Chapter XIV: Optional CIVIL or Ecclesiastical Marriage in the Middle Colonies (2)

A system of registration is likewise provided for. The names and surnames of all the inhabitants of every parish in the government are to be registered; and "to prevent future inconveniences which may arise about the age of Orphants, The Certaine Marriage of Men and Women or the decease of persons imported into this Country whereof no positive Certificate can be granted, as to the age of one, Marriage of another or the Death of another, The Minister or Town Clark of every parrish shall well and truly and plainly" record all births, marriages, and deaths happening within his district "in a Book to be provided by the Church-wardener for that purpose." If a master of a family or anyone concerned fail, within one month, to report the birth, marriage, or death of a person related to him, he shall pay a fine of five shillings.[843]

[Footnote 843: _Duke of Yorke's Book of Laws_, 13, 14; _Col. Laws
of N. Y._, I, 19.]

Another provision reveals the tender solicitude of the English common law for the wife in a way which a century later would have warmed the heart of Sir William Blackstone himself. "No man shall harbour, conceal or detain Contrary to the concent of the Husband any Married woman, upon penalty of five Shillings for every hour" that she "remains under his Roof." Still there really might be occasions when even a "married woman" could reasonably claim some share of public protection. For has not the "common law" itself, in certain emergencies, placed her on a level with the bondwoman? Therefore it is provided "always that any woman flying from the barbarous Cruelty of Her Husband to the House of the Constable or one of the Overseers of the same Parish; may be protected by them in the manner as is Directed for Servants in such Cases, and not otherwise."[844]

[Footnote 844: _Duke of Yorke's Book of Laws_, 36; _Col. Laws of
N. Y._, I, 46.]

Again on producing a "sufficient" certificate "from any forraigne parts" under the "hand and seal of some creditable person and known magistrate," that either spouse is dead, the other is free to marry again. The same liberty is accorded the survivor when either party has been absent for five full years without knowledge on a journey by sea or land usually made in "a year or less or in a few days." But in that case a veritable trap is laid for the feet of Enoch Arden, in a provision, imitated from the laws of New England, the stupidity of which is only less surprising than the fact that in substance it has survived in statutes of far more recent times. It is "provided always that if either the man or the woman shall at any time after the Expiration of five years Returne and bring full Testimony that hee or shee have divers wayes endeavoured by writings or Messages to make known to his wife, or her Husband, that Shee or hee were then living, or that they were by Imprisonment or Bond Slavery with the Turks or other Heathen, Lawfully hendred from giving such information;" then such person may "Challenge his or her premarriage, and obtain an order for their Cohabiting as formerly." But "if neither shall sue for such an order," they "may by mutuall agreement Enter a Release to each other in the office of Records, and both remain free from their former obligations."[845]

[Footnote 845: _Ibid._, 46, 47; _Duke of Yorke's Book of Laws_,
36, 37. "The father onely of the Children as are begotten in
Lawfull Marriage," continues the statute, "is to provide for such
Children as shall be adjudged in the Court of Assizes only."]

One or two incidents gleaned from the records for the period of the duke's laws may serve to illustrate the difficulties of matrimonial administration on the Delaware. Thus in 1678, in a case similar to that of Laers above cited, the minister, reader, and churchwardens present to the local court at Newcastle Walter Wharton, justice of the peace, for marrying himself or being married "contrary to the Knowne Lawes of England & alsoe contrary to the Lawes and customes of this place and Province;" as likewise for granting certain lands without proper authority. The said "Mr. Wharton not appearing in three following Court dayes, and to the end the Reproach may bee taken away from the River and that Such notorious breatches of y^e Lawes and disorders may for the future not passe unpunished, especially in p^rsons of Lesser qualitys whoe if this [conduct] of M^r. Whartons [whoe" being "in Commission" and bearing "the office of a Justice of y^e peace ougt to give good examples to others] had not been Reguarded, migt att all tymes" hold it for a "bad president": the court do therefore submit the "p^rmisses to the Judgem^t. of his Hono^r. the Governo^r. for to Inflict such punishment" as he "shall thinke fitt & expedient." We are only informed in the record that the accused is "to bee out of the Commission of Justices & left to the Law."[846] One regrets that we are not told whether the "law" treated his marriage as void.

[Footnote 846: FERNOW, _Doc. Rel. to Col. Hist. N. Y._, XII, 596;
mentioned also by HAZARD, _Annals of Pa._, 451, 454, 455. On
the same day the local court fined him ten pounds and costs for
neglecting his judicial duties: FERNOW, _loc. cit._, 596, 597.]

The Delaware papers, for the next year, contain also a long letter to Governor Andros from Luke Watson, of "Whoorekill"--whose spelling is, if possible, more ingenious than usual even for that fertile region--complaining of the many shortcomings of Captain John Avery, magistrate and president of the court. It seems that the captain was fond of having his own way; sometimes, when his colleagues on the bench presumed to give a contrary "judgment," going out of the court "in a greate Rage and feury, ... Cursing and swaring," and even suggesting that they were "ffooles, Knaues, and Rouges." He is accused, moreover, of taking upon himself "to grant a Licence to Marry Daniel Browne to Sussan Garland, widdow, without any publiqueation, which Marrige was effected, notwithstanding it is Generally knowne or at Least the said Daniel confesses that he knows no other but that he haue a wife living in England." This was not the captain's worst indiscretion in the discharge of his official matrimonial duties. We learn that in taking "vpon himselfe to Marry the widdow Clament to one Bryant Rowles, without publiquecation notwithstanding she was out aske at Least a Month to another man, namly Edward Cocke," he prepared a sad tragedy in real life. For when the "said Cocke" heard that the widow had jilted him he said "it would be his death." So he "went home, fell sick, and in forty eight hours after dyed," declaring in his last breath "that her marrying was the cause of his dyeing."[847]

[Footnote 847: _Ibid._, 624, 625.]

