which it is of the highest importance to note, and which has been
entirely overlooked by writers[859] who have discussed the character
of the marriage law of New York after 1684. The invalidating clause,
unless by implication, in case of neglect of the required forms and
procedure, does not appear. It is merely declared that if "any man
Shall p'sume to marry contrary to the Law prescribed the person
offending shall be proceeded against as for fornication;" and the
minister or justice performing the ceremony shall forfeit twenty
pounds and be suspended from his benefice or office.[860] The
penalty for fornication according to the duke's law, which seems to
have been still in force, was "enjoyning Marriage, fine, or Corporal
punishment" at the "discretion of the Court."[861] Thus by any fair
interpretation of a penal statute, after 1684, an irregular marriage
_per verba de praesenti_ was illegal though valid in New York, just
as it was in the mother-country.
[Footnote 859: By COOK, for instance, who says the Dongan
act was "substantially a re-enactment of the Duke's Laws
of 1664, and seems not to have been repealed prior to the
Revolution."--"Marriage Celebration in the Colonies," _Atlantic_,
LXI, 360.]
[Footnote 860: _Col. Laws of N. Y._, I, 151.]
[Footnote 861: _Ibid._, 35. The view presented in the text as to
the penal clause in the act of 1684 is sustained by the opinion
of Lord Watson in the Lauderdale Peerage Case: COOK, _Reports of
Cases Decided by the Eng. Courts_, XXXVII, 357, 358.]
_c_) _Law and custom in the Royal Province._--The Dongan act of
1684, continuing as it does the general provisions of the duke's
law, and indeed differing but little--except perhaps in the matter
of lay celebration--from the earlier usage of the Dutch, is in
harmony with the administrative practice which prevailed in New York
until the Revolution; though, as will presently appear, there is
good reason to believe that it was repealed in 1691. The provision
regarding certificate and registration corresponds with the custom,
though the local officers were negligent and the records are far
from complete.[862] Perhaps, as a rule, marriage was preceded
by banns or civil notice; but license must have been popular,
especially among the well-to-do, and a lucrative source of income to
the governors, as the forty manuscript volumes of marriage-license
bonds, preserved among the treasures of the State Library at Albany,
amply bear witness.[863]
[Footnote 862: For example, a marriage record was continuously
kept at Trinity Church, New York, only for the years 1746-64. In
general, the records were imperfect at a much later period: see
MYRON A. MONSON, in _Hist. Genealog. Register_, XLI, 93.]
[Footnote 863: These MSS. are a rich mine for the genealogist.
For this purpose they are made easily accessible through the
_Names of Persons for Whom Marriage Licenses Were Issued_,
printed by order of Gideon J. Tucker, secretary of state, Albany,
1860. On the period covered by the New York licenses see HOFFMAN,
_Chancery Practice_, 15; and _Law Reports_, X, 728 f.]
An instructive piece of evidence as to the importance of the license
fee is given by Professor Peter Kalm, the Swedish botanist and
traveler, writing in 1748. He mentions the small salary allowed the
royal governor by the assembly, the whole of which is sometimes lost
through "dissension with the inhabitants;" and he declares that but
for three "stated profits" the governor "would be obliged either to
resign his office, or to be content with an income too small for
his dignity; or else to conform himself in everything" to their
inclinations. These extraordinary sources of income are the fees for
passports, permission to keep public houses, and marriage licenses.
"Few people," he says, "who intend to be married, unless they be
very poor, will have their banns published from the pulpit; but
instead of this they get licenses from the governor, which impower
any minister to marry them. Now for such a license the governor
receives about half a guinea, and this collected throughout the
whole province, amounts to a considerable sum."[864]
[Footnote 864: KALM, _Travels in North America_ (translated by
JOHN REINHOLD FORSTER, Warrington, 1770), I, 259-62; see also the
extract in HART, _Source-Book of American History_, 128-30; and
for the dates _ibid._, 100.]
In fact, just as in England in our own day,[865] it was "deemed most
plebeian, almost vulgar, to be married by publication of the banns
for three Sundays in church, or posting them according to the law,
as was the universal and fashionable custom in New England." This
notice from a New York newspaper, dated December 13, 1765, will show
how widespread had been the aversion to the publication of banns:
"We are credibly informed that there was married last Sunday
evening, by the Rev. Mr. Auchmuty, a very respectable couple that
had published three different times in Trinity church. A laudable
example and worthy to be followed. If this decent and for many
reasons proper method of publication was once generally to take
place, we should have no more clandestine marriages; and save the
expense of licenses, no inconsiderable sum these hard and depressing
times."
[Footnote 865: See chap x, sec. iii, above.]
For another reason the times became more "hard and depressing" and
banns more economical, perhaps more patriotic, as Mrs. Earle further
shows by an extract from Holt's _New York Gazette and Post-boy_ for
December 6, 1765:
"As no Licenses for Marriage could be obtained since the first
of November for Want of Stamped Paper, we can assure the Publick
several Genteel Couple were publish'd in the different Churches
of this City last Week; and we hear that the young Ladies of this
Place are determined to Join Hands with none but such as will to
the utmost endeavour to abolish the Custom of marrying with License
which Amounts to many Hundred per annum which might be saved."[866]
[Footnote 866: EARLE, _Col. Days in Old New York_, 58, 59.]
The character of the governor's license may be seen in the following
sample, issued in 1732:
"By his excellency William Cosby, Esq., Captain general and governor
in chief of the provinces of New York, New Jersey, and territories
thereon depending, in America, vice-admiral of the same, and colonel
in his majesty's army, &c.
"To any Protestant Minister:
"Whereas there is a mutual purpose of marriage between Jacob
Glenn of the City of Albany, merchant, of the one party, and
Elizabeth Cuyler of the same city, spinster, of the other party,
for which they have desired my license, and have given bond upon
conditions, that neither of them have any lawful let or impediment
of pre-contract, affinity, or consanguinity to hinder their being
joined in the holy bands of matrimony; these are therefore to
authorize and empower you to join the said Jacob Glenn and Elizabeth
Cuyler in the holy bands of matrimony and them to pronounce man and
wife."[867]
[Footnote 867: MUNSELL'S _Annals of Albany_, II, 182.]
A goodly store of folklore relating to wedding customs among the
Dutch and English of New York has been gathered by Vanderbilt,
Earle, and other writers. There was no lack of feasting and pastime.
As in the fatherland, maypoles were set up before the door in honor
of newly wedded pairs. The fashion of "coming out bride," "that is
the public appearance of bride and groom, and sometimes of entire
bridal party in wedding array, at Church the Sunday after the
marriage," was observed with due pomp and splendor. Collections for
the parish poor or to build a church were received from the guests
on the bridal day; and bumpers of "sack-posset" seem to have been as
keenly relished by the worthy burghers of New York as by good old
Samuel Sewall and his Massachusetts brethren.[868] At wedding time
there was "open house" and plenty of feasting; but the festivity
does not appear to have reached the excess practiced by the
Pennsylvania Friends.[869] Hannah Thompson, wife of the secretary of
Congress, while residing in New York in 1786, wrote to John Miflin,
of Philadelphia, that the "Gentleman's Parents keep open house just
in the same manner as the Brides Parents. The Gentlemen go from the
Bridegrooms house to drink Punch with and to give joy to his Father.
The Brides Visitors go In the same manner from the Brides to his
Mothers to pay their Compliments to her. There is so much driving
about at these times that in our narrow streets there is some
danger. The Wedding-House resembles a bee-hive. Company perpetually
flying in and out."[870]
[Footnote 868: For these customs and others see EARLE, _op.
cit._, 60 ff.; and compare VANDERBILT, _Social Customs of
Flatbush_, 149 ff.; WATSON, _Annals and Occurrences of New York
City and State_, 211-17 (written in 1828 regarding customs twelve
years before the Revolution); OSTRANDER, _History of the City of
Brooklyn and King's County_, I, 79-83; _New York Hist. Coll._,
Fund Series, 1880, XIII, 355, where Rev. John Sharpe tells
us that negroes are married merely by mutual consent without
blessing of the church; and _ibid._, Second Series, II, 347-49,
where courtship among the New York Indians is described.]
