Chapter 30

[860]Col. Laws of N. Y., I, 151.[861]Ibid., 35. The view presented in the text as to the penal clause in the act of 1684 is sustained by the opinion of Lord Watson in the Lauderdale Peerage Case:Cook,Reports of Cases Decided by the Eng. Courts, XXXVII, 357, 358.[862]For example, a marriage record was continuously kept at Trinity Church, New York, only for the years 1746-64. In general, the records were imperfect at a much later period: seeMyron A. Monson, inHist. Genealog. Register, XLI, 93.[863]These MSS. are a rich mine for the genealogist. For this purpose they are made easily accessible through theNames of Persons for Whom Marriage Licenses Were Issued, printed by order of Gideon J. Tucker, secretary of state, Albany, 1860. On the period covered by the New York licenses seeHoffman,Chancery Practice, 15; andLaw Reports, X, 728 f.[864]Kalm,Travels in North America(translated byJohn Reinhold Forster, Warrington, 1770), I, 259-62; see also the extract inHart,Source-Book of American History, 128-30; and for the datesibid., 100.[865]See chap x, sec. iii, above.[866]Earle,Col. Days in Old New York, 58, 59.[867]Munsell'sAnnals of Albany, II, 182.[868]For these customs and others seeEarle,op. cit., 60 ff.; and compareVanderbilt,Social Customs of Flatbush, 149 ff.;Watson,Annals and Occurrences of New York City and State, 211-17 (written in 1828 regarding customs twelve years before the Revolution);Ostrander,History of the City of Brooklyn and King's County, I, 79-83;New York Hist. Coll., Fund Series, 1880, XIII, 355, where Rev. John Sharpe tells us that negroes are married merely by mutual consent without blessing of the church; andibid., Second Series, II, 347-49, where courtship among the New York Indians is described.[869]See sec. ii,b) below.[870]Hannah Thompson,Letters: inPa. Mag. of Hist. and Biol., XIV, 35.[871]Duke of Yorke's Book of Laws, 14, 15;cf.Weise,Hist. of Albany, 195, 196.[872]Grant,Memoirs of an American Lady, 48; quoted also byEarle,op. cit., 55, 56.[873]SeeCumming's"Historical Note,"Col. Laws of N. Y., I, xix.Cummingcites the note ofRobert Ludlow FowlertoFac Simile of the Laws and Acts of the General Assembly ... as printed and sold by William Bradford, 1694, 78 ff.[874]American witnesses for the claimant were E. J. Phelps, the United States minister, S. P. Nash, and C. Cary, of the American bar. Those for the counter-claimant were R. L. Fowler, of the American bar, and G. F. Edmunds, chairman of the Committee on Judiciary of the United States Senate:Law Reports, X, 728 n. 1. See alsoWebster,Opinion on the Law of Marriage in the Col. of N. Y.(New York, May 26, 1885);Seward,Answer to Interrogations of Brodie and Sons(New York, June, 1885); andFowler,Letter and Opinion(New York, May 11, 1885). Copies of these three opinions are in the State Library, Albany. Written opinions were also submitted by James C. Carter and William Evarts, of New York.[875]InLaw Reports, X (1885), 692-762; and inCook,Reports of Cases Decided by Eng. Courts, XXXVII, 341-69. The case was referred by the House of Lords to the Lords' "Committee for Privileges" for hearing.[876]Law Reports, X, 693.[877]Ibid., 794.[878]This opinion is not convincing; for the common law had not been "established," in the sense of enacted or declared; nor were there any British statutes which bore upon the marriage celebration in New York.[879]By the law of 1828 it was declared that a marriage, "so far as validity is concerned," is a civil contract "to which the consent of parties capable in law of contracting, shall be essential."—Revised Statutes, 1827-28, II, 138.[880]Webster,Opinion, 2 ff., 55, 59, 70. He cites Fentonv.Reed (4Johnson,Reports, 51), in favor of validity of consensual or common-law marriage; and Milfordv.Worcester (7Mass. Rep., 48), on the opposite side. In substantial agreement with Webster are the opinion ofSeward,Answer, 1-53; and that ofFowler,Letter and Opinion, 60, 61,passim, who to prove the validity of the duke's law cites the cases of Fabricius and Ralph Doxy, above discussed.The counter-claimant also produced the case of Dan Sutton, sentenced for bigamy and bored through the tongue with a red-hot iron in 1672—a case plainly irrelevant, so far as the question of marriage contract is concerned; and likewise the case of Mary Jones, 1680, for having a bastard child, "she pretending to be married before delivered; but without either license or publication. She was fined £5 or to receive twenty stripes on the back"—a sentence which perhaps tells on the claimant's side, for it punishes an illegal act, but says nothing of nullifying the marriage; or, if the marriage may be regarded as invalidated by implication, the sentence is illegal as contrary to English law. For these citations seeLaw Reports, X, 733.[881]Evarts's opinion cited byCook, "Mar. Cel. in the Colonies"—Atlantic, LXI, 361.[882]The American witnesses for the claimant cited Jacksonv.Gilchrist (15Johnson,Rep., 89); Constantinev.Windle (6Hill,Rep., 176); Humbertv.Trinity Church (24Wendell,Rep., 625):Hoffman,Chancery Practice(2d ed., New York, 1843);Revised Statutes of N. Y.(ed. 1830), 729; and Fentonv.Reed (4Johnson,Rep., 52), the leading case for "common-law" marriage.[883]Law Reports, X, 728. The act of 1684 is preserved in MS. in the New York State Library; and this I have examined through the courtesy of Mr. Griswold.[884]Law Reports, X, 734. Herschell cites Kingv.The Inhab. of Birmingham (8 B. & C., 29); and Dr. Lushington in Caterallv.Sweetman (1Robertson,Ecc. Reports, 321).