A History of Matrimonial Institutions, Vol. 2 of 3

by George Elliott Howard

FOOTNOTES:

[1] Homer, Odyssey, x, 58; xxii, 38. Cf. Meier-Schömann, Der attische Process, II, 510; Geffcken, Ehescheidung vor Gratian, 12; Glasson, Le mariage civil et le divorce, 151; Hruza, Polygamie und Pellikat, 64 n. 7.

[2] Geffcken, op. cit., 15.

[3] Thus Alcibiades "collected a band of men and dragged" his wife Hipparete from the archon, when she attempted to get a divorce on account of his licentiousness: Woolsey, Divorce and Divorce Legislation, 31. Cf. Geffcken, op. cit., 12, 13; and in general on the Grecian law of divorce see Meier-Schömann, Der attische Process, II, 510-13; Müller, Handbuch der Alterthumswissenschaft; Müller and Bauer's Die griech. Privat- und Kriegsalterthümer (1893), 152; Popp, Ehescheidung, 12-18; Tissot, Le mariage, 53 ff.; Glasson, Mariage civil et le divorce, 151-53; Woolsey, op. cit., 25-34. The unfavorable position of the Athenian woman is discussed by Hruza, Die Ehebegründung nach attischem Rechte, 21, 22; Gide, La femme, 63 ff., 74 ff.; Combier, Du divorce, 17 ff.; Tebbs, Essay, 44 ff.

[4] On Jewish divorce in general see Stubbe, Die Ehe im alten Testament, 31, 32; Fraenkel, Grundlinien des mosaisch-talmud. Eherechts, 42 ff.; Meyer, Die Rechte der Israeliten, Athener und Römer, II, 370 ff.; Duschak, Das mosaisch-talmud. Eherecht, 83 ff.; Michaelis, Ehegesetzen Mosis, 358, 359; Lichtschein, Die Ehe nach mosaisch-talmud. Auffassung, 85 ff.; Mielziner, The Jewish Law of Divorce, 115 ff.; Strippelmann, Ehescheidungsrecht, 8 ff.; Tissot, Le mariage, 44 ff.; Popp, Ehescheidung, 37 ff.; Glasson, Le mariage civil et le divorce, 145-50; Tebbs, Essay, 8 ff.; Gide, La femme, 56 ff.; Combier, Du divorce, 20 ff.; Woolsey, Divorce and Divorce Legislation, 10-34; Thwing, The Family, 40-44; Geffcken, Ehescheidung vor Gratian, 14, 16; and especially the admirable book of Amram, The Jewish Law of Divorce, 22 ff. Among controversial works see Luckock, History of Marriage, 16 ff.; Ap Richard, Marriage and Divorce, 54 ff., 62-72; Browne, Marriage of Divorced Persons in Church, 5 ff.

[5] Exod. 21:7-11; as interpreted by Amram, The Jewish Law of Divorce, 55 ff.; Milton's Prose Works, III, 185 ff., 322 ff.

[6] "When a man hath taken a wife, and married her, and it come to pass that she find no favour in his eyes, because he hath found some uncleanness in her; then let him write her a bill of divorcement, and give it in her hand, and send her out of his house. And when she is departed out of his house, she may go and be another man's wife."—Deut. 24:1, 2. The Hebrew Ervath Dabar, here translated "uncleanness," literally "the nakedness of the matter," or "something unseemly," are the doubtful words. The school of Hillel, or the "broad constructionists of the Bible," held "that the husband need not assign any reason whatever for his divorce, and that he may, for instance, if he please, divorce his wife for spoiling his food." On the other hand, the school of Shammai, or the "strict constructionists," held that sexual immorality was the only scriptural ground of divorce: Amram, op. cit., 32 ff. Some writers who accept the view of the school of Shammai for the ancient law admit that, in consequence of moral degeneration, the broad constructionists were right for the days of Christ: see Duschak, op. cit., 83 ff.; Lichtschein, op. cit., 86; Mielziner, op. cit., 118-20. Cf. Geffcken, op. cit., 74; Woolsey, op. cit., 15 ff.; Tissot, op. cit., 49; Tebbs, op. cit., 28-30.

[7] Deut. 22:13-19, 28, 29: The case of the ravisher and that of the husband who falsely accuses the wife of ante-nuptial incontinence; in the latter instance he is not to "put her away all his days," which might be a trifle hard on the woman, unless indeed custom allowed her the right to free herself. See Amram, op. cit., 41 ff. By the Mishnah or oral law other restrictions are gradually imposed: ibid., 45.

[8] Before the compilation of the Mishnah the form of the get "was not yet strictly fixed, it only having been required to contain, besides the date and the names of the parties, the words 'Thou art now free for any man.'" But later custom required a more elaborate form and the "presence of at least ten persons."—Mielziner, The Jewish Law of Marriage and Divorce, 128. Eventually the procedure in ordering, writing, and delivering the bill of divorce became complex, and it took place before a rabbi specially skilled in the law, who thus had opportunity to check hasty or unjust action through his advice or by refusing to deliver the document: see Saalschuetz, Das mosaische Recht, 801; Mielziner, op. cit., 116 ff.; Duschak, Das mosaisch-talmud. Eherecht, 95 ff.; especially Lichtschein, Die Ehe nach mosaisch-talmud. Auffassung, 94 ff.; and Amram, op. cit., 132-204, both giving full details as to the "get." For the form of the "get" see Meyrick, "Marriage," Dict. Christ. Ant., II, 1111; Amram, op. cit., 157; Lichtschein, op. cit., 136; Duschak, op. cit., 143, 144; Mielziner, op. cit., 129; Selden, Uxor ebraica, III, 24: in Opera, IV, 797.

[9] For full details see Amram, op. cit., 47, 48, 111-31; Mielziner, op. cit., 85-89; Stubbe, Die Ehe, 20, 21.

[10] Amram, op. cit., 25, 45, 78 ff.; Lichtschein, op. cit., 87 ff.

[11] In general, on the Roman law of divorce, see Esmein, Mélanges, 17 ff.; Sohm, Institutes, 381-84, 341; Puchta, Institutionen, II, 403; Wächter, Ehescheidungen bei den Römern, 19 ff., 62 ff.; Glasson, Le mariage civil et le divorce, 173 ff.; Rein, Das Privatrecht und der Civilprozess der Römer (Leipzig, 1858), 445 ff., giving a bibliography of the older literature; Popp, Ehescheidung, 18 ff.; Tissot, Le mariage, 56 ff.; Bennecke, Ehebruch, 2 ff.; Combier, Du divorce, 29 ff.; Tebbs, Essay, 55 ff.; Zhishman, Das Eherecht der orient. Kirche, 4 ff.; Woolsey, Divorce and Divorce Legislation, 34-49; Geffcken, Ehescheidung vor Gratian, 9-12; Strippelmann, Ehescheidungsrecht, 31 ff.

[12] By confarreatio and coemptio the man acquired the manus at the nuptials; but by the usus, or the form through which transition was made from the strict to the free marriage, he seems to have gained it only by a year's prescription: when the woman neglected her privilege of trinoctium. In the meantime, before the manus was acquired, it is a question whether the woman was legally uxor or merely uxoris loco: Karlowa, Die Formen der röm. Ehe, 68 ff.; Rossbach, Die röm. Ehe, 156 ff., 243 ff.; Sehling, Die Unterscheidung der Verlöbnisse im kanon. Recht, 5; Sohm, Institutes, 263; Glasson, Le mariage civil et le divorce, 161, 174; Hölder, Die röm. Ehe, 8 ff.; Geffcken, Ehescheidung vor Gratian, 10 n. 4, who cites other authorities; Wächter, Ehescheidungen bei den Römern, 28 ff.

[13] Whether the confarreatio or sacramental marriage was originally indissoluble even for the man is uncertain; but later it could be dissolved by diffareatio: Geffcken, Ehescheidung vor Gratian, 11; Sohm, Institutes, 381; Fustel de Coulanges, Ancient City, 60; Thwing, The Family, 37; Glasson, Le mariage civil et le divorce, 174, 179; Rossbach, Die röm. Ehe, 128 ff.; and Esmein, Mélanges, 17 ff., who believes at first confarreatio was indissoluble. The coemptio, or sale-marriage, was dissolved by remancipation, but only in a family council including the wife's relatives; but whether the usus was dissolved in the same way or by prescription we are not informed: Geffcken, op. cit., 11; Rossbach, op. cit., 131; Woolsey, Divorce and Divorce Legislation, 37, 38; Rein, Privatrecht, 456; Kuntze, Institutionen (Leipzig, 1869), I, § 776. For the very restricted legal grounds of divorce under the sacramental marriage see Unger, Die Ehe, 71; and in general compare Wächter, Ehescheidungen, 62 ff., 94 ff.

[14] After the second Carthaginian war free marriage, or matrimonium sine conventione in manum mariti, until that time regarded only as matrimonium juris gentium, was accepted as matrimonium iustum for plebeians as well as patricians; and it rapidly became the only form observed among the Romans, except that confarreatio was preserved for the flamines; while the usus, though not entirely abolished, was deprived of real significance by a senatus consultum under Tiberius which abrogated the effects of manus in the domain of private law: Geffcken, op. cit., 11, 12; ap. Tacitus, Annales, IV, 16; Zhishman, Das Eherecht der orient. Kirche, 5. On free marriage see Wächter, op. cit., 77 ff., 95 ff.; Rossbach, op. cit., 42-62, 182 ff., 242; Karlowa, Die Formen der röm. Ehe, 79 ff.; Esmein, Le mariage en droit canonique, II, 46; Sohm, Institutes, 263, 267, 268; Unger, Die Ehe, 72 ff.

[15] Maine, Ancient Law, 150.

[16] Freedom of divorce in matrimonium sine manu reacted upon the manus marriages to the extent that the causes of dissolution were increased in number.

"The famous divorce of Sp. Carvilius Ruga [ca. 520 A. U. C.] is not only the first Roman divorce in general, but also the first dissolution of a manus marriage in which no fault but merely a vitium corporis of the woman was assigned" as ground of action.—Geffcken, op. cit., 12. But it is very doubtful whether this is really the first divorce among the Romans: Wächter, op. cit., 82 ff.; Combier, Du divorce, 42 ff. The time is uncertain. According to Dionysius, the divorce occurred in 520 A. U. C.; while Aulus Gellius, Noctes atticae, IV, 3, § 2, xvii, 21, gives confusingly 519 and 523 as the date. Compare Wächter, op. cit., 78 ff.; Savigny, "Ueber die erste Ehescheidung in Rom," Abhand. d. k. Akad. d. Wis. in Berlin, 1814-16 (Berlin, 1818); Rein, Privatrecht, 450 ff.; Karlowa, Rechtsgeschichte, 188; Glasson, Le mariage civil et le divorce, 175; Woolsey, Divorce, 39; Thwing, The Family, 36; Popp, Ehescheidung, 22; Langeron, Du divorce, 17.

[17] Cicero, De orat., I, 40, 56: Geffcken, op. cit., 12.

[18] By the Lex Julia de adulteriis of ca. 18 B. C.: Geffcken, op. cit., 15; Jörs, Die Ehegesetze des Augustus, 36-39. For the best analysis of the Lex Julia, with an account of the preceding history, see Esmein, Mélanges, 71-169; and compare Bennecke, Ehebruch, 2-6.

[19] Geffcken, op. cit., 15.

[20] By the Lex Julia et Papia Poppaea of 9 B. C.; but even this restriction was narrowed in various ways: Geffcken, op. cit., 15; Wächter, op. cit., 143 ff. It should be noted, however, that the husband was compelled to put away a wife guilty of adultery. On this law see Jörs, Die Ehegesetze des Augustus, 49 ff.; Combier, Du divorce, 55.

[21] "Scheidung zufolge friedlicher Übereinkunft (divortium consensu) sowie einseitige Scheidung aus einem rechtmässigen Grunde, ohne dass eine Verschuldung des entlassenen Gatten vorlag (divortium bona gratia), war durchaus erlaubt und hatte für keinen der sich Trennenden nachteilige Konsequenzen, bei willkürlicher Scheidung (repudium iniustum) traf ihren Urheber, bei der durch Schuld des einen Teils, namentlich durch Ehebruch veranlassten Scheidung den Schuldigen Nachteil an Geld und Gut."—Geffcken, op. cit., 15, 16; ap. Ulpian, VI, 13. See Rein, Das Privatrecht, 433 ff. Forfeiture of property rights for adultery was prescribed by the Lex Julia de adulteriis: Esmein, Mélanges, 114; Unger, Die Ehe, 86; Glasson, Le mariage civil et le divorce, 178, 179. On the legislation of Augustus compare Woolsey, Divorce, 47, 49, 88, 89, 92-94; and Jörs, Die Ehegesetze des Augustus.

[22] Glasson, op. cit., 176, 178. Poisoning became a frequent substitute for divorce, especially where marriage by confarreatio had been contracted: ibid., 177; Woolsey, op. cit., 42, 43.

[23] Aulus Gellius, Noctes atticae, I, 6.

[24] "We find Cicero repudiating his wife Terentia, because he desired a new dowry; Augustus compelling the husband of Livia to repudiate her when she was already pregnant, that he might marry her himself; Cato ceding his wife, with the consent of her father, to his friend Hortensius, and resuming her after his death; Mæcenas continually changing his wife; Sempronius Sophus repudiating his wife, because she had once been to the public games without his knowledge; Paulus Æmilius taking the same step without assigning any reason, and defending himself by saying, 'My shoes are new and well made, but no one knows where they pinch me.'... Christians and Pagans echoed the same complaint. According to Tertullian 'divorce is the fruit of marriage.' Martial speaks of a woman who had already arrived at her tenth husband; Juvenal, of a woman having eight husbands in five years. But the most extraordinary recorded instance of this kind is related by St. Jerome, who assures us that there existed at Rome a wife who was married to her twenty-third husband, she herself being his twenty-first wife."—Lecky, Hist. of European Morals, II, 306, 307, who cites the authorities in the margin. For other illustrations see Woolsey, op. cit., 39-49; Thwing, The Family, 36 ff.

[25] The evidence of the satirists, jurisconsults, and other writers regarding the abuses of divorce, with full citation, is collected by Marquardt, Das Privatleben der Römer, I, 66-80; and Glasson, op. cit., 175 ff. See, for example, Juvenal, Sat., XI, 229; VI, 230; Plautus, Mercat., 805; Quintilian, V, 11, 35.

[26] Lecky, Hist. of European Morals, II, 307. Cf. Seneca, De Benef., III, 16; also Plutarch, Lives (London, 1890), 526, 531, 532 (Cato of Utica).

[27] On the depravation of Roman society see Unger, Die Ehe, 80 ff.; Combier, Du divorce, 51 ff.; Popp, Ehescheidung, 23 ff.

[28] Lecky, op. cit., II, 307, 308.

[29] The principal passages are Matt. 5:31, 32; 19:3-12; Mark 10:2-12; Luke 16:18; 1 Cor. 7:10-16; Rom. 7:2,3.

In general, on the interpretation of these passages, consult Geffcken, Ehescheidung, 16 ff.; Esmein, Le mariage en droit canonique, II, 48 ff.; Freisen, Geschichte des can. Eherechts, 769, 770; Friedberg, Lehrbuch, 337 ff.; Loening, Geschichte d. deutschen Kirchenrechts, II, 606; Perrone, De mat. Chr., III, 147-219; Roskovány, De mat. in ecc. cath., II, 61-187; Meyrick, in Dict. Christ. Ant., II, 1110; Zhishman, Das Eherecht der orient. Kirche, 96 ff., 734; Gide, La femme, 169 ff.; Thwing, The Family, 45 ff.; Woolsey, Divorce, 50-85; Popp, Ehescheidung, 51 ff.; Tebbs, Essay, 74 ff.; Strippelmann, Ehescheidungsrecht, 11 ff.; especially Milton, "Doctrine and Discipline of Divorce," Prose Works, III, 180 ff.; idem, "Tetrachordon," ibid., 322 ff.; Mentzer, De conjugio, 190 ff.; Sarcerius, Vom heil. Ehestande, 161 ff.; and Bucer, in Milton's Prose Works, III, 296, passim. Partisan writers are Hovey, The Scriptural Law of Divorce; Caverno, Divorce, 29 ff.; Ap Richard, Marriage and Divorce, 77-112; Luckock, Hist. of Marriage, 44-79; Browne, Marriage of Divorced Persons in Church, 27 ff.

[30] On the use here of the generic term porneia (fornication), instead of the specific moicheia (adultery), see Milton, "Tetrachordon," Prose Works, III, 394 ff.; also the labored argument of Woolsey, Divorce, 60-70; Zhishman, Das Eherecht der orient. Kirche, 578 ff.; Meyrick, in Dict. Christ. Ant., II, 1110; Gray, Husband and Wife, 95, 104 ff.; Luckock, Hist. of Marriage, 56, 57; Ap Richard, Marriage and Divorce, 80; Selden, Uxor ebraica, III, 23, 27.

The scope of porneia is of historical importance; for some of the early Fathers and some of the leaders of the Reformation by giving it an allegorical meaning sought to multiply the scriptural grounds of divorce. Cf. Freisen, Geschichte des can. Eherechts, 770; also Milton, in Prose Works, III, 255 ff., 394 ff. In general read the elaborate essay of Morgan, Marriage, Adultery, and Divorce, II, 394-550, on porneia.

[31] Matt. 19:4-6; cf. 5:31, 32, and Mark 10:6-9. This doctrine is laid down in reply to the Pharisees who "tempting him" ask: "Is it lawful for a man to put away his wife for every cause?"—doubtless having in mind the teaching of the school of Hillel. When Jesus declares that "what therefore God hath joined together, let not man put asunder," they further demand: "Why did Moses then command to give a writing of divorcement, and to put her away?" To which "he saith unto them, Moses because of the hardness of your hearts suffered you to put away your wives; but from the beginning it was not so." Thus, it may be suggested, Jesus admits that legally the followers of Hillel—the "broad constructionists"—are right in their interpretation; while morally he sides with the school of Shammai. See n. 2, p. 13, above. Cf. however, the specious assertions of Woolsey, Divorce, 58.

[32] By the Jewish law, of course, the woman had no right to divorce her husband for any cause; the man putting away his wife could take other wives; and the woman divorced for adultery—the only cause of separation contemplated by Jesus—was stoned to death. Cf. Geffcken, Ehescheidung, 17; and Woolsey, op. cit., 59 ff., 70 ff., who holds that the words of Jesus apply to the wife equally with the man, and that the innocent, though not the guilty, party may marry again, sustaining his position, as he fancies, by reference to Paul in 1 Cor., chap. 7. For a fair sample of theological special pleading see Browne, Marriage of Divorced Persons in Church, 30 ff.

[33] 1 Cor. 7:8-16.

[34] The Catholic doctrine as finally settled. Woolsey, assuming that this is a case of separation of two "believers" for some "dissension" or other cause less than adultery (which he holds allows a second marriage), says, "we have here an actual separation a mensa et toro without a separation a vinculo matrimonii. This third state between absolute divorce and full marriage union has then the sanction of the Apostle—not of course as something desirable, but probably as a kind of barricade against divorce and a defense of the Saviour's commandment. It may be introduced therefore into the law of Christian lands."—Divorce, 73, 74.

[35] 1 Cor. 7:12-16.

[36] Thus Augustine (De adult. conjug.) confesses the extreme difficulty of reconciling the scriptural texts relating to divorce and second marriage: "His ita pro meo modulo pertractatis atque discussis quaestionem tamen de conjugiis obscurissimam et implicatissimam esse, non nescio." On this Freisen (Geschichte des can. Eherechts, 772, 773) remarks, "es wird ihm hierin gewiss jeder zustimmen, der die Worte der hl. Schrift durchliest."

[37] Geffcken, Ehescheidung, 18-20. In general on the views of the early Fathers see also Freisen, Geschichte des can. Eherechts, 770 ff.; Esmein, Le mariage en droit canonique, II, 48-55; Meyrick, in Dict. Christ. Ant., II, 1110; Woolsey, Divorce, 86 ff., 107 ff.; Popp, Ehescheidung, 54 ff.; Greve, Ehescheidung, 190 ff.; Observations on Mar. Laws, 330 ff.; Moy, Eherecht der Christen, 10-45; Zhishman, Das Eherecht der orient. Kirche, 99-102; Luckock, Hist. of Marriage, 80-153; Tebbs, Essay, 125 ff.; Milton, "Tetrachordon," Prose Works, III, 414 ff.; Burnet, Hist. of the Reformation, I, 26-133, 330 ff., who discusses Henry VIII.'s divorce from Queen Katherine and summarizes the results of Cranmer's examination of the Fathers and early canons in connection with the Northampton case. Burnet's summary is also given by Geary, Marriage and Family Relations, 577, 578.

For the Roman Catholic view see particularly Cigoi, Unauflösbarkeit der ch. Ehe, 1 ff.; Roskovány, De mat. in ecc. cath., II, 1 ff., 187 ff., 198 ff.; Perrone, De mat. christ., III, 221 ff.

[38] Cf. Geffcken, op. cit., 18.

[39] Esmein, op. cit., I, 220 ff.; II, 268 ff.

[40] Or "fornication," the porneia of Matthew.

[41] Cf. the sources cited by Freisen, Geschichte des can. Eherechts, 770; Meyrick, in Dict. Christ. Ant., II, 1110. This view is taken by Augustine, De serm. dom. in monte, c. xvi; but he doubts its correctness in the "Retractions;" Meyrick, loc. cit. Tertullian shows also that mishandling and insult, as well as adultery, are considered sufficient grounds of separation: Geffcken, Ehescheidung, 20, 21. See however, Perrone, De mat. christ., III, 231 ff.

[42] Geffcken, op. cit., 21. Cf. Freisen, op. cit., 770, who says: "Man hatte, wie es scheint, hier eine Scheu sich durchaus klar zu erklären. Sicher ist jedoch das eine, dass sich keine Stelle findet, welche die Wiederverheiratung in solchem Falle [adultery] als schriftgemäss verteidigt hätte. Vielleicht wurden die Kirchenväter bei ihrer Ansicht von der alten Anschauung geleitet, nach welcher die zweite Ehe in jener Zeit überhaupt gemissbilligt, als honesta fornicatio, angesehen wurde."

[43] Thus the strict view is taken by Justin Martyr, Clement of Alexandria, Tertullian, and Cyprian. They all declare, says Freisen, that "whoever marries a divorced person commits adultery;" but he adds, "Dass dieser Ehebruch auch dann statthabe, wenn die erste Ehe wegen Ehebruch geschieden, sagt meines Erachtens keiner der genannten Kirchenväter, ebenso wenig wie sie sagen, dass in solchem Falle die Wiederverheiratung erlaubt sei."—Op. cit., 770, 771. Cf. Loening, op. cit., 607; who is criticised by Geffcken, op. cit., 19 n. 1; also Esmein, op. cit., II, 49 ff.; Perrone, op. cit., III, 243 ff.; Woolsey, op. cit., 109, 110; Zhishman, op. cit., 101.

[44] Tertullian, "On Monogamy," in Donaldson's Ante-Nicene Fathers, IV, 66, 67. See also Geffcken, op. cit., 19-21.

[45] Esmein, op. cit., II, 51. Chrysostom (De libello repudii, c. iii), Asterius of Amasea, Theodoret, and Hilarius of Poitiers all appear to hold that marriage is absolutely dissolved by adultery, from which the right of second marriage for both parties logically follows: ibid., II, 50, 51; Zhishman, op. cit., 101, 102; Geffcken, op. cit., 31.

[46] Freisen, op. cit., 771. Cf. also Greve, Ehescheidung, 195, 208 ff. (second marriage in general); Cigoi, Unauflösbarkeit, 23 ff.; Geffcken, op. cit., 22; Loening, op. cit., II, 608.

[47] The rubric of Canon 10 of the council runs: "Ut is, cujus uxor adulteravit, aliam illa vivente non accipiat."—Freisen, op. cit., 771.

[48] The canon itself provides: "De his, qui conjuges suas in adulterio deprehendunt, et iidem sunt adolescentes fideles et prohibentur nubere, placuit, ut, in quantum possit, consilium iis detur, ne viventibus uxoribus suis licet adulteris alias accipiant."

