Chapter 29

[773]Ibid., 160. According toCook, "Colonel Byrd, writing about 1728, says that in North Carolina, 'for want of men in holy orders, justices of the peace and members of the council were empowered to celebrate marriage.'"—Op. cit., 355, 356.[774]Weeks,Church and State, 244, 245.[775]The justice shall not act in any parish where a minister resides and has cure, "without permission first had and obtained from such Minister under penalty of five pounds proclamation money, to the use of the minister."—Iredell-Martin,Public Acts, I, 45; for the fee seeibid., 46.[776]Ibid., 46;Swan'sRevisal(ed. 1752), 127-30;cf.Weeks,op. cit., 244, 245.[777]Iredell-Martin,op. cit., I, 45.[778]Weeks,op. cit., 245;cf.N. C. Col. Rec., VI, 881, 952, 954.[779]Iredell-Martin,op. cit., I, 157, 158;Davis,Revisal(ed. 1773), 350."It was proposed to limit this law to three years, which was not done. It provided for no DissentersexceptPresbyterians. But it seems that the original intention was to cover the case of all Dissenters. The second section probably read 'dissentingor of the dissenting Presbyterian clergy.' The clause in italics was stricken out and the phrase 'dissenting or Presbyterian clergy' took its place, thus excluding all Dissenters except Presbyterians."—Weeks,op. cit., 245 n. 2;cf.N. C. Col. Rec., VII, 411, 329, 331.[780]Saunders, "Prefatory Notes,"N. C. Col. Rec., VIII, xlv.[781]"Letter from Governor Tryon to Earl of Shelburne, Brunswick, 31st January 1767,"N. C. Col. Rec., VII, 432, 433. On this act see alsoSaunders, "Prefatory Notes,"ibid., VIII, xlv.[782]See the petition for repealibid., X, 1015;cf.Weeks,op. cit., 246, 247, who has collected these passages.[783]N. C. Col. Rec., VIII, 80b. There was also a petition from the people of Anson:ibid., 78.[784]Ibid., 82;Weeks,op. cit., 246, 247. This petition was presented to Tryon by "Herman Husband the leader of the Regulators":Weeks,op. cit., 247, 248, referring toSwain, "War of Regulation,"N. C. University Mag., IX (1859-60), 339.[785]It is "rights" in the text, but this appears to be a "slip," for lower down the proper spelling is used.[786]N. C. Col. Rec., VIII, 322 (Dec. 17, 1770).[787]Saunders, "Prefatory Notes,"N. C. Col, Rec., VIII, xlv; alsoibid., VIII, 297, 300; IX, 7.[788]Saunders,op. cit., xlv.[789]"It is interesting to note with what satanic disregard of the rights of man the leaders in the Establishment can write. Says Reed [minister in Craven County]: 'The bill was pushed by the dissenting interest, and [because of] the dangerous situation of the province from such formidable number of malcontents [Regulators], the governor acted with the greatest prudence in passing the bill with a suspending clause.... Should this act receive the royal assent it would be a fatal stroke to the Church of England, but as the insurrection is entirely quelled, I flatter myself with hopes that the act will meet with a repulse.'"—Weeks,op. cit., 247;N. C. Col. Rec., IX, 6. Later the Board of Trade wrote that the law was in effect a "bounty to the tolerated religion at the expense of the established," and petitioned for its disallowance:N. C. Col. Rec., IX, 7, 245, 251, 284, 366.[790]Saunders,op. cit., xlv, errs in saying that the law of 1766 was repealed soon after its passage.[791]Cooper,Statutes at Large, II, 120, 121 (act of March 1695/6).[792]Ibid., 242, 243; also inN. C. Col. Rec., II, 867-82.[793]Cooper,op. cit., II, 289-91; also inBrevard,Alphabetical Digest of Laws of S. C., 41-44. In both these acts elaborate provision is made for registration.[794]Cooper,op. cit., II, 475, 476, where 32 H. VIII., c. 38, is put in force; and it is retained inRevised Statutes(Columbia, 1873), 481. In 1712, likewise, a part of the statute 1 Jac. I., c. 11, regarding bigamy was adopted:Cooper, II, 508.[795]Editorial note inBrevard,Alphabetical Digest of Laws of S. C., II, 41, 42, notes.[796]With an exception relating to military power:Poore,Charters, I, 373, 374. Georgia was made a royal province in 1751; but the policy of toleration was maintained:Holmes,Annals, II, 45;Story,Commentaries, I, 102. In early days the province suffered the usual evils from scarcity of women:Coll. Georgia Hist. Soc., II, 105; III, 32, 144.[797]Poore,Charters, I, 375.[798]Cook, "Mar. Cel. in Col.,"Atlantic, LXI, 356.[799]Digest of the Laws of Georgia(Philadelphia, 1801), 314.[800]Even in Virginia civil marriages were frequent before the Revolution, though liable to penalty. For Maryland the view of the text as to the common-law contract was sustained in the case of Cheseldinev.Brewer, 1 Har. and McH., 152 (1739). This decision was, however, overruled in Denisonv.Denison (1871), 35Md., 361, 379, in which Justice Alvey says: "We think we are safe in saying that there has never been a time in the history of the state, whether before its independence of Great Britain or since, when some ceremony or celebration was not deemed necessary to a valid marriage. In the early days of the province, it was not absolutely necessary that a minister of religion should officiate,—a judge or magistrate could perform the ceremony—but still, in all cases, some formal celebration was required." Of course, the opinion of a judge long after the colonial era, not professing to be based on evidence, can have little weight in settling the present historical problem. Though the laws of the Maryland assembly, like those of Connecticut and Rhode Island (Story,Commentaries, I, § 171), were not required to be submitted to the king for approval, it cannot be assumed that such laws could deprive a person of any liberty secured by the common law, but they might bestow greater privileges.Cf.Bishop,Mar., Div., and Sep., I, § 416.A statute of North Carolina, in 1715, declared that the common law should be in force in that province (Iredell,Laws, 1715, 18, 19;Story,op. cit., I, § 142). Yet in this century it has been held that the common law of the state recognizes no marriage not according to the statutes; as to which statement, "the court observed in a subsequent case, 'we express no opinion.' But such, all agree, is not the common law of England."