PART IIIMATRIMONIAL INSTITUTIONS IN THE UNITED STATESCHAPTER XIIOBLIGATORY CIVIL MARRIAGE IN THE NEW ENGLAND COLONIES[Bibliographical Note XII.—For this chapter a large quantity of files and records of Massachusetts colonial and provincial courts has been examined. In the office of the Clerk of Courts for Middlesex county (Cambridge) have been used theRecords of the County Court for Middlesex, 1649-86, 4 vols., MSS. folio, Vol. II missing; supplemented by theFiles of the County Court for Middlesex, 1655-99; and followed by theRecords of the Court of General Sessions of the Peace for Middlesex, 1692-1822, 9 vols., MSS. folio, the ninth volume containing alsoRecords of the Court of Pleas and General Sessions of the Peace, October 1686, to March, 1688. In the office of the Clerk of the Supreme Judicial Court for the County of Suffolk (Boston) have likewise been examined theRecords of the Court of General Sessions of the Peace, 1702-32, 4 vols., MSS. folio, with a fifth volume of fragments, 1738-80; theMinute Books of the Court of General Sessions of the Peace, January 3, 1743, to August 3, 1773, 5 vols., MSS. folio; theRecords of the Superior Court of Judicature, Court of Assize and General Goal Delivery in the Province of Massachusetts Bay, 1692-1780, 33 vols., MSS. folio, Vol. II containing also the records of certain courts during the Andros period, 1686-87; and theEarly Court Files of Suffolk, 1629-1800—being papers of colonial and provincial courts held in Suffolk county, of the Superior Court of Judicature held in the several counties, and of the Supreme Judicial Court prior to last century, with miscellaneous papers, the whole collection comprising several hundred volumes, of which only those for the period 1629-1730 have been covered by this investigation. Careful examination has also been made of the MSS. folio volume ofRecords of the County Court of Suffolk, October 1671, to April, 1680, in the possession of the Boston Athenæum.Very important are the publishedColonial Records of Plymouth(Boston, 1855-61);Massachusetts Bay(Boston, 1853-54);New Haven(Hartford, 1857-58);Connecticut(Hartford, 1850-87);Rhode Island(Providence, 1856 ff.); and theProvincial, Town, and State Papers of New Hampshire(Concord, 1867-83).The necessary complement of the records is of course found in the various compilations of statutes. For Massachusetts it has seemed best to cite by preference Whitmore's fine facsimile edition of theColonial Laws(Vol. I, 1660-72, Boston, 1887; Vol. II, 1672-86, Boston, 1889), which should be used in connection with hisBibliographical Sketch of the Laws of the Massachusetts Colony, 1630-86 (Boston, 1890); and Ames and Goodell'sActs and Resolves(5 vols., Boston, 1869-86), which with the three supplementary volumes (Boston, 1892-96), cover the period of the provincial charter and carry us beyond the Revolution. The following original digests have also been employed:The Book of the General Lawes and Libertyes of the Massachusetts Colony(Boston, 1660);The General Laws and Liberties(Boston, 1672)—these two earliest codes being those reprinted by Whitmore;Acts and Laws, 1692-1714 (Boston, 1714);Acts and Laws, 1692-1765 (Boston, 1769);Acts and Laws(Boston, 1759); and the collection entitledCharters and General Laws of the Colony and Province of Massachusetts Bay(Boston, 1814). The first digests of New Haven and Connecticut plantations are comprised in Trumbull'sTrue Blue Laws(Hartford, 1876). There is also a reprint of theCode of 1650, to which is added extracts from Laws and Judicial Proceedings of New Haven Colony commonly called Blue Laws(Hartford, 1822); and a facsimile reprint ofThe Book of the General Laws of 1673(Hartford, 1865). For the eighteenth century we have theActs and Laws of his Majesties Colony of Connecticut in New England(New London, 1715);Acts and Laws of his Majesties English Colony of Connecticut(New London, 1750);Acts and Laws(New Haven, 1769); and theActs and Laws(New London, 1784). For New Hampshire, the "Province Laws" published in Vol. VIII of theNew Hampshire Historical Society Collections; theActs and Laws passed by the General Court or Assembly, 1696-1725 (Boston, 1726); theActs and Laws(Portsmouth, 1761); and theActs and Laws, 1696-1771 (Portsmouth, 1771), have been cited. To follow the tangled thread of Rhode Island legislation on any subject is a perplexing task; but the development of the written marriage law may be traced with tolerable clearness in the published digests. See Staples'sProceedings of the First General Assembly ... and the Code adopted by that Assembly in 1647(Providence, 1847); Rider's facsimile reprint of the code of 1705, entitledLaws and Acts of his Majesties Colony of Rhode Island, 1636-1705 (Providence, 1896); his facsimile reprint of the code of 1719, entitledThe Charter and the Laws of his Majesties Colony of Rhode-Island in America(Providence, 1895); also the originalActs and Laws(Newport, 1730); with Rider's facsimile reprint, entitledSupplementary Pages to the Digest of 1730(Providence, [1898]); the original folio editions of theActs and Lawsdated respectively 1745, 1752, 1767 (Newport); and Gregory's facsimile reprint of the compilation of 1772, entitledActs and Laws ... passed since the Revision in June 1767(Providence, 1893). The Plymouth codes are printed in Vol. XI of theColonial Recordsof that colony; and they aregiven in convenient form in Brigham'sCompact, with the Charter and Laws of New Plymouth(Boston, 1836).Original material has also been gleaned from theCollections(Boston, 1806-97) and theProceedingsof the Massachusetts Historical Society (Boston, 1879 ff.); Bradford'sHistory of Plymouth Plantation(Boston, 1856); Winthrop'sHistory of New England, 1630-49 (Boston, 1853); Hutchinson'sHistory of Massachusetts, 1628-1774 (Vol. I, Salem, 1795; Vol. II, Boston, 1795; Vol. III, London, 1828); Cotton Mather'sMagnalia Christi Americana(Hartford, 1820); Increase Mather'sAnswer of Several Ministers(Boston, 1695), on marriage with wife's sister;The Andros Tracts(Boston, 1868-74); Young'sChronicles of the Pilgrims, 1602-25 (2d ed., Boston, 1844);Historical Collections of the Essex Institute(Salem, 1896); Lechford'sNote-Book, 1638-71 (Cambridge, 1885),idem,Plain Dealing(Boston, 1867); reprinted also in 3Mass. Hist. Soc. Collections, III; Dunton'sLife and Errors(Westminster, 1818); hisLetters from New-England(Prince Society, Boston, 1867); the "Town Records of Boston," 1634-1777; and the "Town Records of Dorchester," both in theReports of the Boston Record Commission; "Town Records of Salem," 1634-59, in Vol. IX ofHist. Coll. Essex Inst.; especially Sewall's "Diary," in 5Mass. Hist. Coll., V, VI, VII (Boston, 1878-80); and his "Letter-Book," in 6Mass. Hist. Coll., I, II (Boston, 1886), both of which afford a wealth of illustration for almost every phase of wedding and other social customs.Among recent writings relating to the general subject most important are Shirley, "Early Jurisprudence of New Hampshire," inProceedings of the New Hamp. Hist. Society, 1876-84 (Concord, 1885); Earle,Customs and Fashions in Old New England(New York, 1894); Weeden,Economic and Social History of New England, 1620-1789 (Boston, 1891); Goodwin,Pilgrim Republic(Boston, 1888); Howe,Puritan Republic(Indianapolis, 1899); Arnold,History of Rhode Island(New York, 1874); Friedberg,Eheschliessung(Leipzig, 1865); Cook, "Marriage Celebration in the Colonies," inAtlantic Monthly, LXI (Boston, 1888); Bishop,Marriage, Divorce, and Separation(Chicago, 1891); Lodge,Short History of the English Colonies(New York, 1882); Trumbull,History of Connecticut(New Haven, 1818); Hollister,History of Connecticut(Hartford, 1857); Atwater,History of the Colony of New Haven(New Haven, 1881); Freeman,History of Cape Cod(Boston, 1869); Bailey,Historical Sketches of Andover(Boston, 1880); Bliss,Side Glimpses from the Colonial Meeting-House(Boston, 1896);idem,Colonial Times on Buzzard's Bay(Boston, 1888); Brooks,The Olden Time Series: The Days of the Spinning-Wheel in New England(Boston, 1886); articles by Scudder, Whitmore, Edes, McKenzie, Morse, and Goddard, inMemorial History of Boston(Boston, 1882-83); and Newhall,Ye Great and General Court(Lynn, 1897).Illustrative material has likewise been gathered from a large number of writers, among whom are Palfrey,History of New England(Boston, 1888-90); Carlier,Le mariage aux États-Unis(Paris, 1860); Oliver,Puritan Commonwealth(Boston, 1856); Doyle,English Colonies(New York, 1882-87); Ellis,Puritan Age(Boston, 1888); Dexter,Congregationalism(New York, 1880); Bacon,Genesis of the New England Churches(New York, 1874); Belknap,History of New Hampshire(Dover, 1812); Green,Short History of Rhode Island(Providence, 1877); Sanford,History of Connecticut(Hartford, 1888); Hawthorne,Grandfather's Chair(Boston, 1893); Campbell,The Puritan in Holland, England, and America(New York, 1892); Hildreth,History of the United States(New York, 1882); Snow,History of Boston(Boston, 1824); Shurtleff,Topographical and Historical Description of Boston(Boston, 1872); Gilman,The Story of Boston(New York, 1889); Drake (S. G.),History and Antiquities of Boston(Boston, 1854); Drake (S. A.),Old Landmarks of Boston(Boston, 1889); Drake (S. A.),The Making of New England(New York, 1887); Prime,Along New England Roads(New York, 1892); Read, in theCollections of the Old Colony Historical Society, No. 2 (Taunton, 1880); and Brigham, inProceedings of the Mass. Hist. Society, IV.Among the works drawn upon in the treatment of special topics are Stiles'sBundling(Albany, 1871); supplemented by hisHistory of Windsor(New York, 1859); and the very suggestive paper of Charles Francis Adams,Some Phases of Sexual Morality and Church Discipline in Colonial New England, reprinted from theMass. Hist. Soc. Proceedings, June, 1891 (Cambridge, 1891); while there is an interesting passage relating to the same custom in Burnaby'sTravels through the Middle Settlements in North America, 1759-60 (London, 1798); as also a characteristic reference in Irving'sKnickerbocker History of New York(Philadelphia, 1871). For the first time the history of the stigma of the "scarlet letter" has been treated from the sources in Davis's careful monograph,The Law of Adultery and Ignominious Punishments(Worcester, 1895). In connection with the influence of the Levitical law on the New England conception of marriage and the family, Amram'sThe Jewish Law of Divorce(Philadelphia, 1896), and Mielziner'sThe Jewish Law of Marriage and Divorce(Cincinnati, 1884) are important. Of most service for the legal character of New England slave marriages are Moore'sNotes on the History of Slavery in Massachusetts(New York, 1866); his "Slave Marriages in Massachusetts," in theHistorical Magazine, XV (1869), containing a significant ritual used by Rev. Samuel Phillips, minister at Andover, 1710-71; and Steiner's "History of Slavery in Connecticut," inJohns Hopkins University Studies, XI (Baltimore, 1893). The originality of the system of civil registration created bythe New England settlers is appreciated by Kuczynski, "The Registration Laws in the Colonies of Massachusetts Bay and New Plymouth," inPublications of the Am. Statistical Ass., VII, 65-73 (Boston, 1901). See also Bibliographical Note XV.]I. THE MAGISTRATE SUPERSEDES THE PRIEST AT THE NUPTIALSThe continuity of English law and custom in the New England colonies is not more striking than the innovation. First of all it would indeed be strange if the planting of new states in the wilderness should not have afforded to thoughtful men a rare opportunity for freeing themselves from the trammels of antiquated methods and traditions which the "inertia of vested interests" might yet for ages sustain in the native land. In some instances the influences of a new and primitive environment might cause an unconscious return to the practices of earlier days. Religious and ecclesiastical ideas must necessarily play the leading part. In fact, the zeal with which the Pioneers of Plymouth and Massachusetts Bay proscribed the ceremonies and usages of the Roman and Anglican churches has had much to do with the character of civil institutions in the United States. On the part even of the Puritan there was thus sometimes a strong reaction in favor of the temporal power in matters hitherto regarded as exclusively pertaining to the spiritual jurisdiction. The sway of the so-called theocracy in Massachusetts and New Haven tended, sometimes inadvertently, to foster the growth of the American idea of complete separation of church and state. Thereby the forces of local self-government were quickened. Thus for a time the town-meeting and the congregation were practically one and the same; but authority was exercised in the name of the lay township and not in that of the ecclesiastical parish. So also the probate of wills, the administration of estates, the exercise of chancery jurisdiction,[357]and thesupervision of primary and secondary education[358]were taken out of the hands of the church and vested mainly in the local community. The process of secularization in legal functions proceeded with rapid strides.In no respect was the change more remarkable than in the administration of matrimonial law and in the conception of the marriage contract. Here, as in so many other instances, our ancestors anticipated the thought and the legislation of the mother-country by more than two hundred years.[359]It will be remembered that in the beginning of the seventeenth century—and ever since the thirteenth—English marriage law was in an anomalous and most chaotic state. The Reformation in England had brought no real change in the canonical conception of the form of wedlock, though its sacramental nature was denied. On the one hand was the church at the demand of the state trying to enforce ecclesiastical rites and to secure publicity by requirement of banns, parental consent, and registration; on the other was the "irregular" or common-law marriage, entered into without any of these safeguards, by mere private agreement; and the validity of the latter was not squarely impeached by the church, though the disregard of the priestly office was punished by spiritual censure. All this is changed in the colonies. In place ofconfusion and complexity is found simplicity. In New England particularly civil rites, civil registration, and uniform theory of marriage tend at once to prevent the manifold evils growing out of a lax or uncertain law. The conception of wedlock which existed there from the beginning was identical with that which later found expression in the writings of Milton and the legislation of Cromwell. Marriage was declared to be, not a sacrament, but a civil contract in which the intervention of a priest was unnecessary and out of place.Governor Winthrop, in commenting upon "a great marriage to be solemnized at Boston," in 1647, expresses the sentiment prevailing during the first three-quarters of a century after the settlement. The bridegroom was "of Hingham, Mr. Hubbard's[360]church," and the latter "was procured to preach and came to Boston to that end. But the magistrates, hearing of it, sent to him to forbear. The reasons were, 1. for that his spirit had been discovered to be averse to our ecclesiastical and civil government, and he was a bold man, and would speak his mind. 2. we were not willing to bring in the English custom of ministers performing the solemnity of marriage, which sermons at such times might induce, but if any ministers were present and would bestow a word of exhortation, etc., it was permitted."