At this time Governor Andros, replying to the inquiries of the Lords of Trade, reports that because of the "scarcity of Ministers & [the] Law admitting marriages by Justices no acc^t cann be giuen of the number marryed." He adds that "ministers haue been so scarce" and "Religions" so many that he can give no statement of the number of births or christenings.[848] In 1695 Mr. Miller, an English clergyman, "complains that many marriages are by a justice of the peace."[849]

[Footnote 848: O'CALLAGHAN, _Doc. Rel. to Col. Hist. of N. Y._,
III, 261 (1678); VALENTINE, _Manual of the Corporation_, 1851,
453. The year before the bishop of London complains that the
Virginia marriage laws are not enforced: O'CALLAGHAN, _op. cit._,
III, 253 (July 17, 1677).]

[Footnote 849: EARLE, _Col. Days in Old New York_, 60.]

The duke's code makes no provision for the celebration of marriage except before a minister or a justice of the peace. The Quakers of Long Island, who earlier had suffered severely from the intolerance of the Dutch,[850] continued nevertheless to practice their own simple but solemn rites. For so doing they were harshly dealt with by the courts, as appears in a petition to Governor Andros and his council from two of their number in 1680,[851] praying for the "Remission of a Fine imposed for Contravention of the Marriage Laws." The paper is in the form of an "address from Henry Willis and John Bowne, Concerning the proceedings of a Court of Sessions against vs, who said they fined us 10 lbs a peece for suffering our daughters to marrie contrary to their law, which proceeding we are satisfied is without precedent and we can count it noe lesse but a mistake or hasty oversight and though we have endeaverd for its removall yet Execution is eished forth and Jos. Lee vndershiref hath seazed Hen: Willis barne of corn and since taken from Jo. Bowne 5 good milch cowes and drove them away by night and kept them pownded from food" more than a night and a day, so that the neighbors were "generally troubled at it." Then the petitioners proceed to reason with the enemy, using the soft word which turneth away wrath. "Now in simplisity, we doe seriously entreat all that may be conserned herein seriously to consider it and in the cooleness of your spirits without anger or hard thoughts truly to waye it in the balance of Equity where the witness of God may arise in every Contience to testifie, whether If such things should goe on ... it would not be to the rewenating of families and to the kindling of Gods anger against a place or people which we truly desire may be prevented, by takeing away y^e ocation." So they make their appeal to the "cheife," knowing that a magistrate's "authority is to preserve mens persons and Estates, but y^e prerogative of the contience that belongs to God and we dare not but yeald obedience thereunto;" for "we do not act--as sometimes resented (_sic_)--in stobourness obstainancy or contempt of authority but in simplisity."[852]

[Footnote 850: See O'CALLAGHAN, _Hist. of New Netherland_, II,
345-55, 450-57. Under the lead of the clerical bigots, Drisius
and Megapolensis, the Reformed church in New Netherland banished
Lutherans and tormented the Quakers. A number of Friends,
expelled from Massachusetts, arrived in New Amsterdam in 1657,
and were at once persecuted with fiendish cruelty. Nevertheless,
the Quakers grew apace in numbers, settling by preference in
Jamaica and Flushing on Long Island. Among them was John Bowne, a
recent convert and signer of the petition quoted in the text. In
1662 he was fined for allowing his house to be used as a Quaker
conventicle; and in the next year he was banished to Holland.
This resulted in calling down upon the head of Stuyvesant a
severe and just rebuke from the directors. See also BRODHEAD,
_Hist. of N. Y._, I, 636, 705; O'CALLAGHAN, _op. cit._, 338-42,
428; EARLE, _op. cit._, 260; and WALLER, _Hist. of Flushing_,
37-47, 77, note. It is a pity that a writer of such merit as Mr.
Waller should have reiterated (46, 47) the baseless and long
since exposed slanders against the Quakers in New England.]

[Footnote 851: FERNOW, _op. cit._, XIV, 752, 753; also in _New
York Colonial MSS._, XXIX, 202.]

[Footnote 852: The petition concludes with the following
exhortation: "and we earnestly desire y^e Lord may perswade your
hearts, vnto whome we are now concerned, that y^e may remoue y^e
cause of this our address and open that eye in you that can see
vs as we are, who can pray for those thats in authority that
vnder them we may live a peaceable holy and Godlike life

Y^e 4th day of y^e 7^{th} mo: 1680

"Henry Willis
John Bowne."
]

From this evidence it would seem that the magistrates of Long
Island were not less thrifty in their zeal than were their
brethren in Massachusetts from whose pious robbery and legal
cruelty the Wardwells suffered.[853] It is noticeable, too,
that only fines are spoken of. Nothing is said of invalidating
marriages celebrated in the Quaker fashion. From this the
suggestion already made gains support that the nullifying clause
in the duke's code was illegal; and we may, perhaps, also infer
that it was not attempted to be carried out in practice by the
courts. Certain it is that in 1661, only four years before the
adoption of the duke's laws, a marriage celebrated in England
according to Quaker rites was held legal in a trial which
took place at the Nottingham assizes.[854] The marriage law
of 1665, at least so far as it was valid, remained in force
until the passage of the so-called "Dongan" act of 1684.[855]
This statute[856] was one of the thirty-one acts receiving the
governor's signature and passed at the second session of the
first representative assembly of New York, elected in 1683 under
the reluctant and grudging sanction of the Duke of York.[857] By
it no striking change is made in the broad outline of matrimonial
administration; but in the details several important alterations
appear. The provision regarding optional civil or ecclesiastical
banns is identical with that of the earlier law, except that
posting on the constable's door in each parish, instead of on
"three doors," is deemed sufficient. License "under the hand and
seale of the governour" in place of banns is still allowed. As
before, any minister or justice within the province is authorized
to perform the ceremony; but now the persons are required to
"bring a Certificate from under the ministers hand that published
them or under the Constable hand on whose doores their names were
affixed which Certificate shall be sent to the office of the
Register of the County and there Entred on Record together with
a Certificate of their Marriage with the day and date thereof
from the party by whom they were marryed there to remaine in
perpetuam rei memoriam;" and it is provided, further, that the
persons purge themselves by oath, if required, that they are not
already under bonds of matrimony. But in this connection, instead
of the clause as to boring through the tongue with a red-hot
iron, it is declared that "if it shall afterwards happen to be
proved that either ... of the said partyes" has thus contracted
a bigamous marriage through false swearing, he "shall suffer
as in Cases of perjury and further be proceeded against as in
Cases of polygamy."[858] The act is liberal in another respect.
At last the Quakers are granted relief in a provision which in
substance finds many repetitions in American legislation during
the two centuries to come. Nothing, we are told, is "intended to
prejudice the Custome and manner of marriage amongst the Quakers,
but their manner and forme" shall be judged lawful; provided
they allow "none to marry that are restrained by the Law of God
contained in the five bookes of Moses; and that they permitt none
to be marryed within their Congregation or meeting of any other
persuasion then themselves," except after banns or license and
record made according to law.

