Chapter XIII (2)

[Footnote 768: "Records of the Friends Monthly Meeting in
Pasquotank Precinct": in _N. C. Col. Rec._, I, 688. There is a
similar entry in 1711: _ibid._, 813. Two years earlier we find
a "precinct" court--about the only part of the machinery of the
"Fundamental Constitutions" which was ever made use of (HOWARD,
_Local Const. Hist._, I, 129)--sentencing for adultery: "Ordered
that Ellinor Mearle be punished by receiving Ten Stripes on her
Back well laid & pay cost also Ex[=o]."--Records of Perquiman's
Precinct Court, in _N. C. Col. Rec._, I, 626 (1705).]

It appears, then, that civil marriage, side by side with religious marriage according to the rites of each denomination, was lawful until 1715. By the so-called "Vestries Act" of that year, for the establishment of the Church of England in the province, magistrates are authorized to join people in wedlock only in "such parishes where no minister shall be resident." If any layman, except in such parishes, presume to act, he shall be fined five pounds, one-half to the parish for the use of the poor, and one-half to the resident minister or incumbent. After license or banns no marriage may be lawfully celebrated by minister, priest, or magistrate contrary to the table of marriages, which the church wardens and vestry are to have set up in every church or chapel.[769] But there is no invalidating clause for neglect. Already in 1704 some provision had been made by statute for registration.[770] Now it is enacted that the "inhabitants and freemen of each precinct" by majority vote are to elect three freeholders, from whom the governor or commander in chief is to choose one as register of deeds; and until there be a clerk of the parish church, such register is to record betrothals and marriages. Every "master or mistress of a family who shall neglect to register the birth or death of any person born or dying within his or her house or plantation; and every married man who shall neglect to remit to the said register a certificate of his marriage and cause the same to be registered, for longer than one month," must pay a fine of one shilling a month for the period of delay, provided the whole penalty do not exceed twenty shillings.[771]

[Footnote 769: _N. C. Col. Rec._, II, 212, 213.]

[Footnote 770: _Ibid._, 877, 878.]

[Footnote 771: IREDELL-MARTIN, _Public Acts of the Assembly_
(Newbern, 1804), I, 18, 19.]

The act of 1715 fixes the minister's marriage fee at five shillings; and to retain a monopoly of this perquisite at all hazards was the unswerving purpose of the Episcopal clergy throughout the colonial period. The governors, too, found the stipend for issuing marriage licenses a lucrative source of revenue. In 1730 the royal instructions to Governor Burrington declare, "to the end Ecclesiastical Jurisdiction of the Bishop of London may take place in that our Province so far as may be We do think fit that you give all countenance & encouragement to the exercise of the same excepting only the collating the Benefices Granting licenses for Marriages and probate of Wills which we have reserved to you our Governor and to the Commander in chief of our said Province for the time being as far as by law we may."[772] The license fee was fixed at ten shillings.[773]

[Footnote 772: _N. C. Col. Rec._, III, 110, 111.]

[Footnote 773: _Ibid._, 160. According to COOK, "Colonel Byrd,
writing about 1728, says that in North Carolina, 'for want of men
in holy orders, justices of the peace and members of the council
were empowered to celebrate marriage.'"--_Op. cit._, 355, 356.]