[361]The last remark reminds us of the benediction of the early Christian priest, who, like the Puritan, discriminated between the religious act and the marriage. Sermons, however, were originally proscribed at the nuptials, though they were permitted at the betrothal.[362]The early colonial laws, generally, required that all marriages should be celebrated before a justice of the peaceor other magistrate, sometimes under penalty of nullity for those solemnized in any other way.[363]Where no statutory provision to the contrary existed the common-law marriage by private consent was valid.[364]The question now arises as to the causes which determined the establishment of civil marriage in the New England colonies. Was it set up in imitation of the practice in Holland? Did it come as a natural result of the general tendency of Protestant, and especially of Puritan, thought? Or was it perhaps the product of both influences combined? Already in the middle of the eighteenth century colonial historians were at a loss to account for it. Thus Governor Hutchinson makes a difficulty of understanding why the lay celebration was introduced. "Their laws concerning marriage and divorce," he says, "are somewhat singular. I suppose there had been no instance of a marriage, lawfully celebrated, by a layman in England, when they left it. I believe there was no instance of marriage by a clergyman after they arrived, during their charter; but it was always done by a magistrate, or by persons specially appointed for that purpose.... It is difficult to assign a reason for so sudden a change, especially as there was no established form of the marriage covenant."[365]On the other hand, Governor Bradford believed that the civil celebration was introduced by the Pilgrims directlyfrom Holland. The first marriage in Plymouth Plantation—that of Edward Winslow and Susannah White[366]—occurred on May 12 (22), 1621. This, he declares "according to yelaudable custome of yeLow-Cuntries, in which they had lived, was thought most requisite to be performed by the magistrate, as being a civill thing, upon which many questions aboute inheritances doo depende, with other things most proper to their cognizans, and most consonante to yescriptures, Ruth 4, and no wher found in yegospell to be layed on yeministers as a part of their office. 'This decree or law about marriage was published by yeState of yeLow-Cuntries Ano: 1590. That those of any religion, after lawfull and open publication, coming before yemagistrats in yeTown or Stat-house, were to be orderly (by them) married one to another.' Petits Hist. fol: 1029. And this practiss hath continued amongst, not only them, but hath been followed by all yefamous churches of Christ in these parts to this time,—Ano: 1646."[367]The testimony of Bradford must, indeed, command our earnest attention, though in the matter of dates he is apparently misled by his authority. For, as already seen,[368]two of the Netherland provinces had established civil marriage as early as 1580; while it was not extended to them all until seventy-six years later. Nor is the mere fact that, seemingly without discussion, civil marriage was adopted by Massachusetts and her daughter-colonies, as well as by Plymouth, necessarily a fatal objection to this theory of origin, though it has a bearing upon the question which must be carefullyconsidered. For the New England Pilgrim and Puritan alike were simply doing what their brethren did a few years after when they found their opportunity in the days of the Commonwealth. If America owes the institution of civil marriage to Holland, it is so not merely because of the residence of the Scrooby congregation at Leyden, but because of the profound influence which Dutch Puritanism exerted upon the Puritanism of England for a hundred years after the Spanish and Tudor persecutions began. It can scarcely be doubted that in various ways Dutch ideas made themselves felt in the remarkable legislative and constitutional experimentation of Cromwell's reign.[369]Moreover, the argument is strengthened by the fact that the Fathers of the English Reformation, unlike Luther and his followers, do not seem to have raised a single voice in favor of the lay ceremony.Nevertheless, though Dutch custom undoubtedly furnished a direct precedent which should not be ignored, it seems highly probable that without the influence of Holland the early establishment of civil marriage in New England was inevitable. It was required by the spirit of Protestantism. Under favorable conditions, which New England did and old England did not afford, it was sure to arise as a consequence of rejecting the sacramental theory of wedlock.[370]There is another factor of the problem which must be reckoned with. The New England Puritans were steeped to the marrow in Hebraism; and, as we shall presently see,the growth of a sentiment in favor of lay marriage was fostered by the example of the Jewish law.[371]It is vain to apologize for them on the ground that under the influence of the Mosaic code they really regarded the officiating magistrate as the "minister of God." In his "judicial" capacity the magistrate may, indeed, have been looked upon as a divine agent.[372]That is the well-known casuistry by which Luther and the early Protestants persuaded themselves that absolute divorce through the temporal court is not forbidden by the scriptural precepts.[373]But it is a grave error to suppose that the seventeenth-century Puritan had this in mind when he rejected the priestly ceremony. Doubtless he did not forget that marriage from its social and ethical sides is something higher than amerecivil contract. Yet for more than half a century after the settlement so intent was he in emphasizing its secular character that in the statutes the words "holy" or "sacred" as applied to it very seldom, if ever, appear. "Honorable" or some similar epithet is the strongest term usually employed. Even the publication of banns, as will hereafter be seen, was at first ordinarily required to be made, not on the sabbath, but at public "lecture" or on training day.[374]The difference between the colonists and their Anglican adversaries in this regard is brought out in an interesting way through the experience of Edward Winslow, whose second marriage has just been mentioned. In 1634 he was sent on public business to England, where, partly in the interest of Merry-Mount Morton, Mason, and Sir FerdinandoGorges, he was accused by Archbishop Laud—whose scheme for setting up a governor-general and a bishop in the colonies seemed likely to be frustrated by Winslow's petition relative to the encroachments of the French and Dutch—of "teaching in yechurch publickly," and of performing the marriage ceremony. The latter offense he had committed in his capacity as magistrate. In reply to the charge he excused himself on the ground that the colonists were "necessitated so to doe, having for a long time togeather at first no minister; besids, it was no new-thing, for he had been so maried him selfe in Holland, by yemagistrats in their statthouse."[375]But "with more courage and candor than caution, he proceeded to defend the practice on its merits, declaring that he knew no scriptural ground for confining this office to the clergy; while from the relations which marriage often had to property and to business obligations, there seemed good reason for making it a civil contract, as in Holland."[376]As a consequence Winslow was imprisoned in the Fleet for seventeen weeks.[377]It appears certain, then, that in the two older colonies the lay ceremony was invariably required from the beginning.[378]But in neither case does there seem to have been any direct legislation on the subject for many years. Indeed, were there no prudential reason,[379]a positive legal sanction may well have been deemed superfluous while public opinion was so sensitive and so united. The first extant order of the general court of Plymouth requiring celebration beforea civil officer was passed, it is said,[380]in 1671. But in this jurisdiction, as in Massachusetts, the assistants or "magistrates" had always exercised this function; and it had long been the custom for the general court to appoint commissioners in the particular towns to join persons in marriage.[381]The earliest statute of Massachusetts relating to the celebration is the act of 1646, providing "that no person whatsoever in this Jurisdiction, shall joyne any persons together in Marriage, but the Magistrate, or such other as the General Court, or Court of Assistants shal Authorize in such place, where no Magistrate is neer."[382]In practice the last provision of this act was carried out in various ways. Thus, for example, any citizen might be appointed for a particular town during the pleasure of the court.[383]Or, in absence of the regular officer, a commission might be issuedto perform the ceremony in specified cases; as when Henry Chickering was given authority to marry "two or three couples, legally published at Dedham."[384]In one instance we find a curious optional commission in which are inserted the names of three persons, either one of whom is empowered to join "Mr.John Apleton and Mrs.Priscilla Glover" in marriage.[385]But, as a rule, one or more of the three commissioners, chosen for the ending of small causes in towns where no assistant resided, was authorized by the county court to perform this duty.[386]The law and custom of the other New England colonies were essentially the same as those already discussed. Everywhere marriage was regarded as a civil contract and the celebration was performed by a civil magistrate. In New Hampshire members of the council could act.[387]In Rhode Island, besides the magistrate, "none but Quakers[388]andclergymen of the Church of England could perform the ceremony," and these were given such authority by special grant of the king.[389]The law of New Haven, 1648, is peculiar in requiring not only that the marriage be performed before a magistrate or someone expressly allowed by the general court; but when the persons to be united are "able to go forth," that it be solemnized in some public place,[390]under penalty of five pounds for "every such miscarriage."[391]In Connecticut, likewise, compulsory civil marriage was adopted.[392]During the "usurpation" period, beginning in 1686, the laws requiring civil marriage were set aside. Joseph Dudley, who entered upon his duties as president of New England in May of that year, published "an order of council, authorizing and empowering ministers and justices of the peace, the order says, 'to consummate marriages,' after three several times publication or licence from the president or deputy."[393]With this compromise Governor Andros was not satisfied; and it was his intention to allow marriages to be performed only by the Episcopal clergy. To do this at once, however, was impracticable. "Magistrates," says Hutchinson, "still continued to give people in matrimony. Other provision could not immediately be made." For at the time there was but one Episcopal clergyman in the country; and "Sir Edmund considered the Congregational ministers as mere laymen. Randolph wrote to the bishop of London, 'I press for able and sober ministers, and we will contribute largely to their maintenance; but one thing will mainly help, when no marriages shall hereafter be allowed lawful but such as are made by the ministers of the church of England."[394]Another restraint upon marriage was accounted a still more serious hardship. "None were allowed to marry except they entered into bonds with sureties to the governor, to be forfeited in case there should afterwards appear to have been any lawful impediment."[395]This requirement in many cases amounted to a practical prohibition.[396]The "first marriage at Boston with prayer-book and ring" occurred on May 18/28, 1686, just four days after Dudley received his commission as president of New England.[397]But there is evidence that zealous opposition to the religious ceremony existed up to the very beginning of this period. Thus, according to Savage, "Lawrence Vanderbosk, a Huguenot clergyman, undertook to solemnize marriages in Boston in 1685." But he was brought before a tribunal for this enormity and promised "to do no more such things," yet in September, says Judge Sewall, "he joined together Giles Sylvester and Hannah, widow of Benjamin Gillam. The reverend offender went to New York the same week."[398]Gradually, however, the stern Puritanism of the colonists became softened; the prejudice against ecclesiastical rites rapidly subsided; marriages were solemnized even by the Congregational clergy;[399]and soon after the struggle for the charters, laws were enacted allowing the ministers of all denominations to perform the ceremony. Yet, in Rhode Island, it was not until 1733 that the "settled and ordained ministers and elders of every society and denomination of Christians" were permitted to join persons in marriage, the legal fee therefor being fixed at three shillings.[400]By an act of October, 1694, the same privilege was conferred upon the "ordayned ministers of the severall plantations" of Connecticut—in order, says the general court, to satisfy "such as are conscienciously desirous to be" so joined.[401]For Massachusetts a similar statute was passed in 1692, authorizing all "settled ministers" to solemnize marriages, but only in their "respective towns;" while, on the other hand, the authority of the justice of the peace extended throughout the county.[402]The careful limitation of the respective districtsof the minister and magistrate was doubtless intended to act as a check upon clandestine unions, as by the more stringent act of 1695. By this statute none may join any persons in marriage who are not inhabitants or residents of the county or town; nor without a proper certificate of due publication and parental consent from the clerks of the towns where the parties respectively dwell. For celebrating a marriage contrary to the act the minister or justice suffers a penalty of fifty pounds and is forever disabled to join persons in marriage, with the added liability of prosecution from the parent or guardian.