Chapter 24

[331]Lecky,op. cit., II, 202, 203.[332]Read, for instance, the complaint of Right Rev. G. F. Browne, bishop of Stepney, in hisMarriage of Divorced Persons in Church: Two Sermons Preached in St. Paul's Cathedral on Feb. 16 and 23, 1896. The author seems to pine for the good old days before the act of 1857 when "things were different;" when, thanks to the singular merits of the old system, the "difficulty and cost of a special Act" of Parliament made separationsa vinculovery few; when that evil statute had not yet caused a "horrible familiarity with the idea of divorce" (42). CompareLuckock,Hist. of Marriage, 197-209, who likewise laments the desecration of the church through the celebration of the marriage of divorced persons; while he also condemns the alleged "connivance on the part of the Church of England" in the violation of the doctrine of indissolubility through the "issue of licences to divorced persons to remarry from Diocesan Registrars, ostensibly with the sanction of our own Bishops." He gives extracts from theReportof the lower house of the York Convocation (1894), which denounces the two practices mentioned, as also the "admission of persons who have entered into such unions to Holy Communion." Technically such a license is a "dispensation" which the bishop may refuse. It is often refused, as in the "Instructions issued to Surrogates in the Diocese of Lichfield":Hammick'sMarriage Law, 362, and n.a.On these questions seeGeary,Marriage and Family Relations, 577-93, giving extracts from the proceedings of the Lambeth Conference, (1888), and the Convocation of Canterbury at various times, as also from the opinions of individual bishops and ministers.[333]20 and 21 Vict., c. 82, secs. 29-31:Statutes at Large, XCVII, 538.[334]So decided in Y.v.Y. (1860): 1Swabey and Tristram,Reports, 598-600;Geary,op. cit., 249, 261.[335]23 and 24 Vict., c. 144. For the discussion of the bill seeHansard,Parl. Debates, 3d series, CLX, 1628-31, 1734-42.Cf.alsoGlasson,Le mariage civil et le divorce, 322 ff.;Geary,op. cit., 261 n. 6;Harrison,The Laws of Probate and Divorce, 141 ff.[336]Lord Hannen, in the celebrated case of Crawfordv.Crawford (1886), 11 P. D., 150-58, where the queen's proctor is allowed to intervene to prove a previous decision unjust. See alsoGeary,op. cit., 257 n. 2, 262, where this case is summarized.[337]23 and 24 Vict., c. 144, sec. 7. The "intervener cannot be the respondent, or any one actually instigated by him or her, or his or her nominee; but the mere fact that the intervener may be (as he usually is) the friend or relative of the respondent is no objection."—Geary,op. cit., 263, 264: Howarthv.Howarth (1884), 9 P. D., 218-31; Forsterv.Forster (1863), 3Swabey and Tristram,Reports, 158-60. The queen's proctor may intervene as one of the public. Only the petitioner can apply to have a decreenisimade absolute, but in long default of such application the respondent may ask to have the petition dismissed. Decreesnisi"only apply to petitions for dissolution of marriage and not to judicial separations, restitution of conjugal rights, or jactitation;" but by 36 Vict., c. 31, they do apply to nullity suits:Geary,op. cit., 249, 250 nn. 355, 356.[338]20 and 21 Vict., c. 85, secs. 7, 16, 23, 25, 26:Statutes at Large, XCVII, 533, 534, 536, 537. On the law for judicial separation seeGeary,op. cit., 352-59;Harrison,The Laws of Probate and Divorce, 148-53;Woolsey,Divorce, 175.[339]By the Matrimonial Causes Act of 1884, 47 and 48 Vict., c. 68, sec. 5, failure to respond to a decree for restitution of conjugal rights, even for a less time than two years, is made equivalent to desertion.[340]Geary,op. cit., 353, 354.[341]Except when alimony has been decreed and is in arrear the husband is liable for necessaries furnished his wife: 20 and 21 Vict., c. 85, secs. 25, 26:Statutes at Large, XCVII, 537.Cf.Harrison,op. cit., 152, 153;Geary,op. cit., 424.[342]20 and 21 Vict., c. 85, sec. 33:Statutes at Large, XCVII, 539.Cf.Masonv.Mason (1883), 8 P. D., 21-23, C. A.; alsoWoolsey,Divorce, 177;Geary,op. cit., 354, 255-61;Harrison,op. cit., 182, 183.[343]Woolsey,Divorce, 177; 20 and 21 Vict., c. 85, secs. 33, 45:Statutes at Large, XCVII, 539, 541.[344]20 and 21 Vict., c. 85, sec. 22:Statutes at Large, XCVII, 536;cf.alsoHarrison,op. cit., 117.[345]Application may be made to a police or petty sessional court and to the Court for Divorce and Matrimonial Causes or its successor, the Probate and Divorce Division.Cf.20 and 21 Vict., c. 85, sec. 21:Statutes at Large, XCVII, 535, 536; alsoGeary,op. cit., 360 ff., 425 ff.;Harrison,op. cit., 176, 177;Glasson,Le mariage civil et le divorce, 323:Ernst,Marriage and Divorce, 53.[346]20 and 21 Vict., c. 85, sec. 21:Statutes at Large,XCVII, 536.[347]For a good summary of the old law as to property rights of married women seeGlasson,Hist. du droit, II, 284; IV, 157-59; V, 103 ff.; VI, 162;Geary,op. cit., 184 ff.; and especiallySwinderen, "Ueber das Güterrecht der Ehefrau in England,"ZVR., V, 275 ff.[348]Geary,op. cit., 363, 364.[349]On these and other statutes giving the married woman control of her property seeSwinderen,op. cit., 278 ff.;Glasson,op. cit., VI, 193 ff.; andMontmorency'svaluable article, "The Changing Status of a Married Woman,"Law Quart. Review, XIII, 192 ff.[350]49 and 50 Vict., c. 52. On the "maintenance order" seeGeary,op. cit., 363, 368-70;Harrison,op. cit., 178, 179.[351]It is to be enforced as under an order of affiliation; but that is by distress, or, in default of distress, by imprisonment:Geary,op. cit., 366, 369, 415.[352]Ibid., 370.[353]41 Vict., c. 19. On the separation order seeGeary,op. cit., 364 ff., 424, 425;Harrison,op. cit., 177, 178.[354]The weekly amount and the manner of enforcing payment are expressed in exactly the same terms as later adopted in the act of 1886 for the maintenance order.[355]This order, like that for maintenance, may be discharged or varied on proof of the wife's adultery; and the weekly sum may be varied in amount with an alteration in the amount of the wife's or husband's means:Geary,op. cit., 366, 367, 369, 370.[356]"If the husband goes out of the jurisdiction and leaves no tangible goods that are physically seizable, the wife is without remedy, however large be the husband's property in stocks and shares, etc., or by way of interest under a settlement." She may then apply for a judicial separation or a dissolution of marriage, when "she will obtain alimony in the usual way; and this will be indeed her only effectual course if the husband absconds."—Geary,op. cit., 367. Compare Gilletv.Gillet (1889), 14 P. D., 158.[357]In Massachusetts the county courts had an equity jurisdiction;Mass. Col. Rec., V, 477, 478;Acts and Resolves, I, 75, 356;Washburn,Judicial Hist. of Mass., 34, 166, 167;Howard,Local Const. Hist., I, 330, 331. See the able article byWoodruff, "Chancery in Massachusetts,"Law Quarterly Review(London, 1889), V, 370-86.[358]An important epoch in the history of social progress is reached when our New England ancestors recognized the support of popular education as a proper function of local government. The event is all the more remarkable because it led the development of thought in the mother-country by more than two centuries and a half. However, the primary motive of the Massachusetts act of 1647 for the establishment of elementary and grammar schools was to provide religious knowledge. "It being one cheife p'iect of ytould deluder, Satan, to keepe men from the knowledge of yeScriptures, as in formrtimes by keeping ymin an unknowne tongue, so in these lattrtimes by p'swading from yeuse of tongues, ytso at least yetrue sence & meaning of yeoriginall might be clouded by false glosses of saint seeming deceivers, ytlearning may not be buried in yegrave of orfathrsin yechurch & co[=m]onwealth," etc.—Mass. Col. Rec., II, 203.Cf.alsoHoward,Local Const. Hist., I, 66-70; andidem, "The State University in America,"Atlantic Monthly, LXVII (1891), 332 ff.[359]Many of the enactments of the colonies are described by Lord Campbell as "anticipating and going beyond most of the salutary amendments which have been adopted in the reigns of William IV. and Victoria."—Goodwin,Pilgrim Republic, 251.[360]Peter "Hobart":Goodwin,Pilgrim Republic, 596;Dexter,Congregationalism, 458 n. 166;Young,Chronicles of the Pilgrims, 402 n. 2.