[Footnote 853: HALLOWELL, _Quaker Invasion of Massachusetts_,
99-104.]

[Footnote 854: _New York Colonial MSS._, XXIX, 203 (New York
State Library). Regarding this decision, which settled the
character of marriage law in England, SEWEL, _History ... of
the Quakers_, 292, has a striking passage: "It happened about
this Time in England, that some covetous Persons, to engross
Inheritances to themselves, would call the Marriages of those
called Quakers in question. And it was in this Year that such
a Cause was tried at the Assizes at Nottingham; a certain
Man dying, and leaving his Wife with Child, and an Estate in
Copyhold Lands: When the Woman was delivered, one that was near
of kin to her deceased Husband, endeavoured to prove the Child
illegitimate: And the Plaintiff's Council willing to blacken
the Quakers, so called, asserted the Child to be illegitimate,
because the Marriage of its Parents was not according to Law; and
said bluntly, and very indecently, That the Quakers went together
like brute Beasts. After the Council on both sides had pleaded,
the Judge, whose name was Archer, opened the Case to the Jury,
and told them That there was a Marriage in Paradise, when Adam
took Eve and Eve took Adam; and that it was the Consent of the
Parties that made a Marriage. And as for the Quakers (said he)
he did not know their Opinion; but he did not believe they went
together as brute Beasts, ... but as Christians; and therefore he
did believe the Marriage was lawful, and the Child lawful Heir.
And the better to satisfy the jury, he related to them this Case:
A Man that was weak of Body, and kept his Bed, had a Desire in
that Condition to Marry, and did declare before Witnesses that
he did take such a Woman to be his Wife; and the Woman declared,
that she took that Man to be her Husband. This Marriage was
afterwards called in question: But all the Bishops did at that
time conclude it to be a lawfull Marriage." The jury found for
the child.]

[Footnote 855: In 1674 the duke's laws were ordered put in
execution "except those requiring amendment or alteration":
_Colonial Laws of N. Y._, I, xiv, 107. On Nov. 9, 1674, Governor
Andros issued a proclamation to that effect: _ibid._, xiv, 107,
108.]

[Footnote 856: "The original of this act is not in the office of
the Secretary of State. This copy was made from the manuscript
compilation of the 'Dongan laws' formerly in the office of the
Secretary of State, but now in the New York State Library.
The date of its passage, as October 23, 1684, is given by E.
B. O'Callaghan, in _Hist. Int. to Journals of the Legislative
Council of N. Y._, p. 12."--CUMMING'S note to the act, _Col. Laws
of N. Y._, I, 150.]

[Footnote 857: See his two letters to Andros (1675 and 1676
respectively) in _Col. Laws of N. Y._, I, xiv, xv; and also the
instruction to Dongan, 1682, allowing a general assembly to be
summoned: _ibid._, xv, 108-10. The duke's letters are also in
O'CALLAGHAN, _Doc. Rel. to Col. Hist. of N. Y._, III, 230, 235.]

[Footnote 858: _Col. Laws of N. Y._, I, 150, 151. This seems to
be a decided mitigation of the original penalty: see "An act to
prevent wilfull Perjury," passed by the Assembly Nov. 1, 1683:
_ibid._, 129-31.]

There is in this act one essential variation from that of 1665, which it is of the highest importance to note, and which has been entirely overlooked by writers[859] who have discussed the character of the marriage law of New York after 1684. The invalidating clause, unless by implication, in case of neglect of the required forms and procedure, does not appear. It is merely declared that if "any man Shall p'sume to marry contrary to the Law prescribed the person offending shall be proceeded against as for fornication;" and the minister or justice performing the ceremony shall forfeit twenty pounds and be suspended from his benefice or office.[860] The penalty for fornication according to the duke's law, which seems to have been still in force, was "enjoyning Marriage, fine, or Corporal punishment" at the "discretion of the Court."[861] Thus by any fair interpretation of a penal statute, after 1684, an irregular marriage _per verba de praesenti_ was illegal though valid in New York, just as it was in the mother-country.

[Footnote 859: By COOK, for instance, who says the Dongan
act was "substantially a re-enactment of the Duke's Laws
of 1664, and seems not to have been repealed prior to the
Revolution."--"Marriage Celebration in the Colonies," _Atlantic_,
LXI, 360.]

[Footnote 860: _Col. Laws of N. Y._, I, 151.]

[Footnote 861: _Ibid._, 35. The view presented in the text as to
the penal clause in the act of 1684 is sustained by the opinion
of Lord Watson in the Lauderdale Peerage Case: COOK, _Reports of
Cases Decided by the Eng. Courts_, XXXVII, 357, 358.]