[403]By several subsequent acts the powers of the clergy are still further enlarged. Thus in 1763 they are empowered to solemnize marriages in "parishes" and "districts" composed of "parts of towns" in "as ample a manner" as in the several towns where they dwell.[404]In 1773 they are allowed to perform the ceremony, not merely within their official districts, but for any whose "ministerial taxes" they are entitled to receive; or if for any cause a parish is without a minister, or if the incumbent himself desires to get married, then the next minister of the same denomination in the town may lawfully act.[405]So it appears that the proclamation of President Dudley in 1686 marks an epoch of some importance in institutional history. For by it the principle of American law, generally recognized at present by the statutes of the various states, and imitated by English legislation, was first recognized. Almost everywhere in this country the lay and the religious celebrations are equally valid; and it is not without interest to note that long before the Revolution the priest had oncemore practically superseded the magistrate at the nuptials.[406]It was already regarded as good social "form" to have the nuptials solemnized by religious rites.No prescribed marriage ritual existed. The intention of the persons entering into the covenant might be expressed in any fitting words.[407]In the early period weddings were usually celebrated quietly in the home of the bride. But it must not be understood that all festivity was for long rigorously proscribed. Soon feasting was added to prayer and the singing of psalms.[408]A sumptuary law of 1637, forbidding the sale of buns and cakes in the markets, victualling houses, and elsewhere, carefully makes an exception of "such cakes as shalbee made for any buriall, or marriage, or such like speciall occation."[409]The ancient practice of our teutonic ancestors of "bedding" the newly married pair was maintained in some quarters. Judge Sewall had that experience when he took his second wife.[410]"In Marblehead bridesmaids and groomsmen put the wedded couple to bed;" and we are told that "along the New Hampshire and upper Massachusetts coast, the groom was led to the bridal chamber clad in a brocaded night-gown. This may have occasionally taken place among the gentry," comments Mrs. Earle, "but I fancy brocaded night-gowns were not common wear among New England country folk."[411]Another "survival" was the sham "bride-stealing" which was long keptup in the Connecticut valley. "The last bride stolen in Hadley was Mrs. Job Marsh, in the year 1783;" and to this day "in certain localities in Rhode Island, the young men of the neighborhood invade the bridal chamber and pull the bride downstairs, and even out-of-doors, thus forcing the husband to follow to her rescue. If the room or house-door be locked against this invasion, the rough visitors break the lock."[412]Furthermore, numerous instances of "smock marriages" in New England are recorded. Here the English superstition elsewhere mentioned[413]took the special form that "if the bride were married 'in her shift on the king's highway,' a creditor could follow her person no farther in pursuit of his debt."[414]In the eighteenth century weddings were accompanied by much revelry and extravagance. Gloves, rings, and scarves, as at funerals, were given away in such profusion as to call for legislation to check the abuse.[415]Unstinted feasting and drinking were the order of the day. "Sack-posset" appears to have been the favorite wedding beverage.[416]"Allthe friends were entertained at the bride's home with a collation or supper, and afterward a dance; while in the country they were the most important social events. The banns were proclaimed in church, and all the neighbors were invited from the pulpit to attend the ceremony. On the day of the wedding muskets were fired, a procession was formed, and marched to the bride's house, where the marriage took place; and then came a dinner, a dance, and great merry-making. Usually these wedding feasts lasted through the day and evening, but they were sometimes kept up for two or three days. On one occasion at New London there was a great wedding dance on the day after the marriage, when ninety-two ladies and gentlemen assembled and proceeded to dance ninety-two jigs, fifty-two contra-dances, forty-five minuets, and seventeen hornpipes. This was probably an extreme case; but all over New England weddings were great occasions, and were celebrated with much pomp and rejoicing."[417]Of the New England marriage celebration at the beginning of the eighteenth century we have some vivid, though imperfect, sketches from the inimitable pen of Judge Sewall. Next to funerals, weddings seem to have been his chief recreation. The brief and naïve entries in hisDiaryreveal to us the mingled praying, psalm-singing, and posset which enlivened those festive occasions. Thus on October 22, 1713, he writes: "I go to Salem.... See Mr. Noyes marry Mr. Aaron Porter and Mrs. Susan Sewall, at my Brother's. Was a pretty deal of Company present.... Mr. Noyes made a Speech, said Love was the Sugar to sweeten every condition in the married Relation. Pray'd once. Did all very well.After the Sack-Posset, etc., Sung the 45th Psalm from the 8th verse to the end, five staves. I set it to Windsor Tune. I had a very good Turkey-Leather Psalm-Book which I look'd in while Mr. Noyes Read: and then I gave it to the Bridegroom saying, 'I give you this Psalm-Book in order to your perpetuating this song: and I would have you pray that it may be an Introduction to our Singing with the Choir above.'"[418]Again in 1720 we find him solemnizing the marriage of his daughter, Mrs. Judith Sewall, with Mr. William Cooper. "I said to Mr. Simeon Stoddard and his wife, Sir, Madam, The Great Honor you have conferr'd on the Bridegroom and the Bride, by being present at this Solemnity does very conveniently supercede any further enquiry after your Consent. And the part I am desired to take in this Wedding, renders the way of my giving my Consent very Compendious: There's no maner of room left for that previous Question, Who giveth this Woman to be married to this Man? Dear child, you give me your Hand for one moment, and the Bridegroom forever. Spouse, You Accept and receive this Woman now given you, etc. Mr. Sewall pray'd before the Wedding, and Mr. Coleman after. Sung the 115. Psalm from the 9. verse to the end, in the New Hall, St. David's which I set. Then we had our Cake and Sack-posset."[419]II. BANNS, CONSENT, AND REGISTRATIONIt is a fact of great historical interest that in the New England colonies the administration of matrimonial law was relegated to the sphere of local self-government. The requirement of previous publication, parental consent, and registration was everywhere carried into effect by the officers of the town as a part of their regular functions; and by-laws for their guidance were enacted in town-meeting.The first extant statute for the regulation of marriage is contained in the revision of the Plymouth laws made in 1636, and repeated under a slightly altered form in the revision of 1658. It is a model of brevity and precision; and it marks an epoch in the history of English jurisprudence, attempting, as it does in few words, a remedy for many of the evils which continued for two centuries to vex the mother-country. No one "under the covert of parents" is allowed to marry without their approbation. But in case such approval "cannot be had then it shall be with the consent of the Gove[~r] or some assistant to whom the persons are knowne whose care it shall be to see the marriage be fitt before it be allowed by him." After the consent of parent or magistrate has thus been obtained, the marriage is to be published in "meeting" three several times before it is solemnized. Or, if there is no meeting, then fifteen days' notice by posting in the usual public place shall be sufficient; provided the "writing be vnder some magistrats hand or by his order."[420]The Old Colony, likewise, made careful provision for registration. By an act of 1646 it is declared the duty of the town clerk to keep a register of the "day and yeare of the marriage, birth, and buriall of euery man, woman, and child" within his township. He is to have "thripence apece for each particular person soe registered." The persons marrying are themselves required, within one month, to report their marriage to him under penalty of three shillings for neglect—one-half to the Colony and the other half to the register "upon his complaint." The clerk must also submit annually to the general court at its March meeting a written report of all registrations made by him during the year. By this act, moreover, the publication of banns was devolved upon him.[421]The laws of the other colonies differed only in details from those of Plymouth. In Massachusetts the first order of the general court on the subject was passed in 1639. The intention is to be thrice published, not at divine service on the sabbath, it may be noted, but in town-meeting or at "publike lecture" in "both the townes where the parties, or either of them, do ordinarily reside." If no public lecture is held in the town, then fourteen days' notice may be given in writing on "some poast standing in publike viewe" and used solely for this purpose.[422]The "poast" is to be provided by the town under penalty of ten shillings for default.[423]Later it became customary for the town clerk or his deputy to publish the banns on Sunday, "after the blessing to the evening exercise was pronounced;" and so in 1696-97 we find the town-meeting of Charlestown ordering that "publishments should be made 'on Lecture days or any other public times, and not restrained to Sabbath Days only.'"[424]Sometimes on petition the legislature granted to individuals special permission to marry.[425]Originally the registration of births, deaths, and marriages devolved upon the town clerk; but it seems to have been neglected by him. For in 1642the general court laid this duty upon the clerk of the writs in each town, under penalty for default, requiring him to make annual return of all names registered to the recorder of the county court.[426]A similar report to the same officer is to be submitted each year by all magistrates or persons appointed to solemnize marriages; and the "new married man" shall likewise, within one month, bring in to the clerk of the writs a certificate of his marriage.[427]Under the Province laws the duties of recorder were again performed by the clerk of the township; and under severe penalty persons might not be joined in marriage without presenting a proper certificate of publication and satisfactory evidence of parental consent.[428]Previous to 1692, of course, the legal history of New Hampshire is in the main identical with that of Massachusetts.[429]But in the pioneer stage the township was sufficient unto itself. "Dover and Portsmouth, for nearly twenty years, had no central authority.[430]They had no ministry inany form, nor any magistrates, except such as might be created by any mining hamlet in an unorganized territory, or afterward as the result of forming themselves into societies. This, however, did not prevent people either from marrying or dying. The result was that marriage in New Hampshire has borne from the outset not only the character of a civil contract, but the impress of our township system."[431]After the establishment of the royal province the contract might be solemnized by "virtue either of publishment, or of a licence from the Governor. The granting of these licences was accounted a part of the royal prerogative;"[432]and it was complained of as leading to abuse.[433]The statutes of Connecticut contain a curious provision, which will receive further notice hereafter. Distinction is made between the "contract" and the "covenant." Eight days' public notice of the proposed engagement must be given; and after the contract the betrothed pair must "forbeare" for a second period of eight days before joining in the covenant.[434]By the code of 1673 persons are not to be joined in wedlock "before the intention ... hath been sufficiently published at some publick Lecture or Town meeting in the Towns where the parties or either of them do ordinarily reside, or be set up in Writing ... upon some post of their Meeting House Door in publick view, there to stand so as it may be read eight days before such marriage."[435]In general, the marriage laws of both Connecticut[436]and New Haven[437]on the topic considered are plainly modeled upon those of Massachusetts, and so need not here receive further analysis.Some interesting details may be gleaned from the matrimonial legislation of Rhode Island. The code of 1647 requires the publication of banns at two town-meetings, confirmation before the head officer, and registration in the town clerk's book; otherwise the marriage is void. It is further enacted that the "man that goes contrarie to this present Ordinance ... shall forfeit five pounds to the parents of the Maid, and be bound to his good behaviour; and all the accessories shall forfeit five pounds a man, halfe ... to the grieved parents and the other halfe to the Town."[438]Thus was established at an early day, says Arnold, a system of registration "such as recent legislation has attempted to revive."[439]In 1656 it was permitted either to publish marriages at town-meeting, or "on a traininge day at yehead of yeCompanie,"[440]or by a "Writinge under yeMagistrateshands fixed upon some noted place in yeTowne."[441]If "the banns were forbidden, the case was to be heard by two magistrates; should they allow it, the parties might marry; but if not, the general Court of trials were to decide."[442]A later version of the law of 1647, of uncertain date, is somewhat more detailed. The "man ythath A respect to a maid & doth desi[re] to Obtaine her in Marriage ... shall first acquaint her Parents thereof & upon their consenting thereto he shall have Baines of matrimony set up in a Publick Place in yeTown or be Published two severlltimes In A Public Assembly In the Town & then remaine from After yefirst Publication Tenn Days." Afterward, "before one of the Generllofficers" the celebration may take place according to "yeusuwal Custome of this place & then a Certificate Shall be given by yeOfficer ytIoynes them togeather in Marriage to yeparty So married who shall Carry it to the Clarke of yeTown where yeMarriage was Solemnized & have it Placed upon Record." For violation of the act the same penalties are imposed on the principals and accessories as in 1647; and the children "ytany shall have wthout this due & orderly Course of Law ... shall be looked at not to be Legitimate."