Chapter XIII (1)

ECCLESIASTICAL RITES AND THE RISE OF CIVIL MARRIAGE IN THE SOUTHERN COLONIES

[BIBLIOGRAPHICAL NOTE XIII.--For Virginia the chief materials
have been drawn from Hening's _Statutes at Large_ (Richmond,
1809-23), and the laws comprised in _Acts of the Assembly_
(fol., Williamsburg, 1769). The third volume of O'Callaghan,
_Documents Rel. to the Col. History of New York_, has an
interesting memorial of the bishop of London written in 1677;
and there are some references to marriage in Strachey, _For
the Colony in Virginea Britannea: Lawes Diuine, Morall, and
Martiall_, being "Dale's Code" (London, 1612): in Force,
_Tracts_, III; Spotswood, _Letters_, constituting Vols. I and
II, new series, of the _Collections of the Va. Hist. Soc._
(Richmond, 1882-85); Beverley, _History of Virginia_ (reprint,
Richmond, 1855); and the acts of the assembly of 1619 contained
in the _Colonial Records of Virginia_ (Richmond, 1874). Cooke,
_Virginia_ (Boston, 1884), gives a curious proclamation of
Governor Wyatt for the regulation of courtship. In Vol. IV of
the _Va. Magazine of Hist. and Biog._ (Richmond, July, 1896)
there is a unique "Marriage Agreement" which throws some light
on the economic affairs of the provincial household; and further
illustrations of domestic and social customs may be found in
Goodwin, _The Colonial Cavalier_ (Boston, 1895); and Fiske, _Old
Virginia and Her Neighbors_ (Boston, 1898).

The principal sources for Maryland are Browne, _Archives of
Maryland_ (Baltimore, 1883-91); Bacon, _Laws of Maryland_
(fol., Annapolis, 1765); and, to supplement these, the _Laws of
Maryland made since 1763_ (fol., Annapolis, 1777); or the same
(fol., Annapolis, 1787). Streeter, "Papers Rel. to the Early
Hist. of Maryland," in _Md. Hist. Soc. Publications_ (Baltimore,
1876), publishes a record of the first wedding in the colony,
with the marriage license bond. The matrimonial doctrines of
the Labadists are discussed by James, "The Labadist Colony
in Maryland," in _J. H. U. S._, XVII (Baltimore, 1899); and
the character of the episcopal clergy is described by Browne,
_Maryland_ (Boston, 1884), and by Lodge, _Short History_ (New
York, 1882).

On this subject, as on most topics for the period, the extremely
valuable _Colonial Records of North Carolina_ (Raleigh, 1886-90)
are a mine of information; and they are enriched by Colonel
Saunders's "Prefatory Notes." The first matrimonial statute,
passed by the assembly of Albemarle in 1669, is also contained
in Chalmers, _Political Annals_: in Carroll, _Hist. Coll. of
South Carolina_ (New York, 1836); and in Hawks, _History of
North Carolina_ (Fayetteville, 1857-58), likewise of service on
other points. The various statutes of the eighteenth century
may be consulted in Iredell-Martin's _Public Acts of the Gen.
Assembly_ (Newbern, 1804); in Swan's _Revisal_ (ed. 1752); or
Davis's _Revisal_ (ed. 1773). Similar collections of laws for
South Carolina are Cooper and McCord's _Statutes at Large_
(Columbia, 1837-41), and Brevard's _Alphabetical Digest_
(Charleston, 1814)--both of which contain useful editorial
notes. Constitutional provisions are, of course, found in Poore,
_Charters_ (Washington, 1877). The works of Friedberg and the
_Atlantic_ article of Cook, elsewhere mentioned, are still of
service; and Weeks in his valuable monograph, "Church and State
in North Carolina," in _J. H. U. S._, XI (Baltimore, 1893), has
traced from the sources the struggle of the Presbyterian with
the Episcopalian government party for the privilege of using
their own rites in the celebration of marriage.]

I. THE RELIGIOUS CEREMONY AND LAY ADMINISTRATION IN VIRGINIA

Throughout the colonial period in Virginia the religious marriage ceremony, according to the rites of the Church of England, was prescribed by law. Indeed, it was not until 1794 that the lay celebration before a magistrate was permitted, and then only in certain exceptional cases. But in two important particulars, even in the earliest statutes, there is a remarkable advance upon the custom of the mother-country. In the first place, it is noteworthy that the administration of matrimonial law is gradually intrusted to the county officers and the local courts. Here, as in New England, there is a quickening of the forces of local self-government; and the lay tribunals gained important functions which in England belonged to the ecclesiastical courts. Again, the legislation of 1631-32 embodies the essential principles of the Hardwicke act of 1753. The institution of marriage begins to be protected and defined by careful statutory provisions and is no longer left to the perils of uncertain custom. Banns or license, parental consent, certificate, and registration are all soon introduced. Marriage becomes in effect a civil contract long before it is squarely acknowledged to be such by the law.

The brief act of 7 Charles I., 1632, provides that "no mynister shall celebrate matrimony betweene any persons without a facultie or lycense graunted by the Governor, except the baynes of matrimony have beene first published three severall Sundays or holydays in the time of devyne service in the parish churches where the sayd persons dwell, accordinge to the booke of common prayer." The minister is forbidden to "ioyne any persons soe licensed in marriage at any unreasonable tymes, but only betweene the howers of eight and twelve in the forenoone." If the marriage is after publication of banns without license, and the persons are under twenty-one years of age, the consent of parents is required before legal celebration.[704] It was also enacted that all marriages should be solemnized in church "except in case of necessity."[705]

[Footnote 704: HENING, _Statutes_, I, 156, 157. See also the act
of 8 Chas. I., expressed in about the same terms, _ibid._, 181.]

[Footnote 705: _Ibid._, 158, 183.]

