Part 3 — CHAPTER XIV OPTIONAL CIVIL OR ECCLESIASTICAL MARRIAGE IN THE MIDDLE COLONIES

[Bibliographical Note XIV.—The New York Colonial MSS., of more service for the history of divorce, afford several important documents available for the present chapter. The use of these papers is facilitated by O'Callaghan's Calendar of Historical Manuscripts (Albany, 1866). Among the treasures also preserved in the State Library at Albany may be found the MS. copy of the Dongan Laws, including the marriage act of 1684 concerning which there has been much discussion; and some forty volumes of MSS. Marriage License Bonds, of interest to the genealogist and historian. The use of these is made easier by the published Names of Persons for Whom Marriage Licenses Were Issued by the Secretary of the Province of New York, Previous to 1784 (Albany, 1860), to which O'Callaghan has given an Introduction.

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

For the history of bundling, besides the mention in Valentine's Manual, should be consulted the case of Seger v. Slingerland in Caine's Reports, II (New York and Albany, 1860), where the custom was judicially considered; also Lamb, History of the City of New York (New York and Chicago, 1877); and especially Stiles, Bundling (Albany, 1871). Stiles, History of the City of Brooklyn (Brooklyn, 1867-70), gives an account of the restrictions put on the remarriage of widows in the old Dutch wills; and there are some notices of marriage law and customs in Grant, Memoirs of an American Lady (New York, 1809); Weise, History of the City of Albany (Albany, 1884); Watson, Annals and Occurrences of New York City and State (Philadelphia, 1846); Vanderbilt, Social History of Flatbush (New York, 1882; new ed., 1899); Ostrander, History of the City of Brooklyn and King's County (Brooklyn, 1894); Gerard, The Old Stadt Huys of New Amsterdam (New York, 1875); Hazard, Annals of Pennsylvania (Philadelphia, 1850); and especially Earle's Colonial Days in Old New York (New York, 1896). In 1786 a brief account of wedding customs in New York state was given by Hannah Thompson, "Letters," in Pa. Mag. of Hist. and Biog., XIV (Philadelphia, 1890); and in 1748 the governor's lucrative monopoly of marriage-license fees is described by the Swedish botanist Kalm, Travels in North America (Warrington, 1770): see Hart, Source-Book of American History (New York, 1899), extract 50. Cook, "The Marriage Celebration in the Colonies," Atlantic, LXI (Boston, 1888), discusses the subject for the middle provinces; and for the historical background Brodhead, History of the State of New York (New York, 1853-71); O'Callaghan, History of New Netherland (2d ed., New York, 1855); Friedberg, Eheschliessung (Leipzig, 1865); and his Geschichte der Civilehe (Hamburg, 1877), have been of most service.

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

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

I. NEW YORK

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

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

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

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

"Worthy and dear friends.

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

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

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

Your well-affected friend and Governor

P. Stuyvesant."

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

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

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

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

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

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

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

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

"Whereas, the Director-General and Council of New Netherland have heard the charge of the Fiscal against Johannis van Beecq, a free merchant and inhabitant of this City of New Amsterdam, defendant, who has been duly summoned by the Court Messenger Elslandt in the name of the Fiscal on three Court days and who has had himself married by an unauthorized countryman, named Goodman Crab, living at Greenwich, against the laudable laws and customs of the United Netherlands and, as the Fiscal further states and proves in his charge, contrary to the advice and command of his lawful guardian,[820] the Hon^ble Director-General, also without previously publishing the bans and who has so far failed to make his appearance, of Netherland and without previous publication of the bans, is hereby declared ... unlawful and the said Jan van Beecq and Maria Verleth are commanded to live separate under penalty of being punished according to law for living in concubinage."[821]

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

"Therefore, after proper invocation of the Lord, the Director-General and Council of New Netherland, in the name and behalf of their Noble High: Might: the Lords-States-General of the United Netherlands and of the Noble Lords-Directors of the Privileged West India Company administering justice at the requisition of the Fiscal, declare, that the Fiscal's charges are true and founded in law and therefore the marriage of Johannis van Beecq and Maria Verleth, solemnized at Greenwich and confirmed by an unauthorized person contrary to the laudable laws and customs

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

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

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

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

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

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

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

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

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

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

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

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

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

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]

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]

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]

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.

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]

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]

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]

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.

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.

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]

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]

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."

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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.

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]

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]

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.