[443]It appears that the execution of the laws was sadly neglected, and so by an act of 1698 all marriages thus far solemnized, but not duly registered, are declared valid. Persons married in future are ordered within ten days to make return to the town clerk; while the latter is required to submit annually to the head officer of the town or to the chief justice of the peace a report of all births, marriages, and deaths by him recorded.[444]Three years later a more stringent statute appears. Persons from another colony or township must present to the officer performing the ceremony a magistrate's certificate of proper publication andqualification.[445]"Fine and suspension from office were the penalties for any violation of this act by a magistrate, and fine, imprisonment, or whipping, is the punishments for the principals who disregard it."[446]After various changes[447]the law of the provincial era reached its full development in the code of 1767. A dual system of banns and lay publication is provided. If application be made to a "settled and ordained" minister of any denomination, he shall "openly and by public speaking" proclaim the banns on three several Sundays, holidays, or days of public worship "in the Meeting in the Town, where the Parties respectively belong." If lay publication be preferred, the assistant, warden, or justice, under his hand and seal, is required to post a notice in some public place in each of the towns where the parties dwell fifteen days before the wedding.[448]A method of "under-writing" in case of objection is prescribed. With leave of any assistant, justice, or warden, the person opposing the marriage is to make the objection "in writing under his or her Hand, therein assigning the Impediment, and affix the same under the Publication;" but in case of oral banns the written objection, in the presence of two witnesses, is to be delivered to the minister or elder who proclaimed the banns. The person forbidding the marriage must enter into recognizance with two good sureties to appear at the next court of generalsessions of the peace and there "make good and prove" his allegations, or, in default, pay to the persons to be wedded "all such Damages as they shall sustain by Means of staying their Marriage." A certificate of publication must be produced; two credible witnesses to the ceremony are required; the person conducting the celebration must give a certificate[449]thereof to the newly wedded pair; and he is entitled to a fee of three shillings. Only fines are imposed for violation of the act by the solemnizer or by the parties. Neither by this law nor apparently by any statute subsequent to the act of 1663 is a contract declared void for non-observance of legal forms.[450]In conclusion it may be noted that generally throughout New England neglect of the prescribed forms did not invalidate marriage, though the offender against the law might be punished.[451]It is historically probable, where words of nullity were not contained in the statute, that the irregular contract by simple present agreement, without intervention of a minister or magistrate, was valid. But this is a disputed point which will hereafter be considered in connection with the history of common-law marriage in the United States.[452]III. COURTSHIP, PROPOSALS, AND GOVERNMENT OF SINGLE PERSONSIt may be an exaggeration to say that the Mosaic code was thecorpus jurisof the Puritan.[453]But it is certain that the early private law of New England was profoundly influenced by it. The family in many respects took on a patriarchal character. The sway of the house-father, though in the main just, became in theory despotic. Even the conception of marriage as a civil contract gained support from the Jewish law.[454]Our ancestors loved to cite the book of Ruth and other scriptural texts in its favor; and their view of the proper relations of husband and wife, those of parent and child, or those of man and woman before marriage, was derived directly from the biblical ordinances.[455]Thus "old bachelors," though rare in early New England, were looked upon with disfavor. They were regarded almost as "suspected criminals."[456]Connecticut "in 1636 would not allow any young unmarried man to keep house."[457]A special order of the town of Windsor was necessary, in1682, to permit "Isaac Sheldon and Samuel Rockwell to keep house together, 'so they carry themselves soberly and do not entertain idle persons to the evil expense of time by day or night.'"[458]Hartford taxed "lone-men" twenty shillings a week "for the selfish luxury of solitary living."[459]Even in the eighteenth century a general statute of Connecticut, under the same penalty of twenty shillings a week, forbade any "house-keeper" or "master of a family," without "allowance of the selectmen," to give "entertainment or habitation" to a single person; and "such Bourders, Sojourners, and Young persons" are required to "attend to the Worship of God" in the families where they live and "to be subject to the domestick Government of the same," or else forfeit five shillings for every breach of the law.[460]In Rhode Island in one instance "single persons of three months' residence paid five shillings, while the 'rate of faculties and personal abilities' was left at the discretion of the assessors."[461]According to a New Haven law, in order to "suppress inconvenience" and disorders inconsistent with the "mind of God in the fifth commandment," single persons, not in service or dwelling with their relatives, are forbidden to diet or lodge alone; but they are required to live in "licensed" families; and the "governors" of such families are ordered to "observe the course, carriage, and behaviour, of every such single person, whether he or she walk diligently in a constant lawful imployment, attending both family duties and the publick worship of God, and keeping good order day and night or otherwise."[462]Similar measures were adopted by the other colonies. The law of Plymouth provides that "wheras great Inconveniencehath arisen by single persons in this Collonie being for themselues and not betakeing themselues to live in well Gourned famillies. It is enacted by the Court that henceforth noe single person be suffered to liue by himselfe or in any family but such as the Celectmen of the Towne shall approue of; and if any person or persons shall refuse or neglect to attend such order as shalbe giuen them by the Celectmen; that such person or persons shalbe sumoned to the Court to be proceeded with as the matter shall require."[463]"Whereas," runs a statute of Massachusetts, "there is a loose and sinful custom of going or riding from town to town, ... oftimes men and women together, upon pretence of going to lectures, but it appears ... merely to drink and revel in ordinaries and taverns, which is in itself scandalous, and it is to be feared a notable means to debauch our youth and hazard the chastity of those that are drawn fourth thereunto: for prevention whereof," it is ordered "that all single persons who merely for their pleasure take such journeys ... shall be reputed and accounted riotous and unsober persons, and of ill behavior ... and shall be committed to prison for ten days, or pay a fine of forty shillings for each offence," unless they can "give bonds and sufficient sureties for good behavior in twenty pounds."[464]Earlier it was decreed that the "Select men of every Town, in the several precincts, and quarters where they dwel, shal have a vigilant eye over their brethren and neighbours, to see, first that none of them shall suffer so much barbarism in any of their families, as not to endeavour to teach, by themselves or others, their children & apprentices, so much learning, as may enable them perfectly to read the english tongue & knowledg of the Capital laws." Once a week children and apprentices are to be catechised "in the grounds and principlesof Religion," or at least taught "some short orthodox catachism without book;" and they are to be bred and brought up "in some honest Lawfull calling ... profitable for themselves and the Common-wealth," if their parents or masters "will not, or cannot train them up in learning to fitt them for higher imployments." If parents and masters neglect their duty, "whereby children & servants become rude, stubborn & unruly, the sayd Select men with the help of two Magistrates or the next County Court for that Shire, shall take such children or apprentices from them," and until they come of age place them with persons who will more strictly look after their government as the law directs.[465]It was further enacted that every town shall order and dispose to service or otherwise all "single persons and inmates" within its borders, anyone feeling aggrieved thereby "to have Liberty to appeale to the next County Court."[466]These laws were not wholly a dead letter, as shown by the judicial records. Thus on April 2, 1672, "Thomas Henshaw and Thomas Hall, singlemen, being convicted of living from under family government ... , are ordered forthwith to submit themselves" to such government "and to appear at the next court and bring with them certificate thereof."[467]Nevertheless complaint is made that the town officers are negligent. In 1668 the legislature directs the clerk of each shire court to send "to the Constables of the Towns" within the shire an order which they are "enjoyned faithfully to execute." In the preamble it is recited that the neglect of the laws, "as by sad experience from Court to Court abundantly appears, doth occasion much sin and prophaness to increase among us, to the dishonour of God, and the ensnaring of many Children and Servants, by the dissolute lives and practices of such as do live from under FamilyGovernment, and is a great discouragement to those Family Governours, who conscientiously endeavour to bring up their Youth in all Christian nurture, as the Laws of God and this Common wealth doth require: These are therefore ... to require you to acquaint the Select men of your Town, that the Court doth expect and will require, that the said Laws be accordingly attended... : and you are also required to take a list of the names of those young persons ... who do live from under Family Government,viz., do not serve their Parents or Masters, as Children, Apprentices, hired Servants, or Journey men ought to do, and usually did in our Native Country, being subject to their commands and discipline."[468]The manuscript files of Middlesex show that lists[469]of delinquent single persons were taken by the constables as required; and that some of them were summoned to appear before the court. Following is the "answer" of Robert Williams, whose name is in the list given in the margin:"I do desire to liue under family gouernment and haue so desired euer sinc my time was out with my master that I liued with and all the time sinc commited myself into mens housis of good report as neer as I could and do desir to walk inofenciue to all men and furder I do hop that the men which I do work with will say as I do if the honered court will desir it indeed I am not a saruant yet do submit myself to family ordor I [will] do as a saruant what els the honeredcourt would haue me do mor I hope I shall be willing to obay the finil power."[470]In a society where marriages were formed very early, girls often wedding at sixteen or less, and where widows were wooed almost at the bier of the dear departed,[471]it is perhaps not surprising if "old maids" were ridiculed and sometimes despised. A woman became an "antient maid" at twenty-five.[472]In an often quoted passage of hisLife and Errors, John Dunton thus praises a woman who remained single, not from "necessity," but from "choice," and who knew that time is a "dressing-room for Eternity, and therefore reserves most of her hours for better uses than those of the Comb, the Toilet, and the Glass":
MATRIMONIAL INSTITUTIONS IN THE UNITED STATES
[Bibliographical Note XII.—For this chapter a large quantity of files and records of Massachusetts colonial and provincial courts has been examined. In the office of the Clerk of Courts for Middlesex county (Cambridge) have been used theRecords of the County Court for Middlesex, 1649-86, 4 vols., MSS. folio, Vol. II missing; supplemented by theFiles of the County Court for Middlesex, 1655-99; and followed by theRecords of the Court of General Sessions of the Peace for Middlesex, 1692-1822, 9 vols., MSS. folio, the ninth volume containing alsoRecords of the Court of Pleas and General Sessions of the Peace, October 1686, to March, 1688. In the office of the Clerk of the Supreme Judicial Court for the County of Suffolk (Boston) have likewise been examined theRecords of the Court of General Sessions of the Peace, 1702-32, 4 vols., MSS. folio, with a fifth volume of fragments, 1738-80; theMinute Books of the Court of General Sessions of the Peace, January 3, 1743, to August 3, 1773, 5 vols., MSS. folio; theRecords of the Superior Court of Judicature, Court of Assize and General Goal Delivery in the Province of Massachusetts Bay, 1692-1780, 33 vols., MSS. folio, Vol. II containing also the records of certain courts during the Andros period, 1686-87; and theEarly Court Files of Suffolk, 1629-1800—being papers of colonial and provincial courts held in Suffolk county, of the Superior Court of Judicature held in the several counties, and of the Supreme Judicial Court prior to last century, with miscellaneous papers, the whole collection comprising several hundred volumes, of which only those for the period 1629-1730 have been covered by this investigation. Careful examination has also been made of the MSS. folio volume ofRecords of the County Court of Suffolk, October 1671, to April, 1680, in the possession of the Boston Athenæum.Very important are the publishedColonial Records of Plymouth(Boston, 1855-61);Massachusetts Bay(Boston, 1853-54);New Haven(Hartford, 1857-58);Connecticut(Hartford, 1850-87);Rhode Island(Providence, 1856 ff.); and theProvincial, Town, and State Papers of New Hampshire(Concord, 1867-83).The necessary complement of the records is of course found in the various compilations of statutes. For Massachusetts it has seemed best to cite by preference Whitmore's fine facsimile edition of theColonial Laws(Vol. I, 1660-72, Boston, 1887; Vol. II, 1672-86, Boston, 1889), which should be used in connection with hisBibliographical Sketch of the Laws of the Massachusetts Colony, 1630-86 (Boston, 1890); and Ames and Goodell'sActs and Resolves(5 vols., Boston, 1869-86), which with the three supplementary volumes (Boston, 1892-96), cover the period of the provincial charter and carry us beyond the Revolution. The following original digests have also been employed:The Book of the General Lawes and Libertyes of the Massachusetts Colony(Boston, 1660);The General Laws and Liberties(Boston, 1672)—these two earliest codes being those reprinted by Whitmore;Acts