OPTIONAL CIVIL OR ECCLESIASTICAL MARRIAGE IN THE MIDDLE COLONIES
[BIBLIOGRAPHICAL NOTE XIV.--The _New York Colonial MSS._,
of more service for the history of divorce, afford several
important documents available for the present chapter. The use
of these papers is facilitated by O'Callaghan's _Calendar of
Historical Manuscripts_ (Albany, 1866). Among the treasures also
preserved in the State Library at Albany may be found the MS.
copy of the _Dongan Laws_, including the marriage act of 1684
concerning which there has been much discussion; and some forty
volumes of _MSS. Marriage License Bonds_, of interest to the
genealogist and historian. The use of these is made easier by
the published _Names of Persons for Whom Marriage Licenses Were
Issued by the Secretary of the Province of New York, Previous
to 1784_ (Albany, 1860), to which O'Callaghan has given an
_Introduction_.
The most important source for the province is the _Documents
Relating to the Colonial History of New York_ (Albany, 1856-83),
edited by O'Callaghan and Fernow. Original material may also
be found in the _Records of New Amsterdam_ (New York, 1897);
Munsell's _Annals of Albany_ (Albany, 1850-59); the same
compiler's _Collections on the History of Albany_ (Albany,
1865-71); and Valentine's _Manual of the Corporation of the City
of New York_ (New York, 1843 ff.). For the Dutch period we have
O'Callaghan's _Laws and Ordinances_ (Albany, 1868); for the
proprietary government, "The Duke of Yorke's Book of Laws," in
Linn's _Charter and Laws_ (Harrisburg, 1879); earlier in Vol.
I of the _Collections of the New York Historical Society for
the Year 1809_ (New York, 1811); and recently in Vol. I of the
_Colonial Laws of New York_ (Albany, 1894), while the last-named
collection covers the period of the royal province, and is
enriched by Cumming's _Historical Note_ and his comments on the
various statutes and papers. The celebrated "Lauderdale Peerage
Case," so important for understanding the marriage law of New
York for the period between 1691 and 1772, may be found in the
English _Law Reports_, X (London, 1885); and also abridged in
Cook, _Reports of Cases Decided by the English Courts_, XXXVII
(Albany, 1887). In connection with this case several members of
the American bar submitted written opinions, and three of those
published are in the New York State Library: see Fowler, _Letter
and Opinion_ (New York, May 11, 1885); Seward, _Answers to the
Interrogations of Brodie and Sons_ (New York, June, 1885); and
Webster, _Opinion on the Law of Marriage in the Colony of New
York_ (New York, May 26, 1885). But far more conclusive than
the views of the witnesses and expert advisers called at the
trial is the remarkable paper of Rev. John Rodgers, found in the
cabinet of President Stiles by the historian Holmes, entitled "A
brief view of the state of religious liberty in New York 1773,"
in 2 _Mass. Hist. Coll._, I (Boston, 1838).
For the history of bundling, besides the mention in Valentine's
_Manual_, should be consulted the case of Seger _v._ Slingerland
in Caine's _Reports_, II (New York and Albany, 1860), where the
custom was judicially considered; also Lamb, _History of the
City of New York_ (New York and Chicago, 1877); and especially
Stiles, _Bundling_ (Albany, 1871). Stiles, _History of the
City of Brooklyn_ (Brooklyn, 1867-70), gives an account of the
restrictions put on the remarriage of widows in the old Dutch
wills; and there are some notices of marriage law and customs in
Grant, _Memoirs of an American Lady_ (New York, 1809); Weise,
_History of the City of Albany_ (Albany, 1884); Watson, _Annals
and Occurrences of New York City and State_ (Philadelphia,
1846); Vanderbilt, _Social History of Flatbush_ (New York, 1882;
new ed., 1899); Ostrander, _History of the City of Brooklyn
and King's County_ (Brooklyn, 1894); Gerard, _The Old Stadt
Huys of New Amsterdam_ (New York, 1875); Hazard, _Annals of
Pennsylvania_ (Philadelphia, 1850); and especially Earle's
_Colonial Days in Old New York_ (New York, 1896). In 1786 a
brief account of wedding customs in New York state was given by
Hannah Thompson, "Letters," in _Pa. Mag. of Hist. and Biog._,
XIV (Philadelphia, 1890); and in 1748 the governor's lucrative
monopoly of marriage-license fees is described by the Swedish
botanist Kalm, _Travels in North America_ (Warrington, 1770):
see Hart, _Source-Book of American History_ (New York, 1899),
extract 50. Cook, "The Marriage Celebration in the Colonies,"
_Atlantic_, LXI (Boston, 1888), discusses the subject for the
middle provinces; and for the historical background Brodhead,
_History of the State of New York_ (New York, 1853-71);
O'Callaghan, _History of New Netherland_ (2d ed., New York,
1855); Friedberg, _Eheschliessung_ (Leipzig, 1865); and his
_Geschichte der Civilehe_ (Hamburg, 1877), have been of most
service.
For New Jersey, Leaming and Spicer, _Grants, Concessions,
and Original Constitutions_ (2d ed., Philadelphia, 1881), is
of first-rate importance. This collection is supplemented by
the documents in _New Jersey Archives_ (Newark, 1880-86); and
Smith, _History of the Colony of Nova-Caesaria or New Jersey_
(Burlington, 1765; reprint, 1877); while the law of 1719 may
be found in _Acts of the General Assembly_ (Woodbridge, 1752);
or in Allinson, _Acts of the General Assembly, 1702-1776_
(Burlington, 1776).
The early legislation of Pennsylvania is contained in Linn's
convenient _Charter to William Penn, and Laws of the Province
of Pa., 1682-1700_ (Harrisburg, 1879), which is supplemented
by Nead's valuable _Historical Notes_. Some illustrations of
judicial and administrative proceedings have been gleaned
from the _Colonial Records of Pa._ (Harrisburg, 1838-53); and
the marriage laws enacted from 1700 onward are cited in Carey
and Bioren, _Laws_ (Philadelphia, 1803); the _Laws of the
Commonwealth of Pa._, 1700-1810 (Philadelphia, 1810); and Pepper
and Lewis, _Digest_ (Philadelphia, 1896). For the doctrines of
the Friends one must go to the founder. William Penn's _Select
Works_ (1 vol. fol., London, 1771; 5 vols., 8vo, London, 1782)
are a mine Of information on every phase of Quaker teaching;
and the same is true of William Sewel's _History of the Rise,
Increase, and Progress of the Christian People called Quakers_
(original Dutch ed., Amsterdam, 1717; first English ed.,
London, 1722), a work whose scrupulous accuracy has never been
impeached. On the other hand, for the false charges brought
against the Friends by their orthodox antagonists one should
read Thomas Underhill, _Hell broke loose: or an History of the
Quakers Both Old and New_ (London, 1660), who has raked together
scandals of every description; Nathaniel Smith, _The Quaker's
Spiritual Court_ (London, 1668); and Gerard Croese, _Historia
quakeriana_ (Amsterdam, 1695; English ed., London, 1696),
the book whose errors called forth Sewel's _History_. More
recently Quaker rites and wedding customs have been described
by Watson, _Annals of Philadelphia_ (last ed., Philadelphia,
1881); Hallowell, _Quaker Invasion of Mass._ (Boston, 1883);
Applegarth, "Quakers in Pennsylvania," _J. H. U. S._, X
(Baltimore, 1892); and in a lively sketch, drawn mainly from
records of the Monthly Meeting, by Earle, "Among Friends," in
_New England Magazine_, XIX (Boston, 1898). There is a typical
Quaker marriage certificate of 1692 in Vol. XIII of the _Pa.
Mag. of Hist, and Biog._ (Philadelphia, 1889). A brief summary
of the matrimonial laws of the colony may be found in Gordon,
_History of Pennsylvania_ (Philadelphia, 1829).]
I. NEW YORK
The history of matrimonial institutions in the middle colonies is on
the whole less attractive than in New England. At any rate, it is
less interesting in the sense of being less eventful. The original
materials from which to construct it are less abundant. There is
nothing equal to the _Diary_ of the inimitable Sewall from which
it may be filled out and embellished. It is not quickened by the
struggle to maintain or to introduce diverse forms of celebration
resting upon opposing theories as to the nature of the nuptial
contract. There is little answering to the Puritan thoroughness in
regulating the conduct of domestic life, even among the Quakers.