[885]Law Reports, X, 728. The reference to the thirty-fifth article of the constitution of 1777 adds little weight to the argument. Except as concerns any established denomination of Christians or the sovereignty of the crown, that article provides that "such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York," as together did form the law of that colony on April 19, 1775, should be the law of the state:Poore,Charters, II, 1337, 1338.[886]Law Reports, X, 742.[887]Law Reports, X, 744-49.[888]Ibid., 762. Of course, the question as to whether the presence of a clergyman at the ceremony was essential to a valid marriage was not raised; and if it had been raised in 1885, the court might possibly have decided that it was requisite, in harmony with the judgment in the Queenv.Millis. History must, however, decide the other way. But compare the conclusion ofCook, "Mar. Cel. in the Col.,"Atlantic, LXI, 361, who infers from this decision that "this 'common-law marriage,' falsely so-called—the 'free marriage' of the later Roman law, of the canon law, and of the Scotch law,—did not exist in New York (or, indeed, in any of the other colonies) prior to the Revolution."[889]See Vol. I, 316-20, above.[890]Rodgers,A Brief View of the State of Religious Liberty in the Colony of New York: in 2Mass. Hist. Coll., I, 152. On the authorship, seeibid., II, 270.[891]In their instructions the governors are directed to issue marriage licenses, and usually to hang up the "table of marriages" according to the English canons:O'Callaghan,Doc. Rel. to Col. Hist., N. Y., III, 372 (instructions to Dongan, May 29, 1686), 688 (to Sloughter, Jan. 31, 1689), 821 (to Fletcher, March 7, 1691/92);ibid., IV, 288 (to Bellomont, Aug. 31, 1697), 558 (Bellomont's instructions to Lieutenant-Governor Nanfan), 766 (a letter of Bellomont to secretary of Board of Trade, telling of the trick by which Rev. Symon Smith got a license for Baldridge, the pirate, Oct. 19, 1700);ibid., V, 135 (instructions to Hunter);ibid., VII, 830 (Governor Moore to Lords of Trade, mentioning his power to license, June 12, 1766).[892]CompareCook, "Mar. Cel. in the Colonies,"Atlantic, LXI, 358, 359.[893]For the Concessions seeSmith,Hist. of the Col. of Nova-Caesaria, or New Jersey, 512 ff.[894]Later reduced to ten pounds:Acts of the Assembly, 1693, 332.[895]Leaming and Spicer,Grants, Concessions, and Original Constitutions, 81, 82 ("Laws in Cartaret's Time").[896]Cf.Cook,loc. cit., 359; andLinn,Charter and Laws, 101.[897]"Fundamental Constitutions," sec. xx: inNew Jersey Archives, I, 408; andLeaming and Spicer,Grants, etc., 164.[898]A "Bill for the General Laws of the Province of East New Jersey," March, 1682/83:Leaming and Spicer,op. cit., 236. By this act marriage within the degrees there named is declared void:ibid., 243.The "Fundamental Constitutions" had provided that there should be a "register in each county for births, marriages, burials, and servants, where their names, times, wages, and days of payment" should be recorded:Leaming and Spicer,op. cit., 163; and already in 1675, under the first proprietors, the "clerk of each town within this Province," in a book provided by the town, is to record "all births, marriages, and deaths" in his district:ibid., 100.[899]Cook,loc. cit., 359.[900]See the "concessions" to West New Jersey: inSmith,Hist. of N. J., 521 ff.[901]Leaming and Spicer,op. cit., 446, 447.[902]For the instrument of surrender seeSmith,Hist. of New Jersey, 211-19. There was a petition to separate from New York as early as 1728:ibid., 421 ff.Cf.alsoCook,loc. cit., 359;Thwaites,Colonies, 211, 213, 214.[903]Cook,loc. cit.[904]Instructions to Lord Cornbury, 1702: inLeaming and Spicer,op. cit., 639; also inSmith,op. cit., 253.[905]5 Geo. I., inActs of the General Assembly(Woodbridge, 1752), 79 ff. The form of bond is given p. 81. This statute is also inAllinson'sActs of the Gen. Assem., 1702-76 (Burlington, 1776), 53-57.[906]Under penalty of £200, ministers, justices, or others are forbidden to join persons in marriage without banns or proper license:Acts of the Gen. Assem.(1752), 79, 80, 82, 84.[907]Until the act of March 4, 1795, by which the act of 1719 was repealed:Laws of the State(Newark, 1800), 160.[908]New Jersey Archives, First Series, IX, 504, 520, 521.[909]See, for example, the curious pamphlet ofThomas Underhill,Hell broke loose: Or An History of the Quakers Both Old and New. Setting forth many of their Opinions and Practices. Published to Antidote Christians against Formality in Religion and Apostasie(London, 1660), 16, 37, where, contradictorily, they are accused of believing, "that we sould endeavor to be perfect; and therefore to forbearall carnall acts of Generation, as being ofSinand of theDevil; and thereforeHusbandandWifeshouldpart asunder, orabstain;" and that "marriage was made by Man;" while one of them is charged with defending a woman who went naked and confessing "That of late he went to bed with a woman, who was not his wife, and that he did it without sin."Read alsoThe Quakers Spiritual Court Proclaimed(London, 1668), 5, 6, by "Nathaniel Smith Student in Physick, who was himself a Quaker, and conversant among them for the space of about XIV years": "Not long before this, they spoke against Marriage, and said, That it was for Lust; and that men ought to live soverly,For all Lust came of the Devil: and so they spoke against Marriage in general; but this continued not above three or four Years, at which time they began to Marry in Prison: and there was the first Marriage that I ever knew of. After this, that their Ministers did marry in Prisons, then the Common sort would marry in the Meeting: And it was after this Manner; Those two that were resolved to go together, (and many times there was not one that did know it besides themselves,) the Man and the Woman would stand up in the midst of them, or in some convenient place; the Man declaring after this manner,I take this Woman to Wife: and after, departed and went together as Man and Wife."