—Bishop,op. cit., I, § 412; citing Statev.Samuel, 2 Dev. and Bat., 177; and Statev.Ta-cha-na-tah, 64N. C., 614.Several decisions of the courts of Tennessee have regard to the colonial laws of North Carolina, the parent commonwealth, and on the whole sustain the view that informal marriages were good despite the statutes. In the case of Bashawv.the State, 1829 (1 Yerger, 177-97), which gives a history of North Carolina matrimonial legislation for the period 1715-1829, it was held that the celebration must be according to the statutes which had superseded the common law. The same view is taken two years later in Grishamv.the State (2 Yerger, 589, 592). But in Andrewsv.Page, 1868 (3 Heiskell,Tenn. Reports, 653, 667), the opposite position is taken, the court holding rightly that the acts of 1741 and 1778 do not expressly prohibit the common-law marriage.The common-law principle of marriage by mutual consent prevailed in South Carolina (compare 10 McCord,Statutes, 357, ed. note; and the case Vaigneurv.Kirk, 2S. C. Equity Reports, 640-46, with H. W. Desaussure's note, 646). Referring to the law of South Carolina, generally,Brevard,Alphabetical Digest, II, 41, note, says: "How far the informality of a marriage may afford ground for questioning its validity, on a trial for polygamy, may perhaps admit of some doubt." Historically, however, the doubt is exceedingly small that such an informal contract would be valid.It is doubtful whether there were any courts in the southern colonies vested with full matrimonial jurisdiction: seeBishop,op. cit., I, §§ 115-49.[801]O'Callaghan,Introduction to Names of Persons for Whom Marriage Licenses Were Issued, p. iii.[802]Friedberg,Eheschliessung, 478 ff., 485 ff., gives the details, citing the Dutch authorities.[803]Compare the summaries ofFriedberg,op. cit., 487, 488, 491.[804]Fernow,Doc. Rel. to Col. Hist. of N. Y., XIV, 243, note.[805]Ibid.The letter is dated Jan. 20, 1654.[806]O'Callaghan,Laws and Ordinances, 152, 153. For this ordinance see alsoNew York Colonial MSS., XII, 40; and compareibid., IV, 456; V, 197; VIII, 647. ConsultWebster,Opinion on the Law of Marriage prevailing in the Colony of N. Y., 1772, 19, 20 (Lauderdale Peerage Case), who discusses these ordinances.[807]Brodhead,Hist. of the State of N. Y., I, 639. For the text of the ordinance of Jan. 15, 1658, seeN. Y. Col. MSS., XVI, 40, 129; alsoO'Callaghan,op. cit., 328, 329; andLaw Reports, X (1885), 729 (Lauderdale Peerage Case).[808]Valentine,Manual of the Corporation, 1858, 497, 498;cf.alsoLamb,History of the City of N. Y., I, 183.[809]Caine,Reports, II, 219, 220. This was a case on appeal by the original defendant who had been sued for damage for debauching the plaintiff's daughter. The defendant won on the ground of connivance of the parents of the girl. "We lay out of view," says the court, "the custom which it is agreed prevails in that part of the country for young people, who are courting, to sleep together." "Nor is it an excuse for the parent to say that promises of marriage had been exchanged."Cf.alsoStiles,Origin and Hist. of Bundling, 44 ff., 109-11.[810]Case of Hollisv.Wells (1845), 3Pa. Law Journal(Philadelphia, 1872), 29-33. Under head of "A Custom Must be Moral," these two cases are discussed inLawson(J. D.),The Law of Usages and Customs(St. Louis, 1881), 58-60.[811]O'Callaghan,Names of Persons for Whom Marriage Licenses Were Issued, p. iii.[812]Addressed to the vice-director and his council:Fernow,Doc. Rel. to Col. Hist. of N. Y., XII, 137 (Dec. 29, 1655). For a similar application seeibid., XII, 153, 154. For further record of entry of banns before the "mayor of New York" (1670-71) seeRecords of New Amsterdam, VI, 262, 334.[813]Dec. 24, 1657:Fernow,loc. cit., 156.[814]For a discussion of the divorce jurisdiction of the Dutch courts see chap. xv, below.[815]Valentine,Manual of the Corporation, 1845-46, 368;Records of New Amsterdam, I, 155.[816]While these proceedings were in progress, another appeal, growing out of the case, came from the schout, burgomasters, and schepens, in the city hall, special session of Feb. 8, 1656. Case of "Maria Verleth, pltf. v. Joost van Beeck, deft." The defendant maintains, as the marriage between Johannis van Beeck and Maria Verleth is not yet declared legal, that certain "letters are not her's, until the marriage be legalized." But should the marriage be declared lawful by the court, supreme council, and consistory, he consents that she shall have them. He only wants his right. The court lets Maria have the letters provisionally, because it has never been informed that the marriage has been declared illegal, and it has already announced that it must respect the proclamation of the church and the "marriage tie of said young people."—Records of New Amsterdam, II, 36.[817]Ibid., I, 159, 160.[818]Ibid., 164, 165. Earlier on the same day, the record says, van Beeck prays "that disposal be made of petition and remonstrance;" but no action was taken because the bench was not complete:ibid., 163, 164.[819]Records of New Amsterdam, I, 173, 174.[820]See the reference to power of attorney in Stuyvesant's letter, p. 269, above.[821]Fernow,Doc. Rel. to Col. Hist. of N. Y., XIV, 291.[822]Ibid., XII, 359, 360. The case is also discussed byGerard,The Old Stadt Huys of New Amsterdam, 390, 391.[823]Gerard,op. cit., 391, who says Laers was not legally bound to conform to the usage of the Reformed church. See also the documents in this case inO'Callaghan,op. cit., XII, 358, 359, 363, 366, 367.[824]Fernow,op. cit., XII, 512: case of the Fiscalv.Jacob Fabricius, March 1, 1674, before Governor-General Colve and the council. A version of the case is also given byO'Callaghan,op. cit., II, 693, who translates "license" where Fernow uses "consent" in the last sentence.It is greatly to be feared that Brother Fabricius was a rather uncomfortable inhabitant; for at the same session of the court the fiscal charges that he did "beat and use force and violence against Marretie Jurians, in her own house," for which it is thought he ought to be "condemned in a fine of five Beavers with costs." The defendant admits the charge; "but says that the above named Marretie Jurians did provoke him with harsh language." Their honors, however, deemed it just to assess him "two Beavers with costs":O'Callaghan,loc. cit., 693. Later Fabricius was accused of riotous conduct at Newcastle on June 4, 1674, but he denied the charge and offered to bring witnesses:Fernow,op. cit., XII, 521. Possibly religious bickerings had something to do with his troubles. At any rate on June 1, 1675, the Lutherans on the Delaware petitioned that he be confirmed as pastor:ibid., 529. On April 18, following his suspension for marrying Doxy, he had the hardihood to ask that the sentence be mitigated, so that "he might be at least allowed to baptize, if he may not preach and act as minister;" but the court declined his request:ibid., 512.