Hence the legislative and judicial records are relatively meager.
In New York, notably, between 1684 and the Revolution the law-book
is a complete blank. On the other hand, in Pennsylvania, after the
establishment of the proprietary government, the predominance of
Quaker sentiment enables the original usages and the early statutes
regarding wedlock to run their even course for generations without
essential change. Still the study of marriage in the middle section
of the English colonies is not devoid of social interest. There, on
account of mixed population and diverse religious sects, toleration
in the main prevailed. The quaint records of the Dutch and the
homely ceremonial of the Friends may even prove entertaining, while
in this field, as in every other, the thought and experience of New
York and Pennsylvania have done much to form and fix the types of
law and administration now prevailing in the United States.
_a_) _Law and custom in New Netherland._--Long before the first
plantations were established on the Hudson, as already seen,
optional civil marriage had been sanctioned in several of the
Dutch states, and as early as 1656 it was extended to the United
Netherlands. In Holland independents of both old and New England
found encouragement and also a model in the effort to realize
similar ideas born of their common Protestantism.
It is therefore strange at first glance that a thorough-going
civil-marriage law should not have been introduced in New Netherland
from the beginning. The laws of the mother-country, even after 1656,
varied considerably in details among the different provinces. In
their content they generally rested on the basis of the later Roman
statutes.[801] From the desire to check the evils of clandestine
contracts, in many instances rigorous measures had been adopted.
Usually parental consent, often publication of banns, was made
essential to a valid marriage.[802] The laws of Guelderland were
especially severe;[803] and these according to Fernow, "naturally
prevailed" in New Netherland; for a "majority of the early settlers"
came from that province. "In Guelderland," he declares, "a marriage
was void, if the _express_ consent of the father, or if dead of the
mother had not been obtained for the marriage of a son. With regard
to daughters the law was still more rigorous; even a marriage,
entered into by a girl with parental consent, did not emancipate her
from parental authority, if she was still under age at her husband's
death: she had to place herself again under the guardianship of her
father or mother. Neither were parents obliged to give before a
Court of Justice any reasons in case they refused consent. This law
had its foundation in the Codex Justinianus."[804]
[Footnote 801: O'CALLAGHAN, _Introduction to Names of Persons for
Whom Marriage Licenses Were Issued_, p. iii.]
[Footnote 802: FRIEDBERG, _Eheschliessung_, 478 ff., 485 ff.,
gives the details, citing the Dutch authorities.]
[Footnote 803: Compare the summaries of FRIEDBERG, _op. cit._,
487, 488, 491.]
[Footnote 804: FERNOW, _Doc. Rel. to Col. Hist. of N. Y._, XIV,
243, note.]
In all respects except the celebration optional civil or
ecclesiastical marriage was sanctioned in New Netherland. It is
doubtless safe to assume that during the early years of the Dutch
colony banns and parental consent, probably according to the law of
Guelderland, were required; but legally, so far as the evidence at
hand shows, the covenant had to be solemnized by a minister with
religious rites. The first legislation by the local authorities
appears to have been enacted only ten years before the first
establishment of English rule. The occasion was the violation of
the "custom of our Fatherland" in the publication of banns by the
magistrates of Gravesend, as appears from the following letter
addressed to them by Peter Stuyvesant:[805]
"Worthy and dear friends.
"I received in due time your letter of the 13^{th} inst. sent to me
by the Fiscal, which has been communicated to the High Council. We
have been very much astonished that you arrogate to yourself the
publication of marriage-proclamations within your village without
our or the Council's knowledge, in cases where both parties live
beyond the jurisdiction of your village. As to the allegation made
by you, that the person is a freeman of your village, he is the
same in the City of _Amsterdam_ and here in this City and for this
reason must the marriage-proclamation be reported and published
here as well as there according to the customs of our Fatherland.
We do not deny, that matrimony is ruled by divine and by human
laws, but they who enter upon this state must do it according to
these divine and human laws, with the consent or knowledge of their
parents, tutors or guardians and then notify thereof the Commissary,
appointed by higher authority, at the place where they reside
or where they have previously been living during the last year.
Your final request, that we should send you a copy of the order
and power of attorney, which his [evidently Johannis van Beeck's]
father has given us concerning this son, is not complied with, as
we do not think ourselves bound to do it, considering yours being a
subordinate jurisdiction and subject to us; besides the father would
be displeased and it would be unreasonable in us, to communicate
to others, what an honest and prominent man has written to us in a
detailed letter.
"Thus much in answer to your open letter. This further serves as
cover of the enclosed order and resolution made by us and the
Council, which you must promptly obey, not because we wish to
prevent the marriage, but that according to divine and human laws
and ordinances they may be put in practice, proclaimed and affixed,
at the proper place and without infraction of anybody's rights.
"Relying thereupon we commend you with cordial greetings to God's
protection and remain
Your well-affected friend and Governor
P. Stuyvesant."
[Footnote 805: _Ibid._ The letter is dated Jan. 20, 1654.]
The ordinance mentioned in the letter bears date of January 19,
1654/5, and runs as follows:
Since the magistrates at Gravesend "have presumed and undertaken
publickly to post notices of marriage" of persons "domiciled in
and about this city of _New Amsterdam_," far beyond their proper
district; therefore the "Director General and Council order and
notify the aforesaid Magistrates of Gravesend and all others within
this Province, to annul such posting of intentions of Marriage, and
on sight hereof to withdraw the same, and in all cases to proceed
with and confirm no such Marriage, either privately or publickly,
before and until such persons, according to _Netherland_ style, have
entered and received their bans and proclamations of marriage where
they are dwelling and have resided the last years."[806]
[Footnote 806: O'CALLAGHAN, _Laws and Ordinances_, 152, 153. For
this ordinance see also _New York Colonial MSS._, XII, 40; and
compare _ibid._, IV, 456; V, 197; VIII, 647. Consult WEBSTER,
_Opinion on the Law of Marriage prevailing in the Colony of N.
Y._, 1772, 19, 20 (Lauderdale Peerage Case), who discusses these
ordinances.]
This important measure was supplemented by another four years later.
The preamble recites that it had become common for betrothed persons
to put off marrying for a long time after the proclamation of their
banns, "which is directly in contravention of, and contrary to the
excellent order and customs of our Fatherland." Therefore it is
ordered that thenceforward all persons must be married within one
month after publication, unless they can give a good excuse.[807]
Light is thrown on the real motive for the adoption of this act by
its provision that no man and woman are henceforth to live together
until lawfully married. It seems to have been the custom, in too
many instances, for betrothed couples whose banns had been asked
the first time to begin living together as if already man and
wife. They looked upon themselves as at least half married; and we
are thus confronted by a state of affairs strikingly similar to
that which we have found existing in New England in consequence
of the laws governing pre-contract. Doubtless couples through
indifference, the refusal to fulfil the contract on the part of an
unscrupulous lover, or for other reasons, were now and then led
to protract the irregular marital relation beyond the completion
of the term prescribed for the publication of banns. Moreover, as
in New England, the custom of queesting or bundling imported from
the old home may have proved a snare for the unwary feet of the
young men and maidens of New Netherland. Indeed, the practice of
bundling has been assigned by New York writers as the proximate
cause of the singular provision referred to. "It was one of the
ordinances of the time," says Valentine, "that upon an agreement of
marriage, the bans should be published from the pulpit three times,
before the marriage could be solemnized. Impatient of the delay,
however, the youthful couple were often inclined to be satisfied
with their moral obligations towards each other, and to waive the
immediate fulfillment of the legal ceremony; in the meantime ... the
indulgence of cohabitation, then called 'bundling,' was practiced.
It was for a long time winked at by the community, but its violence
against the tenets of propriety was obvious, and at the time [1656]
before spoken of, in which the city authorities resolved to set
themselves to the reformation of abuses, this custom came under
their prohibatory decrees." There were "those who still maintained
its advantageous results, even though the contract of marriage were
subsequently violated. The latter instances, it was contended, were
comparatively few, and were set off by the increase of population
which came" through this means. Yet the reformers "triumphed, and in
1658 it was ordered, that henceforth the mere publication of bans
should not justify cohabitation."[808] The custom of bundling was,
however, too tenacious to be stopped by a decree of the legislator.
