The Marriage Celebration in the Colonies
THE rise of Independency in England, its relation and its consequences to Episcopacy, as well as the revolution which it involved in the celebration of marriage, were set forth in the preceding number of The Atlantic. This great religious reform, culminating in the seventeenth century, obtained in England but a short public triumph against the absolutism firmly seated in the Church and the State. Its main effect there was to spread in society influences that worked toward the future development of toleration in religion and of democracy in politics. But in the new England, free from counteracting forces, this reform became the immediate, open, and controlling power in establishing society. Hence the civil celebration of marriage which it involved, and which in England obtained under Cromwell, in the time of Puritan supremacy, but a short legal existence and recognition, and then entirely disappeared, was from the first firmly established in America, and has here continued to exist to this day.
From Holland a body of English refugees brought Independency to New England in 1620. Also from England came successive expeditions, with which were many non-conformists, including ministers episcopally ordained. But, once in America, only slight religious differences were found between the nonconformist of Massachusetts Bay and the Pilgrim of Plymouth. The colonists of Massachusetts and of Plymouth, as well as those of New Haven and of Connecticut, were all alike fleeing from the errors and the corruption of Episcopacy ; and Independent principles prevailed in the founding of Church and of State. This community of religious belief and practice, as well as the political union between the colonies against common enemies, aided in assimilating their laws and their customs. As Palfrey says, “ Their several codes bear witness to a substantial uniformity in the social system which grew up among them.” At the foundation of that system was a deep appreciation of the dignity of the family and of the necessity of strict marriage laws. As stated in the Connecticut Code of Law, it was believed that “ the prsprity and well being of Comonweles doth much depend vppon the well gouernment and ordering of prticular Familyes, wcU in an ordinary way cannot be expected where the rules of God are neglected in laying the foundation of a family state.”
But in interpreting “ the rules of God ” through the medium of their religious belief, these colonists were led to forsake all precedent, and to institute a form of marriage celebration unique in modern times. Its chief feature was that a marriage, to be valid, must be celebrated before a civil magistrate. “ I suppose,” says Hutchinson, “ there had been no instance of a marriage, lawfully celebrated, by a layman in England, when they left it. I believe there was no instance of marriage by a clergyman after they arrived, during their charter ; but it was always done by a magistrate, or by persons specially appointed for that purpose, who were confined to particular towns or districts.” “We do not wish to introduce here,” said Winthrop, “ the English custom of solemnities at a marriage. If any minister is present, he might bestow an exhortation; but we adhere to the strict Protestant principle that marriage is purely a civil right.”
At first, the solemnization by the magistrate, to the exclusion of the minister, was sustained only by public opinion, not by positive law. The reason was stated by Winthrop in 1636 : “To make a law that marriage should not be solemnized by ministers is repugnant to the laws of England; but to bring it a custom by practice for the magistrate to perform it is by no law made repugnant.” It was not until 1646, when the custom had long existed and their brethren in England were gaining political power, that the colonists of Massachusetts Bay dared to make it a law. It was then enacted that “ as the ordinance of marriage is honorable amongst all, so should it be accordingly solemnized ... no person whatsoever in this jurisdiction shall join any persons together in marriage, but the magistrate, or such other as the General Court or Court of Assistants shall authorize in such place where no magistrate is near. Nor shall any join themselves in marriage, but before some magistrate or person authorized as aforesaid.” Two years later, the New Haven Colony Laws ordered “ that no man unless he be a Magistrate in this Jurisdiction, or expressly allowed by the General Court, shall marry any persons, and that in a publick place.” In the colony of Rhode Island and Providence Plantations, according to a law of 1647, every marriage, to be lawful, had to be “ confirmed before the head officer of the Towne.” And the colony of Connecticut recognized a similar principle in the “ Code of Law established by the General Court in 1650.”
Of course, upon the passage of Cromwell’s Act in 1653, establishing in England the civil celebration of marriage, these colonial statutes ceased to be “repugnant to the laws of England.” But as the English statute was soon repealed, the same objection revived, and these laws were singled out as obnoxious by the king. Indeed, in 1682. Randolph, the king’s agent, advised that all marriages should be declared void “ but such as are made by the minister, of the Church of England.” Nevertheless, the General Court resolved to make no change in the law, and none was made.