[49] This disparity is variously explained. Freisen, op. cit., 771, sees here the influence of the Roman law (c. 1, Cod. ad leg. Jul. [ix-9]), which he alleges judges the man more leniently than the woman; but Geffcken, op. cit., 22, 23, explains it more reasonably as the result of a difference of local practice, since such a discrimination between man and woman "the church had thus far zealously opposed;" and, besides, he insists that the passage from the code is not in point. It should be remembered, also, that some of the early Fathers, as we have seen, followed the illiberal principles of the Mosaic law discriminating against the woman; this prejudice may have prevailed at the Council of Arles. On these councils see also Esmein, op. cit., II, 55, 56; Loening, op. cit., II, 609 ff.

[50] Esmein, op. cit., II, 53. "Mais c'est vraiment dans saint Augustin que l'on voit établie pour la première fois une relation logique et nécessaire entre le sacrement et l'indissolubilité."—Ibid., I, 65. Cf. Woolsey, op. cit., 110; Zhishman, op. cit., 124.

[51] Esmein, op. cit., II, 51, 52, who collects the important passages from Augustine's De adult. conjug., and his other works. Cf. Freisen, op. cit., 772-74; Woolsey, op. cit., 69,110-12.

[52] Freisen, op. cit., 772-74; Woolsey, op. cit., 112 (Jerome). See Chrysostom, Homilia, XIX, in 1 Cor., chap. 7, as opposed to his De libello repudii, c. iii, already cited. Hieronymus, Epist. 77 ad Oceanum de morte Fabiolae, c. 3, thus expresses the doctrine of equality of the sexes: "Apud nos, quod non licet feminis, atque non licet viris." Such also is the view of Lactantius: Woolsey, op. cit., 116.

[53] "Placuit, ut secundum evangelicam et apostolicam disciplinam neque dimissus ab uxore, neque dimissa a marito alteri conjungantur, sed ita permaneant, aut sibimet reconcilientur. Quod si contempserint ad poenitentiam redigantur": contained in Decret. Grat., c. 5 C. 32 qu. 7. Cf. Freisen, op. cit., 774; Esmein, op. cit., II, 56, 57.

[54] Freisen, op. cit., 774, 775; Esmein, op. cit., II, 59.

[55] "Verily, if her husband do not take her back, he sins, and allows himself to commit a great sin; he ought to take back the sinning woman who has repented; but ought not to do this often. For there is one repentance for the servants of God."— Hermas, Lib. II, mandat. iv, c. 1; Woolsey's translation, Divorce, 108. Thus Hermas understands Paul in 1 Cor. 7:11 to refer to adultery as the cause of separation. Cf. Geffcken, op. cit., 18, 19; Freisen, op. cit., 770: Woolsey, op. cit., 107-9.

[56] Basilius, Epist. ad Amphiloch., c. 9: "Quare quae reliquit, est adultera, si ad alium virum accessit, qui autem relictus est, dignus est venia et, quae una cum eo habitat, non condemnatur." Cf. Freisen, op. cit., 772; Geffcken, op. cit., 30; Esmein, op. cit., II, 55; Perrone, op. cit., III, 263. Epiphanius (Penarion, lib. 59, c. 4) takes a similar position; Freisen, op. cit., 772.

[57] Jerome, Ad Oceanum, cc. iii, iv. Cf. Woolsey, op. cit., 112, 113; Esmein, op. cit., II, 55.

[58] Origines, Comment. in Matt., tom. xiv, no. 23. He declares this practice to be against the Scriptures; but still he is not inclined to judge severely, as it has been adopted to avoid worse evils. Cf. Freisen, op. cit., 771; Esmein, op. cit., II, 54

[59] Augustine, De conjug. adult., II, 17. See Freisen, op. cit., 772. Augustine also admits that the man who contracts a new marriage after putting away a guilty wife commits merely a venial sin: De fide et operibus, c. xix; Esmein, op. cit., II, 53; Woolsey, op. cit., 115.

[60] Woolsey, op. cit., 92, 93: Paulus, in Dig., XLV, 1, 134; Cod., viii, 39, 1, 2, de inutil. stip.

[61] The requirement of seven witnesses; the case of the freedwoman marrying her patron; and the obligation of the husband, under penalty, to put away a guilty wife: see above, p. 16.

[62] Woolsey, op. cit., 94. Cf. on the survival of the principles of Roman law, Geffcken, op. cit., 24, 25.

[63] Nov., 117, c. 10.

[64] Geffcken, op. cit., 25.

[65] Nov., 140; cf. Geffcken, loc. cit.

[66] Geffcken, op. cit., 25: L. 1. C. Theod. de repud., 3, 16. Cf. also Woolsey, op. cit., 96, 97. On the legislation of Constantine and his successors see Wächter, Ehescheidungen, 201 ff., 259 ff.; Glasson, Le mariage civil et le divorce, 203 ff.; Esmein, Mélanges, 157 ff.; Luckock, Hist. of Marriage, 112 ff.; Combier, Du divorce, 81 ff.; Tissot, Le mariage, 88 ff.; Tebbs, Essay, 139 ff.; Bennecke, Ehebruch, 16 ff.; Hennet, Du divorce, 25 ff.; Popp, Ehescheidung, 62 ff.

[67] Woolsey, op. cit., 97; Wächter, op. cit., 207 ff.

[68] Constantine allowed the wife the right of divorce whose husband had been four years absent in the army without sending her word. Justinian first raised the period of waiting to ten years, and then entirely abolished divorce for this cause. "Dagegen blieb die Scheidungsbefugniss bestehen für den Fall der Impotenz, wobei jedoch nach Justinians Bestimmung eine Probezeit von zwei, später von drei Jahren eingehalten werden sollte." A vow of chastity or imprisonment was also counted a legal ground of separation by Justinian: Geffcken, op. cit., 27. Cf. also Glasson, Le mariage civil et le divorce, 205, who appears to confuse divorce ex consensu and bona gratia.

[69] L. 2, C. Theod. de dotib., 3, 13. Cf. Geffcken, op. cit., 25; Wächter, op. cit., 202, 213.

[70] L. 2, C. Theod. de repud., 3, 16. Cf. Wächter, op. cit., 215, 216.

[71] L. 8, C. de repud., 5, 17.

[72] Woolsey, op. cit., 98, 99; cf. Geffcken, op. cit., 25, 26. The woman is allowed fourteen causes of divorce and the man but six; but in effect they are nearly equivalent, except as indicated: see Wächter, op. cit., 216 ff.

[73] See the summary of the act in Geffcken op. cit., 25, 26; and Wächter, op. cit., 218-20.

[74] L. 34, § 1, Dig., XLVIII, 5, ad. leg. Jul.: L. 101, Dig. dev. sign. "It may need to be said that only a crime to which a married woman was a party could be called adulterium. The Romans held that the jus tori pertained to the husband. He could not commit this crime against his wife."—Woolsey, op. cit., 90, note. Cf. Freisen, Geschichte des can. Eherechts, 617.

[75] "Constantine the Great imposed death with confiscation of goods on the adulterer. His sons punished the adulteress with burning and took away from her paramour the privilege of appeal, but this seems to have been only a case of extraordinary and temporary legislation. Under Valentinian the guilty woman was again sentenced to death. Justinian's legislation shut up the woman in a cloister, making it illegal for her husband to take her back within two years. If the parties were not reconciled at the end of this term the marriage was dissolved, and the woman's imprisonment in the cloister was perpetual. As for the offending man, he was visited with death, but not with confiscation of goods, if he had near relatives in the direct line."—Woolsey, op. cit., 91, 92; Rein, Criminalrecht, 848-52; Nov., 134, § 10. In general, on the development of the law relating to adultery, see Freisen, op. cit., 615-35, 830 ff.; Esmein, Le mariage en droit canonique, I, 102, 103, 111, 384-90; II, 61, 62, 90 ff., 125, 296 ff.; idem, Mélanges, 157 ff.; Bennecke, Ehebruch, 13-33.

[76] Nov., 117, cc. 8, 9. Cf. Geffcken, op. cit., 26, 27; Woolsey, Divorce, 99, 100; Wächter, op. cit., 206, 207, 222 ff.

[77] On divorce bona gratia see Wächter, op. cit., 224 ff.

[78] Cf. the conclusions of Geffcken, op. cit., 28, 29; Woolsey, op. cit., 101.

[79] Geffcken, op. cit., 33, 34, 43, 44. With this view Jeaffreson, Brides and Bridals, II, 295, 296, agrees: The Anglo-Saxon wife, he says, could be repudiated at will by her "master." But many writers hold that divorce by mutual consent is recognized in the ancient Teutonic law. Thus Heusler, Institutionen, II, 291, 292, declares that there was absolute liberty of separation by agreement, and that one-sided divorce (by Kündigung) was very restricted. A similar opinion is held by Zoepfl, Deutsche Rechtsg., III, 37, 38; Pollock and Maitland, Hist. of English Law, II, 390; Glasson, Le mariage civil et le divorce, 185 ff., 195; Freisen, Geschichte des can. Eherechts, 779-81; Loening, Geschichte des deut. Kirchenrechts, II, 617; Schroeder, Rechtsgeschichte, I, 174. In general, cf. Brunner, Rechtsgeschichte, 302 ff.; Weinhold, Deutsche Frauen, II, 43 ff.; Grimm, Rechtsalt., 454; Walter, Deutsche Rechtsgeschichte, I, 134-36; Glasson, Histoire du droit et des inst. de l' Angleterre, I, 119, 120.

[80] For examples among Franks and Alamanni see Meyrick, in Dict. Christ. Ant., II, 1111.

[81] Geffcken, op. cit., 34, 43, 44. "Das erste Volksrecht, welches die freiwillige Scheidung ganz analog dem römischen divortium communi consensu gestattet, ist der seiner Entstehung nach in die erste Hälfte des 7. Jahrhunderts fallende pactus Alamannorum."—Ibid., 44. The first formulary (libellum or libellus repudii) for a divorce by mutual consent in the folk-laws appears in the formulae Andegavenses, a collection made in the last quarter of the same century: ibid., 44; also Brunner, Rechtsgeschichte, 403, 404; Freisen, op. cit., 778, 779. The following formulary for such a divorce is taken from Marculf (II, 30) by Glasson, op. cit., 186, though it may have been intended for the Roman population living on Frankish territory: "Idcirco dum et inter illo et conjuge sua ... discordia regnat ... placuit utriusque voluntas ut se a consortio separare deberent.... Propterea has epistolas inter se uno tenore conscriptas fieri et adfirmare decreverunt, ut unusquisque ex ipsis, sive ad servitium Dei in monasterio aut ad copulam matrimonii se sociare voluerit, licentiam habeat."

[82] Lex Visig., III, 6, c. 2 (adultery); Lex Burgund., 34, 3 (adultera, maleficia, sepulcrorum violatrix): Freisen, op. cit., 779.

[83] Pact. Alam., III, 3; Lex Bajuw., VII, 14; Lex Burg., tit. 34, c. 2; Lex Vis., III 6, c. 2; Freisen, op. cit., 779.

[84] Wilda, Strafrecht, 821 ff. Cf. Walter, Deutsche Rechtsgeschichte, II, 398 ff.; Glasson, Hist. du droit, I, 120.

[85] Geffcken, op. cit., 33. The following provision of the old English law illustrates this principle in all its harsh reality: "If a freeman lie with a freeman's wife, let him pay for it with his wer-geld, and provide another wife with his own money, and bring her to the other." Here doubtless the guilty woman had been slain: Laws of Æthelberht, 31: Haddan and Stubbs, Councils, III, 45. For the same offense with an "esne's" wife, sec. 85 of the same laws requires a man to "make two-fold bot": ibid., III, 50. Cf. also secs. 10, 11: ibid., III, 43; Cleveland, Woman under the English Law, 9, 51 ff. (adultery and divorce).

[86] Geffcken, op. cit., 33. Cf. in general Tacitus, Germania, c. 19; Grimm, Rechtsalt., 454; Freisen, Geschichte des can. Eherechts, 779; Weinhold, Deutsche Frauen, II, 25-27, who shows that the guilty woman's paramour might lawfully be slain by the husband when seized in the act.

For discussion of the customs of the early Germans regarding the punishment of adultery and summaries of the provisions of the folk-laws, the capitularies, and later legislation on the subject see Rosenthal, Rechtsfolgen des Ehebruchs, 40 ff.; and Bennecke, Die strafrechtliche Lehre vom Ehebruch, 82 ff. Of some service is Heller, Ueber die Strafe des Ehebruchs, 17 ff., passim.

[87] On the Lex romana Burgundionum, the Lex romana Visigothorum, and the Lex romana curiensis, see Freisen, op. cit., 776-78. Cf. also Geffcken, op. cit., 42, 43. The folk-laws are clearly reviewed by Meyrick in Dict. Christ. Ant., II, 1111.

[88] Boehmer, Ehegesetze im Zeitalter Karls des Grossen, 89 ff., summarizes the provisions of the folk-laws and capitularies regarding divorce, enumerating twelve different causes of separation, some of them being properly grounds of nullity.

[89] See Geffcken's interesting discussion of tit. 34, c. 4, Lex Burgundionum, in Ehescheidung, 35-38. He shows, following Loening, Geschichte des deut. Kirchenrechts, II, 619, note, that the clause in question is of later origin than the rest of tit. 34, probably under Christian influence. Cf. Glasson, Le mariage civil et le divorce, 187, 188. For the text see Salis's edition of the Burgundian laws in Mon. Germ. hist.: Legum, sec. i, tom. ii, p. 68; and compare sec. xxiv, "De mulieribus Burgundiis ad secundas aut tertias nuptias transeuntibus," ibid., pp. 61-63; and sec. lxviii, "De adulteriis," ibid., p. 95.

[90] The Lex Bajuwariorum, near the end of the eighth century, likewise admits divorce only for the one cause: Geffcken, op. cit., 46.

[91] Lex Visig., lib. iii, tit. iv, c. 3; tit. v, c. 5; tit. vi, c. 2. For sodomy or for forcing her to adultery, the wife may put away the husband and marry again. Cf. Geffcken, op. cit., 38-40; Glasson, op. cit., 187. There is a similar provision in the Longobard code: Geffcken, op. cit., 41. As a general rule, the woman is not allowed one-sided divorce; indeed, for attempting such a separation, the Lex Burgund., tit. xxxiv, c. 1, prescribes the death penalty: cf. Freisen, op. cit., 780, who holds that the woman cannot by German law have the right of one-sided divorce, because she cannot dissolve the mund which belongs solely to the man; and he contends against Sohm, Schroeder, and Loening that when the woman, as in exceptional cases cited, has the right of separating, it is not she who dissolves the marriage, but the law indirectly by depriving the man of the mund.

[92] So by the Burgundian, West Gothic, and Longobard laws: Geffcken, op. cit., 35, 39, 41.

[93] C. 6 of the laws of the Longobard Grimoald appended to the Edictus Rothari in 668, after acceptance of orthodox Catholicism, permits the wife not guilty of a culpa legitima to leave the husband who keeps permanently in the house a concubine whom he prefers to the wife. It may be noted that occasional fornication is not mentioned; and that c. 8 of the law assumes as a rule that there will be a reconciliation: Geffcken, op. cit., 41, 42. Cf. Freisen, op. cit., 780, who holds that, according to c. 8 of the Lex Grimoald., bigamy does not allow the wife a divorce.

[94] Esmein, Le mariage en droit canonique, II, 59; Freisen, op. cit., 782; Luckock, Hist. of Marriage, 154-72.

[95] On Gregory's two decisions see Esmein, op. cit., II, 59, 60; and Freisen, op. cit., 331 ff., 782, who tries to explain away the contradiction, claiming that here is a case of declaring a marriage void ab initio. Cf. Perrone, De mat. christ., III, 332 ff.; Loening, Geschichte des deut. Kirchenrechts, II, 623.

[96] Esmein, op. cit., II, 57, 58.

[97] Ibid., 57; Freisen, op. cit., 781.

[98] Decret. Grat., c. 1 C. 33 qu. 2. Cf. Freisen, op. cit., 781; Esmein, op. cit., II, 57.

[99] The statements of the text are probably sustained by Æthelberht, 31, 77-83: in Haddan and Stubbs, Councils, III, 45, 49; Thorpe, Anc. Laws, I, 11, 33, taking into account the usual effects of wife-purchase. Cf. however, Jeaffreson, Brides and Bridals, II, 294-98, who holds that among the pagan Britons and Anglo-Saxons divorce may be described as "simple repudiation of wives at the will of their masters." In the tenth century, he adds, Howell Dha, sovereign of Wales, "decreed that a husband might righteously eject from his home the wife who had given a single kiss to any man but himself." See also Glasson, Le mariage et le divorce, 195, whose references to the laws of Æthelberht do not seem to warrant all his conclusions; also his Histoire du droit, I, 120; and Pollock and Maitland, Hist. of Eng. Law, II, 390. In general see Rosenthal, Rechtsfolgen des Ehebruchs, 55 ff.

[100] Haddan and Stubbs, op. cit., III, 118. Esmein, op. cit., II, 57, regards the last clause as merely advising the man not to marry again; and Freisen, op. cit., 782, thinks it not quite certain that it applies to the case of separation for adultery. Cf. also Luckock, Hist. of Marriage, 167-69; and Cigoi, Unauflös. der ch. Ehe, 79.

[101] Law of Northumbrian Priests, secs. 35, 64, 65: Thorpe, Anc. Laws, II, 296, 300. Cf. Luckock, op. cit., 170, 171; Johnson, Canons, I, 950, 35, 54.

[102] Johnson, op. cit., I, 963, 27.

[103] Ibid., 1009, 8.

[104] The ecclesiastical laws of Howell the Good of Wales (928) show more clearly, perhaps, than is done anywhere else the way in which the church was often constrained to put up with barbarian custom. One-sided divorce with remarriage is allowed each party, under penalty for repudiation without legal cause. If the husband desert the wife within seven years, he must pay her the dower (agweddi), the maiden-fee (cowyll), and the maiden-dues (gobyr) for the lord. "If after seven years, he leave her; let all be shared between them, unless privilege should give precedence to the husband: two parts of the children go to the husband, and the third to the mother. The eldest and the youngest go to the father." "A man is free to forsake his wife, if she notoriously attach herself to another man; and she is to obtain nothing of her right excepting the three things [cowyll, argyvren (paraphernalia), wyneb-werth (fine for husband's fornication)] which are not to be taken from a woman, and the seducer is to pay to the lawful husband his saraad," or injury fine. "If a man deserts his wife unlawfully and takes another; the rejected wife is to remain in her house until the end of the ninth day; and then, if she be suffered to depart entirely from her husband, everything belonging to her is to go in the first place out of the house; and then she is to go last out of the house, after all her property; after that, on bringing the other into the house, he is to give dilysdawd (assurance) to the first wife; because no man, by law, is to have two wives." "Whoever shall leave his wife, and shall repent leaving her, she having been given to another husband; if the first husband overtake her with one foot in the bed and the other out; the first husband by law is to have her." "For three causes, if a woman desert her husband, she is not to lose her dower: for leprosy; want of connection; and bad breath."—Haddan and Stubbs, Councils, I, 246-51.

[105] Geffcken, op. cit., 45, who gives, 44-46, 52-55, an interesting discussion of the reasons for the absence of divorce regulations during the Merovingian era.

[106] Esmein, op. cit., II, 58, 64; Geffcken, op. cit., 55.

[107] The dates are uncertain. In general, on these synods see Freisen, op. cit., 782-84; Geffcken, op. cit., 55-57; and especially Esmein, op. cit., II, 64-69; who gives a clear summary of their decrees. Cf. Perrone, De mat. christ., III, 332, 338 ff.

[108] Esmein, op. cit., II, 69.

[109] C. ix of the decree runs: "Si quis necessitate inevitabili cogente in alium ducatum seu provinciam fugerit, aut seniorem suum, cui fidem mentiri non poterit, secutus fuerit, et uxor ejus, cum valet et potest, amore parentum aut rebus suis, eum sequi noluerit, ipsa omni tempore, quamdiu vir ejus, quem secuta non fuerit, vivet, semper innupta permaneat. Nam ille vir ejus ... si se abstinere non potest, aliam uxorem cum poenitentia potest accipere." Cf. Esmein, op. cit., II, 66, note. In contrast with this decision, the Synod of Compiègne forbids both parties to remarry when the husband abandons his wife in order to escape private vengeance: ibid., 66.

[110] Esmein, op. cit., II, 68; I, 325: ap. c. vi, decree of Verberie. Cf. also Freisen, op. cit., 788; and Cigoi, Unauflös. der ch. Ehe., 74, who regards this synod more as an imperial diet than an ecclesiastical assembly, and so excuses its action. Cf. Hefele, Konzilien-Geschichte, III, 537.

[111] Esmein, op. cit., II, 65.

[112] These decrees are for the most part included in the collection of Gratian; "mais il se fera tout un travail pour les mettre d'accord avec la règle triomphante de l'indissolubilité; elles contribueront néanmoins à introduire, dissimulées sous la forme de nullités, de véritables exceptions à cette règle."—Esmein, op. cit., II, 69.

[113] Ibid., 66, 67.

[114] Cf. Geffcken, Ehescheidung, 57-62; Freisen, Geschichte des can. Eherechts, 792 ff.

[115] The Poenitentiale Theodori is contained in Haddan and Stubbs, Councils, III, 173-213; also that of Ecgberht, ibid., III, 413-31. Versions of these may be found in Thorpe, Ancient Laws, II, 1 ff., 129 ff.; also with many others in Wasserschleben, Bussordnungen; and in Schmitz, Bussbücher, 510 ff., 565 ff., who, contrary to the generally accepted view, traces (3 ff.) all the penitentials to Roman models. In general, see Geffcken, op. cit., 61-67; Freisen, op. cit., 785-92; Esmein, op. cit., II, 60-64; Perrone, De mat. christ., III, 374 ff.; Hinschius, "Das Ehescheidungsrecht nach den angelsächsischen und fränkischen Bussordnungen," Zeitsch. für deut. Recht, XX, 66 ff.; Rosenthal, Rechtsfolgen des Ehebruchs, 2 ff.; and especially Bennecke, Ehebruch, 34 ff. Luckock, Hist. of Marriage, 165-67, tries, of course, to take away the authenticity of Theodore's Penitential.

[116] Poenitentiale Theod., II, xii, 5, 6: Haddan and Stubbs, Councils, III, 199: cf. Thorpe, Anc. Laws, II, 17. For similar provisions, see Poenitentiale XXXV Capitulorum, c. 9, § 1: Wasserschleben, Bussordnungen, 511; and the Excerptiones Ecgberti, c. 121: Thorpe, op. cit., II, 114, 115.

[117] "Si mulier discesserit a viro suo despiciens eum, nolens revertere et reconciliari vero, post v. annos cum consensu Episcopi aliam accipere licebit uxorem."—Poenit. Theod., II, xii, 19: Haddan and Stubbs, op. cit., III, 200. The Poenit. Merseburgense, c. 104: Wasserschleben, op. cit., 402, seems to allow the man in such case to marry after one year: "Si mulier a viro discesserit et iterum reversa fuerit, suscipiat eam sine dote et ipsa ann. I poeniteat in p. e. a., similiter et ille, si aliam duxerit."—Hinschius, Das Ehescheidungsrecht, 80; but Geffcken thinks the second wife must be sent away when the first wife returns, the man doing penance: Ehescheidung, 63, 64. Cf. similar provisions in Poenit. Cummeani, c. 3, § 31, Poenit. XXXV Cap., c. 9, § 2: Wasserschleben, op. cit., 474, 511; and Poenit. Theod., I, xiv, 13: Haddan and Stubbs, op. cit., III, 188.

[118] Poenit. Theod., II, xii, 8: Haddan and Stubbs, op. cit., III, 199.

[119] In that case, "licet aliam accipere; melius est sic facere quam fornicationes": Poenit. Theod., II, xii, 23: Haddan and Stubbs, op. cit., III, 200, 201; cf. Thorpe, op. cit., II, 19.

[120] Poenit. Theod., II, xii, 17, 18: Haddan and Stubbs, op. cit., III, 200.

[121] Poenit. Theod., II, xii, 32, xiii, 5: Haddan and Stubbs, op. cit., III, 201, 202; cf. Esmein, Le mariage en droit canonique, II, 64.

[122] Poenit. Theod., II, xiii, 4: Haddan and Stubbs, op. cit., III, 202.

These provisions (notes 4 and 5) are similar to those of the synods of Verberie and Compiègne relating to error conditionis and loss of freedom. See p. 42, above; and Esmein, op. cit., I, 325; II, 68.