and Laws, 1692-1714 (Boston, 1714);Acts and Laws, 1692-1765 (Boston, 1769);Acts and Laws(Boston, 1759); and the collection entitledCharters and General Laws of the Colony and Province of Massachusetts Bay(Boston, 1814). The first digests of New Haven and Connecticut plantations are comprised in Trumbull'sTrue Blue Laws(Hartford, 1876). There is also a reprint of theCode of 1650, to which is added extracts from Laws and Judicial Proceedings of New Haven Colony commonly called Blue Laws(Hartford, 1822); and a facsimile reprint ofThe Book of the General Laws of 1673(Hartford, 1865). For the eighteenth century we have theActs and Laws of his Majesties Colony of Connecticut in New England(New London, 1715);Acts and Laws of his Majesties English Colony of Connecticut(New London, 1750);Acts and Laws(New Haven, 1769); and theActs and Laws(New London, 1784). For New Hampshire, the "Province Laws" published in Vol. VIII of theNew Hampshire Historical Society Collections; theActs and Laws passed by the General Court or Assembly, 1696-1725 (Boston, 1726); theActs and Laws(Portsmouth, 1761); and theActs and Laws, 1696-1771 (Portsmouth, 1771), have been cited. To follow the tangled thread of Rhode Island legislation on any subject is a perplexing task; but the development of the written marriage law may be traced with tolerable clearness in the published digests. See Staples'sProceedings of the First General Assembly ... and the Code adopted by that Assembly in 1647(Providence, 1847); Rider's facsimile reprint of the code of 1705, entitledLaws and Acts of his Majesties Colony of Rhode Island, 1636-1705 (Providence, 1896); his facsimile reprint of the code of 1719, entitledThe Charter and the Laws of his Majesties Colony of Rhode-Island in America(Providence, 1895); also the originalActs and Laws(Newport, 1730); with Rider's facsimile reprint, entitledSupplementary Pages to the Digest of 1730(Providence, [1898]); the original folio editions of theActs and Lawsdated respectively 1745, 1752, 1767 (Newport); and Gregory's facsimile reprint of the compilation of 1772, entitledActs and Laws ... passed since the Revision in June 1767(Providence, 1893). The Plymouth codes are printed in Vol. XI of theColonial Recordsof that colony; and they aregiven in convenient form in Brigham'sCompact, with the Charter and Laws of New Plymouth(Boston, 1836).Original material has also been gleaned from theCollections(Boston, 1806-97) and theProceedingsof the Massachusetts Historical Society (Boston, 1879 ff.); Bradford'sHistory of Plymouth Plantation(Boston, 1856); Winthrop'sHistory of New England, 1630-49 (Boston, 1853); Hutchinson'sHistory of Massachusetts, 1628-1774 (Vol. I, Salem, 1795; Vol. II, Boston, 1795; Vol. III, London, 1828); Cotton Mather'sMagnalia Christi Americana(Hartford, 1820); Increase Mather'sAnswer of Several Ministers(Boston, 1695), on marriage with wife's sister;The Andros Tracts(Boston, 1868-74); Young'sChronicles of the Pilgrims, 1602-25 (2d ed., Boston, 1844);Historical Collections of the Essex Institute(Salem, 1896); Lechford'sNote-Book, 1638-71 (Cambridge, 1885),idem,Plain Dealing(Boston, 1867); reprinted also in 3Mass. Hist. Soc. Collections, III; Dunton'sLife and Errors(Westminster, 1818); hisLetters from New-England(Prince Society, Boston, 1867); the "Town Records of Boston," 1634-1777; and the "Town Records of Dorchester," both in theReports of the Boston Record Commission; "Town Records of Salem," 1634-59, in Vol. IX ofHist. Coll. Essex Inst.; especially Sewall's "Diary," in 5Mass. Hist. Coll., V, VI, VII (Boston, 1878-80); and his "Letter-Book," in 6Mass. Hist. Coll., I, II (Boston, 1886), both of which afford a wealth of illustration for almost every phase of wedding and other social customs.Among recent writings relating to the general subject most important are Shirley, "Early Jurisprudence of New Hampshire," inProceedings of the New Hamp. Hist. Society, 1876-84 (Concord, 1885); Earle,Customs and Fashions in Old New England(New York, 1894); Weeden,Economic and Social History of New England, 1620-1789 (Boston, 1891); Goodwin,Pilgrim Republic(Boston, 1888); Howe,Puritan Republic(Indianapolis, 1899); Arnold,History of Rhode Island(New York, 1874); Friedberg,Eheschliessung(Leipzig, 1865); Cook, "Marriage Celebration in the Colonies," inAtlantic Monthly, LXI (Boston, 1888); Bishop,Marriage, Divorce, and Separation(Chicago, 1891); Lodge,Short History of the English Colonies(New York, 1882); Trumbull,History of Connecticut(New Haven, 1818); Hollister,History of Connecticut(Hartford, 1857); Atwater,History of the Colony of New Haven(New Haven, 1881); Freeman,History of Cape Cod(Boston, 1869); Bailey,Historical Sketches of Andover(Boston, 1880); Bliss,Side Glimpses from the Colonial Meeting-House(Boston, 1896);idem,Colonial Times on Buzzard's Bay(Boston, 1888); Brooks,The Olden Time Series: The Days of the Spinning-Wheel in New England(Boston, 1886); articles by Scudder, Whitmore, Edes, McKenzie, Morse, and Goddard, inMemorial History of Boston(Boston, 1882-83); and Newhall,Ye Great and General Court(Lynn, 1897).Illustrative material has likewise been gathered from a large number of writers, among whom are Palfrey,History of New England(Boston, 1888-90); Carlier,Le mariage aux États-Unis(Paris, 1860); Oliver,Puritan Commonwealth(Boston, 1856); Doyle,English Colonies(New York, 1882-87); Ellis,Puritan Age(Boston, 1888); Dexter,Congregationalism(New York, 1880); Bacon,Genesis of the New England Churches(New York, 1874); Belknap,History of New Hampshire(Dover, 1812); Green,Short History of Rhode Island(Providence, 1877); Sanford,History of Connecticut(Hartford, 1888); Hawthorne,Grandfather's Chair(Boston, 1893); Campbell,The Puritan in Holland, England, and America(New York, 1892); Hildreth,History of the United States(New York, 1882); Snow,History of Boston(Boston, 1824); Shurtleff,Topographical and Historical Description of Boston(Boston, 1872); Gilman,The Story of Boston(New York, 1889); Drake (S. G.),History and Antiquities of Boston(Boston, 1854); Drake (S. A.),Old Landmarks of Boston(Boston, 1889); Drake (S. A.),The Making of New England(New York, 1887); Prime,Along New England Roads(New York, 1892); Read, in theCollections of the Old Colony Historical Society, No. 2 (Taunton, 1880); and Brigham, inProceedings of the Mass. Hist. Society, IV.Among the works drawn upon in the treatment of special topics are Stiles'sBundling(Albany, 1871); supplemented by hisHistory of Windsor(New York, 1859); and the very suggestive paper of Charles Francis Adams,Some Phases of Sexual Morality and Church Discipline in Colonial New England, reprinted from theMass. Hist. Soc. Proceedings, June, 1891 (Cambridge, 1891); while there is an interesting passage relating to the same custom in Burnaby'sTravels through the Middle Settlements in North America, 1759-60 (London, 1798); as also a characteristic reference in Irving'sKnickerbocker History of New York(Philadelphia, 1871). For the first time the history of the stigma of the "scarlet letter" has been treated from the sources in Davis's careful monograph,The Law of Adultery and Ignominious Punishments(Worcester, 1895). In connection with the influence of the Levitical law on the New England conception of marriage and the family, Amram'sThe Jewish Law of Divorce(Philadelphia, 1896), and Mielziner'sThe Jewish Law of Marriage and Divorce(Cincinnati, 1884) are important. Of most service for the legal character of New England slave marriages are Moore'sNotes on the History of Slavery in Massachusetts(New York, 1866); his "Slave Marriages in Massachusetts," in theHistorical Magazine, XV (1869), containing a significant ritual used by Rev. Samuel Phillips, minister at Andover, 1710-71; and Steiner's "History of Slavery in Connecticut," inJohns Hopkins University Studies, XI (Baltimore, 1893). The originality of the system of civil registration created bythe New England settlers is appreciated by Kuczynski, "The Registration Laws in the Colonies of Massachusetts Bay and New Plymouth," inPublications of the Am. Statistical Ass., VII, 65-73 (Boston, 1901). See also Bibliographical Note XV.]
[Bibliographical Note XII.—For this chapter a large quantity of files and records of Massachusetts colonial and provincial courts has been examined. In the office of the Clerk of Courts for Middlesex county (Cambridge) have been used theRecords of the County Court for Middlesex, 1649-86, 4 vols., MSS. folio, Vol. II missing; supplemented by theFiles of the County Court for Middlesex, 1655-99; and followed by theRecords of the Court of General Sessions of the Peace for Middlesex, 1692-1822, 9 vols., MSS. folio, the ninth volume containing alsoRecords of the Court of Pleas and General Sessions of the Peace, October 1686, to March, 1688. In the office of the Clerk of the Supreme Judicial Court for the County of Suffolk (Boston) have likewise been examined theRecords of the Court of General Sessions of the Peace, 1702-32, 4 vols., MSS. folio, with a fifth volume of fragments, 1738-80; theMinute Books of the Court of General Sessions of the Peace, January 3, 1743, to August 3, 1773, 5 vols., MSS. folio; theRecords of the Superior Court of Judicature, Court of Assize and General Goal Delivery in the Province of Massachusetts Bay, 1692-1780, 33 vols., MSS. folio, Vol. II containing also the records of certain courts during the Andros period, 1686-87; and theEarly Court Files of Suffolk, 1629-1800—being papers of colonial and provincial courts held in Suffolk county, of the Superior Court of Judicature held in the several counties, and of the Supreme Judicial Court prior to last century, with miscellaneous papers, the whole collection comprising several hundred volumes, of which only those for the period 1629-1730 have been covered by this investigation. Careful examination has also been made of the MSS. folio volume ofRecords of the County Court of Suffolk, October 1671, to April, 1680, in the possession of the Boston Athenæum.
Very important are the publishedColonial Records of Plymouth(Boston, 1855-61);Massachusetts Bay(Boston, 1853-54);New Haven(Hartford, 1857-58);Connecticut(Hartford, 1850-87);Rhode Island(Providence, 1856 ff.); and theProvincial, Town, and State Papers of New Hampshire(Concord, 1867-83).
The necessary complement of the records is of course found in the various compilations of statutes. For Massachusetts it has seemed best to cite by preference Whitmore's fine facsimile edition of theColonial Laws(Vol. I, 1660-72, Boston, 1887; Vol. II, 1672-86, Boston, 1889), which should be used in connection with hisBibliographical Sketch of the Laws of the Massachusetts Colony, 1630-86 (Boston, 1890); and Ames and Goodell'sActs and Resolves(5 vols., Boston, 1869-86), which with the three supplementary volumes (Boston, 1892-96), cover the period of the provincial charter and carry us beyond the Revolution. The following original digests have also been employed:The Book of the General Lawes and Libertyes of the Massachusetts Colony(Boston, 1660);The General Laws and Liberties(Boston, 1672)—these two earliest codes being those reprinted by Whitmore;Acts and Laws, 1692-1714 (Boston, 1714);Acts and Laws, 1692-1765 (Boston, 1769);Acts and Laws(Boston, 1759); and the collection entitledCharters and General Laws of the Colony and Province of Massachusetts Bay(Boston, 1814). The first digests of New Haven and Connecticut plantations are comprised in Trumbull'sTrue Blue Laws(Hartford, 1876). There is also a reprint of theCode of 1650, to which is added extracts from Laws and Judicial Proceedings of New Haven Colony commonly called Blue Laws(Hartford, 1822); and a facsimile reprint ofThe Book of the General Laws of 1673(Hartford, 1865). For the eighteenth century we have theActs and Laws of his Majesties Colony of Connecticut in New England(New London, 1715);Acts and Laws of his Majesties English Colony of Connecticut(New London, 1750);Acts and Laws(New Haven, 1769); and theActs and Laws(New London, 1784). For New Hampshire, the "Province Laws" published in Vol. VIII of theNew Hampshire Historical Society Collections; theActs and Laws passed by the General Court or Assembly, 1696-1725 (Boston, 1726); theActs and Laws(Portsmouth, 1761); and theActs and Laws, 1696-1771 (Portsmouth, 1771), have been cited. To follow the tangled thread of Rhode Island legislation on any subject is a perplexing task; but the development of the written marriage law may be traced with tolerable clearness in the published digests. See Staples'sProceedings of the First General Assembly ... and the Code adopted by that Assembly in 1647(Providence, 1847); Rider's facsimile reprint of the code of 1705, entitledLaws and Acts of his Majesties Colony of Rhode Island, 1636-1705 (Providence, 1896); his facsimile reprint of the code of 1719, entitledThe Charter and the Laws of his Majesties Colony of Rhode-Island in America(Providence, 1895); also the originalActs and Laws(Newport, 1730); with Rider's facsimile reprint, entitledSupplementary Pages to the Digest of 1730(Providence, [1898]); the original folio editions of theActs and Lawsdated respectively 1745, 1752, 1767 (Newport); and Gregory's facsimile reprint of the compilation of 1772, entitledActs and Laws ... passed since the Revision in June 1767(Providence, 1893). The Plymouth codes are printed in Vol. XI of theColonial Recordsof that colony; and they aregiven in convenient form in Brigham'sCompact, with the Charter and Laws of New Plymouth(Boston, 1836).
Original material has also been gleaned from theCollections(Boston, 1806-97) and theProceedingsof the Massachusetts Historical Society (Boston, 1879 ff.); Bradford'sHistory of Plymouth Plantation(Boston, 1856); Winthrop'sHistory of New England, 1630-49 (Boston, 1853); Hutchinson'sHistory of Massachusetts, 1628-1774 (Vol. I, Salem, 1795; Vol. II, Boston, 1795; Vol. III, London, 1828); Cotton Mather'sMagnalia Christi Americana(Hartford, 1820); Increase Mather'sAnswer of Several Ministers(Boston, 1695), on marriage with wife's sister;The Andros Tracts(Boston, 1868-74); Young'sChronicles of the Pilgrims, 1602-25 (2d ed., Boston, 1844);Historical Collections of the Essex Institute(Salem, 1896); Lechford'sNote-Book, 1638-71 (Cambridge, 1885),idem,Plain Dealing(Boston, 1867); reprinted also in 3Mass. Hist. Soc. Collections, III; Dunton'sLife and Errors(Westminster, 1818); hisLetters from New-England(Prince Society, Boston, 1867); the "Town Records of Boston," 1634-1777; and the "Town Records of Dorchester," both in theReports of the Boston Record Commission; "Town Records of Salem," 1634-59, in Vol. IX ofHist. Coll. Essex Inst.; especially Sewall's "Diary," in 5Mass. Hist. Coll., V, VI, VII (Boston, 1878-80); and his "Letter-Book," in 6Mass. Hist. Coll., I, II (Boston, 1886), both of which afford a wealth of illustration for almost every phase of wedding and other social customs.
