ECCLESIASTICAL RITES AND THE RISE OF CIVIL MARRIAGE IN THE SOUTHERN
COLONIES
[BIBLIOGRAPHICAL NOTE XIII.--For Virginia the chief materials
have been drawn from Hening's _Statutes at Large_ (Richmond,
1809-23), and the laws comprised in _Acts of the Assembly_
(fol., Williamsburg, 1769). The third volume of O'Callaghan,
_Documents Rel. to the Col. History of New York_, has an
interesting memorial of the bishop of London written in 1677;
and there are some references to marriage in Strachey, _For
the Colony in Virginea Britannea: Lawes Diuine, Morall, and
Martiall_, being "Dale's Code" (London, 1612): in Force,
_Tracts_, III; Spotswood, _Letters_, constituting Vols. I and
II, new series, of the _Collections of the Va. Hist. Soc._
(Richmond, 1882-85); Beverley, _History of Virginia_ (reprint,
Richmond, 1855); and the acts of the assembly of 1619 contained
in the _Colonial Records of Virginia_ (Richmond, 1874). Cooke,
_Virginia_ (Boston, 1884), gives a curious proclamation of
Governor Wyatt for the regulation of courtship. In Vol. IV of
the _Va. Magazine of Hist. and Biog._ (Richmond, July, 1896)
there is a unique "Marriage Agreement" which throws some light
on the economic affairs of the provincial household; and further
illustrations of domestic and social customs may be found in
Goodwin, _The Colonial Cavalier_ (Boston, 1895); and Fiske, _Old
Virginia and Her Neighbors_ (Boston, 1898).
The principal sources for Maryland are Browne, _Archives of
Maryland_ (Baltimore, 1883-91); Bacon, _Laws of Maryland_
(fol., Annapolis, 1765); and, to supplement these, the _Laws of
Maryland made since 1763_ (fol., Annapolis, 1777); or the same
(fol., Annapolis, 1787). Streeter, "Papers Rel. to the Early
Hist. of Maryland," in _Md. Hist. Soc. Publications_ (Baltimore,
1876), publishes a record of the first wedding in the colony,
with the marriage license bond. The matrimonial doctrines of
the Labadists are discussed by James, "The Labadist Colony
in Maryland," in _J. H. U. S._, XVII (Baltimore, 1899); and
the character of the episcopal clergy is described by Browne,
_Maryland_ (Boston, 1884), and by Lodge, _Short History_ (New
York, 1882).
On this subject, as on most topics for the period, the extremely
valuable _Colonial Records of North Carolina_ (Raleigh, 1886-90)
are a mine of information; and they are enriched by Colonel
Saunders's "Prefatory Notes." The first matrimonial statute,
passed by the assembly of Albemarle in 1669, is also contained
in Chalmers, _Political Annals_: in Carroll, _Hist. Coll. of
South Carolina_ (New York, 1836); and in Hawks, _History of
North Carolina_ (Fayetteville, 1857-58), likewise of service on
other points. The various statutes of the eighteenth century
may be consulted in Iredell-Martin's _Public Acts of the Gen.
Assembly_ (Newbern, 1804); in Swan's _Revisal_ (ed. 1752); or
Davis's _Revisal_ (ed. 1773). Similar collections of laws for
South Carolina are Cooper and McCord's _Statutes at Large_
(Columbia, 1837-41), and Brevard's _Alphabetical Digest_
(Charleston, 1814)--both of which contain useful editorial
notes. Constitutional provisions are, of course, found in Poore,
_Charters_ (Washington, 1877). The works of Friedberg and the
_Atlantic_ article of Cook, elsewhere mentioned, are still of
service; and Weeks in his valuable monograph, "Church and State
in North Carolina," in _J. H. U. S._, XI (Baltimore, 1893), has
traced from the sources the struggle of the Presbyterian with
the Episcopalian government party for the privilege of using
their own rites in the celebration of marriage.]
I. THE RELIGIOUS CEREMONY AND LAY ADMINISTRATION IN VIRGINIA
Throughout the colonial period in Virginia the religious marriage
ceremony, according to the rites of the Church of England, was
prescribed by law. Indeed, it was not until 1794 that the lay
celebration before a magistrate was permitted, and then only in
certain exceptional cases. But in two important particulars, even in
the earliest statutes, there is a remarkable advance upon the custom
of the mother-country. In the first place, it is noteworthy that
the administration of matrimonial law is gradually intrusted to the
county officers and the local courts. Here, as in New England, there
is a quickening of the forces of local self-government; and the
lay tribunals gained important functions which in England belonged
to the ecclesiastical courts. Again, the legislation of 1631-32
embodies the essential principles of the Hardwicke act of 1753.
The institution of marriage begins to be protected and defined by
careful statutory provisions and is no longer left to the perils of
uncertain custom. Banns or license, parental consent, certificate,
and registration are all soon introduced. Marriage becomes in effect
a civil contract long before it is squarely acknowledged to be such
by the law.
The brief act of 7 Charles I., 1632, provides that "no mynister
shall celebrate matrimony betweene any persons without a facultie
or lycense graunted by the Governor, except the baynes of matrimony
have beene first published three severall Sundays or holydays in the
time of devyne service in the parish churches where the sayd persons
dwell, accordinge to the booke of common prayer." The minister is
forbidden to "ioyne any persons soe licensed in marriage at any
unreasonable tymes, but only betweene the howers of eight and twelve
in the forenoone." If the marriage is after publication of banns
without license, and the persons are under twenty-one years of age,
the consent of parents is required before legal celebration.[704] It
was also enacted that all marriages should be solemnized in church
"except in case of necessity."[705]
[Footnote 704: HENING, _Statutes_, I, 156, 157. See also the act
of 8 Chas. I., expressed in about the same terms, _ibid._, 181.]
[Footnote 705: _Ibid._, 158, 183.]
The act of 1632 determined the broad outline of the marriage law
of Virginia until after the Revolution. But two or three important
modifications were made by subsequent legislation. Thus, an act
of the Commonwealth period, 1657-58, enforces the provision that
"ministers only shall celebrate marriages;" and significantly adds
that they shall not do so without license or publication of banns
"as formerly," under a penalty of "tenne thousand pounds of tobacco
to ease the leavye of that county." No license is to be granted
"without certificate vnder the hands of the parents, masters, or
guardians of the parties to be married."[706] Again, the first act
of the Restoration, 1661-62, requires license or "thrice publication
according to the prescription of the rubric in the common prayer
booke, which injoynes that if the persons to be marryed dwell in
severall parishes the banes must be asked in both parishes, and
that the curate of one parish shall not solemnize the matrimony
untill he have a certificate from the curate of the other parish,
that the banes have been there thrice published, and noe objection
made" to the union. For violation of the law by the minister the
penalty of 1657-58 is retained. But this statute goes farther and
declares that "any pretended marriage _hereafter_ made by any
other then a minister" shall be "reputed null, and the children
borne out of such marriage of the parents" shall be "esteemed
illegitimate and the parents suffer such punishment as by the laws
prohibiting fornication ought to be inflicted."[707] This act of
the Restoration, like that of the Duke of York, 1665, was probably
invalid as transcending the requirements of the English common
law.[708] In part it may have been intended to punish violation of
the marriage law by dissenters, and its severity must have been
keenly felt. At any rate, it was repealed in 1696 and replaced by
an "act for the prevention of clandestine marriages." The preamble
recites that "many great and grievous mischeifes have arisen and
dayly doe arise by clandestine and secret marriages to the utter
ruin of many heirs and heiresses," and that "the laws now in force
... do inflict too small a punishment for so heinous and great
an offence." The minister guilty of violating the provision for
banns or license, which is re-enacted, is to suffer imprisonment
"for one whole year without bayle or mainprize and shall forfeitt
and pay the sume of five hundred pounds currant money, one moyety
thereof to our sovereign lord the king, ... and the other moyety to
him or them that shall sue or informe for the same." No licenses
are to be granted without a certificate from the clerk of the
county court; and the certificate may not be issued by the clerk
without the consent of the parent or guardian given in person or
by writing attested by two witnesses, under penalty of a year's
imprisonment and the payment of a fine of five hundred pounds
current money. The clause of the preceding act making the issue
of irregular marriages illegitimate is not repeated in this act
or subsequently--an admission, seemingly, that the provision was
originally null and void. But a female between the ages of twelve
and sixteen contracting such a marriage forfeits during coverture
her inheritance to the next of kin. After the death of her husband
the inheritance reverts to her or those who should have claimed "in
case this act had never been made."[709] This clause was retained in
subsequent legislation.[710] By the act of 1705 still more careful
provision is made for license and certificate; and if any minister,
contrary to the spirit of the law, shall "go out of this her
majesty's colony and dominion" and there join in matrimony "persons
belonging to this country," without license or publication, he is
to suffer the same penalty as if the offense had been done in the
province.[711]
[Footnote 706: _Ibid._, 433. By the act of 1646 the penalty for
celebration without license or banns was 1,000 pounds of tobacco:
_ibid._, 332.]
[Footnote 707: _Ibid._, II, 49-51. By the law of 1788 the issue
of even "incestuous" marriages are made legitimate: _ibid._, XII,
689.]
[Footnote 708: See chap. xiv, i, _b_), below.]
[Footnote 709: HENING, _Statutes_, III, 149-51.]