The act of 1632 determined the broad outline of the marriage law of Virginia until after the Revolution. But two or three important modifications were made by subsequent legislation. Thus, an act of the Commonwealth period, 1657-58, enforces the provision that "ministers only shall celebrate marriages;" and significantly adds that they shall not do so without license or publication of banns "as formerly," under a penalty of "tenne thousand pounds of tobacco to ease the leavye of that county." No license is to be granted "without certificate vnder the hands of the parents, masters, or guardians of the parties to be married."[706] Again, the first act of the Restoration, 1661-62, requires license or "thrice publication according to the prescription of the rubric in the common prayer booke, which injoynes that if the persons to be marryed dwell in severall parishes the banes must be asked in both parishes, and that the curate of one parish shall not solemnize the matrimony untill he have a certificate from the curate of the other parish, that the banes have been there thrice published, and noe objection made" to the union. For violation of the law by the minister the penalty of 1657-58 is retained. But this statute goes farther and declares that "any pretended marriage _hereafter_ made by any other then a minister" shall be "reputed null, and the children borne out of such marriage of the parents" shall be "esteemed illegitimate and the parents suffer such punishment as by the laws prohibiting fornication ought to be inflicted."[707] This act of the Restoration, like that of the Duke of York, 1665, was probably invalid as transcending the requirements of the English common law.[708] In part it may have been intended to punish violation of the marriage law by dissenters, and its severity must have been keenly felt. At any rate, it was repealed in 1696 and replaced by an "act for the prevention of clandestine marriages." The preamble recites that "many great and grievous mischeifes have arisen and dayly doe arise by clandestine and secret marriages to the utter ruin of many heirs and heiresses," and that "the laws now in force ... do inflict too small a punishment for so heinous and great an offence." The minister guilty of violating the provision for banns or license, which is re-enacted, is to suffer imprisonment "for one whole year without bayle or mainprize and shall forfeitt and pay the sume of five hundred pounds currant money, one moyety thereof to our sovereign lord the king, ... and the other moyety to him or them that shall sue or informe for the same." No licenses are to be granted without a certificate from the clerk of the county court; and the certificate may not be issued by the clerk without the consent of the parent or guardian given in person or by writing attested by two witnesses, under penalty of a year's imprisonment and the payment of a fine of five hundred pounds current money. The clause of the preceding act making the issue of irregular marriages illegitimate is not repeated in this act or subsequently--an admission, seemingly, that the provision was originally null and void. But a female between the ages of twelve and sixteen contracting such a marriage forfeits during coverture her inheritance to the next of kin. After the death of her husband the inheritance reverts to her or those who should have claimed "in case this act had never been made."[709] This clause was retained in subsequent legislation.[710] By the act of 1705 still more careful provision is made for license and certificate; and if any minister, contrary to the spirit of the law, shall "go out of this her majesty's colony and dominion" and there join in matrimony "persons belonging to this country," without license or publication, he is to suffer the same penalty as if the offense had been done in the province.[711]

[Footnote 706: _Ibid._, 433. By the act of 1646 the penalty for
celebration without license or banns was 1,000 pounds of tobacco:
_ibid._, 332.]

[Footnote 707: _Ibid._, II, 49-51. By the law of 1788 the issue
of even "incestuous" marriages are made legitimate: _ibid._, XII,
689.]

[Footnote 708: See chap. xiv, i, _b_), below.]

[Footnote 709: HENING, _Statutes_, III, 149-51.]

[Footnote 710: See the act of 1705, _ibid._, 443, 444; and that
of 1748, _ibid._, VI, 83.]

[Footnote 711: _Ibid._, III, 441, 442.]

No relaxation in the illiberal rule requiring solemnization by a clergyman of the establishment was made until after the Revolution. First in 1780 the court of each county was authorized to license not more than four ministers of any religious society to solemnize marriages. In 1784 ministers of all denominations, except itinerants, were put on the same level in this regard. Already the preceding year laymen "in the western waters" had grudgingly been empowered to act, provided they make use of the ritual of the English church; but it was not until 1830 that it became possible, when the court saw fit, to appoint laymen for this purpose in all counties of the commonwealth; and this policy has survived to the present hour.[712]

[Footnote 712: See chap, xvi, where this legislation is treated
in detail.]

But if the Anglican clergy during the entire colonial period were given a monopoly of matrimonial business, it by no means follows that the dissenters, whose numbers were constantly gaining, ever tamely submitted. On the contrary, they often took the law into their own hands and had their marriages celebrated before their own ministers, or resorted to the local magistrates. This fact is made clear by the act of 1780 and subsequent statutes, by which marriages irregularly contracted are declared valid. Indeed, as early as 1677 we have evidence that dissenters refused to observe an unjust and probably invalid law. A memorial of the bishop of London in that year laments that in Virginia there is a great "defect in the execution of those two wholesome laws ... of the Assembly, the one prohibiting all marriages to be solemnized without a lawful minister imposing the punishment due for fornication on the parties & making their children illegitimate & so not capable of inheriting, the other prohibiting any persone the ministeriall Function without proveing himself to have first received Orders from some Bishop in England."[713]

[Footnote 713: O'CALLAGHAN, _Doc. Rel. to Col. Hist. of N. Y._,
III, 253.]

As already stated, the matrimonial laws of Virginia were from an early day locally administered, and mainly by the civil magistrate. The minister of every parish was required to keep a "booke wherein shall be written the day and yeare of every christeninge, wedding, and buriall;"[714] and annually on the first day of June it was the duty of the church wardens and ministers to make a return to the quarter court of all marriages solemnized during the year.[715] By the act of 1642 the report is to be made to the "commander of every monethly court;"[716] and in 1661-62 the duty of registration is laid upon the reader equally with the minister.[717] At length, in 1780, the officiating minister is required to transmit a certificate of every marriage solemnized by him to the clerk of the county court for record.[718] It was the minister's duty to publish the banns thrice, as required by law. But in consequence of the scarcity of clergymen of the established church, in some places it became practically impossible to comply with the statutes. So, in 1705, the clerk or reader in any parish having no minister was empowered to publish banns and, "if no objection be made," to grant a certificate thereof to the officiating minister.[719]

[Footnote 714: HENING, _Statutes_, I, 158, 182, 183 (1632).]