A new law was passed in 1741, which, though it does not expressly forbid dissenting ministers from performing the marriage ceremony, at any rate, as Weeks insists, makes "dissent burdensome and humiliating," puts a "premium on conformity," and constitutes "religious persecution."[774] "To prevent clandestine marriages" it is enacted "that every Clergyman of the Church of England, or for want of such, any lawful magistrate, within this Government" may join persons in the "holy state of matrimony." By implication this provision widens the area within which a magistrate is empowered to act, for by the law of 1715 a layman may not perform the ceremony in any parish where a "minister or priest" resides, thus probably including dissenters, who in the present case do not count. The next clause gives still further chances for lay celebration; for, while a justice of the peace may not join in marriage "any persons whatsoever in any parish where a minister shall reside and have a cure," still by implication he may do so in any parish in the colony by obtaining permission from the minister, and, of course, in all cases turning over to said minister the legally prescribed fee.[775] Another provision of this statute may perhaps justify the inference that dissenting ministers are not absolutely excluded. To prevent "that abominable mixture and spurious issue" which would follow, it is enacted, "That if any white man or woman, being free, shall intermarry with an indian, negro, mustee, or mulatto man or woman, or any person of mixt blood, to the third generation, bond or free, he shall, by judgment of the county court, forfeit and pay the sum of fifty pounds, proclamation money, to the use of the parish;" and any persons, including dissenting ministers, are forbidden to solemnize such marriages, under the same penalty.[776] The marriage of servants indented or by custom is also dealt with. It is provided "That if any minister or reader shall willingly publish, or cause or suffer to be published, the banns of matrimony between any servants, or between a free person and a servant; or if any minister or justice of the peace shall willingly celebrate the rites of matrimony between any such, without a certificate from the master or mistress of such servant, that it is done by their consent; he shall forfeit and pay five pounds, proclamation money, to the use of the master or owner." Every servant so married without consent shall serve the master or mistress "one whole year, after the time of service by indenture or custom is expired."[777]

[Footnote 774: WEEKS, _Church and State_, 244, 245.]

[Footnote 775: The justice shall not act in any parish where a
minister resides and has cure, "without permission first had
and obtained from such Minister under penalty of five pounds
proclamation money, to the use of the minister."--IREDELL-MARTIN,
_Public Acts_, I, 45; for the fee see _ibid._, 46.]

[Footnote 776: _Ibid._, 46; SWAN'S _Revisal_ (ed. 1752), 127-30;
_cf._ WEEKS, _op. cit._, 244, 245.]

[Footnote 777: IREDELL-MARTIN, _op. cit._, I, 45.]

Regarding the scope and intent of the law of 1741, Weeks remarks that "in this, as in the former cases, the Assembly did not undertake to give" the right of celebrating marriages to the established clergy, "but simply recognized it as resting on prescription. But they might have granted this right to Dissenters as they proposed doing in the act of 1770. The Quakers seem to have been allowed to marry after their own fashion from the first," and why not grant the same privilege "to Presbyterians and Baptists"? Instead of taking such a just and tolerant course, "their preachers were debarred from performing the ceremony even among their own flocks. They were thus put to grave inconvenience, and the law of 1766 recites that the Presbyterians refused to consider themselves as bound by its provisions." Surely there was good reason to take this position, considering the previous law and custom of the colony. The Episcopalian government party seems to have been conscious of this fact, as appears from the discussion of the clergy bill of 1762. "The governor and council," continues Weeks, "tried to force on the lower house a clause by which it was enacted that 'no Dissenting minister of any denomination whatever shall presume on any pretence to Marry any person, under the penalty of forfeiting £50.' The law does not seem to have been successful, but it is a clear statement of the tendency of the act of 1741, and shows the position of a certain element in the province."[778]

[Footnote 778: WEEKS, _op. cit._, 245; _cf._ _N. C. Col. Rec._,
VI, 881, 952, 954.]

The assembly rested from further matrimonial legislation until the passage of the act of 1766, already mentioned, which gave some relief to the Presbyterians, but not to any other dissenting body. Aside from the greed for the marriage fees, the principal motive leading to its passage was not justice, as will presently appear, but a desire to reward and strengthen the sympathy of the Presbyterians for the government in its struggle with the Regulators. The preamble of the act recites that because "the presbyterian, or dissenting clergy, conceiving themselves not included in the restrictions mentioned" in the act of 1741, have "joined many persons together in holy matrimony, without either licence or publication; whereby the payment of the just and legal fees to the governor on such occasions, has been eluded, and the validity of marriages may be endangered:" therefore all such marriages now celebrated or to be celebrated before the first day of January next are declared valid. Henceforth no minister of the Church of England or justice of the peace may celebrate marriage without a certificate of three times publication of banns, or a license from the governor or the commander in chief, "who is authorized hereby to grant the same, on certificate of the county court" of the person's "having taken and filed ... the usual bond," under the "penalty of fifty pounds, proclamation money; with condition that there is no lawful cause to obstruct the marriage for which such license is given." Presbyterian missionaries or itinerants in the western parishes, as well as all other dissenters in the province, are in effect excluded by the provision that after January 1 any Presbyterian minister regularly called to any congregation in this province may celebrate matrimony "in their usual and accustomed manner." But in all cases a license from the governor is requisite; and the marriage fee, it is carefully added, is always reserved to the clergyman of the Church of England having cure of any parish, no matter whether a dissenting minister or a justice performs the ceremony. Furthermore, a marriage celebrated without a license is declared "illegal and void."[779]

[Footnote 779: IREDELL-MARTIN, _op. cit._, I, 157, 158; DAVIS,
_Revisal_ (ed. 1773), 350.