[Footnote 869: See sec. ii, _b_) below.]
[Footnote 870: HANNAH THOMPSON, _Letters_: in _Pa. Mag. of Hist.
and Biol._, XIV, 35.]
But in the main domestic life was peaceful and prosaic. Family
woes were seldom dragged into court. The "capital laws" contained
in the duke's code do, indeed, show their New England origin by
prescribing death as the penalty alike for denying God or the king's
titles, or wantonly smiting a parent; but these were practically
a "dead letter."[871] Mrs. Grant bears witness to the happiness
and tranquillity of marital life in Albany. "Inconstancy or even
indifference among married couples was unheard of, even where there
happened to be considerable disparity in point of intellect. The
extreme affection they bore their mutual offspring was a bond that
forever endeared them to each other. Marriage in this colony was
always early, very often happy, and very seldom indeed interested.
When a man had no son, there was nothing to be expected with a
daughter but a well brought-up female slave, and the furniture
of the best bed-chamber. At the death of her father she obtained
another division of his effects, such as he thought she needed or
deserved, for there was no rule in these cases."[872]
[Footnote 871: _Duke of Yorke's Book of Laws_, 14, 15; _cf._
WEISE, _Hist. of Albany_, 195, 196.]
[Footnote 872: GRANT, _Memoirs of an American Lady_, 48; quoted
also by EARLE, _op. cit._, 55, 56.]
So much for custom and the actual legal practice. We may now
turn to the controversy as to whether subsequently to 1691 there
was any valid statutory regulation of marriage in New York until
after the close of the provincial period. The uncertainty arose in
consequence of the following resolution of the assembly, April 24,
1691: "Upon an information.... That the several Laws made formerly
by the General Assembly, and his late Royal Highness, James Duke of
York;" and also "the several Ordinances or reputed Laws made by the
preceding Governors and Councils, for the Rule of their Majesties
Subjects within this Province, are reported amongst the people,
to be still in force;" it is resolved, _nemine contradicente_,
that the first-named laws of the assembly, "not being observed,
and not ratified and approved by His Royal Highness, nor the late
King, are null, void, and of none effect;" as also are the "several
Ordinances made by the Governors and councils, being contrary to the
constitution of England, and the practice of the government of their
Majesties other plantations in America."[873]
[Footnote 873: See CUMMING'S "Historical Note," _Col. Laws of N.
Y._, I, xix. CUMMING cites the note of _Robert Ludlow Fowler_ to
_Fac Simile of the Laws and Acts of the General Assembly ... as
printed and sold by William Bradford, 1694_, 78 ff.]
The terms of the resolution are very clear; but unfortunately, so
far as has yet been discovered, no record exists of its having
been placed before the governor and council for approval. Nor does
the validity of this resolution or that of the act of 1684 ever
appear to have been tested in the provincial courts. Singularly
enough, this dual question was not judicially considered until the
"Lauderdale Peerage Case," in 1885, which grew out of a marriage
solemnized one hundred and thirteen years before--on the very eve
of the Revolution. The record of the trial and judgment in this
case is really equivalent to a treatise by learned jurists on the
matrimonial law of New York, from the Dutch Ordinance of 1654 to
the adoption of the constitution of 1777. Moreover, distinguished
American lawyers were called as expert witnesses or to submit
written opinions.[874] From the record in the case[875] it appears
that on July 11, 1772, two days before his death, Colonel Richard
Maitland and Mary McAdams were married in New York city by Rev.
John Ogilvie, an ordained clergyman of the Church of England, and
then assistant minister of Trinity Church. The main question at
issue, and the only one with which we are here concerned, was the
requisites for a valid marriage in the province of New York in
that year. As recited in the syllabus, there were produced, _inter
alia_, in support of the marriage from the custody of the family
a certificate in legal form; an affidavit, signed by the mayor of
New York, to the effect that the officiating minister had made oath
of the truth of the statements in the certificate; a will of date
anterior to the marriage, by which Colonel Maitland left all his
property to his wife and the children then born; copies of letters
showing that one of the executors wrote to his co-executors in
England, a brother of the bridegroom, stating that he was a witness
to the ceremony of marriage; that the woman signed herself in the
man's surname; that the children were recognized and taken care of
by members of the man's family; and also war office records showing
that the woman received a pension as Maitland's widow.[876] But
evidence was not forthcoming of previous license or publication
of banns. Did the neglect of license or banns invalidate the
marriage? It was contended by the witnesses and advisers of the
counter-claimant that the statute of 1665 and that of 1684 rendered
license or banns indispensable, and that such continued to be the
law of New York down to the marriage in 1772.[877]
[Footnote 874: American witnesses for the claimant were E. J.
Phelps, the United States minister, S. P. Nash, and C. Cary,
of the American bar. Those for the counter-claimant were R. L.
Fowler, of the American bar, and G. F. Edmunds, chairman of
the Committee on Judiciary of the United States Senate: _Law
Reports_, X, 728 n. 1. See also WEBSTER, _Opinion on the Law of
Marriage in the Col. of N. Y._ (New York, May 26, 1885); SEWARD,
_Answer to Interrogations of Brodie and Sons_ (New York, June,
1885); and FOWLER, _Letter and Opinion_ (New York, May 11, 1885).
Copies of these three opinions are in the State Library, Albany.
Written opinions were also submitted by James C. Carter and
William Evarts, of New York.]
[Footnote 875: In _Law Reports_, X (1885), 692-762; and in COOK,
_Reports of Cases Decided by Eng. Courts_, XXXVII, 341-69. The
case was referred by the House of Lords to the Lords' "Committee
for Privileges" for hearing.]
[Footnote 876: _Law Reports_, X, 693.]
[Footnote 877: _Ibid._, 794.]
Thus in his written opinion Mr. Sidney Webster, in answer to the
question "whether the law of marriage in New York, in 1772, was
contained in Dongan's law of 1684, supplemented, where defective,
by the older laws of the Duke of York and of the Dutch?" says that
he thinks the "fundamental law" of the colony of New York when
the case arose, was made up of so much of the Dutch law as was
unrepealed and remained in force; so much of the English common
law as had been established after the conquest in 1664; so much
of the English parliamentary statutes[878] as had been enacted
and specially made applicable; and the colonial statutes legally
enacted and sanctioned by the crown. "I have not seen nor heard,"
he continues, "of a denyal that the ... law of 1684 was a valid
enactment" at the date of its passage. "In so far as it covered
matters and also punishments embraced in any previous statute, or
ruled by the common law, and was inconsistent therewith, it repealed
or abrogated both by implication." Any contract of marriage made
in "palpable violation" of the requirements of either of these
laws, while in force, would be void; and "if it could be found that
the marriage law of 1684 was repealed prior to 1828, then, in the
absence of any positive law to the contrary," the duke's law "would
by implication be revived."[879] So he concludes that in 1772,
for a valid contract, there must be previous banns or license, as
well as solemnization by a clergyman or magistrate.[880] With this
conclusion the opinion of Mr. Evarts coincides. "The statute of the
Assembly in 1684," he says, "unquestionably was in force in 1772.
The essentials of a valid marriage according to the law of New York
in 1772, were that the ceremony should be performed by a minister
or a justice of the peace, and that such marriage could be lawfully
performed only after the publication of the banns prescribed by the
act of ... 1684, or in default of such publication ... , by a license
from the governor."[881]
[Footnote 878: This opinion is not convincing; for the common law
had not been "established," in the sense of enacted or declared;
nor were there any British statutes which bore upon the marriage
celebration in New York.]
[Footnote 879: By the law of 1828 it was declared that a
marriage, "so far as validity is concerned," is a civil contract
"to which the consent of parties capable in law of contracting,
shall be essential."--_Revised Statutes_, 1827-28, II, 138.]
