Chapter XIV: Optional CIVIL or Ecclesiastical Marriage in the Middle Colonies (1)

[BIBLIOGRAPHICAL NOTE XIV.--The _New York Colonial MSS._,
of more service for the history of divorce, afford several
important documents available for the present chapter. The use
of these papers is facilitated by O'Callaghan's _Calendar of
Historical Manuscripts_ (Albany, 1866). Among the treasures also
preserved in the State Library at Albany may be found the MS.
copy of the _Dongan Laws_, including the marriage act of 1684
concerning which there has been much discussion; and some forty
volumes of _MSS. Marriage License Bonds_, of interest to the
genealogist and historian. The use of these is made easier by
the published _Names of Persons for Whom Marriage Licenses Were
Issued by the Secretary of the Province of New York, Previous
to 1784_ (Albany, 1860), to which O'Callaghan has given an
_Introduction_.

The most important source for the province is the _Documents
Relating to the Colonial History of New York_ (Albany, 1856-83),
edited by O'Callaghan and Fernow. Original material may also
be found in the _Records of New Amsterdam_ (New York, 1897);
Munsell's _Annals of Albany_ (Albany, 1850-59); the same
compiler's _Collections on the History of Albany_ (Albany,
1865-71); and Valentine's _Manual of the Corporation of the City
of New York_ (New York, 1843 ff.). For the Dutch period we have
O'Callaghan's _Laws and Ordinances_ (Albany, 1868); for the
proprietary government, "The Duke of Yorke's Book of Laws," in
Linn's _Charter and Laws_ (Harrisburg, 1879); earlier in Vol.
I of the _Collections of the New York Historical Society for
the Year 1809_ (New York, 1811); and recently in Vol. I of the
_Colonial Laws of New York_ (Albany, 1894), while the last-named
collection covers the period of the royal province, and is
enriched by Cumming's _Historical Note_ and his comments on the
various statutes and papers. The celebrated "Lauderdale Peerage
Case," so important for understanding the marriage law of New
York for the period between 1691 and 1772, may be found in the
English _Law Reports_, X (London, 1885); and also abridged in
Cook, _Reports of Cases Decided by the English Courts_, XXXVII
(Albany, 1887). In connection with this case several members of
the American bar submitted written opinions, and three of those
published are in the New York State Library: see Fowler, _Letter
and Opinion_ (New York, May 11, 1885); Seward, _Answers to the
Interrogations of Brodie and Sons_ (New York, June, 1885); and
Webster, _Opinion on the Law of Marriage in the Colony of New
York_ (New York, May 26, 1885). But far more conclusive than
the views of the witnesses and expert advisers called at the
trial is the remarkable paper of Rev. John Rodgers, found in the
cabinet of President Stiles by the historian Holmes, entitled "A
brief view of the state of religious liberty in New York 1773,"
in 2 _Mass. Hist. Coll._, I (Boston, 1838).

For the history of bundling, besides the mention in Valentine's
_Manual_, should be consulted the case of Seger _v._ Slingerland
in Caine's _Reports_, II (New York and Albany, 1860), where the
custom was judicially considered; also Lamb, _History of the
City of New York_ (New York and Chicago, 1877); and especially
Stiles, _Bundling_ (Albany, 1871). Stiles, _History of the
City of Brooklyn_ (Brooklyn, 1867-70), gives an account of the
restrictions put on the remarriage of widows in the old Dutch
wills; and there are some notices of marriage law and customs in
Grant, _Memoirs of an American Lady_ (New York, 1809); Weise,
_History of the City of Albany_ (Albany, 1884); Watson, _Annals
and Occurrences of New York City and State_ (Philadelphia,
1846); Vanderbilt, _Social History of Flatbush_ (New York, 1882;
new ed., 1899); Ostrander, _History of the City of Brooklyn
and King's County_ (Brooklyn, 1894); Gerard, _The Old Stadt
Huys of New Amsterdam_ (New York, 1875); Hazard, _Annals of
Pennsylvania_ (Philadelphia, 1850); and especially Earle's
_Colonial Days in Old New York_ (New York, 1896). In 1786 a
brief account of wedding customs in New York state was given by
Hannah Thompson, "Letters," in _Pa. Mag. of Hist. and Biog._,
XIV (Philadelphia, 1890); and in 1748 the governor's lucrative
monopoly of marriage-license fees is described by the Swedish
botanist Kalm, _Travels in North America_ (Warrington, 1770):
see Hart, _Source-Book of American History_ (New York, 1899),
extract 50. Cook, "The Marriage Celebration in the Colonies,"
_Atlantic_, LXI (Boston, 1888), discusses the subject for the
middle provinces; and for the historical background Brodhead,
_History of the State of New York_ (New York, 1853-71);
O'Callaghan, _History of New Netherland_ (2d ed., New York,
1855); Friedberg, _Eheschliessung_ (Leipzig, 1865); and his
_Geschichte der Civilehe_ (Hamburg, 1877), have been of most
service.

For New Jersey, Leaming and Spicer, _Grants, Concessions,
and Original Constitutions_ (2d ed., Philadelphia, 1881), is
of first-rate importance. This collection is supplemented by
the documents in _New Jersey Archives_ (Newark, 1880-86); and
Smith, _History of the Colony of Nova-Caesaria or New Jersey_
(Burlington, 1765; reprint, 1877); while the law of 1719 may
be found in _Acts of the General Assembly_ (Woodbridge, 1752);
or in Allinson, _Acts of the General Assembly, 1702-1776_
(Burlington, 1776).