"It was proposed to limit this law to three years, which was not
done. It provided for no Dissenters _except_ Presbyterians. But
it seems that the original intention was to cover the case of
all Dissenters. The second section probably read 'dissenting _or
of the dissenting Presbyterian clergy_.' The clause in italics
was stricken out and the phrase 'dissenting or Presbyterian
clergy' took its place, thus excluding all Dissenters except
Presbyterians."--WEEKS, _op. cit._, 245 n. 2; _cf._ _N. C. Col.
Rec._, VII, 411, 329, 331.]

Governor Tryon, who approved the act of 1766, was not overfond of the Presbyterians as such, and all other "sectaries" he looked upon "as enemies to society and a scandal to common sense."[780] The next year, writing to the Earl of Shelburne, he says the law of 1766 "has more objects in view than appears on the sight of it." The Marriage Act of "1741 to which it has relation entitles every Justice of the Peace to marry by licence. In abuse of this privilege many Justices performed the marriage ceremony without licence ... and took the fee allowed to the Governor, most generally dividing the spoil between the Justice and the Clerk of the county who gave the bond and certificate. Another tendency of this Act was to prevent the frequent abuses of rascally fellows who travelled thro' the province under the title of ministers of the Presbyterian and other sectaries and who being beggars in conscience as well as in circumstances sought all opportunities to perform that sacred office to the great prejudice of the country. It is also to be observed most of the justices in the back or western settlements are Presbyterians, who by the Act of 1741 had the power to marry by licence: Therefore upon the whole I do not conceive the allowing the Presbyterian ministers the privilege to marry in their usual and accustomed manner can be of any real prejudice to the established Church especially as the marriage fee is reserved to the ministers of the parish; and the licence to be granted under the hand and seal of the Governor, this last provision prevents the former abuses in the application of the fee collected. The Act also provides a summary and effectual method for the Governor to oblige the county court clerks to account for the fees due to him: a recovery tho' an equitable one, was never yet secured but in temporary laws."[781]

[Footnote 780: SAUNDERS, "Prefatory Notes," _N. C. Col. Rec._,
VIII, xlv.]

[Footnote 781: "Letter from Governor Tryon to Earl of Shelburne,
Brunswick, 31st January 1767," _N. C. Col. Rec._, VII, 432, 433.
On this act see also SAUNDERS, "Prefatory Notes," _ibid._, VIII,
xlv.]

The Presbyterians were by no means satisfied with the reward their loyalty had received. Especially did the "rascally" missionaries of the western frontiers feel themselves abused. Petitions protesting in strong terms against the act were presented by the clergy. Those of Mecklenburg, for instance, regard themselves as "highly injured and aggrieved" by the statute, "the preamble whereof scandalizes the Presbyterian clergy."[782] The petitioners of Tryon county say they are "much aggrieved," the law depriving them of a privilege "which a million of our fellow-professors in America now enjoy ... neither was it ever taken from Dissenters in America until it was taken from us by this act."[783] The "manly protest from the inhabitants of Orange and Rowan claims that the right of 'dissenting ministers' to perform the marriage ceremony after their own fashion was a 'priviledge they were debarred of in no other part of his majesty's Dominions; and as we humbly conceive, a priviledge they stand entitled to, by the Act of Toleration, and in fine, a priviledge granted even to the very Catholics in Ireland and the Protestants in France.'"[784]

[Footnote 782: See the petition for repeal _ibid._, X, 1015;
_cf._ WEEKS, _op. cit._, 246, 247, who has collected these
passages.]

[Footnote 783: _N. C. Col. Rec._, VIII, 80_b_. There was also a
petition from the people of Anson: _ibid._, 78.]