But the colonists had denied to ministers the power of celebrating marriage, not so much from religious convictions as from their recollection of priestly oppression, and their fear of its recurrence in their midst under a new form; and as the recollection grew dim, the fear ceased. Accordingly, toward the close of the seventeenth century, there began a reaction throughout New England toward a renewal of religious associations in the nuptial ceremony. Thus the General Court of Connecticut enacted, in 1694, that “ this court doe for the sattisfaction of such as are conscienciously desireous to be marryed by the ministers of their plantations, doe grant the ordayned ministers of the seuerall plantations in the Colony liberty to joyne in marriage ; ” and in Massachusetts, a provincial statute of 1692-3 provided that “ every justice of the peace within the county where he resides, and every settled minister in any town, shall and are hereby respectively empowered and authorized to solemnize marriages.” This innovation was adopted in the rest of New England, and gradually replaced the former custom. Hutchinson, writing about sixty years later, says: “At this day marriages are solemnized by the clergy ; and although the law admits of its being done by a justice of the peace, yet not one in many hundreds is performed by them.”
There is evidence that prior to 1692, to constitute marriage, there was required, besides the presence of the magistrate, the publication of intentions of marriage, if not also the consent of the legal guardians of the parties to be married ; that, in other words, a celebration before a magistrate did not in law create the marriage state unless preceded by such publication and consent. To this effect the law of 1647, in the colony of Rhode Island and Providence Plantations, is very strong: “No contract or agreement between a Man and a Woman to owne each other as Man and Wife, shall be owned from henceforth threwout the Whole Colonie as a lawful marriage . . . but such as are in the first place, with the parents, then orderly published in two severall meetings of the Townsmen.” Nearly as strong are the words of the New Haven Colony Laws: “ No person shall be either contracted or joyned in Marriage before the intention of the parties proceeding therein, hath been three times published, at some tune of publick Lecture, or Town meeting in the Town, or Towns where the parties, or either of them dwel, or do ordinarily reside ; or be set up in writing upon some post of the meeting house door . . . by the space of fourteen daies.” So in the Massachusetts statute of 1646 : “ Nor shall any magistrate, or other person authorized as aforesaid, join any persons in marriage, or suffer them to join together in marriage in their presence, before the parties to be married have been published according to law.”
At any rate, with the coming of the provincial charter the strictness of the colonial period was relaxed. To be sure, the statute of 1695 made the provisions for publication and consent more specific. No magistrate or minister was allowed to celebrate “ marriage without Certificate produced under the Hand of the Clerk of the several Towns where the parties respectively dwell, that the Names and Intentions of the said Parties have been entered with him fifteen Days before Hand ; and that due Publication . . . has been made ... Nor without evident Signification that the Parents of such Persons, or others whose immediate Care or Government they are under, are knowing of, and consenting to such Marriage.” But the penalty for infringement of this law was not nullity of the marriage, but a fine of fifty pounds upon the minister or magistrate concerned. This was substantially the law in Massachusetts till 1787 ; and Chief Justice Parsons ruled, in interpreting it, that “ when a justice or minister shall solemnize a marriage, . . . although without publication of the banns of marriage and without the consent of the parents or guardians, such marriage would be unquestionably lawful, although the officer would incur a penalty of fifty pounds for a breach of his duty.” The example of Massachusetts was followed by the rest of New England. More definite provisions were made for the publication of banns, and for the consent of parents or guardians ; but a fine was made the sole penalty of their infringement. The same could be said of the registration of marriage, provision for which was early made throughout New England.