For more than a century in New York it continued to flourish, and
sometimes to bear evil fruit, as is clearly revealed in the case
of Seger _v._ Slingerland, which was decided in 1804.[809] Another
action shows that forty years later the practice existed in the
neighboring state of Pennsylvania. In this instance the plaintiff
admits that "the custom in courtship which he has denominated
bundling" prevails "very generally" in the part of the country where
the interested persons reside; and in this suit, as in the New York
case, the defendant won on appeal because of the connivance of the
parents in the misconduct of their daughter.[810]
[Footnote 807: BRODHEAD, _Hist. of the State of N. Y._, I, 639.
For the text of the ordinance of Jan. 15, 1658, see _N. Y. Col.
MSS._, XVI, 40, 129; also O'CALLAGHAN, _op. cit._, 328, 329; and
_Law Reports_, X (1885), 729 (Lauderdale Peerage Case).]
[Footnote 808: VALENTINE, _Manual of the Corporation_, 1858, 497,
498; _cf._ also LAMB, _History of the City of N. Y._, I, 183.]
[Footnote 809: CAINE, _Reports_, II, 219, 220. This was a case
on appeal by the original defendant who had been sued for damage
for debauching the plaintiff's daughter. The defendant won on the
ground of connivance of the parents of the girl. "We lay out of
view," says the court, "the custom which it is agreed prevails
in that part of the country for young people, who are courting,
to sleep together." "Nor is it an excuse for the parent to say
that promises of marriage had been exchanged." _Cf._ also STILES,
_Origin and Hist. of Bundling_, 44 ff., 109-11.]
[Footnote 810: Case of Hollis _v._ Wells (1845), 3 _Pa. Law
Journal_ (Philadelphia, 1872), 29-33. Under head of "A Custom
Must be Moral," these two cases are discussed in LAWSON (J. D.),
_The Law of Usages and Customs_ (St. Louis, 1881), 58-60.]
According to the old Dutch law, enforced in New Netherland, all
persons desiring to form a valid union were required to appear
before the minister or the court, as they saw fit, in the place
where they had "their fixed domicil for the last year and day, and
to apply there, for three Sundays or market days, when publication
of the banns was to be made in the church or the court-house, or
other place where the court of justice was held; and every one who
had any impediment to propose, was obliged to state the same in the
mean time, on pain of being otherwise deprived of that right."[811]
[Footnote 811: O'CALLAGHAN, _Names of Persons for Whom Marriage
Licenses Were Issued_, p. iii.]
The following document of 1655, contained in Fernow's collection
relating to the plantations on the Delaware when under the Dutch
jurisdiction, may serve to illustrate the prescribed formality in
applying for publication of banns:
"Appears Toms Broen, as father and guardian of his daughter,
Jannetje Tomas and consents to the marriage between her and Willem
Mauritz here present and requests that their legal bans might be
published; the names being, of the bridegroom Willem Mauritz,
bachelor, from Walle Schier, about 33 years old, of the bride
Jannetje Tomas, spinster, born in New-Netherland, about 16 years
old. Witness Stuyte Andries."[812]
[Footnote 812: Addressed to the vice-director and his council:
FERNOW, _Doc. Rel. to Col. Hist. of N. Y._, XII, 137 (Dec. 29,
1655). For a similar application see _ibid._, XII, 153, 154. For
further record of entry of banns before the "mayor of New York"
(1670-71) see _Records of New Amsterdam_, VI, 262, 334.]
From the same collection, two years later, we learn that "Laurens
Pieters bachelor from Lier and Catlyne Jans of Gottenburch in Sweden
were confirmed in marriage after proclamation of banns on the
previous Sundays."[813]
[Footnote 813: Dec. 24, 1657: FERNOW, _loc. cit._, 156.]
The civil courts in New Netherland possessed full jurisdiction in
all suits or matrimonial causes, including cases of separation
and divorce.[814] For an understanding of the relation of the
lower and higher courts, the procedure in such cases, and the
details of the law, the often-mentioned case of Johannis van Beeck
and Maria Verleth is instructive. The facts in this case appear
to have been the proximate cause of the ordinance of 1654/5 and
the letter of Stuyvesant already submitted. It is all the more
interesting because it involves the double question of irregular
banns and unlawful celebration, as shown by the final decree. On
January 26, 1654, takes place the first step in the proceedings.
Cornelis van Tienhoven, the schout, lodges formal complaint before
the burgomasters and schepens of New Amsterdam against the court
of Gravesend for illegally "granting and confirming the Banns of
Matrimony betwixt Johan van Beeck and Maria Verleth, who both have
their domicil in and about this city of New Amsterdam;" suggesting
that such conduct tends to the infringement of the good policy of
the fatherland, as also the privileges and jurisdiction of the
city, and to prepare a way for sons and daughters to go secretly
and get married. In reply, says the record, the "Burgomasters, and
Schepens ... do hereby refer the foregoing complaint and proposition
made by Cornelis van Tienhoven, in quality as Schout, to their
High Mightinesses the Director-General and Councillors of New
Fetherland."[815] But this did not end the matter.[816] On February
10, pending the decision of the higher court, van Beeck petitioned
the burgomasters and schepens "that his bans with Maria Varleth
may be entered and be properly proclaimed here" in New Amsterdam.
Whereupon the court "engage to do same because it is usual and
custom of Fathld to have publcts where domicil is and married where
he pleases."[817] After a little delay, the court keeps its promise.
On February 19 the burgomasters and schepens solemnly examined the
petition, noting (1) who instituted marriage and the apostles'
teaching; (2) the proper ages and the attained ages of both parties;
(3) consent of parents on the girl's side; (4) distance between
this and fatherland; (5) that "matters by long delay might come
to be disclosed ... which would bring disgrace on both families;"
therefore that "proper ecclesiastical proclamations ... ought to be
made at the earliest opportunity and followed afterwards by their
marriage."[818] This resolution seems a trifle indiscreet, in view
of the fact that the original case had been referred to their High
Mightinesses. It is therefore not strange that a communication
signed by Stuyvesant himself should express surprise that van Beeck
should have affixed by a poster "that his marriage, contracted not
only without his father's knowledge, but contrary to his express
prohibition to marry abroad has been declared lawful and proper by
Resolution of the Burgomasters and Schepens ... ; of which Resolution
the Director General and Council are ignorant;" at the same time
requesting an "authentic copy" of the resolution, with "written
reasons" for failing to submit the same for approbation of the
higher court.[819] This was on March 2, 1654. Apparently, after
republication of the banns, van Beeck had had the marriage ceremony
performed outside of the Dutch jurisdiction, probably because of
the doubtful legality of the course taken by the officials of New
Amsterdam. The records are silent as to the further proceedings in
the case, except as they may be inferred from the following decree
of the higher court, rendered not earlier, apparently, than 1656,
which leaves us in doubt as to how the original complaint against
the magistrates of Gravesend was disposed of:
"Whereas, the Director-General and Council of _New Netherland_
have heard the charge of the Fiscal against _Johannis van Beecq_,
a free merchant and inhabitant of this City of _New Amsterdam_,
defendant, who has been duly summoned by the Court Messenger
_Elslandt_ in the name of the Fiscal on three Court days and who has
had himself married by an unauthorized countryman, named _Goodman
Crab_, living at _Greenwich_, against the laudable laws and customs
of the _United Netherlands_ and, as the Fiscal further states and
proves in his charge, contrary to the advice and command of his
lawful guardian,[820] the Hon^{ble} Director-General, also without
previously publishing the bans and who has so far failed to make his
appearance, of _Netherland_ and without previous publication of the
bans, is hereby declared ... unlawful and the said _Jan van Beecq_
and _Maria Verleth_ are commanded to live separate under penalty of
being punished according to law for living in concubinage."[821]
[Footnote 814: For a discussion of the divorce jurisdiction of
the Dutch courts see chap. xv, below.]
[Footnote 815: VALENTINE, _Manual of the Corporation_, 1845-46,
368; _Records of New Amsterdam_, I, 155.]