Among recent writings relating to the general subject most important are Shirley, "Early Jurisprudence of New Hampshire," inProceedings of the New Hamp. Hist. Society, 1876-84 (Concord, 1885); Earle,Customs and Fashions in Old New England(New York, 1894); Weeden,Economic and Social History of New England, 1620-1789 (Boston, 1891); Goodwin,Pilgrim Republic(Boston, 1888); Howe,Puritan Republic(Indianapolis, 1899); Arnold,History of Rhode Island(New York, 1874); Friedberg,Eheschliessung(Leipzig, 1865); Cook, "Marriage Celebration in the Colonies," inAtlantic Monthly, LXI (Boston, 1888); Bishop,Marriage, Divorce, and Separation(Chicago, 1891); Lodge,Short History of the English Colonies(New York, 1882); Trumbull,History of Connecticut(New Haven, 1818); Hollister,History of Connecticut(Hartford, 1857); Atwater,History of the Colony of New Haven(New Haven, 1881); Freeman,History of Cape Cod(Boston, 1869); Bailey,Historical Sketches of Andover(Boston, 1880); Bliss,Side Glimpses from the Colonial Meeting-House(Boston, 1896);idem,Colonial Times on Buzzard's Bay(Boston, 1888); Brooks,The Olden Time Series: The Days of the Spinning-Wheel in New England(Boston, 1886); articles by Scudder, Whitmore, Edes, McKenzie, Morse, and Goddard, inMemorial History of Boston(Boston, 1882-83); and Newhall,Ye Great and General Court(Lynn, 1897).
Illustrative material has likewise been gathered from a large number of writers, among whom are Palfrey,History of New England(Boston, 1888-90); Carlier,Le mariage aux États-Unis(Paris, 1860); Oliver,Puritan Commonwealth(Boston, 1856); Doyle,English Colonies(New York, 1882-87); Ellis,Puritan Age(Boston, 1888); Dexter,Congregationalism(New York, 1880); Bacon,Genesis of the New England Churches(New York, 1874); Belknap,History of New Hampshire(Dover, 1812); Green,Short History of Rhode Island(Providence, 1877); Sanford,History of Connecticut(Hartford, 1888); Hawthorne,Grandfather's Chair(Boston, 1893); Campbell,The Puritan in Holland, England, and America(New York, 1892); Hildreth,History of the United States(New York, 1882); Snow,History of Boston(Boston, 1824); Shurtleff,Topographical and Historical Description of Boston(Boston, 1872); Gilman,The Story of Boston(New York, 1889); Drake (S. G.),History and Antiquities of Boston(Boston, 1854); Drake (S. A.),Old Landmarks of Boston(Boston, 1889); Drake (S. A.),The Making of New England(New York, 1887); Prime,Along New England Roads(New York, 1892); Read, in theCollections of the Old Colony Historical Society, No. 2 (Taunton, 1880); and Brigham, inProceedings of the Mass. Hist. Society, IV.
Among the works drawn upon in the treatment of special topics are Stiles'sBundling(Albany, 1871); supplemented by hisHistory of Windsor(New York, 1859); and the very suggestive paper of Charles Francis Adams,Some Phases of Sexual Morality and Church Discipline in Colonial New England, reprinted from theMass. Hist. Soc. Proceedings, June, 1891 (Cambridge, 1891); while there is an interesting passage relating to the same custom in Burnaby'sTravels through the Middle Settlements in North America, 1759-60 (London, 1798); as also a characteristic reference in Irving'sKnickerbocker History of New York(Philadelphia, 1871). For the first time the history of the stigma of the "scarlet letter" has been treated from the sources in Davis's careful monograph,The Law of Adultery and Ignominious Punishments(Worcester, 1895). In connection with the influence of the Levitical law on the New England conception of marriage and the family, Amram'sThe Jewish Law of Divorce(Philadelphia, 1896), and Mielziner'sThe Jewish Law of Marriage and Divorce(Cincinnati, 1884) are important. Of most service for the legal character of New England slave marriages are Moore'sNotes on the History of Slavery in Massachusetts(New York, 1866); his "Slave Marriages in Massachusetts," in theHistorical Magazine, XV (1869), containing a significant ritual used by Rev. Samuel Phillips, minister at Andover, 1710-71; and Steiner's "History of Slavery in Connecticut," inJohns Hopkins University Studies, XI (Baltimore, 1893). The originality of the system of civil registration created bythe New England settlers is appreciated by Kuczynski, "The Registration Laws in the Colonies of Massachusetts Bay and New Plymouth," inPublications of the Am. Statistical Ass., VII, 65-73 (Boston, 1901). See also Bibliographical Note XV.]
The continuity of English law and custom in the New England colonies is not more striking than the innovation. First of all it would indeed be strange if the planting of new states in the wilderness should not have afforded to thoughtful men a rare opportunity for freeing themselves from the trammels of antiquated methods and traditions which the "inertia of vested interests" might yet for ages sustain in the native land. In some instances the influences of a new and primitive environment might cause an unconscious return to the practices of earlier days. Religious and ecclesiastical ideas must necessarily play the leading part. In fact, the zeal with which the Pioneers of Plymouth and Massachusetts Bay proscribed the ceremonies and usages of the Roman and Anglican churches has had much to do with the character of civil institutions in the United States. On the part even of the Puritan there was thus sometimes a strong reaction in favor of the temporal power in matters hitherto regarded as exclusively pertaining to the spiritual jurisdiction. The sway of the so-called theocracy in Massachusetts and New Haven tended, sometimes inadvertently, to foster the growth of the American idea of complete separation of church and state. Thereby the forces of local self-government were quickened. Thus for a time the town-meeting and the congregation were practically one and the same; but authority was exercised in the name of the lay township and not in that of the ecclesiastical parish. So also the probate of wills, the administration of estates, the exercise of chancery jurisdiction,[357]and thesupervision of primary and secondary education[358]were taken out of the hands of the church and vested mainly in the local community. The process of secularization in legal functions proceeded with rapid strides.
In no respect was the change more remarkable than in the administration of matrimonial law and in the conception of the marriage contract. Here, as in so many other instances, our ancestors anticipated the thought and the legislation of the mother-country by more than two hundred years.[359]It will be remembered that in the beginning of the seventeenth century—and ever since the thirteenth—English marriage law was in an anomalous and most chaotic state. The Reformation in England had brought no real change in the canonical conception of the form of wedlock, though its sacramental nature was denied. On the one hand was the church at the demand of the state trying to enforce ecclesiastical rites and to secure publicity by requirement of banns, parental consent, and registration; on the other was the "irregular" or common-law marriage, entered into without any of these safeguards, by mere private agreement; and the validity of the latter was not squarely impeached by the church, though the disregard of the priestly office was punished by spiritual censure. All this is changed in the colonies. In place ofconfusion and complexity is found simplicity. In New England particularly civil rites, civil registration, and uniform theory of marriage tend at once to prevent the manifold evils growing out of a lax or uncertain law. The conception of wedlock which existed there from the beginning was identical with that which later found expression in the writings of Milton and the legislation of Cromwell. Marriage was declared to be, not a sacrament, but a civil contract in which the intervention of a priest was unnecessary and out of place.
Governor Winthrop, in commenting upon "a great marriage to be solemnized at Boston," in 1647, expresses the sentiment prevailing during the first three-quarters of a century after the settlement. The bridegroom was "of Hingham, Mr. Hubbard's[360]church," and the latter "was procured to preach and came to Boston to that end. But the magistrates, hearing of it, sent to him to forbear. The reasons were, 1. for that his spirit had been discovered to be averse to our ecclesiastical and civil government, and he was a bold man, and would speak his mind. 2. we were not willing to bring in the English custom of ministers performing the solemnity of marriage, which sermons at such times might induce, but if any ministers were present and would bestow a word of exhortation, etc., it was permitted."[361]The last remark reminds us of the benediction of the early Christian priest, who, like the Puritan, discriminated between the religious act and the marriage. Sermons, however, were originally proscribed at the nuptials, though they were permitted at the betrothal.[362]
The early colonial laws, generally, required that all marriages should be celebrated before a justice of the peaceor other magistrate, sometimes under penalty of nullity for those solemnized in any other way.[363]Where no statutory provision to the contrary existed the common-law marriage by private consent was valid.[364]The question now arises as to the causes which determined the establishment of civil marriage in the New England colonies. Was it set up in imitation of the practice in Holland? Did it come as a natural result of the general tendency of Protestant, and especially of Puritan, thought? Or was it perhaps the product of both influences combined? Already in the middle of the eighteenth century colonial historians were at a loss to account for it. Thus Governor Hutchinson makes a difficulty of understanding why the lay celebration was introduced. "Their laws concerning marriage and divorce," he says, "are somewhat singular. I suppose there had been no instance of a marriage, lawfully celebrated, by a layman in England, when they left it. I believe there was no instance of marriage by a clergyman after they arrived, during their charter; but it was always done by a magistrate, or by persons specially appointed for that purpose.... It is difficult to assign a reason for so sudden a change, especially as there was no established form of the marriage covenant."[365]
On the other hand, Governor Bradford believed that the civil celebration was introduced by the Pilgrims directlyfrom Holland. The first marriage in Plymouth Plantation—that of Edward Winslow and Susannah White[366]—occurred on May 12 (22), 1621. This, he declares "according to yelaudable custome of yeLow-Cuntries, in which they had lived, was thought most requisite to be performed by the magistrate, as being a civill thing, upon which many questions aboute inheritances doo depende, with other things most proper to their cognizans, and most consonante to yescriptures, Ruth 4, and no wher found in yegospell to be layed on yeministers as a part of their office. 'This decree or law about marriage was published by yeState of yeLow-Cuntries Ano: 1590. That those of any religion, after lawfull and open publication, coming before yemagistrats in yeTown or Stat-house, were to be orderly (by them) married one to another.' Petits Hist. fol: 1029. And this practiss hath continued amongst, not only them, but hath been followed by all yefamous churches of Christ in these parts to this time,—Ano: 1646."[367]
The testimony of Bradford must, indeed, command our earnest attention, though in the matter of dates he is apparently misled by his authority. For, as already seen,[368]two of the Netherland provinces had established civil marriage as early as 1580; while it was not extended to them all until seventy-six years later. Nor is the mere fact that, seemingly without discussion, civil marriage was adopted by Massachusetts and her daughter-colonies, as well as by Plymouth, necessarily a fatal objection to this theory of origin, though it has a bearing upon the question which must be carefullyconsidered. For the New England Pilgrim and Puritan alike were simply doing what their brethren did a few years after when they found their opportunity in the days of the Commonwealth. If America owes the institution of civil marriage to Holland, it is so not merely because of the residence of the Scrooby congregation at Leyden, but because of the profound influence which Dutch Puritanism exerted upon the Puritanism of England for a hundred years after the Spanish and Tudor persecutions began. It can scarcely be doubted that in various ways Dutch ideas made themselves felt in the remarkable legislative and constitutional experimentation of Cromwell's reign.[369]Moreover, the argument is strengthened by the fact that the Fathers of the English Reformation, unlike Luther and his followers, do not seem to have raised a single voice in favor of the lay ceremony.