[361]Winthrop,History of New England(ed.Savage, 1853), II, 382 (313).[362]See especiallyDexter,Congregationalism, 458, who has pointed out the error of Mr. Savage (Winthrop,Hist. of New England, II, 382 n. 2) in confusing the nuptials with the "contraction."[363]The fact that ministers as such were not allowed to celebrate in New England until near the end of the seventeenth century is, of course, well known to students. Very many, however, who now insist on the religious ceremony are ignorant of the fact; and it is not a little surprising to find so reputable a writer asAuguste Carlier, speaking of the "émigrants dans la Nouvelle Angleterre," declaring that marriage "se formait sous les yeux et avec l'approbation du chef de famille; il était consacré par le pasteur; d'après les prescriptions impératives de la loi, mais surtout pour obéir à la conscience d'un devoir religieux."—Le mariage aux États-Unis, 8, 9.[364]Bishop,Marriage, Divorce, and Sep., I, 176, 178;Friedberg,Eheschliessung, 471, 472.[365]Hutchinson,Hist. of Mass., I, 392. CompareCook, "Mar. Celebration in the Colonies,"Atlantic Monthly, LXI, 351, who, following Hutchinson, thinks that the colonists instituted "a form of marriage celebration unique in modern times."[366]On this marriage see alsoGoodwin,Pilgrim Republic, 181;Shirley, "Early Jurisprudence of New Hampshire,"Procds. New Hamp. Hist. Soc.(1876-84), 309;Bacon,Genesis of the New England Churches, 339-41;Young,Chronicles of the Pilgrims, 201.[367]Bradford,Hist. of Plymouth, 101. The work mentioned by Bradford, according to Mr. Deane, "is probablyLa grande Chronique ancienne et moderne de Holland, Zélande, Westfrise, Utrecht, &c., by Jean-François le Petit, 1601, and 1611."—Bradford,op. cit., 101, note by the editor.[368]See chap. x, sec. i.[369]The evidence for the influence of Holland upon English and American institutions is presented inCampbell,The Puritan in Holland, England, and America(New York, 1892), an able and timely work, calling attention to many facts strangely neglected by previous writers, but too sweeping in its general conclusion that American law and institutions, in their essential characteristics, are not Anglo-Saxon, but Dutch. For the interrelations of the Puritans in England and Holland see especiallyop. cit., I, 485 ff.; II, 44 ff.[370]At a very early day the English Separatists are found advocating civil marriage: seeBacon,Genesis of the New England Churches, 107, who states Greenwood's view (1587).[371]See sec. iv, below.[372]Ellis,Puritan Age, 185.[373]See chap. xi, sec. ii.[374]But publication of banns on the sabbath was not ordinarilyprohibited, the laws being usually silent as to that, while naming other days. Probably in some towns from the beginning sabbath publication may have been customary, as it was, apparently, at Andover:Bailey,Hist. Sketches of Andover, 75.Cf.Bacon,Genesis of the New England Churches, 339-41, who also seems to misapprehend the attitude of the Separatist and Puritan in his anxiety to show that early New England marriages were not "godless."[375]Bradford,Hist. of Plymouth Plantation, 327-30.[376]Goodwin,Pilgrim Republic, 386.[377]Cf.Palfrey,Hist. of New England, I, 543.[378]Weeden,Ecc. and Soc. Hist. of New England, I, 217 ff., has some interesting gleanings on the civil contract.[379]"To make a law that marriage should not be solemnized by ministers is repugnant to the laws of England; but to bring it a custom by practice for the magistrate to perform it is by no law made repugnant."—Winthrop,Hist. of New England, II, 313, 314 (382).Cf.Cook, inAtlantic Monthly, LXI, 351.[380]ByBrigham,Mass. Hist. Soc. Proceedings, IV, 283, 284. In general on civil marriage in New England seeLechford,Plain Dealing(Boston, 1867), 86, 87, or in 3Mass. Hist. Coll., III, 94;Dunton,Life and Errors(1686), in 2Mass. Hist. Coll., II;Mem. Hist. of Boston, I, 196;Read, inColl. of Old Col. Hist. Soc., No. 2, 9;Friedberg,Eheschliessung, 470-78;Drake,Making of New England, 98;Oliver,Puritan Commonwealth, 415;Hildreth,Hist. of U. S., I, 192;Weeden,Ecc. and Soc. Hist. of New England, I, 217 ff., and Index;Cook, "Marriage Celebration in the Colonies," inAtlantic Monthly, LXI, 350 ff.; and especially the excellent chapter inEarle'sCustoms and Fashions of Old New England, 36-81.Sewall'sDiary, in 5Mass. Hist. Coll., V, VI, VII; and hisLetter Books, in 6Mass. Hist. Coll., I, II, are a mine of information on social usages connected with dowers, courting, and wedlock. For very interesting records of marriages celebrated by magistrates at Salem in the seventeenth century seeHist. Coll. Essex. Inst., I, II.[381]Plym. Col. Rec., II, 155; IV, 10, 22, 43, 65, 73, 74, 108, 186; VI, 217, etc.Cf.3Mass. Hist. Coll., II, 270. In one instance we find the court abrogating a commission:Freeman,Hist. of Cape Cod, I, 208.[382]Whitmore,Colonial Laws of Mass.(1660-72), 172;ibid.(1672-86), 102.Cf.Mass. Hist. Soc. Procds., IV, 283, 284. CompareNewhall,Ye Great and General Court, 367.[383]So, in 1646, the court "granted co[=m]ission to MrEdwdRawson to see people ioyne in marriage in Newberry," during pleasure, Watertown receiving a similar commission:Mass. Col. Rec., II, 166. In 1651, on petition, Captain William Gerrish was similarly appointed for Newberry:ibid., III, 256; IV, Part I, 65;cf. ibid., IV, Part II, 63; V, 483. Such commissioners were usually so appointed at the request of the inhabitants. See two further examples for 1654,ibid., III, 345, 346. On May 29, 1663, we find a "humble request by two men toGeneral Courtthat Lieu. Goodinnough be authorized to marry their son and daughter. Granted with addition that Goodinnough be authorised to marry all who apply to him in that town [Sudbury?] and who have been properly published."—MSS. Early Court Files of Suffolk, No. 519.[384]Mass. Col. Rec., IV, Part I, 407. In October, 1647, Captain Wm. Hathorne was commissioned to marry Thomas Jeggles and Abigail Sharpe, in the absence of "yemajor Gennerall."—Mass. Col. Rec., III, 115. TheMSS. Early Court Files of Suffolk, No. 221, under date of Nov. 13, 1655, contains the following: "Order by the deputies inGeneral Courtfor appointing Captain Hathorne to join together in marriage at Salem such as desire it, there not being in or near there any Magistrate. The Magistrates judge meet that the Deputies of Salem be authorized to join in marriage. The Deputies judge meet to leave the choice to the town of Salem."[385]Mass. Col. Rec., IV, Part I, 74;cf. ibid., 407; andShirley, "Early Jurisprudence of New Hamp.," inProcds. of New Hamp. Hist. Soc.(1876-84), 308.[386]At a "County Court at Charlestown," June 25, 1658, "Mr. Richard Russell at the request of the freemen of Charlestown is empowered to solemnize marriages and to take oaths in civil cases."—MSS. Records of the County Court of Middlesex, I, 133. See alsoMass. Col. Rec., IV, Part I, 255 (1656), 322 (1658). The "associates," who sat with the "magistrates" to compose the county court, were often commanded to join persons in marriage:ibid., V, 139, 145, 101.[387]See the Cutt Code inProvincial Papers, I, 396, 397; alsoNew Hamp. Hist. Soc. Coll., VIII, 23, 117, 118;cf.Shirley, "Early Jurisprudence of New Hamp.,"Procds. New Hamp. Hist. Soc.(1876-84), 307 ff.[388]"A good story is told of Wm. Wanton—governor of Rhode Island, 1732-3—in Deane's Scituate. Before his removal from that place to Newport, prior to 1700, he had married Ruth Bryant, daughter of a Congregational deacon. Wanton's family were Quakers. Religious objections were made to the match on both sides. He said, 'Friend Ruth, let us break from this unreasonable bondage—Iwill give upmyreligion, andthoushaltthine, and we will go over to the Church of England,and go to the devil together.' They fulfilled this resolution so far, says our author, as to go to the Church of England, and marrying and adhering to the Church of England during life."—Arnold,Hist. of Rhode Island, II, 113, note.