[Footnote 710: See the act of 1705, _ibid._, 443, 444; and that
of 1748, _ibid._, VI, 83.]
[Footnote 711: _Ibid._, III, 441, 442.]
No relaxation in the illiberal rule requiring solemnization
by a clergyman of the establishment was made until after the
Revolution. First in 1780 the court of each county was authorized
to license not more than four ministers of any religious society to
solemnize marriages. In 1784 ministers of all denominations, except
itinerants, were put on the same level in this regard. Already
the preceding year laymen "in the western waters" had grudgingly
been empowered to act, provided they make use of the ritual of the
English church; but it was not until 1830 that it became possible,
when the court saw fit, to appoint laymen for this purpose in all
counties of the commonwealth; and this policy has survived to the
present hour.[712]
[Footnote 712: See chap, xvi, where this legislation is treated
in detail.]
But if the Anglican clergy during the entire colonial period were
given a monopoly of matrimonial business, it by no means follows
that the dissenters, whose numbers were constantly gaining, ever
tamely submitted. On the contrary, they often took the law into
their own hands and had their marriages celebrated before their
own ministers, or resorted to the local magistrates. This fact is
made clear by the act of 1780 and subsequent statutes, by which
marriages irregularly contracted are declared valid. Indeed, as
early as 1677 we have evidence that dissenters refused to observe an
unjust and probably invalid law. A memorial of the bishop of London
in that year laments that in Virginia there is a great "defect in
the execution of those two wholesome laws ... of the Assembly, the
one prohibiting all marriages to be solemnized without a lawful
minister imposing the punishment due for fornication on the parties
& making their children illegitimate & so not capable of inheriting,
the other prohibiting any persone the ministeriall Function without
proveing himself to have first received Orders from some Bishop in
England."[713]
[Footnote 713: O'CALLAGHAN, _Doc. Rel. to Col. Hist. of N. Y._,
III, 253.]
As already stated, the matrimonial laws of Virginia were from an
early day locally administered, and mainly by the civil magistrate.
The minister of every parish was required to keep a "booke wherein
shall be written the day and yeare of every christeninge, wedding,
and buriall;"[714] and annually on the first day of June it was the
duty of the church wardens and ministers to make a return to the
quarter court of all marriages solemnized during the year.[715] By
the act of 1642 the report is to be made to the "commander of every
monethly court;"[716] and in 1661-62 the duty of registration is
laid upon the reader equally with the minister.[717] At length, in
1780, the officiating minister is required to transmit a certificate
of every marriage solemnized by him to the clerk of the county court
for record.[718] It was the minister's duty to publish the banns
thrice, as required by law. But in consequence of the scarcity
of clergymen of the established church, in some places it became
practically impossible to comply with the statutes. So, in 1705, the
clerk or reader in any parish having no minister was empowered to
publish banns and, "if no objection be made," to grant a certificate
thereof to the officiating minister.[719]
[Footnote 714: HENING, _Statutes_, I, 158, 182, 183 (1632).]
[Footnote 715: _Ibid._, 155.]
[Footnote 716: _Ibid._, 242. _Cf._ the act of the Commonwealth,
1657-58, _ibid._, 433.]
[Footnote 717: _Ibid._, II, 54.]
[Footnote 718: _Ibid._, X, 362.]
[Footnote 719: _Ibid._, III, 442. _Cf._ the act of 1748: _ibid._,
VI, 82.]
In Virginia, as we have seen, the governor's license instead of
banns takes the place of the license of the English bishop. Licenses
are not to be issued "without certificate under the hands of the
parents, masters or guardians."[720] On account of the rapid
growth of population, in which was an ever-increasing proportion
of dissenters, and on account of the scarcity of ministers of the
established church, the demand for licenses became so great that, in
1661, the clerks of the county courts were empowered to issue them.
"Whereas," runs the statute, "many times lycences are granted and
the persons are marryed out of the parishes, which lycences have
been usually granted by the governor, whose knowledge of persons
cannot possibly extend over the whole country," therefore persons
desiring to be married by license are required to give bond to the
clerk that there is no lawful impediment. The clerk is then to write
the license and certify to the first justice in the commission for
the county, or else to the person appointed for this business by
the governor, who shall sign it.[721] Later the personal or written
consent of the parent or guardian is required before the clerk may
issue certificate.[722] But by the act of 1705 a bond is required
in all cases, and parental consent only in the case of minors.
The license is then issued by the clerk for the signature of the
magistrate or the governor's deputy.[723]
[Footnote 720: Act of 1657-58: _ibid._, I, 433.]
[Footnote 721: HENING, _op. cit._, II, 54, 55; _cf._ 28
(1660-61). Only the clerk of the county in which the woman, her
parents, or guardians dwell may act: _ibid._, 281.]
[Footnote 722: _Ibid._, III, 150 (1696).]
[Footnote 723: _Ibid._, 442, 443.]
The granting of licenses was an important source of income for the
governor, he receiving two hundred pounds of tobacco or twenty
shillings for each license issued. Such, for example, was the law in
the days of Beverley.[724] These fees were collected by the sheriff
and turned over to the governor or secretary of the colony.[725] At
the beginning of the Revolution, in order to provide for the expense
of the militia, a tax of forty shillings was laid by the assembly
upon each marriage license;[726] and in the next year the law
granting license fees to the governor was repealed.[727] The legal
fee allowed the minister was twenty shillings or two hundred pounds
of tobacco for each marriage when celebrated by license, and five
shillings or fifty pounds of tobacco when celebrated by banns.[728]
In 1792, however, the uniform fee for a marriage was fixed at one
dollar.[729]
[Footnote 724: BEVERLEY, _Hist. of Va._, 211, 212; also 1 _Mass.
Hist. Coll._, V, 136; and HENING, _op. cit._, III, 445; VI, 84,
85; II, 55.]
[Footnote 725: _Ibid._, II, 28.]
[Footnote 726: _Ibid._, IX, 66 (1775). The tax was raised to ten
pounds in 1780: _ibid._, X, 245.]
[Footnote 727: _Ibid._, 225.]
[Footnote 728: SPOTSWOOD, _Letters_, I, 128 n. 90; BEVERLEY,
_Hist. of Va._, 211; HENING, _op. cit._, III, 45; VI, 84, 85,
etc. Earlier the marriage fee was 2 shillings: _ibid._, I, 160,
184.]
[Footnote 729: _Acts of the Gen. Assembly_, 203.]
Marriages within the "levitical degrees prohibited by the laws of
England" were forbidden;[730] and curious and stringent regulations
concerning the secret marriage of indented servants were made.
Thus in 1642-43, since "many great abuses & much detriment hath
been found to arise both against the law of God and likewise to
the service of manye masters of families in the collony" by secret
marriage of servants, it is provided that a man servant contracting
a secret marriage with a maid servant shall serve an additional
year after the completion of the term of indenture; while a maid
servant so offending is to double the time of her service. A
freeman for secretly marrying an indented maid servant must double
the value of her service and pay a fine of five hundred pounds of
tobacco to the parish where the offense is committed.[731] The
unjust discrimination against female servants was done away with
in 1657-58.[732] A still more rigorous law was passed in 1661-62.
The minister is prohibited under a penalty of ten thousand pounds
of tobacco from either publishing the banns or celebrating the
contract of marriage without a certificate of consent from the
masters of both the persons, who are each to suffer the penalty of
a year's extra service, as before; while the freeman clandestinely
marrying a servant is to pay to the master fifteen hundred pounds
of tobacco or a year's service.[733] But in 1748 for the offending
parties the year's extra service is commuted at "five pounds current
money."[734] It may be noted that in this Virginia legislation there
is no provision like that of Plymouth for compelling the consent of
stubborn masters.
[Footnote 730: HENING, _op. cit._, IV, 245 (1730). Marriage with
a deceased wife's sister is forbidden: _ibid._, XII, 689 (1788).]
[Footnote 731: _Ibid._, I, 252, 253.]
[Footnote 732: _Ibid._, 438. By this act either the man or the
woman suffers a penalty of one year's extra service.]
[Footnote 733: _Ibid._, II, 114. The penalty for a freeman was
made 1,000 pounds of tobacco in 1705: _ibid._, III, 444.]
[Footnote 734: _Ibid._, VI, 83, 84.]
The matrimonial history of Virginia begins with the nuptials of Ann
Burras and John Laydon, celebrated in 1608.[735] A few years later,
in Dale's code, appear the first marital regulations, though to
what extent they were ever carried out must remain uncertain. Every
minister is required to "keepe a faithful and true Record, or Church
Booke, of all Christnings, Marriages, and deaths of such our people,
as shall happen within their Fort, or Fortresse, Townes or Towne at
any time, vpon the burthen of a neglectfull conscience, and vpon
paine of losing their Entertainment."[736]
[Footnote 735: On this marriage see WINSOR, _Nar. and Crit.
Hist._, III, 132; HOLMES, _Annals_, I, 162; CAMPBELL, _Hist. of
Va._, 65.]
[Footnote 736: WILLIAM STRACHEY, _For the Colony in Virginea
Britannea, Lawes Diuine, Morall, and Martiall_, 11: in FORCE,
_Tracts_, III.]