[Footnote 816: While these proceedings were in progress,
another appeal, growing out of the case, came from the schout,
burgomasters, and schepens, in the city hall, special session of
Feb. 8, 1656. Case of "Maria Verleth, pltf. v. Joost van Beeck,
deft." The defendant maintains, as the marriage between Johannis
van Beeck and Maria Verleth is not yet declared legal, that
certain "letters are not her's, until the marriage be legalized."
But should the marriage be declared lawful by the court, supreme
council, and consistory, he consents that she shall have them.
He only wants his right. The court lets Maria have the letters
provisionally, because it has never been informed that the
marriage has been declared illegal, and it has already announced
that it must respect the proclamation of the church and the
"marriage tie of said young people."--_Records of New Amsterdam_,
II, 36.]
[Footnote 817: _Ibid._, I, 159, 160.]
[Footnote 818: _Ibid._, 164, 165. Earlier on the same day, the
record says, van Beeck prays "that disposal be made of petition
and remonstrance;" but no action was taken because the bench was
not complete: _ibid._, 163, 164.]
[Footnote 819: _Records of New Amsterdam_, I, 173, 174.]
"And whereas the Fiscal demands by his motion, exhibited on the
1st of September, 1654, that the said _van Beecq_ be condemned in
contumacy,
"Therefore, after proper invocation of the Lord, the
Director-General and Council of _New Netherland_, in the name
and behalf of their Noble High: Might: the Lords-States-General
of the _United Netherlands_ and of the Noble Lords-Directors of
the Privileged West India Company administering justice at the
requisition of the Fiscal, declare, that the Fiscal's charges are
true and founded in law and therefore the marriage of _Johannis van
Beecq_ and _Maria Verleth_, solemnized at _Greenwich_ and confirmed
by an unauthorized person contrary to the laudable laws and customs
[Footnote 820: See the reference to power of attorney in
Stuyvesant's letter, p. 269, above.]
[Footnote 821: FERNOW, _Doc. Rel. to Col. Hist. of N. Y._, XIV,
291.]
From the evidence already presented it is perhaps not rash to infer
that marriage by mere private consent, in words of the present
tense, was not valid in New Netherland. Publication of banns
and celebration before an authorized person were essential. The
principle, therefore, of the English common-law marriage did not
obtain. It had been superseded by statute. These records afford
other evidence to sustain this conclusion. Thus in February, 1662,
William Beeckman, of "Fort Altena on the South-River," writes to
Stuyvesant and the council, complaining that one Laers, a Finnish
priest, who was granted a divorce from his wife two months before,
has "married himself again last Sunday"--an act "which in my opinion
(under currection) he has no right to do. I expect your Honors'
orders, how to conduct myself in regard to it."[822] As a result the
marriage was declared to be "null, void, illegal;" seemingly on the
ground that self-marriage was not tolerated by the usages of the
Reformed church. Clearly in the opinion of the court the performance
of the ceremony by a person legally competent was necessary to a
valid contract. It is possible, however, that the decree was unjust
because of unfair representation of the facts by Beeckman, who is
accused of being a tyrant. In a letter to Stuyvesant, remonstrating
against his treatment, Laers says: "I cannot discover anything
illegal in it [his conduct]. I acted just in the same manner as I
had done before in respect to others; exactly as others do who are
not prosecuted for it, and I can conscientiously assure you that it
was done without any evil intentions. Had I known that my marrying
myself in this manner should have been so unfavorably interpreted, I
should have submitted to the usage of the Reformed Church. But I did
not know it. Wherefore I pray once more the honorable general that
he will vouchsafe me his aid."[823]
[Footnote 822: _Ibid._, XII, 359, 360. The case is also discussed
by GERARD, _The Old Stadt Huys of New Amsterdam_, 390, 391.]
[Footnote 823: GERARD, _op. cit._, 391, who says Laers was not
legally bound to conform to the usage of the Reformed church. See
also the documents in this case in O'CALLAGHAN, _op. cit._, XII,
358, 359, 363, 366, 367.]
Another case, or rather pair of cases, occurring during the
restoration of Dutch rule in 1674, seems conclusive as to the
severity of the law. On the fifth of February of that year, as the
fiscal alleges, Jacob Fabricius, a Lutheran preacher, had "contrary
to the laws of this government married Ralph Doxy and Mary van
Harris ... without having any lawful authority thereto and without
publication of bans." For this offense it is suggested in the
complaint that the culprit be severely whipped and "forever banished
this government _cum expensis_." After hearing the fiscal's charge,
the confession of Fabricius, and a "report" of the latter's previous
bad behavior, the court decides not to "proceed against him in the
most rigorous manner, considering his age and late position, but
they condemn him and declare him incapable to perform the functions
of a minister and what is connected with them within this province
for the time of one year. After this time has elapsed Deft. shall be
held to ask for a special 'consent' before he shall be re-admitted
to the performance of the said functions."[824]
[Footnote 824: FERNOW, _op. cit._, XII, 512: case of the Fiscal
_v._ Jacob Fabricius, March 1, 1674, before Governor-General
Colve and the council. A version of the case is also given by
O'CALLAGHAN, _op. cit._, II, 693, who translates "license" where
Fernow uses "consent" in the last sentence.
It is greatly to be feared that Brother Fabricius was a rather
uncomfortable inhabitant; for at the same session of the court
the fiscal charges that he did "beat and use force and violence
against Marretie Jurians, in her own house," for which it is
thought he ought to be "condemned in a fine of five Beavers with
costs." The defendant admits the charge; "but says that the above
named Marretie Jurians did provoke him with harsh language."
Their honors, however, deemed it just to assess him "two Beavers
with costs": O'CALLAGHAN, _loc. cit._, 693. Later Fabricius was
accused of riotous conduct at Newcastle on June 4, 1674, but he
denied the charge and offered to bring witnesses: FERNOW, _op.
cit._, XII, 521. Possibly religious bickerings had something to
do with his troubles. At any rate on June 1, 1675, the Lutherans
on the Delaware petitioned that he be confirmed as pastor:
_ibid._, 529. On April 18, following his suspension for marrying
Doxy, he had the hardihood to ask that the sentence be mitigated,
so that "he might be at least allowed to baptize, if he may not
preach and act as minister;" but the court declined his request:
_ibid._, 512.]
The case against Ralph Doxy is complicated by additional charges.
The fiscal makes no direct reference to the unauthorized celebration
or to the failure to publish the banns, though from the judgment
of the court we perceive that these offenses were considered; but
accuses him of entering "in an unlawful manner, into the married
state with Mary van Harris, making use for that purpose, of a forged
certificate," further alleging that he "hath still a wife alive who
resides in New England;" for which delinquencies he ought to be
severely whipped and "banished the country forever, with costs." In
his reply, Doxy "denies ever having been married to a woman before,"
but confesses "his guilt as regards the forged certificate," saying
"that through love for Mary Harris he had allowed it to be executed
by a certain Englishman, now gone to the Barbadoes, and therefore
prays forgiveness." The court declared the marriage unlawful on
the two counts for which Fabricius was suspended; but "finding the
charge against him of having a second (_sic_) wife in New England
unfounded, he is therefore permitted to confirm himself in wedlock
with the abovenamed Mary, according to the laws of the government."
For the forged certificate "he is pardoned for this time on his
promise of improvement, and request for forgiveness[825]."
[Footnote 825: O'CALLAGHAN, _op. cit._, II, 691, 692. On these
two cases see FOWLER, _Letter and Opinion_, 60 ff. (Lauderdale
Peerage Case).]
With the exception of the restriction put upon bundling, if that
were indeed the purpose of the act of 1658, the Dutch law-makers do
not seem to have busied themselves with the regulation of courtship.