[123] "Legitimum conjugium non licet frangi sine consensu amborum."—Poenit. Theod., II, xii, 7: Haddan and Stubbs, op. cit., III, 199. Cf. Poenit. Mers., c. 123, Poenit. XXXV Cap., c. 9, § 1: Wasserschleben, Bussordnungen, 403, 511. Sometimes in such case remarriage is forbidden: Judicium Clementis, § 15: Wasserschleben, op. cit., 435. Cf. Esmein op. cit., II, 61; Geffcken, op. cit., 64; Glasson, op. cit., I, 130, who favors the view of the text; but Freisen, op. cit., 779, 780, thinks that § 7 of Poenit. Theod. is supplemented by § 12, which forbids separation on account of infirmity or even to enter religion cum consensu ambrorum. This view may be favored by Excerptiones Ecgberti, c. 120, 121: Thorpe, op. cit., II, 114, 115.

[124] For an illustration see the Poenit. pseudo-Theod., c. iv (19), § 24, in Wasserschleben, op. cit., 582. The best account of the three classes of penitentials is that of Geffcken, op. cit., 62-65, which is here followed. See also Esmein, op. cit., II, 60; Bennecke, Ehebruch, 54 ff.

[125] During the empire a written form, the libellus repudii, or letter of divorce, came into use; but the delivery of the libellus was not essential to the divorce: Geffcken, op. cit., 27: ap. Schlesinger, in Zeitschrift für Rechtsgeschichte, V (1866), 203 ff.

[126] Geffcken, op. cit., 26, 27; Esmein, op. cit., II, 89.

[127] The libellus was copied from the Roman model. For an example, see above p. 35, note.

[128] Geffcken, op. cit., 47, referring to the formulae salicae Merkelianae, where the intention of the parties must be personally announced "an Gerichtsstätte vor dem Grafen und der Gerichtsgemeinde." His view, he declares, is intermediate between that of Loening, Geschichte des deut. Kirchenrechts, II, 627 n. 1, who regards the count and judicial community as mere witnesses of the transaction (Solennitätszeugen); and that of Sohm, Trauung und Verlobung, 7, who sees here a judicial sentence.

[129] Geffcken, op. cit., 48, 49.

[130] The church sought through excommunication and her system of penance to enforce her rules regarding divorce. Her relation to the state in this regard is thus forcibly described by Geffcken, op. cit., 51: "Da jedoch eine aufrichtige Busse in unserem Falle sinngemäss nur möglich ist, wenn die ungerechtfertigte Scheidung rückgängig gemacht wird, so operiert die Kirche hier mit einer lex plus quam perfecta, d. h. einem Gesetz, das die Zuwiderhandlung bestraft und gleichzeitig für nichtig erklärt, während dem weltlichen Richter nur eine lex minus quam perfecta zu Gebote steht, er also nur die Übertretung bestrafen, nicht aber den durch sie herbeigeführten Zustand redressieren kann. In dieser Sachlage ist die Erklärung der ganzen Geschichte des christlichen Ehescheidungsrechtes bis zum endgültigen Siege der kirchlichen Doktrin enthalten."

[131] C. 25, Council of Agde reads: "Saeculares, qui coniugale consortium nulla graviori culpa dimittunt vel etiam dimiserunt et nullas causas discidii probabiliter proponentes propterea sua matrimonia dimittunt, ut aut illicita aut aliena praesumant, si antequam apud episcopos comprovinciales discidii causas dixerint et priusquam iudicio damnentur, uxores suas abiecerint, a communione ecclesiae et sancto populi coetu pro eo, quod fidem et coniugia maculant, excludentur." Cf. Geffcken, op. cit., 50; Freisen, op. cit., 781.

[132] It is preferably cited by Hincmar of Rheims in his decree concerning the divorce of Lothar and Teutberge; and since Regino of Prüm it belongs to the standing armor of the canonists, until it receives its immortalization in the decree of Gratian (c. 33, qu. 2, c. 1): Geffcken, op. cit., 52, note.

[133] Geffcken, op. cit., 52. Cf. on this decree and its use by the canonists Esmein, op. cit., II, 89, notes.

[134] "Wenn trotzdem die Zeit der Karolinger als diejenige Epoche zu bezeichnen ist, in welcher die Kirche den ihren endgültigen Sieg im Kampfe um das Ehescheidungsrecht besiegelnden Fortschritt machte, so wird dieser Fortschritt weniger auf dem Gebiete des materiellen Rechtes als auf demjenigen des Ehescheidungsverfahrens gesucht werden müssen."—Geffcken, op. cit., 68.

Geffcken criticises Sdralek, Hincmars Gutachten über die Ehescheidung des Königs Lothar II., 108 ff., who holds that the Frankish civil court has full authority to decree divorces. According to Sohm, "Die geistliche Gerichtbarkeit im fränk. Reich," ZKR., IX, 218, 242 ff., the Frankish matrimonial law is "temporal law, and receives its development through temporal custom and legislation." The canons are statutes for the spiritual and not for the temporal law; and only through the public lawgiver do they have any effect upon the legal principles governing marriage. "By virtue of public law marriage is subordinate to the state and not to the church." The spiritual law is no law for the temporal court; and in matrimonial causes the spiritual court is no court according to public law. There exists, in fact, in the Frankish empire no spiritual jurisdiction in the sense of public law. With this view Geffcken, op. cit., 68 n. 3, agrees; while rejecting as inconsistent therewith Sohm's later statement in ZKR., XVII, 179, that the judgment of the temporal as well as that of the spiritual court was necessary for a divorce. Compare Boehmer, Ehegesetze im Zeitalter Karls des Grossen, 108-16, who explains the contradictory enactments of the period as the result of the two systems of jurisprudence—the temporal and the spiritual.

[135] See the remarkable capitulary of Lothar I., 825. For the correction of all sins and crimes (quibuslibet culpis atque criminibus) the count is associated with the bishop. When excommunication fails to correct the offender, "a comite vinculis constringatur": quoted by Geffcken, op. cit., 72; cf. Esmein, op. cit., I, 13, 14.

[136] Geffcken, op. cit., 74.

[137] See Geffcken's argument based on the Libri duo de synodalibus causis et disciplinis ecclesiasticis of Regino, abbot of Prüm (883-915): op. cit., 77-79. In England under King Cnut the bishop already appears to have had jurisdiction in divorce cases, although not until more than a century later was the matrimonial jurisdiction of the English ecclesiastical courts fully established: Pollock and Maitland, Hist. of Eng. Law, II, 364, 365.

[138] The following is the form of the iuramentum de reconciliatione coniugatorum taken by Geffcken (op. cit., 79) from cc. 241, 242, of Regino's book: The man shall swear: "Ab isto die in antea istam tuam coniugem, nomine illam, quam iniuste dimiseras, ita tenebis, sicut per rectum maritus suam debet habere coniugem in dilectione et debita disciplina, nec eam per ullum malum ingenium a te separabis, nec ea vivente aliam accipies. Sic te Deus adiuvet." The oath of the woman runs: "A modo in antea istum tuum maritum, quem iniuste dimiseras, ita tenebis et amplexaberis, et ei in servitio, in amore et in timore ita eris subiecta et obediens, sicut per rectum uxor suo debet subiecta esse marito, nec unquam ab eo te separabis, nec illo vivente alteri viro te sociabis in coniugio aut adulterio. Sic te Deus adiuvet."

[139] See Wunderlich's excellent edition of Tancredi summa de matrimonio, especially 16 ff., on the impediments, and 70 ff., on causes of separation.

[140] Thus, for example, Gratian accounts for the liberty of divorce and remarriage accorded in the letter of Gregory II. (confusing him with Gregory I.) by assuming that it was in consequence of a papal dispensation in favor of the English (Decret. Grat., dictum to c. 18, C. XXXII, qu. 7), although elsewhere he more sensibly rejects Gregory's action as unorthodox. Peter Lombard makes no mention of Gregory's letter and with Gratian rejects as false the passage of pseudo-Ambrose allowing separation and remarriage for adultery (Esmein, op. cit., II, 76); while others get out of the difficulty through the gratuitous assumption that pseudo-Ambrose refers, not to simple adultery, but to a case of incest committed by a woman with a relative of her husband, affinitas superveniens. Gratian will not accept this explanation, on the ground that, according to the theory of affinitas superveniens, husband and wife are treated alike. Yet, with delicious inconsequence, he proceeds to explain why pseudo-Ambrose had given the man alone the right to remarry in case of the wife's adultery, without granting the woman the reciprocal privilege. In the text of Ambrose, he says, the words vir and mulier are not employed in their proper sense, but figuratively. Each is used for man irrespective of sex. Vir is from virtus, and means man as a strong being resisting temptation; mulier is from mollities (softness), and it is used to denote the weak-minded man guilty of sin (Dec. Grat., dictum to c. 18, C. XXXII, qu. 7. Cf. Esmein, op. cit., II, 76; Freisen, op. cit., 582, 805). Ivo of Chartres, bent on sustaining the rigid theory of indissolubility, cites cc. 5 and 9 of the decree of Verberie in its favor, deliberately suppressing the clauses allowing the man to remarry (see his Decretum, X, 169; VIII, 189; also his Panormia, VI, 91: Geffcken, op. cit., 82); and Gratian, by adopting Ivo's text for c. 9 instead of the original, gets around a similar difficulty (Freisen, op. cit., 803). Celestin III. and Urban III. allowed the faithful spouse divorce and remarriage when the other becomes an infidel or a heretic; but the later canonists evaded this authority by claiming that these popes spoke merely as "simple doctors" (Esmein, op. cit., II, 80).

On the wide use of "metaphor" in the history of the church see Lecky, Democracy and Liberty, II, 217; and especially his Hist. of European Morals, II, 326, 327, 356-58.

[141] For once at least we can almost pardon Milton for using strong language. Selden's work, Of the Law of Nature and of Nations, he holds more useful than anything which "pontifical clerks have doted on, ever since that unfortunate mother famously sinned thrice, and died impenitent of her bringing into the world those two misbegotten infants, and for ever infants, Lombard and Gratian, him the compiler of canon iniquity, the other the Tubalcain of scholastic sophistry, whose over-spreading barbarism hath not only infused their own bastardy upon the fruitfullest part of human learning, not only dissipated and dejected the clear light of nature in us, and of nations, but hath tainted also the fountains of divine doctrine, and rendered the pure and solid law of God unbeneficial to us by their calumnious dunceries."—"Doctrine and Discipline of Divorce," Prose Works, III, 269.

[142] Cf. especially Decretum Gratiani, cc. 1-24, causa xxxii, qu. 7: Richter-Friedberg, Corpus Juris Can., I; Peter Lombard, Sententiae, IV, D. xxvii ff.

[143] Esmein, op. cit., II, 79, 80. The early canonists are discussed by Geffcken, op. cit., 58-62, 75-82; Cigoi, Unauflösbarkeit, 93 ff.; but for the most minute examination of them all see Freisen, op. cit., 793-847; also the very clear account of Esmein, op. cit., II, 71 ff. On the formation of the canon law see Tissot, Le mariage, 111 ff.

[144] Esmein, op. cit., II, 73, 85-89, who gives a brief account of the evolution of the uses of the term divortium. Originally, among the canonists, there was but one kind of divorce, i. e., any judicial separation between man and wife, whether or not with the right to remarry. This led to confusion; and so the distinction between divorce a vinculo or quoad vinculum and a mensa et toro or quoad mensam et torum was differentiated. Beginning with Bernard of Pavia, the first compiler of the Decretals, the term divortium appears regularly as a rubric in the later collections of the canon law.

[145] For the exceptions see Esmein, op. cit., II, 91, 92; Freisen, op. cit., 833-36; Scheurl, Das gem. deut. Eherecht, 288, 289.

[146] More exactly speaking fornicatio spiritualis "as opposed to fornicatio carnalis," the first cause mentioned.

[147] Crimes against nature, idolatry, etc.: Esmein, op. cit., II, 90 n. 1.

[148] Such as forcing a spouse to idolatry or to some heinous crime. This case is regarded as an enlargement of the conception of fornicatio spiritualis: Esmein, op. cit., II, 90 n. 4, 92 nn. 8, 9. Cf. Freisen, op. cit., 836.

[149] Esmein, op. cit., II, 93, 94. Earlier divorce a mensa et thoro was not granted on this ground unless there was real danger to the life of one of the parties; but at last it was decided that nimia saevitia would suffice, but the term is not defined: idem, loc. cit. In general on this species of divorce see Freisen, op. cit., 830-47; Geary, Marriage and Family Relations, 238, 239, 350; Scheurl, Das gem. deut. Eherecht, 286-91.

[150] Decret. Grat., II, caus. xviii, qu. 2, C. 2; and Decretals IV, 19, de divortiis, c. 7: see Richter-Friedberg, Corpus juris can., I.

[151] This is Freisen's argument, op. cit., 825-27, 817 ff. See also Scheurl, Das gem. deut. Eherecht, 276-78. The canon law maintains the validity of a marriage between two infidels contracted before conversion. According to Peter Lombard, the believer may, indeed, put away his unconverted consort, but may not remarry. Only when the infidel is the active party, the Christian being the passive, is the latter released from the marriage bond: Sententiae, IV., D. 39, § G; Freisen, op. cit., 814. This privilege is much discussed in modern theological literature: see the references in Freisen, op. cit., 826 n. 27. In general compare Woolsey, Divorce, 74 ff., 125; Esmein, op. cit., I, 220-32; II, 268 ff., 307; Scheurl, op. cit., 276, 277.

[152] Pollock and Maitland, Hist, of Eng. Law, II, 391, 392: citing for the first case Tovey, Anglia Judaica, 84; Co. Lit., 31b, 32a; and for the second, Calend. Geneal., II, 563.

[153] So in India: Pollock and Maitland, op. cit., II, 391 n. 2: citing Maine's speech on the "Remarriage of Native Converts," in Memoir and Speeches and Minutes (London, 1892), 130. Cf. especially Esmein, op. cit., II, 268 ff., who discusses some of the "curious problems" growing out of this rule.

[154] For the evils arising in clandestine marriage de praesenti, the complexity of the law of forbidden degrees, and the conflicting jurisdiction of the temporal and spiritual courts, see chap. viii above.

[155] Freisen, op. cit., 826 ff., 212 ff., shows that the dispensatio summi pontificis a matrimonio rato nondum consummato originated with the reforms of Alexander III.; and argues rightly that these two kinds of dissolution—dispensation and orders—are in harmony with the rule of indissolubility according to the doctrine of Gratian, but not according to the existing theory. Thus, of the old eight causes which were sufficient of themselves to dissolve matrimonium initiatum—identical with the later sponsalia de praesenti—holy orders alone remains; the papal dispensation has taken the place of the other seven: ibid., 827, 829; cf. on these exceptions Scheurl, Das gem. deut. Eherecht, 278-86.

[156] See chaps. vii and viii, above.

[157] Jeaffreson, Brides and Bridals, II, 299 ff., conjectures that during the Middle Ages there must have been many irregular self-divorces; and he cites the famous case of William Paynel and Margaret his wife who, in 1302, "petitioned the king for the dower that was due to her as widow of her first husband John de Camoys," who with her consent had "openly and before witnesses 'given, granted, released, and quit-claimed' the said Margaret to 'her chivalric knight,'" the said William. The court refused the dower on the ground of desertion and adultery. Cf. on this case Pollock and Maitland, Hist. of Eng. Law, II, 393, 394.

[158] Jeaffreson, op. cit., II, 306-9.

[159] Pollock and Maitland, op. cit., II, 391 n. 1. Read the interesting remarks of Lecky, Democracy and Liberty, II, 193-96, who cites, as illustrative of the policy of the Roman church, the divorce case of Napoleon and Josephine. See also Law Review (English), I, 353-56.

[160] Before Innocent III., 1215, who reduced the number to four: Woolsey, Divorce, 121.

[161] Thwing, The Family, 83. Cf. Woolsey, op. cit., 118 ff.

[162] It is interesting to find Wolsey writing in Henry VIII.'s name "to remind her of the 'divine ordinance of inseparable matrimony first instituted in paradise,' protesting against 'the shameless sentence sent from Rome'": Tait, in Dict. of Nat. Biog., XXXVI, 155.

[163] Henry Stuart (Stewart) was made Lord Methven by Margaret's son, James V. She "attempted to get rid of that nobleman by a sentence of the ecclesiastical court, on the ground that before the marriage she had been (as the record expresses it) carnaliter cognita by her husband's fourth cousin, the earl of Angus."—Riddell, Scots' Peerage Law, 187; Law Review, I, 354. On Margaret's marriages and divorces compare Thwing, The Family, 83; Woolsey, Divorce, 169, who says she "got from Rome a separation from her second husband, the Earl of Angus, on the pretext of a pre-contract between him and another lady;" and especially the very accurate account of Tait, in Dict. of Nat. Biog., XXXVI, 150-57.

[164] Jeaffreson, Brides and Bridals, II, 310, who quotes the following verses entitled "A Poem on the Times of Edward II." from the Percy Society Publication:

"If a man have a wyf,
And he love her nowt,
Bring her to the constery,
There trewth schuld be wrowt.
Bring twei fals wytnes with hym,
And hymself the thrydde,
And he shall be deperted,
As fair as he wold bydde,
From his wyf;
He schal be maynteyned fulle well
To lede a sory lyf.

"When he is deperted
From hys trew spowse,
Take hys neyghboures wyf
And bryng her to howse,
Yif he have selver
Among the clerkes to send,
He may have hir to hys wyf
To hys life's end,
With onskylle,
Thei that so fair with falseness dele
Godde's corse on her bille."

[165] Lecky, Democracy and Liberty, II, 194. For other examples see Huth, Marriage of Near Kin, 118-20.

[166] 32 H. VIII., c. 38: Statutes at Large (London, 1763), II, 298.

The facility with which dispensations could be secured is illustrated by a Scotch case in 1426-28. On April 11, 1426, Pope Martin V. granted a dispensation to Alexander of Hume and Marion of Lander to marry, though of double fourth degree of consanguinity. Curiously enough, perhaps because this dispensation had not yet been received, on Oct. 6, 1427, Hume appeared before the rector sitting as judge and proposed that his marriage could not stand of right because of consanguinity. The marriage was therefore pronounced null and void, and the parties were given license to marry whom they pleased. On the fourth day of the following January Hume and his former wife presented a petition to the papal see, announcing that, aware of their consanguinity, they had contracted marriage per verba de praesenti and begotten children; that when their ordinary heard of the consanguinity he rightly celebrated a divorce, which they obeyed; but they feared scandal, and for this and other reasons they desired to be joined in marriage. The pope therefore granted another dispensation and declared their offspring legitimate: Hist. Manuscripts Commission, XII. Report, App. VIII, 122, 123. In another case, 1459, the earl of Rothes declares on oath that he had within the last year obtained certain knowledge of the impediment of consanguinity as set forth in his libel, and that formerly, for the space of thirteen years after birth of the last of his living children, he was altogether ignorant of it: ibid., IV. Report, 507.

[167] In general see Cigoi, Unauflösbarkeit, 149 ff.; Perrone, De mat. christ., III, 376 ff., 389 ff., 398 ff.; Godolphin, Repartorium canonicum, 61, 62, 492-512; Esmein, Le mariage en droit canonique, II, 295 ff., 308 ff.; Schulte, Lehrbuch, 359-61; Lecky, Democracy and Liberty, II, 193, 196, 197; Glasson, Le mariage civil et le divorce, 216, 217; Scheurl, Das gem. deut. Eherecht, 275, 276, where the canons adopted at the twenty-fourth session are given.

[168] By the bishop of Barcelona, who proposed the word separatio for divorce quoad torum: Esmein, op. cit., II, 309. On the misleading names for the two kinds of separation see Pollock and Maitland, Hist. of Eng. Law, II, 392 n. 5. However, a "modern distinction of some Catholic writers between anullatio and separatio removes all ambiguity."—Woolsey, Divorce, 124.

[169] "viii. Si quis dixerit ... vel Ecclesiam errare, dum ob alias causas, praeter adulterium, facit divortium quoad thorum seu cohabitationem, ad tempus vel perpetuo: anathema sit."—Theiner, Acta, II, 313: Esmein, op. cit., II, 309 n. 1.

[170] Distinction is made between dispensatio super matrimonio, that is, for dissolving an unconsummate marriage; and dispensatio matrimonialis, that is, to remove an impediment which otherwise would invalidate a proposed contract. In all cases of dispensation careful judicial inquiry as to the grounds of application is made: Geary, Marriage and Family Relations, 510-14. Cf. Woolsey, op. cit., 122, 123; and especially the convenient manual of Pompen, De dispensationibus, 122-68. For a full discussion of the intricate law and custom as to dispensation see Esmein, op. cit., II, 315-68; Freisen, Geschichte des can. Eherechts, 891-906; Scheurl, Das gem. deut. Eherecht, 281 ff. In the oriental church dispensation from the forbidden degrees is in general not allowed, Zhishman: Das Eherecht der orient. Kirche, 709-17.

[171] The writings of Luther, Milton, and other Reformation and Puritan writers abound in examples of such charges. "For no cause, honest or necessary," says Martin Bucer, "will they permit a final divorce: in the meanwhile, whoredoms and adulteries, and worse things than these, not only tolerating in themselves and others, but cherishing and throwing men headlong into these evils. For although they also disjoin married persons from board and bed, that is, from all conjugal society and communion, and this not only for adultery, but for ill usage, and matrimonial duties denied; yet they forbid those thus parted to join in wedlock with others: but, as I said before, any dishonest associating they permit."—"The Judgment of Martin Bucer," in Milton's Prose Works, III, 292.

[172] Goeschen, Doctrina de mat., 60; also Mejer, "Zur Geschichte des ält. prot. Eherechts," in ZKR., XVI, 47; Hubrich, Das Recht der Ehescheidung, 139 ff.

[173] Cf. Esmein, Le mariage en droit canonique, II, 308, 309. Throughout his Doctrine and Discipline of Divorce, as elsewhere in his writings, Milton insists that a real marriage implies a full spiritual as well as conjugal companionship, with which the theory of separation without dissolution is inconsistent; and this is the common Puritan view.

[174] For example, see Milton's specious argument, following the allegorical method of some of the early theologians, to show the scope of the term "fornication" as used by Jesus and Moses: "Doctrine and Discipline of Divorce," Prose Works, III, 251-58, 394-401.

[175] See Milton's summary of their views: "Tetrachordon," loc. cit., 423-33.

[176] Richter, Beiträge zur Gesch. des Ehescheidungsrechts in der evang. Kirche, 11 ff., 15 ff., 56 ff.; idem, Kirchenrecht, 1177.

[177] Adultery and desertion are the only grounds of full divorce recognized by Brenz, Wie yn Ehesachen ... zu Handeln, in Sarcerius, Vom heil. Ehestande, 152-57, and idem, Corpus juris mat., 183 ff.; with which may be compared the passages from the writings of Brenz quoted by Richter, Beiträge, 19-23; Bugenhagen, Vom Ehebruch und Weglauffen: in Sarcerius, Vom heil. Ehestande, 138-51; or Corpus juris mat., 171-84; Chemnitz, Examen conc. trid., II, 430; Calvin, in Richter, op. cit., 25, 26; Beza, Tract. de repud. et divort. (Geneva, 1569), 228 ff., 275 ff.; Kling, Tract. mat. causarum (Frankfort, 1577), 89 ff.; Beust, Tract. de jure connub.; idem, Tract. de spons. et mat., 147 ff.; Schneidewin, Com. in inst.; idem, De nupt., lib. primi com. (Jena, 1585), §§ 7 ff.

These and other writers are discussed by Richter, Kirchenrecht, 1175 ff.; idem, Beiträge, 15 ff.; Mejer, Zum Kirchenrechte der Reformat., 147 ff.; Hauber, Ehescheid. im Reformat., II, 209 ff. In general, compare Greve, Ehescheidung, 225 ff.; Popp, Ehescheidung, 80 ff.; Strippelmann, Das Ehescheidungsrecht, 54 ff., 128 ff.; Stölzel, Ehescheidungsrecht, 9 ff.; Glasson, Le mar. civ. et le divorce, 224, 225, 329, 330; Scheurl, Das gem. deut. Eherecht, 291 ff.; Buchka, Das meckl. Ehescheidungsrecht, 20 ff.; Hubrich, Das Recht der Ehescheidung, 43 ff.; Friedberg, Lehrbuch, 366-78; idem, "Beiträge," ZKR., VII, 56-127; and Schulte, Lehrbuch, 414-28.