The early legislation of Pennsylvania is contained in Linn's
convenient _Charter to William Penn, and Laws of the Province
of Pa., 1682-1700_ (Harrisburg, 1879), which is supplemented
by Nead's valuable _Historical Notes_. Some illustrations of
judicial and administrative proceedings have been gleaned
from the _Colonial Records of Pa._ (Harrisburg, 1838-53); and
the marriage laws enacted from 1700 onward are cited in Carey
and Bioren, _Laws_ (Philadelphia, 1803); the _Laws of the
Commonwealth of Pa._, 1700-1810 (Philadelphia, 1810); and Pepper
and Lewis, _Digest_ (Philadelphia, 1896). For the doctrines of
the Friends one must go to the founder. William Penn's _Select
Works_ (1 vol. fol., London, 1771; 5 vols., 8vo, London, 1782)
are a mine Of information on every phase of Quaker teaching;
and the same is true of William Sewel's _History of the Rise,
Increase, and Progress of the Christian People called Quakers_
(original Dutch ed., Amsterdam, 1717; first English ed.,
London, 1722), a work whose scrupulous accuracy has never been
impeached. On the other hand, for the false charges brought
against the Friends by their orthodox antagonists one should
read Thomas Underhill, _Hell broke loose: or an History of the
Quakers Both Old and New_ (London, 1660), who has raked together
scandals of every description; Nathaniel Smith, _The Quaker's
Spiritual Court_ (London, 1668); and Gerard Croese, _Historia
quakeriana_ (Amsterdam, 1695; English ed., London, 1696),
the book whose errors called forth Sewel's _History_. More
recently Quaker rites and wedding customs have been described
by Watson, _Annals of Philadelphia_ (last ed., Philadelphia,
1881); Hallowell, _Quaker Invasion of Mass._ (Boston, 1883);
Applegarth, "Quakers in Pennsylvania," _J. H. U. S._, X
(Baltimore, 1892); and in a lively sketch, drawn mainly from
records of the Monthly Meeting, by Earle, "Among Friends," in
_New England Magazine_, XIX (Boston, 1898). There is a typical
Quaker marriage certificate of 1692 in Vol. XIII of the _Pa.
Mag. of Hist, and Biog._ (Philadelphia, 1889). A brief summary
of the matrimonial laws of the colony may be found in Gordon,
_History of Pennsylvania_ (Philadelphia, 1829).]

I. NEW YORK

The history of matrimonial institutions in the middle colonies is on the whole less attractive than in New England. At any rate, it is less interesting in the sense of being less eventful. The original materials from which to construct it are less abundant. There is nothing equal to the _Diary_ of the inimitable Sewall from which it may be filled out and embellished. It is not quickened by the struggle to maintain or to introduce diverse forms of celebration resting upon opposing theories as to the nature of the nuptial contract. There is little answering to the Puritan thoroughness in regulating the conduct of domestic life, even among the Quakers. Hence the legislative and judicial records are relatively meager. In New York, notably, between 1684 and the Revolution the law-book is a complete blank. On the other hand, in Pennsylvania, after the establishment of the proprietary government, the predominance of Quaker sentiment enables the original usages and the early statutes regarding wedlock to run their even course for generations without essential change. Still the study of marriage in the middle section of the English colonies is not devoid of social interest. There, on account of mixed population and diverse religious sects, toleration in the main prevailed. The quaint records of the Dutch and the homely ceremonial of the Friends may even prove entertaining, while in this field, as in every other, the thought and experience of New York and Pennsylvania have done much to form and fix the types of law and administration now prevailing in the United States.

_a_) _Law and custom in New Netherland._--Long before the first plantations were established on the Hudson, as already seen, optional civil marriage had been sanctioned in several of the Dutch states, and as early as 1656 it was extended to the United Netherlands. In Holland independents of both old and New England found encouragement and also a model in the effort to realize similar ideas born of their common Protestantism.

It is therefore strange at first glance that a thorough-going civil-marriage law should not have been introduced in New Netherland from the beginning. The laws of the mother-country, even after 1656, varied considerably in details among the different provinces. In their content they generally rested on the basis of the later Roman statutes.[801] From the desire to check the evils of clandestine contracts, in many instances rigorous measures had been adopted. Usually parental consent, often publication of banns, was made essential to a valid marriage.[802] The laws of Guelderland were especially severe;[803] and these according to Fernow, "naturally prevailed" in New Netherland; for a "majority of the early settlers" came from that province. "In Guelderland," he declares, "a marriage was void, if the _express_ consent of the father, or if dead of the mother had not been obtained for the marriage of a son. With regard to daughters the law was still more rigorous; even a marriage, entered into by a girl with parental consent, did not emancipate her from parental authority, if she was still under age at her husband's death: she had to place herself again under the guardianship of her father or mother. Neither were parents obliged to give before a Court of Justice any reasons in case they refused consent. This law had its foundation in the Codex Justinianus."[804]

[Footnote 801: O'CALLAGHAN, _Introduction to Names of Persons for
Whom Marriage Licenses Were Issued_, p. iii.]

[Footnote 802: FRIEDBERG, _Eheschliessung_, 478 ff., 485 ff.,
gives the details, citing the Dutch authorities.]

[Footnote 803: Compare the summaries of FRIEDBERG, _op. cit._,
487, 488, 491.]

[Footnote 804: FERNOW, _Doc. Rel. to Col. Hist. of N. Y._, XIV,
243, note.]

In all respects except the celebration optional civil or ecclesiastical marriage was sanctioned in New Netherland. It is doubtless safe to assume that during the early years of the Dutch colony banns and parental consent, probably according to the law of Guelderland, were required; but legally, so far as the evidence at hand shows, the covenant had to be solemnized by a minister with religious rites. The first legislation by the local authorities appears to have been enacted only ten years before the first establishment of English rule. The occasion was the violation of the "custom of our Fatherland" in the publication of banns by the magistrates of Gravesend, as appears from the following letter addressed to them by Peter Stuyvesant:[805]

"Worthy and dear friends.

"I received in due time your letter of the 13^{th} inst. sent to me by the Fiscal, which has been communicated to the High Council. We have been very much astonished that you arrogate to yourself the publication of marriage-proclamations within your village without our or the Council's knowledge, in cases where both parties live beyond the jurisdiction of your village. As to the allegation made by you, that the person is a freeman of your village, he is the same in the City of _Amsterdam_ and here in this City and for this reason must the marriage-proclamation be reported and published here as well as there according to the customs of our Fatherland. We do not deny, that matrimony is ruled by divine and by human laws, but they who enter upon this state must do it according to these divine and human laws, with the consent or knowledge of their parents, tutors or guardians and then notify thereof the Commissary, appointed by higher authority, at the place where they reside or where they have previously been living during the last year. Your final request, that we should send you a copy of the order and power of attorney, which his [evidently Johannis van Beeck's] father has given us concerning this son, is not complied with, as we do not think ourselves bound to do it, considering yours being a subordinate jurisdiction and subject to us; besides the father would be displeased and it would be unreasonable in us, to communicate to others, what an honest and prominent man has written to us in a detailed letter.