Sexual transgressions were severely dealt with, although not with
the same rigor as in New England or even in early Virginia. Neither
the death penalty nor the scarlet letter appears. Fornicators,
if single, were required to contract marriage or pay a heavy
fine.[826] Adulterers fared worse. Some illustrations from the
judicial records in such cases have been gleaned by Cowley from the
_Colonial Manuscripts_. Among these are the sentence to whipping and
banishment of Ytie [Yutie] Jansen, "for living in adultery with Jan
Parcel, and also the sentence of Laurens Duyts, who, for selling his
wife, Yutie Jansen, and forcing her to live in adultery with another
man, and for living also himself in adultery, was 'to have a rope
tied around his neck, and to be severely flogged; to have his right
ear cut off, and to be banished for fifty years.' John Parcel, for
living in adultery with this Yutie Jansen, whom he had thus bought
from her own husband, was 'to be placed at the whipping-post, with
two rods in his arm,' to be banished twenty years and pay a fine of
a hundred guilders [forty dollars], with costs. The fourth party,
Geesje Jansen, for living in adultery with Laurens Duyts, was 'to
be conducted to the whipping-post, and fastened thereto, the upper
part of her body being stripped naked, and two rods placed in her
hand; to be afterwards conducted, in that wise, outside the city
gates, and banished the province for the term of thirty years, with
costs.' Moreover, Iva Dircksen, for adultery, was 'to be conducted
to the place where justice is administered, and there to witness the
punishments inflicted this day, and then to be banished for the term
of fifty years.'"[827]
[Footnote 826: O'CALLAGHAN, _Laws and Ordinances_, 495.]
[Footnote 827: COWLEY, _Our Divorce Courts_, 33, 34; citing _New
York Colonial MSS., 1630-1664_: Dutch: Part I, Vol. VIII, 1049,
1051, 1653, 1055, 1057.]
Breach of promise suits are not infrequent. Sometimes it is the
faithless swain who is prosecuted for his broken troth; as in
1669, when Elizabeth Stedwill called Jan Hendrix van Gunst to
account;[828] or when Maria Besems seeks pecuniary satisfaction
for the like offense of Boudewyn van Nieuwland.[829] Sometimes it
is the maid who asserts the woman's privilege, if not her legal
right, to change her mind; as in the case of Pieter Koch _v._
Annetie Cornelissen van Vorst, which took place in New Amsterdam,
1653-54, and may serve as an example. On February 24 the defendant's
stepfather delivers her "papers" to the burgomasters and schepens,
who order that each party shall have a copy of the other's papers,
and that the defendant shall appear in person. Then the case drags
along for nearly a year, over no less than eight sessions of the
court, before the pleadings and other preliminaries are finished.
At last, on February 19, 1654, the papers are sent by the lower
court to the director-general and council for advice. Apparently
in consequence of this advice the documents are then submitted to
a special committee of three men, who hand in their report on the
18th of the following May. Upon this report the decision of the
burgomasters and schepens was based, though they resolved to keep
the judgment in "abeyance" until "requested" by the parties to the
suit. From the records it appears that there was an oral promise of
marriage; that the plaintiff had given presents to his betrothed;
and that she, because of his "misbehaviour," was not disposed to
keep her engagement. The court, however, decided that a promise once
given should remain in force. Neither person without the consent
of the other and the approbation of the court should marry. The
defendant was allowed to keep her presents until marriage or until,
with the knowledge of the magistracy, the betrothed should set each
other free. Costs were to be borne equally by the parties.[830]
[Footnote 828: _Records of New Amsterdam_, VI, 203.]
[Footnote 829: GERARD, _The Old Stadt Huys_, 27. _Cf. ibid._, 26,
27, where cases of breach of promise are mentioned in 1642, 1644,
1653, and 1656.]
[Footnote 830: _Records of New Amsterdam_, I, 54; see _ibid._,
167, 199, 200. It may perhaps be inferred that the couple
concluded to release each other; for only seven years after the
trial (May 24, 1661) "Annetje Dircks, widow of Pieter Koch,"
is mentioned; _ibid._, III, 310; and similar phrase is twice
repeated: _ibid._, 403; IV, 34.
There are other cases. "In 1654 Greetje Waemans produced a
marriage ring and two letters, promissory of marriage, and
requested that on that evidence Daniel de Silla be 'condemned
to legally marry her.' He vainly pleaded his unfortunate habit
of some days drinking too much, and that on those days he did
much which he regretted; among other things his bacchanalian
love-making of Greetje. François Soleil, the New Amsterdam
gunsmith, another recreant lover, swore he would rather go away
and live with the Indians (a terrible threat) than marry the fair
Rose whom he had left to droop neglected--and unmarried."--EARLE,
_Colonial Days in Old New York_, 51; and for mention of other
cases, in connection with Dutch wedding gifts, see _ibid._, 52,
53.]
It is not surprising that among a people so thrifty and sensible
as the pioneers of New Netherland the remarriage of a widow or
a widower should be accompanied, or anticipated, by prudential
measures, designed to protect the interests of the children of the
first union. For this reason the wills and marriage contracts,
specimens of which have been preserved, are of peculiar interest.
According to Stiles, a well-known investigator of deeds and wills
in Williamsburgh[831] makes the remark "that the old Dutch wills
seem not to trust the widow in a second marriage. The restraints
placed upon remarriages, by wills, were generally in favor of the
children of the first marriage; and the widows thus restricted
generally signed consents to accept the bequests in lieu of dower,
for the good reason that propriety did not allow them to refuse so
soon after the death of their first husband, and because the devises
and bequests in lieu of dower vested an estate for life, or three
thirds of the estate subject to a contingency in their own control,
instead of one third absolutely. The will of Cornelius van Catts
of Bushwick, dated in 1726, and expressed in a sort of half Dutch
dialect, devises to his wife Annetjie, his whole estate ... while
she remains his widow--both real and personal. 'But if she happen
to marry, then I geff her nothing of my estate, neither real nor
personal. I geff to my well-beloved son, Cornelius, the best horse
that I have, or else £7, 10s., for his good as my eldest son. And
then my two children, Cornelius Catts and David Catts, all heef
[half] of my whole effects, land and movables, that is to say,
Cornelius Catts heef of all, and David Catts heef of all. But my
wife can be master of all for bringing up to good learning my two
children.... But if she comes to marry again, then her husband can
take her away from the farm, and all will be left for the children,
Cornelius Catts and David Catts, heef and heef.'"[832]
[Footnote 831: J. M. STEARNS.]
[Footnote 832: STILES, _History of Brooklyn_, I, 233, 234.
The author adds: "So also in the will of John Burrows, of Newton,
July 7, 1678, he devises to his son John his then dwelling-house,
farm, orchard, out-houses, and lands, etc. 'But not to dispossess
my beloved wife during the time of her widowhood. But if she
marry, then her husband must provide for her as I have done.' So
also the will of Thomas Skillman, of Newton, in 1739."--_Ibid._,
233, 234.
"Often joint-wills were made by husband and wife, each with
equal rights, if survivor. This was peculiarly a Dutch fashion.
In Fordham, in 1670 and 1673, Claude de Maistre and his wife
Hester du Bois, Pierre Cresson and his wife Rachel Cloos,
Gabriel Carboosie and Brieta Walferts, all made joint-wills.
The last-named husband in his half of the will enjoined loss
of property if Brieta married again. Perhaps he thought there
had been enough marrying and giving in marriage already in
that family, for Brieta had had three husbands,--a Dane, a
Frieslander, and a German,--and his first wife had had four, and
he--well, several I guess; and there were a number of children;
and you couldn't expect any poor Dutchman to find it easy to make
a will in all that confusion. In Albany may be found several
joint-wills, among them two dated 1663 and 1676; others in the
Schuyler family."--EARLE, _Colonial Days in Old New York_, 54,
55.]
It was not, however, the first husband alone who took such
precautions. After betrothal careful marriage contracts were often
drawn up when either a widow or a widower was about to re-enter
wedded life. The following is a sample of these stipulations, dated
July 27, 1656:
"Appears Geertruyt Jacops, widow of the late Mr. Roeloff de Haes,
now betrothed to Jacob Crabbe and declares her intention of proving
and assigning their father's inheritance to the children, left by
him, Mr. de Haes, and born in wedlock by her, Geertruyt Jacops,
to wit Johannes de Haes, old about 10 years, Marrietje de Haes,
old about 9 years, and Annitje, old about three years, and assigns
herewith to each of the aforesaid children the sum of 6 carolus
guilders, declaring at the same time upon her conscience, in place
of an oath that she, affiant, hereby satisfies the aforesaid
children out of their father's inheritance and this declaration
is made in presence and with the consent of her affianced
husband Jacobus Crabbe, and she Geertruyt Jacops, has nominated,
constituted, and appointed ... as guardians of the aforesaid
children the Worthy Oloff Stevensen and Hendrick Kip, both burghers
and inhabitants of the Manhattans."[833]
[Footnote 833: Before the vice-director on the Delaware: FERNOW,
_Doc. Rel. to Col. Hist. of N. Y._, XII, 149, 150.