[389]Green,Short Hist. of Rhode Island, 152, 153;Arnold,Hist. of Rhode Island, II, 113. By the code of 1647 marriages were to be celebrated ("confirmed") before the "head officer of the towne":Staples,Proceedings of the First Gen. Assembly, 1647(Providence, 1847), 47, 48;R.I. Col. Rec., I, 187. On the head officer seeHoward,Local Const. Hist., I, 88, 89. According to the law of 1663 the intentions are to be published, and "afterwards before one of the Generllofficers shall they be married": inRider'sreprint of theLaws and Acts(1705), 12. But inRider'sreprint ofThe Charter and the Laws(1719), 12, it is declared lawful for "any Assistant, Justice of the Peace, or Warden" to perform the ceremony. The act cited is one of a group dated 1662; and it appears to be a modification of the law just cited from the collection of 1705. The act of 1701 reserves the right of Quakers and members of the Church of England to be married according to their own usage:Rider,Charter and Laws(1719), 48; also inActs and Laws(Newport, 1730), 44, 46.[390]"This requirement was sufficiently answered when spectators were present; and usually marriages were solemnized at the home of the bride."—Atwater,Hist. of the Colony of New Haven, 363.[391]New Haven Col. Rec., II, 599, 600.[392]The civil-marriage form is recognized by the code of 1650: seeTrumbull,Blue Laws, 167;Cook, inAtlantic Monthly, LXI, 351;Sanford,Hist. of Conn., 125; andHollister,Hist. of Conn., I, 438. By the code of 1673 no person is to solemnize marriages "but the Magistrates, or such other as the General Court shall Authorize in such places where no Magistrate is near": see the reprint ofThe Book of the General Laws of 1673(Hartford, 1865), 46.[393]Hutchinson,Hist. of Mass., I, 392, note;cf.Snow,Hist. of Boston, 172, 173, 192;Drake,Hist. of Boston, 472, 473;Shirley, "Early Jurisprudence of New Hamp.,"Procds. New Hamp. Hist. Soc.(1876-84), 308;Whitmore, inMem. Hist. Bost., II, 1, 2.[394]Hutchinson,Hist. of Mass., I, 318;cf.Arnold,Hist. of Rhode Island, I, 498, 499;Green,Short Hist. of Rhode Island, 103.Trumbull,Hist. of Conn., I, 372, followed byHollister,Hist. of Conn., I, 317, makes the following extraordinary statement: "Magistrates only were allowed to join people in the bands of wedlock. The governor (Andros) not only deprived the clergy of the perquisite from marriages, but soon superseded the laws for their support."[395]Hutchinson,Hist. of Mass., I, 318. At least twenty-two of these bonds are extant. One, dated Jan. 11, 1686-87, given "unto Edward Randolph, Esq., Secretary of his Majesty's Territory and Dominion," may be found among the "Usurpation Papers" in 3Mass. Hist. Coll., VII, 170; and also inNew Hamp. Provincial Papers, II, 18. The other twenty-one are in theEarly Court Files of Suffolk, Nos. 29996-30016. Following is a copy of the first:"Know all men by these presents that Wee John Harris of the Isle of Shoales ffisherman and Jabesh Negus of Boston Carpenter are houlden and firmely bound vnto his Excellency SrEdmund Andros KntCaptG[~r]all and Governour in Cheife vnder his most Sacred Maty James the Second King of England ec in and over the Territory & Dominion of New England ~ In two Hundred pounds Currant money of New England aforesaid to be paid to his said Excellency SrEdmund Andros his Executors Adminrs or Assignes. To which payment well and truly to be made Wee bind ourfelves and each of vs and each of our heires Executors and Administrators Joyntly and feurally in the whole and for the whole firmely by these presents. Dated the 24th day of June Anno Dni 1587 Annoq R R Jacobii Secdi nunc Anglice ec Tertio."The Condicon of this Obligãcon is fuch That if hereafter there fhall not appeare any Lawfull Lett or Impediment by reason of any precontract Consanguinity Affinity or any other Lawfull meanes whatsoeur But that the above said John Harris and Mary Sparks of Ipswich Spinster may Lawfully solemnize Marriage togeather; And in the same afterwards Lawfully remaine and Continue Like man and wife~ according to the Lawes in that behalfe made and provided That then this Obligac[~c]on to be void or else to Remaine in full force & virtue.+——+"Signed Sealed and Deliured [Signed] John Harris |Seal|+——++——+"In the p^{re}sence of vs. [ " ] Jabesh Negues |Seal|+——+[Signed] "Jn Bonamy[ " ] Wm Marshall"The earliest bond is dated June 24, 1687 (1587 in the MS.), and the latest Oct. 24, 1688. They are alike in all essential respects, differing very slightly from the above sample either in form or wording. They are all for £200; and all are executed in Boston, as shown by the names of the witnesses, although only six are "dated in Boston." Seventeen of them were witnessed by John Bonamy, and thirteen by Pe[ter] Heyman. These seemingly were men who made a business of witnessing in Boston; and all the other witnesses appear in connection with them. The bridegroom is always a bondsman. In one case, that of the fifteenth bond, dated March 5, 1687/8, the other signer is a woman, but not the bride. The other bondsman is never of the same name as the bride to be. The places of residence are Salem, Boston, Piscataqua, Nevis, and Plymouth; the counties of Bristol, Suffolk, and Plymouth; while in one case the man is from "Rhode Island."[396]Trumbull,Hist. of Conn., I, 372;Hollister,Hist. of Conn., I, 317.[397]Goodwin,Pilgrim Republic, 596;Drake,Hist. of Boston, 472;Doyle,Eng. Colonies, III, 232.[398]Note byWhitmore,Andros Tracts, II, 37. "'Tis confessed," says Increase Mather referring to this incident, "that once or twice a DebauchedPriesthas appeared amongst them; particularly oneVardenbosch, who, besides the good work ofBaptizinga noted whore or two of his acquaintance, made privateMarriageswithout any previous publication ofBanes(which is a nusance &Baneto all humane society); and yet so tender was the government as only to give them someOrall Rebukes, upon which the guilty Knaves have run away."—Mather, "A Vindication of New England,"Andros Tracts, II, 36, 37. For the passage inSewall'sDiaryreferred to, see 5Mass. Hist. Coll., V, 98. There is a discussion of the first clerical marriage in New England, with reference to Vanderbosk, inHistorical Magazine and Notes and Queries, VIII, 279, 348.[399]During the Andros period Rev. Charles Morton—who was installed as pastor of the church in Charlestown, Nov. 5, 1686—began to solemnize marriages. He was probably the first Congregational minister in New England who did so. SeeEdes,Mem. Hist. of Boston, II, 315.[400]Rhode Island Col. Rec., IV, 490;Rider,Supp. Pages to the Digest of 1730, 258, 259;Acts and Laws(1745), 176.Cf.Arnold,Hist. of R. I., II, 113;Green,Short Hist. of R. I., 152, 153.[401]Conn. Col. Rec., 136. As the law stood in 1769, marriages might be solemnized by magistrates and justices, each within his own county, and by any ordained minister within his town or society during his continuance in the work of the ministry:Acts and Laws(New Haven, 1769), 144.[402]Acts and Resolves, I, 61. On this actJudge Sewallmakes the following characteristic entry in hisDiary: "Nov. 4, 1692. Law passes for Justices and Ministers Marrying persons. By order of the Co[=m]ittee, I had drawn up a Bill for Justices and such others as the Assembly should appoint to marry: but came new-drawn and thus alter'd from the Deputies. It seems they count the respect of it too much to be left any longer with the Magistrate. And salaries are not spoken of; as if one sort of men might live on the Aer. They are treated like a kind of useless, worthless folk."—5Mass. Hist. Coll., V, 368. The marriage fee was fixed by this act at three shillings.[403]Charters and General Laws(Boston, 1814), 285;Acts and Resolves, I, 209, 210. In Nov., 1704, James Gardner, "preacher of the Gospel" at Dartmouth, that town being destitute of an "ordained minister," was allowed to solemnize marriages:ibid., VIII (Appendix, Vol. III), 92.[404]Acts and Resolves, IV, 622;Charters and Laws, 655.Cf.the earlier act of 1716-17:Acts and Resolves, II, 60.[405]Acts and Resolves, V, 231;Charters and Laws, 679.[406]In Hutchinson's time marriages were usually performed by the clergy. "Although," he says, "the law admits of its being done by a justice of the peace, yet not one in many hundred is performed by them;" and he adds in a note: "Perhaps, in a few years, the people of England will be equally well satisfied with the provision made by the late marriage act, and no body will be at the pains of a journey to Scotland to avoid conformity to it."—Hutchinson,Hist. of Mass., I, 392, 393.[407]SeeGilman,The Story of Boston, 177, 178, for an account of the marriage ceremony in the time of the Mathers.[408]Lodge,Short History, 462.[409]Mass. Col. Rec., I. 214;cf.Atwater,Hist. of the Col. of New Haven, 363;Bailey,Hist. Sketches of Andover, 74, 75;Weeden,Ecc. and Soc. Hist. of N. E., I, 113.