But in most, if not in all, of New England, the interposition of a minister or magistrate continued to be indispensable in law to constitute the marriage state. The Massachusetts Act of 1695, above mentioned, provided that “no Person other than a Justice of the Peace, and that within his own county only, or ordained minister, and that only in the Town where he is settled in the Work of the Ministry, shall or may presume to join any Persons together in Marriage.” This statute continued in force till 1786, and Chief Justice Parsons said of it: “ The statute would be substantially conformed to, if the parties were to make the mutual engagement in the presence of the justice or minister, with his assent, he undertaking to act on that occasion in his official character. But without such assent and undertaking . . . the marriage, I am well satisfied, will not be solemnized pursuant to, nor be a lawful marriage within, the statute.” As regards Connecticut, Swift’s System of Laws, published in 1795, after reciting that only ministers and magistrates are empowered to solemnize marriage, states: “ An erroneous opinion has prevailed that any person not a minister or justice of the peace may join persons in marriage, but this opinion is clearly against law.” Hence, during the eighteenth century, at least, by the prevailing law of New England the state of matrimony could not be constituted without the intervention of a minister of the gospel, or of a civil magistrate.
In the Southern colonies, also, the early marriage laws were equally strict, although they grew out of a state of society very different from that of New England. The first settlers of Virginia were described by Captain John Smith, one of their number, as “ poor gentlemen, tradesmen, servingmen, and libertines.” Certain it is that the best of them were adventurers in quest of gold, and most of them were reckless characters just returned from the Spanish wars. Unlike the Pilgrims, they were not troubled by questions of conscience, nor were they reluctantly leaving their country for the sake of religious freedom. Yet some of them were good Churchmen, and their charter provided for the establishment of the English Church. They brought with them an Episcopal clergyman, and Episcopacy was early established and constantly fostered. Of course the celebration of marriage according to that ritual was, as far as practicable, adopted in Virginia. As in England, the presence of a clergyman episcopally ordained was indispensable. A colonial law of 1661-2 provided “that noe marriage be solemnized nor reputed valid in law but such as is made by the ministers according to the laws of England.” Indeed, for nearly two hundred years after Virginia was settled, neither layman nor dissenting minister could legally celebrate marriage. Society in the colony was a reproduction on a small scale of that in the mother country ; and persecution of papists and of dissenters in the latter was imitated in the former. The Established Church had the unqualified and constant support of the Virginian aristocracy ; and in 1699, according to Lodge, “ three or four Presbyterian meeting-houses and a Quaker conventicle were the only places of worship outside the pale of the Church.” But soon thereafter the number of dissenters rapidly increased, and at the beginning of the Revolution they seem to have composed half of the population. In consequence, the intolerant spirit declined, the Establishment lost ground, and in the struggle for independence it was overthrown.
Corresponding to this revolution in the State and the Church, there was an important development in the celebration of marriage. Presuming upon the spread of tolerance, already dissenting ministers had joined persons in marriage ; and in 1780 and 1784, acts were passed confirming such unions, and providing that it should be “lawful for any ordained minister of the gospel ... to celebrate the rites of matrimony according to the forms and customs of the church to which he belongs . . . provided such minister produces credentials of ordination, and of his being in regular communion with the Christian society of which he is reputed a member, to the county court of the county or borough where he resides, shall take the oath of allegiance to this commonwealth, and give bond with two or more sureties in the sum of five hundred pounds for the true and legal performance of his trust.”
But even then the number of ministers in the remote sections of Virginia was so small that there arose at once the necessity of the next step in the development of the law, namely, the giving to laymen the power to celebrate marriage. By the Act of 1783, the courts in the remote counties were “ empowered to nominate as many sober and discreet laymen as will supply the deficiency ; and each of the persons so nominated, upon taking the oath of allegiance to this State, shall receive a license to celebrate the rites of matrimony according to the forms and customs of the church of which he is reputed a member . . . within the said county.” In 1794, and repeatedly till 1806, this provision was extended to other counties, the further requirement being made that each layman thus nominated should give bond in the sum of fifteen hundred dollars for the faithful performance of his trust. Thus, toward the close of the eighteenth century, Virginia reached a point in the development of our subject attained by New England fully a hundred years before; namely, that for the legal constitution of matrimony, the interposition of a minister duly ordained, or of a layman specially qualified, was indispensable.