The statutes of the Dominion are silent as to the celebration
of pre-contract or espousals; and the penalties prescribed for
adultery and fornication are in marked contrast with those of early
New England. Persons were presented for these offenses by the
church wardens at the annual visitations;[737] and the culprits
were punished by fines or whipping.[738] Nor do the laws concern
themselves with the regulation of courtship and "sinful dalliance"
in New England style; although a proclamation of Governor Wyatt
shows that his excellency was willing to supply the law's defect
in this regard. He announces that "every minister should give
notice in his church that what man _or woman_ soever should use any
word or speech tending to a contract of marriage to two several
persons at one time," such "as might entangle or _breed scruples_
in _their consciences_, should for such their offense, either
undergo _corporal correction_, or be punished by fine or otherwise,
according to _the quality of the person so offending_."[739]
[Footnote 737: HENING, _op. cit._, I, 240, 310, etc. The
following curious judgment was rendered by the governor and
council sitting as a court in 1627: "Upon the presentment of the
church-wardens of Stanley Hundred for suspicion of incontinency
betweene Henry Kinge and the wife of John Jackson, they lyinge
together in her husband's absence; it is thought fitt that the
sayd Kinge shall remove his habitation from her, and not to use
or frequent her company until her husband's return."--_Ibid._,
145, note. This may be compared with the following record of the
same court in 1631: "Because Edw. Grymes lay with Alice West he
gives security not to marry any woman till further order from the
Governor and Council."--_Ibid._, 551.]
[Footnote 738: _Ibid._, 433; III, 74, 139, 361; _Acts of the Gen.
Assembly_, 287. The first representative assembly, which met at
Jamestown in the summer of 1619, enacted, "Against excesse in
apparell that every man be cessed in the church for all publique
contributions, if he be unmarried according to his owne apparell,
if he be married according to his owne and his wives, or either
of their apparell."--_Col. Rec. of Va._ (ed. BANCROFT), 20.
The same assembly provided that "All Ministers in the Colony
shall once a year, namely in the moneth of Marche, bring to the
Secretary of Estate a true account of all Christenings, burials
and marriages, upon paine, if they faill, to be censured for
their negligence by the Governor and Counsell of Estate; likewise
where there be no ministers, that the comanders of the place doe
supply the same duty,"--_Ibid._, 26.]
[Footnote 739: Quoted by COOKE, _Virginia_, 149; also FISKE, _Old
Virginia and Her Neighbors_, I, 246, 247.]
Very little material has been collected regarding wedding customs
in Virginia.[740] But this sketch may be concluded by reference
to a curious "marriage agreement" which took place in Eastville,
Northampton county, in 1714, and which throws light on domestic
economy in the Old Dominion. Mr. John Custis and Frances, his wife,
having fallen out, are inspired with hope and faith that they may
renew "perfect love and friendship" by bond and covenant. First,
therefore, it is duly stipulated that "the sd Frances shall return
to the sd John all the money, Plate and other things what soever
that she hath from him or removed out of the house upon oath and
be obliged never to take away by herself or any other, anything of
value from him again or run him in debt without his consent, nor
sell, give away or dispose of anything of value out of the family
without his consent, upon the condition that the plate and damaske
linen" shall not be given away or otherwise disposed of by the said
John during her life, but be delivered to his children "by the said
Frances immediately after her decease." Next it is agreed that
"Frances shall henceforth for bear to call him y^e sd John any vile
names or give him any ill language, Neither shall he give her any,"
but they are "to live lovingly together and to behave themselves
to each other as a good husband & good wife ought to doe. And that
she shall not intermeddle with his affairs but that all business
belonging to the husband's management shall be solely transacted
by him, neither shall he intermeddle in her domestique affairs but
that all business properly belonging to the management of the wife
shall be solely transacted by her." Again, after settling his debts,
John gives bond in the sum of one thousand pounds that he will keep
"true and perfect accounts of all the profitts and disbursements
of his whole Estate," present and future, in Virginia or the rest
of the world, and that he will "produce the same accounts yearly
if it be required upon oath. And that after all debts hereafter
necessarily accrueing; for buying cloaths, tools and all the
necessary [things] for the servants and the plantations, paying
leavys and Quitt-rents & making necessary repairs of his whole
estate and alsoe all other necessary charges acrewing for the use &
benefitt of the estate which is to descend to the child of ye said
Frances are deducted and paid he shall freely & without grudging
allow one full moity ... of his whole estate" to her annually, "for
clothing herself and the children with a reasonable proportion
thereof and the remainder to be all laid out in the education of
the children & for furnishing ... all things ... necessary for
house keeping (that are to be brought from England) and Phisick,"
so long as she remains peacefully with him; and that he shall allow
for her maintenance and that of the family "one bushell of wheat
for every week and a sufficient quantity of Indian Corn and as much
flessh of all kinds as the stocks of Cattle, Sheep and hoggs" will
stand, with "sufficient quantity of Cyder and Brandy if so much be
made on the plantation." But if Frances exceed her allowance, then
it is to cease, and the "bond to be voyd." Out of her allowance
Frances is to have "free liberty to keep a white servant if she
shall think fitt;" also the usual colored servants, among whom are
mentioned "Jenny," "Queen," and "Billy boy," who are to "tend the
garden, goe of errands or with the coach, catch horses, and doe
all other necessary works" both in and about the house. Moreover,
with impulsive generosity, "ye sd John" binds himself, not only to
allow Frances "fifteen pounds of wool and fifteen pounds of fine
dresst flax or fifteen pounds of wool in lieu thereof every year
to spin for any use in the family she shall think fit;" but even
to suffer her "to give away twenty yards of Virginia cloth every
Year to charitable uses _if soe much remain after the servants
are clothed_." Finally, pending the marketing of the tobacco crop
in England, which will take twelve months, Frances is graciously
endowed by John with fifty pounds in money for support of herself
and the family, if there should happen to be so much left when all
the debts are paid.[741]
[Footnote 740: See, however, GOODWIN, _The Colonial Cavalier_, 45
ff.; and on social customs in general FISKE, _op. cit._, II, 174,
269.]
[Footnote 741: For this document see _The Virginia Mag. of Hist.
and Biog._, IV (July, 1896), 64-66.]
II. OPTIONAL CIVIL MARRIAGE AND THE RISE OF OBLIGATORY RELIGIOUS
CELEBRATION IN MARYLAND
The earliest extant record of a marriage in Maryland, we are
told, is that of William Edwin and Mary Whitehead, dated March
26, 1638. They were married by license, with security to the Lord
Proprietor for the payment of "one thousand weight of merchantable
tobacco, to be paid upon demand, in case the said William Edwin
hath precontracted himself to any other woman than Mary Whitehead
(spinster)," or in case there is any other lawful impediment to the
marriage.[742] According to Bozman, many similar marriage-license
bonds have been preserved.[743] The requirement of a "caution,"
in such cases, is enforced in the act of the assembly passed in
1640.[744] No marriage may be solemnized without banns "three days
before published in some Chappell or other place of the County
where publique instnts are used to be notified, or else afore oath
mad & caution entered in the County Court that neither partie
is apprentice or ward or precontracted or within the forbidden
degrees of consanguinity or under goverm^t of parents or tutors and
certificate of such oath & caution taken from the Judge or Register
of the Court."[745]
[Footnote 742: STREETER, _Papers Rel. to the Early History of
Md._, 278, 279. This license may be compared with the bonds
required by Governor Andros in New England or by the New York
governors: see chaps, xii and xiv.]
[Footnote 743: In the "book in the land office, entitled, _Liber_
No. 1": BOZMAN, _Hist. of Maryland_, II, 604, who gives the
following example: "November 2d, 1638. This day came William
Lewis, planter, and made oath, that he is not precontracted
to any other woman than Ursula Gifford, and that there is no
impediment of consanguinity, affinity, or any other lawful
impediment to his knowledge, why he should not be married to the
said Ursula Gifford; and further he acknowledgeth himself to owe
unto the lord proprietor 1000 lb. tobacco in case there be any
precontract or other lawful impediment whatsoever as aforesaid,
either on the part of the said William Lewis or the said Ursula
Gifford."]
[Footnote 744: Among the thirty-six bills of the assembly of
February, 1639/40, which according to Bozman were engrossed for
a third reading, but not finally enacted into laws, was one
giving the so-called "county court" jurisdiction in "all causes
matrimonial, for as much as concerns the trial of covenants
and contracts, and the punishment of faults committed against
the same; and all offences of incest; attempting of another's
chastity; defamation; temerarious administration; detention of
legacies; clandestine marriage without banns thrice published or
bond entered in the court."--BOZMAN, _op. cit._, II, 106, 128,
129. Since at this time there was but one organized county, St.
Mary's, and this "county court" is made a tribunal of appeal
in all civil common-law cases, the body is really the supreme
provincial court, and it is given about the same jurisdiction
thereafter exercised by the latter.]
[Footnote 745: _Archives of Md.: Proceedings and Acts of the
General Assembly_, 1637-64, 97.]