Here is a somewhat more elaborate contract in which one party is
a widower:
"In the name of the Lord Amen, be it known by the contents
of this present instrument, that in the year sixteen hundred
and sixty-three the eighteenth day of May, appeared before
me, Johannes La Montagne in the service of, etc., Meyndert
Frederickse [Smith], widower of the late Cataryna Burger, who
declares in the presence of the aforesaid witnesses, that for
God's honor he has contracted a future marriage with Pietertien
Teunise, spinster (jonge dochter), and before the consummation
of the same, he, the subscriber, assents to the following
conditions, firstly, that the aforesaid betrothed persons,
for the maintenance of said marriage, will collect and bring
together, all such existing estates and effects of whatever
nature; in whatever place, and with whatever persons, the same
may be lying or deposited, nothing excepted, which each now has
and posesses, to be by them possesed in common, according to
the law of our Fatherland, except that out of the bridegroom's
estate, to-wit, from the estate left by Caterina Burger deceased,
be reserved the sum of eight hundred guilders payable in beavers,
for the children left by her; to wit Frederick Meyndersen aged
six years, and Burgert Meyndersen aged three years, being their
maternal (matrimonial) inheritance; moreover said married persons
shall be holden to bring up said children in the fear of the
Lord, to teach them to read and write in the schools, to maintain
them in food and clothing till their majority or married state,
without diminishing their maternal estate, which the subscriber
promises without craft or guile, and for the same binding his
person and estate, real and personal, present and future, nothing
excepted, subject to all laws and judges." In the presence of
the children's guardians and the "orphan master."--MUNSELL'S
_Collections on the Hist. of Albany_, IV, 321. For similar
contracts see _ibid._, 311 (Sept. 23, 1662), 345.]
_b_) _Law and custom under the Duke of York._--In 1664 New
Netherland passed into the hands of the Duke of York, whose patent
from Charles II. directed him to establish authority "not contrary
to but as neare as conveniently may bee agreeable to, the Lawes
Statutes and Government of this our Realme of England."[834] After
studying the New England laws, especially those of Connecticut and
Massachusetts, Colonel Richard Nicholls, the duke's deputy governor,
promulgated a code which was in force on Long Island, or Yorkshire,
from March 1, 1665.[835] On August 6, 1674, Governor Andros ordered
the duke's laws to be enforced throughout "New York" except "such as
shall have apparent inconveniences in them,"[836] and in 1676 they
were established in the Delaware region, "except the constables'
courts, county rates, and some other things peculiar to Long
Island."[837] It follows that for a short time after the conquest,
in the province and on the Delaware, the Dutch laws were still
observed; and, of course, the old usages and customs long survived.
[Footnote 834: See the charter in _New York Colonial Laws_,
I, 1-5; and compare COOK, "The Mar. Cel. in the Colonies,"
_Atlantic_, LXI, 360 ff.]
[Footnote 835: BRODHEAD, _Hist. of N. Y._, II, 18, 63, 66, 67;
_Colonial Laws of N. Y._, I, xii, 100, 101. The code of the Duke
of York has been thrice published: in _Collections of N. Y.
Hist. Soc._, I, 305-97, for the year 1809 (New York, 1811); in
the recent _Colonial Laws of New York_ (Albany, 1894), I, 6-100,
where a critical note on the original copies may be found; and as
the _Duke of Yorke's Book of Laws_, a part of LINN'S _Charter and
Laws of Pennsylvania_ (Harrisburg, 1879), the edition here cited
by preference.]
[Footnote 836: O'CALLAGHAN, _Doc. Rel. to Col. Hist. of N. Y._,
III, 226, 227; _N. Y. Col. Laws_, I, xii, xiv, 107 (Andros's
order). _Cf._ DONGAN'S report in O'CALLAGHAN, _op. cit._, III,
390 (1686); also see HILDRETH, _Hist. of U. S._, II, 44 ff., 76
ff.; LODGE, _Short Hist._, 297-99; BRODHEAD, _Hist. of N. Y._,
II, 273; HOWARD, _Local Const. Hist._, I, 105, notes.]
[Footnote 837: HAZARD, _Annals of Pa._, 427; _N. Y. Col. Laws_,
I, xii.]
By the duke's code optional civil marriage was established in New
York. "Whereas," declares the preamble, "by the Law of England no
Marriage is Lawfully Consummated without a Minister whose office it
is to join the parties in Matrimony after the Banes thrice published
in the Church or a Lycence first had and obtained from some person
thereunto Authorized, All which formality cannot be duly practiced
in these parts. Yet to the end that a decent rule therein may be
preserved It is Ordained that from henceforth the names and surnames
of each Party who sue for Marriage shall be Publiquely read in
their Parish Church or place of usuall Meeting, where they both
then Inhabit, three severall Lords days successively." An optional
procedure by license or by ecclesiastical banns was thus introduced;
but in one respect the liberality of the Dutch law was not imitated.
Unqualified permission to publish intentions of marriage by civil
notice, instead of banns in church, was not granted. Yet, in effect,
such discretion is often allowed; for "where no Church or Meeting
place shall happen to bee," fourteen days written notice on "three
doors of each parish" where the parties respectively dwell, namely
on the doors of the constable, and two of the overseers, is declared
sufficient.
Optional religious or civil celebration is established. After proper
notice, as already described, the ceremony may be performed by
"any minister" or "any justice of the peace," but on one important
condition: the parties are required to "purge themselves by oath
before the minister or justice that they are not under the bonds of
matrimony to any other person living;" and in case of obtaining a
"double marriage" by perjury, we catch a glimpse of the influence
of New England thoroughness on Colonel Nicholls, in the barbarous
provision that the persons "offending shall bee boared through
the tongue with a read hot Iron and moreover proceeded against
as in Case of Adultery." But the party "approved innocent" and
"ignorant of the other's wicked fraud" may recover damages against
the "nocent," and is permitted to contract a new marriage as if
nothing had happened.[838] For the marriage of any "Daughter, Maid,
or Servant" the "known consent" of the parent, master, or dame is
required; and for celebration without such consent, or without
preceding banns or other legal notice, or the governor's license
in place of notice, the minister or justice is to "forfeit twenty
pounds and be put out of his office."[839]
[Footnote 838: _Duke of Yorke's Book of Laws_: in _Charter and
Laws_, 19, 36; _Col. Laws of N. Y._, I, 45, 46. In at least one
case this provision was carried out: on Oct. 5, 1672, Dan Sutton,
for perjury and bigamy was sentenced to have his tongue bored
through with a red-hot iron: _Law Reports_, X, 733 (Lauderdale
Peerage Case); for the text of the duke's marriage law of 1664/65
see _ibid._, X, 730, 731.]
[Footnote 839: _Duke of Yorke's Book of Laws_, 37.]
The declaration of the preamble that "by the Law of England no
Marriage is Lawfully Consummated without a Minister" may prove
misleading, unless the vital distinction between "legality" and
"validity," already emphasized, be kept in mind. In 1665 a marriage
in England without a minister was valid, but it was not lawful and
might be punished. In the present instance, however, all doubt as
to the meaning of the law is set at rest by the further provision
that "if any man shall hereafter presume to Marry contrary to these
Lawes prescribed the Person offending shall be proceeded against as
for Adultery or fornication, ... the Children so begotten shall be
Reputed Bastards, And the Parents suffer such paines and penalties
by fines or Punishment as they have deserved."[840] Since this
provision is clearly contrary to the existing law of England, it
would seem to be invalid as transcending the legislative power
granted to the duke by the royal charter; and even the king could
not have changed the law of England.
[Footnote 840: _Ibid._]
Later in 1665 provision is made relative to the legal age for
matrimony. All persons are to be "accompted of fitt age to Marry,
when the Man shall attaine to the age of twenty one, and the Women
of Eighteene years."[841] In the next year the not very lucid
interpretation is vouchsafed that this law is to be understood "of
such persons onely as are under guardianshipp, and itt is not in any
wayes to take of the naturall bounds of Duty and obligation which
Children owe to their parents."[842] If this declaration has any
sense, it may perhaps mean that, without consent, only orphans under
guardianship, and not those whose parents are living, have full
authority to marry at the ages mentioned.