[Footnote 880: WEBSTER, _Opinion_, 2 ff., 55, 59, 70. He cites
Fenton _v._ Reed (4 JOHNSON, _Reports_, 51), in favor of validity
of consensual or common-law marriage; and Milford _v._ Worcester
(7 _Mass. Rep._, 48), on the opposite side. In substantial
agreement with Webster are the opinion of SEWARD, _Answer_, 1-53;
and that of FOWLER, _Letter and Opinion_, 60, 61, _passim_,
who to prove the validity of the duke's law cites the cases of
Fabricius and Ralph Doxy, above discussed.
The counter-claimant also produced the case of Dan Sutton,
sentenced for bigamy and bored through the tongue with a red-hot
iron in 1672--a case plainly irrelevant, so far as the question
of marriage contract is concerned; and likewise the case of
Mary Jones, 1680, for having a bastard child, "she pretending
to be married before delivered; but without either license or
publication. She was fined £5 or to receive twenty stripes on the
back"--a sentence which perhaps tells on the claimant's side, for
it punishes an illegal act, but says nothing of nullifying the
marriage; or, if the marriage may be regarded as invalidated by
implication, the sentence is illegal as contrary to English law.
For these citations see _Law Reports_, X, 733.]
[Footnote 881: Evarts's opinion cited by COOK, "Mar. Cel. in the
Colonies"--_Atlantic_, LXI, 361.]
For the claimant also a mass of evidence was presented. Important
decisions were cited;[882] and it was pointed out that in the acts
of the legislature published after 1684 neither the statute of that
year nor the duke's law appears; "nor in fact" were "any of the
laws prior to 1691" printed in subsequent collections.[883] Sir.
F. Herschell, counsel, urged that "unless it is expressly provided
that the failure to comply" with the requirement of the statutes in
question "shall render a marriage null and void, the courts will
not so construe;" and he holds that the resolution of the assembly,
1691, was valid; for "everybody" acted as if the laws repealed by
it were not in force.[884] In short, "the substantial effect of
the evidence of those called for the claimant," as summarized in
the report of the case, was "that the law prevailing in New York
with regard to the requisites for a marriage in the year 1772 was
the common law of England as interpreted by the American courts,
_i. e._, that there should be a contract of marriage per verba de
presenti; and that the 35th article of the constitution of the state
of New York, adopted in 1777, ... shewed that the common law of
England, as then understood, governed this subject."[885]
[Footnote 882: The American witnesses for the claimant cited
Jackson _v._ Gilchrist (15 JOHNSON, _Rep._, 89); Constantine _v._
Windle (6 HILL, _Rep._, 176); Humbert _v._ Trinity Church (24
WENDELL, _Rep._, 625): HOFFMAN, _Chancery Practice_ (2d ed., New
York, 1843); _Revised Statutes of N. Y._ (ed. 1830), 729; and
Fenton _v._ Reed (4 JOHNSON, _Rep._, 52), the leading case for
"common-law" marriage.]
[Footnote 883: _Law Reports_, X, 728. The act of 1684 is
preserved in MS. in the New York State Library; and this I have
examined through the courtesy of Mr. Griswold.]
[Footnote 884: _Law Reports_, X, 734. Herschell cites King _v._
The Inhab. of Birmingham (8 B. & C., 29); and Dr. Lushington in
Caterall _v._ Sweetman (1 ROBERTSON, _Ecc. Reports_, 321).]
[Footnote 885: _Law Reports_, X, 728. The reference to the
thirty-fifth article of the constitution of 1777 adds little
weight to the argument. Except as concerns any established
denomination of Christians or the sovereignty of the crown, that
article provides that "such parts of the common law of England,
and of the statute law of England and Great Britain, and of the
acts of the legislature of the colony of New York," as together
did form the law of that colony on April 19, 1775, should be the
law of the state: POORE, _Charters_, II, 1337, 1338.]
Such was the unanimous decision of the committee of Lords
constituting the court, whose members submitted their opinions
separately. The Earl of Selborne doubted whether the acts of 1665
and 1684 were in force in 1772 and significantly suggests that,
if they were in force, failure of banns and license would not
invalidate a marriage. He further argues strongly that in the
present instance there is no absolute proof that banns or license
was lacking; for the church records are often imperfect. In any
event, therefore, the rule _omnia praesumunter rita acta_ ought to
govern the case; for one cannot conceive of any circumstance more
properly requiring its application.[886] In harmony with this view
was the able opinion of Lord Blackburn, which in effect maintained
the validity of the common law in New York subsequent to 1684. The
original English settlers, he argues, "carried with them all the
immunities and privileges and laws of England.... That being so,
from the time when the colony of New York was first settled it had
primâ facie the marriage law of England such as it was in the latter
part of the seventeenth century;" and in England at that time a
marriage "solemnized according to the form of the Church of England,
and by a clergyman of the Church of England ... was valid to
constitute matrimony: although if it was a clandestine or irregular
marriage without banns or a license, the clergyman who performed it
might be liable to censure" and punishment. In addition his lordship
significantly raises a doubt as to whether the Duke of York had
power to introduce a new law of marriage essentially different from
that of England as regards the absolute requirement of license or
banns.[887]
[Footnote 886: _Law Reports_, X, 742.]
[Footnote 887: _Law Reports_, X, 744-49.]
Accordingly, the other judges agreeing, the laws of 1665 and 1684
were set aside as not in force; and the claim of Major Frederick
Henry Maitland, descendant of Colonel Richard Maitland, to the
earldom of Lauderdale was sustained.[888]
[Footnote 888: _Ibid._, 762. Of course, the question as to
whether the presence of a clergyman at the ceremony was essential
to a valid marriage was not raised; and if it had been raised
in 1885, the court might possibly have decided that it was
requisite, in harmony with the judgment in the Queen _v._
Millis. History must, however, decide the other way. But compare
the conclusion of COOK, "Mar. Cel. in the Col.," _Atlantic_,
LXI, 361, who infers from this decision that "this 'common-law
marriage,' falsely so-called--the 'free marriage' of the later
Roman law, of the canon law, and of the Scotch law,--did not
exist in New York (or, indeed, in any of the other colonies)
prior to the Revolution."]
There can be little doubt that this was a righteous judgment, in
harmony with the entire history of the English decisions down to
the case of the Queen _v._ Millis, whose character has already
been considered.[889] Furthermore, its justice is rendered almost
certain by a witness, not called in the trial, but whose evidence
given in 1773, the very next year after the marriage in question, is
assuredly worthy of more attention than any produced by the American
experts in 1885. This testimony is given by Rev. John Rodgers, in a
paper read before the "Reverend General Convention of the Delegates
from the Associated Churches of Connecticut, and the Synod of New
York and Philadelphia," met at Stamford, September, 1, 1773; the
manuscript being found in the cabinet of President Stiles by the
historian, Abiel Holmes:
"There has no law been made in this province relating to marriages,
nor do any of the English statutes concerning them extend to it.
They stand therefore on the common law of the land; and as words
de presenti constitute a marriage by that law, the courts of
judicature, on any contest, must leave the question _married or
not_ to the jury of the county upon the proofs that are offered,
as they do with respect to any other enquiry relating to matter of
fact. This is attended with some inconvenience; but the politicians
contend that they would be greater, if the legislature should
interpose by a law to prevent clandestine marriages; and it is
much to be doubted, whether the several branches would be brought
to any unanimity on the subject, were it attempted. The rites of
marriage were at first celebrated by the justices of the peace,
as well as the clergy, either upon the governor's licence, or the
publication of bans thrice in some place of worship. This was the
case till the year 1748, before which time the licences ran, _to all
Protestant ministers_; but upon application of the Episcopal clergy
who meant to monopolize this business, they are since directed
_to all Protestant ministers of the Gospel_, and from the time of
this alteration the justices do not intermeddle, except in such
counties where clergymen are scarce. But marriages are celebrated
by clergymen of all denominations without distinction, and yet
for any law to the contrary, a marriage with or without licence
or publication, and with or without the aid of a clergyman or
magistrate, will be valid in law. A contract in words de presenti,
proved by witnesses and subsequent cohabitation as man and wife,
constitutes a marriage of legal validity, as already suggested."[890]
[Footnote 889: See Vol. I, 316-20, above.]