By the act of 1658, passed during the Fendall government, the
civil ceremony is made legal. Persons desiring to be married have
liberty to apply either to a magistrate or to a minister; but in
all cases, under severe penalty, a certificate of the publication
of banns at the county court, or in some church, chapel, or
meeting, is required.[746] Banns or a license from the governor
or lieutenant-general is prescribed by the act of 1662; and, as
before, the ceremony may be performed by either a minister or a
magistrate, but in presence of two witnesses. Otherwise the marriage
is void.[747] Thus far no form of words at the nuptials had been
prescribed. Therefore in 1666, by a statute which was to remain
in force three years, a modification of the English ritual was
adopted.[748]
[Footnote 746: _Ibid._, 374. The fine for each of the parties
violating the statute is 1,000 pounds of tobacco; for the
magistrate or minister, 5,000 pounds, one half to the Lord
Proprietor, the other half to the informer. In 1650 it is
provided that adultery shall receive punishment as the court may
see fit, but "not extending to life or member": _ibid._, 286.
The penalty is the same in 1654: _ibid._, 344. In the last-named
year "the names of all that shall be borne, married or buried ...
shall be Exhibited to the Clarke of Every Court who shall Inst
Register thereof who shall be allowed five pounds of Tobacco as a
ffee due to him for every such Regist^r made and kept."--_Ibid._,
345.]
[Footnote 747: _Ibid._, 442, 443. This act is approved in 1664:
_ibid._, 537.]
[Footnote 748: "The man taking the woman by the R^t hand shall
say I A B doe take thee C D to my wedded wife To have and to
hould from this day forward for better for worse for Rich or for
Poore in sickness & in health till death us do part and thereto
I plight thee my troth which being finished lett her hand goe."
Similar words are to be used by the woman: _ibid._, 1664-76, 148.]
The general provisions of the law of 1662 are repeated in the act
of 1676, except that the intention to allow complete liberty with
respect to the form of celebration is more accented. Instead of
a "minister or magistrate," as in the former act, any "priest,
minister, pastor, or magistrate" may now conduct the celebration;
and, as before, a marriage not so solemnized is declared null and
void; though it is highly probable that such a requirement was
invalid as being inconsistent with the English common law.[749]
[Footnote 749: _Ibid._, 1666-76, 522, 523.]
Up to this point, under the Catholic proprietors of the palatinate,
absolute toleration had prevailed. Optional civil or ecclesiastical
rites were sanctioned. But now arose a struggle for supremacy
between the toleration party composed of Catholics and Quakers, who
began to take strong root in the province, and a bigoted Protestant
faction. "As happened twenty years before, a minority in the colony,
in sympathy with the dominant party in England, wished to control
in matters of religion, and, backed by the home government, renew a
policy of intolerance in their own interests. Now, of course, this
minority was composed of Protestants of the Established Church,
instead of Puritans, as in the days of the Commonwealth."[750] The
Episcopal minority triumphed with the establishment of the royal
government in 1692, the Church of England was set up, and Catholics
and dissenters were taxed for its support. A reactionary policy was
begun with respect to the marriage celebration, and we have in this
instance the only clear example of such retrogression that can be
found in American history.[751] Only in Maryland was civil marriage
entirely abrogated after it was once introduced.[752]
[Footnote 750: LODGE, _Short History_, 105. Elsewhere this writer
says the Episcopal church in Maryland was as "contemptible
an ecclesiastical organization as history can show." "It is
not easy to conceive the utter degradation of the mass of the
Maryland clergy. Secure in their houses and glebes, with a
tax settled by law, and collected by the sheriffs for their
benefit, they set decency and public opinion at defiance. They
hunted, raced horses, drank, gambled, and were the parasites and
boon companions of the wealthy planters. A common jest was the
question:
'Who is a monster of the first renown?
'A lettered sot, a drunkard in a gown.'
"They extorted marriage fees from the poor by breaking off in the
middle of the service, and refusing to continue until they were
paid."--_Ibid._, 123, 120-24; _cf._ BROWNE, _Maryland_, 184 ff.]
[Footnote 751: See, however, the case of North Carolina below,
where the original toleration of the early years was later
somewhat curtailed; and that of West Virginia.]
[Footnote 752: Compare COOK, "Mar. Cel. in the Colonies,"
_Atlantic_, LXI, 356, 357.]
The change did not take place all at once. A beginning was made by
the law of 1692 which in part deprived members of the established
church of the privilege of the civil celebration, but as yet did
not interfere with the liberty of others. As under the preceding
acts, either a minister or a magistrate may perform the ceremony;
but now it is provided that he "shall joyn them in manner and forme
as is sett down & expressed in the Liturgy of the Church of England
w^{ch} being finished the Minister, Pastor, or Magistrate shall say
I being hereunto by Law Authorized do pronounce you lawfull man and
wife."[753]
[Footnote 753: _Archives of Md.: Procds. and Acts of the Gen.
Assem._, 1684-92, 450, 451.]
A more rigorous statute, affecting members of the establishment,
appears in 1702. To "prevent all illegal and unlawful Marriages,
not allowable by the Church of England," it is enacted that "no
Minister, Priest or Magistrate shall presume to join together
in Marriage, any persons whatsoever, contrary to the Table of
Marriages, by this Act appointed to be set up in every Parish-Church
within this Province," under penalty of five thousand pounds of
tobacco for violation, and with a like punishment for each of the
parties to such a marriage. To "prevent any Lay-Persons" from acting
"where any Minister or Priest can be had, and to ascertain what
shall be paid for Marriages," it is provided that "in every Parish
where any Minister or Incumbent shall reside and have charge of
souls therein, no Justice or Magistrate, being a Lay-Man, shall join
any Persons in Marriage, under penalty of Five Thousand Pounds of
Tobacco ... to our Sovereign Lord the King." The marriage fee is
fixed at five shillings sterling, provided the persons to be married
come to the parish church or chapel at time of divine service.[754]
[Footnote 754: BACON, _Laws of Maryland_, 1702, chap. i, §§ iv,
v.]
In 1717 was passed a more elaborate act, which remained in force
throughout the colonial period, but which did not extend to "persons
of different persuasions from the Church of England," who are still
to enjoy their own "manner of proceedings" unaltered. "Persons
who desire Marriage" are to "apply themselves to a Minister ...
and shall cause due Publication to be made, according to the
Rubrick of the Church of England, of their Intent to marry, at
some Church or Chapel of Ease belonging to the Parish" wherein the
woman resides. In "case there be no Minister, Curate or Reader in
such Parish, an Advertisement or public Notification ... shall be
set up at the Court-house Door of the County, where such Marriage
shall be intended, there to remain for the Space of Three Weeks
at the least." The clerk of the county court is required to make
a certificate of publication, on presenting which any "qualified"
minister is empowered to solemnize the marriage "according to
the Liturgy of the Church of England." For proceeding without
certificate of publication or the governor's license, the minister
and each of the parties shall severally forfeit five thousand pounds
of tobacco, as under the act of 1702; and for evasion of the law by
getting married in any place outside the province, except where the
woman is a resident, the man is to suffer the same penalty.[755] But
it is important to note that neither the act of 1702 nor that of
1717 invalidates an irregular or clandestine marriage.
[Footnote 755: BACON, _op. cit._, 1717, chap. xv, §§ i-v. The fee
for marriage after license is "10 shillings and no more;" after
publication of banns it is 100 pounds of tobacco or 6 shillings
and 8 pence current money.]
Another statute of 1717 prescribes severe penalties for
miscegenation. Any free negro or mulatto intermarrying with a white
person shall become a slave for life, unless the free mulatto in
question be "born of a white woman," when he is merely condemned
to service for seven years. On the other hand, servitude for this
same period is the punishment prescribed in case a white man or
woman intermarry with a negro or mulatto.[756] Two years before a
law provides that for joining any negro whatsoever or a mulatto
slave to any white person the minister, pastor, or magistrate shall
forfeit five thousand pounds of tobacco, one half to the use of free
schools, and the other half to the informer.[757]
[Footnote 756: _Ibid._, chap. xiii, § v.]
[Footnote 757: _Ibid._, 1715, chap. xliv, § xxv.]
It is significant that throughout the whole colonial period all
persons in Maryland, except members of the establishment, should
have had unrestricted liberty to contract civil marriage, only
to have that liberty taken away after the Revolution began. By
the reactionary law of 1777, "the rites of marriage between any
white persons, subjects or inhabitants of this State, shall not be
celebrated by any person within this State, unless by ministers of
the Church of England, ministers dissenting from that Church, or
Romish priests, appointed or ordained according to the rites ... of
their respective churches, or in such manner as hath been heretofore
used and practiced in this State by the society of people called
Quakers."[758] This monument of religious conservatism has survived
to our own time.
[Footnote 758: KILTY, _Laws_, 1777, chap. 12, sec. 5; also _Laws
of Md._, 1763-87 (Annapolis, 1787), chap. xii, sec. v; _cf._
COOK, "Mar. Cel. in the Colonies," _Atlantic_, LXI, 357.]