[Footnote 841: _Ibid._, 65.]
[Footnote 842: _Ibid._, 70.]
A system of registration is likewise provided for. The names and
surnames of all the inhabitants of every parish in the government
are to be registered; and "to prevent future inconveniences which
may arise about the age of Orphants, The Certaine Marriage of Men
and Women or the decease of persons imported into this Country
whereof no positive Certificate can be granted, as to the age of
one, Marriage of another or the Death of another, The Minister or
Town Clark of every parrish shall well and truly and plainly" record
all births, marriages, and deaths happening within his district "in
a Book to be provided by the Church-wardener for that purpose." If
a master of a family or anyone concerned fail, within one month, to
report the birth, marriage, or death of a person related to him, he
shall pay a fine of five shillings.[843]
[Footnote 843: _Duke of Yorke's Book of Laws_, 13, 14; _Col. Laws
of N. Y._, I, 19.]
Another provision reveals the tender solicitude of the English
common law for the wife in a way which a century later would have
warmed the heart of Sir William Blackstone himself. "No man shall
harbour, conceal or detain Contrary to the concent of the Husband
any Married woman, upon penalty of five Shillings for every hour"
that she "remains under his Roof." Still there really might be
occasions when even a "married woman" could reasonably claim some
share of public protection. For has not the "common law" itself,
in certain emergencies, placed her on a level with the bondwoman?
Therefore it is provided "always that any woman flying from the
barbarous Cruelty of Her Husband to the House of the Constable or
one of the Overseers of the same Parish; may be protected by them
in the manner as is Directed for Servants in such Cases, and not
otherwise."[844]
[Footnote 844: _Duke of Yorke's Book of Laws_, 36; _Col. Laws of
N. Y._, I, 46.]
Again on producing a "sufficient" certificate "from any forraigne
parts" under the "hand and seal of some creditable person and known
magistrate," that either spouse is dead, the other is free to marry
again. The same liberty is accorded the survivor when either party
has been absent for five full years without knowledge on a journey
by sea or land usually made in "a year or less or in a few days."
But in that case a veritable trap is laid for the feet of Enoch
Arden, in a provision, imitated from the laws of New England, the
stupidity of which is only less surprising than the fact that in
substance it has survived in statutes of far more recent times.
It is "provided always that if either the man or the woman shall
at any time after the Expiration of five years Returne and bring
full Testimony that hee or shee have divers wayes endeavoured by
writings or Messages to make known to his wife, or her Husband, that
Shee or hee were then living, or that they were by Imprisonment or
Bond Slavery with the Turks or other Heathen, Lawfully hendred from
giving such information;" then such person may "Challenge his or her
premarriage, and obtain an order for their Cohabiting as formerly."
But "if neither shall sue for such an order," they "may by mutuall
agreement Enter a Release to each other in the office of Records,
and both remain free from their former obligations."[845]
[Footnote 845: _Ibid._, 46, 47; _Duke of Yorke's Book of Laws_,
36, 37. "The father onely of the Children as are begotten in
Lawfull Marriage," continues the statute, "is to provide for such
Children as shall be adjudged in the Court of Assizes only."]
One or two incidents gleaned from the records for the period of the
duke's laws may serve to illustrate the difficulties of matrimonial
administration on the Delaware. Thus in 1678, in a case similar to
that of Laers above cited, the minister, reader, and churchwardens
present to the local court at Newcastle Walter Wharton, justice of
the peace, for marrying himself or being married "contrary to the
Knowne Lawes of England & alsoe contrary to the Lawes and customes
of this place and Province;" as likewise for granting certain lands
without proper authority. The said "Mr. Wharton not appearing in
three following Court dayes, and to the end the Reproach may bee
taken away from the River and that Such notorious breatches of
y^e Lawes and disorders may for the future not passe unpunished,
especially in p^rsons of Lesser qualitys whoe if this [conduct]
of M^r. Whartons [whoe" being "in Commission" and bearing "the
office of a Justice of y^e peace ougt to give good examples to
others] had not been Reguarded, migt att all tymes" hold it for a
"bad president": the court do therefore submit the "p^rmisses to
the Judgem^t. of his Hono^r. the Governo^r. for to Inflict such
punishment" as he "shall thinke fitt & expedient." We are only
informed in the record that the accused is "to bee out of the
Commission of Justices & left to the Law."[846] One regrets that we
are not told whether the "law" treated his marriage as void.
[Footnote 846: FERNOW, _Doc. Rel. to Col. Hist. N. Y._, XII, 596;
mentioned also by HAZARD, _Annals of Pa._, 451, 454, 455. On
the same day the local court fined him ten pounds and costs for
neglecting his judicial duties: FERNOW, _loc. cit._, 596, 597.]
The Delaware papers, for the next year, contain also a long letter
to Governor Andros from Luke Watson, of "Whoorekill"--whose spelling
is, if possible, more ingenious than usual even for that fertile
region--complaining of the many shortcomings of Captain John Avery,
magistrate and president of the court. It seems that the captain
was fond of having his own way; sometimes, when his colleagues on
the bench presumed to give a contrary "judgment," going out of the
court "in a greate Rage and feury, ... Cursing and swaring," and
even suggesting that they were "ffooles, Knaues, and Rouges." He
is accused, moreover, of taking upon himself "to grant a Licence
to Marry Daniel Browne to Sussan Garland, widdow, without any
publiqueation, which Marrige was effected, notwithstanding it is
Generally knowne or at Least the said Daniel confesses that he
knows no other but that he haue a wife living in England." This
was not the captain's worst indiscretion in the discharge of
his official matrimonial duties. We learn that in taking "vpon
himselfe to Marry the widdow Clament to one Bryant Rowles, without
publiquecation notwithstanding she was out aske at Least a Month to
another man, namly Edward Cocke," he prepared a sad tragedy in real
life. For when the "said Cocke" heard that the widow had jilted him
he said "it would be his death." So he "went home, fell sick, and in
forty eight hours after dyed," declaring in his last breath "that
her marrying was the cause of his dyeing."[847]
[Footnote 847: _Ibid._, 624, 625.]
At this time Governor Andros, replying to the inquiries of the Lords
of Trade, reports that because of the "scarcity of Ministers & [the]
Law admitting marriages by Justices no acc^t cann be giuen of the
number marryed." He adds that "ministers haue been so scarce" and
"Religions" so many that he can give no statement of the number
of births or christenings.[848] In 1695 Mr. Miller, an English
clergyman, "complains that many marriages are by a justice of the
peace."[849]
[Footnote 848: O'CALLAGHAN, _Doc. Rel. to Col. Hist. of N. Y._,
III, 261 (1678); VALENTINE, _Manual of the Corporation_, 1851,
453. The year before the bishop of London complains that the
Virginia marriage laws are not enforced: O'CALLAGHAN, _op. cit._,
III, 253 (July 17, 1677).]
[Footnote 849: EARLE, _Col. Days in Old New York_, 60.]