[910]Masson,Life and Times of Milton, V, 25;cf.Hallowell,Quaker Invasion of Mass., 23.[911]Hallowell,op. cit., 23, 24.[912]Applegarth, "Quakers in Pennsylvania,"J. H. U.S., X, 402.[913]Penn,Rise and Progress(Manchester, 1834), 25, 27;cf.Applegarth,op. cit., 402.[914]Penn,Select Works, V, 225: cited byApplegarth,op. cit., 401, 402.[915]Penn,op. cit., V, 129: quoted byApplegarth,op. cit., 401.[916]Sewel,History(London, 1722), 691.[917]Hallowell,op. cit., 24, 25.[918]"Laws Agreed upon in England": inLinn,Charter and Laws, 101.Cf.Nead'sHistorical Notes:ibid., 472. This law also provides for a "register of births, marriages, burials, wills, and letters of administration, distinct from the other registry."—Ibid., 101.[919]Linn,Charter and Laws, 151. See the same provision as to penalty (1684),ibid., 171, and (1693), 229.[920]Ibid., 109;cf.194.[921]This is chap. 35 of the Great Law as given byHazard,Annals of Pa., 626, 627; but it was not engrossed and does not appear inLinn'sedition, which followsPatrick Robinson'scopy:Nead,Historical Notes: inLinn,op. cit., 481 n. 3.[922]Linn,op. cit., 171.[923]Ibid., 229.[924]Cf.Cook,op. cit., 358. This act of Feb. 14, 1729/30, is contained inLaws of the Comm. of Pa., 1700-1810, I, 180, 181.[925]Bioren,Laws, I, 7, 34;Linn,op. cit., 229, note; alsoLaws of the Comm. of Pa., 1700-1810, I, 21-23.[926]Pepper and Lewis,Digest(1896), II, 2878 ff.[927]See the act of 1700 inFranklin and Hall'sLaws of the Government of New Castle, Kent, and Sussex, upon Delaware(Philadelphia, 1752). It is especially provided that if any servant marry without the consent of his or her master, he or she shall, for such offense, serve for one year after the time of his or her servitude by indenture has expired; and if any free person marry a servant without consent of the master, he or she shall pay to the master, if the servant is a man, 12 pounds, and if a woman, 6 pounds, or one whole year's service; and the servant so marrying shall serve an additional year. Adultery is punished with a fine of 50 pounds or 21 lashes "well laid on." The penalty for fornication is 3 pounds or 21 lashes:ibid., 74.[928]Col. Records of Pa., I, 144.[929]Col. Records of Pa.(Jan. 1703/4), II, 114, 115; also quoted byApplegarth,Quakers in Pa., 413, note.[930]Pa. Col. Rec., I, 121. "The Board then took into their Consideration the alterations proper to be made in the forms of Marriage Lycences."—Ibid., V, 69 (1747). Again, "Order'd, That the President sign all Marriage Lycences."—Ibid., V, 71 (1747).[931]See the passage fromWatson,Annals of Phil., III, 434, below cited.[932]On Sept. 29, 1755, in an address to the governor, the assembly declares that "they [the assembly] are not, however, chargeable with exacting Money from the people which by law they had no right to exact, as we apprehend the Governor does in the Fees for Marriage Licenses, by which many thousand Pounds have been drawn from the Inhabitants of this Province. If this be not dispensing with Law 'tis making Law, and we presume the Governor alone has no more right to do the one than the Assembly alone the other."—Pa. Col. Rec., VI, 633, 634.Cf. ibid., II, 455; IV, 175; andPa. Archives(1728), I, 235, 236, where the bishop of London says that "some occasional perquisites that the Clergy us'd to enjoy, are now cut off" in the matter of licenses.[933]"Whereas John Roades of the County of Philadelphia and Hannah Willcox daughter of Sarah Willcox of Schoolkil in the County aforesaid having declared theire Intentione of Takeing Each Other as Husband and Wife before several Men and Womens Meetings of the People called Quakers whose Proceedings Therein after deliberate Consideration Thereof and Consent of parties and Relations concerned being approved by the said Meeting."Andalsoe the said John Roades and Sarah Willcox having Published theire said Intentions in Writing according to the Lawes of thiss province Whereby the said Law is fulfilled...."Now these are toCertifieall Persons whome it may concern that for the full Determination of their Intentions this tenth day of the Ninth Month in the Yeare One Thousand Six Hundred and Ninety and two, they the said John Roades and Hannah Willcox in an Assembly of the aforesaid people Mett together for that end and purpose at the Dwelling House of Sarah Willcox aforesaid, according to the Example of the primitive Christians Recorded in the Scriptures of Truth did take each Other as Husband and Wife in Manner following (viz) he the said John Roades takeing the said Hannah Willcox by the Hand said friends in the feare of the Lord and Before you his people I take this my friend Hannah Willcox to be my wife promissing as the Lord shall Inable mee to be unto her a faithfull and Loving Husband till Death shall part us.... And the said Hannah Willcox in like Manner takeing the said John Roades by the Hand said friends I Likewise do in the fear of the Lord and in the presence of You his people take John Roades to be my Husband promising to be unto him a faithfull and Loving Wife till Death separate us....Andthe said John Roades and Hannah Willcox as a farther Confirmation thereof did then and there to these presents Set theire Hand.Andwee whose Names are hereunto Subscribed are Witnesses of the Same the Day and Yeare abovesaid."