Of course, there were differences of detail, between the two sections, that were not essential. For example, as regards the civil celebration, in New England it was incidental to the office of a regular magistrate, and no religious ceremony was either prescribed or customary; but in Virginia, it was the duty of an officer not invested otherwise with magisterial powers, and he was licensed “ to celebrate the rites of matrimony according to the forms and customs of the church of which he is reputed a member.” So as regards the religious celebration, the simple customs prevalent in New England were in contrast with the elaborate ritual adopted in Virginia. A Virginia law of 1631 provided that “ no mynister shall celebrate matrimony betweene any persons without a facultie or lycense granted by the Governor, except the baynes of matrimony have beene first published three severall Sundays or holydays in the time of devyne service in the parish churches where the sayd persons dwell accordinge to the booke of common prayer, neither ... at any unseasonable tymes, but only betweene the howers of eight and twelve in the forenoone, nor, when banes are thrice asked . . . before the parents or guardians of the parties to be married beinge under the age of twenty and one years, shall either personally, or by sufficient testimony signifie unto him their consents given to the said marriage.” The same law directed that in each parish church a record of all marriages should be kept by the minister, that a return thereof should be made by the clerk to the county court, and that “ marriages shall be done in the church except in cases of necessitie.”
This was substantially the system then in force in England, and, as a vital part of the Establishment, it was fostered in the colony as long as Episcopacy retained supremacy. Modifications were allowed only so far as seemed necessary to its maintenance. For example, in 1646, ministers transgressing its provisions were punished with a fine of a thousand pounds of tobacco ; and in 1661, because of the difficulty of publishing banns from the scarcity of ministers, and of the consequent need of greater facility of obtaining license, power was given the county court, in place of the governor, to issue license to those who gave bond that there was no legal obstacle to their union. Even when, a century later, as stated above, through the same scarcity of clergymen and the growth of tolerance, dissenting ministers and laymen obtained the power of celebrating marriage, there were still required in all cases the publication of banns or the procuring of license, and the performance of religious rites.
But in the more Southern colonies, the Carolinas and Georgia, Episcopacy never obtained so firm a hold. The charter of the Carolinas, granted in 1669 to the Earl of Clarendon, the Duke of Albemarle, and others, did indeed, like the Virginia charter, provide for the establishment of the English Church. But it was long before Episcopal clergymen came, and not till 1681 that an Episcopal church was built in South Carolina, and that only by private gifts. On the other hand, the charter, unlike that of Virginia, guaranteed religious freedom ; and this, with the liberal policy adopted, attracted large numbers of dissenters, including French Huguenots, German Protestants, and Massachusetts Independents. These colonists formed the substantial and major part of the population. They stoutly resisted taxation for Church support, and hence the Establishment was for a long time such only in name. But about the beginning of the eighteenth century, a small company of corrupt officials, supported by the Proprietors and by a faction of High-Churchmen, having secured the passage of a law excluding from the South Carolina Assembly all who dissented from the Church of England, proceeded to enact what is called the Church Act of 1704, establishing a complete parochial system of church government, and forbidding magistrates, under penalty, to celebrate marriage. Although the Church Act was soon repealed, Episcopacy continued till the Revolution nominally to be acknowledged and established.
Thus the marriage law of the Carolinas was at first in conformity with that of England; but the growing strength of dissenters and the scarcity of Episcopal clergymen caused, as it did in Virginia, the introduction of the civil celebration of marriage. Colonel Byrd, writing about 1728, says that in North Carolina, “ for want of men in holy orders, justices of the peace and members of the council were empowered to celebrate marriage.” In the same colony the Act of 1741 provided “that every clergyman of the Church of England, and for want of such any lawful magistrate,” could perform the marriage ceremony, but not “ without license first had ... or thrice publication of banns, as prescribed by the rubrick in the book of common prayer.” The magistrate who, in a parish where a minister resided, united persons in marriage without first getting leave of such minister was liable to a fine of five hundred pounds.