Already in 1676[900] West New Jersey was also acquired by Quaker proprietors; and in May, 1682, by an act of the general assembly, "for the preventing of clandestine and unlawful marriages," a system much like that of the eastern province was established. Justices within their jurisdictions are authorized to solemnize, when the persons have caused their intentions to be previously published for fourteen days in "some public place appointed for that purpose," and the "parents or trustees" show "no lawful reason against it." For celebrating without such consent, if it "may be reasonably obtained," the magistrate is to be fined at the discretion of the general assembly. Provision is likewise made for registration.[901]

It will be observed that in all these measures for the two provinces of New Jersey civil marriage is recognized. It is optional under the act of 1668; but under the Quaker régime, of course, solemnization by a minister is not mentioned.

For about twenty years after the legislation just presented the proprietary rule was maintained in the two provinces. During the latter part of the period there was more or less friction and dissatisfaction. The jurisdictions, though not the property rights, were turned over to Governor-General Andros in 1688. Four years later all the interests of the proprietors were absolutely surrendered to the crown. The united colony was then joined with New York under the same governor, but with a council and assembly of its own; and this arrangement was continued until 1738, when New Jersey became an independent royal province.[902]

After the union with New York, with characteristic intolerance, the Church of England was established; "but as the Episcopalians were a small minority of the population, and had but little zeal, the Establishment remained barely more than nominal."[903] To the "end the ecclesiastical jurisdiction of the said Lord Bishop of London, may take place in our said province, so far as conveniently may be"—run the instructions to Governor Cornbury in 1702—"we do think fit that you give all countenance and encouragement to the exercise of the same, excepting only the collating to benefices, granting licences for marriages, and probate of wills, which we have reserved to you." The table of marriage according to the English canons is to be "hung up in every orthodox church, and duly observed." For its "strict observance" the governor is to try to get a law passed by the assembly, if none already exists.[904]

The attempt to force the rites of the English church and the jurisdiction of the bishop of London on the people of New Jersey proved a failure. So, March 27, 1719, a new act appears, which shows that serious abuses, notably in the issue of licenses, must have existed during the orthodox rule. "Whereas of late Years," says the preamble, "several Young Persons have been, by the Wicked Practices of evil disposed Persons, and their Confederates, inticed, inveigled and deluded, led away and clandestinely so Married," to the "great Grief of their Parents and Relatives," it is therefore enacted that, under forfeit of five hundred pounds, no license shall be granted to a person under twenty-one years of age without consent of the parent or guardian, "signified by a certificate in writing" under his hand; which certificate must be filed in the office of the secretary of the province. The person presenting the certificate of parental consent, before issue of license, must "take an Oath upon the Four Holy Evangelists, of Almighty God, or if really of Tender Conscience, shall make a Solemn Affirmation and Declaration," that it is genuine; and besides, as in New York, he is required to execute a bond to the governor, with two sufficient sureties, in the penal sum of five hundred pounds.[905] In case of celebration by banns instead of license the procedure is the same. The certificate of consent must be presented by the persons to the clerk of the peace or to the county clerk; they must take the oath on the evangelists, and execute a bond of the same tenor as that already described. Thereupon the clerk, within fourteen days, "shall affix a Writing in a fair legible Hand, in the English Tongue, at three the most publick Places in said County, setting forth the Persons names, Places of Abode, and Intentions of Marriage." All religious societies may celebrate according to their own rites; and by implication ministers of the gospel, justices of the peace, and "others" may perform the ceremony.[906]

At this point legislation rested. No further change was made in the matrimonial law of New Jersey until long after the Revolution.[907] However, in 1765 a vain attempt was made by the Episcopal clergy, though a small minority in the province, to monopolize the income derived from the celebration of marriages on the governor's license, showing that they were not less greedy nor selfish than were their brethren of New York seventeen years before. In a letter to the Lords of Trade the "Bishop of London at the request of the clergy of ... New Jersey begs leave to represent, ... that by an old Law the Licences for Marriages are directed to any Protestant Minister or Justice of the Peace, which however necessary at the first Establishment of the Colony to facilitate Marriages, when there were few Ministers in the Country, seems at present not only prejudicial to the clergy, who are depriv'd of a considerable part of their Income, but gives occasion to many Inconveniences and abuses." It appears, as the letter further shows, that in 1760 the clergy petitioned Governor Boone to "alter the Direction of the Licences." The petition was declined on the ground that authority to make the change belonged to the Lords of Trade on application of the bishop of London. The request being now made to the bishop, the latter hopes that the lords "will take the matter into Consideration, and if they see no particular Objections will give their Instructions to the Governor of that Province, that for the future Marriage Licences may be directed only to a Protestant Minister of the Gospel." The Bishop's communication was forwarded by the Lords of Trade to Governor Franklin of New Jersey, with a sensible letter in which certain pertinent questions are so forcibly raised as seemingly to bring the correspondence to a speedy end. Their lordships see no objection to what the bishop proposes, "if there is no Law in force by which the Civil Magistrate is authorized to perform the Marriage Rites, or if long usage and custom has not established such a practice." But they add, "as it does not appear to Us from any Information we can collect here, how the case stands in respect to this matter, we desire you will by the first opportunity acquaint Us, whether the civil Magistrates in New Jersey do or do not perform those Ceremonies; and if they do; whether it is by virtue of any declared Law or by usage only; and if the latter, whether such practice may in your opinion be altered in the manner proposed by the Bishop of London without Inconvenience or Complaint."[908]