—In thePa. Mag. of Hist. and Biog., XIII (1889), 112.The custom of many witnesses signing the certificate survived to recent times:Watson,Annals of Phil., III, 434.[934]Watson,op. cit., III, 434.[935]Ibid., I, 503; III, 434.[936]The meeting sometimes took part in the civil administration. Thus committees were frequently appointed by the Philadelphia meeting to lay out roads;ibid., I, 305.[937]Cf.Howard,Local Const. Hist., I, 53 ff.[938]Earle, "Among Friends,"New Eng. Mag., Sept., 1898, 20. "Courtship and marriage were closely hedged around. Friends were enjoined against proposing marriage without the consent of the meeting, against marrying any but a Friend, against 'keeping unreasonable company' with any woman not a Friend; against going to weddings of any who marry out of meeting; against being 'married by a priest.' They were enjoined also 'to be clear of one before being concerned with another,' in an engagement of marriage. Widows and widowers were reminded not to marry again too swiftly; 'not to let their minds out soon to another husband or wife;' and kinship was to be carefully regarded in thinking of wedding."—Ibid., 19, 20;cf.Watson,Annals of Phil., III, 434.[939]It seems to have been customary, at least in some meetings, to file the notice in writing for permanent record. The form was as follows:"We the subscribers, A. B., son of C., and D. B.; and F. G., daughter of H., and I. G., purpose taking each other in marriage, which we hereby offer for the approbation of Friends."—Applegarth, "Quakers in Pennsylvania,"J. H. U. S., X, 402.[940]Earle, "Among Friends,"New Eng. Mag., Sept., 1898, 20.[941]Ibid., 21.[942]Watson,Annals of Phil., I, 178, 503.[943]Earle,loc. cit., 21. "In Philadelphia not only did the friends of the bride and groom come and eat and drink and all kiss the bride, but every evening for a week the entire bridal party received friends, and again the bride ran a gauntlet of kisses. When Mrs. Robert Erwin received her wedding visitors, four hundred gentlemen came in two days, ate the wedding cake, drank the wedding punch and, doubtless, all kissed her."—Ibid., 21.[944]Watson,op. cit., I, 504.[945]Earle,loc. cit.[946]Applegarth, "Quakers in Pa.,"J. H. U. S., X. 402, 403, who gives a discussion of Quaker weddings, followingWatson.Gordon,Hist. of Pa., 70, 557, has a brief, concise account of the marriage law of the province.[947]On the "divorce suit as civil or criminal" see, however,Bishop,Marriage, Divorce, and Separation, II, secs. 483-88, pp. 218-20; alsoKent,Commentaries, 100.[948]Hutchinson,Hist. of Mass., I, 393.[949]Whitmore,Col. Laws of Mass.(1660-72), 36; (1672-86), 143.[950]It is ordered "that such of the magistrates as shall reside in or near Boston, or any 5, 4, or 3 of them, the Governor or Deputy to be one, shall have power to assemble together upon the last fifth day of the eighth, eleventh, second, and fifth month, every year, and then and there to hear and determine all civil causes whereof the debt or trespass and damages shall not exceed £20, and all criminal causesnotextending to life, or member, or banishment, according to the course of the Courts of Assistants, and to summon juries out of the neighboring towns."—Mass. Col. Rec., I, 276. In 1648 the number of such courts was reduced to two:ibid., II, 286; III, 175.[951]In the petition for divorce in the Halsall case the counsel for the plaintiff says: "But considering the power of divorce doth properly belong to the Honored Court of assistants as is expressed in an order of the general Court (May 16, 1656) & a president ther is for it (namly Mr. freeman sometimes of Watertowne) & the law admitts it (page 17)."—MSS. Early Court Files of Suffolk, No. 257. From the last phrase (in which he reads "submitts" for "admitts")Whitmorethinks it "a reasonable surmise that this clause stood in the code of 1649, under the title Courts":Bibliog. Sketch, 101, note. The general court, referring to the same case, declares that it "doth properly belong" to the court of assistants:Mass. Col. Rec., IV, i, 272.Cowley,Our Divorce Courts, 10, mentions the error ofPalfrey,Hist. of U. S., II, 17, who says the superior "courts had jurisdiction in cases of divorce."[952]Cowley,Our Divorce Courts, 28-31;Whitmore,Biog. Sketch, 99-101, note;Newhall,Ye Great and General Court, 380-84;Goodwin,Pilgrim Republic, 596.[953]Mass. Col. Rec., I, 283. For this case and that of Frierv.Richardson see above, chap. xii, p. 159.[954]Elizabeth Frierv.John Richardson:Records of Court of Assistants, 1641-1643/44 (Barlow MS.): published inWhitmore,Bibliog. Sketch, xlii; also inMass. Col. Rec., II, 86.[955]N. =Noble'sRecords of the Court of Assistants, I; W. =Record of the Court of Assistants, inWhitmore'sBibliog. Sketch.[956]Records of Court of Assistants, 1641-43 (Barlow MS.): published inWhitmore,op. cit., xlii.[957]The two petitions are in theMSS. Early Court Files of Suffolk, No. 257; and the reference of the general court inMass. Col. Rec., IV, i, 272.