"Thus much in answer to your open letter. This further serves as cover of the enclosed order and resolution made by us and the Council, which you must promptly obey, not because we wish to prevent the marriage, but that according to divine and human laws and ordinances they may be put in practice, proclaimed and affixed, at the proper place and without infraction of anybody's rights.

"Relying thereupon we commend you with cordial greetings to God's protection and remain

Your well-affected friend and Governor

P. Stuyvesant."

[Footnote 805: _Ibid._ The letter is dated Jan. 20, 1654.]

The ordinance mentioned in the letter bears date of January 19, 1654/5, and runs as follows:

Since the magistrates at Gravesend "have presumed and undertaken publickly to post notices of marriage" of persons "domiciled in and about this city of _New Amsterdam_," far beyond their proper district; therefore the "Director General and Council order and notify the aforesaid Magistrates of Gravesend and all others within this Province, to annul such posting of intentions of Marriage, and on sight hereof to withdraw the same, and in all cases to proceed with and confirm no such Marriage, either privately or publickly, before and until such persons, according to _Netherland_ style, have entered and received their bans and proclamations of marriage where they are dwelling and have resided the last years."[806]

[Footnote 806: O'CALLAGHAN, _Laws and Ordinances_, 152, 153. For
this ordinance see also _New York Colonial MSS._, XII, 40; and
compare _ibid._, IV, 456; V, 197; VIII, 647. Consult WEBSTER,
_Opinion on the Law of Marriage prevailing in the Colony of N.
Y._, 1772, 19, 20 (Lauderdale Peerage Case), who discusses these
ordinances.]

This important measure was supplemented by another four years later. The preamble recites that it had become common for betrothed persons to put off marrying for a long time after the proclamation of their banns, "which is directly in contravention of, and contrary to the excellent order and customs of our Fatherland." Therefore it is ordered that thenceforward all persons must be married within one month after publication, unless they can give a good excuse.[807] Light is thrown on the real motive for the adoption of this act by its provision that no man and woman are henceforth to live together until lawfully married. It seems to have been the custom, in too many instances, for betrothed couples whose banns had been asked the first time to begin living together as if already man and wife. They looked upon themselves as at least half married; and we are thus confronted by a state of affairs strikingly similar to that which we have found existing in New England in consequence of the laws governing pre-contract. Doubtless couples through indifference, the refusal to fulfil the contract on the part of an unscrupulous lover, or for other reasons, were now and then led to protract the irregular marital relation beyond the completion of the term prescribed for the publication of banns. Moreover, as in New England, the custom of queesting or bundling imported from the old home may have proved a snare for the unwary feet of the young men and maidens of New Netherland. Indeed, the practice of bundling has been assigned by New York writers as the proximate cause of the singular provision referred to. "It was one of the ordinances of the time," says Valentine, "that upon an agreement of marriage, the bans should be published from the pulpit three times, before the marriage could be solemnized. Impatient of the delay, however, the youthful couple were often inclined to be satisfied with their moral obligations towards each other, and to waive the immediate fulfillment of the legal ceremony; in the meantime ... the indulgence of cohabitation, then called 'bundling,' was practiced. It was for a long time winked at by the community, but its violence against the tenets of propriety was obvious, and at the time [1656] before spoken of, in which the city authorities resolved to set themselves to the reformation of abuses, this custom came under their prohibatory decrees." There were "those who still maintained its advantageous results, even though the contract of marriage were subsequently violated. The latter instances, it was contended, were comparatively few, and were set off by the increase of population which came" through this means. Yet the reformers "triumphed, and in 1658 it was ordered, that henceforth the mere publication of bans should not justify cohabitation."[808] The custom of bundling was, however, too tenacious to be stopped by a decree of the legislator. For more than a century in New York it continued to flourish, and sometimes to bear evil fruit, as is clearly revealed in the case of Seger _v._ Slingerland, which was decided in 1804.[809] Another action shows that forty years later the practice existed in the neighboring state of Pennsylvania. In this instance the plaintiff admits that "the custom in courtship which he has denominated bundling" prevails "very generally" in the part of the country where the interested persons reside; and in this suit, as in the New York case, the defendant won on appeal because of the connivance of the parents in the misconduct of their daughter.[810]

[Footnote 807: BRODHEAD, _Hist. of the State of N. Y._, I, 639.
For the text of the ordinance of Jan. 15, 1658, see _N. Y. Col.
MSS._, XVI, 40, 129; also O'CALLAGHAN, _op. cit._, 328, 329; and
_Law Reports_, X (1885), 729 (Lauderdale Peerage Case).]

[Footnote 808: VALENTINE, _Manual of the Corporation_, 1858, 497,
498; _cf._ also LAMB, _History of the City of N. Y._, I, 183.]

[Footnote 809: CAINE, _Reports_, II, 219, 220. This was a case
on appeal by the original defendant who had been sued for damage
for debauching the plaintiff's daughter. The defendant won on the
ground of connivance of the parents of the girl. "We lay out of
view," says the court, "the custom which it is agreed prevails
in that part of the country for young people, who are courting,
to sleep together." "Nor is it an excuse for the parent to say
that promises of marriage had been exchanged." _Cf._ also STILES,
_Origin and Hist. of Bundling_, 44 ff., 109-11.]

[Footnote 810: Case of Hollis _v._ Wells (1845), 3 _Pa. Law
Journal_ (Philadelphia, 1872), 29-33. Under head of "A Custom
Must be Moral," these two cases are discussed in LAWSON (J. D.),
_The Law of Usages and Customs_ (St. Louis, 1881), 58-60.]