It is evident what a truthful answer from the governor must have been; but we hear no more of the matter.

b) Law and custom in Pennsylvania and Delaware.—It was one of the many false charges originally brought against the Quakers by their orthodox adversaries that they did not celebrate marriage in an orderly and decent way. They were even accused of repudiating the marital relation and of indulging on principle in licentious conduct.[909] There is no ground whatever for such slanders, unless the rejection of the ring, with the peculiar observances of the English church, and the insistence that marriage, as a divine ordinance, is a matter between man and his own conscience, in which the priest shall have nothing to do, may be counted a justification. The Quakers always held the institutions of marriage and the family in great esteem. From the beginning they have exacted due publicity in the celebration which was attended by a modest, though devout and severe, ceremonial. So important, indeed, was the nuptial contract in their eyes, as will presently appear, that the Pennsylvania Friends were too much inclined to extravagant display in the wedding festivities. One may well marvel what was Masson's notion of a religious rite when he wrote that the Quakers "had no religious ceremony in sanction of marriage."[910] "Professor Masson, as his context proves, had ample opportunity to avoid this blunder, and it can only be accounted for on the theory that his mind is prejudiced by the still popular notion that the presence and offices of an ordained minister are necessary to make a marriage ceremony religious and to secure the Divine sanction of the nuptial rites. The Quakers thought otherwise. They repudiated the claims of the clergy, and believed that God alone can join men and women in the solemn covenant."[911]

From their founders we may learn their doctrine of matrimony. "We marry none," says George Fox, "but are witnesses of it; marriage being God's joining not man's."[912] In harmony with this is Penn's declaration that the Quakers believe marriage to be "an ordinance of God, and that God only can rightly join men and women" in wedlock.[913] Elsewhere he declares that ceremonies the Friends "have refused not out of humor, but conscience reasonably grounded; inasmuch as no Scripture-example tells us, that the priest had any other part, of old time, than that of a witness among the rest, before whom the Jews used to take one another; and therefore this people look upon it as an imposition, to advance the power and the profits of the clergy; and for the use of the ring, it is enough to say, that it was an heathenish and vain custom, and never practiced among the people of God, Jews or primitive Christians."[914] Again, he claims that wedlock is a union which should only grow out of mutual inclination. "Never marry but for love," is his advice, "but see that thou lovest what is lovely."[915] Similar evidence is given by Sewel, the Quaker historian. "In their Method of Marriage," he says, "they also depart from the common Way: For in the Old Testament they find not that the Joyning of a Couple in Marriage ever was the Office of a Priest, nor in the Gospel any Preacher among Christians appointed thereto. Therefore it is their Custom, that when any intend to enter into Marriage, they first having the Consent of Parents or Guardians, acquaint the respective Mens and Womens Meetings of their Intention, and after due Enquiry, all Things appearing clear, they in Publick Meeting solemnly take each other in Marriage, with a Promise of Love and Fidelity, and not to leave one another before Death separates them. Of this a Certificate is drawn, mentioning the Names and Distinctions of the Persons thus joyned, which being first signed by themselves, those then that are present sign as witnesses."[916]

Commenting on this passage, Hallowell says: "This custom is still in force, and with some unimportant verbal amendments, the phraseology of early Friends is still preserved. After an appropriate silence, the groom and bride rise, and taking each other by the hand, each in turn repeats, 'In the presence of the Lord and this assembly, I take thee to be my wife (or husband), promising, with Divine assistance to be unto thee a loving and faithful husband (or wife) until death shall separate us.' For religious solemnity and tender, touching simplicity, the Quaker marriage ceremony has always challenged comparison, and if anyone desires to feel and realize the presence of God in a public or private gathering, let him attend a Quaker wedding."[917]