_c_) _Law and custom in the Royal Province._--The Dongan act of 1684, continuing as it does the general provisions of the duke's law, and indeed differing but little--except perhaps in the matter of lay celebration--from the earlier usage of the Dutch, is in harmony with the administrative practice which prevailed in New York until the Revolution; though, as will presently appear, there is good reason to believe that it was repealed in 1691. The provision regarding certificate and registration corresponds with the custom, though the local officers were negligent and the records are far from complete.[862] Perhaps, as a rule, marriage was preceded by banns or civil notice; but license must have been popular, especially among the well-to-do, and a lucrative source of income to the governors, as the forty manuscript volumes of marriage-license bonds, preserved among the treasures of the State Library at Albany, amply bear witness.[863]

[Footnote 862: For example, a marriage record was continuously
kept at Trinity Church, New York, only for the years 1746-64. In
general, the records were imperfect at a much later period: see
MYRON A. MONSON, in _Hist. Genealog. Register_, XLI, 93.]

[Footnote 863: These MSS. are a rich mine for the genealogist.
For this purpose they are made easily accessible through the
_Names of Persons for Whom Marriage Licenses Were Issued_,
printed by order of Gideon J. Tucker, secretary of state, Albany,
1860. On the period covered by the New York licenses see HOFFMAN,
_Chancery Practice_, 15; and _Law Reports_, X, 728 f.]

An instructive piece of evidence as to the importance of the license fee is given by Professor Peter Kalm, the Swedish botanist and traveler, writing in 1748. He mentions the small salary allowed the royal governor by the assembly, the whole of which is sometimes lost through "dissension with the inhabitants;" and he declares that but for three "stated profits" the governor "would be obliged either to resign his office, or to be content with an income too small for his dignity; or else to conform himself in everything" to their inclinations. These extraordinary sources of income are the fees for passports, permission to keep public houses, and marriage licenses. "Few people," he says, "who intend to be married, unless they be very poor, will have their banns published from the pulpit; but instead of this they get licenses from the governor, which impower any minister to marry them. Now for such a license the governor receives about half a guinea, and this collected throughout the whole province, amounts to a considerable sum."[864]

[Footnote 864: KALM, _Travels in North America_ (translated by
JOHN REINHOLD FORSTER, Warrington, 1770), I, 259-62; see also the
extract in HART, _Source-Book of American History_, 128-30; and
for the dates _ibid._, 100.]

In fact, just as in England in our own day,[865] it was "deemed most plebeian, almost vulgar, to be married by publication of the banns for three Sundays in church, or posting them according to the law, as was the universal and fashionable custom in New England." This notice from a New York newspaper, dated December 13, 1765, will show how widespread had been the aversion to the publication of banns:

"We are credibly informed that there was married last Sunday evening, by the Rev. Mr. Auchmuty, a very respectable couple that had published three different times in Trinity church. A laudable example and worthy to be followed. If this decent and for many reasons proper method of publication was once generally to take place, we should have no more clandestine marriages; and save the expense of licenses, no inconsiderable sum these hard and depressing times."

[Footnote 865: See chap x, sec. iii, above.]

For another reason the times became more "hard and depressing" and banns more economical, perhaps more patriotic, as Mrs. Earle further shows by an extract from Holt's _New York Gazette and Post-boy_ for December 6, 1765:

"As no Licenses for Marriage could be obtained since the first of November for Want of Stamped Paper, we can assure the Publick several Genteel Couple were publish'd in the different Churches of this City last Week; and we hear that the young Ladies of this Place are determined to Join Hands with none but such as will to the utmost endeavour to abolish the Custom of marrying with License which Amounts to many Hundred per annum which might be saved."[866]

[Footnote 866: EARLE, _Col. Days in Old New York_, 58, 59.]

The character of the governor's license may be seen in the following sample, issued in 1732:

"By his excellency William Cosby, Esq., Captain general and governor in chief of the provinces of New York, New Jersey, and territories thereon depending, in America, vice-admiral of the same, and colonel in his majesty's army, &c.

"To any Protestant Minister:

"Whereas there is a mutual purpose of marriage between Jacob Glenn of the City of Albany, merchant, of the one party, and Elizabeth Cuyler of the same city, spinster, of the other party, for which they have desired my license, and have given bond upon conditions, that neither of them have any lawful let or impediment of pre-contract, affinity, or consanguinity to hinder their being joined in the holy bands of matrimony; these are therefore to authorize and empower you to join the said Jacob Glenn and Elizabeth Cuyler in the holy bands of matrimony and them to pronounce man and wife."[867]

[Footnote 867: MUNSELL'S _Annals of Albany_, II, 182.]

A goodly store of folklore relating to wedding customs among the Dutch and English of New York has been gathered by Vanderbilt, Earle, and other writers. There was no lack of feasting and pastime. As in the fatherland, maypoles were set up before the door in honor of newly wedded pairs. The fashion of "coming out bride," "that is the public appearance of bride and groom, and sometimes of entire bridal party in wedding array, at Church the Sunday after the marriage," was observed with due pomp and splendor. Collections for the parish poor or to build a church were received from the guests on the bridal day; and bumpers of "sack-posset" seem to have been as keenly relished by the worthy burghers of New York as by good old Samuel Sewall and his Massachusetts brethren.[868] At wedding time there was "open house" and plenty of feasting; but the festivity does not appear to have reached the excess practiced by the Pennsylvania Friends.[869] Hannah Thompson, wife of the secretary of Congress, while residing in New York in 1786, wrote to John Miflin, of Philadelphia, that the "Gentleman's Parents keep open house just in the same manner as the Brides Parents. The Gentlemen go from the Bridegrooms house to drink Punch with and to give joy to his Father. The Brides Visitors go In the same manner from the Brides to his Mothers to pay their Compliments to her. There is so much driving about at these times that in our narrow streets there is some danger. The Wedding-House resembles a bee-hive. Company perpetually flying in and out."[870]

[Footnote 868: For these customs and others see EARLE, _op.
cit._, 60 ff.; and compare VANDERBILT, _Social Customs of
Flatbush_, 149 ff.; WATSON, _Annals and Occurrences of New York
City and State_, 211-17 (written in 1828 regarding customs twelve
years before the Revolution); OSTRANDER, _History of the City of
Brooklyn and King's County_, I, 79-83; _New York Hist. Coll._,
Fund Series, 1880, XIII, 355, where Rev. John Sharpe tells
us that negroes are married merely by mutual consent without
blessing of the church; and _ibid._, Second Series, II, 347-49,
where courtship among the New York Indians is described.]