[178] Chemnitz, Examen conc. trid. (Frankfort, 1615), II, 430 says: "We have, then, two cases in Scripture where the bond of matrimony is dissolved—not as by men, but by God himself. 1. On account of adultery a man lawfully, rightfully, and without sin, can repudiate his wife." 2. Desertion of the believer by the unbeliever, according to 1 Cor., 7. Cf. Woolsey, Divorce, 131; Richter, Beiträge, 27, 28. On the adoption of these two general causes at the Reformation see Hubrich, Das Recht der Ehescheidung, 44 ff.

[179] 1 Cor. 7:15.

[180] As early as 1520 in his Von dem bab. Gefängniss der Kirche (Strampff, 349, 350, 381, 382) Luther admits the two grounds of divorce, adultery and desertion; the latter when either spouse abandons the other "über zehen Jahr oder nimmer wiederkommen." Two years later, in his Vom ehelichen Leben, he appears to regard refusal of conjugal duty as equivalent to desertion. "We may find an obstinate woman," he says, "who stiffens her neck, and if her husband should fall ten times into unchastity, cares nothing about it. Here it is time for a man to say, 'if you won't, another can be found that will. If the wife will not, let the maid come.' Yet let it be so that the husband give her two or three warnings beforehand, and let the matter come before other people, so that her obstinacy may be known and rebuked before the congregation. If she will not, let her be gone, and procure an Esther for yourself and let Vashti be off, as Ahasuerus did."—As rendered by Woolsey, Divorce, 130, 131. For the original see Strampff, 350, 351, 394, 395; Luther's Kleinere Schriften, II, 26-31; and Sarcerius, Vom heil. Ehestande, 137, 138. Cf. Richter, Beiträge, 16; Scheurl, Das gem. deut. Eherecht, 300 ff. In Luther's Von Ehesachen (1530) the refusal of conjugal duty is not mentioned; but it is doubtless included under malicious desertion; and besides in 1531 he commends the book of Brenz in which this position is taken. Cf. Richter, op. cit., 18, 19; Strampff, 394. In the Tischreden flight on account of theft is regarded as desertion: Richter, loc. cit. On the use made of "definition" by the Protestants see Hubrich, Das Recht der Ehescheidung, 51.

[181] Quasi malitiosa desertio comprehends not only refusal of conjugal duty, but also applies to the case of a defendant who abandoned a consort, but who does not necessarily, as in malicious desertion, remain in a place unknown or one beyond the reach of judicial process: Strippelmann, Ehescheidungsrecht, 146 ff. Cf. Dietrich, Evang. Ehescheidungsrecht, 25 ff.; Hubrich, Das Recht der Ehescheidung, 80, 88 ff. See especially Luther, Vom ehel. Leben; Strampff, 394, 395, who says the "weltliche Ubirkeit das Weib zwingen oder umbbringen" soll.

[182] Luther does not allow absolute divorce on account of anger or incompatibility, insidiae, or attempts upon life, exile, sickness, incurable disease, misfortune to an innocent spouse, or similar grounds: see his Von Ehesachen, in Strampff, 398, 399; Vom ehel. Leben: ibid., 400; Predigt von dem Ehestande (1525): ibid., 400; and Auslegung des 17. Cap. 1 Cor. (1523): ibid., 397, 398, where only temporary separation is allowed, unless one of the parties refuses reconciliation and the other "kunnt nicht halten;" but in this case the "separation has the refusal of conjugal duty as a consequence, or it has become malicious desertion": Strampff, 396, 351, 352, 382 ff. Cf. Brenz, Wie yn Ehesachen ... zu Handeln: in Sarcerius, Vom heil. Ehestande, 155 ff.; Dietrich, Evang. Ehescheidungsrecht, 31 ff.; Hauber, Ehescheid. im Reformat., II, 242 ff.

[183] Richter, Beiträge, 14, who points out that, through reaction against the papal system the theologians for the most part were in favor of the Roman law, while the majority of the jurists were opposed to it. The Protestant leaders are thus divided on the question whether the canon law should be accepted as binding: Hubrich, Das Recht der Ehescheidung, 45. On the admission of other grounds of divorce see Strippelmann, Ehescheidungsrecht, 151 ff.; Schulte, Lehrbuch, 416.

[184] Erasmus, Annot. in Nov. Test. (Basel, 1515); quoted by Richter, Beiträge, 8-10.

[185] Richter, op. cit., 6 ff.; Bullinger, Der christ. Ehestand (ed. 1579), lf. 102.

[186] Woolsey, Divorce, 132; also Thwing, The Family, 84. For the ordinance see Richter, op. cit., 6, 7. Similar causes are approved by Bullinger, Der christ. Ehestand, 102, appealing to the laws of the "holy Constantine, Theodosius, Valentinian, Anastasius, and Justinian."

[187] Lambert of Avignon, De sacro conjugio (Strassburg, 1524): cited by Richter, op. cit., 31, 32.

[188] See his De regno Christi (1557), II, 25 ff.; and the elaborate dissertation entitled Etlicher gelerten Theologi bedencken von der Ehescheidung: in Sarcerius, Vom heil. Ehestande, 161 ff.; also ibid., Corpus juris mat., 196 ff., which Richter, op. cit., 34 ff., ascribes to Bucer; though Mejer, Zum Kirchenrecht, 183, doubts the correctness of this view. On Bucer's doctrines see the discussion of Milton below.

[189] Melanchthon, "De conjugio," Opera Omnia (Erlangen, 1828), I, pars II, 236 ff.; or in Sarcerius, Vom heil. Ehestande, 159 ff.; or ibid., Corpus juris mat., 190 ff. Cf. also Richter, Beiträge, 32-34; and especially Mejer, Zum Kirchenrecht, 179-82, who compares the view of Melanchthon with that of Luther, showing that the former goes back to the Theodosian code.

[190] Monner, Tract. de mat. et clandes. conjugiis (Jena, 1561): ap. Richter, Beiträge, 40, 41. Representatives of the more liberal tendency in the sixteenth century are Chyträus, Hunnius, Wigand, Osiander, and the Danish theologian Hemming: Richter, op. cit., 42, 43, 28.

[191] Of course, after regular process was somewhat developed, as will presently be shown, the toleramus or permission of the magistrate concluding the decree was requisite to the remarriage even of the innocent person.

[192] The Renovatio ecc. Nord. (1525): Richter, Kirchenordnungen, I, 20, tolerates the second marriage of a person whose spouse has committed adultery. The Prussian Landesordnung of the same year expressly sanctions the divorce and remarriage of the injured spouse whose partner has committed the same offense: Richter, op. cit., I, 32. In 1531 the church ordinance of Goslar and that of Lübeck, drafted by Bugenhagen, recognize malicious desertion as a second ground for dissolving wedlock: Richter, op. cit., I, 156, 148; and a similar provision appears in the Pommer ordinance of 1535, also drafted by Bugenhagen: Richter, op. cit., 250. Compare Schulte, Lehrbuch, 414-28, who gives an account of the provisions of the many ordinances regarding divorce and remarriage.

[193] "Wenn der Ehebruch bey dem halse gestraffet würde, so bedürffte man hie nicht viel fragens": Bugenhagen, Vom Ehebruch und Weglauffen: in Sarcerius, Vom heil. Ehestande, 138.

[194] Richter, op. cit., 31, 45; citing Lambert of Avignon, De sacra conjugio, who recommends excommunication in case the magistrate does not execute the criminal.

[195] On Beust, Beza, and Brenz see Richter, op. cit., 45, 46. Compare Beust, Tract. de spons. et mat., 140, where he declares that the penalty for adultery is death; and Brenz, Wie yn Ehesachen ... zu Handeln: in Sarcerius, Vom heil. Ehestande, 152, where he leaves the offender to the temporal magistrate, urging rigorous punishment; and in cases of negligence advising excommunication by the parish priest.

[196] Melanchthon, "De conjugio," Opera Omnia, I, pars II, 238: "Respondeo: magistratus politicus adulteria punire debet: ideo persona condemnata, si non punitur durius, pellenda est ex iis locis, ubi vivit persona innocens: cui altera, videlicet condemnata, velut mortua existimanda est; et haec severitas ad politicum magistratum pertinet."

[197] Woolsey, Divorce, 138, 139. See Luther, Vom ehel. Leben: in Strampff, 363, 364; or in Sarcerius, op. cit., 137. On Calvin see Strippelmann, Ehescheidungsrecht, 69, 70. The same view is expressed by Hooper, Early Writings, 383; and by Bucer: Milton's Prose Works, III, 299.

[198] Richter, Die evangelischen Kirchenordnungen des sechszehnten Jahrhunderts.

In many Protestant lands these ecclesiastical statutes or provisions, with the sanction of the civil authority, took the place of the old canon law. For a discussion of their contents see especially the monographs of Goeschen, Doctrina de mat., 59 ff.; idem, in Herzog's Encyclopädie, III, 702 ff.; Dietrich, Evang. Ehescheidungsrecht; and compare Hauber, Ehescheid. im Reformat., II, 219 ff.; Richter, Beiträge, 51 ff.; idem, Kirchenrecht, 1177, 1178; Strippelmann, Das Ehescheidungsrecht, 78 ff.; Greve, Ehescheidung, 298 ff.; Thwing, The Family, 84, 85; Woolsey, Divorce, 136-38.

[199] For example, by the Renovatio ecc. nord. (1525): Richter, Kirchenordnungen, I, 20; the Würtemberg ordinance of 1537: ibid., I, 280; the ordinance of the "Niederländer in London": ibid., II, 115; that of the foreign "Gemeinde zu Frankfurt": ibid., 157.

[200] Goeschen, Doctrina de mat., 61, 62, notes.

[201] As by the Prussian ordinance of 1584: Richter, op. cit., II, 468.

[202] As by the Brandenburg ordinance of 1540: ibid., I, 330; that of Pfalz-Neuburg: ibid., II, 146, 147.

[203] As by the ordinance of Zurich, 1529: ibid., I, 22; that of Basel, 1529: ibid., 126. Cf. Goeschen, Doctrina de mat., 63 n. 218, 29 n. 105.

[204] Bidembach, De causis mat. (Frankfort, 1608), 81-93; and Mentzer, De conjugio (Wittebergae, 1612), 190 ff., allow as causes only adultery and desertion. Other representatives of the conservative tendency in the seventeenth century, as enumerated by Richter, Beiträge, 58 ff., are the theologians Gerhard, Havemann, Calovius, and Hollaz, and the jurists Cypräus, Carpzov, Nicolai, Brunnemann, and Schilter; while the more liberal direction is taken by the theologians Brochmand, Hülsemann, Calixtus (J. U.), Dannhauer, and Quenstedt, and the jurists Henning Arnisaeus, Forster, Kitzel, Pufendorf, Samuel Stryk, and Bruckner.

[205] For the ordinance of 1553, drafted by Brenz, see Richter, Kirchenordnungen, II, 130. By this act full divorce is allowed only for adultery and desertion, including refusal of marital duty: and separation a thoro et mensa is not permitted even for saevitia. Cf. Richter, Beiträge, 57.

[206] See Des Herzogthums Wirtemberg erneuerte Ehe- und Ehe-Gerichts-Ordnung (Stuttgart, 1687), 22 ff., 82 ff., 100-111.

[207] Hülsemann, Extensio breviarii theologici (3d ed., Leipzig, 1655), 502: cited by Hubrich, Das Recht der Ehescheidung, 54-56, 119 ff.; Richter, Beiträge, 57, 63; idem, Kirchenrecht, 1177.

[208] Stölzel, Ueber das landesherrl. Ehescheidungsrecht, 9-19; or the same in ZKR., XVIII, 1-4; Dietrich, Evang. Ehescheidungsrecht, 39.

[209] Stölzel, op. cit., 10, 11.

[210] Schulte, Lehrbuch, 416.

[211] Stölzel, op. cit., 11-19, where the proof is given from the writings of Luther and others; and Dietrich, Evang. Ehescheidungsrecht, 37 ff. See Strampff, 363-65, 353, 375.

[212] Luther, Von Ehesachen: in Strampff, 297, 298, 392, where he names Pfarrer and Oberkeit as co-ordinate authorities in such causes. On the significance of Oberkeit (temporal magistracy) see Stölzel, Entwicklung des gelehrten Richterthums, I, 207 ff.; and compare idem, Ueber das landesherrl. Ehescheidungsrecht, 22, 23.

[213] On the rise of the Wittenberg consistory and its influence as a model for others see Mejer, "Anfänge des Witt. Consistoriums," ZKR., XIII, 28-123; and idem, "Zur Geschichte des ält. prot. Eherechts," ibid., XVI, 35-106. These two papers, revised and enlarged, with a chapter on the establishment of the consistory at Rostock, may also be found in Mejer's Zum Kirchenrechte des Reformationsjahrhunderts, 3 ff., 146 ff. Compare Schleusner, "Zu den Anfängen prot. Eherechts," ZKG., VI, 390 ff., 412 ff.; Geffcken, "Zur ält. Geschichte und ehegericht. Praxis des Leipzig. Konst.," ZKR., 3. Folge, IV, 7-67; Hinschius, "Beiträge zur Gesch. des Desertionsprocesses nach evang. Kirchenrechte," ibid., II, 1-38; and Dietrich, Evang. Ehescheidungsrecht, 37-62, who gives a clear account of the development of matrimonial process and jurisdiction.

[214] According to Stölzel, Ueber das landesherrl. Ehescheidungsrecht, 46 ff., passim, after the creation of consistories, as well as before, the head of the state—Landesherr—retained a right of dispensation as summus episcopus; and in Protestant lands his power to grant divorces in certain cases was not entirely superseded by the imperial law of 1875. These points, especially the last, have given rise to a controversial literature: see Meurer, Das landesh. Ehescheidungsrecht, 12 ff., who holds that the authority of the Landesherr was superseded by the act of 1875; and compare Hubrich, Das Recht der Ehescheidung, 147 ff.; the works cited by Stölzel, op. cit., 54 ff.; by Meurer, op. cit., 8 ff.; and those in this connection described in Bibliographical Note XI.

[215] See the proofs presented by Richter, Beiträge, 46-50; and chap, ix, p. 390, above.

[216] Richter, op. cit., 43 ff., cites several cases as evidence. On the other hand, the Wittenberg decisions analyzed by Mejer, Zum Kirchenrechte, 196 ff.; and those published by Schleusner, "Zu den Anfängen prot. Eherechts," ZKG., XIII, 130 ff., 142 ff., follow mainly the conservative direction. In this connection read the "Antwort auff etliche Fragen und Gegenwurff" in Sarcerius, Vom heil. Ehestande, 204 ff.; or in idem, Corpus juris mat., 248 ff.

[217] Cf. Lecky, Democracy and Liberty, II, 200; Glasson, Le mariage civil et le divorce, 310, 311; and idem, Histoire du droit, V, 89 ff.

[218] Jeaffreson, Brides and Bridals, II, 316. This summary really gives the gist of Milton's argument in his "Doctrine and Discipline of Divorce," Prose Works, III, 169-273.

[219] The Christen State of Matrimonye, lvs. lxxvi, lxxvii.

[220] Master Henry Smith, Preparation to Marriage: quoted by Jeaffreson, Brides and Bridals, II, 294, note.

[221] Cf., for example, Becon's "Catechism," Works, II, 647; and his "Prayers," ibid., III, 532; Tyndale, Expositions, 51, 52; Bucer in Milton's Prose Works, III, 299, 300, who grants this cause to both parties.

[222] Hooper's teaching caused great excitement: see the letter of John ab Ulmis to Bullinger, in Original Letters relating to English Reformation, 416. Bullinger is said to hold the same views: ibid., 422. At his trial one of the charges against Hooper was that he taught that the bond of wedlock may be dissolved for adultery: Hooper, Later Writings, xxiii.

[223] Hooper, Early Writings, 382-87, declares, on the authority of Mark 10:12, that the woman as well as the man may divorce for adultery. To those who deny this according to the Mosaic law he says: "I grant the same, but I am sure the poor woman was not compelled to live with her adulterous husband; for the law commanded such a villain to be slain, and so put the honest party to liberty; and so should it be now-a-days, and then the question of divorcement would be ended" (383). Again, to those who say if woman had this right "marriage could never be sure nor constant, for women would change still at their pleasure," he replies, "there is given no such liberty to man or woman by the word of God," meaning, doubtless, separation at pleasure, except for cause established in court. In a letter to Henry Bullinger he defends his doctrine of divorce as to the woman: Original Letters rel. to English Reformation, 64.

[224] Tyndale, Expositions, 54, 55. A similar illustration of the straits to which the Protestant was brought in his necessity of appealing to authority is afforded by Bucer, in Milton's Prose Works, III, 309: "Hither may be added, that the Holy Spirit grants desertion to be a cause of divorce, in those answers given to the Corinthians.... But some will say, that this is spoken of a misbeliever departing. But I beseech ye, doth not he reject the faith of Christ in his deeds, who rashly breaks the holy covenant of wedlock instituted by God? And besides this, the Holy Spirit does not make the misbelieving of him who departs, but the departing of him who disbelieves, to be the just cause of freedom to the brother or sister. Since therefore it will be agreed among Christians, that they who depart from wedlock without just cause, do not only deny the faith of matrimony, but of Christ also, whatever they profess with their mouths; it is but reason to conclude, that the party deserted is not bound in case of causeless desertion, but that he may lawfully seek another consort, if it be needful to him, toward a pure and blameless conversation." Cf. also the argument of Milton, "The Doctrine and Discipline of Divorce," Prose Works, III, 258, 259.

[225] Bucer, in Milton's Prose Works, III, 302, 303, 292, 293, 306-8. By some of his brethren he was regarded as a fanatic on this subject as the following letter from John Burcher to Henry Bullinger shows: "Strasburgh, June 8, 1550: Bucer is more than licentious on the subject of marriage. I heard him once disputing at table upon this question, when he asserted that a divorce should be allowed for any reason, however trifling; so that he is considered, not without cause, by our bishop of Winchester as the author of the book published in defence of the Landgrave. I am ignorant as to what the hireling Bucer, who fled from this church before the wolf came in sight, is plotting in England."—Original Letters rel. to the Eng. Ref., 655, 656.

"Philip, landgrave of Hesse, in addition to Christina, the daughter of the late duke George, to whom he had been united many years, and by whom he had a large family, married on March 3, 1540, a lady named Margaret de Sala, and this with the consent of the landgravine under her own hand and seal. Previous to this he sought to obtain the sanction of Luther, Melanchthon, and Bucer, whose want of firmness in this painful case has called forth the most violent invectives from Vorillas and Bossuet, bishop of Meaux."—Ibid., 666, note.

[226] Mal. 2:15, 16, which in the James version is given: "Therefore take heed to your spirit, and let none deal treacherously against the wife of his youth. For the Lord, the God of Israel, saith that he hateth putting away: for one covereth violence with his garment," etc. It may be noted that Milton, "Doctrine and Discipline of Divorce," Prose Works, III, 196, following "Calvin and the best translations," renders the passage from Malachi, "he who hates, let him divorce," thus agreeing essentially with Bucer.

[227] Bucer, in Milton, Prose Works, III, 297. Cf. Jeaffreson, Brides and Bridals, II, 329-32, who believes that these sentiments of Bucer, however shocking to us, were accepted by the most "virtuous and devout" in the sixteenth and seventeenth centuries.

[228] By 32 H. VIII, c. 38. Cf. Reeves, Hist. of Eng. Law, IV, 333-36; Glasson, Hist. du droit, V, 89.

On Henry VIII.'s divorce see Pocock, Records of the Reformation: The Divorce, 1527-1553, containing the original documents; Burnet, Hist. of the Reformation, I, 26-123; Geary, Marriage and Family Relations, 596-602; Thwing, The Family, 87; Woolsey, Divorce, 168, 169; Jeaffreson, Brides and Bridals, I, 114, 124; II, 312 ff., who defends the king on the ground that the pope did not grant him the indulgence which private citizens constantly enjoyed, especially when they were able to pay for it. There is a valuable bibliography of Henry's divorce in Huth, Marriage of Near Kin, 404-11.

[229] By 2 and 3 Ed. VI, c. 23.

[230] By 3 and 4 Ed. VI, c. 11. Cf. the account by Jeaffreson, op. cit., II, 317, 318.

[231] The report was published in 1571 under supervision of Archbishop Parker; and then in an Oxford reprint of 1850: Woolsey, Divorce, 170, note. I have followed the excellent summary by Jeaffreson, partly containing the Latin text: op. cit., II, 318-23; and Reeves, Hist. of Eng. Law, V, 74-80, gives a good analysis. Cf. also Hallam, Const. Hist., I, 101, 102, note; Lingard, Hist. of England, IV, 284; Hammick, Marriage Law, 6; Geary, Marriage and Family Relations, 8 n. 6, 578; Report of the Divorce Commission, Parl. Papers, 1852-53, 4; Report of the Ecc. Courts Comm., 1883, xxxi-xxxiii, xxxvi; Bishop, Marriage, Divorce, and Separation, I, § 1496; Macqueen, Practical Treatise (London, 1842), 467; Law Review (English), I, 356-58; Burn, Ecc. Law, II, 503 ff.; Lecky, Democracy and Liberty, II, 175; Luckock, Hist. of Marriage, 175, 176; Morgan, Marriage, Adultery, and Divorce, II, 227-29.

[232] See chap. x, sec. i, pp. 421-23 above.

[233] Jeaffreson, op. cit., II, 322.

[234] "Inter conjuges si capitales intercedant inimicitiae tamque vehementer exarserint, ut alter alterum aut insidiis aut venenis appellat, aut aliqua vel aperta vi, vel occulta peste, vitam velit eripere, quamprimum tam horribile crimen probatum fuerit, rite in juditio divortio volumus hujuscemodi personas distrahi."—Ref. leg. ecc.: ap. Jeaffreson, op. cit., II, 320, 321, note.

[235] "Parva contentiones, nisi perpetuae sint, divortium non inducunt."—Ref. leg. ecc.: ap. Jeaffreson, op. cit., II, 321.

[236] Jeaffreson, op. cit., II, 321.

[237] Ibid., 322, 323.

[238] Geary, Marriage and Family Relations, 8 n. 6.

[239] So by Sir John Stoddart in his evidence before the Lords' Select Committee, 1844: "Therefore I apprehend that the Reformatio legum having been published as a work of authority, although not of absolute legislative authority, it must have been, and in all probability was, followed: and for that reason in the Spiritual Courts there were dissolutions of marriage. Because I believe that from about the year 1550 to the year 1602 marriage was not held by the Church, and therefore was not held by the Law, to be indissoluble."—Minutes of Evidence, 27: Law Review (Eng.), I, 358, 359.

[240] Law Review (Eng.), I, 359. Cf. Jeaffreson, op. cit., II, 323.

[241] Jeaffreson, op. cit., II, 323, 324. Cranmer examined the Fathers and other authorities on divorce for adultery; and the material which he thus collected grew into a large book, which Burnet, who gives a summary, says he has seen: Hist. of Reformation, I, 330 ff. Burnet's summary is also given by Geary, Marriage and Family Relations, 577, 578. Cf. Macqueen, Practical Treatise, 468, 469.

[242] 5 and 6 Ed. VI., c. 4.

[243] Macqueen, op. cit., 469. "This bill is often, but erroneously, referred to as the earliest example of parliamentary divorce (Shelford, 373). It is not a divorce bill; neither did it proceed upon the principle of a divorce bill. Its object was merely to declare that the adultery of the first wife, followed by the ecclesiastical sentence, entitled the Marquis to take a second wife. The principle on which the act passed assumed the jurisdiction of the Church Court, to dissolve the marriage proprio vigore. The act did not divorce the parties, but merely declared them to be already, by the ecclesiastical sentence, sufficiently divorced to admit of the Marquis marrying again."—Ibid., 469 n. e. On this case see also Law Review (Eng.), I, 358, 359; Report of the Royal Commission on Divorce, Parl. Papers, 1853, 57 ff.; Geary, op. cit., 17; Woolsey, Divorce, 169-71; Lecky, Democracy and Liberty, II, 174, 175; Burn, Ecc. Law, II, 503a-503b; Reeves, Hist. of Eng. Law, V, 80, 81; Morgan, Marriage, Adultery, and Divorce, II, 229 ff.

[244] According to the Report of the Commissioners, 1852-3, 5, divorce was allowed during the period 1550-1602.

[245] See, however, Woolsey, Divorce, 170, 171, 313, who, insisting that the ancient canon law was unchanged, remarks that "for a number of years, although remarriage after divorce was null and void, so that the issue would not be legitimate, no civil penalties were attached to it, and it was punishable only by ecclesiastical censures." Hence many married "without scruple." Cf. Craik, Romance of the Peerage, I, Appendix, upon whom Woolsey relies; and Jeaffreson, Brides and Bridals, II, 323, 324, who holds that the decision of the delegates in the Northampton case was "good law" until 1602.