According to the old Dutch law, enforced in New Netherland, all persons desiring to form a valid union were required to appear before the minister or the court, as they saw fit, in the place where they had "their fixed domicil for the last year and day, and to apply there, for three Sundays or market days, when publication of the banns was to be made in the church or the court-house, or other place where the court of justice was held; and every one who had any impediment to propose, was obliged to state the same in the mean time, on pain of being otherwise deprived of that right."[811]

[Footnote 811: O'CALLAGHAN, _Names of Persons for Whom Marriage
Licenses Were Issued_, p. iii.]

The following document of 1655, contained in Fernow's collection relating to the plantations on the Delaware when under the Dutch jurisdiction, may serve to illustrate the prescribed formality in applying for publication of banns:

"Appears Toms Broen, as father and guardian of his daughter, Jannetje Tomas and consents to the marriage between her and Willem Mauritz here present and requests that their legal bans might be published; the names being, of the bridegroom Willem Mauritz, bachelor, from Walle Schier, about 33 years old, of the bride Jannetje Tomas, spinster, born in New-Netherland, about 16 years old. Witness Stuyte Andries."[812]

[Footnote 812: Addressed to the vice-director and his council:
FERNOW, _Doc. Rel. to Col. Hist. of N. Y._, XII, 137 (Dec. 29,
1655). For a similar application see _ibid._, XII, 153, 154. For
further record of entry of banns before the "mayor of New York"
(1670-71) see _Records of New Amsterdam_, VI, 262, 334.]

From the same collection, two years later, we learn that "Laurens Pieters bachelor from Lier and Catlyne Jans of Gottenburch in Sweden were confirmed in marriage after proclamation of banns on the previous Sundays."[813]

[Footnote 813: Dec. 24, 1657: FERNOW, _loc. cit._, 156.]

The civil courts in New Netherland possessed full jurisdiction in all suits or matrimonial causes, including cases of separation and divorce.[814] For an understanding of the relation of the lower and higher courts, the procedure in such cases, and the details of the law, the often-mentioned case of Johannis van Beeck and Maria Verleth is instructive. The facts in this case appear to have been the proximate cause of the ordinance of 1654/5 and the letter of Stuyvesant already submitted. It is all the more interesting because it involves the double question of irregular banns and unlawful celebration, as shown by the final decree. On January 26, 1654, takes place the first step in the proceedings. Cornelis van Tienhoven, the schout, lodges formal complaint before the burgomasters and schepens of New Amsterdam against the court of Gravesend for illegally "granting and confirming the Banns of Matrimony betwixt Johan van Beeck and Maria Verleth, who both have their domicil in and about this city of New Amsterdam;" suggesting that such conduct tends to the infringement of the good policy of the fatherland, as also the privileges and jurisdiction of the city, and to prepare a way for sons and daughters to go secretly and get married. In reply, says the record, the "Burgomasters, and Schepens ... do hereby refer the foregoing complaint and proposition made by Cornelis van Tienhoven, in quality as Schout, to their High Mightinesses the Director-General and Councillors of New Fetherland."[815] But this did not end the matter.[816] On February 10, pending the decision of the higher court, van Beeck petitioned the burgomasters and schepens "that his bans with Maria Varleth may be entered and be properly proclaimed here" in New Amsterdam. Whereupon the court "engage to do same because it is usual and custom of Fathld to have publcts where domicil is and married where he pleases."[817] After a little delay, the court keeps its promise. On February 19 the burgomasters and schepens solemnly examined the petition, noting (1) who instituted marriage and the apostles' teaching; (2) the proper ages and the attained ages of both parties; (3) consent of parents on the girl's side; (4) distance between this and fatherland; (5) that "matters by long delay might come to be disclosed ... which would bring disgrace on both families;" therefore that "proper ecclesiastical proclamations ... ought to be made at the earliest opportunity and followed afterwards by their marriage."[818] This resolution seems a trifle indiscreet, in view of the fact that the original case had been referred to their High Mightinesses. It is therefore not strange that a communication signed by Stuyvesant himself should express surprise that van Beeck should have affixed by a poster "that his marriage, contracted not only without his father's knowledge, but contrary to his express prohibition to marry abroad has been declared lawful and proper by Resolution of the Burgomasters and Schepens ... ; of which Resolution the Director General and Council are ignorant;" at the same time requesting an "authentic copy" of the resolution, with "written reasons" for failing to submit the same for approbation of the higher court.[819] This was on March 2, 1654. Apparently, after republication of the banns, van Beeck had had the marriage ceremony performed outside of the Dutch jurisdiction, probably because of the doubtful legality of the course taken by the officials of New Amsterdam. The records are silent as to the further proceedings in the case, except as they may be inferred from the following decree of the higher court, rendered not earlier, apparently, than 1656, which leaves us in doubt as to how the original complaint against the magistrates of Gravesend was disposed of:

"Whereas, the Director-General and Council of _New Netherland_ have heard the charge of the Fiscal against _Johannis van Beecq_, a free merchant and inhabitant of this City of _New Amsterdam_, defendant, who has been duly summoned by the Court Messenger _Elslandt_ in the name of the Fiscal on three Court days and who has had himself married by an unauthorized countryman, named _Goodman Crab_, living at _Greenwich_, against the laudable laws and customs of the _United Netherlands_ and, as the Fiscal further states and proves in his charge, contrary to the advice and command of his lawful guardian,[820] the Hon^{ble} Director-General, also without previously publishing the bans and who has so far failed to make his appearance, of _Netherland_ and without previous publication of the bans, is hereby declared ... unlawful and the said _Jan van Beecq_ and _Maria Verleth_ are commanded to live separate under penalty of being punished according to law for living in concubinage."[821]

[Footnote 814: For a discussion of the divorce jurisdiction of
the Dutch courts see chap. xv, below.]

[Footnote 815: VALENTINE, _Manual of the Corporation_, 1845-46,
368; _Records of New Amsterdam_, I, 155.]