This step no doubt opened the way to the policy of toleration which marked the succeeding laws. In 1766, from among the dissenters, Presbyterian ministers, “ regularly called,” were singled out. and permitted to solemnize marriage, “ in their usual and accustomed manner, under the same regulations and restrictions as any lawful magistrate ; ” but marriage celebrated by such ministers, without license, were expressly declared “illegal and void.” In 1778, in the midst of the Revolution, the Establishment having ceased to exist, the law was brought to a state consistent both with the early charter and with the spirit of the time. “ Whereas it is absolutely necessary,” the act reads, “ that rules should be observed concerning the rites of matrimony. . . . All regular ministers of the gospel, of every denomination, having the care of souls, and all justices of the peace in this State, are hereby authorized and empowered to solemnize the rites of matrimony, according to the rites and ceremonies of their respective churches.” But the minister or justice was forbidden, upon penalty, to marry persons until, as in the Virginia Act of 1661, they produced either a certificate of the due publication of banns, or a license from the county court.
Society and law in the colony of Georgia were much as they were in the Carolinas. In Georgia, also, the Church of England was established. But the charter granted to James Oglethorpe and his associates guaranteed liberty of conscience to all except papists, and the spirit exhibited in ecclesiastical legislation was one of toleration. Hence a considerable Puritan element was drawn to the colony. As in the neighboring colonies, the Establishment ceased to exist during the Revolution, and some legislation regarding marriage laws ensued. In 1785, “ all justices of the peace duly qualified, ministers or preachers of the gospel in this State regularly ordained,” were authorized to solemnize nuptials, “ after public notice of eight days being given, or by license of his honor the governor, or register of probates.”
But in Maryland alone of the Southern colonies was there complete religious toleration at the beginning. Her charter, like those of her Southern neighbors, provided for the establishment of the Church of England; but the circumstances of settlement and of development made an establishment impossible. In the expedition to Maryland, in 1633, Lord Baltimore described his followers as “his two brothers, with very nearly twenty other gentlemen of very good fashion, and three hundred laboringmen.” The greater part of the laborers were Protestants : but the Proprietary and the other gentlemen were Catholics, and the policy of complete toleration was the only one that could assure them the enjoyment of their own faith. Accordingly, in spite of the charter, such a policy was instituted. As a result, Maryland became a refuge for the persecuted of all nations. Puritans came in large numbers from Virginia and elsewhere. They soon gained control, and in 1649 the Catholics found it necessary to obtain the Toleration Act, — virtually an agreement by the Council and the Assembly not to persecute Catholics. Indeed, as the Puritans increased in numbers, the early history of Maryland became chiefly a record of efforts by the Catholics and Quakers to maintain the enjoyment of their worship, and to uphold religious toleration. In the main they succeeded, and this fact is abundantly evidenced by the liberality of the early marriage laws. By the Maryland Act of 1658, it was enacted “ that all persons who shall desire Marriage have liberty to apply themselves either to a Magistrate or Minister for the contracting thereof; ” and these words were repeated in the Act of 1676, except that for “magistrate or minister ” were substituted “ priest, minister, pastor, or magistrate,” clearly expressing the broad intent of the law. But from this time there was a struggle for supremacy between Episcopacy on the one hand and Catholicism and Quakerism on the other ; and the success of the former at the close of the Seventeenth century was the beginning of a radical and permanent change in the law, — a change that is unique in colonial history. It was that the civil celebration of marriage inaugurated by the Catholic founders was abolished, and the religious celebration alone maintained. At first, it applied only to members of the Church of England. The Act of 1717 provided that all such persons “ who desire marriage shall apply themselves to a minister for the contracting thereof, and shall cause due publication to be made according to the rubric of the Church of England.” But during the Revolution the change was made for all. According to the Act of 1777, “ The rites of marriage between any white persons, subjects or inhabitants of this State, shall not be celebrated by any person within this State, unless by ministers of the Church of England, ministers dissenting from that Church, or Romish priests, appointed or ordained to the rites and ceremonies of their respective churches, or in such manner as hath been heretofore used and practiced in this State by the society of people called Quakers.” Such is the law in Maryland to-day, this statute having been incorporated in the Maryland code.