[Footnote 869: See sec. ii, _b_) below.]

[Footnote 870: HANNAH THOMPSON, _Letters_: in _Pa. Mag. of Hist.
and Biol._, XIV, 35.]

But in the main domestic life was peaceful and prosaic. Family woes were seldom dragged into court. The "capital laws" contained in the duke's code do, indeed, show their New England origin by prescribing death as the penalty alike for denying God or the king's titles, or wantonly smiting a parent; but these were practically a "dead letter."[871] Mrs. Grant bears witness to the happiness and tranquillity of marital life in Albany. "Inconstancy or even indifference among married couples was unheard of, even where there happened to be considerable disparity in point of intellect. The extreme affection they bore their mutual offspring was a bond that forever endeared them to each other. Marriage in this colony was always early, very often happy, and very seldom indeed interested. When a man had no son, there was nothing to be expected with a daughter but a well brought-up female slave, and the furniture of the best bed-chamber. At the death of her father she obtained another division of his effects, such as he thought she needed or deserved, for there was no rule in these cases."[872]

[Footnote 871: _Duke of Yorke's Book of Laws_, 14, 15; _cf._
WEISE, _Hist. of Albany_, 195, 196.]

[Footnote 872: GRANT, _Memoirs of an American Lady_, 48; quoted
also by EARLE, _op. cit._, 55, 56.]

So much for custom and the actual legal practice. We may now turn to the controversy as to whether subsequently to 1691 there was any valid statutory regulation of marriage in New York until after the close of the provincial period. The uncertainty arose in consequence of the following resolution of the assembly, April 24, 1691: "Upon an information.... That the several Laws made formerly by the General Assembly, and his late Royal Highness, James Duke of York;" and also "the several Ordinances or reputed Laws made by the preceding Governors and Councils, for the Rule of their Majesties Subjects within this Province, are reported amongst the people, to be still in force;" it is resolved, _nemine contradicente_, that the first-named laws of the assembly, "not being observed, and not ratified and approved by His Royal Highness, nor the late King, are null, void, and of none effect;" as also are the "several Ordinances made by the Governors and councils, being contrary to the constitution of England, and the practice of the government of their Majesties other plantations in America."[873]

[Footnote 873: See CUMMING'S "Historical Note," _Col. Laws of N.
Y._, I, xix. CUMMING cites the note of _Robert Ludlow Fowler_ to
_Fac Simile of the Laws and Acts of the General Assembly ... as
printed and sold by William Bradford, 1694_, 78 ff.]

The terms of the resolution are very clear; but unfortunately, so far as has yet been discovered, no record exists of its having been placed before the governor and council for approval. Nor does the validity of this resolution or that of the act of 1684 ever appear to have been tested in the provincial courts. Singularly enough, this dual question was not judicially considered until the "Lauderdale Peerage Case," in 1885, which grew out of a marriage solemnized one hundred and thirteen years before--on the very eve of the Revolution. The record of the trial and judgment in this case is really equivalent to a treatise by learned jurists on the matrimonial law of New York, from the Dutch Ordinance of 1654 to the adoption of the constitution of 1777. Moreover, distinguished American lawyers were called as expert witnesses or to submit written opinions.[874] From the record in the case[875] it appears that on July 11, 1772, two days before his death, Colonel Richard Maitland and Mary McAdams were married in New York city by Rev. John Ogilvie, an ordained clergyman of the Church of England, and then assistant minister of Trinity Church. The main question at issue, and the only one with which we are here concerned, was the requisites for a valid marriage in the province of New York in that year. As recited in the syllabus, there were produced, _inter alia_, in support of the marriage from the custody of the family a certificate in legal form; an affidavit, signed by the mayor of New York, to the effect that the officiating minister had made oath of the truth of the statements in the certificate; a will of date anterior to the marriage, by which Colonel Maitland left all his property to his wife and the children then born; copies of letters showing that one of the executors wrote to his co-executors in England, a brother of the bridegroom, stating that he was a witness to the ceremony of marriage; that the woman signed herself in the man's surname; that the children were recognized and taken care of by members of the man's family; and also war office records showing that the woman received a pension as Maitland's widow.[876] But evidence was not forthcoming of previous license or publication of banns. Did the neglect of license or banns invalidate the marriage? It was contended by the witnesses and advisers of the counter-claimant that the statute of 1665 and that of 1684 rendered license or banns indispensable, and that such continued to be the law of New York down to the marriage in 1772.[877]

[Footnote 874: American witnesses for the claimant were E. J.
Phelps, the United States minister, S. P. Nash, and C. Cary,
of the American bar. Those for the counter-claimant were R. L.
Fowler, of the American bar, and G. F. Edmunds, chairman of
the Committee on Judiciary of the United States Senate: _Law
Reports_, X, 728 n. 1. See also WEBSTER, _Opinion on the Law of
Marriage in the Col. of N. Y._ (New York, May 26, 1885); SEWARD,
_Answer to Interrogations of Brodie and Sons_ (New York, June,
1885); and FOWLER, _Letter and Opinion_ (New York, May 11, 1885).
Copies of these three opinions are in the State Library, Albany.
Written opinions were also submitted by James C. Carter and
William Evarts, of New York.]