[Footnote 784: _Ibid._, 82; WEEKS, _op. cit._, 246, 247. This
petition was presented to Tryon by "Herman Husband the leader of
the Regulators": WEEKS, _op. cit._, 247, 248, referring to SWAIN,
"War of Regulation," _N. C. University Mag._, IX (1859-60), 339.]

The vigorous resistance aroused by the unjust law of 1766, and the continued services rendered by the Presbyterian pastors to the governor in his struggle with the Regulators had the desired result. In December, 1770, a legislative committee brought in a report recommending a new law. "Upon perusing the several Acts of Assembly concerning the solemnization of the rites[785] of matrimony and considering the great number of Presbyterian Inhabitants settled in the western Frontier Counties in this Province and the difficulties and expenses they must necessarily be under," the committee "Can't but think that the restraints and penalties in the Said Acts are in some measure hard and oppressive and that they have a just and reasonable claim to the attention of the Legislative body for granting to them a religious toleration in that particular, and that it is well becoming the Catholic and liberal principles of the Members of the House Representatives of this Colony, to appoint a Committee to prepare and bring in a Bill for impowering all regular Presbyterian Ministers in this Province to Solemnize the rites of Marriage, according to the Westminster confession of Faith, by publication in their religious Assemblies, where the parties are best known, and by License, without any Tax or Fees to the Clergy of the Establishment."[786] Such a bill was accordingly brought in and passed with the governor's approval, "but with a clause suspending its operation until the pleasure of the King should be known."[787]

[Footnote 785: It is "rights" in the text, but this appears to be
a "slip," for lower down the proper spelling is used.]

[Footnote 786: _N. C. Col. Rec._, VIII, 322 (Dec. 17, 1770).]

[Footnote 787: SAUNDERS, "Prefatory Notes," _N. C. Col, Rec._,
VIII, xlv; also _ibid._, VIII, 297, 300; IX, 7.]

No relief was offered by this act to the other dissenters; and the report of Governor Tryon shows that he felt himself under special obligations to the Presbyterians. According to Saunders, he said that the act was an "indulgence" to which they were well "entitled because of the attachment they had shown to the Government;" and it appears, aside from the "merits of the case," that something was due from Tryon to the Presbyterians "for the support their pastors gave him in 1768." Certainly "the letters in which all the Presbyterian pastors in the Province united to praise Tryon and denounce the Regulators were as strong in language as they were opportune in point of time. Indeed, old Parson Micklejohn of the Established Church was not more pronounced in enforcing the duty of obedience to 'the powers that be' as being of divine origin than the Presbytarian pastors were. The Governor in his report put him" and these ministers "on the same footing in this regard."[788]

[Footnote 788: SAUNDERS, _op. cit._, xlv.]

The act had passed the house and received the governor's signature; but the battle was not yet won. It is perhaps not surprising that the ear of George III., in the days immediately following the Stamp Act, should have inclined more to the desires[789] of the loyalist clergy of the English church than to the complaints of "sectaries" in a rebellious province. Accordingly, the marriage act was disallowed by his Majesty; and the law of 1766 remained in force until 1778, two years after the constitution of 1776 had brought the establishment to an end.[790]

[Footnote 789: "It is interesting to note with what satanic
disregard of the rights of man the leaders in the Establishment
can write. Says Reed [minister in Craven County]: 'The bill
was pushed by the dissenting interest, and [because of] the
dangerous situation of the province from such formidable number
of malcontents [Regulators], the governor acted with the greatest
prudence in passing the bill with a suspending clause.... Should
this act receive the royal assent it would be a fatal stroke
to the Church of England, but as the insurrection is entirely
quelled, I flatter myself with hopes that the act will meet with
a repulse.'"--WEEKS, _op. cit._, 247; _N. C. Col. Rec._, IX,
6. Later the Board of Trade wrote that the law was in effect
a "bounty to the tolerated religion at the expense of the
established," and petitioned for its disallowance: _N. C. Col.
Rec._, IX, 7, 245, 251, 284, 366.]

[Footnote 790: SAUNDERS, _op. cit._, xlv, errs in saying that the
law of 1766 was repealed soon after its passage.]