[246] Bunny, Of Divorce for Adulterie, and Marrying againe: that there is no sufficient Warrant so to do (Oxford, 1610). This book had been written many years before. The preface is dated Dec. 13, 1595; and in it Bunny refers to the state of public opinion and to events, notably in Yorkshire, of a still earlier time. In "a Sermon," he says: "I breefly noted, that the libertie, that in these our daies many doe take, of divorcing their wiues for adulterie and marying of others, had not such warrant in the worde of God as they thought that it had." Just before delivering this discourse a gentleman who desired to put away his wife for adultery and marry again, "and having already gotten (into a little paper-book of his) the handes of sundrie of the Preachers of those parts," had come to him for similar support. He further notes that "a few yeeres" earlier not less than "fowre several persons" of one of the greatest families in "those parts" had married again after divorce; and in general his "Advertisement to the Reader" leaves the impression that the new doctrine was, on the whole, the prevailing one; although, according to law, "neither those second women were allowed any dowrie, nor their children to be legitimate."

[247] Whitgift, "Defence of the Answer," Works, III, 267 ff. Cf. Bullinger, Decades, IV (V), 511.

[248] These ordinances are known as the "Ecclesiastical Constitutions" of 1597. Canon 105 urges greater care in matrimonial causes, especially in cases where marriage "is required to be dissolved or annulled;" and it is strictly charged "that in all proceedings in divorce and nullities of marriage, good circumspection and advice be used, and that the truth may, as far as possible, be sifted out by depositions of witnesses and other lawful proofs; and that credit be not given to the sole confession of the parties themselves, howsoever taken upon oath either within or without the court." The 107th canon requires a bond to be given in case of "sentences pronounced only for divorce and separation à thoro et mensâ," that "the parties so separated shall live chastely, and neither shall they, during each other's life, contract matrimony with other persons." From these canons it has been inferred with some plausibility that both "dissolving divorce" and "nullifying divorce" are contemplated as valid and customary; and that the requiring of a bond implies that the marriage which the bond is intended to prevent would have been valid: see Law Review (Eng.), I, 359, 360, and the opinions there cited; also Plea for an Alteration in the Divorce Laws (London, 1831), 3 ff.

[249] The Foljambe case has given rise to much controversy. It is commonly regarded as marking the formal abandonment of the more liberal law of the Reformation period and a return to canonical principles. This view is mainly traceable to the statements of Salkeld, Reports of Cases in the King's Bench (Philadelphia, 1822, from 6th London ed.), III, 137, who commits several errors, and is otherwise misleading. He is followed by Jeaffreson, Brides and Bridals, II, 324; Geary, Marriage and Family Relations, 12; Macqueen, Practical Treatise, 470, 471; Harrison, Probate and Divorce, 115; and especially Bishop, Marriage and Divorce (5th ed.), I, §§ 661, 705. On the other hand, Woolsey, Divorce, 172, note, 310-13, following the researches of Craik, Romance of the Peerage, I, Appendix, regards the decision as merely confirming existing law. He criticises Bishop for being misled by Salkeld, whereas the facts appear to be more correctly given in Noy's Reports, 100; and particularly in Moore's Cases (2d ed. folio, London, 1688), 683, which may be translated from the law-French as follows: "Feb. 13, anno 44 Eliz. In the Star Chamber it was declared by all the court, that whereas Foljambe was divorced from his first wife for incontinence of the woman [in fact, for his own adultery], and afterwards had married Sarah Poge [Page], daughter of Rye, in his former wife's life-time, this was a void marriage, the divorce being a mensa et thoro, and not a vinculo matrimonii. And John Whitgift, then Archbishop of Canterbury, said that he had called to himself at Lambeth the most sage divines and civilians, and that they had all agreed therein." It is concluded, therefore, that this decision of the "sage divines and civilians" must have been incidental to a case under trial in the Star Chamber, and that the law was merely declared and not changed. See, however, the sixth edition of Bishop's work, I, § 1498 n. 3, where the author insists on the essential correctness of his original view. Cf. also Law Review (Eng.), I, 361, 362; Report of the Commissioners (Divorce), 1852-53, 4-6; and Morgan, Marriage, Adultery, and Divorce, II, 233.

[250] Law Review (Eng.), I, 362. One of these canons "provided that no persons separated a toro et mensa should, during their joint lives, contract matrimony with other persons, and that the parties requiring the sentence of divorce should give sufficient caution and security into the court that they would not transgress this restraint. Another canon required the judge who should grant divorce, without observing these rules, to be suspended for one year by the archbishop or bishop, and declared his sentence utterly void."—Woolsey, Divorce, 171, 172. Cf. Luckock, Hist. of Marriage, 177 n. 2; Morgan, Marriage, Adultery, and Divorce, II, 233 ff.

[251] By the act of 1 James I., c. xi, "bigamy" is used in the modern sense. In mediæval law a "bigamist" is one who marries again after his first wife's death; the word "polygamist" being employed for the person who takes another woman before the death of the first spouse. By 4 Ed. I., 1276 (Stat. de bigamis, Stat. at Large [Pickering], I, 116), benefit of clergy is denied him who is a bigamist, i. e., has contracted a second marriage after death of the first wife: Jeaffreson, Brides and Bridals, II, 327. Compare Glasson, Hist. du droit, III, 184, 185.

"As for the crime of polygamy [the modern bigamy], it hath not been made penal by any statute, till the time of James the First. A canon of Pope Gregory the Tenth had taken away all clerical privileges from a bigamist, as the marrying a second wife was considered by the ecclesiastical law, to be proof of a most incontinent disposition; this regulation having been adopted in England, the clergy had a doubt, whether a person, who had been guilty of this offence before the canon law took place, might claim the indulgence of the common law; this statute [4 Ed. I.], therefore, retrospectively declares, he shall not be entitled to such privilege."—Barrington, Observations upon the Statutes (4th ed., London, 1775), 106; also Jeaffreson, op. cit., II, 327, note. But it may be noted that by 1 Ed. VI., c. 12, sec. 16: Stat. at Large (Pickering), V, 265, 266, benefit of clergy is restored in terms which may leave it in doubt whether bigamy in the modern sense is intended. This privilege is granted to offenders, "although they or any of them have been divers and sundry times married to any single woman or single women, or to any widow or widows, or to two wives or more." On the ancient meaning of "bigamy" see also Glasson, op. cit., III, 184.

[252] 1 James I., c. xi: Stat. at Large (Pickering), VII, 88, 89.

However, inferences as to the law in the preceding period must be made with caution. The case of Stephens v. Totty, decided at the Michaelmas term, 44 and 45 Eliz., shows that a husband and a wife divorced a mensa et thoro were still married: Croke's Reports (Elizabeth), 908. Cf. on this act especially Hale, Hist. of the Pleas of the Crown (London, 1800), I, 691-93; also Woolsey, Divorce, 171; Law Review (Eng.), I, 362. Furthermore, Raynolds, a strong advocate of absolute divorce, in his Defence of the Judgment of the Reformed Churches (1609), appears to make no claim that his doctrine is sustained either by law or custom. So also in the quaint treatise, The Lawes Resolutions of Women's Rights (London, 1632), 64 ff., full divorce is not recognized; although, referring to the fact that legally "no crime dissolueth marriage," the compiler (67) seemingly approves Conrad Lagus who says, "seeing that in Contracts of Wedlock we regard as well what is decent and conuenient, as what is lawfull, I cannot tell why we be not bound in dissoluing of it to follow the like equitie; and for example, if a Wife cannot dwell with her husband without manifest danger of death ... why may not she be separated iudicis ordinarij cognitione precedente?"

On the other hand, Spence, Equitable Jurisprudence, I, 702, believes that the bond not to marry required by the canons of 1603 was the only hindrance to remarriage after divorce; and from this time onward he thinks it "not unlikely that the court of chancery decreed divorces a vinculo; and that the American courts of equity brought this doctrine (or right) with them." This view is rejected by Scribner, Treatise on the Law of Dower, II, 545-47, although he agrees as to the effect of the bond.

[253] Porter's case, Easter term, 12 C. I.: Croke's Reports (Charles I.), 461-63.

[254] See the strong argument of Holburn and Grimston for the defendant who justly claim that a "divorce causa saevitiae is grounded ex jure naturae, and is in the same manner and nature as a divorce causae adulterii: Croke's Reports (Charles I.), 463. Hale, Hist. of Pleas of the Crown, I, 693, remarks "certainly the divorce intended" by James's act "is not a vinculo matrimonii;" and then further observes, in Porter's case "it was doubted, whether a divorce causâ saevitiae were such a divorce as was within this exception, because it seemed rather to be a provisional separation for the wife's safety and maintenance, than a divorce; but it was never resolved." Cf. also Co. Lit., 235; March, Reports of New Cases, 101; Coke, Institutes, III, 89; Kelyng, Report of Divers Cases (Dublin, 1789), 27; Geary, Marriage and Family Relations, 12.

[255] Jeaffreson, Brides and Bridals, II, 315, perhaps with too much emphasis, thus describes the effects of 32 H. VIII., c. 38: "It rendered wedlock easier of entrance, but closed all the many gates which had hitherto afforded spouses the means of escape from conjugal wretchedness.... The Elizabethan jest, that compared matrimony to a public rout, was no less applicable to wedlock in Catholic than to marriage in Protestant England; but whereas our ancestors before the Reformation could always get out of the press by a few permissible falsehoods and the payment of money, the marriage law of Protestant times declared that, having once forced their way into the crowd, they should remain in it till death came to their relief."

[256] His four principal works dealing with divorce are the "Doctrine and Discipline of Divorce" (Prose Works, III, 169-273); supplemented by "The Judgment of Martin Bucer" (ibid., 274-314); "Tetrachordon" (ibid., 315-433); and the "Colasterion" (ibid., 434-61). See also Prose Works, IV, 243-49; I, 259.

[257] Milton, "Doctrine and Discipline of Divorce," Prose Works, III, 241, 242.

[258] Milton, "Colasterion," Prose Works, III, 423-33, where the views of many reformers are quoted; and "Doctrine and Discipline of Divorce," ibid., 251-58, where Jesus's words are examined.

[259] Milton, "Colasterion," Prose Works, III, 425.

[260] Milton, "Doctrine and Discipline of Divorce," Prose Works, III, 185.

[261] The doctrine of indissolubility compels uncongenial minds to "fadge together, and combine as they may to their unspeakable wearisomeness, and despair of all sociable delight in the ordinance which God hath established to that very end.... All which we can refer justly to no other author than the canon law and her adherents, not consulting with charity, the interpreter and guide of our faith, but resting in the mere element of the text; doubtless by the policy of the devil to make that gracious ordinance become unsupportable, that what with men not daring to venture upon wedlock, and what with men wearied out of it, all inordinate licence might abound."—"Doctrine and Discipline of Divorce," Prose Works, III, 181.

[262] Ibid., 210, 211, 195. For similar expressions see ibid., 181, 182, 185, 267.

[263] However, chap. xxxiv of Bucer's work, entitled "That it is lawful for a wife to leave an adulterer, and to marry another husband," Milton disposes of with the remark that "this is generally granted, and therefore excuses me the writing out": "The Judgment of Martin Bucer," Prose Works, III, 300. But this must be considered in connection with his positive claim of entire jurisdiction for the man in divorce causes, below referred to. Occasionally he drops a word from which possibly it may be inferred that he believes in a reciprocal right of the sexes; but it is amazing how adroitly he avoids a direct statement to that effect. Cf., for example, "Doctrine and Discipline of Divorce," Prose Works, III, 182, where he seems to approve the liberal laws of the Christian emperors; ibid., 247-49, where he refers to Beza's view that divorce is for the benefit of the woman; "Tetrachordon," Prose Works, III, 359, 372, where he touches lightly upon the mutual rights of husband and wife.

[264] Milton, "Doctrine and Discipline of Divorce," Prose Works, III, 181. "And what his chief end was of creating woman to be joined with man, his own instituting words declare, and are infallible to inform us what is marriage, and what is no marriage; unless we can think them set there to no purpose: 'It is not good,' saith he, 'that man should be alone. I will make him a help meet for him.'"—Ibid., 187. Beza holds, says Milton, that divorce (by the Jewish law) is created "only for the help of wives." This leads him to exclaim: "Palpably uxorious! Who can be ignorant, that woman was created for man, and not man for woman, and that a husband may be injured as insufferably in marriage as a wife! What an injury is it after wedlock not to be loved! What to be slighted! What to be contended with in point of house rule who shall be the head; not for any parity of wisdom, for that were something reasonable, but out of a female pride! 'I suffer not,' saith St. Paul, 'the woman to usurp authority over the man.' If the apostle could not suffer it, into what mould is he mortified that can?"—Ibid., 247; cf. also ibid., 209.

[265] Jeaffreson, Brides and Bridals, II, 333. He was not solely actuated by irritation against his wife, Mary Powell, whom he had put away; for he retained his views after taking her back and to his life's end: ibid., II, 333.

[266] For Milton's theory of divorce procedure, as summarized in the text, see "Doctrine and Discipline of Divorce," Prose Works, III, 263-73. Cf. Jeaffreson, Brides and Bridals, II, 335-38.

[267] Scheurl, Das gem. deut. Eherecht, 294 ff., forcibly argues that the conception of divorce through magisterial intervention, as opposed to self-divorce, is a mark of Reformation thought. According to Luther, God speaks through the civil magistrate. Hence in case of divorce from the bond of wedlock by judicial decree it is not "man," but God himself, who parts man and wife. Therefore the command of Jesus is not broken. So here we have another illustration of the casuistry necessitated by the appeal to authority.

[268] Accordingly Milton justifies Parliament and the clergy in consenting to Henry VIII.'s putting away Anne of Cleves, "whom he could not like after he had been wedded half a year."—"Doctrine and Discipline of Divorce," Prose Works, III, 266.

[269] Cf. Jeaffreson's suggestion, Brides and Bridals, II, 337.

[270] Ibid., 338. A representative Catholic writer, Rev. William Humphrey, S. J., defending the sacramental doctrine of marriage, transposes Milton's phrase, declaring the woman in paradise and "as she is now" to be the "subordinate equal of man."—Christian Marriage, 16.

[271] Cf. Jeaffreson, op. cit., II, 339, 340.

[272] Pollock and Maitland, Hist. of Eng. Law, II, 392: Co. Lit. , 32a, 33b, 235a.

[273] Year Book, 10 Edw. III., fol. 35 (Trin. pl. 24): Pollock and Maitland, op. cit., II, 392.

[274] Glanville, Tractatus, VI, 17; Bracton, De legibus, fol. 92, 304. Britton, II, 264, seems to say, though his statement is somewhat confusing, that in case of divorce a mensa et thoro "if verified or not denied, the wife shall not recover any dower." Were not that interpretation of the law in the highest degree improbable, Britton's context might appear to show that such a divorce worked a complete dissolution of marriage. "In the recorded cases it is often difficult to see whether the divorce that is pleaded is a dissolution of marriage; e. g., Note Book, pl. 690. It is believed however that divortium, standing by itself, generally points to a divorce [nullification] a vinculo, e. g., in Lit. sec. 380."—Pollock and Maitland, op. cit., II, 392 n. 5. Bishop, Marriage, Divorce, and Separation, I, §§ 1497, 1498 n. 3, appears to think that the "effect of a divorce for adultery ... was to dissolve the marriage" bond, because the guilty woman may "not be heard upon a claim of dower" (Beames, Glanville, 133). But this view is surely wrong, as the researches of Pollock and Maitland have finally established: op. cit., II, 372-95. Their results are thus summarized (373): "If however we can not argue that a woman was not married because she can not claim dower, still less can we argue that a union is a marriage because the issue of it will—or is not a marriage because the issue of it will not—be capable of inheriting English land."

[275] As by the statute of Westminster, II, c. 34, under Ed. I.: Pollock and Maitland, op. cit., II, 392, 393.

[276] The term "voidable" as applied to marriage is still used in various senses besides the special meaning referred to in the text. For a full discussion see Bishop, Marriage, Divorce, and Separation, I, chap. xiii, §§ 252-92.

[277] See the excellent discussion of the relation of the spiritual and temporal law in cases of "putative" wedlock by Pollock and Maitland, op. cit., II, 373 ff.

[278] Ibid., 375; ap. Year Book, 11-12 Ed. III., xx-xxii; for the early period see Glanville, Tractatus, VI, 17; Bracton, De legibus, fol. 63. Cf. also Woolsey, Divorce 124.

[279] Pollock and Maitland, op. cit., II, 375 n. 3. Cf. Blackstone, Commentaries, I, 440; Co. Lit., 233, 235; also Glasson, Hist. du droit, IV, 152; Burn, Ecc. Law, II, 501b-501c.

[280] Woolsey, op. cit., 124.

[281] See First Report of Commissioners (affinity), 1847-48, v; also Hammick, Marriage Law, 32. Originally the decree might be rendered after the death of one or both of the persons, without, of course, affecting the status of the children.

[282] See Pride v. The Earls of Bath and Montague (1695): in 1 Salkeld's Reports, 120, declaring that the reason why the spiritual court cannot give sentence to annul a marriage after the death of the parties is "because sentence is given only pro salute animae, and then it is too late." Cf. Geary, Marriage and Family Relations, 10, 11; Blackstone, Commentaries, I, 444; Jeaffreson, Brides and Bridals, II, 262-64.

[283] Harris v. Hicks (1694): in 2 Salkeld's Reports, 548, where such consort may be proceeded against for incest. "Our forefathers, with exquisite inconsistency, were of opinion that the survivor might (for his or her soul's good) be proceeded against and punished in a spiritual court, for having committed sin in respect of the marriage which might not be adjudged a sinful nullity."—Jeaffreson, op. cit., II, 264. Cf. Geary, op. cit., 10, 11, 32.

[284] 5 and 6 W. IV., c. 54; also in Hammick, Marriage Law, 281. Compare Hansard's Parl. Debates, 3d series, XXXVIII, 203-7; XXX, 661, 662. In general, see Geary, op. cit., 10, 11, 32; Burn, Ecc. Law, II, 501c-501e; Hammick, op. cit., 32, 33, 23; Ernst, Marriage and Divorce, 183, 184; Luckock, Hist. of Marriage, 300-307; Jeaffreson, op. cit., II, 264-66; Bishop, Marriage, Divorce, and Separation, I, §§ 288, 289, 753; Tracts Issued by the Mar. Law Defence Union, II, 91-104.

The act extends to Ireland. "By the law of Scotland the distinction between void and voidable marriages was never recognized, all marriages within the prohibited degrees being void ab initio."—Hammick, op. cit., 33 n. a.

[285] This liberal exception, mainly in favor of existing unions with a deceased wife's sister, is of course denounced by writers such as Luckock, op. cit., 305, as a "mischievous concession and compromise principle."

[286] For the special senses in which the term is used see the discussion of Bishop, op. cit., I, §§ 252-92, already cited.

[287] The only surviving canonical impediment for which a marriage may be voidable, but not void, is impotence. The same principle is also applied to marriages secured by force: Geary, op. cit., 34, 203 ff., 212; Hammick, Marriage Law, 48, 49.

[288] Marriage with a deceased wife's sister or a husband's brother is included in the table of forbidden degrees approved by Archbishop Parker in 1563. It purports to be based on the Levitical code; and it was accepted as the law of the English church by the ninety-ninth canon of 1603: Hammick, op. cit., 32 ff., 350; Tracts Issued by the Mar. Law Defence Union, I, 51 ff.

[289] Jeaffreson, op. cit., II, 258-66. These marriages were called "Altona marriages" (from Altona in Denmark, where they were sometimes solemnized), and are the counterpart of the "Gretna marriages," except that the latter were valid and the former were not: ibid., II, 259, 260. The case of Brook v. Brook (House of Lords, March, 1861) grew out of a marriage celebrated near Altona, June, 1850: Tracts Issued by the Mar. Law Defence Union, II, 313 ff.

[290] Luckock, op. cit., 303, 304, who holds that sometimes by such collusion the "ends of justice were defeated, and persons defrauded of their rights." Cf. the remarks to this effect of Lord Selborne in the House of Lords, 1873, in Tracts Issued by the Mar. Law Defence Union, II, 168.

[291] Luckock, op. cit., 304.

[292] First Report of the Commission of 1847-8, v, vi, xii; Hammick, Marriage Law, 33 n. b; Geary, Marriage and Family Relations, 11, 30 n. 3. See Huth, Marriage of Near Kin, 129 n. 1.

According to the Report (viii), since the Lyndhurst act (1835) there had been 1,364 marriages within the prohibited degrees, of which nine-tenths were with a deceased wife's sister. Only in 88 cases had the act prevented an intended marriage; and of these 32 resulted in open cohabitation. Ten of the 88 cases were among the lower classes. See the epitome of evidence, xvii-xxxix; the minutes of evidence, 1-120; and the interesting letters and papers in the Appendix, 121-65.

[293] Lecky, Democracy and Liberty, II, 214. There is already an immense literature relating to the question of marriage with a deceased wife's sister. The most complete bibliography of the subject is comprised in Mr. Huth's "Bibliography of Works on the Impediments to Marriage" appended to his Marriage of Near Kin, 393-449; also in part previously published by the Index Society, IV, 1st App. to 1st Report. In the Church Quarterly Review, XV, 426, may be found a table showing the results of the various attempts to pass the deceased wife's sister's bill during the period 1842-82.

The absurdities and anomalies of the system are described in his trenchant manner by Lecky, op. cit., II, 214-23. With his account should be read the able discussion by Huth, op. cit., 124-26. The peculiar arguments of the opponents of a change in the law, mainly resting upon the alleged authority of the Old Testament, are best seen in the two volumes of Tracts Issued by the Mar. Law Defence Union (London, 1889); while the antidote may be found in T. Paynter Allen's Opinions of the Hebrew and Greek Professors of the European Universities (London, 1882), prepared for the Marriage Law Reform Association. The speeches in the two houses of Parliament in 1849, 1851, 1855, 1873, 1883, 1895, and whenever a bill on the subject has been under consideration, may of course be found in Hansard's Parliamentary Debates; and the Report of the Royal Commission of 1848 (London, 1848) is especially important. A strong partisan in favor of the existing law is Luckock, Hist. of Marriage, Part II, 213 ff., particularly 250 ff., 292 ff., 300 ff. For his and similar arguments from the standpoint of Hebrew law a partial remedy, on the homeopathic plan, is afforded by the curious essay of Rev. George Zabriskie Gray, Husband and Wife (2d ed., Boston, 1886). Starting with the scriptural premise that man and wife are "one flesh," not "by his becoming part of her flesh, nor by both forming a new flesh, but by her entering into his flesh," the author, arguing with an ingenuity which would have done credit to Peter Lombard in his palmiest days, reaches the triumphant conclusion that a widower may properly marry his sister-in-law. In the same way he shows that by divine intent a woman may not divorce her husband under any circumstances, for "a member can not put away the head" (90); though she may "leave" him—secure a separation a mensa et thoro—if he is "cruel or unclean" (100).

On the general controversy see especially Colloquii über die Frage: Ob Gott verboten oder zugelassen habe dass einer seines verstorbenen Weibes Schwester heyraten möge (Oettingen [1681]), 12 ff.; and Kettner (L.F.E.), Judicia und Responsa von der Ehe mit des Weibes Schwester (Quedlinburg [ca. 1710]), 1 ff., neither of which appears in Huth's list; also Zeidler, De mat. cum defunctae uxoris sorore, published with his De polygamia (Helmstadt, 1698); and Michaelis Abhandlung von den Ehegesetzen Mosis (Göttingen, 1768). Among the vast number of tracts and books on the subject for England a few of the more important are Keble, Against Profane Dealing with Holy Matrimony (Oxford, 1849); Foster, Review of the Law (London, 1847); Pusey, Letter on the proposed Change in the Laws prohib. Mar. between Near Kin (Oxford, 1842); idem, Evidence given before the Commission (Oxford, 1849); idem, God's Prohibition (Oxford and London, 1860); Binney, The Men of Glasgow and the Women of Scotland (London, [1850]); Gibson, Mar. Aff. Question (Edinburgh, 1854); Duke, The Question of Incest (2d ed., London, 1883). This question, with others, is also dealt with by Fry, The Case of Mar. between Near Kindred (London, 1756, 1773); Alleyne, The Legal Degrees of Mar. (London, 1774, 1775); Macrae, Script. Law of Mar. (2d ed., Edinburgh, 1862); Meyer, Uxor christiana (Amsterdam, 1688), 2d dissertation; and Kettner (J. J.), Zwei Abhandlungen (Leipzig, 1780), 67 ff. For discussion of related questions of kinship compare Butler, Marriage of Cousin Germans (Oxford, 1619); the same in Latin under the leading title Suggeneia in Florens, De nuptiis consobrinarum (Frankfort, 1643); Dugard, Marriage of Cousin Germans (Oxford, 1673); Johnstoun, Juridical Dissertation (London, 1734); Paton, Mar. with a Dec. Brother's Wife (London, 1869), and in general read Observations on the Mar. Laws, 126 ff.; Lawrence, in Revue de droit int., II, 65 ff.; Jeaffreson, Brides and Bridals, II, 258 ff.; Hammick, Marriage Law, 23, 30-40; Geary, Mar. and Fam. Rel., II, 30-32; Wharton, Exposition of the Laws, 200, note; Bishop, Mar., Div. and Sep., I, §§736 ff., 747, 750, 752, 753, 875 ff.; Law Mag., XXI, 371-82 (May, 1839); Quarterly Review, LXXXV, 156-82 (July, 1849); Ecc. Review, new series, II, 735-48.

