclaim the banns on three several Sundays,
holidays, or days of public worship "in the Meeting in the Town,
where the Parties respectively belong." If lay publication be
preferred, the assistant, warden, or justice, under his hand and
seal, is required to post a notice in some public place in each
of the towns where the parties dwell fifteen days before the
wedding.[448] A method of "under-writing" in case of objection is
prescribed. With leave of any assistant, justice, or warden, the
person opposing the marriage is to make the objection "in writing
under his or her Hand, therein assigning the Impediment, and affix
the same under the Publication;" but in case of oral banns the
written objection, in the presence of two witnesses, is to be
delivered to the minister or elder who proclaimed the banns. The
person forbidding the marriage must enter into recognizance with two
good sureties to appear at the next court of general sessions of
the peace and there "make good and prove" his allegations, or, in
default, pay to the persons to be wedded "all such Damages as they
shall sustain by Means of staying their Marriage." A certificate
of publication must be produced; two credible witnesses to the
ceremony are required; the person conducting the celebration must
give a certificate[449] thereof to the newly wedded pair; and he is
entitled to a fee of three shillings. Only fines are imposed for
violation of the act by the solemnizer or by the parties. Neither by
this law nor apparently by any statute subsequent to the act of 1663
is a contract declared void for non-observance of legal forms.[450]
[Footnote 438: _R. I. Col. Rec._, I, 187; STAPLES, _First
Proceedings_, 47, 48.]
[Footnote 439: ARNOLD, _Hist. of Rhode Island_, I, 208.]
[Footnote 440: Publication on training day seems to have been
customary elsewhere in New England, doubtless that day being one
of the "public times" referred to in the Massachusetts laws.]
[Footnote 441: This practice may be illustrated by the following
anecdote concerning the marriage of Ruth Wilkinson and William
Hopkins at Providence, related by MR. C. C. BEAMAN in _Hist.
Coll. Essex Inst._, II, 116: "The lovers could not muster courage
enough to speak to the 'awful Justice,' for Mr. Wilkinson
(Ruth's father) held that office so dignified in former days.
In the house or office it was the custom to post up 'Intentions
of Marriage.' The timid lovers, who had often looked with an
envious or emulous eye upon such important steps preliminary to
a 'consumation devoutly to be wished,' wrote a notice of their
'intentions,' and placing it unobserved upon the table of the
'Justice,' watched to see how it would be regarded. 'Squire
Wilkinson, as they saw by a peep through the door, took up the
paper, read it, and deliberately posted it up in the proper
location. There were some blushes on the cheeks of Ruth that day,
probably, but the desired approbation thus ingeniously obtained
soon led on to marriage."]
[Footnote 442: ARNOLD, _Hist. of R. I._, I, 260; _R. I. Col.
Rec._, I, 330.]
[Footnote 443: RIDER'S _Laws and Acts_ (1705), 12.]
[Footnote 444: _R. I. Col. Rec._, III, 362; also in RIDER'S _Laws
and Acts_ (1705), 44.]
[Footnote 445: _R. I. Col. Rec._, III, 436; _cf._ _ibid._, IV,
395, 396; RIDER, _op. cit._, 50.]
[Footnote 446: ARNOLD, _Hist. of R. I._, II, 3; _R. I. Col.
Rec._, III, 436, 437. By this act fourteen days' notice is
required of those living in the jurisdiction.]
[Footnote 447: Compare RIDER'S _Charter and Laws_ (1719), 12,
13, 47, 48; _Acts and Laws_ (1745), 30, 31, 176, 177 (1733),
100 (registration act of 1727); and RIDER'S _Supp. Pages to the
Digest of 1730_, 258, 259 (act of 1733).]
[Footnote 448: The prescribed notice is in the following form:
"Know all Men by these Presents, that A. B. of ---- and C. D.
of ---- have declared unto me their Intention of Marriage: I do
therefore hereby make public the said Intention. If any Person
knows any just Cause or Impediment why these Two Persons shall
not be joined together in Marriage, they may declare the same
as the Law directs. Given under my Hand and Seal at ---- this
---- Day of ---- _Anno Domini_ ----."--_Acts and Laws_ (Newport
1767,), 172, 173.]