[Footnote 816: While these proceedings were in progress,
another appeal, growing out of the case, came from the schout,
burgomasters, and schepens, in the city hall, special session of
Feb. 8, 1656. Case of "Maria Verleth, pltf. v. Joost van Beeck,
deft." The defendant maintains, as the marriage between Johannis
van Beeck and Maria Verleth is not yet declared legal, that
certain "letters are not her's, until the marriage be legalized."
But should the marriage be declared lawful by the court, supreme
council, and consistory, he consents that she shall have them.
He only wants his right. The court lets Maria have the letters
provisionally, because it has never been informed that the
marriage has been declared illegal, and it has already announced
that it must respect the proclamation of the church and the
"marriage tie of said young people."--_Records of New Amsterdam_,
II, 36.]

[Footnote 817: _Ibid._, I, 159, 160.]

[Footnote 818: _Ibid._, 164, 165. Earlier on the same day, the
record says, van Beeck prays "that disposal be made of petition
and remonstrance;" but no action was taken because the bench was
not complete: _ibid._, 163, 164.]

[Footnote 819: _Records of New Amsterdam_, I, 173, 174.]

"And whereas the Fiscal demands by his motion, exhibited on the 1st of September, 1654, that the said _van Beecq_ be condemned in contumacy,

"Therefore, after proper invocation of the Lord, the Director-General and Council of _New Netherland_, in the name and behalf of their Noble High: Might: the Lords-States-General of the _United Netherlands_ and of the Noble Lords-Directors of the Privileged West India Company administering justice at the requisition of the Fiscal, declare, that the Fiscal's charges are true and founded in law and therefore the marriage of _Johannis van Beecq_ and _Maria Verleth_, solemnized at _Greenwich_ and confirmed by an unauthorized person contrary to the laudable laws and customs

[Footnote 820: See the reference to power of attorney in
Stuyvesant's letter, p. 269, above.]

[Footnote 821: FERNOW, _Doc. Rel. to Col. Hist. of N. Y._, XIV,
291.]

From the evidence already presented it is perhaps not rash to infer that marriage by mere private consent, in words of the present tense, was not valid in New Netherland. Publication of banns and celebration before an authorized person were essential. The principle, therefore, of the English common-law marriage did not obtain. It had been superseded by statute. These records afford other evidence to sustain this conclusion. Thus in February, 1662, William Beeckman, of "Fort Altena on the South-River," writes to Stuyvesant and the council, complaining that one Laers, a Finnish priest, who was granted a divorce from his wife two months before, has "married himself again last Sunday"--an act "which in my opinion (under currection) he has no right to do. I expect your Honors' orders, how to conduct myself in regard to it."[822] As a result the marriage was declared to be "null, void, illegal;" seemingly on the ground that self-marriage was not tolerated by the usages of the Reformed church. Clearly in the opinion of the court the performance of the ceremony by a person legally competent was necessary to a valid contract. It is possible, however, that the decree was unjust because of unfair representation of the facts by Beeckman, who is accused of being a tyrant. In a letter to Stuyvesant, remonstrating against his treatment, Laers says: "I cannot discover anything illegal in it [his conduct]. I acted just in the same manner as I had done before in respect to others; exactly as others do who are not prosecuted for it, and I can conscientiously assure you that it was done without any evil intentions. Had I known that my marrying myself in this manner should have been so unfavorably interpreted, I should have submitted to the usage of the Reformed Church. But I did not know it. Wherefore I pray once more the honorable general that he will vouchsafe me his aid."[823]

[Footnote 822: _Ibid._, XII, 359, 360. The case is also discussed
by GERARD, _The Old Stadt Huys of New Amsterdam_, 390, 391.]

[Footnote 823: GERARD, _op. cit._, 391, who says Laers was not
legally bound to conform to the usage of the Reformed church. See
also the documents in this case in O'CALLAGHAN, _op. cit._, XII,
358, 359, 363, 366, 367.]

Another case, or rather pair of cases, occurring during the restoration of Dutch rule in 1674, seems conclusive as to the severity of the law. On the fifth of February of that year, as the fiscal alleges, Jacob Fabricius, a Lutheran preacher, had "contrary to the laws of this government married Ralph Doxy and Mary van Harris ... without having any lawful authority thereto and without publication of bans." For this offense it is suggested in the complaint that the culprit be severely whipped and "forever banished this government _cum expensis_." After hearing the fiscal's charge, the confession of Fabricius, and a "report" of the latter's previous bad behavior, the court decides not to "proceed against him in the most rigorous manner, considering his age and late position, but they condemn him and declare him incapable to perform the functions of a minister and what is connected with them within this province for the time of one year. After this time has elapsed Deft. shall be held to ask for a special 'consent' before he shall be re-admitted to the performance of the said functions."[824]

[Footnote 824: FERNOW, _op. cit._, XII, 512: case of the Fiscal
_v._ Jacob Fabricius, March 1, 1674, before Governor-General
Colve and the council. A version of the case is also given by
O'CALLAGHAN, _op. cit._, II, 693, who translates "license" where
Fernow uses "consent" in the last sentence.

It is greatly to be feared that Brother Fabricius was a rather
uncomfortable inhabitant; for at the same session of the court
the fiscal charges that he did "beat and use force and violence
against Marretie Jurians, in her own house," for which it is
thought he ought to be "condemned in a fine of five Beavers with
costs." The defendant admits the charge; "but says that the above
named Marretie Jurians did provoke him with harsh language."
Their honors, however, deemed it just to assess him "two Beavers
with costs": O'CALLAGHAN, _loc. cit._, 693. Later Fabricius was
accused of riotous conduct at Newcastle on June 4, 1674, but he
denied the charge and offered to bring witnesses: FERNOW, _op.
cit._, XII, 521. Possibly religious bickerings had something to
do with his troubles. At any rate on June 1, 1675, the Lutherans
on the Delaware petitioned that he be confirmed as pastor:
_ibid._, 529. On April 18, following his suspension for marrying
Doxy, he had the hardihood to ask that the sentence be mitigated,
so that "he might be at least allowed to baptize, if he may not
preach and act as minister;" but the court declined his request:
_ibid._, 512.]