The provisions regarding the publication of banns and the obtaining of license were much like those in neighboringcolonies, and severe penalties were imposed for their infringement. But neither banns nor license, it seems, were essential to the constitution of matrimony. The thing always indispensable was the interposition at first of a minister or magistrate, and later of the minister alone. Upon this point the Southern colonies were one with New England. Persons could not marry themselves. The Maryland Act of 1662 “enacted that all contracts or promises of marriage not made before some minister, pastor, or magistrate, with two sufficient witnesses, shall be and are hereby declared null and void.” So, fourteen years later, we find a statute substantially the same, except that the number of witnesses was increased to five; and in 1777 marriages were “not to be celebrated by any person . . . unless by ministers.” The same conclusion is to be drawn from the Virginia Act of 1661, above recited, and from the legislation of the more Southern colonies. In all these colonies, prior to the Revolution, Episcopacy was supported by the government, and was largely concerned in politics. So in New England, for the first fifty years at least, Independency controlled the State. In both denominations, the celebration of marriage was of fundamental concern. The essentials to its validity and the means of its protection were clearly defined and constantly set forth. The principle and the practice of the Church suggested and moulded the law of the land ; and neither Episcopacy nor Independency ever taught that persons could marry themselves merely by the private interchange of words of present consent.
In the middle colonies, no one form of religious belief predominated. They being neutral ground between New England and the South, intolerance was avoided both from Independency on the one side, and from Episcopacy on the other. Religious toleration, in Maryland adopted from expediency and sustained with difficulty, was in Pennsylvania proclaimed from principle and maintained without opposition. Promising full liberty of conscience to all, William Penn attracted to his domain Quakers, Catholics, Lutherans, Presbyterians, Baptists, Anabaptists, Moravians, Palatines, Ridge-Hermits, Dunkards, Mennonists, and Pietists. The religious system of Pennsylvania was peculiar to that province. A century later, receiving the sanction of the convention of 1789, it became, and it is today, the policy of the United States.
Of course, in conformity with that system, in Pennsylvania marriages were recognized as valid in law which were solemnized in any religious society whatsoever. But while the Quakers were charitable and tolerant toward all, their early marriage laws were detailed and strict. In the scheme of government and laws for the province of Pennsylvania, drawn up in 1681, before leaving England, Penn and his associates agreed “ that all marriages (not forbidden by the law of God . . .) shall be encouraged ; but the parents or guardians shall be first consulted, and the marriage shall be published before it be solemnized, and it shall be solemnized by taking one another as husband and wife, before creditable witnesses, and a certificate of the whole, under the hands of the parties and witnesses, shall be brought to the proper register of that county, and shall be registered in his office.” Soon after their arrival in the province, these principles were enacted in the law of 1683, — a law which was thought so important that it was made “ fundamental in the government of this province,” and was not to be changed without the consent of the governor and of six sevenths of the freemen. The purpose of this law was “ to prevent clandestine, loose, and unseemly proceedings in this province and territories thereof, about marriage.” The parties were required to affix “ their intentions of marriage on the court or meeting-house door of the county wherein they dwell, one month before the solemnizing thereof,” and to prove their “ clearness of all other engagements ” by a certificate from some creditable persons. At the ceremony itself twelve witnesses were necessary. Later statutes required that one of these witnesses should be a justice of the peace ; that the certificate should be presented to the religious society to which the parties belonged, or to some justice of the peace in the county in which they lived; and that also the publications should be subscribed by a magistrate of the same description. In 1730, the justice was forbidden to make such subscription, where the parties were minors, unless he received a certificate of consent from the legal guardians. These acts did not apply to persons — Episcopalians or others—who were married in the religious society to which they belonged, and according to its forms. Such, it seems, continued to be the law of Pennsylvania till the close of the eighteenth century, and it was substantially the system set forth by William Penn in 1681. Some ceremony, either in face of the church or in presence of witnesses find a justice, was indispensable ; and persons could not marry themselves in Pennsylvania any more than in Massachusetts or Virginia.
Much more was this the case in New Jersey, where, as compared with Pennsylvania, society was simple and homogeneous, and the law of the family was established after Puritan models. The Quakers did indeed settle West New Jersey and portions of East New Jersey; but New England Congregationalists and Scotch Presbyterians, especially the former. closely followed the Quakers, soon surpassed them in numbers, and were the more influential in establishing society. Religious toleration was assured in the instrument of government called the Concessions, issued in 1664 by the Proprietors, Lord Berkeley .and Sir George Carteret, for their newly acquired grant, New Jersey; and by the law of 1668 there was instituted a form of celebrating marriage consistent with the Concessions and with Independent principles : “ 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 matrimony in their presence.” The parties to be married were required first to obtain the consent of their parents or guardians, and to have their intentions thrice proclaimed in church, or posted for fourteen days in some public place. This, it seems, remained the law for about fifteen years, and was, no doubt, satisfactory to the Puritan majority among the colonists.