[294] Lecky, Democracy and Liberty, II, 214, who cites "the very candid confession of the Bishop of Winchester": Hansard's Debates, 3d series, CCLXXX, 1671.

[295] Lecky, op. cit., II, 215, citing T. Paynter Allen's pamphlet already mentioned. There is a weak criticism of this work in the Tracts Issued by the Mar. Law Defence Union, I, 177-96. On its high authority see Huth, Mar. of Near Kin, 129.

"It is certain that the Old Testament does not directly condemn such marriages, and it is very doubtful whether it condemns them even by inference. It is not at all doubtful that it sanctions, and sometimes eminently blesses, polygamy; that it strictly enjoins that, in every case of adultery, both parties should be put to death; that it makes it a capital offence for a man to have intercourse with a woman who, though unmarried, was betrothed to another; that it commands that a man who had defiled an unbetrothed virgin should be compelled to marry her; that it forbids marriage with aliens in religion; that it not only permits, but enjoins a man to marry the widow of his deceased brother if she had no children, or only daughters, which could scarcely be the case if such marriages of affinity were in their own nature incestuous. It is not easy to understand the process of mind which, among all these provisions of the Jewish code, selects a very doubtful inference condemnatory of marriage with the deceased wife's sister as alone binding on the conscience of the Imperial Parliament."—Lecky, op. cit., II, 216, 217.

[296] Lecky, op. cit., II, 215; cf. Allen, Opinions, 36.

[297] Russia appears to be the only important European exception: Huth, op. cit., 130, 131.

[298] For abundant proofs of what Mr. Lecky would call the "insularity" of the English mind in this regard, see the mass of matter—letters, speeches, and declarations of prelates, noblemen, and private persons—contained in that marvelous monument of mediævalism, the two volumes of Tracts Issued by the Mar. Law Defence Union. Mr. Gladstone's speeches are a conspicuous example: ibid., II, 174 ff.

[299] Hansard, 3d series, CCLXXX, 1675. This was Lord Hatherley: see Tracts Issued by Mar. Law Defence Union, II, 161, 162, where he repeats the statement. Compare the views of the bishop of Exeter, in the same Tracts, I, 19, who predicts an orgy of incest if the law be changed: "At the present, no doubt, there is a strong natural instinct against the marriage of a man with his own mother. It is awful to think of. The marriage of a man with his own blood sister is fearful. But this instinctive protection of our domestic purity, how far does it go if we begin to pare the edges off." The Metropolitan (1880) indulges in like forebodings: ibid., I, 97, 98.

[300] Lecky, Democracy and Liberty, II, 221-23.

[301] The only special work on parliamentary divorce is that contained in Macqueen's Practical Treatise, 463-68, comprising a clear historical "Introduction;" the "Action at Law;" the "Petition and Bill;" the "General Preparation of the Case;" the "Second Reading and Subsequent Proceedings;" and an interesting "Selection of Leading Cases." See also Law Review, I, 362 ff.; Lecky, Democracy and Liberty, II, 200-202; Geary, Marriage and Family Relations, 17, 18; Hammick, Marriage Law, 18; Shelford, Law of Marriage and Divorce, 373-79; Bishop, Marriage, Divorce, and Separation, I, §§ 1422 ff.; Woolsey, Divorce, 172-74; Jeaffreson, Brides and Bridals, II, 340-44; Luckock, Hist. of Marriage, 178-81; Wharton, Exposition of Laws Relating to Women, 471-84; Glasson, Le marriage civil et le divorce, 318, 319; Burn, Ecc. Law, II, 503b, 503c; Hirschfeld, "The Law of Divorce in England and in Germany," Law Quarterly Review, XIII, 398, 399; Montmorency, "The Changing Status of a Married Woman," ibid., 191; Plea for an Alt. in the Divorce Laws, 5 ff.; Scribner, Treatise on the Law of Dower, II, 542 ff.; and especially the full account by Morgan, Marriage, Adultery, and Divorce, II, 237-313.

[302] Geary, Marriage and Family Relations, 17: Rot. Parl., 15 H. VI, Nos. 14, 15.

[303] Macqueen, Practical Treatise, 469. Cf. n. 4, p. 80, above.

[304] The act, being private, was never printed in the collections of statutes; but a writer in the Law Review, I, 363 n. 1, publishes it from the "House copy in the parliament office." Cf. Macqueen, op. cit., 471-73, 551-61, who discusses the case, giving Bishop Cozen's argument, but he does not appear to have had a copy of the statute before him. See Evelyn, Diary (London, 1878), II, 49 n. 3, who declares that the Roos divorce bill was carried under influence of corrupt political motives; and he is followed by Keble, Sequel to the Argument, 212 ff.; and Morgan, Marriage, Adultery, and Divorce, II, 237 ff. For a number of instructive details relating to this case, extending over the years 1662-70, taken from the manuscripts of the House of Lords, see Reports of Hist. MSS. Com., VII, 165, 166; VIII, 102a, 117a, App. I, 141a; XII, App. V, 8; App. VII, 69. The last entry runs: "1669, March 14. News letter. Lord Roos presses for liberty to marry again, urging precedent of Marquess of Northampton. All the bishops oppose except the B. of Durham." It is here noted that the act finally passed April 11, 1670; 22 Car. II., 1, Private Acts. The case gave rise to The Case of Divorce and Re-Marriage thereupon (London, 1673), in which a "Reverend Prelate of the Church of England" denies, and a "private Gentleman" maintains, the right of remarriage on scriptural authority.

[305] On these two cases see Macqueen, op. cit., 473, 562-76; and Law Review, I, 364. The proceedings in the Norfolk case are contained in Vol. II, 59-324, appended to Archbishop Abbot's The Case of Impotency; also in Howell's State Trials, XII, 883-948; and in part in the Reports of Hist. MSS. Com., XIV, 17-27, 278, where, in addition, arguments of the counsel are given. Sir W. Williams, counsel for the duchess, calls this case the "first precedent."

[306] Macqueen, op. cit., 474, 496; Luckock, Hist. of Marriage, 179, note; Wharton, Exposition of Laws rel. to Women, 471, 472; Morgan, Marriage, Adultery, and Divorce, II, 244 ff. The "earliest specimen of a dissolving statute passed by the Legislature, after sentence of divorce in the ecclesiastical court" is the "Act to dissolve the marriage of Ralph Box with Elizabeth Eyre, and to enable him to marry again," 1701. This form was followed ever after: Law Review, I, 364, 365.

[307] Since about 1800: Macqueen, op. cit., 489. Cf. Wharton, op. cit., 472, 483; Glasson, Le marriage civil et le divorce, 318. For examples of these actions for "criminal conversation" see Cases of Divorce (London, 1715), 1 ff. (Feilding), 41 ff. (Dormer); and Crim. Con. Actions and Trials, 10 ff., containing a good historical introduction.

[308] Law Review, I, 364; Macqueen, op. cit., 473.

[309] Macqueen, op. cit., 550.

[310] Plea for an Alt. in the Divorce Laws, 5, referring to the security required by the canons of 1603.

[311] Haggard, Consistory Reports, 120; Macqueen, op. cit., 474.

[312] Macqueen, op. cit., 473, 474.

[313] The first three cases are those of Mrs. Addison, 1801; Mrs. Turton, 1831; and Mrs. Battersby, 1840: Macqueen, op. cit., 474-80, 594-98, 657, 658; also Law Review, I, 371; and Lecky, Democracy and Liberty, II, 200, 201. There appears to have been a fourth case: Geary, Marriage and Family Relations, 18; and in several instances Parliament interfered by bill to nullify marriage or to grant separation a mensa: Macqueen, op. cit., 475, note.

[314] The cases of Tewsh, 1805; and Mrs. Moffat, 1832: Macqueen, op. cit., 480, 482, 602-4, 658-60. These are discussed in Law Review, I, 371-74. Lord Chancellor Brougham opposed Mrs. Moffat's bill; but later he took the opposite and more liberal view: Brougham, Speeches, III, 446.

[315] "He said, confusion of progeny constitutes the essence of the crime; and therefore a woman who breaks her marriage vow is much more criminal than a man who does it. A man, to be sure, is criminal in the sight of God, but he does not do his wife any material injury if he does not insult her; if, for instance, he steals privately to her chambermaid. Sir, a wife ought not greatly to resent this. I would not receive home a daughter who had run away from her husband on that account. A wife should study to retain her husband by more attention to please him."—Boswell, Life of Johnson, III, 46 (ed. 1835). Some recent writers, who ought to know better, indulge in similar sophistry; cf. Nisbet, Marriage and Heredity, 18 ff.; Ap Richard, Marriage and Divorce, 25, 34, 35.

[316] Boswell, Life of Johnson, VII, 288. For discussion of Dr. Johnson's philosophy see Jeaffreson, Brides and Bridals, I, 338, 339; II, 278-88; Macqueen, op. cit., 482, 483; Law Review, I, 369, 370.

[317] Sixty between 1715 and 1775; 14 between 1775 and 1780; 110 between 1800 and 1852: Geary, Marriage and Family Relations, 18; Morgan, Marriage, Adultery, and Divorce, II, 239, 240; Report of Commission (divorce), 1852-53.

[318] "One witness (if credible) is sufficient evidence to the jury of any single fact, though undoubtedly the concurrence of two or more corroborates the proof. Yet our law considers that there are many transactions to which only one person is privy; and therefore does not always demand the testimony of two which the civil [and ecclesiastical] law universally requires. 'Unius responsio testis omnino non audiatur.' To extricate itself out of such absurdity, the modern practice of the civil law courts has plunged itself into another. For, as they do not allow a less number than two witnesses to be plena probatio, they call the testimony of one, though never so clear and positive, semi-plena probatio only, on which no sentence can be founded. To make up, therefore, the necessary complement of witnesses, when they have one only to a single fact, they admit the party himself (plaintiff or defendant) to be examined in his own behalf; and administer to him what is called the suppletory oath; and if his evidence happens to be in his own favour, this immediately converts the half proof into a whole one."—Blackstone, Commentaries, III, 370. Cf. also Bishop, Marriage, Divorce, and Separation, II, § 456; Law Review, I, 378, 379.

[319] Law Review, I, 379, 380. See the illustrative case of Evans v. Evans in Notes of Cases in Ecc. and Mar. Courts, II (1842-43), 470-76. Cf. Bishop, op. cit., I, § 1532; Burn, Ecc. Law, II, 503e-503g.

[320] According to the writer in the Law Review, I, 367, two thousand pounds is not an overcharged estimate. "In some cases even the preliminary proceedings in Doctors' Commons will cost nearly as much. From the evidence of Mr. Swaby, the Registrar of the Admiralty Court, before the Select Committee, p. 33, it appears that even in an ordinary litigation, with moderate opposition, and where the witnesses are at hand, the expense of obtaining a definitive sentence of divorce à mensâ may reasonably amount to 1700 l.; and this merely to lay a foundation for the proceedings before Parliament, and quite independently of the action at law. It is well known that Lord Ellenborough's divorce cost 5000 l."—Ibid., 367 n. 6. At the same time the cost of a divorce a vinculo in Scotland was only 25 l.: ibid., 367, 368. But in the Evidence before the Select Committee of the House of Lords, 1844, 39, the expense of getting a full divorce is then put at about 800 or 900 pounds.

[321] Lecky, Democracy and Liberty, II, 201, 202; also cited by Jeaffreson, Brides and Bridals, II, 342, 343, note. For this case see Morgan, Marriage, Adultery, and Divorce, II, 234-313.

On the law before 1857 see Poynter, Doctrine and Practice of Ecc. Courts in Doctors' Commons, 68 ff. Against the proposed alteration is Keble, Sequel of the Argument against immediately repealing the Laws which treat the Nuptial Bond as indissoluble (Oxford, 1857), 196-220; while strongly in favor of a reform are the anonymous authors of Plea for an Alt. in the Divorce Laws (London, 1831), 1 ff.; and Observations on the Marriage Laws (London, 1815); as well as much earlier Salmon, Crit. Essay Concerning Marriage (London, 1724), 109 ff.

[322] 20 and 21 Vict., c. 85: Statutes at Large, XCVII, 532-46. In general on the present English law of divorce see Glasson, Le mariage civil et le divorce, 317-27; Harrison, The Laws of Probate and Divorce, 115 ff.; Geary, Marriage and Family Relations, 237-430; Browning, Practice and Procedure, 1 ff.; Lecky, Democracy and Liberty, II, 202 ff.; Thwing, The Family, 194; Ernst, Marriage and Divorce, 55 ff.; Woolsey, Divorce, 174-78; Glasson, Hist. du droit, VI, 177-84; Neubauer, "Ehescheidung im Auslande," ZVR., VII, 297-99; Montmorency, "The Changing Status of a Married Woman," Law Quart. Rev., XIII, 189-92; Hirschfeld, "The Law of Divorce in England and in Germany," ibid., XIII, 399-405.

[323] Hansard's Parl. Debates, 3d series, CXLIV-VIII. "The discussions on the subject were curious as showing how powerfully, even to that late period, theological methods of thought and reasoning prevailed in the British Legislature. There were speeches that would seem more in place in a church council than in a lay Parliament."—Lecky, Democracy and Liberty, II, 202.

[324] 36 and 37 Vict., c. 66, secs. 16, 31.

[325] See Geary, Marriage and Family Relations, 238 ff., for the jurisdiction and procedure of these courts. Cf. also Harrison, The Laws of Probate and Divorce, 191 ff.

[326] 20 and 21 Vict., c. 85, sec. 27: Statutes at Large, XCVII, 537. But various "absolute" or "discretionary" bars may be pleaded against a decree. On these see Geary, op. cit., 267-304; Harrison, op. cit., 130 ff.; Woolsey, Divorce, 175.

[327] Hansard, Parl. Debates, 3d series, CXLII, 394 ff. See the suggestive paper of Hirschfeld, "The Law of Divorce in England and in Germany," Law Quart. Review, XIII, 400-403, giving illustrative passages from the debates relating to the unfair treatment of the wife.

[328] Hansard, op. cit., 3d series, CXLVII, 1545.

[329] Thus adultery, if long persisted in, ripens into "desertion." For a detailed discussion of "cruelty" and "desertion" according to definition and judicial precedent, and particularly on "constructive" and "moral" cruelty, see Geary, op. cit., 323 ff., 330 ff. Cf. Bishop, Marriage, Divorce, and Separation, I, §§ 1524 ff., especially 1532; Harrison, op. cit., 138 ff.

[330] "From the meaning of pain inflicted on the body it [cruelty] has in recent years attained the extended meaning that includes pain inflicted on the mind. Coldness and neglect may now almost of themselves constitute such cruelty as, coupled with misconduct, will give the right of divorce. The time may very reasonably be looked forward to when almost every act of misconduct will in itself be considered to convey such mental agony to the innocent party as to constitute the cruelty requisite under the Act of 1857. The difference already is very marked when we compare the 'cruelty' of today with the thrashing by the husband that constituted cruelty thirty years ago. Probably in those days the doctrine of a husband's right to administer physical correction to his wife was not entirely discredited. Today it is possible for a woman, with celerity and at little cost, to separate herself from her husband if she be able to prove that he is either a brute or a monster. Forty years ago the vast majority of women were indissolubly tied to their husbands though the whole world knew them to be both brutes and monsters. It is a great change in a short period."—Montmorency, "The Changing Status of a Married Woman," Law Quart. Review, XIII, 191, 192.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[352] Ibid., 370.

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

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

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

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

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

[358] An important epoch in the history of social progress is reached when our New England ancestors recognized the support of popular education as a proper function of local government. The event is all the more remarkable because it led the development of thought in the mother-country by more than two centuries and a half. However, the primary motive of the Massachusetts act of 1647 for the establishment of elementary and grammar schools was to provide religious knowledge. "It being one cheife p'iect of y^t ould deluder, Satan, to keepe men from the knowledge of y^e Scriptures, as in form^r times by keeping y^m in an unknowne tongue, so in these latt^r times by p'swading from y^e use of tongues, y^t so at least y^e true sence & meaning of y^e originall might be clouded by false glosses of saint seeming deceivers, y^t learning may not be buried in y^e grave of o^r fath^rs in y^e church & co[=m]onwealth," etc.—Mass. Col. Rec., II, 203. Cf. also Howard, Local Const. Hist., I, 66-70; and idem, "The State University in America," Atlantic Monthly, LXVII (1891), 332 ff.

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

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

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

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

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

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

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

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

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

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

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

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

[371] See sec. iv, below.

[372] Ellis, Puritan Age, 185.

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

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

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

[376] Goodwin, Pilgrim Republic, 386.

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

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

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

[380] By Brigham, Mass. Hist. Soc. Proceedings, IV, 283, 284. In general on civil marriage in New England see Lechford, Plain Dealing (Boston, 1867), 86, 87, or in 3 Mass. Hist. Coll., III, 94; Dunton, Life and Errors (1686), in 2 Mass. Hist. Coll., II; Mem. Hist. of Boston, I, 196; Read, in Coll. of Old Col. Hist. Soc., No. 2, 9; Friedberg, Eheschliessung, 470-78; Drake, Making of New England, 98; Oliver, Puritan Commonwealth, 415; Hildreth, Hist. of U. S., I, 192; Weeden, Ecc. and Soc. Hist. of New England, I, 217 ff., and Index; Cook, "Marriage Celebration in the Colonies," in Atlantic Monthly, LXI, 350 ff.; and especially the excellent chapter in Earle's Customs and Fashions of Old New England, 36-81.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[395] Hutchinson, Hist. of Mass., I, 318. At least twenty-two of these bonds are extant. One, dated Jan. 11, 1686-87, given "unto Edward Randolph, Esq., Secretary of his Majesty's Territory and Dominion," may be found among the "Usurpation Papers" in 3 Mass. Hist. Coll., VII, 170; and also in New Hamp. Provincial Papers, II, 18. The other twenty-one are in the Early Court Files of Suffolk, Nos. 29996-30016. Following is a copy of the first:

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

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

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

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

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

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

[398] Note by Whitmore, Andros Tracts, II, 37. "'Tis confessed," says Increase Mather referring to this incident, "that once or twice a Debauched Priest has appeared amongst them; particularly one Vardenbosch, who, besides the good work of Baptizing a noted whore or two of his acquaintance, made private Marriages without any previous publication of Banes (which is a nusance & Bane to all humane society); and yet so tender was the government as only to give them some Orall Rebukes, upon which the guilty Knaves have run away."—Mather, "A Vindication of New England," Andros Tracts, II, 36, 37. For the passage in Sewall's Diary referred to, see 5 Mass. Hist. Coll., V, 98. There is a discussion of the first clerical marriage in New England, with reference to Vanderbosk, in Historical Magazine and Notes and Queries, VIII, 279, 348.

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

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

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

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

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

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

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

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

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

[408] Lodge, Short History, 462.

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

[410] Sewall, Diary, in 5 Mass. Hist. Coll., VII, 233.

[411] Earle, Customs and Fashions, 73, 74.

[412] Earle, Customs and Fashions, 77. "A poem, by Mrs. Emma Willard, entitled 'Bride-Stealing, a Tale of New England's Middle Ages,' is preserved in Everest's Poets of Connecticut. It gives a poetical account of one among many instances of 'stealing the bride' that occurred in the early days of the colony."—Hollister, Hist. of Conn., I, 438, note. See also Stiles, Windsor, 475; Weeden, Ecc. and Soc. Hist. of N. E., I, 295; and Huntington, Celebration of the 200th Anniversary of Hadley (Northampton, 1859), 43.

[413] See above, chap. x, sec. ii, p. 441, note 3.

[414] Earle, Customs and Fashions, 77-79, where several instances are discussed. See also Prime, Along New England Roads; Weeden, Ecc. and Soc. Hist. of N. E., II, 538.

[415] Nourse, Hist. of the Town of Harvard, Mass., 1732-1893 (Harvard, 1894), 498, gives details as to marriage fees received and entered in his record by the local clergyman. At first John Seccomb usually had 5 shillings; later, about 1750, his fee became "one pound old tenor;" still later generally "a dollar," or "half a dollar," and once a "pistareen." From 1760 Rev. Joseph Wheely usually records "2£ 5s." During the Revolution the ordinary charge was six shillings legal money.

[416] Sack-posset was compounded of milk, spirits, and other ingredients; and it was eaten with a spoon: Sewall's Diary, in 5 Mass. Hist. Coll., VI, 403, note. On the wonderful mixed drinks of the New England Puritans see Mrs. Earle's delightful chapter on "Old Colonial Drinks and Drinkers," Customs and Fashions, 163-83; and also Bliss, Side Glimpses from the Colonial Meeting-House, 12-28.

[417] Lodge, Short History, 462, 463; cf. Sanford, Hist. of Conn., 125. Bailey, Hist. Sketches of Andover, 74-78, gives interesting details as to weddings and marriage settlements; and Brooks, Olden Time Series: Days of the Spinning-Wheel, 32, 33, reprints specimens of marriage notices taken from newspapers of the eighteenth century. On these festivities, advertisements, and settlements see also Earle, Customs and Fashions, 60-77.

[418] Sewall's Diary, in 5 Mass. Hist. Coll., VI, 403.

[419] Ibid., VII, 253.

[420] Plym. Col. Rec., XI, 13, 190; cf. Palfrey, Hist. of New England, II, 20; and Brigham, Plym. Col. Laws, 44, 272.

[421] Plym. Col. Rec., XI, 189,190; cf. ibid., 52, 53. Records of births, deaths, and marriages are printed ibid., VIII. The record of marriages was sometimes included in the proceedings of the general court: ibid., I.

[422] In the edition of the laws, 1660, notice is to be placed "upon some post of their Meeting-house door": Whitmore, Col. Laws of Mass. (1660-72), 51, 52: cf. ibid. (1672-86), 101.

[423] Mass. Col. Rec., I, 275; Whitmore, Col. Laws of Mass. (1660-72), 51, 52; ibid. (1672-86), 101.

The meeting-house on Sunday or lecture-day was a general clearing-house for news and gossip; and not the least inviting topics were supplied by the marriage notices. "There they read, as from an old newspaper, of an intention of marriage between persons known to everybody; and although the town clerk had stood up in the congregation and screamed it at the top of his voice, it was an endless subject of comment, especially if the woman had as publicly renounced the intention—as women sometimes did."—Bliss, Colonial Times on Buzzard's Bay, 77, 78.

[424] Edes, in Mem. Hist. Bost., II, 315, and n. 2.

[425] For instance, on May 22, 1651, such a petition from Mary Longe was allowed, provided "she be published according to law": Mass. Col. Rec., III, 232. Sept. 7, 1643, "Jacob Sheath & Margaret Webbe are permitted to joyne in marriage, though but twice published": ibid., II, 46. May 30, 1644, "without further publishment," Robert Parke "hath libertye to proceed in marriage with Alice Tompson": ibid., III, 3.

[426] Mass. Col. Rec., II, 15; IV, Part I, 290; cf. ibid., I, 275, 276; and Whitmore, Col. Laws of Mass. (1660-72), 188; ibid. (1672-86), 130. But town clerks continued to act: Salem Town Rec., 148. The office of "Clark of the writts" seems to have been created in 1641, primarily to issue summons and attachments: Mass. Col. Rec., I, 344, 345. See also "Province Laws of New Hampshire," in Coll. of New Hamp. Hist. Soc., VIII, 31. Originally clerks of the writs were appointed by the general court; but later it was ordered that they should be licensed by the shire court or court of assistants. Those presented for license were first nominated in town-meeting: Mass. Col. Rec., II, 188; Dorchester Town Rec., 116; Salem Town Rec., 148, 195; Boston Town Rec. (1660-1701), 100, 103, 130, 197. Cf. Howard, Local Const. Hist., I, 90, 91, 331.