[860]Col. Laws of N. Y., I, 151.

[861]Ibid., 35. The view presented in the text as to the penal clause in the act of 1684 is sustained by the opinion of Lord Watson in the Lauderdale Peerage Case:Cook,Reports of Cases Decided by the Eng. Courts, XXXVII, 357, 358.

[862]For example, a marriage record was continuously kept at Trinity Church, New York, only for the years 1746-64. In general, the records were imperfect at a much later period: seeMyron A. Monson, inHist. Genealog. Register, XLI, 93.

[863]These MSS. are a rich mine for the genealogist. For this purpose they are made easily accessible through theNames of Persons for Whom Marriage Licenses Were Issued, printed by order of Gideon J. Tucker, secretary of state, Albany, 1860. On the period covered by the New York licenses seeHoffman,Chancery Practice, 15; andLaw Reports, X, 728 f.

[864]Kalm,Travels in North America(translated byJohn Reinhold Forster, Warrington, 1770), I, 259-62; see also the extract inHart,Source-Book of American History, 128-30; and for the datesibid., 100.

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

[866]Earle,Col. Days in Old New York, 58, 59.

[867]Munsell'sAnnals of Albany, II, 182.

[868]For these customs and others seeEarle,op. cit., 60 ff.; and compareVanderbilt,Social Customs of Flatbush, 149 ff.;Watson,Annals and Occurrences of New York City and State, 211-17 (written in 1828 regarding customs twelve years before the Revolution);Ostrander,History of the City of Brooklyn and King's County, I, 79-83;New York Hist. Coll., Fund Series, 1880, XIII, 355, where Rev. John Sharpe tells us that negroes are married merely by mutual consent without blessing of the church; andibid., Second Series, II, 347-49, where courtship among the New York Indians is described.

[869]See sec. ii,b) below.

[870]Hannah Thompson,Letters: inPa. Mag. of Hist. and Biol., XIV, 35.

[871]Duke of Yorke's Book of Laws, 14, 15;cf.Weise,Hist. of Albany, 195, 196.

[872]Grant,Memoirs of an American Lady, 48; quoted also byEarle,op. cit., 55, 56.

[873]SeeCumming's"Historical Note,"Col. Laws of N. Y., I, xix.Cummingcites the note ofRobert Ludlow FowlertoFac Simile of the Laws and Acts of the General Assembly ... as printed and sold by William Bradford, 1694, 78 ff.

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

[875]InLaw Reports, X (1885), 692-762; and inCook,Reports of Cases Decided by Eng. Courts, XXXVII, 341-69. The case was referred by the House of Lords to the Lords' "Committee for Privileges" for hearing.

[876]Law Reports, X, 693.

[877]Ibid., 794.

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

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

[880]Webster,Opinion, 2 ff., 55, 59, 70. He cites Fentonv.Reed (4Johnson,Reports, 51), in favor of validity of consensual or common-law marriage; and Milfordv.Worcester (7Mass. Rep., 48), on the opposite side. In substantial agreement with Webster are the opinion ofSeward,Answer, 1-53; and that ofFowler,Letter and Opinion, 60, 61,passim, who to prove the validity of the duke's law cites the cases of Fabricius and Ralph Doxy, above discussed.The counter-claimant also produced the case of Dan Sutton, sentenced for bigamy and bored through the tongue with a red-hot iron in 1672—a case plainly irrelevant, so far as the question of marriage contract is concerned; and likewise the case of Mary Jones, 1680, for having a bastard child, "she pretending to be married before delivered; but without either license or publication. She was fined £5 or to receive twenty stripes on the back"—a sentence which perhaps tells on the claimant's side, for it punishes an illegal act, but says nothing of nullifying the marriage; or, if the marriage may be regarded as invalidated by implication, the sentence is illegal as contrary to English law. For these citations seeLaw Reports, X, 733.

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

[881]Evarts's opinion cited byCook, "Mar. Cel. in the Colonies"—Atlantic, LXI, 361.

[882]The American witnesses for the claimant cited Jacksonv.Gilchrist (15Johnson,Rep., 89); Constantinev.Windle (6Hill,Rep., 176); Humbertv.Trinity Church (24Wendell,Rep., 625):Hoffman,Chancery Practice(2d ed., New York, 1843);Revised Statutes of N. Y.(ed. 1830), 729; and Fentonv.Reed (4Johnson,Rep., 52), the leading case for "common-law" marriage.

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

[884]Law Reports, X, 734. Herschell cites Kingv.The Inhab. of Birmingham (8 B. & C., 29); and Dr. Lushington in Caterallv.Sweetman (1Robertson,Ecc. Reports, 321).

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

[886]Law Reports, X, 742.

[887]Law Reports, X, 744-49.

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

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

[890]Rodgers,A Brief View of the State of Religious Liberty in the Colony of New York: in 2Mass. Hist. Coll., I, 152. On the authorship, seeibid., II, 270.

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

[892]CompareCook, "Mar. Cel. in the Colonies,"Atlantic, LXI, 358, 359.

[893]For the Concessions seeSmith,Hist. of the Col. of Nova-Caesaria, or New Jersey, 512 ff.

[894]Later reduced to ten pounds:Acts of the Assembly, 1693, 332.

[895]Leaming and Spicer,Grants, Concessions, and Original Constitutions, 81, 82 ("Laws in Cartaret's Time").

[896]Cf.Cook,loc. cit., 359; andLinn,Charter and Laws, 101.

[897]"Fundamental Constitutions," sec. xx: inNew Jersey Archives, I, 408; andLeaming and Spicer,Grants, etc., 164.