[Footnote 449: The marriage certificate is in the following form:
"I Hereby certify, That A. B. of ---- Son of ---- and C. D. of
---- Daughter of ---- were lawfully joined together in Marriage
on the ---- Day of ---- Anno Domini ---- by me the Subscriber."]
[Footnote 450: _Acts and Laws_ (Newport, 1767), 172-75.]
In conclusion it may be noted that generally throughout New England
neglect of the prescribed forms did not invalidate marriage,
though the offender against the law might be punished.[451] It is
historically probable, where words of nullity were not contained
in the statute, that the irregular contract by simple present
agreement, without intervention of a minister or magistrate,
was valid. But this is a disputed point which will hereafter be
considered in connection with the history of common-law marriage in
the United States.[452]
[Footnote 451: See the case of Usher _v._ Troop (Throop),
1724-29, in _MSS. Records of the Superior Court of Judicature_
(Mass.), 1725-30, folio 236. In 1724 John Usher, of Bristol, a
minister of the Church of England, convicted in the inferior
court of common pleas of marrying a couple without certificate
of the town clerk, was fined 50 pounds and "forever thereafter
disabled to Joyn Persons in Marriage." On appeal it was found:
"If the Constitutions and Canons Ecclesiastical of the Church of
England are sufficient to support the Appellant here, in Joyning
Persons together in Marriage without such certificate.... Then
the Jury say the Applt is not Guilty; otherwise they say he is
Guilty." The appeal was finally dismissed (1729) on default of
the "appellee."]
[Footnote 452: See chap. xviii, i.]
III. COURTSHIP, PROPOSALS, AND GOVERNMENT OF SINGLE PERSONS
It may be an exaggeration to say that the Mosaic code was the
_corpus juris_ of the Puritan.[453] But it is certain that the
early private law of New England was profoundly influenced by it.
The family in many respects took on a patriarchal character. The
sway of the house-father, though in the main just, became in theory
despotic. Even the conception of marriage as a civil contract gained
support from the Jewish law.[454] Our ancestors loved to cite the
book of Ruth and other scriptural texts in its favor; and their
view of the proper relations of husband and wife, those of parent
and child, or those of man and woman before marriage, was derived
directly from the biblical ordinances.[455]
[Footnote 453: "Il y avait même un tel mélange de la religion à
toutes les circonstances de la vie civile, que la législation,
en certaines matières, en référait à la Bible qui était,
pour ainsi dire, le _corpus juris_ des émigrants dans la
Nouvelle-Angleterre. La famille, où ils avaient puisé le
sentiment religieux, était forte parce qu'elle était unie; et le
père, qui ressemblait en quelque sorte au patriarche d'autrefois,
avait une autorité incontestée qu'on aimait, car elle était
composée de bienveillance et de justice."--CARLIER, _Le mariage
aux États-Unis_, 7, 8.]
[Footnote 454: "Between these two extreme views--that of marriage
as merely a civil contract and marriage as a sacrament--stands
that of the Jewish law. The act of concluding marriage is
there certainly also considered as a contract, which requires
the consent of both parties and the performance of certain
formalities, similar to other contracts, and which, under
certain circumstances, can be dissolved. But, inasmuch as
marriage concerns a relation which is based on morality and
implies the most sacred duties, it is more than a mere civil
contract."--MIELZINER, _The Jewish Law of Marriage and Divorce_,
25, 26. But "the presence of a rabbi or minister is, according to
the Talmudic Law, not required at the betrothal or the nuptials.
The prescribed benedictions were pronounced either by the
bridegroom or by any of the friends present. Such was also the
Jewish custom during the Middle Ages."--_Ibid._, 84. _Cf._ AMRAM,
_The Jewish Law of Divorce_, 39.]