[825]O'Callaghan,op. cit., II, 691, 692. On these two cases seeFowler,Letter and Opinion, 60 ff. (Lauderdale Peerage Case).[826]O'Callaghan,Laws and Ordinances, 495.[827]Cowley,Our Divorce Courts, 33, 34; citingNew York Colonial MSS., 1630-1664: Dutch: Part I, Vol. VIII, 1049, 1051, 1653, 1055, 1057.[828]Records of New Amsterdam, VI, 203.[829]Gerard,The Old Stadt Huys, 27.Cf. ibid., 26, 27, where cases of breach of promise are mentioned in 1642, 1644, 1653, and 1656.[830]Records of New Amsterdam, I, 54; seeibid., 167, 199, 200. It may perhaps be inferred that the couple concluded to release each other; for only seven years after the trial (May 24, 1661) "Annetje Dircks, widow of Pieter Koch," is mentioned;ibid., III, 310; and similar phrase is twice repeated:ibid., 403; IV, 34.There are other cases. "In 1654 Greetje Waemans produced a marriage ring and two letters, promissory of marriage, and requested that on that evidence Daniel de Silla be 'condemned to legally marry her.' He vainly pleaded his unfortunate habit of some days drinking too much, and that on those days he did much which he regretted; among other things his bacchanalian love-making of Greetje. François Soleil, the New Amsterdam gunsmith, another recreant lover, swore he would rather go away and live with the Indians (a terrible threat) than marry the fair Rose whom he had left to droop neglected—and unmarried."—Earle,Colonial Days in Old New York, 51; and for mention of other cases, in connection with Dutch wedding gifts, seeibid., 52, 53.[831]J. M. Stearns.[832]Stiles,History of Brooklyn, I, 233, 234.The author adds: "So also in the will of John Burrows, of Newton, July 7, 1678, he devises to his son John his then dwelling-house, farm, orchard, out-houses, and lands, etc. 'But not to dispossess my beloved wife during the time of her widowhood. But if she marry, then her husband must provide for her as I have done.' So also the will of Thomas Skillman, of Newton, in 1739."—Ibid., 233, 234."Often joint-wills were made by husband and wife, each with equal rights, if survivor. This was peculiarly a Dutch fashion. In Fordham, in 1670 and 1673, Claude de Maistre and his wife Hester du Bois, Pierre Cresson and his wife Rachel Cloos, Gabriel Carboosie and Brieta Walferts, all made joint-wills. The last-named husband in his half of the will enjoined loss of property if Brieta married again. Perhaps he thought there had been enough marrying and giving in marriage already in that family, for Brieta had had three husbands,—a Dane, a Frieslander, and a German,—and his first wife had had four, and he—well, several I guess; and there were a number of children; and you couldn't expect any poor Dutchman to find it easy to make a will in all that confusion. In Albany may be found several joint-wills, among them two dated 1663 and 1676; others in the Schuyler family."—Earle,Colonial Days in Old New York, 54, 55.[833]Before the vice-director on the Delaware:Fernow,Doc. Rel. to Col. Hist. of N. Y., XII, 149, 150.Here is a somewhat more elaborate contract in which one party is a widower:"In the name of the Lord Amen, be it known by the contents of this present instrument, that in the year sixteen hundred and sixty-three the eighteenth day of May, appeared before me, Johannes La Montagne in the service of, etc., Meyndert Frederickse [Smith], widower of the late Cataryna Burger, who declares in the presence of the aforesaid witnesses, that for God's honor he has contracted a future marriage with Pietertien Teunise, spinster (jonge dochter), and before the consummation of the same, he, the subscriber, assents to the following conditions, firstly, that the aforesaid betrothed persons, for the maintenance of said marriage, will collect and bring together, all such existing estates and effects of whatever nature; in whatever place, and with whatever persons, the same may be lying or deposited, nothing excepted, which each now has and posesses, to be by them possesed in common, according to the law of our Fatherland, except that out of the bridegroom's estate, to-wit, from the estate left by Caterina Burger deceased, be reserved the sum of eight hundred guilders payable in beavers, for the children left by her; to wit Frederick Meyndersen aged six years, and Burgert Meyndersen aged three years, being their maternal (matrimonial) inheritance; moreover said married persons shall be holden to bring up said children in the fear of the Lord, to teach them to read and write in the schools, to maintain them in food and clothing till their majority or married state, without diminishing their maternal estate, which the subscriber promises without craft or guile, and for the same binding his person and estate, real and personal, present and future, nothing excepted, subject to all laws and judges." In the presence of the children's guardians and the "orphan master."—Munsell'sCollections on the Hist. of Albany, IV, 321. For similar contracts seeibid., 311 (Sept. 23, 1662), 345.[834]See the charter inNew York Colonial Laws, I, 1-5; and compareCook, "The Mar. Cel. in the Colonies,"Atlantic, LXI, 360 ff.[835]Brodhead,Hist. of N. Y., II, 18, 63, 66, 67;Colonial Laws of N. Y., I, xii, 100, 101. The code of the Duke of York has been thrice published: inCollections of N. Y. Hist. Soc., I, 305-97, for the year 1809 (New York, 1811); in the recentColonial Laws of New York(Albany, 1894), I, 6-100, where a critical note on the original copies may be found; and as theDuke of Yorke's Book of Laws, a part ofLinn'sCharter and Laws of Pennsylvania(Harrisburg, 1879), the edition here cited by preference.[836]O'Callaghan,Doc. Rel. to Col. Hist. of N. Y., III, 226, 227;N. Y. Col. Laws, I, xii, xiv, 107 (Andros's order).Cf.Dongan'sreport inO'Callaghan,op. cit., III, 390 (1686); also seeHildreth,Hist. of U. S., II, 44 ff., 76 ff.;Lodge,Short Hist., 297-99;Brodhead,Hist. of N. Y., II, 273;Howard,Local Const. Hist., I, 105, notes.