[898]A "Bill for the General Laws of the Province of East New Jersey," March, 1682/83:Leaming and Spicer,op. cit., 236. By this act marriage within the degrees there named is declared void:ibid., 243.The "Fundamental Constitutions" had provided that there should be a "register in each county for births, marriages, burials, and servants, where their names, times, wages, and days of payment" should be recorded:Leaming and Spicer,op. cit., 163; and already in 1675, under the first proprietors, the "clerk of each town within this Province," in a book provided by the town, is to record "all births, marriages, and deaths" in his district:ibid., 100.

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

[899]Cook,loc. cit., 359.

[900]See the "concessions" to West New Jersey: inSmith,Hist. of N. J., 521 ff.

[901]Leaming and Spicer,op. cit., 446, 447.

[902]For the instrument of surrender seeSmith,Hist. of New Jersey, 211-19. There was a petition to separate from New York as early as 1728:ibid., 421 ff.Cf.alsoCook,loc. cit., 359;Thwaites,Colonies, 211, 213, 214.

[903]Cook,loc. cit.

[904]Instructions to Lord Cornbury, 1702: inLeaming and Spicer,op. cit., 639; also inSmith,op. cit., 253.

[905]5 Geo. I., inActs of the General Assembly(Woodbridge, 1752), 79 ff. The form of bond is given p. 81. This statute is also inAllinson'sActs of the Gen. Assem., 1702-76 (Burlington, 1776), 53-57.

[906]Under penalty of £200, ministers, justices, or others are forbidden to join persons in marriage without banns or proper license:Acts of the Gen. Assem.(1752), 79, 80, 82, 84.

[907]Until the act of March 4, 1795, by which the act of 1719 was repealed:Laws of the State(Newark, 1800), 160.

[908]New Jersey Archives, First Series, IX, 504, 520, 521.

[909]See, for example, the curious pamphlet ofThomas Underhill,Hell broke loose: Or An History of the Quakers Both Old and New. Setting forth many of their Opinions and Practices. Published to Antidote Christians against Formality in Religion and Apostasie(London, 1660), 16, 37, where, contradictorily, they are accused of believing, "that we sould endeavor to be perfect; and therefore to forbearall carnall acts of Generation, as being ofSinand of theDevil; and thereforeHusbandandWifeshouldpart asunder, orabstain;" and that "marriage was made by Man;" while one of them is charged with defending a woman who went naked and confessing "That of late he went to bed with a woman, who was not his wife, and that he did it without sin."Read alsoThe Quakers Spiritual Court Proclaimed(London, 1668), 5, 6, by "Nathaniel Smith Student in Physick, who was himself a Quaker, and conversant among them for the space of about XIV years": "Not long before this, they spoke against Marriage, and said, That it was for Lust; and that men ought to live soverly,For all Lust came of the Devil: and so they spoke against Marriage in general; but this continued not above three or four Years, at which time they began to Marry in Prison: and there was the first Marriage that I ever knew of. After this, that their Ministers did marry in Prisons, then the Common sort would marry in the Meeting: And it was after this Manner; Those two that were resolved to go together, (and many times there was not one that did know it besides themselves,) the Man and the Woman would stand up in the midst of them, or in some convenient place; the Man declaring after this manner,I take this Woman to Wife: and after, departed and went together as Man and Wife."

Read alsoThe Quakers Spiritual Court Proclaimed(London, 1668), 5, 6, by "Nathaniel Smith Student in Physick, who was himself a Quaker, and conversant among them for the space of about XIV years": "Not long before this, they spoke against Marriage, and said, That it was for Lust; and that men ought to live soverly,For all Lust came of the Devil: and so they spoke against Marriage in general; but this continued not above three or four Years, at which time they began to Marry in Prison: and there was the first Marriage that I ever knew of. After this, that their Ministers did marry in Prisons, then the Common sort would marry in the Meeting: And it was after this Manner; Those two that were resolved to go together, (and many times there was not one that did know it besides themselves,) the Man and the Woman would stand up in the midst of them, or in some convenient place; the Man declaring after this manner,I take this Woman to Wife: and after, departed and went together as Man and Wife."

[910]Masson,Life and Times of Milton, V, 25;cf.Hallowell,Quaker Invasion of Mass., 23.

[911]Hallowell,op. cit., 23, 24.

[912]Applegarth, "Quakers in Pennsylvania,"J. H. U.S., X, 402.

[913]Penn,Rise and Progress(Manchester, 1834), 25, 27;cf.Applegarth,op. cit., 402.

[914]Penn,Select Works, V, 225: cited byApplegarth,op. cit., 401, 402.

[915]Penn,op. cit., V, 129: quoted byApplegarth,op. cit., 401.

[916]Sewel,History(London, 1722), 691.

[917]Hallowell,op. cit., 24, 25.

[918]"Laws Agreed upon in England": inLinn,Charter and Laws, 101.Cf.Nead'sHistorical Notes:ibid., 472. This law also provides for a "register of births, marriages, burials, wills, and letters of administration, distinct from the other registry."—Ibid., 101.

[919]Linn,Charter and Laws, 151. See the same provision as to penalty (1684),ibid., 171, and (1693), 229.

[920]Ibid., 109;cf.194.

[921]This is chap. 35 of the Great Law as given byHazard,Annals of Pa., 626, 627; but it was not engrossed and does not appear inLinn'sedition, which followsPatrick Robinson'scopy:Nead,Historical Notes: inLinn,op. cit., 481 n. 3.

[922]Linn,op. cit., 171.