The case against Ralph Doxy is complicated by additional charges. The fiscal makes no direct reference to the unauthorized celebration or to the failure to publish the banns, though from the judgment of the court we perceive that these offenses were considered; but accuses him of entering "in an unlawful manner, into the married state with Mary van Harris, making use for that purpose, of a forged certificate," further alleging that he "hath still a wife alive who resides in New England;" for which delinquencies he ought to be severely whipped and "banished the country forever, with costs." In his reply, Doxy "denies ever having been married to a woman before," but confesses "his guilt as regards the forged certificate," saying "that through love for Mary Harris he had allowed it to be executed by a certain Englishman, now gone to the Barbadoes, and therefore prays forgiveness." The court declared the marriage unlawful on the two counts for which Fabricius was suspended; but "finding the charge against him of having a second (_sic_) wife in New England unfounded, he is therefore permitted to confirm himself in wedlock with the abovenamed Mary, according to the laws of the government." For the forged certificate "he is pardoned for this time on his promise of improvement, and request for forgiveness[825]."

[Footnote 825: O'CALLAGHAN, _op. cit._, II, 691, 692. On these
two cases see FOWLER, _Letter and Opinion_, 60 ff. (Lauderdale
Peerage Case).]

With the exception of the restriction put upon bundling, if that were indeed the purpose of the act of 1658, the Dutch law-makers do not seem to have busied themselves with the regulation of courtship. Sexual transgressions were severely dealt with, although not with the same rigor as in New England or even in early Virginia. Neither the death penalty nor the scarlet letter appears. Fornicators, if single, were required to contract marriage or pay a heavy fine.[826] Adulterers fared worse. Some illustrations from the judicial records in such cases have been gleaned by Cowley from the _Colonial Manuscripts_. Among these are the sentence to whipping and banishment of Ytie [Yutie] Jansen, "for living in adultery with Jan Parcel, and also the sentence of Laurens Duyts, who, for selling his wife, Yutie Jansen, and forcing her to live in adultery with another man, and for living also himself in adultery, was 'to have a rope tied around his neck, and to be severely flogged; to have his right ear cut off, and to be banished for fifty years.' John Parcel, for living in adultery with this Yutie Jansen, whom he had thus bought from her own husband, was 'to be placed at the whipping-post, with two rods in his arm,' to be banished twenty years and pay a fine of a hundred guilders [forty dollars], with costs. The fourth party, Geesje Jansen, for living in adultery with Laurens Duyts, was 'to be conducted to the whipping-post, and fastened thereto, the upper part of her body being stripped naked, and two rods placed in her hand; to be afterwards conducted, in that wise, outside the city gates, and banished the province for the term of thirty years, with costs.' Moreover, Iva Dircksen, for adultery, was 'to be conducted to the place where justice is administered, and there to witness the punishments inflicted this day, and then to be banished for the term of fifty years.'"[827]

[Footnote 826: O'CALLAGHAN, _Laws and Ordinances_, 495.]

[Footnote 827: COWLEY, _Our Divorce Courts_, 33, 34; citing _New
York Colonial MSS., 1630-1664_: Dutch: Part I, Vol. VIII, 1049,
1051, 1653, 1055, 1057.]

Breach of promise suits are not infrequent. Sometimes it is the faithless swain who is prosecuted for his broken troth; as in 1669, when Elizabeth Stedwill called Jan Hendrix van Gunst to account;[828] or when Maria Besems seeks pecuniary satisfaction for the like offense of Boudewyn van Nieuwland.[829] Sometimes it is the maid who asserts the woman's privilege, if not her legal right, to change her mind; as in the case of Pieter Koch _v._ Annetie Cornelissen van Vorst, which took place in New Amsterdam, 1653-54, and may serve as an example. On February 24 the defendant's stepfather delivers her "papers" to the burgomasters and schepens, who order that each party shall have a copy of the other's papers, and that the defendant shall appear in person. Then the case drags along for nearly a year, over no less than eight sessions of the court, before the pleadings and other preliminaries are finished. At last, on February 19, 1654, the papers are sent by the lower court to the director-general and council for advice. Apparently in consequence of this advice the documents are then submitted to a special committee of three men, who hand in their report on the 18th of the following May. Upon this report the decision of the burgomasters and schepens was based, though they resolved to keep the judgment in "abeyance" until "requested" by the parties to the suit. From the records it appears that there was an oral promise of marriage; that the plaintiff had given presents to his betrothed; and that she, because of his "misbehaviour," was not disposed to keep her engagement. The court, however, decided that a promise once given should remain in force. Neither person without the consent of the other and the approbation of the court should marry. The defendant was allowed to keep her presents until marriage or until, with the knowledge of the magistracy, the betrothed should set each other free. Costs were to be borne equally by the parties.[830]

[Footnote 828: _Records of New Amsterdam_, VI, 203.]

[Footnote 829: GERARD, _The Old Stadt Huys_, 27. _Cf. ibid._, 26,
27, where cases of breach of promise are mentioned in 1642, 1644,
1653, and 1656.]

[Footnote 830: _Records of New Amsterdam_, I, 54; see _ibid._,
167, 199, 200. It may perhaps be inferred that the couple
concluded to release each other; for only seven years after the
trial (May 24, 1661) "Annetje Dircks, widow of Pieter Koch,"
is mentioned; _ibid._, III, 310; and similar phrase is twice
repeated: _ibid._, 403; IV, 34.

There are other cases. "In 1654 Greetje Waemans produced a
marriage ring and two letters, promissory of marriage, and
requested that on that evidence Daniel de Silla be 'condemned
to legally marry her.' He vainly pleaded his unfortunate habit
of some days drinking too much, and that on those days he did
much which he regretted; among other things his bacchanalian
love-making of Greetje. François Soleil, the New Amsterdam
gunsmith, another recreant lover, swore he would rather go away
and live with the Indians (a terrible threat) than marry the fair
Rose whom he had left to droop neglected--and unmarried."--EARLE,
_Colonial Days in Old New York_, 51; and for mention of other
cases, in connection with Dutch wedding gifts, see _ibid._, 52,
53.]