In 1682, however, that part of the province called East New Jersey came by purchase into the possession of William Penn and other Quakers. They associated themselves together as the twenty-four Proprietors. They appointed a Quaker governor, and in other respects showed favoritism to their sect, although it comprised but a small minority of the inhabitants. “ The fundamental constitutions ” of these Proprietors contained a provision on the celebration of marriage similar to that made by Penn and his associates, about the same time, for Pennsylvania. But in a subsequent statute there seems to 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, this solemnization was to be “ by or before some justice of the peace, or other magistrate within the province, unless the justice of the peace or magistrate refuse to be present.” If, then, the justice or magistrate refused to be present, it would appear that the parties could marry themselves.
West New Jersey also came into the hands of the Quakers, but with less disturbance of the laws. A statute of 1682 provided that “ justices of the peace have power, and are hereby authorized within their jurisdiction to solemnize marriage.” But after a period of mismanagement by the Proprietors, New Jersey was, toward the close of the seventeenth century, surrendered to the Crown, and was consolidated with New York into one royal province. The Church of England was thereupon established ; but as the Episcopalians were a small minority of the population, and had but little zeal, the Establishment remained barely more than nominal. The liberal policy formerly followed toward religion was, after a short time, resumed. For, in 1718, it was made lawful for “any religious society in the province to join together in the holy bonds of matrimony such persons as are of the said society, according to the rules and customs of the society,” provided the consent of legal guardians was obtained in writing. There appears to have been no further change till the close of the century. In 1795, a law directed that “ every justice of the peace of this State, and every stated and ordained minister of the gospel, shall be and hereby is authorized and empowered to solemnize marriages.” The justice or minister was also required to record the marriage, and to transmit a certificate thereof within six months to the county court. Thus, in the course of a hundred years, New Jersey had put aside the loose laws introduced by the Quaker Proprietors, and had gone back to her earliest colonial law, — that of 1668. Her law of the celebration of marriage was again, it seems, substantially in accord with that of New England.
In New York the conditions of settlement and of early development were remarkable in colonial history. In most of the colonies the settlers were wholly or mainly Englishmen, and society was modeled after English customs and laws. But in the New Netherlands the earliest settlers were Dutch, and the institutions and laws were of Dutch origin. The celebration of marriage was therefore governed by the Roman Dutch law and by colonial ordinances; and from both it is clear that to constitute matrimony there was required the proclamation of banns or the procuring of a license, as well as the interposition of a minister. Such was the law during the half century of Dutch rule. But in 1664 the New Netherlands passed under the control of the English, and in the patent from Charles II. to the Duke of York, he was directed to establish laws and government “ not contrary to, but as near as conveniently may be agreeable to, the laws, statutes, and government of this our realm of England.” Accordingly, after an examination of the New England laws, a code was adopted called the Duke’s Laws, which contained ample provision for the celebration of marriage. After reciting that in England a marriage could not be lawfully celebrated “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,” the act continues : “ Yet to the end that a decent rule may be observed 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 usual meeting, where they both then inhabit three several Lord’s days successively. And where no Church or meeting place shall happen to be, a publication in writing shall be first fourteen days before Marriage upon three doors of each parish whereof the parties Inhabit. . . . Unless they produce a lycence from the Governour, in both which cases, and not otherwise, it shall be lawful for any minister or for any Justice of the Peace to join the parties in Marriage, Provided that the said Partys do purge themselves by Oath before the Minister or Justice that they are not under the bonds of Matrimony to any other person.” That the statute is mandatory, rather than directory, is seen from the penalty imposed “ if any man shall presume to marry contrary to these Lawes prescribed.”