[Footnote 715: _Ibid._, 155.]

[Footnote 716: _Ibid._, 242. _Cf._ the act of the Commonwealth,
1657-58, _ibid._, 433.]

[Footnote 717: _Ibid._, II, 54.]

[Footnote 718: _Ibid._, X, 362.]

[Footnote 719: _Ibid._, III, 442. _Cf._ the act of 1748: _ibid._,
VI, 82.]

In Virginia, as we have seen, the governor's license instead of banns takes the place of the license of the English bishop. Licenses are not to be issued "without certificate under the hands of the parents, masters or guardians."[720] On account of the rapid growth of population, in which was an ever-increasing proportion of dissenters, and on account of the scarcity of ministers of the established church, the demand for licenses became so great that, in 1661, the clerks of the county courts were empowered to issue them. "Whereas," runs the statute, "many times lycences are granted and the persons are marryed out of the parishes, which lycences have been usually granted by the governor, whose knowledge of persons cannot possibly extend over the whole country," therefore persons desiring to be married by license are required to give bond to the clerk that there is no lawful impediment. The clerk is then to write the license and certify to the first justice in the commission for the county, or else to the person appointed for this business by the governor, who shall sign it.[721] Later the personal or written consent of the parent or guardian is required before the clerk may issue certificate.[722] But by the act of 1705 a bond is required in all cases, and parental consent only in the case of minors. The license is then issued by the clerk for the signature of the magistrate or the governor's deputy.[723]

[Footnote 720: Act of 1657-58: _ibid._, I, 433.]

[Footnote 721: HENING, _op. cit._, II, 54, 55; _cf._ 28
(1660-61). Only the clerk of the county in which the woman, her
parents, or guardians dwell may act: _ibid._, 281.]

[Footnote 722: _Ibid._, III, 150 (1696).]

[Footnote 723: _Ibid._, 442, 443.]

The granting of licenses was an important source of income for the governor, he receiving two hundred pounds of tobacco or twenty shillings for each license issued. Such, for example, was the law in the days of Beverley.[724] These fees were collected by the sheriff and turned over to the governor or secretary of the colony.[725] At the beginning of the Revolution, in order to provide for the expense of the militia, a tax of forty shillings was laid by the assembly upon each marriage license;[726] and in the next year the law granting license fees to the governor was repealed.[727] The legal fee allowed the minister was twenty shillings or two hundred pounds of tobacco for each marriage when celebrated by license, and five shillings or fifty pounds of tobacco when celebrated by banns.[728] In 1792, however, the uniform fee for a marriage was fixed at one dollar.[729]

[Footnote 724: BEVERLEY, _Hist. of Va._, 211, 212; also 1 _Mass.
Hist. Coll._, V, 136; and HENING, _op. cit._, III, 445; VI, 84,
85; II, 55.]

[Footnote 725: _Ibid._, II, 28.]

[Footnote 726: _Ibid._, IX, 66 (1775). The tax was raised to ten
pounds in 1780: _ibid._, X, 245.]

[Footnote 727: _Ibid._, 225.]

[Footnote 728: SPOTSWOOD, _Letters_, I, 128 n. 90; BEVERLEY,
_Hist. of Va._, 211; HENING, _op. cit._, III, 45; VI, 84, 85,
etc. Earlier the marriage fee was 2 shillings: _ibid._, I, 160,
184.]

[Footnote 729: _Acts of the Gen. Assembly_, 203.]

Marriages within the "levitical degrees prohibited by the laws of England" were forbidden;[730] and curious and stringent regulations concerning the secret marriage of indented servants were made. Thus in 1642-43, since "many great abuses & much detriment hath been found to arise both against the law of God and likewise to the service of manye masters of families in the collony" by secret marriage of servants, it is provided that a man servant contracting a secret marriage with a maid servant shall serve an additional year after the completion of the term of indenture; while a maid servant so offending is to double the time of her service. A freeman for secretly marrying an indented maid servant must double the value of her service and pay a fine of five hundred pounds of tobacco to the parish where the offense is committed.[731] The unjust discrimination against female servants was done away with in 1657-58.[732] A still more rigorous law was passed in 1661-62. The minister is prohibited under a penalty of ten thousand pounds of tobacco from either publishing the banns or celebrating the contract of marriage without a certificate of consent from the masters of both the persons, who are each to suffer the penalty of a year's extra service, as before; while the freeman clandestinely marrying a servant is to pay to the master fifteen hundred pounds of tobacco or a year's service.[733] But in 1748 for the offending parties the year's extra service is commuted at "five pounds current money."[734] It may be noted that in this Virginia legislation there is no provision like that of Plymouth for compelling the consent of stubborn masters.

[Footnote 730: HENING, _op. cit._, IV, 245 (1730). Marriage with
a deceased wife's sister is forbidden: _ibid._, XII, 689 (1788).]

[Footnote 731: _Ibid._, I, 252, 253.]

[Footnote 732: _Ibid._, 438. By this act either the man or the
woman suffers a penalty of one year's extra service.]

[Footnote 733: _Ibid._, II, 114. The penalty for a freeman was
made 1,000 pounds of tobacco in 1705: _ibid._, III, 444.]

[Footnote 734: _Ibid._, VI, 83, 84.]

The matrimonial history of Virginia begins with the nuptials of Ann Burras and John Laydon, celebrated in 1608.[735] A few years later, in Dale's code, appear the first marital regulations, though to what extent they were ever carried out must remain uncertain. Every minister is required to "keepe a faithful and true Record, or Church Booke, of all Christnings, Marriages, and deaths of such our people, as shall happen within their Fort, or Fortresse, Townes or Towne at any time, vpon the burthen of a neglectfull conscience, and vpon paine of losing their Entertainment."[736]

[Footnote 735: On this marriage see WINSOR, _Nar. and Crit.
Hist._, III, 132; HOLMES, _Annals_, I, 162; CAMPBELL, _Hist. of
Va._, 65.]