[Footnote 890: RODGERS, _A Brief View of the State of Religious
Liberty in the Colony of New York_: in 2 _Mass. Hist. Coll._, I,
152. On the authorship, see _ibid._, II, 270.]
After this it seems only necessary to add that if it should
appear strange that the legal practice in the administration of
matrimonial law, during the provincial period, harmonizes in the
main with that prescribed by the laws of 1665 and and 1684, it is
sufficient to say that this is so by force of custom; while, so far
as license is concerned, that was maintained by virtue of the power
granted to the royal governors in their instructions.[891]
[Footnote 891: In their instructions the governors are directed
to issue marriage licenses, and usually to hang up the "table of
marriages" according to the English canons: O'CALLAGHAN, _Doc.
Rel. to Col. Hist., N. Y._, III, 372 (instructions to Dongan, May
29, 1686), 688 (to Sloughter, Jan. 31, 1689), 821 (to Fletcher,
March 7, 1691/92); _ibid._, IV, 288 (to Bellomont, Aug. 31,
1697), 558 (Bellomont's instructions to Lieutenant-Governor
Nanfan), 766 (a letter of Bellomont to secretary of Board of
Trade, telling of the trick by which Rev. Symon Smith got a
license for Baldridge, the pirate, Oct. 19, 1700); _ibid._, V,
135 (instructions to Hunter); _ibid._, VII, 830 (Governor Moore
to Lords of Trade, mentioning his power to license, June 12,
1766).]
II. NEW JERSEY, PENNSYLVANIA, AND DELAWARE
_a_) _Law and custom in New Jersey._--The population of New Jersey
was far more homogeneously English than was that of New York and
Pennsylvania. It was composed of members of various religious sects.
Some Quakers settled in East New Jersey and more in West New Jersey,
but they were never numerically strong. The vast majority of the
people were Scotch Presbyterians and New England Congregationalists;
so that family law shows decided traces of Puritan influence.[892]
Circumstances, however, favored toleration in this regard; and hence
only in details were the New Jersey matrimonial law and custom
different from those which existed in New York.
[Footnote 892: Compare COOK, "Mar. Cel. in the Colonies,"
_Atlantic_, LXI, 358, 359.]
The legal history of the province begins in the year of the
English conquest of New Netherland. In 1664 a very liberal plan of
government, called the "Concessions and Agreement," was established
by the proprietors, Lord Berkeley and Sir George Carteret. All
"faithful subjects of the king" are admitted to "plant and
become freemen" of the said province of New Jersey. No one is to
be "molested, punished, disquieted or called in question, for
any difference in opinion or practice in matters of religious
concernments," provided he do not disturb the "civil peace."[893]
[Footnote 893: For the Concessions see SMITH, _Hist. of the Col.
of Nova-Caesaria, or New Jersey_, 512 ff.]
Under this instrument in 1668 the first matrimonial legislation
appears. "For the preventing of unlawful marriages, it is ordered
... that no person or persons, son, daughter, maid, or servant,
shall be married without the consent" of parents, masters, or
overseers, "and three times published ... at some public meeting
or kirk, where the party or parties have their most usual abode;"
or their "purpose" be set up in writing "on some publick house
where they live," there to "abide" for the space of fourteen days
before the celebration, which, "if possible" is to be performed in
a public place. "None but some approved minister or justice of the
peace within this Province, or some chief officer, where such are
not, shall be allowed to marry or admit of any to join in marriage,
in their presence;" under the penalty of twenty pounds[894] and
removal from office for neglect. But in place of banns or civil
notice, the governor may grant his license to "any that are at their
own disposing," if they "clear themselves by oath or certificate;"
or to any others "under tuition," provided the parents, masters,
or overseers are present to give their consent, or such consent be
"attested by some public officer" before the license is issued.[895]
[Footnote 894: Later reduced to ten pounds: _Acts of the
Assembly_, 1693, 332.]
[Footnote 895: LEAMING AND SPICER, _Grants, Concessions, and
Original Constitutions_, 81, 82 ("Laws in Cartaret's Time").]
This act, which, it may be noted, does not contain a clause
expressly invalidating a marriage for non-observance of its
provisions, seems to have remained in force for fifteen years. But
in 1682 "that part of the province called East New Jersey came by
purchase into the possession of William Penn and other Quakers,"
who formed an association called the Twenty-four Proprietors. By
these a body of rules known as the "Fundamental Constitutions" was
established, containing a provision for the celebration of marriage,
after the Quaker fashion, very similar to the law for Pennsylvania
made in England the same year by Penn and his associates.[896] All
marriages "not forbidden in the law of God shall be esteemed lawful
where the Parents or Guardians being first acquainted, the Marriage
is publickly intimated in such Places and Manner as is agreeable
to Mens different Perswasions in Religion, being afterwards still
solemnized before creditable Witnesses, by taking one another as
Husband and Wife, and a certificate of the whole, under the Parties
and Witnesses Hands, being brought to the proper Register for that
End, under a Penalty if neglected."[897] In March of the same year a
statute was passed differing in several respects from the preceding.
Parents or guardians are to be consulted and give their consent.
"Intentions" are to be published for "at least three weeks" before
solemnization, which "shall be performed by and before some justice
of the peace or other magistrate," unless he "refuse to be present;"
the certificate shall be entered "in the register of the town and
county" where the marriage takes place; and a record of publication
is likewise to be kept by the clerk of the "assembly" or public
place where it occurs.[898] Cook thinks this statute may "have
been a compromise between the Quaker and the Puritan practice, that
left out the very feature in each which was most desirable. For the
parties were to take each other as husband and wife, but not 'before
creditable witnesses;' while, on the other hand," by the terms of
the law, if the "justice or magistrate refused to be present, it
would appear that the parties could marry themselves."[899] But
_that_ they could undoubtedly do under the former law, since there
is no nullifying clause, and the only penalty mentioned is clearly
for failure to file the certificate.
[Footnote 896: _Cf._ COOK, _loc. cit._, 359; and LINN, _Charter
and Laws_, 101.]
[Footnote 897: "Fundamental Constitutions," sec. xx: in _New
Jersey Archives_, I, 408; and LEAMING AND SPICER, _Grants_, etc.,
164.]
[Footnote 898: A "Bill for the General Laws of the Province of
East New Jersey," March, 1682/83: LEAMING AND SPICER, _op. cit._,
236. By this act marriage within the degrees there named is
declared void: _ibid._, 243.
The "Fundamental Constitutions" had provided that there should be
a "register in each county for births, marriages, burials, and
servants, where their names, times, wages, and days of payment"
should be recorded: LEAMING AND SPICER, _op. cit._, 163; and
already in 1675, under the first proprietors, the "clerk of each
town within this Province," in a book provided by the town, is
to record "all births, marriages, and deaths" in his district:
_ibid._, 100.]
[Footnote 899: COOK, _loc. cit._, 359.]
Already in 1676[900] West New Jersey was also acquired by Quaker
proprietors; and in May, 1682, by an act of the general assembly,
"for the preventing of clandestine and unlawful marriages," a system
much like that of the eastern province was established. Justices
within their jurisdictions are authorized to solemnize, when the
persons have caused their intentions to be previously published for
fourteen days in "some public place appointed for that purpose,"
and the "parents or trustees" show "no lawful reason against it."
For celebrating without such consent, if it "may be reasonably
obtained," the magistrate is to be fined at the discretion of the
general assembly. Provision is likewise made for registration.[901]
[Footnote 900: See the "concessions" to West New Jersey: in
SMITH, _Hist. of N. J._, 521 ff.]
[Footnote 901: LEAMING AND SPICER, _op. cit._, 446, 447.]