[837]Hazard,Annals of Pa., 427;N. Y. Col. Laws, I, xii.[838]Duke of Yorke's Book of Laws: inCharter and Laws, 19, 36;Col. Laws of N. Y., I, 45, 46. In at least one case this provision was carried out: on Oct. 5, 1672, Dan Sutton, for perjury and bigamy was sentenced to have his tongue bored through with a red-hot iron:Law Reports, X, 733 (Lauderdale Peerage Case); for the text of the duke's marriage law of 1664/65 seeibid., X, 730, 731.[839]Duke of Yorke's Book of Laws, 37.[840]Ibid.[841]Ibid., 65.[842]Ibid., 70.[843]Duke of Yorke's Book of Laws, 13, 14;Col. Laws of N. Y., I, 19.[844]Duke of Yorke's Book of Laws, 36;Col. Laws of N. Y., I, 46.[845]Ibid., 46, 47;Duke of Yorke's Book of Laws, 36, 37. "The father onely of the Children as are begotten in Lawfull Marriage," continues the statute, "is to provide for such Children as shall be adjudged in the Court of Assizes only."[846]Fernow,Doc. Rel. to Col. Hist. N. Y., XII, 596; mentioned also byHazard,Annals of Pa., 451, 454, 455. On the same day the local court fined him ten pounds and costs for neglecting his judicial duties:Fernow,loc. cit., 596, 597.[847]Ibid., 624, 625.[848]O'Callaghan,Doc. Rel. to Col. Hist. of N. Y., III, 261 (1678);Valentine,Manual of the Corporation, 1851, 453. The year before the bishop of London complains that the Virginia marriage laws are not enforced:O'Callaghan,op. cit., III, 253 (July 17, 1677).[849]Earle,Col. Days in Old New York, 60.[850]SeeO'Callaghan,Hist. of New Netherland, II, 345-55, 450-57. Under the lead of the clerical bigots, Drisius and Megapolensis, the Reformed church in New Netherland banished Lutherans and tormented the Quakers. A number of Friends, expelled from Massachusetts, arrived in New Amsterdam in 1657, and were at once persecuted with fiendish cruelty. Nevertheless, the Quakers grew apace in numbers, settling by preference in Jamaica and Flushing on Long Island. Among them was John Bowne, a recent convert and signer of the petition quoted in the text. In 1662 he was fined for allowing his house to be used as a Quaker conventicle; and in the next year he was banished to Holland. This resulted in calling down upon the head of Stuyvesant a severe and just rebuke from the directors. See alsoBrodhead,Hist. of N. Y., I, 636, 705;O'Callaghan,op. cit., 338-42, 428;Earle,op. cit., 260; andWaller,Hist. of Flushing, 37-47, 77, note. It is a pity that a writer of such merit as Mr. Waller should have reiterated (46, 47) the baseless and long since exposed slanders against the Quakers in New England.[851]Fernow,op. cit., XIV, 752, 753; also inNew York Colonial MSS., XXIX, 202.[852]The petition concludes with the following exhortation: "and we earnestly desire yeLord may perswade your hearts, vnto whome we are now concerned, that yemay remoue yecause of this our address and open that eye in you that can see vs as we are, who can pray for those thats in authority that vnder them we may live a peaceable holy and Godlike lifeY^e 4th day of y^e 7^{th} mo: 1680"Henry WillisJohn Bowne."[853]Hallowell,Quaker Invasion of Massachusetts, 99-104.[854]New York Colonial MSS., XXIX, 203 (New York State Library). Regarding this decision, which settled the character of marriage law in England,Sewel,History ... of the Quakers, 292, has a striking passage: "It happened about this Time in England, that some covetous Persons, to engross Inheritances to themselves, would call the Marriages of those called Quakers in question. And it was in this Year that such a Cause was tried at the Assizes at Nottingham; a certain Man dying, and leaving his Wife with Child, and an Estate in Copyhold Lands: When the Woman was delivered, one that was near of kin to her deceased Husband, endeavoured to prove the Child illegitimate: And the Plaintiff's Council willing to blacken the Quakers, so called, asserted the Child to be illegitimate, because the Marriage of its Parents was not according to Law; and said bluntly, and very indecently, That the Quakers went together like brute Beasts. After the Council on both sides had pleaded, the Judge, whose name was Archer, opened the Case to the Jury, and told them That there was a Marriage in Paradise, when Adam took Eve and Eve took Adam; and that it was the Consent of the Parties that made a Marriage. And as for the Quakers (said he) he did not know their Opinion; but he did not believe they went together as brute Beasts, ... but as Christians; and therefore he did believe the Marriage was lawful, and the Child lawful Heir. And the better to satisfy the jury, he related to them this Case: A Man that was weak of Body, and kept his Bed, had a Desire in that Condition to Marry, and did declare before Witnesses that he did take such a Woman to be his Wife; and the Woman declared, that she took that Man to be her Husband. This Marriage was afterwards called in question: But all the Bishops did at that time conclude it to be a lawfull Marriage." The jury found for the child.[855]In 1674 the duke's laws were ordered put in execution "except those requiring amendment or alteration":Colonial Laws of N. Y., I, xiv, 107. On Nov. 9, 1674, Governor Andros issued a proclamation to that effect:ibid., xiv, 107, 108.[856]"The original of this act is not in the office of the Secretary of State. This copy was made from the manuscript compilation of the 'Dongan laws' formerly in the office of the Secretary of State, but now in the New York State Library. The date of its passage, as October 23, 1684, is given by E. B. O'Callaghan, inHist. Int. to Journals of the Legislative Council of N. Y., p. 12."—Cumming'snote to the act,Col. Laws of N. Y., I, 150.[857]See his two letters to Andros (1675 and 1676 respectively) inCol. Laws of N. Y., I, xiv, xv; and also the instruction to Dongan, 1682, allowing a general assembly to be summoned:ibid., xv, 108-10. The duke's letters are also inO'Callaghan,Doc. Rel. to Col. Hist. of N. Y., III, 230, 235.[858]Col. Laws of N. Y., I, 150, 151. This seems to be a decided mitigation of the original penalty: see "An act to prevent wilfull Perjury," passed by the Assembly Nov. 1, 1683:ibid., 129-31.[859]ByCook, for instance, who says the Dongan act was "substantially a re-enactment of the Duke's Laws of 1664, and seems not to have been repealed prior to the Revolution."—"Marriage Celebration in the Colonies,"Atlantic, LXI, 360.