[Footnote 736: WILLIAM STRACHEY, _For the Colony in Virginea
Britannea, Lawes Diuine, Morall, and Martiall_, 11: in FORCE,
_Tracts_, III.]

The statutes of the Dominion are silent as to the celebration of pre-contract or espousals; and the penalties prescribed for adultery and fornication are in marked contrast with those of early New England. Persons were presented for these offenses by the church wardens at the annual visitations;[737] and the culprits were punished by fines or whipping.[738] Nor do the laws concern themselves with the regulation of courtship and "sinful dalliance" in New England style; although a proclamation of Governor Wyatt shows that his excellency was willing to supply the law's defect in this regard. He announces that "every minister should give notice in his church that what man _or woman_ soever should use any word or speech tending to a contract of marriage to two several persons at one time," such "as might entangle or _breed scruples_ in _their consciences_, should for such their offense, either undergo _corporal correction_, or be punished by fine or otherwise, according to _the quality of the person so offending_."[739]

[Footnote 737: HENING, _op. cit._, I, 240, 310, etc. The
following curious judgment was rendered by the governor and
council sitting as a court in 1627: "Upon the presentment of the
church-wardens of Stanley Hundred for suspicion of incontinency
betweene Henry Kinge and the wife of John Jackson, they lyinge
together in her husband's absence; it is thought fitt that the
sayd Kinge shall remove his habitation from her, and not to use
or frequent her company until her husband's return."--_Ibid._,
145, note. This may be compared with the following record of the
same court in 1631: "Because Edw. Grymes lay with Alice West he
gives security not to marry any woman till further order from the
Governor and Council."--_Ibid._, 551.]

[Footnote 738: _Ibid._, 433; III, 74, 139, 361; _Acts of the Gen.
Assembly_, 287. The first representative assembly, which met at
Jamestown in the summer of 1619, enacted, "Against excesse in
apparell that every man be cessed in the church for all publique
contributions, if he be unmarried according to his owne apparell,
if he be married according to his owne and his wives, or either
of their apparell."--_Col. Rec. of Va._ (ed. BANCROFT), 20.
The same assembly provided that "All Ministers in the Colony
shall once a year, namely in the moneth of Marche, bring to the
Secretary of Estate a true account of all Christenings, burials
and marriages, upon paine, if they faill, to be censured for
their negligence by the Governor and Counsell of Estate; likewise
where there be no ministers, that the comanders of the place doe
supply the same duty,"--_Ibid._, 26.]

[Footnote 739: Quoted by COOKE, _Virginia_, 149; also FISKE, _Old
Virginia and Her Neighbors_, I, 246, 247.]

Very little material has been collected regarding wedding customs in Virginia.[740] But this sketch may be concluded by reference to a curious "marriage agreement" which took place in Eastville, Northampton county, in 1714, and which throws light on domestic economy in the Old Dominion. Mr. John Custis and Frances, his wife, having fallen out, are inspired with hope and faith that they may renew "perfect love and friendship" by bond and covenant. First, therefore, it is duly stipulated that "the sd Frances shall return to the sd John all the money, Plate and other things what soever that she hath from him or removed out of the house upon oath and be obliged never to take away by herself or any other, anything of value from him again or run him in debt without his consent, nor sell, give away or dispose of anything of value out of the family without his consent, upon the condition that the plate and damaske linen" shall not be given away or otherwise disposed of by the said John during her life, but be delivered to his children "by the said Frances immediately after her decease." Next it is agreed that "Frances shall henceforth for bear to call him y^e sd John any vile names or give him any ill language, Neither shall he give her any," but they are "to live lovingly together and to behave themselves to each other as a good husband & good wife ought to doe. And that she shall not intermeddle with his affairs but that all business belonging to the husband's management shall be solely transacted by him, neither shall he intermeddle in her domestique affairs but that all business properly belonging to the management of the wife shall be solely transacted by her." Again, after settling his debts, John gives bond in the sum of one thousand pounds that he will keep "true and perfect accounts of all the profitts and disbursements of his whole Estate," present and future, in Virginia or the rest of the world, and that he will "produce the same accounts yearly if it be required upon oath. And that after all debts hereafter necessarily accrueing; for buying cloaths, tools and all the necessary [things] for the servants and the plantations, paying leavys and Quitt-rents & making necessary repairs of his whole estate and alsoe all other necessary charges acrewing for the use & benefitt of the estate which is to descend to the child of ye said Frances are deducted and paid he shall freely & without grudging allow one full moity ... of his whole estate" to her annually, "for clothing herself and the children with a reasonable proportion thereof and the remainder to be all laid out in the education of the children & for furnishing ... all things ... necessary for house keeping (that are to be brought from England) and Phisick," so long as she remains peacefully with him; and that he shall allow for her maintenance and that of the family "one bushell of wheat for every week and a sufficient quantity of Indian Corn and as much flessh of all kinds as the stocks of Cattle, Sheep and hoggs" will stand, with "sufficient quantity of Cyder and Brandy if so much be made on the plantation." But if Frances exceed her allowance, then it is to cease, and the "bond to be voyd." Out of her allowance Frances is to have "free liberty to keep a white servant if she shall think fitt;" also the usual colored servants, among whom are mentioned "Jenny," "Queen," and "Billy boy," who are to "tend the garden, goe of errands or with the coach, catch horses, and doe all other necessary works" both in and about the house. Moreover, with impulsive generosity, "ye sd John" binds himself, not only to allow Frances "fifteen pounds of wool and fifteen pounds of fine dresst flax or fifteen pounds of wool in lieu thereof every year to spin for any use in the family she shall think fit;" but even to suffer her "to give away twenty yards of Virginia cloth every Year to charitable uses _if soe much remain after the servants are clothed_." Finally, pending the marketing of the tobacco crop in England, which will take twelve months, Frances is graciously endowed by John with fifty pounds in money for support of herself and the family, if there should happen to be so much left when all the debts are paid.[741]

[Footnote 740: See, however, GOODWIN, _The Colonial Cavalier_, 45
ff.; and on social customs in general FISKE, _op. cit._, II, 174,
269.]