It will be observed that in all these measures for the two provinces
of New Jersey civil marriage is recognized. It is optional under the
act of 1668; but under the Quaker régime, of course, solemnization
by a minister is not mentioned.
For about twenty years after the legislation just presented the
proprietary rule was maintained in the two provinces. During
the latter part of the period there was more or less friction
and dissatisfaction. The jurisdictions, though not the property
rights, were turned over to Governor-General Andros in 1688. Four
years later all the interests of the proprietors were absolutely
surrendered to the crown. The united colony was then joined with New
York under the same governor, but with a council and assembly of its
own; and this arrangement was continued until 1738, when New Jersey
became an independent royal province.[902]
[Footnote 902: For the instrument of surrender see SMITH, _Hist.
of New Jersey_, 211-19. There was a petition to separate from New
York as early as 1728: _ibid._, 421 ff. _Cf._ also COOK, _loc.
cit._, 359; THWAITES, _Colonies_, 211, 213, 214.]
After the union with New York, with characteristic intolerance, the
Church of England was established; "but as the Episcopalians were
a small minority of the population, and had but little zeal, the
Establishment remained barely more than nominal."[903] To the "end
the ecclesiastical jurisdiction of the said Lord Bishop of London,
may take place in our said province, so far as conveniently may
be"--run the instructions to Governor Cornbury in 1702--"we do think
fit that you give all countenance and encouragement to the exercise
of the same, excepting only the collating to benefices, granting
licences for marriages, and probate of wills, which we have reserved
to you." The table of marriage according to the English canons is to
be "hung up in every orthodox church, and duly observed." For its
"strict observance" the governor is to try to get a law passed by
the assembly, if none already exists.[904]
[Footnote 903: COOK, _loc. cit._]
[Footnote 904: Instructions to Lord Cornbury, 1702: in LEAMING
AND SPICER, _op. cit._, 639; also in SMITH, _op. cit._, 253.]
The attempt to force the rites of the English church and the
jurisdiction of the bishop of London on the people of New Jersey
proved a failure. So, March 27, 1719, a new act appears, which
shows that serious abuses, notably in the issue of licenses, must
have existed during the orthodox rule. "Whereas of late Years,"
says the preamble, "several Young Persons have been, by the Wicked
Practices of evil disposed Persons, and their Confederates, inticed,
inveigled and deluded, led away and clandestinely so Married," to
the "great Grief of their Parents and Relatives," it is therefore
enacted that, under forfeit of five hundred pounds, no license
shall be granted to a person under twenty-one years of age without
consent of the parent or guardian, "signified by a certificate in
writing" under his hand; which certificate must be filed in the
office of the secretary of the province. The person presenting the
certificate of parental consent, before issue of license, must
"take an Oath upon the Four Holy Evangelists, of Almighty God, or
if really of Tender Conscience, shall make a Solemn Affirmation and
Declaration," that it is genuine; and besides, as in New York, he
is required to execute a bond to the governor, with two sufficient
sureties, in the penal sum of five hundred pounds.[905] In case of
celebration by banns instead of license the procedure is the same.
The certificate of consent must be presented by the persons to the
clerk of the peace or to the county clerk; they must take the oath
on the evangelists, and execute a bond of the same tenor as that
already described. Thereupon the clerk, within fourteen days, "shall
affix a Writing in a fair legible Hand, in the _English_ Tongue,
at three the most publick Places in said County, setting forth the
Persons names, Places of Abode, and Intentions of Marriage." All
religious societies may celebrate according to their own rites; and
by implication ministers of the gospel, justices of the peace, and
"others" may perform the ceremony.[906]
[Footnote 905: 5 Geo. I., in _Acts of the General Assembly_
(Woodbridge, 1752), 79 ff. The form of bond is given p. 81. This
statute is also in ALLINSON'S _Acts of the Gen. Assem._, 1702-76
(Burlington, 1776), 53-57.]
[Footnote 906: Under penalty of £200, ministers, justices, or
others are forbidden to join persons in marriage without banns
or proper license: _Acts of the Gen. Assem._ (1752), 79, 80, 82,
84.]
At this point legislation rested. No further change was made in the
matrimonial law of New Jersey until long after the Revolution.[907]
However, in 1765 a vain attempt was made by the Episcopal clergy,
though a small minority in the province, to monopolize the income
derived from the celebration of marriages on the governor's license,
showing that they were not less greedy nor selfish than were their
brethren of New York seventeen years before. In a letter to the
Lords of Trade the "Bishop of London at the request of the clergy
of ... New Jersey begs leave to represent, ... that by an old Law
the Licences for Marriages are directed to any Protestant Minister
or Justice of the Peace, which however necessary at the first
Establishment of the Colony to facilitate Marriages, when there were
few Ministers in the Country, seems at present not only prejudicial
to the clergy, who are depriv'd of a considerable part of their
Income, but gives occasion to many Inconveniences and abuses."
It appears, as the letter further shows, that in 1760 the clergy
petitioned Governor Boone to "alter the Direction of the Licences."
The petition was declined on the ground that authority to make the
change belonged to the Lords of Trade on application of the bishop
of London. The request being now made to the bishop, the latter
hopes that the lords "will take the matter into Consideration, and
if they see no particular Objections will give their Instructions to
the Governor of that Province, that for the future Marriage Licences
may be directed only to a Protestant Minister of the Gospel." The
Bishop's communication was forwarded by the Lords of Trade to
Governor Franklin of New Jersey, with a sensible letter in which
certain pertinent questions are so forcibly raised as seemingly
to bring the correspondence to a speedy end. Their lordships see
no objection to what the bishop proposes, "if there is no Law in
force by which the Civil Magistrate is authorized to perform the
Marriage Rites, or if long usage and custom has not established such
a practice." But they add, "as it does not appear to Us from any
Information we can collect here, how the case stands in respect to
this matter, we desire you will by the first opportunity acquaint
Us, whether the civil Magistrates in New Jersey do or do not perform
those Ceremonies; and if they do; whether it is by virtue of any
declared Law or by usage only; and if the latter, whether such
practice may in your opinion be altered in the manner proposed by
the Bishop of London without Inconvenience or Complaint."[908]
[Footnote 907: Until the act of March 4, 1795, by which the act
of 1719 was repealed: _Laws of the State_ (Newark, 1800), 160.]
[Footnote 908: _New Jersey Archives_, First Series, IX, 504, 520,
521.]
It is evident what a truthful answer from the governor must have
been; but we hear no more of the matter.
_b_) _Law and custom in Pennsylvania and Delaware._--It was one of
the many false charges originally brought against the Quakers by
their orthodox adversaries that they did not celebrate marriage in
an orderly and decent way. They were even accused of repudiating
the marital relation and of indulging on principle in licentious
conduct.[909] There is no ground whatever for such slanders,
unless the rejection of the ring, with the peculiar observances
of the English church, and the insistence that marriage, as a
divine ordinance, is a matter between man and his own conscience,
in which the priest shall have nothing to do, may be counted a
justification. The Quakers always held the institutions of marriage
and the family in great esteem. From the beginning they have exacted
due publicity in the celebration which was attended by a modest,
though devout and severe, ceremonial. So important, indeed, was the
nuptial contract in their eyes, as will presently appear, that the
Pennsylvania Friends were too much inclined to extravagant display
in the wedding festivities. One may well marvel what was Masson's
notion of a religious rite when he wrote that the Quakers "had no
religious ceremony in sanction of marriage."[910] "Professor Masson,
as his context proves, had ample opportunity to avoid this blunder,
and it can only be accounted for on the theory that his mind is
prejudiced by the still popular notion that the presence and offices
of an ordained minister are necessary to make a marriage ceremony
religious and to secure the Divine sanction of the nuptial rites.
The Quakers thought otherwise. They repudiated the claims of the
clergy, and believed that God alone can join men and women in the
solemn covenant."[911]
[Footnote 909: See, for example, the curious pamphlet of THOMAS
UNDERHILL, _Hell broke loose: Or An History of the Quakers Both
Old and New. Setting forth many of their Opinions and Practices.