[427] Whitmore, Col. Laws of Mass. (1660-72), 188; ibid. (1672-86), 130; Mass. Col. Rec., II, 59.

[428] See the acts of 1692 and 1696: Acts and Resolves, I, 61, 209, 210. By the former statute ministers and justices are required to make a quarterly report of marriages solemnized by them to the clerk of the sessions of the peace. The act of 1716, referred to in Sewall's Diary, provides that the town clerk shall send in to the same officer an annual transcript of marriages recorded by him. "The volume of such returns for Suffolk County has very recently (written 1882) been transferred to the custody of the city registrar of Boston."—Sewall's Diary, in 5 Mass. Hist. Coll., VII, 112, and the note by the editors.

[429] Intentions of marriage were to be published three times, or else on fourteen days' written notice: "General Lawes and Liberties of New Hamp.," Coll. New Hamp. Hist. Soc., VIII, 23. See also the Cutt Code, Provincial Papers, I, 396, 397.

[430] Doyle, English Colonies, II, 201 ff.; Lodge, Short Hist., 397 ff.; Hildreth, Hist. of U. S., I, 200; Bancroft, Hist. of U. S., I, 217, 218, 262.

[431] Shirley, "Early Jurisprudence of New Hampshire," Procds. New Hamp. Hist. Soc. (1876-84), 309.

[432] Belknap, Hist. of New Hampshire, III, 211.

[433] Provincial Papers, IV, 832 (1737).

[434] Conn. Col. Rec., I, 47, 48 (1640), 540; Trumbull, True Blue Laws, 106. Compare The Code of 1650 (Hartford, 1836), 67, 68.

[435] The Book of General Laws of 1673 (Hartford, 1865), 46. The Acts and Laws (New London, 1715), 75, require three publications or eight days' posting; while by the Acts and Laws (New Haven, 1769), 144-47, intentions are to be announced only eight days before the celebration "in some public Meeting or Congregation on the Lord's Day, or on some public Fast, Thanksgiving, or Lecture Day, in the Town, Parish, or Society where the Parties or either of them do ordinarily reside," or else posted eight days, as before.

[436] For the law of registration see Conn. Col. Rec., I, 48, 105, 106, 551; Trumbull, op. cit., 123.

[437] New Haven Col. Rec., II, 599, 600, 607; Trumbull, op. cit., 241, 242, 255; Atwater, Hist. of New Haven Colony, 363.

[438] R. I. Col. Rec., I, 187; Staples, First Proceedings, 47, 48.

[439] Arnold, Hist. of Rhode Island, I, 208.

[440] Publication on training day seems to have been customary elsewhere in New England, doubtless that day being one of the "public times" referred to in the Massachusetts laws.

[441] This practice may be illustrated by the following anecdote concerning the marriage of Ruth Wilkinson and William Hopkins at Providence, related by Mr. C. C. Beaman in Hist. Coll. Essex Inst., II, 116: "The lovers could not muster courage enough to speak to the 'awful Justice,' for Mr. Wilkinson (Ruth's father) held that office so dignified in former days. In the house or office it was the custom to post up 'Intentions of Marriage.' The timid lovers, who had often looked with an envious or emulous eye upon such important steps preliminary to a 'consumation devoutly to be wished,' wrote a notice of their 'intentions,' and placing it unobserved upon the table of the 'Justice,' watched to see how it would be regarded. 'Squire Wilkinson, as they saw by a peep through the door, took up the paper, read it, and deliberately posted it up in the proper location. There were some blushes on the cheeks of Ruth that day, probably, but the desired approbation thus ingeniously obtained soon led on to marriage."

[442] Arnold, Hist. of R. I., I, 260; R. I. Col. Rec., I, 330.

[443] Rider's Laws and Acts (1705), 12.

[444] R. I. Col. Rec., III, 362; also in Rider's Laws and Acts (1705), 44.

[445] R. I. Col. Rec., III, 436; cf. ibid., IV, 395, 396; Rider, op. cit., 50.

[446] Arnold, Hist. of R. I., II, 3; R. I. Col. Rec., III, 436, 437. By this act fourteen days' notice is required of those living in the jurisdiction.

[447] Compare Rider's Charter and Laws (1719), 12, 13, 47, 48; Acts and Laws (1745), 30, 31, 176, 177 (1733), 100 (registration act of 1727); and Rider's Supp. Pages to the Digest of 1730, 258, 259 (act of 1733).

[448] The prescribed notice is in the following form:

"Know all Men by these Presents, that A. B. of —— and C. D. of —— have declared unto me their Intention of Marriage: I do therefore hereby make public the said Intention. If any Person knows any just Cause or Impediment why these Two Persons shall not be joined together in Marriage, they may declare the same as the Law directs. Given under my Hand and Seal at —— this —— Day of —— Anno Domini ——."—Acts and Laws (Newport 1767,), 172, 173.

[449] The marriage certificate is in the following form:

"I Hereby certify, That A. B. of —— Son of —— and C. D. of —— Daughter of —— were lawfully joined together in Marriage on the —— Day of —— Anno Domini —— by me the Subscriber."

[450] Acts and Laws (Newport, 1767), 172-75.

[451] See the case of Usher v. Troop (Throop), 1724-29, in MSS. Records of the Superior Court of Judicature (Mass.), 1725-30, folio 236. In 1724 John Usher, of Bristol, a minister of the Church of England, convicted in the inferior court of common pleas of marrying a couple without certificate of the town clerk, was fined 50 pounds and "forever thereafter disabled to Joyn Persons in Marriage." On appeal it was found: "If the Constitutions and Canons Ecclesiastical of the Church of England are sufficient to support the Appellant here, in Joyning Persons together in Marriage without such certificate.... Then the Jury say the Applt is not Guilty; otherwise they say he is Guilty." The appeal was finally dismissed (1729) on default of the "appellee."

[452] See chap. xviii, i.

[453] "Il y avait même un tel mélange de la religion à toutes les circonstances de la vie civile, que la législation, en certaines matières, en référait à la Bible qui était, pour ainsi dire, le corpus juris des émigrants dans la Nouvelle-Angleterre. La famille, où ils avaient puisé le sentiment religieux, était forte parce qu'elle était unie; et le père, qui ressemblait en quelque sorte au patriarche d'autrefois, avait une autorité incontestée qu'on aimait, car elle était composée de bienveillance et de justice."—Carlier, Le mariage aux États-Unis, 7, 8.

[454] "Between these two extreme views—that of marriage as merely a civil contract and marriage as a sacrament—stands that of the Jewish law. The act of concluding marriage is there certainly also considered as a contract, which requires the consent of both parties and the performance of certain formalities, similar to other contracts, and which, under certain circumstances, can be dissolved. But, inasmuch as marriage concerns a relation which is based on morality and implies the most sacred duties, it is more than a mere civil contract."—Mielziner, The Jewish Law of Marriage and Divorce, 25, 26. But "the presence of a rabbi or minister is, according to the Talmudic Law, not required at the betrothal or the nuptials. The prescribed benedictions were pronounced either by the bridegroom or by any of the friends present. Such was also the Jewish custom during the Middle Ages."—Ibid., 84. Cf. Amram, The Jewish Law of Divorce, 39.

[455] See Shirley's comments on the Cutt Code, "Early Jurisprudence of New Hampshire," Procds. New Hamp. Hist. Soc. (1876-84), 273 ff.

[456] Earle, Customs and Fashions, 36.

[457] Weeden, Ecc. and Soc. Hist. of N. E., I, 230; Conn. Col. Rec., I, 8.

[458] Weeden, loc. cit.; Stiles, Windsor, 54.

[459] Earle, Customs and Fashions, 37.

[460] Acts and Laws (1715), 60; see also Conn. Col. Rec., I, 538; Trumbull, Blue Laws, 104.

[461] In 1682: Weeden, op. cit., I, 272; Munro, Bristol, R. I., 115.

[462] New Haven Col. Rec., II, 608; Trumbull, op. cit., 258.

[463] Plym. Col. Rec., XI, 223.

[464] Whitmore, Colonial Laws of Mass. (1672-86), 236, 237.

[465] Ibid. (1660-72), 136.

[466] Ibid., 196; ibid. (1672-86), 148; Mass. Col. Rec., I, 186.

[467] MSS. Records of the County Court for Middlesex, III, 21.

[468] Whitmore, op. cit. (1660-72), 260; also ibid. (1672-86), 149. There is a copy of one of the orders sent to the constables, differing slightly in capitalization and punctuation from the above, in the MSS. Files of the County Court for Middlesex, Dec., 1668.

[469] Here is the list from Marlboro:

"Samuell Goodenow, from under family Gouernment, Liuing upon his oune ground.

"Isaius Tailer and Will Tayler, Renters....

"John Howard ... out of his time ... and Entending as fast as he can to settell himselfe: so to liue under family gouernment.

"Rober Williams...."—MSS. Files of the County Court for Middlesex, Dec. 1668.

[470] The selectmen of "Billerica" thus "strove to free themselves of all blame":

"To the Hon^rd Court....

"Whereas Aaron Jaquese, a single prson liuing in our towne, who hath for sometime liued from vnder family gouernment contrary to Court Order, being su[=m]uned by y^e Constable to appear before this Honored Court: These are to enforme ... that ... Aaron Jaquese hath bin much complained of by seuerall of our inhabitants, for negligence in his calling, hauing obserued him much giuen to idleness; also shifting from house to house, & vnfaithfull to his Couenants & promises with such prsons, with whom he has engaged service, vpon which Complaints the selectmen haue endeauered acording to law, to place him foorth in service, but ca[=n]ot effect it. Our Humble request to this Hon'd Court is, that they would please to despose of ... Aaron to service, or otherwise to order something concering the same as may be effectuall to render him to a more regular Course of life, as y^e wisdome of this Court shall judg best. So shall we pray &c.

Your humble seruants."

The MSS. Files of the County Court for Middlesex, April, 1669, also contain a certificate of the selectmen of Charlestown to the effect that John Swain had given satisfaction for orderly behavior.

[471] Thus Judge Sewall went home with Widow Denison from her husband's funeral and "prayed God to keep house" with her: Diary, in 5 Mass. Hist. Coll., VII, 179 (March 26, 1718). Cf. also Earle, Customs and Fashions, 45, 46.

"The colonists married early and they married often. Widowers and widows hastened to join their fortunes and sorrows. The father and mother of Governor Winslow had been widow and widower seven and twelve weeks respectively, when they joined their families and themselves in mutual benefit, if not in mutual love. At a later day the impatient governor of New Hampshire married a lady but ten days widowed."—Earle, op. cit., 86. On early marriages see Weeden, Ecc. and Soc. Hist. of N. E., II, 541, 739.

[472] Earle, op. cit., 38.

[473] Dunton's Life and Errors (Westminster, 1818), I, 102, referring to Boston in 1686. In Dunton's Letters from New-England (ed. by Whitmore for the Prince Society, Boston, 1867), 99, where this passage appears in a modified form, the age of a "thornback" is reduced to twenty-six years. The paragraph is also quoted by Weeden, op. cit., I, 299, 300; and Earle, op. cit., 38, 39.

[474] Mass. Col. Rec., II, 211, 212; Whitmore, Col. Laws of Mass. (1660-72), 172; ibid. (1672-86), 216.

[475] Mass. Col. Rec., I, 283.

[476] Ibid., II, 86.

[477] MSS. Records of the County Court of Suffolk, 113.

[478] Mass. Col. Rec., I, 198.

[479] Ibid., 311.

[480] MSS. Records of the County Court of Middlesex, I, 18. Apparently Edward's attempts were a failure; for on Oct. 4, 1653, he was "granted liberty to use what more effectual means he may or can to send for his wife from England": ibid., I, 32.

[481] Mass. Col. Rec., III, 349, 350. But on petition, in order to present further testimony, the general court granted a respite.

[482] MSS. Early Court Files of Suffolk County, No. 531. This case is also partially reported in Mass. Col. Rec., IV, Part II, 84; and quoted in Shirley, "Early Jurisprudence of New Hampshire," Procds. New. Hamp. Hist. Soc. (1876-84), 310.

[483] MSS. Records of the County Court of Suffolk, 9.

[484] MSS. Early Court Files of Suffolk, No. 867.

[485] MSS. Records of the County Court of Suffolk, 279.

[486] MSS. Records of the County Court of Middlesex, III, 63.

[487] MSS. Early Court Files of Suffolk, No. 527. For similar legislation see New Haven Col. Rec., II, 600; Trumbull, Blue Laws, 243.

[488] Mass. Col. Rec., V, 4; Shirley, Early Jurisprudence of New Hamp., 310, 311. The harboring of "strangers"—and "stranger" might be a father, daughter, or son from a neighboring town—gave the good people of the colonies a great deal of trouble. See the illustrations in Weeden, Ecc. and Soc. Hist. of N. E., I, 272; and Howard, Local Const. Hist., I, 87, 88, where the town records are cited.

[489] Whitmore, Col. Laws of Mass. (1660-72), 51, 171; ibid. (1672-86), 101. Cf. Mass. Col. Rec., III, 212 (1650). In 1638 John Emerson, of Scituate, was tried before the general court for abusing his wife: ibid., I, 232; the same year for beating his wife, Henry Seawall was sent for examination before the court at Ipswich: ibid., 233; and in 1663 Ensigne John Williams, of Barnstable, was fined by the Plymouth court for slandering his wife: Goodwin, Pilgrim Republic, 596.

It would seem that the husband, too, really needed some legal protection. The early court records disclose the sad fact that husband-beating was painfully frequent in colonial times. Thus in Plymouth jurisdiction Joan, the wife of Obadiah Miller of Taunton, was presented "for beating and reviling her husband, and egging her children to healp her, bidding them knock him in the head, and wishing his victials might [~c]oake him."—Plym. Col. Rec., III, 75.

The bad practice was not unknown among the "good wives" of Salem. For example, in 1637, at the fifth quarter court, it was decreed: "Whereas Dorothy the wyfe of John Talbie hath not only broak that peace & loue, w^ch ought to haue beene both betwixt them, but also hath violentlie broke the king's peace, by frequent Laying hands vpon hir husband to the danger of his Life, & Condemned Authority, not co[=m]ing before them vpon command, It is therefore ordered that for hir misdemeaner passed & for p^rvention of future evills that are feared wilbe co[=m]itted by hir if shee be Lefte att hir Libertie. That she shall be bound & chained to some post where shee shall be restrained of hir libertye to goe abroad or comminge to hir husband till shee manefest some change of hir course.... Only it is pmitted that shee shall come to the place of gods worshipp, to enjoy his ordenances." Later "Dorothy" was punished again for a similar offense: Hist. Coll. Essex Inst., VII, 129, 187. Cf. Howard, Local Const. Hist., I, 326, 327. For further illustrations see Weeden, Ecc. and Soc. Hist, of N. E., I, 294.

[490] Whitmore, Col. Laws of Mass. (1660-72), 129; New Haven Col. Rec., II, 578, and Trumbull, Blue Laws, 201; Conn. Col. Rec., I, 515, and Trumbull, op. cit., 69; New Hamp. Hist. Coll., VIII, 12; Shirley, Early Jurisprudence of N. H., 311; Andros Tracts, III, 13. Cf. a similar law for early New York: Duke of Yorke's Laws, 15.

[491] Plym. Col. Rec., XI, 29, 108, 190, 191.

[492] For the case see ibid., III, 5: "Wee psent Jonathan Couentry ... for makeing mocion of marriage vnto Katheren Bradberey, servant vnto M^r Burne, of the same town, without her master's consent, contrary to Court orders."

[493] See ibid., IV (1666/7), 140, 158, 159.

[494] Goodwin, Pilgrim Republic, 598; cf. Palfrey, Hist. of New England, II, 21.

[495] Goodwin, op. cit., 597.

[496] Dec. 16, 1679. At a court held at Charlestown, George Parminter and his wife convicted of fornication before marriage, court respited their sentence till next court, and ordered that their parents be summoned then to appear to give answer why they denied them the consummation of their marriage for so many months after they were in order thereto: MSS. Records of the County Court of Middlesex, III, 316.

[497] Acts and Laws of Conn. (New Haven, 1769), 144. Substantially the same provision appears in the Code of 1643: Trumbull, Blue Laws, 106, 107; Conn. Col. Rec., I, 92; in The Book of General Laws, 1673 (Hartford, 1865), 46; and in Acts and Laws (New London, 1715), 75.

[498] New Haven Col. Rec., II, 600; Trumbull, op. cit., 242. Cf. Atwater, Hist. of Col. of New Haven, 362.

[499] Whitmore, Col. Laws of Mass. (1660-72), 172; ibid. (1672-86), 101; Mass. Col. Rec., II, 207. Cf. Friedberg, Eheschliessung, 477, note; Newhall, Ye Great and General Court, 349-65, giving interesting examples.

[500] MSS. Records of the County Court for Middlesex, I, 131.

In 1662 Marmaduke Johnson, who by his own confession had a wife in England, was convicted of trying to steal the affections of the daughter of Samuel Green without his knowledge and consent; and he was ordered to join his spouse by the first oportunity: ibid., I, 206. The next year Johnson was "fined £20 unless he give security" so to depart, in the meantime being "committed until the order is performed": ibid., 249. It may be further noted that on April 7, 1674, a Marmaduke Johnson is spoken of as "late constable of Cambridge": ibid., III, 87.

[501] MSS. Records of the County Court of Suffolk, 106.

[502] Irons was fined 20 shillings, and Barnum half that sum: MSS. Records of the County Court of Suffolk (July 28, 1674), 255, 256. On the same day "Edward Peggy being bound over for using indirect means 'by powders or other wayes unlawfull to Engage the affections or desires of women kinde to him' and for begetting a bastard child"—in particular for illegally "drawing away the affections of two girls"—was assessed 10 pounds and put under bonds for good behavior: ibid., 261.

[503] Ibid. (Feb. 4, 1674-75), 301. The records of the court of assistants in Mass. Col. Rec. (Sept. 1, 1640), I, 299, 300, contain a similar case.

[504] Law of 1641: Whitmore, Col. Laws of Mass. (1660-72), 137.

[505] Dunton, Life and Errors, I, 103; idem, Letters from New England, 101, 102.

[506] Sewall's Diary, in 5 Mass. Hist. Coll., V, 490.

[507] Earle, Customs and Fashions, 57.

[508] Sewall's Diary, in 5 Mass. Hist. Coll., V, 491.

[509] Ibid., 503.

[510] Sewall's Letter-Book, in 6 Mass. Hist. Coll., I, 213.

[511] Sewall's Diary, in 5 Mass. Hist. Coll., VI, 24. In like spirit the judge manages the marriage of his daughter Mary with Sam Gerrish: Sewall's Letter-Book, in 6 Mass. Hist. Coll., I, 379; Diary, in 5 Mass. Hist. Coll., V, xxxviii; VI, 250, 251, 263. On these and other illustrations of New England courtship see Earle, Customs and Fashions, 56 ff.

[512] Mass. Col. Rec., I, 92 (1631); Whitmore, Col. Laws of Mass. (1660-72), 55 ("Body of Liberties," 1641), 128; ibid. (1672-86), 15; New Haven Col. Rec., II, 577; Trumbull, Blue Laws, 200; Conn. Col. Rec., I, 77; Trumbull, op. cit., 60; New Hamp. Prov. Papers, I, 385 (Cutt Code). Beginning with the "Body of Liberties," 1641, the capital law of Massachusetts cites Lev. 20:19; 18:20; Deut. 22:23, 24; and the laws of the other colonies are supported by the same or like passages of the Jewish Code.

[513] The "elders" being appealed to promptly decided that the three persons then lying in prison should be put to death, "if the law had been sufficiently published." But for the reasons named in the text the general court thought it was "safest that these persons should be whipped and banished": Winthrop, Hist. of New England, I, 309; Mass. Col. Rec., I, 198, 202, 203, 225. Compare the excellent monograph of Davis, The Law of Adultery and Ignominious Punishments, 6-11, who gives the details regarding this case and the law of 1631; and calls attention to the English act of 1650, which classes incest and adultery among felonies, citing thereon Pike, Hist. of Crime in England, II, 182; and Blackstone, Commentaries, IV, 64.

[514] March, 1637-38. "The law against adultery made by the Particular Court in October, 1631, is confirmed, that whosoever lieth with another man's wife, both shall be punished by death; and this is to be promulgated."—Mass. Col. Rec., I, 225. This law was confirmed in 1640, the act of 1631 being then formally repealed: ibid., I, 301.

[515] In 1643-44, at a quarter court held in Boston, "James Brittanie being found guilty of adultery with Mary Latham, he was condemned to death. Mary Latham being found guilty of adultery with James Brittanie, she was condemned to death."—Record of the Court of Assistants of Mass. Bay Colony, 1641-44 (from the Barlow MS.) in Whitmore's Bibliographical Sketch of the Laws of Mass., xlii. According to Winthrop, Hist. of New England, II, 157-59, these persons were executed.

[516] Davis, The Law of Adultery, 15, 16.

[517] Thus on Sept. 7, 1641, for adulterous practices a man was "censured to bee sent to the gallos w^th a roape about his neck, & to sit upon the lather an houre, the roapes end throwen over the gallos, so to returne to prison."—Mass. Col. Rec., I, 335; cf. Davis, op. cit., 15. In 1645 Henry Dawson came near suffering the extreme penalty: Winthrop, op. cit., II, 305. Three years later the "Co^rte acquit Elisa : Pennion of the capitall offence charged upon her by 2 sev^rall inditements for adultery," but sentence her to be "whiped" in Boston and again "at Linn w^thin one month" (1648): Mass. Col. Rec., II, 243. Still more striking are the cases of Elizabeth Hudson and Bethia Bulloine (Bullen), "married women and sisters," carried from the county court at Boston before the assistants in 1667. On a special verdict by the jury the latter tribunal sentenced each "to be by the Marshall Generall ... on y^e next lecture day presently after the lecture carried to the Gallowes & there by y^e Executioner set on the ladder & with a Roape about her neck to stand on the Gallowes an half houre & then brought ... to the market place & be seriously whipt w^th tenn stripes or pay the Sume of tenn pounds," standing committed till the sentence be performed: MSS. Early Court Files of Suffolk (Sept. 11, 1667), No. 821. Whether this sentence was for adultery as charged or for "lascivious carriage" we are not informed. In Noble's Records of the Court of Assistants, I, 56, 57, 70, 71, 73, 74, 114, 115, 240, 252, are ten cases of punishment by rope and gallows and whipping instead of death, the jury plainly avoiding the penalty for adultery under the law.

[518] Under date of Sept. 2, 1674, the Suffolk Files contain a petition from a husband praying that his wife—for adultery banished to Rhode Island the preceding year—might "be allowed to return in peace." His petition was denied, although he avers that through his wife's absence "his life is most uncomfortabell," having "no Relation at all that liveth with him and it being low with him and not abell to ... pay Rent in seuerall places & not willing to Remaine away from the things of god ... to goe to liue in a place and with such as he never delighted in."—MSS. Early Court Files of Suffolk, No. 1325.

[519] But the law is not entirely clear: see Plym. Col. Rec., XI, 12; and the comments of Davis, The Law of Adultery, 16.

[520] See the facts collected by Davis, op. cit., 16-32. For Massachusetts, between 1633 and 1681, are a number of sentences to wear a badge for offenses other than adultery, such as drunkenness, theft, wanton behavior, incontinence, or the disturbing of public worship. In most instances the mark is to be worn temporarily; but in three cases it is a continuous punishment. Thus on March 4, 1633-34, for drunkenness, Robert Coles is "sentenced to be disfranchised, and to wear about his neck, and to hang about his outer garment a D made of red cloth set upon white, to continue for a year and not to leave it off at any time when he should come among company."—Davis, op. cit., 18; Mass. Col. Rec., I, 112. This appears to be the earliest reference to a red badge placed upon the outer garments. See also the case cited by Davis from Josselyn's Account of Two Voyages to New England (Veazie's reprint, Boston, 1865), 178, 179, occurring either in Massachusetts or Plymouth prior to 1671; the similar case of sentence to wear a "Roman B cut out ridd cloth," for unclean and lascivious behavior and blasphemous words: in Plym. Col. Rec., III, 111, 112 (March 5, 1656-57); and one in Mass. Col. Rec. (Sept. 3, 1639), 269.