No attempt is here made to describe wedding customs in the
colonial era;[759] but the _Archives of Maryland_ contain a unique
document, entitled "Articles of Courtship," which may serve as
companion-piece and counterpart to the "Marriage Agreement" with
which the domestic economy of Virginia, half a century later, has
already been illustrated. In this instance Robert Harwood essays
by formal indenture to compound a lawsuit and at the same time
reclaim the reluctant affections of Elizabeth Gary, despite the fact
that ungallantly he had sought to requite her fickleness through
"slanders and unhandsome attempts." From the "Articles of agreement
... made the 24^{th} of September 1657 between Peter Sharpe of
Putuxent County in th^e Province of Maryland Chirurgeon of the one
p^{te,} and Robert Harwood of the Same County planter of the other
parte," it appears that "there hath been a Suit Commenced by the
Said Peter Sharpe before the Governour and Councell ... a gainst the
abovenamed Robert Harwood on the behalf of Elizabeth Gary Daughter
of Iudith now the wife of the Said Peter Sharpe, for reparation for
Slanders, and undhandsome attempts charged to be acted and reported
by the Said Robert Harwood to the great Detriment of the Said
Elizabeth, and of the Said Peter Sharpe his wife and family;" and,
on the other side, that Robert, "for his own Vindication, doth much
insist upon a former promise of Marriage Grounded upon a Mutuall
declared affection" between him and Elizabeth, "obtained after a
long familiaritie and Sollicitation;" with which engagement the said
Peter and Judith his wife "are much dissatisfied," but which they
are nevertheless willing to see followed by wedlock, if Elizabeth
really have the proper "affection and resolution of marriage to and
with the Said Robert."
[Footnote 759: The Quakers were strong in Maryland and practiced
the same rites as their brothers elsewhere. The Labadists, who
had a colony in the province, thoroughly disliked the Friends,
though in some respects the doctrines of the two bodies were
strikingly alike. The Labadists were even more narrow than the
Pennsylvania Friends regarding intermarriage with gentiles. A
convert was expected to leave his unregenerate spouse behind
when he joined the society; see JAMES, "The Labadist Colony in
Maryland," _J. H. U. S._, XVII, 12 ff., 17 ff.]
Therefore it is duly stipulated that the insistent suitor shall have
a fair chance to ensnare the coy damsel on neutral ground. "Imprimis
the said Peter Sharpe doth for himself and his heirs ... agree that
the Said Elizabeth Gary shall within fifteen dayes ... be conveyed
to the house of m^r Thomas Davis at the Cliftes and there she is to
remaine for the Space of six weekes," the said Robert "during all
the Said Time" being given "full free and perfect Liberty (bringing
one or more of the Neighbours with him) to have all freedom of
discourse" with her, and "to use all faire and Lawfull Endeavours"
to win her consent to marry him. That Robert's "nerve" and zeal were
confidently relied upon is revealed by the proviso that "one or more
of the Neighbours" are "alwayes to be present" with the lovers at
the above specified courting, the "Said Rob^t Harwood paying for the
Said Elizabeth Gary her Entertainment during her Stay at the Said
Davis his house."
Next it is covenanted by Peter, "if it should by Gods permission,
So happen" that Elizabeth shall "within the Said prefixed time give
her consent," that he will not directly or indirectly, "neither
by himself nor by any other person or persons," try to hinder
the marriage, which "shall be permitted to take effect without
obstruction." On his part Robert doth agree that, if in the time
set he fail to gain Elizabeth's consent to "intermarry with him,"
he "will from thence forth totally and absolutely discharge the
Said Elizabeth" from all former promises; and will "never after by
himself, or any other person or persons, either by words Letters
or any other way directly or indirectly Endeavour to gain" her
affections, "or to procure any familiaritie of discourse with
her or willingly to Come into her Company." But if "Robert and
Elizabeth shall entermarry," the docile bridegroom "shall first
enter into Good Caution and Securitie not to upbraid or deride or
any other way Exercise, or use any bitherness" toward the bride,
"for or in relation to any former passages between them;" and in
case of "breach of this his Engagement he shall from thenceforth
be absolutely disabled and made uncapable of Entermedling with
or disposing of any part of the Estate now belonging to the Said
Elizabeth, or any part of the produce thereof."
Finally it is stipulated that "in the Cause forme^rly depending and
now to be withdrawen" Robert is to "beare his own Charge," as well
as those "on th^e plaintiffes behalf," if the marriage take place,
otherwise Peter is to pay his own costs. Thereupon the instrument
is "signed, sealed and delivered in the presence of Thomas Turner
Clerk," under date of September 26, 1657.[760]
[Footnote 760: _Archives of Md.: Judicial and Testamentary
Business of the Provincial Court_, 1649/50-57, 531-33.]
III. THE STRUGGLE FOR CIVIL MARRIAGE AND FREE RELIGIOUS CELEBRATION
IN NORTH CAROLINA
From the outset the colony of North Carolina had a population of
diverse nationalities and various religious creeds. The "Fundamental
Constitutions" of 1669, granted by the Earl of Clarendon and his
colleagues, provided, hesitatingly, for the establishment of the
English church;[761] but it was not until after the beginning of
the eighteenth century that an attempt was made to enforce the
Episcopal system by statute. In the meantime, the regular clergy
were few, and dissenters came in large numbers; for lest "Jews,
heathens, and other dissenters from the purity of the Christian
religion may be scared and kept at a distance," the Constitutions
had inconsistently guaranteed a qualified religious freedom.[762]
Among the sects represented were Protestants from Germany, Huguenots
from France, and Independents from New England. Later the Quakers
and Presbyterians became relatively strong; and they stoutly
resented the bigoted tyranny of the Episcopal minority, which was
sustained by the government by whom the matrimonial legislation
was shaped. The intolerance was the harder to bear because of the
low character of the English clergy, some of whom in vice and
dissipation being worthy rivals of the brawling and cock-fighting
parsons of Maryland and Virginia. To this class belonged Rev. Daniel
Brett, the first Episcopal clergyman who came to the colony; and
Rev. John Boyd, notorious for open drunkenness.[763]
[Footnote 761: "Fundamental Constitutions," c. 96: POORE,
_Charters_, II, 1406. The charter of 1663 allows the proprietors
to use their discretion in dispensing from the liturgy
and ceremonies of the English church: _ibid._, 1389. The
supplementary charter of 1665 declares that no one shall be "in
any way molested, punished, disquieted or called in question,
for any differences in opinion, or practice in matter of
religious concernments, who do not actually disturb the civil
peace." All are to enjoy "judgment and conscience in matter of
religion."--_Ibid._, 1397.]
[Footnote 762: After thus expressing the motive for toleration,
the Constitutions curiously provide that any seven or more
persons agreeing in any religion may form themselves into a
"church or profession;" and no person over seventeen years of age
"shall have any benefit or protection of the law, or be capable
of any place of profit or honor, who is not a member" of such a
church or profession, "having his name recorded in some one, and
but one religious record at once."--_Ibid._, 1407.]
[Footnote 763: _N. C. Col. Records_, IV, 264; HAWKS, _Hist. of
N. C._, II, 341. For Virginia see LODGE, _Short History_, 60 ff.
_Cf._ HOWARD, _Local Const. History_, I, 133, 134.]
During nearly half a century following the charter[764] there
was in practice full toleration as to the form of the marriage
celebration. The very first statute of the "Assembly of Albemarle,"
the first legislative body after the "Fundamental Constitutions"
went into effect, provides in characteristic American style for
the solemnization of marriage. "Forasmuch," runs this act, "as
there may be divers people that are minded to be joyned together
in the holy state of Wedlock and for that there is noe minister
as yet in this County by whom the said Partyes may be joyned in
Wedlock according to the rites and customs of our native Country the
Kingdome of England;" therefore, that "none may be hindred from this
soe necessary a worke for the preservation of Mankind and settlement
of this County it is enacted And be it enacted by the Pallatine and
Lords Proprietors of Carolina by and with the advice and consent of
the Present Grand Assembly ... that any two persons to be joyned
together in the holy state of matrimony takeing three or fower of
their Neighbors along with them and repairing to the Governor or
any one of the Councell before him declaring that they doe joyne
together in the holy state of Wedlock And doe accept one the other
for man and wife; and the said Governor or Councellor before whom
such act is performed giveing certificate thereof and the said
certificate being registered in the Secretary's Office or by the
Register of the Precinct or in such other Office as shall hereafter
for that use be provided. It shall be deemed a Lawfull Marriage and
Partyes violating this Marriage shall be punishable as if they had
binn marryed by a minister according to the rites and customs of
England."[765]
[Footnote 764: Paragraphs 45 and 84 of the Fundamental
Constitutions (1669) provide for matrimonial jurisdiction and for
registration. Paragraph 87 declares that "no marriage shall be
lawful, whatever contract and ceremony they have used, till both
parties mutually own it before the register of the place where
they were married, and he register it, with the names of the
father and mother of each party."--POORE, _Charters_, II, 1402,
1406. Compare HEWITT, _An Hist. Account of the Rise and Progress
of South Carolina and Georgia_ (London, 1779), 321-47.]
[Footnote 765: _N. C. Col. Rec._, I, 184; also in HAWKS, _Hist.
of N. C._, II, 152, 153; and CARROLL, _Hist. Coll. of S. C._, II.]
This timely act was ratified by the Proprietors, January 20,
1669/70; and there can be no doubt of its validity. It is a
straightforward and sensible measure, such as the pioneer, forced
to resort to self-help, has so often shown himself capable
of throughout the history of the Anglo-Saxon race. Its clear
expression, good English, and respectable spelling speak well for
the training and intelligence of the first settlers of Carolina;
although the act has been sneered at and ridiculed by some people
who ought to know better.[766]
[Footnote 766: Thus DOYLE, _Eng. Colonies_, I, 453, says the
acts of the assembly of 1669/70, of which the marriage act is
one, tended to make North Carolina "an Alsatia for ready and
profligate adventurers." So also GEORGE CHALMERS, _Political
Annals of the United Provinces_: in CARROLL, _Hist. Coll. of S.