[774]Weeks,Church and State, 244, 245.

[775]The justice shall not act in any parish where a minister resides and has cure, "without permission first had and obtained from such Minister under penalty of five pounds proclamation money, to the use of the minister."—Iredell-Martin,Public Acts, I, 45; for the fee seeibid., 46.

[776]Ibid., 46;Swan'sRevisal(ed. 1752), 127-30;cf.Weeks,op. cit., 244, 245.

[777]Iredell-Martin,op. cit., I, 45.

[778]Weeks,op. cit., 245;cf.N. C. Col. Rec., VI, 881, 952, 954.

[779]Iredell-Martin,op. cit., I, 157, 158;Davis,Revisal(ed. 1773), 350."It was proposed to limit this law to three years, which was not done. It provided for no DissentersexceptPresbyterians. But it seems that the original intention was to cover the case of all Dissenters. The second section probably read 'dissentingor of the dissenting Presbyterian clergy.' The clause in italics was stricken out and the phrase 'dissenting or Presbyterian clergy' took its place, thus excluding all Dissenters except Presbyterians."—Weeks,op. cit., 245 n. 2;cf.N. C. Col. Rec., VII, 411, 329, 331.

[779]Iredell-Martin,op. cit., I, 157, 158;Davis,Revisal(ed. 1773), 350.

"It was proposed to limit this law to three years, which was not done. It provided for no DissentersexceptPresbyterians. But it seems that the original intention was to cover the case of all Dissenters. The second section probably read 'dissentingor of the dissenting Presbyterian clergy.' The clause in italics was stricken out and the phrase 'dissenting or Presbyterian clergy' took its place, thus excluding all Dissenters except Presbyterians."—Weeks,op. cit., 245 n. 2;cf.N. C. Col. Rec., VII, 411, 329, 331.

[780]Saunders, "Prefatory Notes,"N. C. Col. Rec., VIII, xlv.

[781]"Letter from Governor Tryon to Earl of Shelburne, Brunswick, 31st January 1767,"N. C. Col. Rec., VII, 432, 433. On this act see alsoSaunders, "Prefatory Notes,"ibid., VIII, xlv.

[782]See the petition for repealibid., X, 1015;cf.Weeks,op. cit., 246, 247, who has collected these passages.

[783]N. C. Col. Rec., VIII, 80b. There was also a petition from the people of Anson:ibid., 78.

[784]Ibid., 82;Weeks,op. cit., 246, 247. This petition was presented to Tryon by "Herman Husband the leader of the Regulators":Weeks,op. cit., 247, 248, referring toSwain, "War of Regulation,"N. C. University Mag., IX (1859-60), 339.

[785]It is "rights" in the text, but this appears to be a "slip," for lower down the proper spelling is used.

[786]N. C. Col. Rec., VIII, 322 (Dec. 17, 1770).

[787]Saunders, "Prefatory Notes,"N. C. Col, Rec., VIII, xlv; alsoibid., VIII, 297, 300; IX, 7.

[788]Saunders,op. cit., xlv.

[789]"It is interesting to note with what satanic disregard of the rights of man the leaders in the Establishment can write. Says Reed [minister in Craven County]: 'The bill was pushed by the dissenting interest, and [because of] the dangerous situation of the province from such formidable number of malcontents [Regulators], the governor acted with the greatest prudence in passing the bill with a suspending clause.... Should this act receive the royal assent it would be a fatal stroke to the Church of England, but as the insurrection is entirely quelled, I flatter myself with hopes that the act will meet with a repulse.'"—Weeks,op. cit., 247;N. C. Col. Rec., IX, 6. Later the Board of Trade wrote that the law was in effect a "bounty to the tolerated religion at the expense of the established," and petitioned for its disallowance:N. C. Col. Rec., IX, 7, 245, 251, 284, 366.

[790]Saunders,op. cit., xlv, errs in saying that the law of 1766 was repealed soon after its passage.

[791]Cooper,Statutes at Large, II, 120, 121 (act of March 1695/6).

[792]Ibid., 242, 243; also inN. C. Col. Rec., II, 867-82.

[793]Cooper,op. cit., II, 289-91; also inBrevard,Alphabetical Digest of Laws of S. C., 41-44. In both these acts elaborate provision is made for registration.

[794]Cooper,op. cit., II, 475, 476, where 32 H. VIII., c. 38, is put in force; and it is retained inRevised Statutes(Columbia, 1873), 481. In 1712, likewise, a part of the statute 1 Jac. I., c. 11, regarding bigamy was adopted:Cooper, II, 508.