[331]Lecky,op. cit., II, 202, 203.

[332]Read, for instance, the complaint of Right Rev. G. F. Browne, bishop of Stepney, in hisMarriage of Divorced Persons in Church: Two Sermons Preached in St. Paul's Cathedral on Feb. 16 and 23, 1896. The author seems to pine for the good old days before the act of 1857 when "things were different;" when, thanks to the singular merits of the old system, the "difficulty and cost of a special Act" of Parliament made separationsa vinculovery few; when that evil statute had not yet caused a "horrible familiarity with the idea of divorce" (42). CompareLuckock,Hist. of Marriage, 197-209, who likewise laments the desecration of the church through the celebration of the marriage of divorced persons; while he also condemns the alleged "connivance on the part of the Church of England" in the violation of the doctrine of indissolubility through the "issue of licences to divorced persons to remarry from Diocesan Registrars, ostensibly with the sanction of our own Bishops." He gives extracts from theReportof the lower house of the York Convocation (1894), which denounces the two practices mentioned, as also the "admission of persons who have entered into such unions to Holy Communion." Technically such a license is a "dispensation" which the bishop may refuse. It is often refused, as in the "Instructions issued to Surrogates in the Diocese of Lichfield":Hammick'sMarriage Law, 362, and n.a.On these questions seeGeary,Marriage and Family Relations, 577-93, giving extracts from the proceedings of the Lambeth Conference, (1888), and the Convocation of Canterbury at various times, as also from the opinions of individual bishops and ministers.