IV. EPISCOPAL RITES BY LAW AND FREE CIVIL OR RELIGIOUS CELEBRATION BY CUSTOM IN SOUTH CAROLINA AND GEORGIA

The history of marriage in South Carolina runs much the same course as in the northern province; except that we hear of no struggle by the privileged establishment to enforce the statutes eventually enacted in its behalf. For a time, under the same charters, the two colonies were ruled in the same way by the proprietors; and in South Carolina for over three decades there was apparently full toleration with respect to matrimonial rites. That such was the case near the close of the seventeenth century may be inferred from the registration act of 1696. It is required that "every man which hereafter shall be married according to the rubrick of the Church of England, or by any other contract or ceremony," shall record his marriage in the register's office within thirty days after celebration, or else forfeit "one royall" for neglect. But at the time of registration he must produce "a certificate from under the hand of the parson, minister, magistrate, or otherwise," attested by "six persons at least met and congregated at such religious meateing" where the ceremony took place. For neglecting to file the certificate the register forfeits his office.[791]

[Footnote 791: COOPER, _Statutes at Large_, II, 120, 121 (act of
March 1695/6).]

The Church of England was established by law in 1704. In the act for that purpose it is declared that "no justice or magistrate, being a layman, shall presume to join any persons in marriage, under penalty of one hundred pounds currant money of this province." Vestries are to provide a fit person as register of births, christenings, marriages, and burials, except those of "negroes, Mullatoes, and Indian slaves;" and a fine is prescribed for wedding contrary to the table of forbidden degrees.[792] All these provisions are repeated in the new act of 1706 for the "establishment of religious worship" in the province.[793] Six years thereafter the full text of the law of Henry VIII., "for marriages to stand notwithstanding Pre-Contracts" is adopted; and it appears again and again in the statute book until recent days.[794]

[Footnote 792: _Ibid._, 242, 243; also in _N. C. Col. Rec._, II,
867-82.]

[Footnote 793: COOPER, _op. cit._, II, 289-91; also in BREVARD,
_Alphabetical Digest of Laws of S. C._, 41-44. In both these acts
elaborate provision is made for registration.]

[Footnote 794: COOPER, _op. cit._, II, 475, 476, where 32 H.
VIII., c. 38, is put in force; and it is retained in _Revised
Statutes_ (Columbia, 1873), 481. In 1712, likewise, a part of the
statute 1 Jac. I., c. 11, regarding bigamy was adopted: COOPER,
II, 508.]

No further important change was made in the law before the Revolution. The act of 1706, giving a monopoly of the business of solemnizing matrimony to the established clergy, remained nominally in force. A fine could be levied for neglect of its provisions. But in the "Up" or "Back" country it was quietly disregarded; and, apparently without a contest, custom sanctioned the optional civil ceremony or optional ecclesiastical rites according to the usage of each denomination. "In the early stages of our juridical and civil history," says Brevard, "the laws of the province on this subject were in conformity to the English; but as the population ... encreased by emigrants from all countries, and of different religious denominations, this adherence to Episcopal regulations and forms was gradually relaxed, and at length generally disregarded." The church act of 1706, he adds, must have gone into "effectual and general operation." But, except partially, "it seems never to have extended farther than about sixty miles from Charleston."[795]

[Footnote 795: Editorial note in BREVARD, _Alphabetical Digest of
Laws of S. C._, II, 41, 42, notes.]

What has just been said regarding South Carolina applies equally to Georgia, whose territory had belonged to South Carolina since the original grant of 1663. But the charter issued to James Oglethorpe and his associates in 1732 expressly abrogates the laws of the parent colony,[796] and gives the power to enact new laws to the corporation of associates as trustees for the colony. The Episcopal system was introduced, but it was not rigidly enforced. The charter to Oglethorpe "guaranteed liberty of conscience to all except papists,[797] and the spirit exhibited in ecclesiastical legislation was one of toleration. Hence a considerable Puritan element was drawn to the Colony."[798] The preamble of the act of 1785 shows that it had been the custom for justices, ministers, and "preachers of the gospel" to solemnize marriage. Such marriages are made valid and the practice legalized for the future.[799]

[Footnote 796: With an exception relating to military power:
POORE, _Charters_, I, 373, 374. Georgia was made a royal province
in 1751; but the policy of toleration was maintained: HOLMES,
_Annals_, II, 45; STORY, _Commentaries_, I, 102. In early days
the province suffered the usual evils from scarcity of women:
_Coll. Georgia Hist. Soc._, II, 105; III, 32, 144.]