[923]Ibid., 229.

[924]Cf.Cook,op. cit., 358. This act of Feb. 14, 1729/30, is contained inLaws of the Comm. of Pa., 1700-1810, I, 180, 181.

[925]Bioren,Laws, I, 7, 34;Linn,op. cit., 229, note; alsoLaws of the Comm. of Pa., 1700-1810, I, 21-23.

[926]Pepper and Lewis,Digest(1896), II, 2878 ff.

[927]See the act of 1700 inFranklin and Hall'sLaws of the Government of New Castle, Kent, and Sussex, upon Delaware(Philadelphia, 1752). It is especially provided that if any servant marry without the consent of his or her master, he or she shall, for such offense, serve for one year after the time of his or her servitude by indenture has expired; and if any free person marry a servant without consent of the master, he or she shall pay to the master, if the servant is a man, 12 pounds, and if a woman, 6 pounds, or one whole year's service; and the servant so marrying shall serve an additional year. Adultery is punished with a fine of 50 pounds or 21 lashes "well laid on." The penalty for fornication is 3 pounds or 21 lashes:ibid., 74.

[928]Col. Records of Pa., I, 144.

[929]Col. Records of Pa.(Jan. 1703/4), II, 114, 115; also quoted byApplegarth,Quakers in Pa., 413, note.

[930]Pa. Col. Rec., I, 121. "The Board then took into their Consideration the alterations proper to be made in the forms of Marriage Lycences."—Ibid., V, 69 (1747). Again, "Order'd, That the President sign all Marriage Lycences."—Ibid., V, 71 (1747).

[931]See the passage fromWatson,Annals of Phil., III, 434, below cited.

[932]On Sept. 29, 1755, in an address to the governor, the assembly declares that "they [the assembly] are not, however, chargeable with exacting Money from the people which by law they had no right to exact, as we apprehend the Governor does in the Fees for Marriage Licenses, by which many thousand Pounds have been drawn from the Inhabitants of this Province. If this be not dispensing with Law 'tis making Law, and we presume the Governor alone has no more right to do the one than the Assembly alone the other."—Pa. Col. Rec., VI, 633, 634.Cf. ibid., II, 455; IV, 175; andPa. Archives(1728), I, 235, 236, where the bishop of London says that "some occasional perquisites that the Clergy us'd to enjoy, are now cut off" in the matter of licenses.

[933]"Whereas John Roades of the County of Philadelphia and Hannah Willcox daughter of Sarah Willcox of Schoolkil in the County aforesaid having declared theire Intentione of Takeing Each Other as Husband and Wife before several Men and Womens Meetings of the People called Quakers whose Proceedings Therein after deliberate Consideration Thereof and Consent of parties and Relations concerned being approved by the said Meeting."Andalsoe the said John Roades and Sarah Willcox having Published theire said Intentions in Writing according to the Lawes of thiss province Whereby the said Law is fulfilled...."Now these are toCertifieall Persons whome it may concern that for the full Determination of their Intentions this tenth day of the Ninth Month in the Yeare One Thousand Six Hundred and Ninety and two, they the said John Roades and Hannah Willcox in an Assembly of the aforesaid people Mett together for that end and purpose at the Dwelling House of Sarah Willcox aforesaid, according to the Example of the primitive Christians Recorded in the Scriptures of Truth did take each Other as Husband and Wife in Manner following (viz) he the said John Roades takeing the said Hannah Willcox by the Hand said friends in the feare of the Lord and Before you his people I take this my friend Hannah Willcox to be my wife promissing as the Lord shall Inable mee to be unto her a faithfull and Loving Husband till Death shall part us.... And the said Hannah Willcox in like Manner takeing the said John Roades by the Hand said friends I Likewise do in the fear of the Lord and in the presence of You his people take John Roades to be my Husband promising to be unto him a faithfull and Loving Wife till Death separate us....Andthe said John Roades and Hannah Willcox as a farther Confirmation thereof did then and there to these presents Set theire Hand.Andwee whose Names are hereunto Subscribed are Witnesses of the Same the Day and Yeare abovesaid."—In thePa. Mag. of Hist. and Biog., XIII (1889), 112.The custom of many witnesses signing the certificate survived to recent times:Watson,Annals of Phil., III, 434.

"Andalsoe the said John Roades and Sarah Willcox having Published theire said Intentions in Writing according to the Lawes of thiss province Whereby the said Law is fulfilled....

"Now these are toCertifieall Persons whome it may concern that for the full Determination of their Intentions this tenth day of the Ninth Month in the Yeare One Thousand Six Hundred and Ninety and two, they the said John Roades and Hannah Willcox in an Assembly of the aforesaid people Mett together for that end and purpose at the Dwelling House of Sarah Willcox aforesaid, according to the Example of the primitive Christians Recorded in the Scriptures of Truth did take each Other as Husband and Wife in Manner following (viz) he the said John Roades takeing the said Hannah Willcox by the Hand said friends in the feare of the Lord and Before you his people I take this my friend Hannah Willcox to be my wife promissing as the Lord shall Inable mee to be unto her a faithfull and Loving Husband till Death shall part us.... And the said Hannah Willcox in like Manner takeing the said John Roades by the Hand said friends I Likewise do in the fear of the Lord and in the presence of You his people take John Roades to be my Husband promising to be unto him a faithfull and Loving Wife till Death separate us....Andthe said John Roades and Hannah Willcox as a farther Confirmation thereof did then and there to these presents Set theire Hand.Andwee whose Names are hereunto Subscribed are Witnesses of the Same the Day and Yeare abovesaid."—In thePa. Mag. of Hist. and Biog., XIII (1889), 112.