[795]Editorial note inBrevard,Alphabetical Digest of Laws of S. C., II, 41, 42, notes.

[796]With an exception relating to military power:Poore,Charters, I, 373, 374. Georgia was made a royal province in 1751; but the policy of toleration was maintained:Holmes,Annals, II, 45;Story,Commentaries, I, 102. In early days the province suffered the usual evils from scarcity of women:Coll. Georgia Hist. Soc., II, 105; III, 32, 144.

[797]Poore,Charters, I, 375.

[798]Cook, "Mar. Cel. in Col.,"Atlantic, LXI, 356.

[799]Digest of the Laws of Georgia(Philadelphia, 1801), 314.

[800]Even in Virginia civil marriages were frequent before the Revolution, though liable to penalty. For Maryland the view of the text as to the common-law contract was sustained in the case of Cheseldinev.Brewer, 1 Har. and McH., 152 (1739). This decision was, however, overruled in Denisonv.Denison (1871), 35Md., 361, 379, in which Justice Alvey says: "We think we are safe in saying that there has never been a time in the history of the state, whether before its independence of Great Britain or since, when some ceremony or celebration was not deemed necessary to a valid marriage. In the early days of the province, it was not absolutely necessary that a minister of religion should officiate,—a judge or magistrate could perform the ceremony—but still, in all cases, some formal celebration was required." Of course, the opinion of a judge long after the colonial era, not professing to be based on evidence, can have little weight in settling the present historical problem. Though the laws of the Maryland assembly, like those of Connecticut and Rhode Island (Story,Commentaries, I, § 171), were not required to be submitted to the king for approval, it cannot be assumed that such laws could deprive a person of any liberty secured by the common law, but they might bestow greater privileges.Cf.Bishop,Mar., Div., and Sep., I, § 416.A statute of North Carolina, in 1715, declared that the common law should be in force in that province (Iredell,Laws, 1715, 18, 19;Story,op. cit., I, § 142). Yet in this century it has been held that the common law of the state recognizes no marriage not according to the statutes; as to which statement, "the court observed in a subsequent case, 'we express no opinion.' But such, all agree, is not the common law of England."—Bishop,op. cit., I, § 412; citing Statev.Samuel, 2 Dev. and Bat., 177; and Statev.Ta-cha-na-tah, 64N. C., 614.Several decisions of the courts of Tennessee have regard to the colonial laws of North Carolina, the parent commonwealth, and on the whole sustain the view that informal marriages were good despite the statutes. In the case of Bashawv.the State, 1829 (1 Yerger, 177-97), which gives a history of North Carolina matrimonial legislation for the period 1715-1829, it was held that the celebration must be according to the statutes which had superseded the common law. The same view is taken two years later in Grishamv.the State (2 Yerger, 589, 592). But in Andrewsv.Page, 1868 (3 Heiskell,Tenn. Reports, 653, 667), the opposite position is taken, the court holding rightly that the acts of 1741 and 1778 do not expressly prohibit the common-law marriage.The common-law principle of marriage by mutual consent prevailed in South Carolina (compare 10 McCord,Statutes, 357, ed. note; and the case Vaigneurv.Kirk, 2S. C. Equity Reports, 640-46, with H. W. Desaussure's note, 646). Referring to the law of South Carolina, generally,Brevard,Alphabetical Digest, II, 41, note, says: "How far the informality of a marriage may afford ground for questioning its validity, on a trial for polygamy, may perhaps admit of some doubt." Historically, however, the doubt is exceedingly small that such an informal contract would be valid.It is doubtful whether there were any courts in the southern colonies vested with full matrimonial jurisdiction: seeBishop,op. cit., I, §§ 115-49.

A statute of North Carolina, in 1715, declared that the common law should be in force in that province (Iredell,Laws, 1715, 18, 19;Story,op. cit., I, § 142). Yet in this century it has been held that the common law of the state recognizes no marriage not according to the statutes; as to which statement, "the court observed in a subsequent case, 'we express no opinion.' But such, all agree, is not the common law of England."—Bishop,op. cit., I, § 412; citing Statev.Samuel, 2 Dev. and Bat., 177; and Statev.Ta-cha-na-tah, 64N. C., 614.

Several decisions of the courts of Tennessee have regard to the colonial laws of North Carolina, the parent commonwealth, and on the whole sustain the view that informal marriages were good despite the statutes. In the case of Bashawv.the State, 1829 (1 Yerger, 177-97), which gives a history of North Carolina matrimonial legislation for the period 1715-1829, it was held that the celebration must be according to the statutes which had superseded the common law. The same view is taken two years later in Grishamv.the State (2 Yerger, 589, 592). But in Andrewsv.Page, 1868 (3 Heiskell,Tenn. Reports, 653, 667), the opposite position is taken, the court holding rightly that the acts of 1741 and 1778 do not expressly prohibit the common-law marriage.

The common-law principle of marriage by mutual consent prevailed in South Carolina (compare 10 McCord,Statutes, 357, ed. note; and the case Vaigneurv.Kirk, 2S. C. Equity Reports, 640-46, with H. W. Desaussure's note, 646). Referring to the law of South Carolina, generally,Brevard,Alphabetical Digest, II, 41, note, says: "How far the informality of a marriage may afford ground for questioning its validity, on a trial for polygamy, may perhaps admit of some doubt." Historically, however, the doubt is exceedingly small that such an informal contract would be valid.

It is doubtful whether there were any courts in the southern colonies vested with full matrimonial jurisdiction: seeBishop,op. cit., I, §§ 115-49.

[801]O'Callaghan,Introduction to Names of Persons for Whom Marriage Licenses Were Issued, p. iii.

[802]Friedberg,Eheschliessung, 478 ff., 485 ff., gives the details, citing the Dutch authorities.

[803]Compare the summaries ofFriedberg,op. cit., 487, 488, 491.