Nevertheless, though Dutch custom undoubtedly furnished a direct precedent which should not be ignored, it seems highly probable that without the influence of Holland the early establishment of civil marriage in New England was inevitable. It was required by the spirit of Protestantism. Under favorable conditions, which New England did and old England did not afford, it was sure to arise as a consequence of rejecting the sacramental theory of wedlock.[370]There is another factor of the problem which must be reckoned with. The New England Puritans were steeped to the marrow in Hebraism; and, as we shall presently see,the growth of a sentiment in favor of lay marriage was fostered by the example of the Jewish law.[371]It is vain to apologize for them on the ground that under the influence of the Mosaic code they really regarded the officiating magistrate as the "minister of God." In his "judicial" capacity the magistrate may, indeed, have been looked upon as a divine agent.[372]That is the well-known casuistry by which Luther and the early Protestants persuaded themselves that absolute divorce through the temporal court is not forbidden by the scriptural precepts.[373]But it is a grave error to suppose that the seventeenth-century Puritan had this in mind when he rejected the priestly ceremony. Doubtless he did not forget that marriage from its social and ethical sides is something higher than amerecivil contract. Yet for more than half a century after the settlement so intent was he in emphasizing its secular character that in the statutes the words "holy" or "sacred" as applied to it very seldom, if ever, appear. "Honorable" or some similar epithet is the strongest term usually employed. Even the publication of banns, as will hereafter be seen, was at first ordinarily required to be made, not on the sabbath, but at public "lecture" or on training day.[374]
The difference between the colonists and their Anglican adversaries in this regard is brought out in an interesting way through the experience of Edward Winslow, whose second marriage has just been mentioned. In 1634 he was sent on public business to England, where, partly in the interest of Merry-Mount Morton, Mason, and Sir FerdinandoGorges, he was accused by Archbishop Laud—whose scheme for setting up a governor-general and a bishop in the colonies seemed likely to be frustrated by Winslow's petition relative to the encroachments of the French and Dutch—of "teaching in yechurch publickly," and of performing the marriage ceremony. The latter offense he had committed in his capacity as magistrate. In reply to the charge he excused himself on the ground that the colonists were "necessitated so to doe, having for a long time togeather at first no minister; besids, it was no new-thing, for he had been so maried him selfe in Holland, by yemagistrats in their statthouse."[375]But "with more courage and candor than caution, he proceeded to defend the practice on its merits, declaring that he knew no scriptural ground for confining this office to the clergy; while from the relations which marriage often had to property and to business obligations, there seemed good reason for making it a civil contract, as in Holland."[376]As a consequence Winslow was imprisoned in the Fleet for seventeen weeks.[377]
It appears certain, then, that in the two older colonies the lay ceremony was invariably required from the beginning.[378]But in neither case does there seem to have been any direct legislation on the subject for many years. Indeed, were there no prudential reason,[379]a positive legal sanction may well have been deemed superfluous while public opinion was so sensitive and so united. The first extant order of the general court of Plymouth requiring celebration beforea civil officer was passed, it is said,[380]in 1671. But in this jurisdiction, as in Massachusetts, the assistants or "magistrates" had always exercised this function; and it had long been the custom for the general court to appoint commissioners in the particular towns to join persons in marriage.[381]The earliest statute of Massachusetts relating to the celebration is the act of 1646, providing "that no person whatsoever in this Jurisdiction, shall joyne any persons together in Marriage, but the Magistrate, or such other as the General Court, or Court of Assistants shal Authorize in such place, where no Magistrate is neer."[382]In practice the last provision of this act was carried out in various ways. Thus, for example, any citizen might be appointed for a particular town during the pleasure of the court.[383]Or, in absence of the regular officer, a commission might be issuedto perform the ceremony in specified cases; as when Henry Chickering was given authority to marry "two or three couples, legally published at Dedham."[384]In one instance we find a curious optional commission in which are inserted the names of three persons, either one of whom is empowered to join "Mr.John Apleton and Mrs.Priscilla Glover" in marriage.[385]But, as a rule, one or more of the three commissioners, chosen for the ending of small causes in towns where no assistant resided, was authorized by the county court to perform this duty.[386]
The law and custom of the other New England colonies were essentially the same as those already discussed. Everywhere marriage was regarded as a civil contract and the celebration was performed by a civil magistrate. In New Hampshire members of the council could act.[387]In Rhode Island, besides the magistrate, "none but Quakers[388]andclergymen of the Church of England could perform the ceremony," and these were given such authority by special grant of the king.[389]The law of New Haven, 1648, is peculiar in requiring not only that the marriage be performed before a magistrate or someone expressly allowed by the general court; but when the persons to be united are "able to go forth," that it be solemnized in some public place,[390]under penalty of five pounds for "every such miscarriage."[391]In Connecticut, likewise, compulsory civil marriage was adopted.[392]
During the "usurpation" period, beginning in 1686, the laws requiring civil marriage were set aside. Joseph Dudley, who entered upon his duties as president of New England in May of that year, published "an order of council, authorizing and empowering ministers and justices of the peace, the order says, 'to consummate marriages,' after three several times publication or licence from the president or deputy."[393]With this compromise Governor Andros was not satisfied; and it was his intention to allow marriages to be performed only by the Episcopal clergy. To do this at once, however, was impracticable. "Magistrates," says Hutchinson, "still continued to give people in matrimony. Other provision could not immediately be made." For at the time there was but one Episcopal clergyman in the country; and "Sir Edmund considered the Congregational ministers as mere laymen. Randolph wrote to the bishop of London, 'I press for able and sober ministers, and we will contribute largely to their maintenance; but one thing will mainly help, when no marriages shall hereafter be allowed lawful but such as are made by the ministers of the church of England."[394]Another restraint upon marriage was accounted a still more serious hardship. "None were allowed to marry except they entered into bonds with sureties to the governor, to be forfeited in case there should afterwards appear to have been any lawful impediment."[395]This requirement in many cases amounted to a practical prohibition.[396]
The "first marriage at Boston with prayer-book and ring" occurred on May 18/28, 1686, just four days after Dudley received his commission as president of New England.[397]But there is evidence that zealous opposition to the religious ceremony existed up to the very beginning of this period. Thus, according to Savage, "Lawrence Vanderbosk, a Huguenot clergyman, undertook to solemnize marriages in Boston in 1685." But he was brought before a tribunal for this enormity and promised "to do no more such things," yet in September, says Judge Sewall, "he joined together Giles Sylvester and Hannah, widow of Benjamin Gillam. The reverend offender went to New York the same week."[398]
Gradually, however, the stern Puritanism of the colonists became softened; the prejudice against ecclesiastical rites rapidly subsided; marriages were solemnized even by the Congregational clergy;[399]and soon after the struggle for the charters, laws were enacted allowing the ministers of all denominations to perform the ceremony. Yet, in Rhode Island, it was not until 1733 that the "settled and ordained ministers and elders of every society and denomination of Christians" were permitted to join persons in marriage, the legal fee therefor being fixed at three shillings.[400]By an act of October, 1694, the same privilege was conferred upon the "ordayned ministers of the severall plantations" of Connecticut—in order, says the general court, to satisfy "such as are conscienciously desirous to be" so joined.[401]For Massachusetts a similar statute was passed in 1692, authorizing all "settled ministers" to solemnize marriages, but only in their "respective towns;" while, on the other hand, the authority of the justice of the peace extended throughout the county.[402]The careful limitation of the respective districtsof the minister and magistrate was doubtless intended to act as a check upon clandestine unions, as by the more stringent act of 1695. By this statute none may join any persons in marriage who are not inhabitants or residents of the county or town; nor without a proper certificate of due publication and parental consent from the clerks of the towns where the parties respectively dwell. For celebrating a marriage contrary to the act the minister or justice suffers a penalty of fifty pounds and is forever disabled to join persons in marriage, with the added liability of prosecution from the parent or guardian.[403]By several subsequent acts the powers of the clergy are still further enlarged. Thus in 1763 they are empowered to solemnize marriages in "parishes" and "districts" composed of "parts of towns" in "as ample a manner" as in the several towns where they dwell.[404]In 1773 they are allowed to perform the ceremony, not merely within their official districts, but for any whose "ministerial taxes" they are entitled to receive; or if for any cause a parish is without a minister, or if the incumbent himself desires to get married, then the next minister of the same denomination in the town may lawfully act.[405]
So it appears that the proclamation of President Dudley in 1686 marks an epoch of some importance in institutional history. For by it the principle of American law, generally recognized at present by the statutes of the various states, and imitated by English legislation, was first recognized. Almost everywhere in this country the lay and the religious celebrations are equally valid; and it is not without interest to note that long before the Revolution the priest had oncemore practically superseded the magistrate at the nuptials.[406]It was already regarded as good social "form" to have the nuptials solemnized by religious rites.
No prescribed marriage ritual existed. The intention of the persons entering into the covenant might be expressed in any fitting words.[407]In the early period weddings were usually celebrated quietly in the home of the bride. But it must not be understood that all festivity was for long rigorously proscribed. Soon feasting was added to prayer and the singing of psalms.[408]A sumptuary law of 1637, forbidding the sale of buns and cakes in the markets, victualling houses, and elsewhere, carefully makes an exception of "such cakes as shalbee made for any buriall, or marriage, or such like speciall occation."[409]The ancient practice of our teutonic ancestors of "bedding" the newly married pair was maintained in some quarters. Judge Sewall had that experience when he took his second wife.[410]"In Marblehead bridesmaids and groomsmen put the wedded couple to bed;" and we are told that "along the New Hampshire and upper Massachusetts coast, the groom was led to the bridal chamber clad in a brocaded night-gown. This may have occasionally taken place among the gentry," comments Mrs. Earle, "but I fancy brocaded night-gowns were not common wear among New England country folk."[411]Another "survival" was the sham "bride-stealing" which was long keptup in the Connecticut valley. "The last bride stolen in Hadley was Mrs. Job Marsh, in the year 1783;" and to this day "in certain localities in Rhode Island, the young men of the neighborhood invade the bridal chamber and pull the bride downstairs, and even out-of-doors, thus forcing the husband to follow to her rescue. If the room or house-door be locked against this invasion, the rough visitors break the lock."[412]Furthermore, numerous instances of "smock marriages" in New England are recorded. Here the English superstition elsewhere mentioned[413]took the special form that "if the bride were married 'in her shift on the king's highway,' a creditor could follow her person no farther in pursuit of his debt."[414]
In the eighteenth century weddings were accompanied by much revelry and extravagance. Gloves, rings, and scarves, as at funerals, were given away in such profusion as to call for legislation to check the abuse.[415]Unstinted feasting and drinking were the order of the day. "Sack-posset" appears to have been the favorite wedding beverage.[416]"Allthe friends were entertained at the bride's home with a collation or supper, and afterward a dance; while in the country they were the most important social events. The banns were proclaimed in church, and all the neighbors were invited from the pulpit to attend the ceremony. On the day of the wedding muskets were fired, a procession was formed, and marched to the bride's house, where the marriage took place; and then came a dinner, a dance, and great merry-making. Usually these wedding feasts lasted through the day and evening, but they were sometimes kept up for two or three days. On one occasion at New London there was a great wedding dance on the day after the marriage, when ninety-two ladies and gentlemen assembled and proceeded to dance ninety-two jigs, fifty-two contra-dances, forty-five minuets, and seventeen hornpipes. This was probably an extreme case; but all over New England weddings were great occasions, and were celebrated with much pomp and rejoicing."[417]
Of the New England marriage celebration at the beginning of the eighteenth century we have some vivid, though imperfect, sketches from the inimitable pen of Judge Sewall. Next to funerals, weddings seem to have been his chief recreation. The brief and naïve entries in hisDiaryreveal to us the mingled praying, psalm-singing, and posset which enlivened those festive occasions. Thus on October 22, 1713, he writes: "I go to Salem.... See Mr. Noyes marry Mr. Aaron Porter and Mrs. Susan Sewall, at my Brother's. Was a pretty deal of Company present.... Mr. Noyes made a Speech, said Love was the Sugar to sweeten every condition in the married Relation. Pray'd once. Did all very well.After the Sack-Posset, etc., Sung the 45th Psalm from the 8th verse to the end, five staves. I set it to Windsor Tune. I had a very good Turkey-Leather Psalm-Book which I look'd in while Mr. Noyes Read: and then I gave it to the Bridegroom saying, 'I give you this Psalm-Book in order to your perpetuating this song: and I would have you pray that it may be an Introduction to our Singing with the Choir above.'"[418]
Again in 1720 we find him solemnizing the marriage of his daughter, Mrs. Judith Sewall, with Mr. William Cooper. "I said to Mr. Simeon Stoddard and his wife, Sir, Madam, The Great Honor you have conferr'd on the Bridegroom and the Bride, by being present at this Solemnity does very conveniently supercede any further enquiry after your Consent. And the part I am desired to take in this Wedding, renders the way of my giving my Consent very Compendious: There's no maner of room left for that previous Question, Who giveth this Woman to be married to this Man? Dear child, you give me your Hand for one moment, and the Bridegroom forever. Spouse, You Accept and receive this Woman now given you, etc. Mr. Sewall pray'd before the Wedding, and Mr. Coleman after. Sung the 115. Psalm from the 9. verse to the end, in the New Hall, St. David's which I set. Then we had our Cake and Sack-posset."[419]
It is a fact of great historical interest that in the New England colonies the administration of matrimonial law was relegated to the sphere of local self-government. The requirement of previous publication, parental consent, and registration was everywhere carried into effect by the officers of the town as a part of their regular functions; and by-laws for their guidance were enacted in town-meeting.