[333]20 and 21 Vict., c. 82, secs. 29-31:Statutes at Large, XCVII, 538.

[334]So decided in Y.v.Y. (1860): 1Swabey and Tristram,Reports, 598-600;Geary,op. cit., 249, 261.

[335]23 and 24 Vict., c. 144. For the discussion of the bill seeHansard,Parl. Debates, 3d series, CLX, 1628-31, 1734-42.Cf.alsoGlasson,Le mariage civil et le divorce, 322 ff.;Geary,op. cit., 261 n. 6;Harrison,The Laws of Probate and Divorce, 141 ff.

[336]Lord Hannen, in the celebrated case of Crawfordv.Crawford (1886), 11 P. D., 150-58, where the queen's proctor is allowed to intervene to prove a previous decision unjust. See alsoGeary,op. cit., 257 n. 2, 262, where this case is summarized.

[337]23 and 24 Vict., c. 144, sec. 7. The "intervener cannot be the respondent, or any one actually instigated by him or her, or his or her nominee; but the mere fact that the intervener may be (as he usually is) the friend or relative of the respondent is no objection."—Geary,op. cit., 263, 264: Howarthv.Howarth (1884), 9 P. D., 218-31; Forsterv.Forster (1863), 3Swabey and Tristram,Reports, 158-60. The queen's proctor may intervene as one of the public. Only the petitioner can apply to have a decreenisimade absolute, but in long default of such application the respondent may ask to have the petition dismissed. Decreesnisi"only apply to petitions for dissolution of marriage and not to judicial separations, restitution of conjugal rights, or jactitation;" but by 36 Vict., c. 31, they do apply to nullity suits:Geary,op. cit., 249, 250 nn. 355, 356.

[338]20 and 21 Vict., c. 85, secs. 7, 16, 23, 25, 26:Statutes at Large, XCVII, 533, 534, 536, 537. On the law for judicial separation seeGeary,op. cit., 352-59;Harrison,The Laws of Probate and Divorce, 148-53;Woolsey,Divorce, 175.

[339]By the Matrimonial Causes Act of 1884, 47 and 48 Vict., c. 68, sec. 5, failure to respond to a decree for restitution of conjugal rights, even for a less time than two years, is made equivalent to desertion.

[340]Geary,op. cit., 353, 354.

[341]Except when alimony has been decreed and is in arrear the husband is liable for necessaries furnished his wife: 20 and 21 Vict., c. 85, secs. 25, 26:Statutes at Large, XCVII, 537.Cf.Harrison,op. cit., 152, 153;Geary,op. cit., 424.

[342]20 and 21 Vict., c. 85, sec. 33:Statutes at Large, XCVII, 539.Cf.Masonv.Mason (1883), 8 P. D., 21-23, C. A.; alsoWoolsey,Divorce, 177;Geary,op. cit., 354, 255-61;Harrison,op. cit., 182, 183.

[343]Woolsey,Divorce, 177; 20 and 21 Vict., c. 85, secs. 33, 45:Statutes at Large, XCVII, 539, 541.

[344]20 and 21 Vict., c. 85, sec. 22:Statutes at Large, XCVII, 536;cf.alsoHarrison,op. cit., 117.

[345]Application may be made to a police or petty sessional court and to the Court for Divorce and Matrimonial Causes or its successor, the Probate and Divorce Division.Cf.20 and 21 Vict., c. 85, sec. 21:Statutes at Large, XCVII, 535, 536; alsoGeary,op. cit., 360 ff., 425 ff.;Harrison,op. cit., 176, 177;Glasson,Le mariage civil et le divorce, 323:Ernst,Marriage and Divorce, 53.

[346]20 and 21 Vict., c. 85, sec. 21:Statutes at Large,XCVII, 536.

[347]For a good summary of the old law as to property rights of married women seeGlasson,Hist. du droit, II, 284; IV, 157-59; V, 103 ff.; VI, 162;Geary,op. cit., 184 ff.; and especiallySwinderen, "Ueber das Güterrecht der Ehefrau in England,"ZVR., V, 275 ff.

[348]Geary,op. cit., 363, 364.

[349]On these and other statutes giving the married woman control of her property seeSwinderen,op. cit., 278 ff.;Glasson,op. cit., VI, 193 ff.; andMontmorency'svaluable article, "The Changing Status of a Married Woman,"Law Quart. Review, XIII, 192 ff.

[350]49 and 50 Vict., c. 52. On the "maintenance order" seeGeary,op. cit., 363, 368-70;Harrison,op. cit., 178, 179.

[351]It is to be enforced as under an order of affiliation; but that is by distress, or, in default of distress, by imprisonment:Geary,op. cit., 366, 369, 415.

[352]Ibid., 370.

[353]41 Vict., c. 19. On the separation order seeGeary,op. cit., 364 ff., 424, 425;Harrison,op. cit., 177, 178.

[354]The weekly amount and the manner of enforcing payment are expressed in exactly the same terms as later adopted in the act of 1886 for the maintenance order.

[355]This order, like that for maintenance, may be discharged or varied on proof of the wife's adultery; and the weekly sum may be varied in amount with an alteration in the amount of the wife's or husband's means:Geary,op. cit., 366, 367, 369, 370.

[356]"If the husband goes out of the jurisdiction and leaves no tangible goods that are physically seizable, the wife is without remedy, however large be the husband's property in stocks and shares, etc., or by way of interest under a settlement." She may then apply for a judicial separation or a dissolution of marriage, when "she will obtain alimony in the usual way; and this will be indeed her only effectual course if the husband absconds."—Geary,op. cit., 367. Compare Gilletv.Gillet (1889), 14 P. D., 158.

[357]In Massachusetts the county courts had an equity jurisdiction;Mass. Col. Rec., V, 477, 478;Acts and Resolves, I, 75, 356;Washburn,Judicial Hist. of Mass., 34, 166, 167;Howard,Local Const. Hist., I, 330, 331. See the able article byWoodruff, "Chancery in Massachusetts,"Law Quarterly Review(London, 1889), V, 370-86.

[358]An important epoch in the history of social progress is reached when our New England ancestors recognized the support of popular education as a proper function of local government. The event is all the more remarkable because it led the development of thought in the mother-country by more than two centuries and a half. However, the primary motive of the Massachusetts act of 1647 for the establishment of elementary and grammar schools was to provide religious knowledge. "It being one cheife p'iect of ytould deluder, Satan, to keepe men from the knowledge of yeScriptures, as in formrtimes by keeping ymin an unknowne tongue, so in these lattrtimes by p'swading from yeuse of tongues, ytso at least yetrue sence & meaning of yeoriginall might be clouded by false glosses of saint seeming deceivers, ytlearning may not be buried in yegrave of orfathrsin yechurch & co[=m]onwealth," etc.—Mass. Col. Rec., II, 203.Cf.alsoHoward,Local Const. Hist., I, 66-70; andidem, "The State University in America,"Atlantic Monthly, LXVII (1891), 332 ff.