[804]Fernow,Doc. Rel. to Col. Hist. of N. Y., XIV, 243, note.

[805]Ibid.The letter is dated Jan. 20, 1654.

[806]O'Callaghan,Laws and Ordinances, 152, 153. For this ordinance see alsoNew York Colonial MSS., XII, 40; and compareibid., IV, 456; V, 197; VIII, 647. ConsultWebster,Opinion on the Law of Marriage prevailing in the Colony of N. Y., 1772, 19, 20 (Lauderdale Peerage Case), who discusses these ordinances.

[807]Brodhead,Hist. of the State of N. Y., I, 639. For the text of the ordinance of Jan. 15, 1658, seeN. Y. Col. MSS., XVI, 40, 129; alsoO'Callaghan,op. cit., 328, 329; andLaw Reports, X (1885), 729 (Lauderdale Peerage Case).

[808]Valentine,Manual of the Corporation, 1858, 497, 498;cf.alsoLamb,History of the City of N. Y., I, 183.

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

[810]Case of Hollisv.Wells (1845), 3Pa. Law Journal(Philadelphia, 1872), 29-33. Under head of "A Custom Must be Moral," these two cases are discussed inLawson(J. D.),The Law of Usages and Customs(St. Louis, 1881), 58-60.

[811]O'Callaghan,Names of Persons for Whom Marriage Licenses Were Issued, p. iii.

[812]Addressed to the vice-director and his council:Fernow,Doc. Rel. to Col. Hist. of N. Y., XII, 137 (Dec. 29, 1655). For a similar application seeibid., XII, 153, 154. For further record of entry of banns before the "mayor of New York" (1670-71) seeRecords of New Amsterdam, VI, 262, 334.

[813]Dec. 24, 1657:Fernow,loc. cit., 156.

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

[815]Valentine,Manual of the Corporation, 1845-46, 368;Records of New Amsterdam, I, 155.

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

[817]Ibid., I, 159, 160.

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

[819]Records of New Amsterdam, I, 173, 174.

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

[821]Fernow,Doc. Rel. to Col. Hist. of N. Y., XIV, 291.

[822]Ibid., XII, 359, 360. The case is also discussed byGerard,The Old Stadt Huys of New Amsterdam, 390, 391.

[823]Gerard,op. cit., 391, who says Laers was not legally bound to conform to the usage of the Reformed church. See also the documents in this case inO'Callaghan,op. cit., XII, 358, 359, 363, 366, 367.

[824]Fernow,op. cit., XII, 512: case of the Fiscalv.Jacob Fabricius, March 1, 1674, before Governor-General Colve and the council. A version of the case is also given byO'Callaghan,op. cit., II, 693, who translates "license" where Fernow uses "consent" in the last sentence.It is greatly to be feared that Brother Fabricius was a rather uncomfortable inhabitant; for at the same session of the court the fiscal charges that he did "beat and use force and violence against Marretie Jurians, in her own house," for which it is thought he ought to be "condemned in a fine of five Beavers with costs." The defendant admits the charge; "but says that the above named Marretie Jurians did provoke him with harsh language." Their honors, however, deemed it just to assess him "two Beavers with costs":O'Callaghan,loc. cit., 693. Later Fabricius was accused of riotous conduct at Newcastle on June 4, 1674, but he denied the charge and offered to bring witnesses:Fernow,op. cit., XII, 521. Possibly religious bickerings had something to do with his troubles. At any rate on June 1, 1675, the Lutherans on the Delaware petitioned that he be confirmed as pastor:ibid., 529. On April 18, following his suspension for marrying Doxy, he had the hardihood to ask that the sentence be mitigated, so that "he might be at least allowed to baptize, if he may not preach and act as minister;" but the court declined his request:ibid., 512.

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

[825]O'Callaghan,op. cit., II, 691, 692. On these two cases seeFowler,Letter and Opinion, 60 ff. (Lauderdale Peerage Case).

[826]O'Callaghan,Laws and Ordinances, 495.

[827]Cowley,Our Divorce Courts, 33, 34; citingNew York Colonial MSS., 1630-1664: Dutch: Part I, Vol. VIII, 1049, 1051, 1653, 1055, 1057.

[828]Records of New Amsterdam, VI, 203.

[829]Gerard,The Old Stadt Huys, 27.Cf. ibid., 26, 27, where cases of breach of promise are mentioned in 1642, 1644, 1653, and 1656.

[830]Records of New Amsterdam, I, 54; seeibid., 167, 199, 200. It may perhaps be inferred that the couple concluded to release each other; for only seven years after the trial (May 24, 1661) "Annetje Dircks, widow of Pieter Koch," is mentioned;ibid., III, 310; and similar phrase is twice repeated:ibid., 403; IV, 34.There are other cases. "In 1654 Greetje Waemans produced a marriage ring and two letters, promissory of marriage, and requested that on that evidence Daniel de Silla be 'condemned to legally marry her.' He vainly pleaded his unfortunate habit of some days drinking too much, and that on those days he did much which he regretted; among other things his bacchanalian love-making of Greetje. François Soleil, the New Amsterdam gunsmith, another recreant lover, swore he would rather go away and live with the Indians (a terrible threat) than marry the fair Rose whom he had left to droop neglected—and unmarried."—Earle,Colonial Days in Old New York, 51; and for mention of other cases, in connection with Dutch wedding gifts, seeibid., 52, 53.

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

[831]J. M. Stearns.