The duke's code makes no provision for the celebration of marriage
except before a minister or a justice of the peace. The Quakers of
Long Island, who earlier had suffered severely from the intolerance
of the Dutch,[850] continued nevertheless to practice their own
simple but solemn rites. For so doing they were harshly dealt with
by the courts, as appears in a petition to Governor Andros and his
council from two of their number in 1680,[851] praying for the
"Remission of a Fine imposed for Contravention of the Marriage
Laws." The paper is in the form of an "address from Henry Willis
and John Bowne, Concerning the proceedings of a Court of Sessions
against vs, who said they fined us 10 lbs a peece for suffering our
daughters to marrie contrary to their law, which proceeding we are
satisfied is without precedent and we can count it noe lesse but
a mistake or hasty oversight and though we have endeaverd for its
removall yet Execution is eished forth and Jos. Lee vndershiref hath
seazed Hen: Willis barne of corn and since taken from Jo. Bowne 5
good milch cowes and drove them away by night and kept them pownded
from food" more than a night and a day, so that the neighbors were
"generally troubled at it." Then the petitioners proceed to reason
with the enemy, using the soft word which turneth away wrath. "Now
in simplisity, we doe seriously entreat all that may be conserned
herein seriously to consider it and in the cooleness of your spirits
without anger or hard thoughts truly to waye it in the balance of
Equity where the witness of God may arise in every Contience to
testifie, whether If such things should goe on ... it would not be
to the rewenating of families and to the kindling of Gods anger
against a place or people which we truly desire may be prevented,
by takeing away y^e ocation." So they make their appeal to the
"cheife," knowing that a magistrate's "authority is to preserve
mens persons and Estates, but y^e prerogative of the contience that
belongs to God and we dare not but yeald obedience thereunto;"
for "we do not act--as sometimes resented (_sic_)--in stobourness
obstainancy or contempt of authority but in simplisity."[852]
[Footnote 850: See O'CALLAGHAN, _Hist. of New Netherland_, II,
345-55, 450-57. Under the lead of the clerical bigots, Drisius
and Megapolensis, the Reformed church in New Netherland banished
Lutherans and tormented the Quakers. A number of Friends,
expelled from Massachusetts, arrived in New Amsterdam in 1657,
and were at once persecuted with fiendish cruelty. Nevertheless,
the Quakers grew apace in numbers, settling by preference in
Jamaica and Flushing on Long Island. Among them was John Bowne, a
recent convert and signer of the petition quoted in the text. In
1662 he was fined for allowing his house to be used as a Quaker
conventicle; and in the next year he was banished to Holland.
This resulted in calling down upon the head of Stuyvesant a
severe and just rebuke from the directors. See also BRODHEAD,
_Hist. of N. Y._, I, 636, 705; O'CALLAGHAN, _op. cit._, 338-42,
428; EARLE, _op. cit._, 260; and WALLER, _Hist. of Flushing_,
37-47, 77, note. It is a pity that a writer of such merit as Mr.
Waller should have reiterated (46, 47) the baseless and long
since exposed slanders against the Quakers in New England.]
[Footnote 851: FERNOW, _op. cit._, XIV, 752, 753; also in _New
York Colonial MSS._, XXIX, 202.]
[Footnote 852: The petition concludes with the following
exhortation: "and we earnestly desire y^e Lord may perswade your
hearts, vnto whome we are now concerned, that y^e may remoue y^e
cause of this our address and open that eye in you that can see
vs as we are, who can pray for those thats in authority that
vnder them we may live a peaceable holy and Godlike life
Y^e 4th day of y^e 7^{th} mo: 1680
"Henry Willis
John Bowne."
]
From this evidence it would seem that the magistrates of Long
Island were not less thrifty in their zeal than were their
brethren in Massachusetts from whose pious robbery and legal
cruelty the Wardwells suffered.[853] It is noticeable, too,
that only fines are spoken of. Nothing is said of invalidating
marriages celebrated in the Quaker fashion. From this the
suggestion already made gains support that the nullifying clause
in the duke's code was illegal; and we may, perhaps, also infer
that it was not attempted to be carried out in practice by the
courts. Certain it is that in 1661, only four years before the
adoption of the duke's laws, a marriage celebrated in England
according to Quaker rites was held legal in a trial which
took place at the Nottingham assizes.[854] The marriage law
of 1665, at least so far as it was valid, remained in force
until the passage of the so-called "Dongan" act of 1684.[855]
This statute[856] was one of the thirty-one acts receiving the
governor's signature and passed at the second session of the
first representative assembly of New York, elected in 1683 under
the reluctant and grudging sanction of the Duke of York.[857] By
it no striking change is made in the broad outline of matrimonial
administration; but in the details several important alterations
appear. The provision regarding optional civil or ecclesiastical
banns is identical with that of the earlier law, except that
posting on the constable's door in each parish, instead of on
"three doors," is deemed sufficient. License "under the hand and
seale of the governour" in place of banns is still allowed. As
before, any minister or justice within the province is authorized
to perform the ceremony; but now the persons are required to
"bring a Certificate from under the ministers hand that published
them or under the Constable hand on whose doores their names were
affixed which Certificate shall be sent to the office of the
Register of the County and there Entred on Record together with
a Certificate of their Marriage with the day and date thereof
from the party by whom they were marryed there to remaine in
perpetuam rei memoriam;" and it is provided, further, that the
persons purge themselves by oath, if required, that they are not
already under bonds of matrimony. But in this connection, instead
of the clause as to boring through the tongue with a red-hot
iron, it is declared that "if it shall afterwards happen to be
proved that either ... of the said partyes" has thus contracted
a bigamous marriage through false swearing, he "shall suffer
as in Cases of perjury and further be proceeded against as in
Cases of polygamy."[858] The act is liberal in another respect.
At last the Quakers are granted relief in a provision which in
substance finds many repetitions in American legislation during
the two centuries to come. Nothing, we are told, is "intended to
prejudice the Custome and manner of marriage amongst the Quakers,
but their manner and forme" shall be judged lawful; provided
they allow "none to marry that are restrained by the Law of God
contained in the five bookes of Moses; and that they permitt none
to be marryed within their Congregation or meeting of any other
persuasion then themselves," except after banns or license and
record made according to law.
[Footnote 853: HALLOWELL, _Quaker Invasion of Massachusetts_,
99-104.]
[Footnote 854: _New York Colonial MSS._, XXIX, 203 (New York
State Library). Regarding this decision, which settled the
character of marriage law in England, SEWEL, _History ... of
the Quakers_, 292, has a striking passage: "It happened about
this Time in England, that some covetous Persons, to engross
Inheritances to themselves, would call the Marriages of those
called Quakers in question. And it was in this Year that such
a Cause was tried at the Assizes at Nottingham; a certain
Man dying, and leaving his Wife with Child, and an Estate in
Copyhold Lands: When the Woman was delivered, one that was near
of kin to her deceased Husband, endeavoured to prove the Child
illegitimate: And the Plaintiff's Council willing to blacken
the Quakers, so called, asserted the Child to be illegitimate,
because the Marriage of its Parents was not according to Law; and
said bluntly, and very indecently, That the Quakers went together
like brute Beasts. After the Council on both sides had pleaded,
the Judge, whose name was Archer, opened the Case to the Jury,
and told them That there was a Marriage in Paradise, when Adam
took Eve and Eve took Adam; and that it was the Consent of the
Parties that made a Marriage. And as for the Quakers (said he)
he did not know their Opinion; but he did not believe they went
together as brute Beasts, ... but as Christians; and therefore he
did believe the Marriage was lawful, and the Child lawful Heir.
And the better to satisfy the jury, he related to them this Case:
A Man that was weak of Body, and kept his Bed, had a Desire in
that Condition to Marry, and did declare before Witnesses that
he did take such a Woman to be his Wife; and the Woman declared,
that she took that Man to be her Husband. This Marriage was
afterwards called in question: But all the Bishops did at that
time conclude it to be a lawfull Marriage." The jury found for
the child.]
[Footnote 855: In 1674 the duke's laws were ordered put in
execution "except those requiring amendment or alteration":
_Colonial Laws of N. Y._, I, xiv, 107. On Nov. 9, 1674, Governor
Andros issued a proclamation to that effect: _ibid._, xiv, 107,
108.]
[Footnote 856: "The original of this act is not in the office of
the Secretary of State. This copy was made from the manuscript
compilation of the 'Dongan laws' formerly in the office of the
Secretary of State, but now in the New York State Library.
The date of its passage, as October 23, 1684, is given by E.
B. O'Callaghan, in _Hist. Int. to Journals of the Legislative
Council of N. Y._, p. 12."--CUMMING'S note to the act, _Col. Laws
of N. Y._, I, 150.]
[Footnote 857: See his two letters to Andros (1675 and 1676
respectively) in _Col. Laws of N. Y._, I, xiv, xv; and also the
instruction to Dongan, 1682, allowing a general assembly to be
summoned: _ibid._, xv, 108-10. The duke's letters are also in
O'CALLAGHAN, _Doc. Rel. to Col. Hist. of N. Y._, III, 230, 235.]
[Footnote 858: _Col. Laws of N. Y._, I, 150, 151. This seems to
be a decided mitigation of the original penalty: see "An act to
prevent wilfull Perjury," passed by the Assembly Nov. 1, 1683:
_ibid._, 129-31.]