The custom of many witnesses signing the certificate survived to recent times:Watson,Annals of Phil., III, 434.

[934]Watson,op. cit., III, 434.

[935]Ibid., I, 503; III, 434.

[936]The meeting sometimes took part in the civil administration. Thus committees were frequently appointed by the Philadelphia meeting to lay out roads;ibid., I, 305.

[937]Cf.Howard,Local Const. Hist., I, 53 ff.

[938]Earle, "Among Friends,"New Eng. Mag., Sept., 1898, 20. "Courtship and marriage were closely hedged around. Friends were enjoined against proposing marriage without the consent of the meeting, against marrying any but a Friend, against 'keeping unreasonable company' with any woman not a Friend; against going to weddings of any who marry out of meeting; against being 'married by a priest.' They were enjoined also 'to be clear of one before being concerned with another,' in an engagement of marriage. Widows and widowers were reminded not to marry again too swiftly; 'not to let their minds out soon to another husband or wife;' and kinship was to be carefully regarded in thinking of wedding."—Ibid., 19, 20;cf.Watson,Annals of Phil., III, 434.

[939]It seems to have been customary, at least in some meetings, to file the notice in writing for permanent record. The form was as follows:"We the subscribers, A. B., son of C., and D. B.; and F. G., daughter of H., and I. G., purpose taking each other in marriage, which we hereby offer for the approbation of Friends."—Applegarth, "Quakers in Pennsylvania,"J. H. U. S., X, 402.

[939]It seems to have been customary, at least in some meetings, to file the notice in writing for permanent record. The form was as follows:

"We the subscribers, A. B., son of C., and D. B.; and F. G., daughter of H., and I. G., purpose taking each other in marriage, which we hereby offer for the approbation of Friends."—Applegarth, "Quakers in Pennsylvania,"J. H. U. S., X, 402.

[940]Earle, "Among Friends,"New Eng. Mag., Sept., 1898, 20.

[941]Ibid., 21.

[942]Watson,Annals of Phil., I, 178, 503.

[943]Earle,loc. cit., 21. "In Philadelphia not only did the friends of the bride and groom come and eat and drink and all kiss the bride, but every evening for a week the entire bridal party received friends, and again the bride ran a gauntlet of kisses. When Mrs. Robert Erwin received her wedding visitors, four hundred gentlemen came in two days, ate the wedding cake, drank the wedding punch and, doubtless, all kissed her."—Ibid., 21.

[944]Watson,op. cit., I, 504.

[945]Earle,loc. cit.

[946]Applegarth, "Quakers in Pa.,"J. H. U. S., X. 402, 403, who gives a discussion of Quaker weddings, followingWatson.Gordon,Hist. of Pa., 70, 557, has a brief, concise account of the marriage law of the province.

[947]On the "divorce suit as civil or criminal" see, however,Bishop,Marriage, Divorce, and Separation, II, secs. 483-88, pp. 218-20; alsoKent,Commentaries, 100.

[948]Hutchinson,Hist. of Mass., I, 393.

[949]Whitmore,Col. Laws of Mass.(1660-72), 36; (1672-86), 143.

[950]It is ordered "that such of the magistrates as shall reside in or near Boston, or any 5, 4, or 3 of them, the Governor or Deputy to be one, shall have power to assemble together upon the last fifth day of the eighth, eleventh, second, and fifth month, every year, and then and there to hear and determine all civil causes whereof the debt or trespass and damages shall not exceed £20, and all criminal causesnotextending to life, or member, or banishment, according to the course of the Courts of Assistants, and to summon juries out of the neighboring towns."—Mass. Col. Rec., I, 276. In 1648 the number of such courts was reduced to two:ibid., II, 286; III, 175.

[951]In the petition for divorce in the Halsall case the counsel for the plaintiff says: "But considering the power of divorce doth properly belong to the Honored Court of assistants as is expressed in an order of the general Court (May 16, 1656) & a president ther is for it (namly Mr. freeman sometimes of Watertowne) & the law admitts it (page 17)."—MSS. Early Court Files of Suffolk, No. 257. From the last phrase (in which he reads "submitts" for "admitts")Whitmorethinks it "a reasonable surmise that this clause stood in the code of 1649, under the title Courts":Bibliog. Sketch, 101, note. The general court, referring to the same case, declares that it "doth properly belong" to the court of assistants:Mass. Col. Rec., IV, i, 272.Cowley,Our Divorce Courts, 10, mentions the error ofPalfrey,Hist. of U. S., II, 17, who says the superior "courts had jurisdiction in cases of divorce."

[952]Cowley,Our Divorce Courts, 28-31;Whitmore,Biog. Sketch, 99-101, note;Newhall,Ye Great and General Court, 380-84;Goodwin,Pilgrim Republic, 596.

[953]Mass. Col. Rec., I, 283. For this case and that of Frierv.Richardson see above, chap. xii, p. 159.

[954]Elizabeth Frierv.John Richardson:Records of Court of Assistants, 1641-1643/44 (Barlow MS.): published inWhitmore,Bibliog. Sketch, xlii; also inMass. Col. Rec., II, 86.

[955]N. =Noble'sRecords of the Court of Assistants, I; W. =Record of the Court of Assistants, inWhitmore'sBibliog. Sketch.

[956]Records of Court of Assistants, 1641-43 (Barlow MS.): published inWhitmore,op. cit., xlii.

[957]The two petitions are in theMSS. Early Court Files of Suffolk, No. 257; and the reference of the general court inMass. Col. Rec., IV, i, 272.

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