The Duke’s Laws thus followed the then existing law of England as far as was practicable; and superseding the preexisting Dutch rules, it remained in force for the ensuing twenty years. It clearly made void a marriage celebrated without banns or license, or without a minister or magistrate. In 1681, steps were taken, with the concurrence of the Lord Proprietor, to secure a representative government, and in 1683 the first representative Assembly met in the city of New York. At its second session, in 1684, it passed the Bill concerning Marriages. This was, substantially, a reenactment of the Duke’s Laws of 1664, and seems not to have been repealed prior to the Revolution. In this view, the law of New York, at the latter part of the eighteenth century, was more strict than that of the other colonies, North Carolina excepted. For while, as we have seen, in the celebration of marriage there was required the presence, in Maryland, of a minister, and in the other colonies of a minister or magistrate, in New York, and in North Carolina, there was necessary, besides this, the publication of banns or the procuring of a license.
That such was the colonial law of New York has recently been advocated by some of our most eminent lawyers. In the celebrated Lauderdale Peerage case before the House of Lords, in 1885, the main question was as to the requisites of a valid celebration of marriage in the colony of New York in 1772. Senator George F. Edmunds testified before the House of Lords that in his opinion the statute of 1684 was in force and governed the constitution of marriage in New York in 1772. To the same effect were the written opinions of James C. Carter and William M. Evarts, of New York. In the words of the latter, “ The statute of Assembly in 1684 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 Assembly of 1684, or, in default of such publication of banns, by a license from the governor.”
On the other hand, Lord Blackburn and his colleagues, in the case above named, ruled that neither the Duke’s Laws nor the statute of 1684 was in force in 1772, but that the law of the colony was then substantially the same as “ the marriage law of England, such as it was in the latter part of the seventeenth century.” As we have seen, at that time in England, a marriage to be valid had to be celebrated in the presence of a clergyman in holy orders. Hence, though differing as to the requirement of banns or of license, both the English judges and the American experts above named were agreed that in 1772 marriage could not be validly constituted in New York merely by the private interchange of words of present consent. 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. “ I am not able to discover,” says William M. Evarts, “ that at any time . . .
‘ a common law ’ marriage . . . was recognized as valid either by law or custom within the province.”
As we have seen, Independency caused the settlement, and became the ruling and shaping force, of New England. Moreover, such were its vigor and enterprise that it spread in numerous settlements over the Middle and Southern colonies, superseding or modifying local customs and laws. In the South it came in contact with Episcopacy, which, through the favor of the Crown, of Proprietors, and of royal governors, had been forced upon the people. Against the Church thus established the Puritans, together with the other dissenters, waged continual warfare, thus imitating in the colonies the contemporary Puritan movement in England ; and such was the rapidity of their increase in numbers and in power that they gained an easy victory over Episcopacy, when through the Revolution the latter lost the Tory support. The Establishment was then overthrown, and a policy of religious toleration took its place. At the same time, and partly in consequence of these events, there were corresponding changes in the celebration of marriage. During the seventeenth and the eighteenth centuries, the colonial laws upon this subject went through a process of elimination of narrowness and intolerance, and of assimilation to a common type. This type was the optional civil celebration. To this form as a compromise the New England compulsory civil celebration gave way toward the close of the seventeenth century, and the Southern compulsory religious celebration during the eighteenth century; and, being a compromise, it naturally existed from the beginning in the Middle colonies, that neutral ground between the opposing forces of Independency and Episcopacy, — of Puritan and of Cavalier.
Thus, in the latter part of the eighteenth century, the optional civil celebration of marriage existed with substantial uniformity throughout the thirteen colonies, Maryland alone excepted. To constitute marriage, there was required the interposition in Maryland of a minister, and in the other colonies of a minister or magistrate. Incidental, but not generally essential, was a substantially uniform system of banns, license, parental consent, and registration. Throughout the colonies, the requisites of a valid celebration were regulated by statutes which radically modified the English common law ; and what Justice Gray said of Massachusetts is applicable to all the colonies : “ The canon law was never adopted ; and it was never received here as common law that parties could by their own contract, without the presence of an officiating clergyman or magistrate, take each other as husband and wife, and so marry themselves.”
Frank Gaylord Cook.