[Footnote 455: See SHIRLEY'S comments on the Cutt Code, "Early
Jurisprudence of New Hampshire," _Procds. New Hamp. Hist. Soc._
(1876-84), 273 ff.]
Thus "old bachelors," though rare in early New England, were
looked upon with disfavor. They were regarded almost as "suspected
criminals."[456] Connecticut "in 1636 would not allow any young
unmarried man to keep house."[457] A special order of the town of
Windsor was necessary, in 1682, to permit "Isaac Sheldon and Samuel
Rockwell to keep house together, 'so they carry themselves soberly
and do not entertain idle persons to the evil expense of time by
day or night.'"[458] Hartford taxed "lone-men" twenty shillings
a week "for the selfish luxury of solitary living."[459] Even in
the eighteenth century a general statute of Connecticut, under the
same penalty of twenty shillings a week, forbade any "house-keeper"
or "master of a family," without "allowance of the selectmen," to
give "entertainment or habitation" to a single person; and "such
Bourders, Sojourners, and Young persons" are required to "attend
to the Worship of God" in the families where they live and "to be
subject to the domestick Government of the same," or else forfeit
five shillings for every breach of the law.[460] In Rhode Island in
one instance "single persons of three months' residence paid five
shillings, while the 'rate of faculties and personal abilities'
was left at the discretion of the assessors."[461] According to a
New Haven law, in order to "suppress inconvenience" and disorders
inconsistent with the "mind of God in the fifth commandment,"
single persons, not in service or dwelling with their relatives,
are forbidden to diet or lodge alone; but they are required to
live in "licensed" families; and the "governors" of such families
are ordered to "observe the course, carriage, and behaviour, of
every such single person, whether he or she walk diligently in a
constant lawful imployment, attending both family duties and the
publick worship of God, and keeping good order day and night or
otherwise."[462]
[Footnote 456: EARLE, _Customs and Fashions_, 36.]
[Footnote 457: WEEDEN, _Ecc. and Soc. Hist. of N. E._, I, 230;
_Conn. Col. Rec._, I, 8.]
[Footnote 458: WEEDEN, _loc. cit._; STILES, _Windsor_, 54.]
[Footnote 459: EARLE, _Customs and Fashions_, 37.]
[Footnote 460: _Acts and Laws_ (1715), 60; see also _Conn. Col.
Rec._, I, 538; TRUMBULL, _Blue Laws_, 104.]
[Footnote 461: In 1682: WEEDEN, _op. cit._, I, 272; MUNRO,
_Bristol, R. I._, 115.]
[Footnote 462: _New Haven Col. Rec._, II, 608; TRUMBULL, _op.
cit._, 258.]
Similar measures were adopted by the other colonies. The law of
Plymouth provides that "wheras great Inconvenience hath arisen
by single persons in this Collonie being for themselues and not
betakeing themselues to live in well Gou^rned famillies. It is
enacted by the Court that henceforth noe single person be suffered
to liue by himselfe or in any family but such as the Celectmen of
the Towne shall approue of; and if any person or persons shall
refuse or neglect to attend such order as shalbe giuen them by the
Celectmen; that such person or persons shalbe sumoned to the Court
to be proceeded with as the matter shall require."[463] "Whereas,"
runs a statute of Massachusetts, "there is a loose and sinful
custom of going or riding from town to town, ... oftimes men and
women together, upon pretence of going to lectures, but it appears
... merely to drink and revel in ordinaries and taverns, which is
in itself scandalous, and it is to be feared a notable means to
debauch our youth and hazard the chastity of those that are drawn
fourth thereunto: for prevention whereof," it is ordered "that all
single persons who merely for their pleasure take such journeys
... shall be reputed and accounted riotous and unsober persons,
and of ill behavior ... and shall be committed to prison for ten
days, or pay a fine of forty shillings for each offence," unless
they can "give bonds and sufficient sureties for good behavior in
twenty pounds."[464] Earlier it was decreed that the "Select men
of every Town, in the several precincts, and quarters where they
dwel, shal have a vigilant eye over their brethren and neighbours,
to see, first that none of them shall suffer so much barbarism in
any of their families, as not to endeavour to teach, by themselves
or others, their children & apprentices, so much learning, as may
enable them perfectly to read the english tongue & knowledg of
the Capital laws." Once a week children and apprentices are to be
catechised "in the grounds and principles of Religion," or at
least taught "some short orthodox catachism without book;" and they
are to be bred and brought up "in some honest Lawfull calling ...