[Footnote 741: For this document see _The Virginia Mag. of Hist.
and Biog._, IV (July, 1896), 64-66.]

II. OPTIONAL CIVIL MARRIAGE AND THE RISE OF OBLIGATORY RELIGIOUS CELEBRATION IN MARYLAND

The earliest extant record of a marriage in Maryland, we are told, is that of William Edwin and Mary Whitehead, dated March 26, 1638. They were married by license, with security to the Lord Proprietor for the payment of "one thousand weight of merchantable tobacco, to be paid upon demand, in case the said William Edwin hath precontracted himself to any other woman than Mary Whitehead (spinster)," or in case there is any other lawful impediment to the marriage.[742] According to Bozman, many similar marriage-license bonds have been preserved.[743] The requirement of a "caution," in such cases, is enforced in the act of the assembly passed in 1640.[744] No marriage may be solemnized without banns "three days before published in some Chappell or other place of the County where publique instnts are used to be notified, or else afore oath mad & caution entered in the County Court that neither partie is apprentice or ward or precontracted or within the forbidden degrees of consanguinity or under goverm^t of parents or tutors and certificate of such oath & caution taken from the Judge or Register of the Court."[745]

[Footnote 742: STREETER, _Papers Rel. to the Early History of
Md._, 278, 279. This license may be compared with the bonds
required by Governor Andros in New England or by the New York
governors: see chaps, xii and xiv.]

[Footnote 743: In the "book in the land office, entitled, _Liber_
No. 1": BOZMAN, _Hist. of Maryland_, II, 604, who gives the
following example: "November 2d, 1638. This day came William
Lewis, planter, and made oath, that he is not precontracted
to any other woman than Ursula Gifford, and that there is no
impediment of consanguinity, affinity, or any other lawful
impediment to his knowledge, why he should not be married to the
said Ursula Gifford; and further he acknowledgeth himself to owe
unto the lord proprietor 1000 lb. tobacco in case there be any
precontract or other lawful impediment whatsoever as aforesaid,
either on the part of the said William Lewis or the said Ursula
Gifford."]

[Footnote 744: Among the thirty-six bills of the assembly of
February, 1639/40, which according to Bozman were engrossed for
a third reading, but not finally enacted into laws, was one
giving the so-called "county court" jurisdiction in "all causes
matrimonial, for as much as concerns the trial of covenants
and contracts, and the punishment of faults committed against
the same; and all offences of incest; attempting of another's
chastity; defamation; temerarious administration; detention of
legacies; clandestine marriage without banns thrice published or
bond entered in the court."--BOZMAN, _op. cit._, II, 106, 128,
129. Since at this time there was but one organized county, St.
Mary's, and this "county court" is made a tribunal of appeal
in all civil common-law cases, the body is really the supreme
provincial court, and it is given about the same jurisdiction
thereafter exercised by the latter.]

[Footnote 745: _Archives of Md.: Proceedings and Acts of the
General Assembly_, 1637-64, 97.]

By the act of 1658, passed during the Fendall government, the civil ceremony is made legal. Persons desiring to be married have liberty to apply either to a magistrate or to a minister; but in all cases, under severe penalty, a certificate of the publication of banns at the county court, or in some church, chapel, or meeting, is required.[746] Banns or a license from the governor or lieutenant-general is prescribed by the act of 1662; and, as before, the ceremony may be performed by either a minister or a magistrate, but in presence of two witnesses. Otherwise the marriage is void.[747] Thus far no form of words at the nuptials had been prescribed. Therefore in 1666, by a statute which was to remain in force three years, a modification of the English ritual was adopted.[748]

[Footnote 746: _Ibid._, 374. The fine for each of the parties
violating the statute is 1,000 pounds of tobacco; for the
magistrate or minister, 5,000 pounds, one half to the Lord
Proprietor, the other half to the informer. In 1650 it is
provided that adultery shall receive punishment as the court may
see fit, but "not extending to life or member": _ibid._, 286.
The penalty is the same in 1654: _ibid._, 344. In the last-named
year "the names of all that shall be borne, married or buried ...
shall be Exhibited to the Clarke of Every Court who shall Inst
Register thereof who shall be allowed five pounds of Tobacco as a
ffee due to him for every such Regist^r made and kept."--_Ibid._,
345.]

[Footnote 747: _Ibid._, 442, 443. This act is approved in 1664:
_ibid._, 537.]

[Footnote 748: "The man taking the woman by the R^t hand shall
say I A B doe take thee C D to my wedded wife To have and to
hould from this day forward for better for worse for Rich or for
Poore in sickness & in health till death us do part and thereto
I plight thee my troth which being finished lett her hand goe."
Similar words are to be used by the woman: _ibid._, 1664-76, 148.]

The general provisions of the law of 1662 are repeated in the act of 1676, except that the intention to allow complete liberty with respect to the form of celebration is more accented. Instead of a "minister or magistrate," as in the former act, any "priest, minister, pastor, or magistrate" may now conduct the celebration; and, as before, a marriage not so solemnized is declared null and void; though it is highly probable that such a requirement was invalid as being inconsistent with the English common law.[749]

[Footnote 749: _Ibid._, 1666-76, 522, 523.]