Published to Antidote Christians against Formality in Religion
and Apostasie_ (London, 1660), 16, 37, where, contradictorily,
they are accused of believing, "that we sould endeavor to
be perfect; and therefore to forbear _all carnall acts of
Generation_, as being of _Sin_ and of the _Devil_; and therefore
_Husband_ and _Wife_ should _part asunder_, or _abstain_;" and
that "marriage was made by Man;" while one of them is charged
with defending a woman who went naked and confessing "_That of
late he went to bed with a woman, who was not his wife, and that
he did it without sin._"
Read also _The Quakers Spiritual Court Proclaimed_ (London,
1668), 5, 6, by "Nathaniel Smith Student in Physick, who was
himself a Quaker, and conversant among them for the space of
about XIV years": "Not long before this, they spoke against
Marriage, and said, That it was for Lust; and that men ought to
live soverly, _For all Lust came of the Devil_: and so they spoke
against Marriage in general; but this continued not above three
or four Years, at which time they began to Marry in Prison: and
there was the first Marriage that I ever knew of. After this,
that their Ministers did marry in Prisons, then the Common sort
would marry in the Meeting: And it was after this Manner; Those
two that were resolved to go together, (and many times there was
not one that did know it besides themselves,) the Man and the
Woman would stand up in the midst of them, or in some convenient
place; the Man declaring after this manner, _I take this Woman to
Wife_: and after, departed and went together as Man and Wife."]
[Footnote 910: MASSON, _Life and Times of Milton_, V, 25; _cf._
HALLOWELL, _Quaker Invasion of Mass._, 23.]
[Footnote 911: HALLOWELL, _op. cit._, 23, 24.]
From their founders we may learn their doctrine of matrimony. "We
marry none," says George Fox, "but are witnesses of it; marriage
being God's joining not man's."[912] In harmony with this is Penn's
declaration that the Quakers believe marriage to be "an ordinance
of God, and that God only can rightly join men and women" in
wedlock.[913] Elsewhere he declares that ceremonies the Friends
"have refused not out of humor, but conscience reasonably grounded;
inasmuch as no Scripture-example tells us, that the priest had any
other part, of old time, than that of a witness among the rest,
before whom the Jews used to take one another; and therefore this
people look upon it as an imposition, to advance the power and the
profits of the clergy; and for the use of the ring, it is enough to
say, that it was an heathenish and vain custom, and never practiced
among the people of God, _Jews_ or _primitive Christians_."[914]
Again, he claims that wedlock is a union which should only grow out
of mutual inclination. "Never marry but for love," is his advice,
"but see that thou lovest what is lovely."[915] Similar evidence is
given by Sewel, the Quaker historian. "In their Method of Marriage,"
he says, "they also depart from the common Way: For in the Old
Testament they find not that the Joyning of a Couple in Marriage
ever was the Office of a Priest, nor in the Gospel any Preacher
among Christians appointed thereto. Therefore it is their Custom,
that when any intend to enter into Marriage, they first having the
Consent of Parents or Guardians, acquaint the respective Mens and
Womens Meetings of their Intention, and after due Enquiry, all
Things appearing clear, they in Publick Meeting solemnly take each
other in Marriage, with a Promise of Love and Fidelity, and not to
leave one another before Death separates them. Of this a Certificate
is drawn, mentioning the Names and Distinctions of the Persons thus
joyned, which being first signed by themselves, those then that are
present sign as witnesses."[916]
[Footnote 912: APPLEGARTH, "Quakers in Pennsylvania," _J. H.
U.S._, X, 402.]
[Footnote 913: PENN, _Rise and Progress_ (Manchester, 1834), 25,
27; _cf._ APPLEGARTH, _op. cit._, 402.]
[Footnote 914: PENN, _Select Works_, V, 225: cited by APPLEGARTH,
_op. cit._, 401, 402.]
[Footnote 915: PENN, _op. cit._, V, 129: quoted by APPLEGARTH,
_op. cit._, 401.]
[Footnote 916: SEWEL, _History_ (London, 1722), 691.]
Commenting on this passage, Hallowell says: "This custom is still in
force, and with some unimportant verbal amendments, the phraseology
of early Friends is still preserved. After an appropriate silence,
the groom and bride rise, and taking each other by the hand, each in
turn repeats, 'In the presence of the Lord and this assembly, I take
thee to be my wife (or husband), promising, with Divine assistance
to be unto thee a loving and faithful husband (or wife) until death
shall separate us.' For religious solemnity and tender, touching
simplicity, the Quaker marriage ceremony has always challenged
comparison, and if anyone desires to _feel_ and realize the presence
of God in a public or private gathering, let him attend a Quaker
wedding."[917]
[Footnote 917: HALLOWELL, _op. cit._, 24, 25.]
These principles are revealed in the early legislation for
Pennsylvania; for, while believing it an ordinance of God, the
Friends held that the regulation and protection of marriage belong
to the civil authority. In the "Laws agreed upon in England" May
5, 1682, it is provided "that all marriages (not forbidden by the
law of God, as to nearness of blood and affinity ...) shall be
encouraged; but the parents or guardians shall be first consulted,
and the marriage shall be published before it be solemnized, and
it shall be solemnized by taking one another as husband and wife,
before credible witnesses, and a certificate of the whole, under
the hands of parents and witnesses, shall be brought to the proper
register of that county, and shall be registered in his office."[918]
[Footnote 918: "Laws Agreed upon in England": in LINN, _Charter
and Laws_, 101. _Cf._ NEAD'S _Historical Notes_: _ibid._, 472.
This law also provides for a "register of births, marriages,
burials, wills, and letters of administration, distinct from the
other registry."--_Ibid._, 101.]
This is a clear statement of the desires of the proprietor and
his associates. Accordingly in a law enacted by the assembly in
December, 1683, there is a provision regarding marriage only
differing in details from the declaration made beyond the sea. The
purpose of the act, as expressed in the preamble, is "to prevent
Clandestine, Loose, and unseemly proceedings" in the province and
its "territories." As before, marriage is to be encouraged; parental
consent is required; the parties must clear themselves "from all
other engagements assured by a Certificate from some Credible
persons where they have lived;" affix their "intentions of Marriage
on the Court, or Meeting-house Door of the County where they Dwell,
one Month before the solemnization thereof;" the marriage shall
be celebrated "by taking one another as husband and wife, before
Sufficient Witnesses;" and a "certificate of the whole under the
hands of parties and witnesses (at least twelve,) shall be brought
to the Register of the County" where the marriage takes place and be
with him filed for record. For neglect of the requirements of law
the parties are to be fined ten pounds, and the "person so joining
others in Marriage" twice that amount.[919] The "Great Law" of 1682,
punishes adultery severely, sanctions divorce for that offense,[920]
and contains the declaration, unique since old English days, that
"no person, be it either widower or widow, shall contract marriage,
much less marry, under one year after the decease of his wife or her
husband."[921]
[Footnote 919: LINN, _Charter and Laws_, 151. See the same
provision as to penalty (1684), _ibid._, 171, and (1693), 229.]
[Footnote 920: _Ibid._, 109; _cf._ 194.]
[Footnote 921: This is chap. 35 of the Great Law as given by
HAZARD, _Annals of Pa._, 626, 627; but it was not engrossed
and does not appear in LINN'S edition, which follows PATRICK
ROBINSON'S copy: NEAD, _Historical Notes_: in LINN, _op. cit._,
481 n. 3.]