It is not surprising that among a people so thrifty and sensible as the pioneers of New Netherland the remarriage of a widow or a widower should be accompanied, or anticipated, by prudential measures, designed to protect the interests of the children of the first union. For this reason the wills and marriage contracts, specimens of which have been preserved, are of peculiar interest. According to Stiles, a well-known investigator of deeds and wills in Williamsburgh[831] makes the remark "that the old Dutch wills seem not to trust the widow in a second marriage. The restraints placed upon remarriages, by wills, were generally in favor of the children of the first marriage; and the widows thus restricted generally signed consents to accept the bequests in lieu of dower, for the good reason that propriety did not allow them to refuse so soon after the death of their first husband, and because the devises and bequests in lieu of dower vested an estate for life, or three thirds of the estate subject to a contingency in their own control, instead of one third absolutely. The will of Cornelius van Catts of Bushwick, dated in 1726, and expressed in a sort of half Dutch dialect, devises to his wife Annetjie, his whole estate ... while she remains his widow--both real and personal. 'But if she happen to marry, then I geff her nothing of my estate, neither real nor personal. I geff to my well-beloved son, Cornelius, the best horse that I have, or else £7, 10s., for his good as my eldest son. And then my two children, Cornelius Catts and David Catts, all heef [half] of my whole effects, land and movables, that is to say, Cornelius Catts heef of all, and David Catts heef of all. But my wife can be master of all for bringing up to good learning my two children.... But if she comes to marry again, then her husband can take her away from the farm, and all will be left for the children, Cornelius Catts and David Catts, heef and heef.'"[832]

[Footnote 831: J. M. STEARNS.]

[Footnote 832: STILES, _History of Brooklyn_, I, 233, 234.

The author adds: "So also in the will of John Burrows, of Newton,
July 7, 1678, he devises to his son John his then dwelling-house,
farm, orchard, out-houses, and lands, etc. 'But not to dispossess
my beloved wife during the time of her widowhood. But if she
marry, then her husband must provide for her as I have done.' So
also the will of Thomas Skillman, of Newton, in 1739."--_Ibid._,
233, 234.

"Often joint-wills were made by husband and wife, each with
equal rights, if survivor. This was peculiarly a Dutch fashion.
In Fordham, in 1670 and 1673, Claude de Maistre and his wife
Hester du Bois, Pierre Cresson and his wife Rachel Cloos,
Gabriel Carboosie and Brieta Walferts, all made joint-wills.
The last-named husband in his half of the will enjoined loss
of property if Brieta married again. Perhaps he thought there
had been enough marrying and giving in marriage already in
that family, for Brieta had had three husbands,--a Dane, a
Frieslander, and a German,--and his first wife had had four, and
he--well, several I guess; and there were a number of children;
and you couldn't expect any poor Dutchman to find it easy to make
a will in all that confusion. In Albany may be found several
joint-wills, among them two dated 1663 and 1676; others in the
Schuyler family."--EARLE, _Colonial Days in Old New York_, 54,
55.]

It was not, however, the first husband alone who took such precautions. After betrothal careful marriage contracts were often drawn up when either a widow or a widower was about to re-enter wedded life. The following is a sample of these stipulations, dated July 27, 1656:

"Appears Geertruyt Jacops, widow of the late Mr. Roeloff de Haes, now betrothed to Jacob Crabbe and declares her intention of proving and assigning their father's inheritance to the children, left by him, Mr. de Haes, and born in wedlock by her, Geertruyt Jacops, to wit Johannes de Haes, old about 10 years, Marrietje de Haes, old about 9 years, and Annitje, old about three years, and assigns herewith to each of the aforesaid children the sum of 6 carolus guilders, declaring at the same time upon her conscience, in place of an oath that she, affiant, hereby satisfies the aforesaid children out of their father's inheritance and this declaration is made in presence and with the consent of her affianced husband Jacobus Crabbe, and she Geertruyt Jacops, has nominated, constituted, and appointed ... as guardians of the aforesaid children the Worthy Oloff Stevensen and Hendrick Kip, both burghers and inhabitants of the Manhattans."[833]

[Footnote 833: Before the vice-director on the Delaware: FERNOW,
_Doc. Rel. to Col. Hist. of N. Y._, XII, 149, 150.

Here is a somewhat more elaborate contract in which one party is
a widower:

"In the name of the Lord Amen, be it known by the contents
of this present instrument, that in the year sixteen hundred
and sixty-three the eighteenth day of May, appeared before
me, Johannes La Montagne in the service of, etc., Meyndert
Frederickse [Smith], widower of the late Cataryna Burger, who
declares in the presence of the aforesaid witnesses, that for
God's honor he has contracted a future marriage with Pietertien
Teunise, spinster (jonge dochter), and before the consummation
of the same, he, the subscriber, assents to the following
conditions, firstly, that the aforesaid betrothed persons,
for the maintenance of said marriage, will collect and bring
together, all such existing estates and effects of whatever
nature; in whatever place, and with whatever persons, the same
may be lying or deposited, nothing excepted, which each now has
and posesses, to be by them possesed in common, according to
the law of our Fatherland, except that out of the bridegroom's
estate, to-wit, from the estate left by Caterina Burger deceased,
be reserved the sum of eight hundred guilders payable in beavers,
for the children left by her; to wit Frederick Meyndersen aged
six years, and Burgert Meyndersen aged three years, being their
maternal (matrimonial) inheritance; moreover said married persons
shall be holden to bring up said children in the fear of the
Lord, to teach them to read and write in the schools, to maintain
them in food and clothing till their majority or married state,
without diminishing their maternal estate, which the subscriber
promises without craft or guile, and for the same binding his
person and estate, real and personal, present and future, nothing
excepted, subject to all laws and judges." In the presence of
the children's guardians and the "orphan master."--MUNSELL'S
_Collections on the Hist. of Albany_, IV, 321. For similar
contracts see _ibid._, 311 (Sept. 23, 1662), 345.]