These principles are revealed in the early legislation for Pennsylvania; for, while believing it an ordinance of God, the Friends held that the regulation and protection of marriage belong to the civil authority. In the "Laws agreed upon in England" May 5, 1682, it is provided "that all marriages (not forbidden by the law of God, as to nearness of blood and affinity ...) 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 credible witnesses, and a certificate of the whole, under the hands of parents and witnesses, shall be brought to the proper register of that county, and shall be registered in his office."[918]

This is a clear statement of the desires of the proprietor and his associates. Accordingly in a law enacted by the assembly in December, 1683, there is a provision regarding marriage only differing in details from the declaration made beyond the sea. The purpose of the act, as expressed in the preamble, is "to prevent Clandestine, Loose, and unseemly proceedings" in the province and its "territories." As before, marriage is to be encouraged; parental consent is required; the parties must clear themselves "from all other engagements assured by a Certificate from some Credible persons where they have lived;" affix their "intentions of Marriage on the Court, or Meeting-house Door of the County where they Dwell, one Month before the solemnization thereof;" the marriage shall be celebrated "by taking one another as husband and wife, before Sufficient Witnesses;" and a "certificate of the whole under the hands of parties and witnesses (at least twelve,) shall be brought to the Register of the County" where the marriage takes place and be with him filed for record. For neglect of the requirements of law the parties are to be fined ten pounds, and the "person so joining others in Marriage" twice that amount.[919] The "Great Law" of 1682, punishes adultery severely, sanctions divorce for that offense,[920] and contains the declaration, unique since old English days, that "no person, be it either widower or widow, shall contract marriage, much less marry, under one year after the decease of his wife or her husband."[921]

This provision of 1682 is declared fundamental, and by it in fact the main principles of the marriage law of Pennsylvania were defined. Still one or two important changes were subsequently made. Thus, in 1684, the certificate of their "clearness of all engagements" is to be produced to the "religious society" to which the persons "relate;" or to a justice of the peace of the county where they live.[922] From this requirement it may doubtless be inferred that either civil celebration before a magistrate or religious celebration according to the rites of any denomination was contemplated. Such is expressly declared to be the case by the act of 1693, which runs in nearly the same words as the preceding, except that now, after mentioning the twelve witnesses, it is provided that at least one justice of the peace of the county must be present at the solemnization; and provided also that "this Law shall not extend to any who shall marry or be marryed by any person authorized by the Church of England, so as they observe the methods of publication, Licensing & Solemnization" required by English law, "nor to any persons that marry in their own Society in the absence of a Justice of the peace."[923] With the exception of a provision in 1730, forbidding the justice in case of minors to subscribe as witness without a certificate of parental consent,[924] the law of 1693, re-enacted in 1700 and again in 1701,[925] still governs the nuptial celebration in Pennsylvania;[926] and previous to 1788 the marriage law of Delaware was practically the same.[927]

It remains to give a few illustrations of administrative practice and social custom. So far as it appears, the courts and magistrates were not given much employment in domestic controversies. But the provincial council seems to have exercised jurisdiction in divorce and matrimonial causes. For example, in 1685 we learn that "information being given to this board of y^e unlawfull Marriage of R^d Noble, of y^e County of New Castle, Ordered that y^e Justices of that County have notice given by y^e Secrt^rs, to Inspect the same and give report thereof to this board."[928] Again, in 1703 Andrew Bankson, one of the justices of Philadelphia county, on complaint of the president, got himself into trouble "for irregularly marrying a couple lately according to law, but against y^e Prohibitions of y^e Parents." When called to account before the council, the justice declared that he was "wholly ignorant of its being illegal, & was heartily sorry for what was done, promising that wether he should continue in Commission, or otherwise, this should be such a caution to him as to prevent him of committing the like for y^e future, & being severely checked was dismissed."[929]

Celebration on the president's license in place of civil notice similar to the plan existing in the royal provinces was introduced as early as 1684 and the practice was continued to the Revolution;[930] although marriages thus solemnized were looked at askance by the Quakers as hardly orthodox,[931] and there are the usual complaints of extortion.[932] The marriage certificate was itself an elaborate document of historical interest, not only because of the full statement therein of all the previous stages in the transaction, but because in simple phrase we catch many a glimpse of Quaker sentiment and teaching in regard to the nuptial covenant. Sometimes even at the marriage of persons of humble station, this instrument was signed by many persons; as in the case of John Roades and Hannah Willcox, in 1692, whose wedding certificate bears the names of fifty witnesses.[933]