Up to this point, under the Catholic proprietors of the palatinate, absolute toleration had prevailed. Optional civil or ecclesiastical rites were sanctioned. But now arose a struggle for supremacy between the toleration party composed of Catholics and Quakers, who began to take strong root in the province, and a bigoted Protestant faction. "As happened twenty years before, a minority in the colony, in sympathy with the dominant party in England, wished to control in matters of religion, and, backed by the home government, renew a policy of intolerance in their own interests. Now, of course, this minority was composed of Protestants of the Established Church, instead of Puritans, as in the days of the Commonwealth."[750] The Episcopal minority triumphed with the establishment of the royal government in 1692, the Church of England was set up, and Catholics and dissenters were taxed for its support. A reactionary policy was begun with respect to the marriage celebration, and we have in this instance the only clear example of such retrogression that can be found in American history.[751] Only in Maryland was civil marriage entirely abrogated after it was once introduced.[752]

[Footnote 750: LODGE, _Short History_, 105. Elsewhere this writer
says the Episcopal church in Maryland was as "contemptible
an ecclesiastical organization as history can show." "It is
not easy to conceive the utter degradation of the mass of the
Maryland clergy. Secure in their houses and glebes, with a
tax settled by law, and collected by the sheriffs for their
benefit, they set decency and public opinion at defiance. They
hunted, raced horses, drank, gambled, and were the parasites and
boon companions of the wealthy planters. A common jest was the
question:

'Who is a monster of the first renown?
'A lettered sot, a drunkard in a gown.'

"They extorted marriage fees from the poor by breaking off in the
middle of the service, and refusing to continue until they were
paid."--_Ibid._, 123, 120-24; _cf._ BROWNE, _Maryland_, 184 ff.]

[Footnote 751: See, however, the case of North Carolina below,
where the original toleration of the early years was later
somewhat curtailed; and that of West Virginia.]

[Footnote 752: Compare COOK, "Mar. Cel. in the Colonies,"
_Atlantic_, LXI, 356, 357.]

The change did not take place all at once. A beginning was made by the law of 1692 which in part deprived members of the established church of the privilege of the civil celebration, but as yet did not interfere with the liberty of others. As under the preceding acts, either a minister or a magistrate may perform the ceremony; but now it is provided that he "shall joyn them in manner and forme as is sett down & expressed in the Liturgy of the Church of England w^{ch} being finished the Minister, Pastor, or Magistrate shall say I being hereunto by Law Authorized do pronounce you lawfull man and wife."[753]

[Footnote 753: _Archives of Md.: Procds. and Acts of the Gen.
Assem._, 1684-92, 450, 451.]

A more rigorous statute, affecting members of the establishment, appears in 1702. To "prevent all illegal and unlawful Marriages, not allowable by the Church of England," it is enacted that "no Minister, Priest or Magistrate shall presume to join together in Marriage, any persons whatsoever, contrary to the Table of Marriages, by this Act appointed to be set up in every Parish-Church within this Province," under penalty of five thousand pounds of tobacco for violation, and with a like punishment for each of the parties to such a marriage. To "prevent any Lay-Persons" from acting "where any Minister or Priest can be had, and to ascertain what shall be paid for Marriages," it is provided that "in every Parish where any Minister or Incumbent shall reside and have charge of souls therein, no Justice or Magistrate, being a Lay-Man, shall join any Persons in Marriage, under penalty of Five Thousand Pounds of Tobacco ... to our Sovereign Lord the King." The marriage fee is fixed at five shillings sterling, provided the persons to be married come to the parish church or chapel at time of divine service.[754]

[Footnote 754: BACON, _Laws of Maryland_, 1702, chap. i, §§ iv,
v.]

In 1717 was passed a more elaborate act, which remained in force throughout the colonial period, but which did not extend to "persons of different persuasions from the Church of England," who are still to enjoy their own "manner of proceedings" unaltered. "Persons who desire Marriage" are to "apply themselves to a Minister ... and shall cause due Publication to be made, according to the Rubrick of the Church of England, of their Intent to marry, at some Church or Chapel of Ease belonging to the Parish" wherein the woman resides. In "case there be no Minister, Curate or Reader in such Parish, an Advertisement or public Notification ... shall be set up at the Court-house Door of the County, where such Marriage shall be intended, there to remain for the Space of Three Weeks at the least." The clerk of the county court is required to make a certificate of publication, on presenting which any "qualified" minister is empowered to solemnize the marriage "according to the Liturgy of the Church of England." For proceeding without certificate of publication or the governor's license, the minister and each of the parties shall severally forfeit five thousand pounds of tobacco, as under the act of 1702; and for evasion of the law by getting married in any place outside the province, except where the woman is a resident, the man is to suffer the same penalty.[755] But it is important to note that neither the act of 1702 nor that of 1717 invalidates an irregular or clandestine marriage.

[Footnote 755: BACON, _op. cit._, 1717, chap. xv, §§ i-v. The fee
for marriage after license is "10 shillings and no more;" after
publication of banns it is 100 pounds of tobacco or 6 shillings
and 8 pence current money.]

Another statute of 1717 prescribes severe penalties for miscegenation. Any free negro or mulatto intermarrying with a white person shall become a slave for life, unless the free mulatto in question be "born of a white woman," when he is merely condemned to service for seven years. On the other hand, servitude for this same period is the punishment prescribed in case a white man or woman intermarry with a negro or mulatto.[756] Two years before a law provides that for joining any negro whatsoever or a mulatto slave to any white person the minister, pastor, or magistrate shall forfeit five thousand pounds of tobacco, one half to the use of free schools, and the other half to the informer.[757]

[Footnote 756: _Ibid._, chap. xiii, § v.]

[Footnote 757: _Ibid._, 1715, chap. xliv, § xxv.]

It is significant that throughout the whole colonial period all persons in Maryland, except members of the establishment, should have had unrestricted liberty to contract civil marriage, only to have that liberty taken away after the Revolution began. By the reactionary law of 1777, "the rites of marriage between any white persons, subjects or inhabitants of this State, shall not be celebrated by any person within this State, unless by ministers of the Church of England, ministers dissenting from that Church, or Romish priests, appointed or ordained according to the rites ... of their respective churches, or in such manner as hath been heretofore used and practiced in this State by the society of people called Quakers."[758] This monument of religious conservatism has survived to our own time.

[Footnote 758: KILTY, _Laws_, 1777, chap. 12, sec. 5; also _Laws
of Md._, 1763-87 (Annapolis, 1787), chap. xii, sec. v; _cf._
COOK, "Mar. Cel. in the Colonies," _Atlantic_, LXI, 357.]