[359]Many of the enactments of the colonies are described by Lord Campbell as "anticipating and going beyond most of the salutary amendments which have been adopted in the reigns of William IV. and Victoria."—Goodwin,Pilgrim Republic, 251.

[360]Peter "Hobart":Goodwin,Pilgrim Republic, 596;Dexter,Congregationalism, 458 n. 166;Young,Chronicles of the Pilgrims, 402 n. 2.

[361]Winthrop,History of New England(ed.Savage, 1853), II, 382 (313).

[362]See especiallyDexter,Congregationalism, 458, who has pointed out the error of Mr. Savage (Winthrop,Hist. of New England, II, 382 n. 2) in confusing the nuptials with the "contraction."

[363]The fact that ministers as such were not allowed to celebrate in New England until near the end of the seventeenth century is, of course, well known to students. Very many, however, who now insist on the religious ceremony are ignorant of the fact; and it is not a little surprising to find so reputable a writer asAuguste Carlier, speaking of the "émigrants dans la Nouvelle Angleterre," declaring that marriage "se formait sous les yeux et avec l'approbation du chef de famille; il était consacré par le pasteur; d'après les prescriptions impératives de la loi, mais surtout pour obéir à la conscience d'un devoir religieux."—Le mariage aux États-Unis, 8, 9.

[364]Bishop,Marriage, Divorce, and Sep., I, 176, 178;Friedberg,Eheschliessung, 471, 472.

[365]Hutchinson,Hist. of Mass., I, 392. CompareCook, "Mar. Celebration in the Colonies,"Atlantic Monthly, LXI, 351, who, following Hutchinson, thinks that the colonists instituted "a form of marriage celebration unique in modern times."

[366]On this marriage see alsoGoodwin,Pilgrim Republic, 181;Shirley, "Early Jurisprudence of New Hampshire,"Procds. New Hamp. Hist. Soc.(1876-84), 309;Bacon,Genesis of the New England Churches, 339-41;Young,Chronicles of the Pilgrims, 201.

[367]Bradford,Hist. of Plymouth, 101. The work mentioned by Bradford, according to Mr. Deane, "is probablyLa grande Chronique ancienne et moderne de Holland, Zélande, Westfrise, Utrecht, &c., by Jean-François le Petit, 1601, and 1611."—Bradford,op. cit., 101, note by the editor.

[368]See chap. x, sec. i.

[369]The evidence for the influence of Holland upon English and American institutions is presented inCampbell,The Puritan in Holland, England, and America(New York, 1892), an able and timely work, calling attention to many facts strangely neglected by previous writers, but too sweeping in its general conclusion that American law and institutions, in their essential characteristics, are not Anglo-Saxon, but Dutch. For the interrelations of the Puritans in England and Holland see especiallyop. cit., I, 485 ff.; II, 44 ff.

[370]At a very early day the English Separatists are found advocating civil marriage: seeBacon,Genesis of the New England Churches, 107, who states Greenwood's view (1587).

[371]See sec. iv, below.

[372]Ellis,Puritan Age, 185.

[373]See chap. xi, sec. ii.

[374]But publication of banns on the sabbath was not ordinarilyprohibited, the laws being usually silent as to that, while naming other days. Probably in some towns from the beginning sabbath publication may have been customary, as it was, apparently, at Andover:Bailey,Hist. Sketches of Andover, 75.Cf.Bacon,Genesis of the New England Churches, 339-41, who also seems to misapprehend the attitude of the Separatist and Puritan in his anxiety to show that early New England marriages were not "godless."

[375]Bradford,Hist. of Plymouth Plantation, 327-30.

[376]Goodwin,Pilgrim Republic, 386.

[377]Cf.Palfrey,Hist. of New England, I, 543.

[378]Weeden,Ecc. and Soc. Hist. of New England, I, 217 ff., has some interesting gleanings on the civil contract.

[379]"To make a law that marriage should not be solemnized by ministers is repugnant to the laws of England; but to bring it a custom by practice for the magistrate to perform it is by no law made repugnant."—Winthrop,Hist. of New England, II, 313, 314 (382).Cf.Cook, inAtlantic Monthly, LXI, 351.

[380]ByBrigham,Mass. Hist. Soc. Proceedings, IV, 283, 284. In general on civil marriage in New England seeLechford,Plain Dealing(Boston, 1867), 86, 87, or in 3Mass. Hist. Coll., III, 94;Dunton,Life and Errors(1686), in 2Mass. Hist. Coll., II;Mem. Hist. of Boston, I, 196;Read, inColl. of Old Col. Hist. Soc., No. 2, 9;Friedberg,Eheschliessung, 470-78;Drake,Making of New England, 98;Oliver,Puritan Commonwealth, 415;Hildreth,Hist. of U. S., I, 192;Weeden,Ecc. and Soc. Hist. of New England, I, 217 ff., and Index;Cook, "Marriage Celebration in the Colonies," inAtlantic Monthly, LXI, 350 ff.; and especially the excellent chapter inEarle'sCustoms and Fashions of Old New England, 36-81.Sewall'sDiary, in 5Mass. Hist. Coll., V, VI, VII; and hisLetter Books, in 6Mass. Hist. Coll., I, II, are a mine of information on social usages connected with dowers, courting, and wedlock. For very interesting records of marriages celebrated by magistrates at Salem in the seventeenth century seeHist. Coll. Essex. Inst., I, II.

Sewall'sDiary, in 5Mass. Hist. Coll., V, VI, VII; and hisLetter Books, in 6Mass. Hist. Coll., I, II, are a mine of information on social usages connected with dowers, courting, and wedlock. For very interesting records of marriages celebrated by magistrates at Salem in the seventeenth century seeHist. Coll. Essex. Inst., I, II.

[381]Plym. Col. Rec., II, 155; IV, 10, 22, 43, 65, 73, 74, 108, 186; VI, 217, etc.Cf.3Mass. Hist. Coll., II, 270. In one instance we find the court abrogating a commission:Freeman,Hist. of Cape Cod, I, 208.

[382]Whitmore,Colonial Laws of Mass.(1660-72), 172;ibid.(1672-86), 102.Cf.Mass. Hist. Soc. Procds., IV, 283, 284. CompareNewhall,Ye Great and General Court, 367.

[383]So, in 1646, the court "granted co[=m]ission to MrEdwdRawson to see people ioyne in marriage in Newberry," during pleasure, Watertown receiving a similar commission:Mass. Col. Rec., II, 166. In 1651, on petition, Captain William Gerrish was similarly appointed for Newberry:ibid., III, 256; IV, Part I, 65;cf. ibid., IV, Part II, 63; V, 483. Such commissioners were usually so appointed at the request of the inhabitants. See two further examples for 1654,ibid., III, 345, 346. On May 29, 1663, we find a "humble request by two men toGeneral Courtthat Lieu. Goodinnough be authorized to marry their son and daughter. Granted with addition that Goodinnough be authorised to marry all who apply to him in that town [Sudbury?] and who have been properly published."—MSS. Early Court Files of Suffolk, No. 519.