profitable for themselves and the Common-wealth," if their parents
or masters "will not, or cannot train them up in learning to fitt
them for higher imployments." If parents and masters neglect their
duty, "whereby children & servants become rude, stubborn & unruly,
the sayd Select men with the help of two Magistrates or the next
County Court for that Shire, shall take such children or apprentices
from them," and until they come of age place them with persons
who will more strictly look after their government as the law
directs.[465] It was further enacted that every town shall order and
dispose to service or otherwise all "single persons and inmates"
within its borders, anyone feeling aggrieved thereby "to have
Liberty to appeale to the next County Court."[466]
[Footnote 463: _Plym. Col. Rec._, XI, 223.]
[Footnote 464: WHITMORE, _Colonial Laws of Mass._ (1672-86), 236,
237.]
[Footnote 465: _Ibid._ (1660-72), 136.]
[Footnote 466: _Ibid._, 196; _ibid._ (1672-86), 148; _Mass. Col.
Rec._, I, 186.]
These laws were not wholly a dead letter, as shown by the judicial
records. Thus on April 2, 1672, "Thomas Henshaw and Thomas Hall,
singlemen, being convicted of living from under family government
... , are ordered forthwith to submit themselves" to such government
"and to appear at the next court and bring with them certificate
thereof."[467] Nevertheless complaint is made that the town officers
are negligent. In 1668 the legislature directs the clerk of each
shire court to send "to the Constables of the Towns" within the
shire an order which they are "enjoyned faithfully to execute."
In the preamble it is recited that the neglect of the laws, "as
by sad experience from Court to Court abundantly appears, doth
occasion much sin and prophaness to increase among us, to the
dishonour of God, and the ensnaring of many Children and Servants,
by the dissolute lives and practices of such as do live from under
Family Government, and is a great discouragement to those Family
Governours, who conscientiously endeavour to bring up their Youth
in all Christian nurture, as the Laws of God and this Common wealth
doth require: These are therefore ... to require you to acquaint
the Select men of your Town, that the Court doth expect and will
require, that the said Laws be accordingly attended... : and you are
also required to take a list of the names of those young persons
... who do live from under Family Government, _viz._, do not serve
their Parents or Masters, as Children, Apprentices, hired Servants,
or Journey men ought to do, and usually did in our Native Country,
being subject to their commands and discipline."[468]
[Footnote 467: _MSS. Records of the County Court for Middlesex_,
III, 21.]
[Footnote 468: WHITMORE, _op. cit._ (1660-72), 260; also _ibid._
(1672-86), 149. There is a copy of one of the orders sent to the
constables, differing slightly in capitalization and punctuation
from the above, in the _MSS. Files of the County Court for
Middlesex_, Dec., 1668.]
The manuscript files of Middlesex show that lists[469] of delinquent
single persons were taken by the constables as required; and that
some of them were summoned to appear before the court. Following is
the "answer" of Robert Williams, whose name is in the list given in
the margin:
"I do desire to liue under family gouernment and haue so desired
euer sinc my time was out with my master that I liued with and
all the time sinc commited myself into mens housis of good report
as neer as I could and do desir to walk inofenciue to all men and
furder I do hop that the men which I do work with will say as I do
if the honered court will desir it indeed I am not a saruant yet do
submit myself to family ordor I [will] do as a saruant what els the
honered court would haue me do mor I hope I shall be willing to
obay the finil power."[470]
[Footnote 469: Here is the list from Marlboro:
"Samuell Goodenow, from under family Gouernment, Liuing upon his
oune ground.
"Isaius Tailer and Will Tayler, Renters....