No attempt is here made to describe wedding customs in the colonial era;[759] but the _Archives of Maryland_ contain a unique document, entitled "Articles of Courtship," which may serve as companion-piece and counterpart to the "Marriage Agreement" with which the domestic economy of Virginia, half a century later, has already been illustrated. In this instance Robert Harwood essays by formal indenture to compound a lawsuit and at the same time reclaim the reluctant affections of Elizabeth Gary, despite the fact that ungallantly he had sought to requite her fickleness through "slanders and unhandsome attempts." From the "Articles of agreement ... made the 24^{th} of September 1657 between Peter Sharpe of Putuxent County in th^e Province of Maryland Chirurgeon of the one p^{te,} and Robert Harwood of the Same County planter of the other parte," it appears that "there hath been a Suit Commenced by the Said Peter Sharpe before the Governour and Councell ... a gainst the abovenamed Robert Harwood on the behalf of Elizabeth Gary Daughter of Iudith now the wife of the Said Peter Sharpe, for reparation for Slanders, and undhandsome attempts charged to be acted and reported by the Said Robert Harwood to the great Detriment of the Said Elizabeth, and of the Said Peter Sharpe his wife and family;" and, on the other side, that Robert, "for his own Vindication, doth much insist upon a former promise of Marriage Grounded upon a Mutuall declared affection" between him and Elizabeth, "obtained after a long familiaritie and Sollicitation;" with which engagement the said Peter and Judith his wife "are much dissatisfied," but which they are nevertheless willing to see followed by wedlock, if Elizabeth really have the proper "affection and resolution of marriage to and with the Said Robert."

[Footnote 759: The Quakers were strong in Maryland and practiced
the same rites as their brothers elsewhere. The Labadists, who
had a colony in the province, thoroughly disliked the Friends,
though in some respects the doctrines of the two bodies were
strikingly alike. The Labadists were even more narrow than the
Pennsylvania Friends regarding intermarriage with gentiles. A
convert was expected to leave his unregenerate spouse behind
when he joined the society; see JAMES, "The Labadist Colony in
Maryland," _J. H. U. S._, XVII, 12 ff., 17 ff.]

Therefore it is duly stipulated that the insistent suitor shall have a fair chance to ensnare the coy damsel on neutral ground. "Imprimis the said Peter Sharpe doth for himself and his heirs ... agree that the Said Elizabeth Gary shall within fifteen dayes ... be conveyed to the house of m^r Thomas Davis at the Cliftes and there she is to remaine for the Space of six weekes," the said Robert "during all the Said Time" being given "full free and perfect Liberty (bringing one or more of the Neighbours with him) to have all freedom of discourse" with her, and "to use all faire and Lawfull Endeavours" to win her consent to marry him. That Robert's "nerve" and zeal were confidently relied upon is revealed by the proviso that "one or more of the Neighbours" are "alwayes to be present" with the lovers at the above specified courting, the "Said Rob^t Harwood paying for the Said Elizabeth Gary her Entertainment during her Stay at the Said Davis his house."

Next it is covenanted by Peter, "if it should by Gods permission, So happen" that Elizabeth shall "within the Said prefixed time give her consent," that he will not directly or indirectly, "neither by himself nor by any other person or persons," try to hinder the marriage, which "shall be permitted to take effect without obstruction." On his part Robert doth agree that, if in the time set he fail to gain Elizabeth's consent to "intermarry with him," he "will from thence forth totally and absolutely discharge the Said Elizabeth" from all former promises; and will "never after by himself, or any other person or persons, either by words Letters or any other way directly or indirectly Endeavour to gain" her affections, "or to procure any familiaritie of discourse with her or willingly to Come into her Company." But if "Robert and Elizabeth shall entermarry," the docile bridegroom "shall first enter into Good Caution and Securitie not to upbraid or deride or any other way Exercise, or use any bitherness" toward the bride, "for or in relation to any former passages between them;" and in case of "breach of this his Engagement he shall from thenceforth be absolutely disabled and made uncapable of Entermedling with or disposing of any part of the Estate now belonging to the Said Elizabeth, or any part of the produce thereof."

Finally it is stipulated that "in the Cause forme^rly depending and now to be withdrawen" Robert is to "beare his own Charge," as well as those "on th^e plaintiffes behalf," if the marriage take place, otherwise Peter is to pay his own costs. Thereupon the instrument is "signed, sealed and delivered in the presence of Thomas Turner Clerk," under date of September 26, 1657.[760]

[Footnote 760: _Archives of Md.: Judicial and Testamentary
Business of the Provincial Court_, 1649/50-57, 531-33.]

III. THE STRUGGLE FOR CIVIL MARRIAGE AND FREE RELIGIOUS CELEBRATION IN NORTH CAROLINA

From the outset the colony of North Carolina had a population of diverse nationalities and various religious creeds. The "Fundamental Constitutions" of 1669, granted by the Earl of Clarendon and his colleagues, provided, hesitatingly, for the establishment of the English church;[761] but it was not until after the beginning of the eighteenth century that an attempt was made to enforce the Episcopal system by statute. In the meantime, the regular clergy were few, and dissenters came in large numbers; for lest "Jews, heathens, and other dissenters from the purity of the Christian religion may be scared and kept at a distance," the Constitutions had inconsistently guaranteed a qualified religious freedom.[762] Among the sects represented were Protestants from Germany, Huguenots from France, and Independents from New England. Later the Quakers and Presbyterians became relatively strong; and they stoutly resented the bigoted tyranny of the Episcopal minority, which was sustained by the government by whom the matrimonial legislation was shaped. The intolerance was the harder to bear because of the low character of the English clergy, some of whom in vice and dissipation being worthy rivals of the brawling and cock-fighting parsons of Maryland and Virginia. To this class belonged Rev. Daniel Brett, the first Episcopal clergyman who came to the colony; and Rev. John Boyd, notorious for open drunkenness.[763]

[Footnote 761: "Fundamental Constitutions," c. 96: POORE,
_Charters_, II, 1406. The charter of 1663 allows the proprietors
to use their discretion in dispensing from the liturgy
and ceremonies of the English church: _ibid._, 1389. The
supplementary charter of 1665 declares that no one shall be "in
any way molested, punished, disquieted or called in question,
for any differences in opinion, or practice in matter of
religious concernments, who do not actually disturb the civil
peace." All are to enjoy "judgment and conscience in matter of
religion."--_Ibid._, 1397.]