[Footnote 875: In _Law Reports_, X (1885), 692-762; and in COOK,
_Reports of Cases Decided by Eng. Courts_, XXXVII, 341-69. The
case was referred by the House of Lords to the Lords' "Committee
for Privileges" for hearing.]

[Footnote 876: _Law Reports_, X, 693.]

[Footnote 877: _Ibid._, 794.]

Thus in his written opinion Mr. Sidney Webster, in answer to the question "whether the law of marriage in New York, in 1772, was contained in Dongan's law of 1684, supplemented, where defective, by the older laws of the Duke of York and of the Dutch?" says that he thinks the "fundamental law" of the colony of New York when the case arose, was made up of so much of the Dutch law as was unrepealed and remained in force; so much of the English common law as had been established after the conquest in 1664; so much of the English parliamentary statutes[878] as had been enacted and specially made applicable; and the colonial statutes legally enacted and sanctioned by the crown. "I have not seen nor heard," he continues, "of a denyal that the ... law of 1684 was a valid enactment" at the date of its passage. "In so far as it covered matters and also punishments embraced in any previous statute, or ruled by the common law, and was inconsistent therewith, it repealed or abrogated both by implication." Any contract of marriage made in "palpable violation" of the requirements of either of these laws, while in force, would be void; and "if it could be found that the marriage law of 1684 was repealed prior to 1828, then, in the absence of any positive law to the contrary," the duke's law "would by implication be revived."[879] So he concludes that in 1772, for a valid contract, there must be previous banns or license, as well as solemnization by a clergyman or magistrate.[880] With this conclusion the opinion of Mr. Evarts coincides. "The statute of the Assembly in 1684," he says, "unquestionably was in force in 1772. The essentials of a valid marriage according to the law of New York in 1772, were that the ceremony should be performed by a minister or a justice of the peace, and that such marriage could be lawfully performed only after the publication of the banns prescribed by the act of ... 1684, or in default of such publication ... , by a license from the governor."[881]

[Footnote 878: This opinion is not convincing; for the common law
had not been "established," in the sense of enacted or declared;
nor were there any British statutes which bore upon the marriage
celebration in New York.]

[Footnote 879: By the law of 1828 it was declared that a
marriage, "so far as validity is concerned," is a civil contract
"to which the consent of parties capable in law of contracting,
shall be essential."--_Revised Statutes_, 1827-28, II, 138.]

[Footnote 880: WEBSTER, _Opinion_, 2 ff., 55, 59, 70. He cites
Fenton _v._ Reed (4 JOHNSON, _Reports_, 51), in favor of validity
of consensual or common-law marriage; and Milford _v._ Worcester
(7 _Mass. Rep._, 48), on the opposite side. In substantial
agreement with Webster are the opinion of SEWARD, _Answer_, 1-53;
and that of FOWLER, _Letter and Opinion_, 60, 61, _passim_,
who to prove the validity of the duke's law cites the cases of
Fabricius and Ralph Doxy, above discussed.

The counter-claimant also produced the case of Dan Sutton,
sentenced for bigamy and bored through the tongue with a red-hot
iron in 1672--a case plainly irrelevant, so far as the question
of marriage contract is concerned; and likewise the case of
Mary Jones, 1680, for having a bastard child, "she pretending
to be married before delivered; but without either license or
publication. She was fined £5 or to receive twenty stripes on the
back"--a sentence which perhaps tells on the claimant's side, for
it punishes an illegal act, but says nothing of nullifying the
marriage; or, if the marriage may be regarded as invalidated by
implication, the sentence is illegal as contrary to English law.
For these citations see _Law Reports_, X, 733.]

[Footnote 881: Evarts's opinion cited by COOK, "Mar. Cel. in the
Colonies"--_Atlantic_, LXI, 361.]

For the claimant also a mass of evidence was presented. Important decisions were cited;[882] and it was pointed out that in the acts of the legislature published after 1684 neither the statute of that year nor the duke's law appears; "nor in fact" were "any of the laws prior to 1691" printed in subsequent collections.[883] Sir. F. Herschell, counsel, urged that "unless it is expressly provided that the failure to comply" with the requirement of the statutes in question "shall render a marriage null and void, the courts will not so construe;" and he holds that the resolution of the assembly, 1691, was valid; for "everybody" acted as if the laws repealed by it were not in force.[884] In short, "the substantial effect of the evidence of those called for the claimant," as summarized in the report of the case, was "that the law prevailing in New York with regard to the requisites for a marriage in the year 1772 was the common law of England as interpreted by the American courts, _i. e._, that there should be a contract of marriage per verba de presenti; and that the 35th article of the constitution of the state of New York, adopted in 1777, ... shewed that the common law of England, as then understood, governed this subject."[885]

[Footnote 882: The American witnesses for the claimant cited
Jackson _v._ Gilchrist (15 JOHNSON, _Rep._, 89); Constantine _v._
Windle (6 HILL, _Rep._, 176); Humbert _v._ Trinity Church (24
WENDELL, _Rep._, 625): HOFFMAN, _Chancery Practice_ (2d ed., New
York, 1843); _Revised Statutes of N. Y._ (ed. 1830), 729; and
Fenton _v._ Reed (4 JOHNSON, _Rep._, 52), the leading case for
"common-law" marriage.]

[Footnote 883: _Law Reports_, X, 728. The act of 1684 is
preserved in MS. in the New York State Library; and this I have
examined through the courtesy of Mr. Griswold.]