This provision of 1682 is declared fundamental, and by it in fact
the main principles of the marriage law of Pennsylvania were
defined. Still one or two important changes were subsequently
made. Thus, in 1684, the certificate of their "clearness of all
engagements" is to be produced to the "religious society" to which
the persons "relate;" or to a justice of the peace of the county
where they live.[922] From this requirement it may doubtless be
inferred that either civil celebration before a magistrate or
religious celebration according to the rites of any denomination
was contemplated. Such is expressly declared to be the case by the
act of 1693, which runs in nearly the same words as the preceding,
except that now, after mentioning the twelve witnesses, it is
provided that at least one justice of the peace of the county must
be present at the solemnization; and provided also that "this Law
shall not extend to any who shall marry or be marryed by any person
authorized by the Church of England, so as they observe the methods
of publication, Licensing & Solemnization" required by English law,
"nor to any persons that marry in their own Society in the absence
of a Justice of the peace."[923] With the exception of a provision
in 1730, forbidding the justice in case of minors to subscribe as
witness without a certificate of parental consent,[924] the law of
1693, re-enacted in 1700 and again in 1701,[925] still governs the
nuptial celebration in Pennsylvania;[926] and previous to 1788 the
marriage law of Delaware was practically the same.[927]
[Footnote 922: LINN, _op. cit._, 171.]
[Footnote 923: _Ibid._, 229.]
[Footnote 924: _Cf._ COOK, _op. cit._, 358. This act of Feb. 14,
1729/30, is contained in _Laws of the Comm. of Pa._, 1700-1810,
I, 180, 181.]
[Footnote 925: BIOREN, _Laws_, I, 7, 34; LINN, _op. cit._, 229,
note; also _Laws of the Comm. of Pa._, 1700-1810, I, 21-23.]
[Footnote 926: PEPPER AND LEWIS, _Digest_ (1896), II, 2878 ff.]
[Footnote 927: See the act of 1700 in FRANKLIN AND HALL'S _Laws
of the Government of New Castle, Kent, and Sussex, upon Delaware_
(Philadelphia, 1752). It is especially provided that if any
servant marry without the consent of his or her master, he or she
shall, for such offense, serve for one year after the time of his
or her servitude by indenture has expired; and if any free person
marry a servant without consent of the master, he or she shall
pay to the master, if the servant is a man, 12 pounds, and if a
woman, 6 pounds, or one whole year's service; and the servant so
marrying shall serve an additional year. Adultery is punished
with a fine of 50 pounds or 21 lashes "well laid on." The penalty
for fornication is 3 pounds or 21 lashes: _ibid._, 74.]
It remains to give a few illustrations of administrative practice
and social custom. So far as it appears, the courts and magistrates
were not given much employment in domestic controversies. But
the provincial council seems to have exercised jurisdiction in
divorce and matrimonial causes. For example, in 1685 we learn that
"information being given to this board of y^e unlawfull Marriage of
R^d Noble, of y^e County of New Castle, Ordered that y^e Justices of
that County have notice given by y^e Secrt^{rs}, to Inspect the same
and give report thereof to this board."[928] Again, in 1703 Andrew
Bankson, one of the justices of Philadelphia county, on complaint of
the president, got himself into trouble "for irregularly marrying a
couple lately according to law, but against y^e Prohibitions of y^e
Parents." When called to account before the council, the justice
declared that he was "wholly ignorant of its being illegal, & was
heartily sorry for what was done, promising that wether he should
continue in Commission, or otherwise, this should be such a caution
to him as to prevent him of committing the like for y^e future, &
being severely checked was dismissed."[929]
[Footnote 928: _Col. Records of Pa._, I, 144.]
[Footnote 929: _Col. Records of Pa._ (Jan. 1703/4), II, 114, 115;
also quoted by APPLEGARTH, _Quakers in Pa._, 413, note.]
Celebration on the president's license in place of civil
notice similar to the plan existing in the royal provinces was
introduced as early as 1684 and the practice was continued to the
Revolution;[930] although marriages thus solemnized were looked
at askance by the Quakers as hardly orthodox,[931] and there are
the usual complaints of extortion.[932] The marriage certificate
was itself an elaborate document of historical interest, not only
because of the full statement therein of all the previous stages
in the transaction, but because in simple phrase we catch many a
glimpse of Quaker sentiment and teaching in regard to the nuptial
covenant. Sometimes even at the marriage of persons of humble
station, this instrument was signed by many persons; as in the
case of John Roades and Hannah Willcox, in 1692, whose wedding
certificate bears the names of fifty witnesses.[933]
[Footnote 930: _Pa. Col. Rec._, I, 121. "The Board then
took into their Consideration the alterations proper to be
made in the forms of Marriage Lycences."--_Ibid._, V, 69
(1747). Again, "Order'd, That the President sign all Marriage
Lycences."--_Ibid._, V, 71 (1747).]
[Footnote 931: See the passage from WATSON, _Annals of Phil._,
III, 434, below cited.]
[Footnote 932: On Sept. 29, 1755, in an address to the governor,
the assembly declares that "they [the assembly] are not, however,
chargeable with exacting Money from the people which by law they
had no right to exact, as we apprehend the Governor does in the
Fees for Marriage Licenses, by which many thousand Pounds have
been drawn from the Inhabitants of this Province. If this be not
dispensing with Law 'tis making Law, and we presume the Governor
alone has no more right to do the one than the Assembly alone the
other."--_Pa. Col. Rec._, VI, 633, 634. _Cf. ibid._, II, 455; IV,
175; and _Pa. Archives_ (1728), I, 235, 236, where the bishop of
London says that "some occasional perquisites that the Clergy
us'd to enjoy, are now cut off" in the matter of licenses.]
[Footnote 933: "Whereas John Roades of the County of Philadelphia
and Hannah Willcox daughter of Sarah Willcox of Schoolkil in the
County aforesaid having declared theire Intentione of Takeing
Each Other as Husband and Wife before several Men and Womens
Meetings of the People called Quakers whose Proceedings Therein
after deliberate Consideration Thereof and Consent of parties and
Relations concerned being approved by the said Meeting.
"AND alsoe the said John Roades and Sarah Willcox having
Published theire said Intentions in Writing according to the
Lawes of thiss province Whereby the said Law is fulfilled....
"Now these are to CERTIFIE all Persons whome it may concern that
for the full Determination of their Intentions this tenth day
of the Ninth Month in the Yeare One Thousand Six Hundred and
Ninety and two, they the said John Roades and Hannah Willcox in
an Assembly of the aforesaid people Mett together for that end
and purpose at the Dwelling House of Sarah Willcox aforesaid,
according to the Example of the primitive Christians Recorded
in the Scriptures of Truth did take each Other as Husband and
Wife in Manner following (viz) he the said John Roades takeing
the said Hannah Willcox by the Hand said friends in the feare of
the Lord and Before you his people I take this my friend Hannah
Willcox to be my wife promissing as the Lord shall Inable mee to
be unto her a faithfull and Loving Husband till Death shall part
us.... And the said Hannah Willcox in like Manner takeing the
said John Roades by the Hand said friends I Likewise do in the
fear of the Lord and in the presence of You his people take John
Roades to be my Husband promising to be unto him a faithfull and
Loving Wife till Death separate us.... AND the said John Roades
and Hannah Willcox as a farther Confirmation thereof did then and
there to these presents Set theire Hand. AND wee whose Names are
hereunto Subscribed are Witnesses of the Same the Day and Yeare
abovesaid."--In the _Pa. Mag. of Hist. and Biog._, XIII (1889),
112.
The custom of many witnesses signing the certificate survived to
recent times: WATSON, _Annals of Phil._, III, 434.]
In the first half of the eighteenth century the Pennsylvania
Friends, like the New England Puritans, were much worried over the
question of forbidden degrees. They were sorely disturbed concerning
marriage "between first cousins, or one person marrying two sisters,
or a man marrying his wife's first cousin, or justices of the peace
undertaking to marry people by virtue of licenses obtained to that
end, or marriages by members of the sect with others not of that
persuasion, in young couples 'keeping company' without the consent
of their parents. In 1725 and 1731, Chester and Burlington Monthly
Meetings sought the advice of Yearly Meeting upon these subjects,"
and decisions were subsequently rendered in the negative on every
point.[934]
[Footnote 934: WATSON, _op. cit._, III, 434.]