C._, II, 291, concludes, "From this remarkable law we may judge
of their state of religion and morals." On the other hand, HAWKS,
_Hist. of N. C._, II, 152, 153, says of this statute: "It has
given rise to some abortive efforts at wit, which, if genuine,
would, we think, be sadly misplaced; and has, besides, sorely
troubled the over-sensitive and camel-swallowers who thank God
they are 'not as other men are;'" justly adding: "It is difficult
to conjecture any other course, which under the circumstances,
they could reasonably have adopted. The very fact that any plan
was devised to afford a legal and decent mode of entering into
the marriage contract, certainly implies that the moral sense of
the community revolted at general concubinage." _Cf._ also WEEKS,
_Church and State in N. C._: in _J. H. U. S._, XI, 244.]
From the beginning the Quakers seem to have been allowed to
solemnize marriage in their own way; and this they contrived to do
even after the English forms were prescribed by statute. According
to Hawks, the "Friends were entitled, by express grant from the
proprietors, thus to adhere to their peculiar usage; for they had
declared to them as an inducement to emigrate, 'there is full and
free liberty of conscience granted to all, so that no man is to be
molested or called in question for matters of religious concern;
but every one to be obedient to the civil government, worshipping
God after his own way.'"[767] The records of the monthly meeting in
North Carolina reveal the Friends using the same simple rites as
elsewhere in the colonies. The betrothed man and woman proclaimed
their own banns, "passing the meeting" twice as in Pennsylvania.
Thus at a monthly meeting of Friends "in Pasquotank y^e 11^{th} of
y^e first month 1707/8," held "as their manner is, to Inspect into
y^e affairs of y^e Church," Zachariah Nixon and Elizabeth Symons
appear the "second time & declare their Intentions of taking Each
Other in Marriage and being approved by the said meeting are left to
their liberty to take each other."[768]
[Footnote 767: HAWKS, _op. cit._, II, 154. These are nearly the
words of the charter of 1665: POORE, _op. cit._, II, 1397. _Cf._
also WEEKS, _op. cit._, 244, 245.]
[Footnote 768: "Records of the Friends Monthly Meeting in
Pasquotank Precinct": in _N. C. Col. Rec._, I, 688. There is a
similar entry in 1711: _ibid._, 813. Two years earlier we find
a "precinct" court--about the only part of the machinery of the
"Fundamental Constitutions" which was ever made use of (HOWARD,
_Local Const. Hist._, I, 129)--sentencing for adultery: "Ordered
that Ellinor Mearle be punished by receiving Ten Stripes on her
Back well laid & pay cost also Ex[=o]."--Records of Perquiman's
Precinct Court, in _N. C. Col. Rec._, I, 626 (1705).]
It appears, then, that civil marriage, side by side with religious
marriage according to the rites of each denomination, was lawful
until 1715. By the so-called "Vestries Act" of that year, for the
establishment of the Church of England in the province, magistrates
are authorized to join people in wedlock only in "such parishes
where no minister shall be resident." If any layman, except in such
parishes, presume to act, he shall be fined five pounds, one-half
to the parish for the use of the poor, and one-half to the resident
minister or incumbent. After license or banns no marriage may be
lawfully celebrated by minister, priest, or magistrate contrary to
the table of marriages, which the church wardens and vestry are
to have set up in every church or chapel.[769] But there is no
invalidating clause for neglect. Already in 1704 some provision
had been made by statute for registration.[770] Now it is enacted
that the "inhabitants and freemen of each precinct" by majority
vote are to elect three freeholders, from whom the governor or
commander in chief is to choose one as register of deeds; and until
there be a clerk of the parish church, such register is to record
betrothals and marriages. Every "master or mistress of a family who
shall neglect to register the birth or death of any person born
or dying within his or her house or plantation; and every married
man who shall neglect to remit to the said register a certificate
of his marriage and cause the same to be registered, for longer
than one month," must pay a fine of one shilling a month for the
period of delay, provided the whole penalty do not exceed twenty
shillings.[771]
[Footnote 769: _N. C. Col. Rec._, II, 212, 213.]
[Footnote 770: _Ibid._, 877, 878.]
[Footnote 771: IREDELL-MARTIN, _Public Acts of the Assembly_
(Newbern, 1804), I, 18, 19.]
The act of 1715 fixes the minister's marriage fee at five shillings;
and to retain a monopoly of this perquisite at all hazards was
the unswerving purpose of the Episcopal clergy throughout the
colonial period. The governors, too, found the stipend for issuing
marriage licenses a lucrative source of revenue. In 1730 the
royal instructions to Governor Burrington declare, "to the end
Ecclesiastical Jurisdiction of the Bishop of London may take place
in that our Province so far as may be We do think fit that you
give all countenance & encouragement to the exercise of the same
excepting only the collating the Benefices Granting licenses for
Marriages and probate of Wills which we have reserved to you our
Governor and to the Commander in chief of our said Province for the
time being as far as by law we may."[772] The license fee was fixed
at ten shillings.[773]
[Footnote 772: _N. C. Col. Rec._, III, 110, 111.]
[Footnote 773: _Ibid._, 160. According to COOK, "Colonel Byrd,
writing about 1728, says that in North Carolina, 'for want of men
in holy orders, justices of the peace and members of the council
were empowered to celebrate marriage.'"--_Op. cit._, 355, 356.]
A new law was passed in 1741, which, though it does not expressly
forbid dissenting ministers from performing the marriage ceremony,
at any rate, as Weeks insists, makes "dissent burdensome and
humiliating," puts a "premium on conformity," and constitutes
"religious persecution."[774] "To prevent clandestine marriages" it
is enacted "that every Clergyman of the Church of England, or for
want of such, any lawful magistrate, within this Government" may
join persons in the "holy state of matrimony." By implication this
provision widens the area within which a magistrate is empowered to
act, for by the law of 1715 a layman may not perform the ceremony
in any parish where a "minister or priest" resides, thus probably
including dissenters, who in the present case do not count. The
next clause gives still further chances for lay celebration; for,
while a justice of the peace may not join in marriage "any persons
whatsoever in any parish where a minister shall reside and have a
cure," still by implication he may do so in any parish in the colony
by obtaining permission from the minister, and, of course, in all
cases turning over to said minister the legally prescribed fee.[775]
Another provision of this statute may perhaps justify the inference
that dissenting ministers are not absolutely excluded. To prevent
"that abominable mixture and spurious issue" which would follow,
it is enacted, "That if any white man or woman, being free, shall
intermarry with an indian, negro, mustee, or mulatto man or woman,
or any person of mixt blood, to the third generation, bond or free,
he shall, by judgment of the county court, forfeit and pay the sum
of fifty pounds, proclamation money, to the use of the parish;"
and any persons, including dissenting ministers, are forbidden to
solemnize such marriages, under the same penalty.[776] The marriage
of servants indented or by custom is also dealt with. It is provided
"That if any minister or reader shall willingly publish, or cause
or suffer to be published, the banns of matrimony between any
servants, or between a free person and a servant; or if any minister
or justice of the peace shall willingly celebrate the rites of
matrimony between any such, without a certificate from the master
or mistress of such servant, that it is done by their consent; he
shall forfeit and pay five pounds, proclamation money, to the use
of the master or owner." Every servant so married without consent
shall serve the master or mistress "one whole year, after the time
of service by indenture or custom is expired."[777]
[Footnote 774: WEEKS, _Church and State_, 244, 245.]
[Footnote 775: The justice shall not act in any parish where a
minister resides and has cure, "without permission first had
and obtained from such Minister under penalty of five pounds
proclamation money, to the use of the minister."--IREDELL-MARTIN,
_Public Acts_, I, 45; for the fee see _ibid._, 46.]
[Footnote 776: _Ibid._, 46; SWAN'S _Revisal_ (ed. 1752), 127-30;
_cf._ WEEKS, _op. cit._, 244, 245.]
[Footnote 777: IREDELL-MARTIN, _op. cit._, I, 45.]
Regarding the scope and intent of the law of 1741, Weeks remarks
that "in this, as in the former cases, the Assembly did not
undertake to give" the right of celebrating marriages to the
established clergy, "but simply recognized it as resting on
prescription. But they might have granted this right to Dissenters
as they proposed doing in the act of 1770. The Quakers seem to have
been allowed to marry after their own fashion from the first," and
why not grant the same privilege "to Presbyterians and Baptists"?
Instead of taking such a just and tolerant course, "their preachers
were debarred from performing the ceremony even among their own
flocks. They were thus put to grave inconvenience, and the law of
1766 recites that the Presbyterians refused to consider themselves
as bound by its provisions." Surely there was good reason to
take this position, considering the previous law and custom of
the colony. The Episcopalian government party seems to have been
conscious of this fact, as appears from the discussion of the clergy
bill of 1762. "The governor and council," continues Weeks, "tried to
force on the lower house a clause by which it was enacted that 'no
Dissenting minister of any denomination whatever shall presume on
any pretence to Marry any person, under the penalty of forfeiting
£50.' The law does not seem to have been successful, but it is a
clear statement of the tendency of the act of 1741, and shows the
position of a certain element in the province."[778]
[Footnote 778: WEEKS, _op. cit._, 245; _cf._ _N. C. Col. Rec._,
VI, 881, 952, 954.]