[Footnote 884: _Law Reports_, X, 734. Herschell cites King _v._
The Inhab. of Birmingham (8 B. & C., 29); and Dr. Lushington in
Caterall _v._ Sweetman (1 ROBERTSON, _Ecc. Reports_, 321).]

[Footnote 885: _Law Reports_, X, 728. The reference to the
thirty-fifth article of the constitution of 1777 adds little
weight to the argument. Except as concerns any established
denomination of Christians or the sovereignty of the crown, that
article provides that "such parts of the common law of England,
and of the statute law of England and Great Britain, and of the
acts of the legislature of the colony of New York," as together
did form the law of that colony on April 19, 1775, should be the
law of the state: POORE, _Charters_, II, 1337, 1338.]

Such was the unanimous decision of the committee of Lords constituting the court, whose members submitted their opinions separately. The Earl of Selborne doubted whether the acts of 1665 and 1684 were in force in 1772 and significantly suggests that, if they were in force, failure of banns and license would not invalidate a marriage. He further argues strongly that in the present instance there is no absolute proof that banns or license was lacking; for the church records are often imperfect. In any event, therefore, the rule _omnia praesumunter rita acta_ ought to govern the case; for one cannot conceive of any circumstance more properly requiring its application.[886] In harmony with this view was the able opinion of Lord Blackburn, which in effect maintained the validity of the common law in New York subsequent to 1684. The original English settlers, he argues, "carried with them all the immunities and privileges and laws of England.... That being so, from the time when the colony of New York was first settled it had primâ facie the marriage law of England such as it was in the latter part of the seventeenth century;" and in England at that time a marriage "solemnized according to the form of the Church of England, and by a clergyman of the Church of England ... was valid to constitute matrimony: although if it was a clandestine or irregular marriage without banns or a license, the clergyman who performed it might be liable to censure" and punishment. In addition his lordship significantly raises a doubt as to whether the Duke of York had power to introduce a new law of marriage essentially different from that of England as regards the absolute requirement of license or banns.[887]

[Footnote 886: _Law Reports_, X, 742.]

[Footnote 887: _Law Reports_, X, 744-49.]

Accordingly, the other judges agreeing, the laws of 1665 and 1684 were set aside as not in force; and the claim of Major Frederick Henry Maitland, descendant of Colonel Richard Maitland, to the earldom of Lauderdale was sustained.[888]

[Footnote 888: _Ibid._, 762. Of course, the question as to
whether the presence of a clergyman at the ceremony was essential
to a valid marriage was not raised; and if it had been raised
in 1885, the court might possibly have decided that it was
requisite, in harmony with the judgment in the Queen _v._
Millis. History must, however, decide the other way. But compare
the conclusion of COOK, "Mar. Cel. in the Col.," _Atlantic_,
LXI, 361, who infers from this decision that "this 'common-law
marriage,' falsely so-called--the 'free marriage' of the later
Roman law, of the canon law, and of the Scotch law,--did not
exist in New York (or, indeed, in any of the other colonies)
prior to the Revolution."]

There can be little doubt that this was a righteous judgment, in harmony with the entire history of the English decisions down to the case of the Queen _v._ Millis, whose character has already been considered.[889] Furthermore, its justice is rendered almost certain by a witness, not called in the trial, but whose evidence given in 1773, the very next year after the marriage in question, is assuredly worthy of more attention than any produced by the American experts in 1885. This testimony is given by Rev. John Rodgers, in a paper read before the "Reverend General Convention of the Delegates from the Associated Churches of Connecticut, and the Synod of New York and Philadelphia," met at Stamford, September, 1, 1773; the manuscript being found in the cabinet of President Stiles by the historian, Abiel Holmes:

"There has no law been made in this province relating to marriages, nor do any of the English statutes concerning them extend to it. They stand therefore on the common law of the land; and as words de presenti constitute a marriage by that law, the courts of judicature, on any contest, must leave the question _married or not_ to the jury of the county upon the proofs that are offered, as they do with respect to any other enquiry relating to matter of fact. This is attended with some inconvenience; but the politicians contend that they would be greater, if the legislature should interpose by a law to prevent clandestine marriages; and it is much to be doubted, whether the several branches would be brought to any unanimity on the subject, were it attempted. The rites of marriage were at first celebrated by the justices of the peace, as well as the clergy, either upon the governor's licence, or the publication of bans thrice in some place of worship. This was the case till the year 1748, before which time the licences ran, _to all Protestant ministers_; but upon application of the Episcopal clergy who meant to monopolize this business, they are since directed _to all Protestant ministers of the Gospel_, and from the time of this alteration the justices do not intermeddle, except in such counties where clergymen are scarce. But marriages are celebrated by clergymen of all denominations without distinction, and yet for any law to the contrary, a marriage with or without licence or publication, and with or without the aid of a clergyman or magistrate, will be valid in law. A contract in words de presenti, proved by witnesses and subsequent cohabitation as man and wife, constitutes a marriage of legal validity, as already suggested."[890]

[Footnote 889: See Vol. I, 316-20, above.]

[Footnote 890: RODGERS, _A Brief View of the State of Religious
Liberty in the Colony of New York_: in 2 _Mass. Hist. Coll._, I,
152. On the authorship, see _ibid._, II, 270.]

After this it seems only necessary to add that if it should appear strange that the legal practice in the administration of matrimonial law, during the provincial period, harmonizes in the main with that prescribed by the laws of 1665 and and 1684, it is sufficient to say that this is so by force of custom; while, so far as license is concerned, that was maintained by virtue of the power granted to the royal governors in their instructions.[891]

[Footnote 891: In their instructions the governors are directed
to issue marriage licenses, and usually to hang up the "table of
marriages" according to the English canons: O'CALLAGHAN, _Doc.
Rel. to Col. Hist., N. Y._, III, 372 (instructions to Dongan, May
29, 1686), 688 (to Sloughter, Jan. 31, 1689), 821 (to Fletcher,
March 7, 1691/92); _ibid._, IV, 288 (to Bellomont, Aug. 31,
1697), 558 (Bellomont's instructions to Lieutenant-Governor
Nanfan), 766 (a letter of Bellomont to secretary of Board of
Trade, telling of the trick by which Rev. Symon Smith got a
license for Baldridge, the pirate, Oct. 19, 1700); _ibid._, V,
135 (instructions to Hunter); _ibid._, VII, 830 (Governor Moore
to Lords of Trade, mentioning his power to license, June 12,
1766).]