[832]Stiles,History of Brooklyn, I, 233, 234.The author adds: "So also in the will of John Burrows, of Newton, July 7, 1678, he devises to his son John his then dwelling-house, farm, orchard, out-houses, and lands, etc. 'But not to dispossess my beloved wife during the time of her widowhood. But if she marry, then her husband must provide for her as I have done.' So also the will of Thomas Skillman, of Newton, in 1739."—Ibid., 233, 234."Often joint-wills were made by husband and wife, each with equal rights, if survivor. This was peculiarly a Dutch fashion. In Fordham, in 1670 and 1673, Claude de Maistre and his wife Hester du Bois, Pierre Cresson and his wife Rachel Cloos, Gabriel Carboosie and Brieta Walferts, all made joint-wills. The last-named husband in his half of the will enjoined loss of property if Brieta married again. Perhaps he thought there had been enough marrying and giving in marriage already in that family, for Brieta had had three husbands,—a Dane, a Frieslander, and a German,—and his first wife had had four, and he—well, several I guess; and there were a number of children; and you couldn't expect any poor Dutchman to find it easy to make a will in all that confusion. In Albany may be found several joint-wills, among them two dated 1663 and 1676; others in the Schuyler family."—Earle,Colonial Days in Old New York, 54, 55.

[832]Stiles,History of Brooklyn, I, 233, 234.

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

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

[833]Before the vice-director on the Delaware:Fernow,Doc. Rel. to Col. Hist. of N. Y., XII, 149, 150.Here is a somewhat more elaborate contract in which one party is a widower:"In the name of the Lord Amen, be it known by the contents of this present instrument, that in the year sixteen hundred and sixty-three the eighteenth day of May, appeared before me, Johannes La Montagne in the service of, etc., Meyndert Frederickse [Smith], widower of the late Cataryna Burger, who declares in the presence of the aforesaid witnesses, that for God's honor he has contracted a future marriage with Pietertien Teunise, spinster (jonge dochter), and before the consummation of the same, he, the subscriber, assents to the following conditions, firstly, that the aforesaid betrothed persons, for the maintenance of said marriage, will collect and bring together, all such existing estates and effects of whatever nature; in whatever place, and with whatever persons, the same may be lying or deposited, nothing excepted, which each now has and posesses, to be by them possesed in common, according to the law of our Fatherland, except that out of the bridegroom's estate, to-wit, from the estate left by Caterina Burger deceased, be reserved the sum of eight hundred guilders payable in beavers, for the children left by her; to wit Frederick Meyndersen aged six years, and Burgert Meyndersen aged three years, being their maternal (matrimonial) inheritance; moreover said married persons shall be holden to bring up said children in the fear of the Lord, to teach them to read and write in the schools, to maintain them in food and clothing till their majority or married state, without diminishing their maternal estate, which the subscriber promises without craft or guile, and for the same binding his person and estate, real and personal, present and future, nothing excepted, subject to all laws and judges." In the presence of the children's guardians and the "orphan master."—Munsell'sCollections on the Hist. of Albany, IV, 321. For similar contracts seeibid., 311 (Sept. 23, 1662), 345.

[833]Before the vice-director on the Delaware:Fernow,Doc. Rel. to Col. Hist. of N. Y., XII, 149, 150.

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

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

[834]See the charter inNew York Colonial Laws, I, 1-5; and compareCook, "The Mar. Cel. in the Colonies,"Atlantic, LXI, 360 ff.

[835]Brodhead,Hist. of N. Y., II, 18, 63, 66, 67;Colonial Laws of N. Y., I, xii, 100, 101. The code of the Duke of York has been thrice published: inCollections of N. Y. Hist. Soc., I, 305-97, for the year 1809 (New York, 1811); in the recentColonial Laws of New York(Albany, 1894), I, 6-100, where a critical note on the original copies may be found; and as theDuke of Yorke's Book of Laws, a part ofLinn'sCharter and Laws of Pennsylvania(Harrisburg, 1879), the edition here cited by preference.

[836]O'Callaghan,Doc. Rel. to Col. Hist. of N. Y., III, 226, 227;N. Y. Col. Laws, I, xii, xiv, 107 (Andros's order).Cf.Dongan'sreport inO'Callaghan,op. cit., III, 390 (1686); also seeHildreth,Hist. of U. S., II, 44 ff., 76 ff.;Lodge,Short Hist., 297-99;Brodhead,Hist. of N. Y., II, 273;Howard,Local Const. Hist., I, 105, notes.

[837]Hazard,Annals of Pa., 427;N. Y. Col. Laws, I, xii.

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

[839]Duke of Yorke's Book of Laws, 37.

[840]Ibid.

[841]Ibid., 65.

[842]Ibid., 70.

[843]Duke of Yorke's Book of Laws, 13, 14;Col. Laws of N. Y., I, 19.

[844]Duke of Yorke's Book of Laws, 36;Col. Laws of N. Y., I, 46.

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

[846]Fernow,Doc. Rel. to Col. Hist. N. Y., XII, 596; mentioned also byHazard,Annals of Pa., 451, 454, 455. On the same day the local court fined him ten pounds and costs for neglecting his judicial duties:Fernow,loc. cit., 596, 597.

[847]Ibid., 624, 625.

[848]O'Callaghan,Doc. Rel. to Col. Hist. of N. Y., III, 261 (1678);Valentine,Manual of the Corporation, 1851, 453. The year before the bishop of London complains that the Virginia marriage laws are not enforced:O'Callaghan,op. cit., III, 253 (July 17, 1677).

[849]Earle,Col. Days in Old New York, 60.

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

[851]Fernow,op. cit., XIV, 752, 753; also inNew York Colonial MSS., XXIX, 202.

[852]The petition concludes with the following exhortation: "and we earnestly desire yeLord may perswade your hearts, vnto whome we are now concerned, that yemay remoue yecause of this our address and open that eye in you that can see vs as we are, who can pray for those thats in authority that vnder them we may live a peaceable holy and Godlike lifeY^e 4th day of y^e 7^{th} mo: 1680"Henry WillisJohn Bowne."

Y^e 4th day of y^e 7^{th} mo: 1680"Henry WillisJohn Bowne."

[853]Hallowell,Quaker Invasion of Massachusetts, 99-104.

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

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

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

[857]See his two letters to Andros (1675 and 1676 respectively) inCol. Laws of N. Y., I, xiv, xv; and also the instruction to Dongan, 1682, allowing a general assembly to be summoned:ibid., xv, 108-10. The duke's letters are also inO'Callaghan,Doc. Rel. to Col. Hist. of N. Y., III, 230, 235.

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

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

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