The assembly rested from further matrimonial legislation until
the passage of the act of 1766, already mentioned, which gave
some relief to the Presbyterians, but not to any other dissenting
body. Aside from the greed for the marriage fees, the principal
motive leading to its passage was not justice, as will presently
appear, but a desire to reward and strengthen the sympathy of
the Presbyterians for the government in its struggle with the
Regulators. The preamble of the act recites that because "the
presbyterian, or dissenting clergy, conceiving themselves not
included in the restrictions mentioned" in the act of 1741, have
"joined many persons together in holy matrimony, without either
licence or publication; whereby the payment of the just and legal
fees to the governor on such occasions, has been eluded, and the
validity of marriages may be endangered:" therefore all such
marriages now celebrated or to be celebrated before the first day
of January next are declared valid. Henceforth no minister of the
Church of England or justice of the peace may celebrate marriage
without a certificate of three times publication of banns, or
a license from the governor or the commander in chief, "who is
authorized hereby to grant the same, on certificate of the county
court" of the person's "having taken and filed ... the usual bond,"
under the "penalty of fifty pounds, proclamation money; with
condition that there is no lawful cause to obstruct the marriage
for which such license is given." Presbyterian missionaries or
itinerants in the western parishes, as well as all other dissenters
in the province, are in effect excluded by the provision that
after January 1 any Presbyterian minister regularly called to any
congregation in this province may celebrate matrimony "in their
usual and accustomed manner." But in all cases a license from the
governor is requisite; and the marriage fee, it is carefully added,
is always reserved to the clergyman of the Church of England having
cure of any parish, no matter whether a dissenting minister or a
justice performs the ceremony. Furthermore, a marriage celebrated
without a license is declared "illegal and void."[779]
[Footnote 779: IREDELL-MARTIN, _op. cit._, I, 157, 158; DAVIS,
_Revisal_ (ed. 1773), 350.
"It was proposed to limit this law to three years, which was not
done. It provided for no Dissenters _except_ Presbyterians. But
it seems that the original intention was to cover the case of
all Dissenters. The second section probably read 'dissenting _or
of the dissenting Presbyterian clergy_.' The clause in italics
was stricken out and the phrase 'dissenting or Presbyterian
clergy' took its place, thus excluding all Dissenters except
Presbyterians."--WEEKS, _op. cit._, 245 n. 2; _cf._ _N. C. Col.
Rec._, VII, 411, 329, 331.]
Governor Tryon, who approved the act of 1766, was not overfond of
the Presbyterians as such, and all other "sectaries" he looked upon
"as enemies to society and a scandal to common sense."[780] The next
year, writing to the Earl of Shelburne, he says the law of 1766 "has
more objects in view than appears on the sight of it." The Marriage
Act of "1741 to which it has relation entitles every Justice of the
Peace to marry by licence. In abuse of this privilege many Justices
performed the marriage ceremony without licence ... and took the
fee allowed to the Governor, most generally dividing the spoil
between the Justice and the Clerk of the county who gave the bond
and certificate. Another tendency of this Act was to prevent the
frequent abuses of rascally fellows who travelled thro' the province
under the title of ministers of the Presbyterian and other sectaries
and who being beggars in conscience as well as in circumstances
sought all opportunities to perform that sacred office to the great
prejudice of the country. It is also to be observed most of the
justices in the back or western settlements are Presbyterians, who
by the Act of 1741 had the power to marry by licence: Therefore upon
the whole I do not conceive the allowing the Presbyterian ministers
the privilege to marry in their usual and accustomed manner can be
of any real prejudice to the established Church especially as the
marriage fee is reserved to the ministers of the parish; and the
licence to be granted under the hand and seal of the Governor, this
last provision prevents the former abuses in the application of the
fee collected. The Act also provides a summary and effectual method
for the Governor to oblige the county court clerks to account for
the fees due to him: a recovery tho' an equitable one, was never yet
secured but in temporary laws."[781]
[Footnote 780: SAUNDERS, "Prefatory Notes," _N. C. Col. Rec._,
VIII, xlv.]
[Footnote 781: "Letter from Governor Tryon to Earl of Shelburne,
Brunswick, 31st January 1767," _N. C. Col. Rec._, VII, 432, 433.
On this act see also SAUNDERS, "Prefatory Notes," _ibid._, VIII,
xlv.]
The Presbyterians were by no means satisfied with the reward their
loyalty had received. Especially did the "rascally" missionaries of
the western frontiers feel themselves abused. Petitions protesting
in strong terms against the act were presented by the clergy. Those
of Mecklenburg, for instance, regard themselves as "highly injured
and aggrieved" by the statute, "the preamble whereof scandalizes the
Presbyterian clergy."[782] The petitioners of Tryon county say they
are "much aggrieved," the law depriving them of a privilege "which
a million of our fellow-professors in America now enjoy ... neither
was it ever taken from Dissenters in America until it was taken
from us by this act."[783] The "manly protest from the inhabitants
of Orange and Rowan claims that the right of 'dissenting ministers'
to perform the marriage ceremony after their own fashion was a
'priviledge they were debarred of in no other part of his majesty's
Dominions; and as we humbly conceive, a priviledge they stand
entitled to, by the Act of Toleration, and in fine, a priviledge
granted even to the very Catholics in Ireland and the Protestants in
France.'"[784]
[Footnote 782: See the petition for repeal _ibid._, X, 1015;
_cf._ WEEKS, _op. cit._, 246, 247, who has collected these
passages.]
[Footnote 783: _N. C. Col. Rec._, VIII, 80_b_. There was also a
petition from the people of Anson: _ibid._, 78.]
[Footnote 784: _Ibid._, 82; WEEKS, _op. cit._, 246, 247. This
petition was presented to Tryon by "Herman Husband the leader of
the Regulators": WEEKS, _op. cit._, 247, 248, referring to SWAIN,
"War of Regulation," _N. C. University Mag._, IX (1859-60), 339.]
The vigorous resistance aroused by the unjust law of 1766, and
the continued services rendered by the Presbyterian pastors to the
governor in his struggle with the Regulators had the desired result.
In December, 1770, a legislative committee brought in a report
recommending a new law. "Upon perusing the several Acts of Assembly
concerning the solemnization of the rites[785] of matrimony and
considering the great number of Presbyterian Inhabitants settled in
the western Frontier Counties in this Province and the difficulties
and expenses they must necessarily be under," the committee "Can't
but think that the restraints and penalties in the Said Acts are
in some measure hard and oppressive and that they have a just and
reasonable claim to the attention of the Legislative body for
granting to them a religious toleration in that particular, and
that it is well becoming the Catholic and liberal principles of the
Members of the House Representatives of this Colony, to appoint a
Committee to prepare and bring in a Bill for impowering all regular
Presbyterian Ministers in this Province to Solemnize the rites of
Marriage, according to the Westminster confession of Faith, by
publication in their religious Assemblies, where the parties are
best known, and by License, without any Tax or Fees to the Clergy of
the Establishment."[786] Such a bill was accordingly brought in and
passed with the governor's approval, "but with a clause suspending
its operation until the pleasure of the King should be known."[787]
[Footnote 785: It is "rights" in the text, but this appears to be
a "slip," for lower down the proper spelling is used.]
[Footnote 786: _N. C. Col. Rec._, VIII, 322 (Dec. 17, 1770).]
[Footnote 787: SAUNDERS, "Prefatory Notes," _N. C. Col, Rec._,
VIII, xlv; also _ibid._, VIII, 297, 300; IX, 7.]
No relief was offered by this act to the other dissenters; and the
report of Governor Tryon shows that he felt himself under special
obligations to the Presbyterians. According to Saunders, he said
that the act was an "indulgence" to which they were well "entitled
because of the attachment they had shown to the Government;" and
it appears, aside from the "merits of the case," that something
was due from Tryon to the Presbyterians "for the support their
pastors gave him in 1768." Certainly "the letters in which all the
Presbyterian pastors in the Province united to praise Tryon and
denounce the Regulators were as strong in language as they were
opportune in point of time. Indeed, old Parson Micklejohn of the
Established Church was not more pronounced in enforcing the duty of
obedience to 'the powers that be' as being of divine origin than the
Presbytarian pastors were. The Governor in his report put him" and
these ministers "on the same footing in this regard."[788]
[Footnote 788: SAUNDERS, _op. cit._, xlv.]
The act had passed the house and received the governor's signature;
but the battle was not yet won. It is perhaps not surprising that
the ear of George III., in the days immediately following the
Stamp Act, should have inclined more to the desires[789] of the
loyalist clergy of the English church than to the complaints of
"sectaries" in a rebellious province. Accordingly, the marriage act
was disallowed by his Majesty; and the law of 1766 remained in force
until 1778, two years after the constitution of 1776 had brought the
establishment to an end.[790]
[Footnote 789: "It is interesting to note with what satanic
disregard of the rights of man the leaders in the Establishment
can write. Says Reed [minister in Craven County]: 'The bill
was pushed by the dissenting interest, and [because of] the
dangerous situation of the province from such formidable number
of malcontents [Regulators], the governor acted with the greatest
prudence in passing the bill with a suspending clause.... Should
this act receive the royal assent it would be a fatal stroke
to the Church of England, but as the insurrection is entirely
quelled, I flatter myself with hopes that the act will meet with
a repulse.'"--WEEKS, _op. cit._, 247; _N. C. Col. Rec._, IX,
6. Later the Board of Trade wrote that the law was in effect
a "bounty to the tolerated religion at the expense of the
established," and petitioned for its disallowance: _N. C. Col.