The first extant statute for the regulation of marriage is contained in the revision of the Plymouth laws made in 1636, and repeated under a slightly altered form in the revision of 1658. It is a model of brevity and precision; and it marks an epoch in the history of English jurisprudence, attempting, as it does in few words, a remedy for many of the evils which continued for two centuries to vex the mother-country. No one "under the covert of parents" is allowed to marry without their approbation. But in case such approval "cannot be had then it shall be with the consent of the Gove[~r] or some assistant to whom the persons are knowne whose care it shall be to see the marriage be fitt before it be allowed by him." After the consent of parent or magistrate has thus been obtained, the marriage is to be published in "meeting" three several times before it is solemnized. Or, if there is no meeting, then fifteen days' notice by posting in the usual public place shall be sufficient; provided the "writing be vnder some magistrats hand or by his order."[420]
The Old Colony, likewise, made careful provision for registration. By an act of 1646 it is declared the duty of the town clerk to keep a register of the "day and yeare of the marriage, birth, and buriall of euery man, woman, and child" within his township. He is to have "thripence apece for each particular person soe registered." The persons marrying are themselves required, within one month, to report their marriage to him under penalty of three shillings for neglect—one-half to the Colony and the other half to the register "upon his complaint." The clerk must also submit annually to the general court at its March meeting a written report of all registrations made by him during the year. By this act, moreover, the publication of banns was devolved upon him.[421]
The laws of the other colonies differed only in details from those of Plymouth. In Massachusetts the first order of the general court on the subject was passed in 1639. The intention is to be thrice published, not at divine service on the sabbath, it may be noted, but in town-meeting or at "publike lecture" in "both the townes where the parties, or either of them, do ordinarily reside." If no public lecture is held in the town, then fourteen days' notice may be given in writing on "some poast standing in publike viewe" and used solely for this purpose.[422]The "poast" is to be provided by the town under penalty of ten shillings for default.[423]Later it became customary for the town clerk or his deputy to publish the banns on Sunday, "after the blessing to the evening exercise was pronounced;" and so in 1696-97 we find the town-meeting of Charlestown ordering that "publishments should be made 'on Lecture days or any other public times, and not restrained to Sabbath Days only.'"[424]Sometimes on petition the legislature granted to individuals special permission to marry.[425]Originally the registration of births, deaths, and marriages devolved upon the town clerk; but it seems to have been neglected by him. For in 1642the general court laid this duty upon the clerk of the writs in each town, under penalty for default, requiring him to make annual return of all names registered to the recorder of the county court.[426]A similar report to the same officer is to be submitted each year by all magistrates or persons appointed to solemnize marriages; and the "new married man" shall likewise, within one month, bring in to the clerk of the writs a certificate of his marriage.[427]Under the Province laws the duties of recorder were again performed by the clerk of the township; and under severe penalty persons might not be joined in marriage without presenting a proper certificate of publication and satisfactory evidence of parental consent.[428]
Previous to 1692, of course, the legal history of New Hampshire is in the main identical with that of Massachusetts.[429]But in the pioneer stage the township was sufficient unto itself. "Dover and Portsmouth, for nearly twenty years, had no central authority.[430]They had no ministry inany form, nor any magistrates, except such as might be created by any mining hamlet in an unorganized territory, or afterward as the result of forming themselves into societies. This, however, did not prevent people either from marrying or dying. The result was that marriage in New Hampshire has borne from the outset not only the character of a civil contract, but the impress of our township system."[431]After the establishment of the royal province the contract might be solemnized by "virtue either of publishment, or of a licence from the Governor. The granting of these licences was accounted a part of the royal prerogative;"[432]and it was complained of as leading to abuse.[433]
The statutes of Connecticut contain a curious provision, which will receive further notice hereafter. Distinction is made between the "contract" and the "covenant." Eight days' public notice of the proposed engagement must be given; and after the contract the betrothed pair must "forbeare" for a second period of eight days before joining in the covenant.[434]By the code of 1673 persons are not to be joined in wedlock "before the intention ... hath been sufficiently published at some publick Lecture or Town meeting in the Towns where the parties or either of them do ordinarily reside, or be set up in Writing ... upon some post of their Meeting House Door in publick view, there to stand so as it may be read eight days before such marriage."[435]In general, the marriage laws of both Connecticut[436]and New Haven[437]on the topic considered are plainly modeled upon those of Massachusetts, and so need not here receive further analysis.
Some interesting details may be gleaned from the matrimonial legislation of Rhode Island. The code of 1647 requires the publication of banns at two town-meetings, confirmation before the head officer, and registration in the town clerk's book; otherwise the marriage is void. It is further enacted that the "man that goes contrarie to this present Ordinance ... shall forfeit five pounds to the parents of the Maid, and be bound to his good behaviour; and all the accessories shall forfeit five pounds a man, halfe ... to the grieved parents and the other halfe to the Town."[438]Thus was established at an early day, says Arnold, a system of registration "such as recent legislation has attempted to revive."[439]In 1656 it was permitted either to publish marriages at town-meeting, or "on a traininge day at yehead of yeCompanie,"[440]or by a "Writinge under yeMagistrateshands fixed upon some noted place in yeTowne."[441]If "the banns were forbidden, the case was to be heard by two magistrates; should they allow it, the parties might marry; but if not, the general Court of trials were to decide."[442]A later version of the law of 1647, of uncertain date, is somewhat more detailed. The "man ythath A respect to a maid & doth desi[re] to Obtaine her in Marriage ... shall first acquaint her Parents thereof & upon their consenting thereto he shall have Baines of matrimony set up in a Publick Place in yeTown or be Published two severlltimes In A Public Assembly In the Town & then remaine from After yefirst Publication Tenn Days." Afterward, "before one of the Generllofficers" the celebration may take place according to "yeusuwal Custome of this place & then a Certificate Shall be given by yeOfficer ytIoynes them togeather in Marriage to yeparty So married who shall Carry it to the Clarke of yeTown where yeMarriage was Solemnized & have it Placed upon Record." For violation of the act the same penalties are imposed on the principals and accessories as in 1647; and the children "ytany shall have wthout this due & orderly Course of Law ... shall be looked at not to be Legitimate."[443]It appears that the execution of the laws was sadly neglected, and so by an act of 1698 all marriages thus far solemnized, but not duly registered, are declared valid. Persons married in future are ordered within ten days to make return to the town clerk; while the latter is required to submit annually to the head officer of the town or to the chief justice of the peace a report of all births, marriages, and deaths by him recorded.[444]Three years later a more stringent statute appears. Persons from another colony or township must present to the officer performing the ceremony a magistrate's certificate of proper publication andqualification.[445]"Fine and suspension from office were the penalties for any violation of this act by a magistrate, and fine, imprisonment, or whipping, is the punishments for the principals who disregard it."[446]After various changes[447]the law of the provincial era reached its full development in the code of 1767. A dual system of banns and lay publication is provided. If application be made to a "settled and ordained" minister of any denomination, he shall "openly and by public speaking" proclaim the banns on three several Sundays, holidays, or days of public worship "in the Meeting in the Town, where the Parties respectively belong." If lay publication be preferred, the assistant, warden, or justice, under his hand and seal, is required to post a notice in some public place in each of the towns where the parties dwell fifteen days before the wedding.[448]A method of "under-writing" in case of objection is prescribed. With leave of any assistant, justice, or warden, the person opposing the marriage is to make the objection "in writing under his or her Hand, therein assigning the Impediment, and affix the same under the Publication;" but in case of oral banns the written objection, in the presence of two witnesses, is to be delivered to the minister or elder who proclaimed the banns. The person forbidding the marriage must enter into recognizance with two good sureties to appear at the next court of generalsessions of the peace and there "make good and prove" his allegations, or, in default, pay to the persons to be wedded "all such Damages as they shall sustain by Means of staying their Marriage." A certificate of publication must be produced; two credible witnesses to the ceremony are required; the person conducting the celebration must give a certificate[449]thereof to the newly wedded pair; and he is entitled to a fee of three shillings. Only fines are imposed for violation of the act by the solemnizer or by the parties. Neither by this law nor apparently by any statute subsequent to the act of 1663 is a contract declared void for non-observance of legal forms.[450]
In conclusion it may be noted that generally throughout New England neglect of the prescribed forms did not invalidate marriage, though the offender against the law might be punished.[451]It is historically probable, where words of nullity were not contained in the statute, that the irregular contract by simple present agreement, without intervention of a minister or magistrate, was valid. But this is a disputed point which will hereafter be considered in connection with the history of common-law marriage in the United States.[452]
It may be an exaggeration to say that the Mosaic code was thecorpus jurisof the Puritan.[453]But it is certain that the early private law of New England was profoundly influenced by it. The family in many respects took on a patriarchal character. The sway of the house-father, though in the main just, became in theory despotic. Even the conception of marriage as a civil contract gained support from the Jewish law.[454]Our ancestors loved to cite the book of Ruth and other scriptural texts in its favor; and their view of the proper relations of husband and wife, those of parent and child, or those of man and woman before marriage, was derived directly from the biblical ordinances.[455]
Thus "old bachelors," though rare in early New England, were looked upon with disfavor. They were regarded almost as "suspected criminals."[456]Connecticut "in 1636 would not allow any young unmarried man to keep house."[457]A special order of the town of Windsor was necessary, in1682, to permit "Isaac Sheldon and Samuel Rockwell to keep house together, 'so they carry themselves soberly and do not entertain idle persons to the evil expense of time by day or night.'"[458]Hartford taxed "lone-men" twenty shillings a week "for the selfish luxury of solitary living."[459]Even in the eighteenth century a general statute of Connecticut, under the same penalty of twenty shillings a week, forbade any "house-keeper" or "master of a family," without "allowance of the selectmen," to give "entertainment or habitation" to a single person; and "such Bourders, Sojourners, and Young persons" are required to "attend to the Worship of God" in the families where they live and "to be subject to the domestick Government of the same," or else forfeit five shillings for every breach of the law.[460]In Rhode Island in one instance "single persons of three months' residence paid five shillings, while the 'rate of faculties and personal abilities' was left at the discretion of the assessors."[461]According to a New Haven law, in order to "suppress inconvenience" and disorders inconsistent with the "mind of God in the fifth commandment," single persons, not in service or dwelling with their relatives, are forbidden to diet or lodge alone; but they are required to live in "licensed" families; and the "governors" of such families are ordered to "observe the course, carriage, and behaviour, of every such single person, whether he or she walk diligently in a constant lawful imployment, attending both family duties and the publick worship of God, and keeping good order day and night or otherwise."[462]
Similar measures were adopted by the other colonies. The law of Plymouth provides that "wheras great Inconveniencehath arisen by single persons in this Collonie being for themselues and not betakeing themselues to live in well Gourned famillies. It is enacted by the Court that henceforth noe single person be suffered to liue by himselfe or in any family but such as the Celectmen of the Towne shall approue of; and if any person or persons shall refuse or neglect to attend such order as shalbe giuen them by the Celectmen; that such person or persons shalbe sumoned to the Court to be proceeded with as the matter shall require."[463]"Whereas," runs a statute of Massachusetts, "there is a loose and sinful custom of going or riding from town to town, ... oftimes men and women together, upon pretence of going to lectures, but it appears ... merely to drink and revel in ordinaries and taverns, which is in itself scandalous, and it is to be feared a notable means to debauch our youth and hazard the chastity of those that are drawn fourth thereunto: for prevention whereof," it is ordered "that all single persons who merely for their pleasure take such journeys ... shall be reputed and accounted riotous and unsober persons, and of ill behavior ... and shall be committed to prison for ten days, or pay a fine of forty shillings for each offence," unless they can "give bonds and sufficient sureties for good behavior in twenty pounds."[464]Earlier it was decreed that the "Select men of every Town, in the several precincts, and quarters where they dwel, shal have a vigilant eye over their brethren and neighbours, to see, first that none of them shall suffer so much barbarism in any of their families, as not to endeavour to teach, by themselves or others, their children & apprentices, so much learning, as may enable them perfectly to read the english tongue & knowledg of the Capital laws." Once a week children and apprentices are to be catechised "in the grounds and principlesof Religion," or at least taught "some short orthodox catachism without book;" and they are to be bred and brought up "in some honest Lawfull calling ... profitable for themselves and the Common-wealth," if their parents or masters "will not, or cannot train them up in learning to fitt them for higher imployments." If parents and masters neglect their duty, "whereby children & servants become rude, stubborn & unruly, the sayd Select men with the help of two Magistrates or the next County Court for that Shire, shall take such children or apprentices from them," and until they come of age place them with persons who will more strictly look after their government as the law directs.[465]It was further enacted that every town shall order and dispose to service or otherwise all "single persons and inmates" within its borders, anyone feeling aggrieved thereby "to have Liberty to appeale to the next County Court."[466]
These laws were not wholly a dead letter, as shown by the judicial records. Thus on April 2, 1672, "Thomas Henshaw and Thomas Hall, singlemen, being convicted of living from under family government ... , are ordered forthwith to submit themselves" to such government "and to appear at the next court and bring with them certificate thereof."[467]Nevertheless complaint is made that the town officers are negligent. In 1668 the legislature directs the clerk of each shire court to send "to the Constables of the Towns" within the shire an order which they are "enjoyned faithfully to execute." In the preamble it is recited that the neglect of the laws, "as by sad experience from Court to Court abundantly appears, doth occasion much sin and prophaness to increase among us, to the dishonour of God, and the ensnaring of many Children and Servants, by the dissolute lives and practices of such as do live from under FamilyGovernment, and is a great discouragement to those Family Governours, who conscientiously endeavour to bring up their Youth in all Christian nurture, as the Laws of God and this Common wealth doth require: These are therefore ... to require you to acquaint the Select men of your Town, that the Court doth expect and will require, that the said Laws be accordingly attended... : and you are also required to take a list of the names of those young persons ... who do live from under Family Government,viz., do not serve their Parents or Masters, as Children, Apprentices, hired Servants, or Journey men ought to do, and usually did in our Native Country, being subject to their commands and discipline."[468]
The manuscript files of Middlesex show that lists[469]of delinquent single persons were taken by the constables as required; and that some of them were summoned to appear before the court. Following is the "answer" of Robert Williams, whose name is in the list given in the margin:
"I do desire to liue under family gouernment and haue so desired euer sinc my time was out with my master that I liued with and all the time sinc commited myself into mens housis of good report as neer as I could and do desir to walk inofenciue to all men and furder I do hop that the men which I do work with will say as I do if the honered court will desir it indeed I am not a saruant yet do submit myself to family ordor I [will] do as a saruant what els the honeredcourt would haue me do mor I hope I shall be willing to obay the finil power."[470]
In a society where marriages were formed very early, girls often wedding at sixteen or less, and where widows were wooed almost at the bier of the dear departed,[471]it is perhaps not surprising if "old maids" were ridiculed and sometimes despised. A woman became an "antient maid" at twenty-five.[472]In an often quoted passage of hisLife and Errors, John Dunton thus praises a woman who remained single, not from "necessity," but from "choice," and who knew that time is a "dressing-room for Eternity, and therefore reserves most of her hours for better uses than those of the Comb, the Toilet, and the Glass":