[384]Mass. Col. Rec., IV, Part I, 407. In October, 1647, Captain Wm. Hathorne was commissioned to marry Thomas Jeggles and Abigail Sharpe, in the absence of "yemajor Gennerall."—Mass. Col. Rec., III, 115. TheMSS. Early Court Files of Suffolk, No. 221, under date of Nov. 13, 1655, contains the following: "Order by the deputies inGeneral Courtfor appointing Captain Hathorne to join together in marriage at Salem such as desire it, there not being in or near there any Magistrate. The Magistrates judge meet that the Deputies of Salem be authorized to join in marriage. The Deputies judge meet to leave the choice to the town of Salem."

[385]Mass. Col. Rec., IV, Part I, 74;cf. ibid., 407; andShirley, "Early Jurisprudence of New Hamp.," inProcds. of New Hamp. Hist. Soc.(1876-84), 308.

[386]At a "County Court at Charlestown," June 25, 1658, "Mr. Richard Russell at the request of the freemen of Charlestown is empowered to solemnize marriages and to take oaths in civil cases."—MSS. Records of the County Court of Middlesex, I, 133. See alsoMass. Col. Rec., IV, Part I, 255 (1656), 322 (1658). The "associates," who sat with the "magistrates" to compose the county court, were often commanded to join persons in marriage:ibid., V, 139, 145, 101.

[387]See the Cutt Code inProvincial Papers, I, 396, 397; alsoNew Hamp. Hist. Soc. Coll., VIII, 23, 117, 118;cf.Shirley, "Early Jurisprudence of New Hamp.,"Procds. New Hamp. Hist. Soc.(1876-84), 307 ff.

[388]"A good story is told of Wm. Wanton—governor of Rhode Island, 1732-3—in Deane's Scituate. Before his removal from that place to Newport, prior to 1700, he had married Ruth Bryant, daughter of a Congregational deacon. Wanton's family were Quakers. Religious objections were made to the match on both sides. He said, 'Friend Ruth, let us break from this unreasonable bondage—Iwill give upmyreligion, andthoushaltthine, and we will go over to the Church of England,and go to the devil together.' They fulfilled this resolution so far, says our author, as to go to the Church of England, and marrying and adhering to the Church of England during life."—Arnold,Hist. of Rhode Island, II, 113, note.

[389]Green,Short Hist. of Rhode Island, 152, 153;Arnold,Hist. of Rhode Island, II, 113. By the code of 1647 marriages were to be celebrated ("confirmed") before the "head officer of the towne":Staples,Proceedings of the First Gen. Assembly, 1647(Providence, 1847), 47, 48;R.I. Col. Rec., I, 187. On the head officer seeHoward,Local Const. Hist., I, 88, 89. According to the law of 1663 the intentions are to be published, and "afterwards before one of the Generllofficers shall they be married": inRider'sreprint of theLaws and Acts(1705), 12. But inRider'sreprint ofThe Charter and the Laws(1719), 12, it is declared lawful for "any Assistant, Justice of the Peace, or Warden" to perform the ceremony. The act cited is one of a group dated 1662; and it appears to be a modification of the law just cited from the collection of 1705. The act of 1701 reserves the right of Quakers and members of the Church of England to be married according to their own usage:Rider,Charter and Laws(1719), 48; also inActs and Laws(Newport, 1730), 44, 46.

[390]"This requirement was sufficiently answered when spectators were present; and usually marriages were solemnized at the home of the bride."—Atwater,Hist. of the Colony of New Haven, 363.

[391]New Haven Col. Rec., II, 599, 600.

[392]The civil-marriage form is recognized by the code of 1650: seeTrumbull,Blue Laws, 167;Cook, inAtlantic Monthly, LXI, 351;Sanford,Hist. of Conn., 125; andHollister,Hist. of Conn., I, 438. By the code of 1673 no person is to solemnize marriages "but the Magistrates, or such other as the General Court shall Authorize in such places where no Magistrate is near": see the reprint ofThe Book of the General Laws of 1673(Hartford, 1865), 46.

[393]Hutchinson,Hist. of Mass., I, 392, note;cf.Snow,Hist. of Boston, 172, 173, 192;Drake,Hist. of Boston, 472, 473;Shirley, "Early Jurisprudence of New Hamp.,"Procds. New Hamp. Hist. Soc.(1876-84), 308;Whitmore, inMem. Hist. Bost., II, 1, 2.

[394]Hutchinson,Hist. of Mass., I, 318;cf.Arnold,Hist. of Rhode Island, I, 498, 499;Green,Short Hist. of Rhode Island, 103.Trumbull,Hist. of Conn., I, 372, followed byHollister,Hist. of Conn., I, 317, makes the following extraordinary statement: "Magistrates only were allowed to join people in the bands of wedlock. The governor (Andros) not only deprived the clergy of the perquisite from marriages, but soon superseded the laws for their support."

[395]Hutchinson,Hist. of Mass., I, 318. At least twenty-two of these bonds are extant. One, dated Jan. 11, 1686-87, given "unto Edward Randolph, Esq., Secretary of his Majesty's Territory and Dominion," may be found among the "Usurpation Papers" in 3Mass. Hist. Coll., VII, 170; and also inNew Hamp. Provincial Papers, II, 18. The other twenty-one are in theEarly Court Files of Suffolk, Nos. 29996-30016. Following is a copy of the first:"Know all men by these presents that Wee John Harris of the Isle of Shoales ffisherman and Jabesh Negus of Boston Carpenter are houlden and firmely bound vnto his Excellency SrEdmund Andros KntCaptG[~r]all and Governour in Cheife vnder his most Sacred Maty James the Second King of England ec in and over the Territory & Dominion of New England ~ In two Hundred pounds Currant money of New England aforesaid to be paid to his said Excellency SrEdmund Andros his Executors Adminrs or Assignes. To which payment well and truly to be made Wee bind ourfelves and each of vs and each of our heires Executors and Administrators Joyntly and feurally in the whole and for the whole firmely by these presents. Dated the 24th day of June Anno Dni 1587 Annoq R R Jacobii Secdi nunc Anglice ec Tertio."The Condicon of this Obligãcon is fuch That if hereafter there fhall not appeare any Lawfull Lett or Impediment by reason of any precontract Consanguinity Affinity or any other Lawfull meanes whatsoeur But that the above said John Harris and Mary Sparks of Ipswich Spinster may Lawfully solemnize Marriage togeather; And in the same afterwards Lawfully remaine and Continue Like man and wife~ according to the Lawes in that behalfe made and provided That then this Obligac[~c]on to be void or else to Remaine in full force & virtue.+——+"Signed Sealed and Deliured [Signed] John Harris |Seal|+——++——+"In the p^{re}sence of vs. [ " ] Jabesh Negues |Seal|+——+[Signed] "Jn Bonamy[ " ] Wm Marshall"The earliest bond is dated June 24, 1687 (1587 in the MS.), and the latest Oct. 24, 1688. They are alike in all essential respects, differing very slightly from the above sample either in form or wording. They are all for £200; and all are executed in Boston, as shown by the names of the witnesses, although only six are "dated in Boston." Seventeen of them were witnessed by John Bonamy, and thirteen by Pe[ter] Heyman. These seemingly were men who made a business of witnessing in Boston; and all the other witnesses appear in connection with them. The bridegroom is always a bondsman. In one case, that of the fifteenth bond, dated March 5, 1687/8, the other signer is a woman, but not the bride. The other bondsman is never of the same name as the bride to be. The places of residence are Salem, Boston, Piscataqua, Nevis, and Plymouth; the counties of Bristol, Suffolk, and Plymouth; while in one case the man is from "Rhode Island."