Rec._, IX, 7, 245, 251, 284, 366.]
[Footnote 790: SAUNDERS, _op. cit._, xlv, errs in saying that the
law of 1766 was repealed soon after its passage.]
IV. EPISCOPAL RITES BY LAW AND FREE CIVIL OR RELIGIOUS CELEBRATION
BY CUSTOM IN SOUTH CAROLINA AND GEORGIA
The history of marriage in South Carolina runs much the same course
as in the northern province; except that we hear of no struggle by
the privileged establishment to enforce the statutes eventually
enacted in its behalf. For a time, under the same charters, the
two colonies were ruled in the same way by the proprietors; and in
South Carolina for over three decades there was apparently full
toleration with respect to matrimonial rites. That such was the
case near the close of the seventeenth century may be inferred from
the registration act of 1696. It is required that "every man which
hereafter shall be married according to the rubrick of the Church
of England, or by any other contract or ceremony," shall record
his marriage in the register's office within thirty days after
celebration, or else forfeit "one royall" for neglect. But at the
time of registration he must produce "a certificate from under the
hand of the parson, minister, magistrate, or otherwise," attested
by "six persons at least met and congregated at such religious
meateing" where the ceremony took place. For neglecting to file the
certificate the register forfeits his office.[791]
[Footnote 791: COOPER, _Statutes at Large_, II, 120, 121 (act of
March 1695/6).]
The Church of England was established by law in 1704. In the act for
that purpose it is declared that "no justice or magistrate, being a
layman, shall presume to join any persons in marriage, under penalty
of one hundred pounds currant money of this province." Vestries
are to provide a fit person as register of births, christenings,
marriages, and burials, except those of "negroes, Mullatoes, and
Indian slaves;" and a fine is prescribed for wedding contrary to
the table of forbidden degrees.[792] All these provisions are
repeated in the new act of 1706 for the "establishment of religious
worship" in the province.[793] Six years thereafter the full text
of the law of Henry VIII., "for marriages to stand notwithstanding
Pre-Contracts" is adopted; and it appears again and again in the
statute book until recent days.[794]
[Footnote 792: _Ibid._, 242, 243; also in _N. C. Col. Rec._, II,
867-82.]
[Footnote 793: COOPER, _op. cit._, II, 289-91; also in BREVARD,
_Alphabetical Digest of Laws of S. C._, 41-44. In both these acts
elaborate provision is made for registration.]
[Footnote 794: COOPER, _op. cit._, II, 475, 476, where 32 H.
VIII., c. 38, is put in force; and it is retained in _Revised
Statutes_ (Columbia, 1873), 481. In 1712, likewise, a part of the
statute 1 Jac. I., c. 11, regarding bigamy was adopted: COOPER,
II, 508.]
No further important change was made in the law before the
Revolution. The act of 1706, giving a monopoly of the business of
solemnizing matrimony to the established clergy, remained nominally
in force. A fine could be levied for neglect of its provisions.
But in the "Up" or "Back" country it was quietly disregarded; and,
apparently without a contest, custom sanctioned the optional civil
ceremony or optional ecclesiastical rites according to the usage
of each denomination. "In the early stages of our juridical and
civil history," says Brevard, "the laws of the province on this
subject were in conformity to the English; but as the population
... encreased by emigrants from all countries, and of different
religious denominations, this adherence to Episcopal regulations and
forms was gradually relaxed, and at length generally disregarded."
The church act of 1706, he adds, must have gone into "effectual and
general operation." But, except partially, "it seems never to have
extended farther than about sixty miles from Charleston."[795]
[Footnote 795: Editorial note in BREVARD, _Alphabetical Digest of
Laws of S. C._, II, 41, 42, notes.]
What has just been said regarding South Carolina applies equally to
Georgia, whose territory had belonged to South Carolina since the
original grant of 1663. But the charter issued to James Oglethorpe
and his associates in 1732 expressly abrogates the laws of the
parent colony,[796] and gives the power to enact new laws to the
corporation of associates as trustees for the colony. The Episcopal
system was introduced, but it was not rigidly enforced. The charter
to Oglethorpe "guaranteed liberty of conscience to all except
papists,[797] and the spirit exhibited in ecclesiastical legislation
was one of toleration. Hence a considerable Puritan element was
drawn to the Colony."[798] The preamble of the act of 1785 shows
that it had been the custom for justices, ministers, and "preachers
of the gospel" to solemnize marriage. Such marriages are made valid
and the practice legalized for the future.[799]
[Footnote 796: With an exception relating to military power:
POORE, _Charters_, I, 373, 374. Georgia was made a royal province
in 1751; but the policy of toleration was maintained: HOLMES,
_Annals_, II, 45; STORY, _Commentaries_, I, 102. In early days
the province suffered the usual evils from scarcity of women:
_Coll. Georgia Hist. Soc._, II, 105; III, 32, 144.]
[Footnote 797: POORE, _Charters_, I, 375.]
[Footnote 798: COOK, "Mar. Cel. in Col.," _Atlantic_, LXI, 356.]
[Footnote 799: _Digest of the Laws of Georgia_ (Philadelphia,
1801), 314.]
It appears, then, that throughout the southern colonies matrimonial
legislation was tending in the same direction. Everywhere, except
in Maryland, the optional civil ceremony was legally or practically
recognized, though under various restrictions. Marriage was already
a civil contract of mutual partnership; and, notwithstanding an
occasional invalidating clause for neglect of the prescribed forms,
the common-law marriage by mutual consent was probably valid,
though, so far as it appears, the records of the provincial courts
are almost entirely silent on that question.[800] In short, in its
principal elements, throughout the South matrimonial law had reached
or was strongly tending toward the existing American type.
[Footnote 800: Even in Virginia civil marriages were frequent
before the Revolution, though liable to penalty. For Maryland the
view of the text as to the common-law contract was sustained in
the case of Cheseldine _v._ Brewer, 1 Har. and McH., 152 (1739).
This decision was, however, overruled in Denison _v._ Denison
(1871), 35 _Md._, 361, 379, in which Justice Alvey says: "We
think we are safe in saying that there has never been a time in
the history of the state, whether before its independence of
Great Britain or since, when some ceremony or celebration was
not deemed necessary to a valid marriage. In the early days of
the province, it was not absolutely necessary that a minister of
religion should officiate,--a judge or magistrate could perform
the ceremony--but still, in all cases, some formal celebration
was required." Of course, the opinion of a judge long after the
colonial era, not professing to be based on evidence, can have
little weight in settling the present historical problem. Though
the laws of the Maryland assembly, like those of Connecticut and
Rhode Island (STORY, _Commentaries_, I, § 171), were not required
to be submitted to the king for approval, it cannot be assumed
that such laws could deprive a person of any liberty secured by
the common law, but they might bestow greater privileges. _Cf._
BISHOP, _Mar., Div., and Sep._, I, § 416.
A statute of North Carolina, in 1715, declared that the common
law should be in force in that province (IREDELL, _Laws_, 1715,
18, 19; STORY, _op. cit._, I, § 142). Yet in this century it has
been held that the common law of the state recognizes no marriage
not according to the statutes; as to which statement, "the court
observed in a subsequent case, 'we express no opinion.' But such,
all agree, is not the common law of England."--BISHOP, _op.
cit._, I, § 412; citing State _v._ Samuel, 2 Dev. and Bat., 177;
and State _v._ Ta-cha-na-tah, 64 _N. C._, 614.
Several decisions of the courts of Tennessee have regard to the
colonial laws of North Carolina, the parent commonwealth, and
on the whole sustain the view that informal marriages were good
despite the statutes. In the case of Bashaw _v._ the State, 1829
(1 Yerger, 177-97), which gives a history of North Carolina
matrimonial legislation for the period 1715-1829, it was held
that the celebration must be according to the statutes which had
superseded the common law. The same view is taken two years later
in Grisham _v._ the State (2 Yerger, 589, 592). But in Andrews
_v._ Page, 1868 (3 Heiskell, _Tenn. Reports_, 653, 667), the
opposite position is taken, the court holding rightly that the
acts of 1741 and 1778 do not expressly prohibit the common-law
marriage.
The common-law principle of marriage by mutual consent prevailed
in South Carolina (compare 10 McCord, _Statutes_, 357, ed. note;
and the case Vaigneur _v._ Kirk, 2 _S. C. Equity Reports_,
640-46, with H. W. Desaussure's note, 646). Referring to the law
of South Carolina, generally, BREVARD, _Alphabetical Digest_, II,
41, note, says: "How far the informality of a marriage may afford
ground for questioning its validity, on a trial for polygamy, may
perhaps admit of some doubt." Historically, however, the doubt is
exceedingly small that such an informal contract would be valid.
It is doubtful whether there were any courts in the southern
colonies vested with full matrimonial jurisdiction: see BISHOP,
_op. cit._, I, §§ 115-49.]