[Footnote 797: POORE, _Charters_, I, 375.]

[Footnote 798: COOK, "Mar. Cel. in Col.," _Atlantic_, LXI, 356.]

[Footnote 799: _Digest of the Laws of Georgia_ (Philadelphia,
1801), 314.]

It appears, then, that throughout the southern colonies matrimonial legislation was tending in the same direction. Everywhere, except in Maryland, the optional civil ceremony was legally or practically recognized, though under various restrictions. Marriage was already a civil contract of mutual partnership; and, notwithstanding an occasional invalidating clause for neglect of the prescribed forms, the common-law marriage by mutual consent was probably valid, though, so far as it appears, the records of the provincial courts are almost entirely silent on that question.[800] In short, in its principal elements, throughout the South matrimonial law had reached or was strongly tending toward the existing American type.

[Footnote 800: Even in Virginia civil marriages were frequent
before the Revolution, though liable to penalty. For Maryland the
view of the text as to the common-law contract was sustained in
the case of Cheseldine _v._ Brewer, 1 Har. and McH., 152 (1739).
This decision was, however, overruled in Denison _v._ Denison
(1871), 35 _Md._, 361, 379, in which Justice Alvey says: "We
think we are safe in saying that there has never been a time in
the history of the state, whether before its independence of
Great Britain or since, when some ceremony or celebration was
not deemed necessary to a valid marriage. In the early days of
the province, it was not absolutely necessary that a minister of
religion should officiate,--a judge or magistrate could perform
the ceremony--but still, in all cases, some formal celebration
was required." Of course, the opinion of a judge long after the
colonial era, not professing to be based on evidence, can have
little weight in settling the present historical problem. Though
the laws of the Maryland assembly, like those of Connecticut and
Rhode Island (STORY, _Commentaries_, I, § 171), were not required
to be submitted to the king for approval, it cannot be assumed
that such laws could deprive a person of any liberty secured by
the common law, but they might bestow greater privileges. _Cf._
BISHOP, _Mar., Div., and Sep._, I, § 416.

A statute of North Carolina, in 1715, declared that the common
law should be in force in that province (IREDELL, _Laws_, 1715,
18, 19; STORY, _op. cit._, I, § 142). Yet in this century it has
been held that the common law of the state recognizes no marriage
not according to the statutes; as to which statement, "the court
observed in a subsequent case, 'we express no opinion.' But such,
all agree, is not the common law of England."--BISHOP, _op.
cit._, I, § 412; citing State _v._ Samuel, 2 Dev. and Bat., 177;
and State _v._ Ta-cha-na-tah, 64 _N. C._, 614.

Several decisions of the courts of Tennessee have regard to the
colonial laws of North Carolina, the parent commonwealth, and
on the whole sustain the view that informal marriages were good
despite the statutes. In the case of Bashaw _v._ the State, 1829
(1 Yerger, 177-97), which gives a history of North Carolina
matrimonial legislation for the period 1715-1829, it was held
that the celebration must be according to the statutes which had
superseded the common law. The same view is taken two years later
in Grisham _v._ the State (2 Yerger, 589, 592). But in Andrews
_v._ Page, 1868 (3 Heiskell, _Tenn. Reports_, 653, 667), the
opposite position is taken, the court holding rightly that the
acts of 1741 and 1778 do not expressly prohibit the common-law
marriage.

The common-law principle of marriage by mutual consent prevailed
in South Carolina (compare 10 McCord, _Statutes_, 357, ed. note;
and the case Vaigneur _v._ Kirk, 2 _S. C. Equity Reports_,
640-46, with H. W. Desaussure's note, 646). Referring to the law
of South Carolina, generally, BREVARD, _Alphabetical Digest_, II,
41, note, says: "How far the informality of a marriage may afford
ground for questioning its validity, on a trial for polygamy, may
perhaps admit of some doubt." Historically, however, the doubt is
exceedingly small that such an informal contract would be valid.

It is doubtful whether there were any courts in the southern
colonies vested with full matrimonial jurisdiction: see BISHOP,
_op. cit._, I, §§ 115-49.]