A register of marriages was kept through a custodian appointed by
the monthly meeting. From the records of the Philadelphia society,
which have been preserved "for the first thirty-two years of the
city," it appears that the first marriage solemnized was that of
Thomas Smith and Priscilla Allen in 1682; and they, says Watson,
"had before passed one Meeting in the Isle of Wight."[935] The
monthly meeting was a mighty power, and it kept a sharp eye on
all the social goings and comings of its members.[936] In fact,
the constant surveillance of the meeting over the daily life of
the individual reminds one of the way in which domestic conduct
and private business were dealt with by provincial law and town
ordinances in the New England colonies.[937] Courtship, espousal,
and marriage were looked after much in the same spirit. The Quaker
maid was lucky if she might receive her lover on the "stoop" in
presence of father and mother.[938] The Friends were not content
with the publicity given by posting the intention of marriage
as prescribed by the law. In addition, it was the duty of the
betrothed couple to ask their own banns, or to "pass the meeting,"
as it was called in solemn phrase. "In the intense silence of
the Quaker assembly the man arose from his seat on his side of
the meeting and said formally: 'I intend to take Dorcas Macy to
be my wife if the Lord permit.' Dorcas then arose on the woman's
side of the aisle or partition and said in turn: 'I intend to
take Jonathan Coffin to be my husband if the Lord permit.'[939] A
committee of 'weighty men and women' was then appointed to learn
'the conversation and clearness of the parties'--that is to learn
specially whether either were entangled in any other matrimonial
engagement. If the report of these inspectors proved favorable,
the 'continuance of the intention of marriage' was permitted,
they were 'liberated to proceed according to the devout order of
truth,' and the engaged pair were said to have 'passed meeting.'
But sometimes the committee of inspectors discovered obstacles, or
'disorderly walking,' or a previous flirtation. There still was
redress; the offender had to make a self-condemnation and apology
for his offense, in meeting, the next First day, in some such words
as these: 'Friends, I am very sorry for my transgression, and desire
mercy from God and forgiveness of all the people of God whom I have
offended.' The marriage was usually then permitted. If a sober young
Friend sought a wife in another town, his home meeting sent him off
fortified with a certificate enumerating his virtues. One such ran
partly thus:
'He is of sober and orderly behaviour; a frequenter of our Meetings
and in good Eunity with us; is clear of all Women hereaway on
account of Marriage so far as we can find; soe we recommend him to
your further Care in accomplishing their Intending Marriage.'"[940]
[Footnote 935: _Ibid._, I, 503; III, 434.]
[Footnote 936: The meeting sometimes took part in the civil
administration. Thus committees were frequently appointed by the
Philadelphia meeting to lay out roads; _ibid._, I, 305.]
[Footnote 937: _Cf._ HOWARD, _Local Const. Hist._, I, 53 ff.]
[Footnote 938: EARLE, "Among Friends," _New Eng. Mag._, Sept.,
1898, 20. "Courtship and marriage were closely hedged around.
Friends were enjoined against proposing marriage without the
consent of the meeting, against marrying any but a Friend,
against 'keeping unreasonable company' with any woman not a
Friend; against going to weddings of any who marry out of
meeting; against being 'married by a priest.' They were enjoined
also 'to be clear of one before being concerned with another,'
in an engagement of marriage. Widows and widowers were reminded
not to marry again too swiftly; 'not to let their minds out soon
to another husband or wife;' and kinship was to be carefully
regarded in thinking of wedding."--_Ibid._, 19, 20; _cf._ WATSON,
_Annals of Phil._, III, 434.]
[Footnote 939: It seems to have been customary, at least in some
meetings, to file the notice in writing for permanent record. The
form was as follows:
"We the subscribers, A. B., son of C., and D. B.; and F.
G., daughter of H., and I. G., purpose taking each other
in marriage, which we hereby offer for the approbation of
Friends."--APPLEGARTH, "Quakers in Pennsylvania," _J. H. U. S._,
X, 402.]
[Footnote 940: EARLE, "Among Friends," _New Eng. Mag._, Sept.,
1898, 20.]
Faithful Friends were enjoined by the meeting not to marry out of
the society; and so the worldly lover was sometimes forced to turn
Quaker or "lose his bride." On the other hand, says Earle, if a
Friend took a wife "out of meeting, he might by profoundly humbling
himself, and acknowledging his error, still be retained in the
society, though for a time not in good report. No Quaker groom could
express contrition for an offense in 'marrying out of meeting,'
nor indeed submit patiently to discipline for it without unmanly
disloyalty to his confiding consort.... One reads thus:
"'To the Monthly Meeting of friends now in meeting at So. Kingston.
I through Inattention to the Lights of Christ have Married a wife
out of the good order of Friends, neither was she a member of their
Society. Therefore now being Sincible that their Rules and orders
therein is Consistant with truth, and Seeing the Error of My Doings,
am sorry for my Transgression therein, and Desire friends to pass by
my offense, and still Continue their Care for me, desiring I may be
preserved to walk according to good order for time to come.'"[941]
[Footnote 941: _Ibid._, 21.]
As already suggested, the Pennsylvania Friends indulged in much
good cheer and sometimes in lavish display at the wedding time.
A description given us by the annalist Watson may serve for the
purpose of comparison between their nuptial festivals and those
practiced by their New England contemporaries. "The wedding
entertainments of olden times, he says, "were very expensive and
harassing to the wedded. The house of the parent would be filled
with company to dine; the same company would stay to tea and
to supper. For two days punch was dealt out in profusion. The
gentlemen saw the groom on the first floor, and then ascended to
the second floor, where they saw the bride." Every man present,
even though hundreds were invited, was privileged to kiss the bride
and to repeat the process each day while the feast lasted. These
were the same persons who had signed the marriage certificate in
the meeting. Sometimes the "married pair for two weeks saw large
tea parties at their home, having in attendance every night the
groomsman and bridesmaids." All this was not enough. "When these ...
entertainments were made, it was expected also that punch, cakes,
and meats should be sent out very generally in the neighborhood even
to those who were not visiters in the family."[942] In some towns
another writer tells us, "the custom was after a wedding to set a
table in front of the house and feast all passers-by. In the country
Quaker brides had an 'infare' or wedding treat, often so liberal as
to be a serious drag on the family that provided it." Moreover, it
should be noted that the great wedding festival had been preceded by
a similar feast or "treat" at the first "passing of the meeting,"
when the banns were published.[943]
[Footnote 942: WATSON, _Annals of Phil._, I, 178, 503.]
[Footnote 943: EARLE, _loc. cit._, 21. "In Philadelphia not
only did the friends of the bride and groom come and eat and
drink and all kiss the bride, but every evening for a week the
entire bridal party received friends, and again the bride ran a
gauntlet of kisses. When Mrs. Robert Erwin received her wedding
visitors, four hundred gentlemen came in two days, ate the
wedding cake, drank the wedding punch and, doubtless, all kissed
her."--_Ibid._, 21.]
Such excesses seem inconsistent with traditional Quaker sobriety.
One is astonished that they could have been tolerated so long.
But at length it was decided that "passing" in one meeting should
suffice.[944] To lessen the expenses the Philadelphia society
in 1716 "advised no extraordinary provision for weddings, and
the avoidance 'as much as may be of inviting those not under our
discipline.'"[945] So the old frivolities "were relegated to the
limbo of exploded vanities, and matrimonial alliances were attended
with no other ceremony than that of the parties taking each other by
the hand in public meeting and avowing their willingness to enter
the connubial state." The certificate was then entered in the record
book of the meeting and the celebration was complete.[946]
[Footnote 944: WATSON, _op. cit._, I, 504.]
[Footnote 945: EARLE, _loc. cit._]
[Footnote 946: APPLEGARTH, "Quakers in Pa.," _J. H. U. S._, X.
402, 403, who gives a discussion of Quaker weddings, following
WATSON. GORDON, _Hist. of Pa._, 70, 557, has a brief, concise
account of the marriage law of the province.]