"Know all men by these presents that Wee John Harris of the Isle of Shoales ffisherman and Jabesh Negus of Boston Carpenter are houlden and firmely bound vnto his Excellency SrEdmund Andros KntCaptG[~r]all and Governour in Cheife vnder his most Sacred Maty James the Second King of England ec in and over the Territory & Dominion of New England ~ In two Hundred pounds Currant money of New England aforesaid to be paid to his said Excellency SrEdmund Andros his Executors Adminrs or Assignes. To which payment well and truly to be made Wee bind ourfelves and each of vs and each of our heires Executors and Administrators Joyntly and feurally in the whole and for the whole firmely by these presents. Dated the 24th day of June Anno Dni 1587 Annoq R R Jacobii Secdi nunc Anglice ec Tertio.

"The Condicon of this Obligãcon is fuch That if hereafter there fhall not appeare any Lawfull Lett or Impediment by reason of any precontract Consanguinity Affinity or any other Lawfull meanes whatsoeur But that the above said John Harris and Mary Sparks of Ipswich Spinster may Lawfully solemnize Marriage togeather; And in the same afterwards Lawfully remaine and Continue Like man and wife~ according to the Lawes in that behalfe made and provided That then this Obligac[~c]on to be void or else to Remaine in full force & virtue.

+——+"Signed Sealed and Deliured [Signed] John Harris |Seal|+——++——+"In the p^{re}sence of vs. [ " ] Jabesh Negues |Seal|+——+[Signed] "Jn Bonamy[ " ] Wm Marshall"

The earliest bond is dated June 24, 1687 (1587 in the MS.), and the latest Oct. 24, 1688. They are alike in all essential respects, differing very slightly from the above sample either in form or wording. They are all for £200; and all are executed in Boston, as shown by the names of the witnesses, although only six are "dated in Boston." Seventeen of them were witnessed by John Bonamy, and thirteen by Pe[ter] Heyman. These seemingly were men who made a business of witnessing in Boston; and all the other witnesses appear in connection with them. The bridegroom is always a bondsman. In one case, that of the fifteenth bond, dated March 5, 1687/8, the other signer is a woman, but not the bride. The other bondsman is never of the same name as the bride to be. The places of residence are Salem, Boston, Piscataqua, Nevis, and Plymouth; the counties of Bristol, Suffolk, and Plymouth; while in one case the man is from "Rhode Island."

[396]Trumbull,Hist. of Conn., I, 372;Hollister,Hist. of Conn., I, 317.

[397]Goodwin,Pilgrim Republic, 596;Drake,Hist. of Boston, 472;Doyle,Eng. Colonies, III, 232.

[398]Note byWhitmore,Andros Tracts, II, 37. "'Tis confessed," says Increase Mather referring to this incident, "that once or twice a DebauchedPriesthas appeared amongst them; particularly oneVardenbosch, who, besides the good work ofBaptizinga noted whore or two of his acquaintance, made privateMarriageswithout any previous publication ofBanes(which is a nusance &Baneto all humane society); and yet so tender was the government as only to give them someOrall Rebukes, upon which the guilty Knaves have run away."—Mather, "A Vindication of New England,"Andros Tracts, II, 36, 37. For the passage inSewall'sDiaryreferred to, see 5Mass. Hist. Coll., V, 98. There is a discussion of the first clerical marriage in New England, with reference to Vanderbosk, inHistorical Magazine and Notes and Queries, VIII, 279, 348.

[399]During the Andros period Rev. Charles Morton—who was installed as pastor of the church in Charlestown, Nov. 5, 1686—began to solemnize marriages. He was probably the first Congregational minister in New England who did so. SeeEdes,Mem. Hist. of Boston, II, 315.

[400]Rhode Island Col. Rec., IV, 490;Rider,Supp. Pages to the Digest of 1730, 258, 259;Acts and Laws(1745), 176.Cf.Arnold,Hist. of R. I., II, 113;Green,Short Hist. of R. I., 152, 153.

[401]Conn. Col. Rec., 136. As the law stood in 1769, marriages might be solemnized by magistrates and justices, each within his own county, and by any ordained minister within his town or society during his continuance in the work of the ministry:Acts and Laws(New Haven, 1769), 144.

[402]Acts and Resolves, I, 61. On this actJudge Sewallmakes the following characteristic entry in hisDiary: "Nov. 4, 1692. Law passes for Justices and Ministers Marrying persons. By order of the Co[=m]ittee, I had drawn up a Bill for Justices and such others as the Assembly should appoint to marry: but came new-drawn and thus alter'd from the Deputies. It seems they count the respect of it too much to be left any longer with the Magistrate. And salaries are not spoken of; as if one sort of men might live on the Aer. They are treated like a kind of useless, worthless folk."—5Mass. Hist. Coll., V, 368. The marriage fee was fixed by this act at three shillings.

[403]Charters and General Laws(Boston, 1814), 285;Acts and Resolves, I, 209, 210. In Nov., 1704, James Gardner, "preacher of the Gospel" at Dartmouth, that town being destitute of an "ordained minister," was allowed to solemnize marriages:ibid., VIII (Appendix, Vol. III), 92.

[404]Acts and Resolves, IV, 622;Charters and Laws, 655.Cf.the earlier act of 1716-17:Acts and Resolves, II, 60.

[405]Acts and Resolves, V, 231;Charters and Laws, 679.

[406]In Hutchinson's time marriages were usually performed by the clergy. "Although," he says, "the law admits of its being done by a justice of the peace, yet not one in many hundred is performed by them;" and he adds in a note: "Perhaps, in a few years, the people of England will be equally well satisfied with the provision made by the late marriage act, and no body will be at the pains of a journey to Scotland to avoid conformity to it."—Hutchinson,Hist. of Mass., I, 392, 393.

[407]SeeGilman,The Story of Boston, 177, 178, for an account of the marriage ceremony in the time of the Mathers.

[408]Lodge,Short History, 462.

[409]Mass. Col. Rec., I. 214;cf.Atwater,Hist. of the Col. of New Haven, 363;Bailey,Hist. Sketches of Andover, 74, 75;Weeden,Ecc. and Soc. Hist. of N. E., I, 113.

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