[Footnote 762: After thus expressing the motive for toleration,
the Constitutions curiously provide that any seven or more
persons agreeing in any religion may form themselves into a
"church or profession;" and no person over seventeen years of age
"shall have any benefit or protection of the law, or be capable
of any place of profit or honor, who is not a member" of such a
church or profession, "having his name recorded in some one, and
but one religious record at once."--_Ibid._, 1407.]

[Footnote 763: _N. C. Col. Records_, IV, 264; HAWKS, _Hist. of
N. C._, II, 341. For Virginia see LODGE, _Short History_, 60 ff.
_Cf._ HOWARD, _Local Const. History_, I, 133, 134.]

During nearly half a century following the charter[764] there was in practice full toleration as to the form of the marriage celebration. The very first statute of the "Assembly of Albemarle," the first legislative body after the "Fundamental Constitutions" went into effect, provides in characteristic American style for the solemnization of marriage. "Forasmuch," runs this act, "as there may be divers people that are minded to be joyned together in the holy state of Wedlock and for that there is noe minister as yet in this County by whom the said Partyes may be joyned in Wedlock according to the rites and customs of our native Country the Kingdome of England;" therefore, that "none may be hindred from this soe necessary a worke for the preservation of Mankind and settlement of this County it is enacted And be it enacted by the Pallatine and Lords Proprietors of Carolina by and with the advice and consent of the Present Grand Assembly ... that any two persons to be joyned together in the holy state of matrimony takeing three or fower of their Neighbors along with them and repairing to the Governor or any one of the Councell before him declaring that they doe joyne together in the holy state of Wedlock And doe accept one the other for man and wife; and the said Governor or Councellor before whom such act is performed giveing certificate thereof and the said certificate being registered in the Secretary's Office or by the Register of the Precinct or in such other Office as shall hereafter for that use be provided. It shall be deemed a Lawfull Marriage and Partyes violating this Marriage shall be punishable as if they had binn marryed by a minister according to the rites and customs of England."[765]

[Footnote 764: Paragraphs 45 and 84 of the Fundamental
Constitutions (1669) provide for matrimonial jurisdiction and for
registration. Paragraph 87 declares that "no marriage shall be
lawful, whatever contract and ceremony they have used, till both
parties mutually own it before the register of the place where
they were married, and he register it, with the names of the
father and mother of each party."--POORE, _Charters_, II, 1402,
1406. Compare HEWITT, _An Hist. Account of the Rise and Progress
of South Carolina and Georgia_ (London, 1779), 321-47.]

[Footnote 765: _N. C. Col. Rec._, I, 184; also in HAWKS, _Hist.
of N. C._, II, 152, 153; and CARROLL, _Hist. Coll. of S. C._, II.]

This timely act was ratified by the Proprietors, January 20, 1669/70; and there can be no doubt of its validity. It is a straightforward and sensible measure, such as the pioneer, forced to resort to self-help, has so often shown himself capable of throughout the history of the Anglo-Saxon race. Its clear expression, good English, and respectable spelling speak well for the training and intelligence of the first settlers of Carolina; although the act has been sneered at and ridiculed by some people who ought to know better.[766]

[Footnote 766: Thus DOYLE, _Eng. Colonies_, I, 453, says the
acts of the assembly of 1669/70, of which the marriage act is
one, tended to make North Carolina "an Alsatia for ready and
profligate adventurers." So also GEORGE CHALMERS, _Political
Annals of the United Provinces_: in CARROLL, _Hist. Coll. of S.
C._, II, 291, concludes, "From this remarkable law we may judge
of their state of religion and morals." On the other hand, HAWKS,
_Hist. of N. C._, II, 152, 153, says of this statute: "It has
given rise to some abortive efforts at wit, which, if genuine,
would, we think, be sadly misplaced; and has, besides, sorely
troubled the over-sensitive and camel-swallowers who thank God
they are 'not as other men are;'" justly adding: "It is difficult
to conjecture any other course, which under the circumstances,
they could reasonably have adopted. The very fact that any plan
was devised to afford a legal and decent mode of entering into
the marriage contract, certainly implies that the moral sense of
the community revolted at general concubinage." _Cf._ also WEEKS,
_Church and State in N. C._: in _J. H. U. S._, XI, 244.]

From the beginning the Quakers seem to have been allowed to solemnize marriage in their own way; and this they contrived to do even after the English forms were prescribed by statute. According to Hawks, the "Friends were entitled, by express grant from the proprietors, thus to adhere to their peculiar usage; for they had declared to them as an inducement to emigrate, 'there is full and free liberty of conscience granted to all, so that no man is to be molested or called in question for matters of religious concern; but every one to be obedient to the civil government, worshipping God after his own way.'"[767] The records of the monthly meeting in North Carolina reveal the Friends using the same simple rites as elsewhere in the colonies. The betrothed man and woman proclaimed their own banns, "passing the meeting" twice as in Pennsylvania. Thus at a monthly meeting of Friends "in Pasquotank y^e 11^{th} of y^e first month 1707/8," held "as their manner is, to Inspect into y^e affairs of y^e Church," Zachariah Nixon and Elizabeth Symons appear the "second time & declare their Intentions of taking Each Other in Marriage and being approved by the said meeting are left to their liberty to take each other."[768]

[Footnote 767: HAWKS, _op. cit._, II, 154. These are nearly the
words of the charter of 1665: POORE, _op. cit._, II, 1397. _Cf._
also WEEKS, _op. cit._, 244, 245.]