II. NEW JERSEY, PENNSYLVANIA, AND DELAWARE

_a_) _Law and custom in New Jersey._--The population of New Jersey was far more homogeneously English than was that of New York and Pennsylvania. It was composed of members of various religious sects. Some Quakers settled in East New Jersey and more in West New Jersey, but they were never numerically strong. The vast majority of the people were Scotch Presbyterians and New England Congregationalists; so that family law shows decided traces of Puritan influence.[892] Circumstances, however, favored toleration in this regard; and hence only in details were the New Jersey matrimonial law and custom different from those which existed in New York.

[Footnote 892: Compare COOK, "Mar. Cel. in the Colonies,"
_Atlantic_, LXI, 358, 359.]

The legal history of the province begins in the year of the English conquest of New Netherland. In 1664 a very liberal plan of government, called the "Concessions and Agreement," was established by the proprietors, Lord Berkeley and Sir George Carteret. All "faithful subjects of the king" are admitted to "plant and become freemen" of the said province of New Jersey. No one is to be "molested, punished, disquieted or called in question, for any difference in opinion or practice in matters of religious concernments," provided he do not disturb the "civil peace."[893]

[Footnote 893: For the Concessions see SMITH, _Hist. of the Col.
of Nova-Caesaria, or New Jersey_, 512 ff.]

Under this instrument in 1668 the first matrimonial legislation appears. "For the preventing of unlawful marriages, it is ordered ... that no person or persons, son, daughter, maid, or servant, shall be married without the consent" of parents, masters, or overseers, "and three times published ... at some public meeting or kirk, where the party or parties have their most usual abode;" or their "purpose" be set up in writing "on some publick house where they live," there to "abide" for the space of fourteen days before the celebration, which, "if possible" is to be performed in a public place. "None but some approved minister or justice of the peace within this Province, or some chief officer, where such are not, shall be allowed to marry or admit of any to join in marriage, in their presence;" under the penalty of twenty pounds[894] and removal from office for neglect. But in place of banns or civil notice, the governor may grant his license to "any that are at their own disposing," if they "clear themselves by oath or certificate;" or to any others "under tuition," provided the parents, masters, or overseers are present to give their consent, or such consent be "attested by some public officer" before the license is issued.[895]

[Footnote 894: Later reduced to ten pounds: _Acts of the
Assembly_, 1693, 332.]

[Footnote 895: LEAMING AND SPICER, _Grants, Concessions, and
Original Constitutions_, 81, 82 ("Laws in Cartaret's Time").]

This act, which, it may be noted, does not contain a clause expressly invalidating a marriage for non-observance of its provisions, seems to have remained in force for fifteen years. But in 1682 "that part of the province called East New Jersey came by purchase into the possession of William Penn and other Quakers," who formed an association called the Twenty-four Proprietors. By these a body of rules known as the "Fundamental Constitutions" was established, containing a provision for the celebration of marriage, after the Quaker fashion, very similar to the law for Pennsylvania made in England the same year by Penn and his associates.[896] All marriages "not forbidden in the law of God shall be esteemed lawful where the Parents or Guardians being first acquainted, the Marriage is publickly intimated in such Places and Manner as is agreeable to Mens different Perswasions in Religion, being afterwards still solemnized before creditable Witnesses, by taking one another as Husband and Wife, and a certificate of the whole, under the Parties and Witnesses Hands, being brought to the proper Register for that End, under a Penalty if neglected."[897] In March of the same year a statute was passed differing in several respects from the preceding. Parents or guardians are to be consulted and give their consent. "Intentions" are to be published for "at least three weeks" before solemnization, which "shall be performed by and before some justice of the peace or other magistrate," unless he "refuse to be present;" the certificate shall be entered "in the register of the town and county" where the marriage takes place; and a record of publication is likewise to be kept by the clerk of the "assembly" or public place where it occurs.[898] Cook thinks this statute may "have been a compromise between the Quaker and the Puritan practice, that left out the very feature in each which was most desirable. For the parties were to take each other as husband and wife, but not 'before creditable witnesses;' while, on the other hand," by the terms of the law, if the "justice or magistrate refused to be present, it would appear that the parties could marry themselves."[899] But _that_ they could undoubtedly do under the former law, since there is no nullifying clause, and the only penalty mentioned is clearly for failure to file the certificate.

[Footnote 896: _Cf._ COOK, _loc. cit._, 359; and LINN, _Charter
and Laws_, 101.]

[Footnote 897: "Fundamental Constitutions," sec. xx: in _New
Jersey Archives_, I, 408; and LEAMING AND SPICER, _Grants_, etc.,
164.]

[Footnote 898: A "Bill for the General Laws of the Province of
East New Jersey," March, 1682/83: LEAMING AND SPICER, _op. cit._,
236. By this act marriage within the degrees there named is
declared void: _ibid._, 243.

The "Fundamental Constitutions" had provided that there should be
a "register in each county for births, marriages, burials, and
servants, where their names, times, wages, and days of payment"
should be recorded: LEAMING AND SPICER, _op. cit._, 163; and
already in 1675, under the first proprietors, the "clerk of each
town within this Province," in a book provided by the town, is
to record "all births, marriages, and deaths" in his district:
_ibid._, 100.]

[Footnote 899: COOK, _loc. cit._, 359.]