_b_) _Law and custom under the Duke of York._--In 1664 New Netherland passed into the hands of the Duke of York, whose patent from Charles II. directed him to establish authority "not contrary to but as neare as conveniently may bee agreeable to, the Lawes Statutes and Government of this our Realme of England."[834] After studying the New England laws, especially those of Connecticut and Massachusetts, Colonel Richard Nicholls, the duke's deputy governor, promulgated a code which was in force on Long Island, or Yorkshire, from March 1, 1665.[835] On August 6, 1674, Governor Andros ordered the duke's laws to be enforced throughout "New York" except "such as shall have apparent inconveniences in them,"[836] and in 1676 they were established in the Delaware region, "except the constables' courts, county rates, and some other things peculiar to Long Island."[837] It follows that for a short time after the conquest, in the province and on the Delaware, the Dutch laws were still observed; and, of course, the old usages and customs long survived.

[Footnote 834: See the charter in _New York Colonial Laws_,
I, 1-5; and compare COOK, "The Mar. Cel. in the Colonies,"
_Atlantic_, LXI, 360 ff.]

[Footnote 835: BRODHEAD, _Hist. of N. Y._, II, 18, 63, 66, 67;
_Colonial Laws of N. Y._, I, xii, 100, 101. The code of the Duke
of York has been thrice published: in _Collections of N. Y.
Hist. Soc._, I, 305-97, for the year 1809 (New York, 1811); in
the recent _Colonial Laws of New York_ (Albany, 1894), I, 6-100,
where a critical note on the original copies may be found; and as
the _Duke of Yorke's Book of Laws_, a part of LINN'S _Charter and
Laws of Pennsylvania_ (Harrisburg, 1879), the edition here cited
by preference.]

[Footnote 836: O'CALLAGHAN, _Doc. Rel. to Col. Hist. of N. Y._,
III, 226, 227; _N. Y. Col. Laws_, I, xii, xiv, 107 (Andros's
order). _Cf._ DONGAN'S report in O'CALLAGHAN, _op. cit._, III,
390 (1686); also see HILDRETH, _Hist. of U. S._, II, 44 ff., 76
ff.; LODGE, _Short Hist._, 297-99; BRODHEAD, _Hist. of N. Y._,
II, 273; HOWARD, _Local Const. Hist._, I, 105, notes.]

[Footnote 837: HAZARD, _Annals of Pa._, 427; _N. Y. Col. Laws_,
I, xii.]

By the duke's code optional civil marriage was established in New York. "Whereas," declares the preamble, "by the Law of England no Marriage is Lawfully Consummated without a Minister whose office it is to join the parties in Matrimony after the Banes thrice published in the Church or a Lycence first had and obtained from some person thereunto Authorized, All which formality cannot be duly practiced in these parts. Yet to the end that a decent rule therein may be preserved It is Ordained that from henceforth the names and surnames of each Party who sue for Marriage shall be Publiquely read in their Parish Church or place of usuall Meeting, where they both then Inhabit, three severall Lords days successively." An optional procedure by license or by ecclesiastical banns was thus introduced; but in one respect the liberality of the Dutch law was not imitated. Unqualified permission to publish intentions of marriage by civil notice, instead of banns in church, was not granted. Yet, in effect, such discretion is often allowed; for "where no Church or Meeting place shall happen to bee," fourteen days written notice on "three doors of each parish" where the parties respectively dwell, namely on the doors of the constable, and two of the overseers, is declared sufficient.

Optional religious or civil celebration is established. After proper notice, as already described, the ceremony may be performed by "any minister" or "any justice of the peace," but on one important condition: the parties are required to "purge themselves by oath before the minister or justice that they are not under the bonds of matrimony to any other person living;" and in case of obtaining a "double marriage" by perjury, we catch a glimpse of the influence of New England thoroughness on Colonel Nicholls, in the barbarous provision that the persons "offending shall bee boared through the tongue with a read hot Iron and moreover proceeded against as in Case of Adultery." But the party "approved innocent" and "ignorant of the other's wicked fraud" may recover damages against the "nocent," and is permitted to contract a new marriage as if nothing had happened.[838] For the marriage of any "Daughter, Maid, or Servant" the "known consent" of the parent, master, or dame is required; and for celebration without such consent, or without preceding banns or other legal notice, or the governor's license in place of notice, the minister or justice is to "forfeit twenty pounds and be put out of his office."[839]

[Footnote 838: _Duke of Yorke's Book of Laws_: in _Charter and
Laws_, 19, 36; _Col. Laws of N. Y._, I, 45, 46. In at least one
case this provision was carried out: on Oct. 5, 1672, Dan Sutton,
for perjury and bigamy was sentenced to have his tongue bored
through with a red-hot iron: _Law Reports_, X, 733 (Lauderdale
Peerage Case); for the text of the duke's marriage law of 1664/65
see _ibid._, X, 730, 731.]

[Footnote 839: _Duke of Yorke's Book of Laws_, 37.]

The declaration of the preamble that "by the Law of England no Marriage is Lawfully Consummated without a Minister" may prove misleading, unless the vital distinction between "legality" and "validity," already emphasized, be kept in mind. In 1665 a marriage in England without a minister was valid, but it was not lawful and might be punished. In the present instance, however, all doubt as to the meaning of the law is set at rest by the further provision that "if any man shall hereafter presume to Marry contrary to these Lawes prescribed the Person offending shall be proceeded against as for Adultery or fornication, ... the Children so begotten shall be Reputed Bastards, And the Parents suffer such paines and penalties by fines or Punishment as they have deserved."[840] Since this provision is clearly contrary to the existing law of England, it would seem to be invalid as transcending the legislative power granted to the duke by the royal charter; and even the king could not have changed the law of England.

[Footnote 840: _Ibid._]

Later in 1665 provision is made relative to the legal age for matrimony. All persons are to be "accompted of fitt age to Marry, when the Man shall attaine to the age of twenty one, and the Women of Eighteene years."[841] In the next year the not very lucid interpretation is vouchsafed that this law is to be understood "of such persons onely as are under guardianshipp, and itt is not in any wayes to take of the naturall bounds of Duty and obligation which Children owe to their parents."[842] If this declaration has any sense, it may perhaps mean that, without consent, only orphans under guardianship, and not those whose parents are living, have full authority to marry at the ages mentioned.

[Footnote 841: _Ibid._, 65.]

[Footnote 842: _Ibid._, 70.]