[521] Plym. Col. Rec., I, 132.

[522] Ibid., II, 28 (1641).

[523] Ibid., XI, 95, 172.

[524] New Hamp. Prov. Papers, I, 384-86.

[525] By the marriage act of 13 W. III., 1701: New Hamp. Prov. Papers, III, 224. This act is retained in Acts and Laws of New Hamp. (Portsmouth, 1761), 53, 54; and ibid. (Portsmouth, 1771), 10, 11.

[526] There is a discussion of several cases in Shirley, "Early Jurisprudence of New Hamp.," Procds. New Hamp. Hist. Soc. (1876-84), 279 ff.

[527] Act of 1749: in Acts and Laws of R. I. (Newport, 1767), 6; also ibid. (Newport, 1752), 67, 68. By the earlier statute as given in Acts and Laws (1745), 118, the punishment is thirty-nine stripes or a fine not exceeding 10 pounds.

[528] Acts and Laws of Conn. (New Haven, 1769), 7; The Book of Gen. Laws, 1673 (Hartford, 1865), 2, 3; nearly the same in Acts and Laws (New London, 1715), 4, and ibid. (New London, 1750), 7.

[529] In 1654, for rape, a man, besides being whipped in Boston and again in Watertown, is sentenced during the court's pleasure to wear a rope around his neck, the end of it "hanging downe two feete long." If found at any time without the rope "aboue forty rodd from his house," he is to be whipped: Mass. Col. Rec., IV, Part I, 212. There is a similar case in 1642: Davis, The Law of Adultery, 30. That such sentences were executed is shown in a realistic way by a petition of 1670 preserved in the Suffolk Files. William Stacey, suffering for some offense not mentioned, prays "that the rope which he is forced to wear around his neck may be taken off. In answer the Secretary is required to send a copy of the Court's sentence to the Constable of Charlestoun that he may see that the sentence requiring the rope to be worn outside the clothes is carried out."—MSS. Early Court Files of Suffolk, No. 988. On May 6, 1646, "Elizabeth Fairefeild" petitioned the court of assistants that her husband might be discharged "from y^t pte of y^e censure inflicted on him for his notorious evills, of wearing y^e rope about his necke." He was, however, compelled to wear the rope six years more; for it was not until 1652 that his faithful wife's prayer was granted: Mass. Col. Rec., III, 67, 161, 273.

[530] Already in 1673, for having an illegitimate child and imposing it on her husband, a woman had been sentenced by the court, "if found in this Colony two months after this date that shee stands in the markett place on a stoole for one hower w^th a paper on hir breast w^th y^e Inscription Thvs I Stand For My Advlterovs And Whorish Carriage and that on a lecture day next after the lecture and then be seuerely whipt w^th thirty stripes."—Noble's Records of the Court of Assistants, I, 10.

[531] Acts and Resolves, I, 171. This provision seems to have been retained until it was omitted in the act of Feb. 17, 1785: The Perpet. Laws of the Com. of Mass. (Boston, 1789), 203, 204.

[532] MSS. Records of the Superior Court of Judicature, III (1700-14), fol. 206. This decree may not actually have been carried out. The record concludes, "she being big with child the sentence was suspended for the present."

[533] Ibid. (May 2, 1721), IV, foll. 355, 356. According to the MSS. Early Court Files of Suffolk, No. 15,180, the order of execution to the sheriff says she was convicted on her own confession and accused the negro Humphers of being the father. The woman was apparently an experienced sinner. Fifteen years earlier "Jemima Colefix ... being presented ... for whoredom with a Negro, appeared and owned the same but that it was before marriage with her present Husband." Severely whipped twenty stripes, costs, and stands committed: MSS. Records of the Court of General Sessions of Suffolk (Jan. 27, 1706), I, 144.

[534] MSS. Records of the Superior Court of Judicature (1730-33), fol. 49.

[535] Ibid. (1752-53), fol. 190. The MSS. Early Court Files of Suffolk, No. 29,729, show that on this conviction without further proof "George Rainer [Raynord]," Mary's husband, got a complete divorce. The statutory limit of forty stripes was originally fixed according to the "law of God": Winthrop, Hist. of N. E., II, (ed. 1825-26), 250.

[536] MSS. Records of the Supreme Judicial Court (1781-82), leaf 41. Besides the cases of conviction discussed in the text, there are in the records a number of instances of acquittal for the same offense. In the MSS. Early Court Files of Suffolk (May 28-30, 1700), No. 4715, is an interesting example of extradition for adultery; and the survival of the ancient "chattel" interest of the husband in the wife is revealed by three damage suits for trespass on account of alleged assault upon, and in one for detaining, the wife: MSS. Records of the Superior Court of Judicature (1763-64), fol. 70; ibid. (1767-68), fol. 163; ibid. (1775-78), fol. 144; ibid. (1739-40), fol. 286. A similar case of "drawing away the affections" of a daughter may be found in MSS. Early Court Files of Suffolk (1671-72), No. 1100.

[537] These convictions are usually not for "adultery," but for being in bed together, according to a clause of the act of 1694 providing that when a man is found in bed with another person's wife each offender shall receive not more than thirty stripes, unless one was surprised and not consenting. For examples, some of them acquittals and some convictions, see MSS. Records of the Superior Court of Judicature, I (Oct. 30, 1694), fol. 129; ibid., III (May 7, 1700), foll. 10, 11; ibid., 1736-38 (Aug. 8, 1738), fol. 209; ibid., 1757-59 (Aug. 1, 1758), 391; ibid., 1757-59 (Feb. 21, 1759), 554; ibid., 1760-62 (Sept. 16, 1760), foll. 122, 123; ibid., 1763-64 (Jan. 25, 1763), fol. 11; ibid., 1763-64 (April 26, 1763), fol. 44; ibid., 1767-68 (April 12, 1765), fol. 164; MSS. Records of Gen. Sessions of Suffolk (April 2, 1717), II, 151.

For the earlier period the Athenæum copy of the MSS. Records of the County Court of Suffolk, 34 (March 17, 1671-72), 113 (Jan. 28, 1672-73), 585 (May 5, 1679), 633 (Jan. 27, 1679-80), contains four analogous cases; and there is one in MSS. Records of the County Court of Middlesex (April 1, 1684), IV, 97.

[538] Thus at a superior court held at Falmouth for Cumberland and Lincoln counties, June 28, 1763, the "jurors present John Lawrence, husbandman, and Mary Lawton, both married, for adulterously dwelling together for five years, frequently lodging together in the same bed knowing each other to be married, being found adulterously in bed together and not surprised but consenting, and having carnal knowledge together. John was arraigned, pleaded not guilty, and the jury returned a verdict of guilty except to the charge of having committed adultery. 30 stripes and recognition in £100 to keep the peace." [Mary not tried.]—MSS. Records of the Superior Court of Judicature (1763-64), fol. 90. So also before a superior court held at Worcester, April 20, 1773, Joshua Phillips, laborer, presented by the jury for "committing adultery" with Mary, wife of Edward Rice, was acquitted. Then the jurors present them both "for being found at divers times in bed together.... They pleaded not guilty. Convicted. Joshua fined £20 and costs. Mary 20 stripes and costs."—Ibid. (1773-74), foll. 36, 38.

[539] Acts and Resolves, I, 56 (Oct. 29).

[540] See the "Letter from the Privy Council," Acts and Resolves, I, 56, note; and compare Davis, The Law of Adultery, 12, 13.

[541] Acts and Resolves, I, 208-10.

[542] By 13 Anne: in Acts and Laws (Portsmouth, 1761), 55, 56; and ibid. (Portsmouth, 1771), 42, 43.

[543] Revision of 1702, 73; Acts and Laws (New London, 1715), 74-76; ibid. (New London, 1750), 145; ibid. (New Haven, 1769), 145; ibid. (New London, 1784), 136.

[544] This case is in MSS. Records of the Superior Court of Judicature (1740-42), fol. 264. From the Suffolk Files (360-66, 557) Davis, The Law of Adultery, 13, 14, quotes the warrant of the sheriff for the execution; and also a notice of the case from the Boston Weekly News-Letter of Thursday, Feb. 10, 1743, stating that the daughter Elizabeth, with whom the crime was committed, had absconded.

[545] The five cases are as follows: (1) Salem, Oct. 28, 1729: Peter Harding, tailor, for having carnal knowledge with his daughter; gallows an hour, thirty-nine stripes, and capital I; MSS. Records of the Superior Court of Judicature (1725-30), fol. 274. (2) Worcester, Sept. 19, 1752: Jonathan Fairbanks, husbandman, and Sarah Armstrong, his wife's daughter; Jonathan sentenced as above, except twenty stripes: ibid. (1752-53), fol. 181. (3) Springfield, Sept. 24, 1754: Joseph Severance and Eunice Classon, his wife's sister; Joseph sentenced as above, except thirty stripes. (4) Eunice, particeps criminis in the preceding case, receives the same sentence, except twenty stripes: ibid. (1755-56), fol. 341. (5) Cambridge, Aug. 7, 1759: Judah Clark and Huldah Dudley, his wife's daughter; Huldah sentenced as above, except thirty stripes: ibid. (1757-59), 655.

[546] Goodwin, Pilgrim Republic, 599, 600.

[547] Cotton Mather, in his life of Danforth, says: "After his Contraction, according to the old usage of New England, unto the virtuous daughter of Mr. Wilson (whereat Mr. Cotton preached the sermon), he was married unto that gentle-woman, in the year 1651."—Mather, Magnalia, IV, c. 3, § 6, Vol. II, 50. Cf. Dexter, Congregationalism, 458 n. 166, who cites also a statement in Mather's Ratio, 112; likewise Winthrop, Hist. of New England, II, 382 n. 2, whose mistake has already been mentioned. Compare Earle, Customs and Fashions, 68 ff., who gives the "texts" of some of the betrothal sermons.

[548] Conn. Col. Rec., I, 47, 48.

[549] Shirley, "Early Jurisprudence of New Hamp.," Procds. New Hamp. Hist. Soc. (1876-84), 308.

[550] Goodwin, Pilgrim Republic, 600; cf. Plym. Col. Rec., XI, 172.

[551] Shirley, loc. cit., 308.

[552] Whitmore, Col. Laws of Mass. (1660-72), 55, 128; Conn. Col. Rec., I, 77; New Haven Col. Rec., II, 577; Trumbull, Blue Laws, 60, 200.

[553] Shirley, loc. cit., 308. This is true of Connecticut for the entire provincial period: Acts and Laws (New Haven, 1769), 7, but apparently not of Massachusetts under the second charter. In New Hampshire under the Canfield Code, 1682, the betrothed woman is still treated as married, but whipping is dispensed with: New Hamp. Prov. Papers, I, 444, 445. But by the act of 1701 she is punished for fornication as a single woman: ibid., III, 224.

[554] Shirley, loc. cit., 308.

[555] The whole of this curious law may prove instructive. It is enacted "That any person or persons that shall Comit Carnall Copulation before or without lawfull contract shalbee punished by whiping or els pay ten pounds fine apeece and bee Imprisoned during the pleasure of the Court soe it bee not aboue three daies but if they bee or wilbee married [i. e., a "delayed" marriage voluntarily solemnized or else marriage prescribed as a penalty] the one to the other; then but ten pounds both and Imprisoned as aforsaid; and by a lawfull Contract the Court vnderstands the mutuall consent of parents or guardians if there bee any to bee had; and a sollemne promise of marriage in due time to each other before two competent witnesses [this being the regulation of pre-contract already mentioned in the text]; and if any person or persons shall Comitt carnall Coppulation after contract and before Marriage they shall pay each fifty shillings and bee both Imprisoned," etc.—Plym. Col. Rec., XI, 172, 95, 46. Originally the punishment for fornication was left in the discretion of the magistrates: ibid., 12.

[556] Cf. Shirley, loc. cit., 308, 309.

[557] Stiles, Bundling in its Origin, Progress, and Decline (Albany, 1871), 13, 14. Grose, Dictionary of the Vulgar Tongue, thus explains the practice: "A man and a woman lying on the same bed with their clothes on; an expedient practiced in America on a scarcity of beds, when, on such occasions, husbands and parents frequently permitted travelers to bundle with their wives and daughters." This applies, of course, only to the first named and less interesting form of the custom. In almost the same words as those used by Stiles, Masson, Journeys in Belochistan, Afghanistan, etc., III, 287, describes the bundling of lovers among the Afghans: see Adams, Some Phases of Sexual Immorality, 31, note. In general on this custom consult Earle, Customs and Fashions, 62-64; Weeden, Ecc. and Soc. Hist. of N. E., II, 739, 864.

[558] Irving, Knickerbocker's Hist. of New York (Philadelphia, 1871), Book III, chaps. vii, viii, 217-28; cf. Stiles, Bundling, 45 ff.; Adams, Some Phases of Sexual Immorality, 31.

[559] Queesting (a seeking, similar to English "quest") seems to have existed until last century on the islands of Vlie, Wieringen, and perhaps elsewhere in Holland. "At night the lover has access to his mistress after she is in bed; and, upon an application to be admitted upon the bed, which is of course granted, he raises the quilt, or rug, and in this state queests, or enjoys a harmless chit-chat with her, and then retires. This custom meets with perfect sanction of the most circumspect parents, and the freedom is seldom abused. The author traces its origin to the parsimony of the people, whose economy considers fire and candles as superfluous luxuries in the long winter evenings."—Stiles, op. cit., 35, 36, citing Carr, The Stranger in Ireland (1807).

[560] Adams, Some Phases of Sexual Immorality, 33. Mr. Adams, however, while pointing out the "singular and to me unaccountable, fact" that traces of bundling, found so widely in the New England colonies, have not yet been discovered in England, thinks that it "could hardly have found its way as a custom" from Holland or the other countries named; and he mentions, by way of supporting his conclusion, its great prevalence in Cape Cod where, according to Palfrey, until about 1825, "there was a purer strain of English blood to be found ... than could be found in any county of England." But wherever the Dutch settled the custom of bundling was tenacious, lasting in Pennsylvania at least until 1845: Earle, Customs and Fashions, 63: and in New York at least until 1804: Stiles, op. cit., 111.

[561] Stiles, op. cit., 14-35, who cites various authorities for Wales, especially Pratt, Gleaning through Wales, Holland, and Westphalia (3d ed., London, 1797), I, 105-7; and Bingley, North Wales (London, 1804), II, 282. Cf. also Adams, op. cit., 32; and Brand, Popular Antiquities, II, 98.

[562] Bundling probably has its origin in the "proof-nights" which formerly were widely prevalent among the Teutonic peoples of Europe: see Fischer, Ueber die Probenächte, 12 ff., 24 ff., 32-36.

[563] Stiles, Windsor, 495; Weeden, Ecc. and Soc. Hist. of N. E., II, 739.

[564] Judd, Hadley, 247.

[565] "When a man is enamoured of a young woman and wishes to marry her, he proposes the affair to her parents.... If they have no objection, they allow him to tarry with her one night, in order to make his court to her. At their usual time the old couple retire to bed, leaving the young ones to settle matters as they can; who, after having sate up as long as they think proper, get into bed together also, but without putting off their undergarments, in order to prevent scandal. If the parties agree, it is all very well; the banns are published, and they are married without delay. If not, they part, and possibly never see each other again; unless, which is an accident that seldom happens, the forsaken fair one prove pregnant, and then the man is obliged to marry her, under pain of excommunication."—Travels in North America, 110, 111. Elsewhere he says that, while at first the practice may "appear to be the effects of grossness of character, it will, upon deeper research, be found to proceed from simplicity and innocence."—Ibid., 144. Cf. Adams, op. cit., 31, note; and Lodge, Short History, 438. The word "tarrying" is not always equivalent to "bundling," having a more general meaning. Nor was tarrying or bundling always restricted to one night; see Stiles, Bundling, 70, 71.

[566] See Stiles, op. cit., 51-60, for a long extract from the lively account of Peters, who says that in Connecticut bundling is "as old as the first settlement in 1634;" and that "about the year 1756 Boston, Salem, Newport, and New York, resolving to be more polite than their ancestors, forbade their daughters bundling on the bed with any young men whatever, and introduced a sofa to render courtship more palatable and Turkish;" but with more "natural consequences than all the bundling among the boors with their rurales pedantes through every village in New England besides." Of course, all this must be swallowed with a very large "grain of salt."

[567] Stiles, op. cit., 66.

[568] Anbury, Travels through the Interior Parts of America; in a Series of Letters (new ed., London, 1781), II, 37-40: cited by Stiles, op. cit., 66 ff. In a subsequent letter Anbury plagiarizes the passage from Burnaby which we have quoted in a preceding note.

[569] According to Worthington's History of Dedham (1827), 109—"a town only ten miles from Boston—I find that the Rev. Mr. Haven, the pastor of the church there, alarmed at the number of cases of unlawful cohabitation, preached at least as late as 1781 'a long and memorable discourse,' in which, with a courage deserving of unstinted praise, he dealt with 'the growing sin' publicly from his pulpit, attributing 'the frequent recurrence of the fault to the custom then prevalent of females admitting young men to their beds who sought their company with intentions of marriage.'"—Adams, op. cit., 35. Stiles, op. cit., 75-77, note, gives a long extract from Worthington, who represents Haven's sermon as having had a powerful influence in setting aside the custom of bundling. But already before this Jonathan Edwards had raised his voice against it.

[570] Adams, op. cit., 35; citing Mrs. John Adams's Letters (1848), 161.

[571] Stiles, op. cit., 110, note, where personal testimony is adduced.

[572] See the Appendix to Stiles, op. cit., 113-25, where an article from the Yankee, of Aug. 13, 1828, containing the letter mentioned, is quoted. A search in the manuscript court records reveals not a single clear case of bundling. On Jan. 30, 1709-10, Jane Lee, widow, was presented and acquitted in Charlestown for conduct resembling bundling: MSS. Records of the Court of Gen. Sessions of Suffolk, I, 202. There is a more probable example in the MSS. Records of the Court of General Sessions of Middlesex (Dec. 15, 1702), I, 137.

[573] Thus Shirley, "Early Jurisprudence of New Hamp.," Procds. New Hamp. Hist. Soc. (1876-84), 308, declares that "the practice prevailed very largely in New England, among the rich and the poor, the educated and the uneducated, the cultivated and the uncultivated."

[574] Stiles, op. cit., 65, 106. Adams, op. cit., 31, 32, 36, reaches the same conclusion. "It was," he says, "a practice growing out of the social and industrial conditions of a primitive people, of simple, coarse manners and small means," and probably did not exist in Boston, Salem, or Plymouth.

[575] So also in Holland, it is interesting to note, bundling appears in connection with the practice of public betrothals as the cause of ante-nuptial transgressions. See Townshend's speech on the Hardwicke act in Cobbett-Hansard, Parliamentary Debates, XV, 56-59.

[576] "There was Peregrine White, the first-born child of the Colony and stepson of Governor Winslow; Thomas Cushman, Jr., son of the elder; James Cudworth, Jr., son of the future general and deputy-governor, and Jonathan, his brother; Samuel Arnold, Jr., son of the Marshfield pastor; Isaac Robinson, Jr., grandson of the great Leyden pastor; Thomas Delano; Nathaniel Church; and other scions of leading families."—Goodwin, Pilgrim Republic, 600, who, thinks it a mistake to suppose that generation "below the present in general purity of life;" since the pre-contract was "a sort of semi-marriage" and "such cases were ferretted out and recorded" with "impartial diligence."

[577] Goodwin, op. cit., 600; cf. New Hamp. Prov. Papers, I, 386, 445. Freeman, Hist. of Cape Cod, I, 167, 168, gives the following forms of sentence: "A. F. for having a child born six weeks before the ordinary time of women after marriage, fined for uncleanness, and whipt, and his wife set in the stocks." "C. E., for abusing himself with his wife before marriage, sentenced to be whipt publicly at the post, she to stand by whilst the execution is performed. Done, and he fined five pounds for the trouble."

[578] In addition the records of the court of assistants for the early period contain six cases, in each instance the husband alone being punished; two cases in 1635, one in 1637, one in 1639, two in 1640: Mass. Col. Rec., I, 163, 193, 269, 296, 297; and three cases where both husband and wife were fined, condemned to stand in the market place, or to confess on Lecture Day: Rec. of the Court of Assistants, 1641-1643/44, in Whitmore, Bib. Sketch, xxxi, xxxiii, xxxvii.

[579] These are in the Athenæum copy of the MSS. Records of the County Court of Suffolk, 1671-80. There is also a unique example in the MSS. Early Court Files of Suffolk (1675), No. 1412. This is a case of appeal to the assistants from the county court at Salisbury, where John Garland and wife had been fined £5 for having a child eleven weeks too early. On his appeal John says, significantly: "I and She had parents Concent to marry and Legally published & Stayed after publication a Considerable time, that had any Such Act been co[=m]ited by us we could haue preuented it by marrying sooner;" and he further alleges that it was an untimely birth caused by the wife's fall. In reply, the attorney for the county of Norfolk said Garland had pretended to quote "Aristottle" to prove a child might come in the seventh month, but that if the court "please to Cast an eye vpon John garland ... they will judg Him to be no deepe man in phylosophie." Whereupon the worthy barrister, rejecting pagan learning, imparted the following bit of strictly orthodox biology: "It was well knowne to the Honored Court at Salisbury that the usuall time of woman was a set time As in genesis the 18 and the 10 compared with 2 of kings the 4th & the 16 verse, the Honored Court likewise knew that that time wast aboue seauen month as is the first of luke the 36 vers compared with the 39 & 40 and 56 & 57 verse of that chapter." The "jury" reversed the decision of the lower court.

[580] "If any man commit fornication with a single woman, they shall be punished, either by enjoining marriage, or fine, or corporal punishment, or all or any of these," as the court may determine: Whitmore, Col. Laws of Mass. (1660-72), 153. Later disfranchisement, in the case of a freeman, was added: ibid., 231. See also Whitmore, op. cit. (1672-86), 54, 208; Conn. Col. Rec., I, 527; New Haven Col. Rec., II, 590; Plym. Col. Rec., XI, 12, 46, 95, 172.

[581] June 16, 1663. At a county court at Charlestown, "Daniel Weld and Bertha his wife convicted of fornication before marriage, appeared and made humble acknowledgment of their sin craving the favor of the court. Admonished seriously to consider their great sin and fined £10 apiece. Execution respited during the pleasure of the court."—MSS. Records of the County Court of Middlesex, I, 243. On the same day before the same court John Roy and wife were convicted of the same offense, and "pleaded that it was committed a fortnight after their solemn contract in marriage and being hindered of marriage were overcome by the temptation." They had to pay only 40s.: ibid., 241.

[582] In these volumes there are five cases of fornication by single persons. In the first, April 4, 1654, the two culprits got each twelve stripes; in another, April 1, 1684, a married man and a girl were parties, the man being sentenced to pay £20 or receive thirty stripes, the woman, £5; and in one instance, October 2, 1677, the woman was "whipt fifteen stripes." More cruel was the fate of Sarah Pore. On July 7, 1785, for refusing to name the father of her two children, she was condemned "to be whipt severely twenty stripes and to lie in the house of correction for twelve months, there to be kept at hard labor and to be whipt once a month until she confess." Of course, on August 14, she named the man. For these cases see MSS. Records of the County Court of Middlesex, I, 39; III, 107, 194; IV, 97, 171, 173.

[583] See the long petition and confession of Samuel and Elizabeth Manning, who had been presented by the grand jury of Middlesex. It is expressed in perfervid pious phrase, much like the "church confession" presently referred to: MSS. Files of the County Court of Middlesex, June, 1664.

[584] MSS. Records of the County Court of Suffolk, 22. There was another sentence of this kind at the same session of this court.

[585] See the acknowledgment of Samuel Wright and Lydea his wife beginning: "for as much as wee are heere called to confese our sine before God and his people wee doe therefore heere accnowlidg that wee haue sined in that wee haue brokne the seuenth comandmente in neglecting of our deuty therein required and comitinge the sine forbiddene: to the dishonour of God and Scandalizinge of the gospel;" and so on in scriptural phrase to the extent, in the author's copy, of a large typewritten page: MSS. Files of the County Court of Middlesex, Oct., 1664.

[586] There are (1) many cases of bastardy, the woman being usually fined or whipped and the man in most cases sentenced merely to contribute to the child's support; for a few examples see MSS. Records of the Court of Gen. Sessions of Suffolk, I, 112 (1705), 190, 192 (1709); II, 234 (1719); III, 154, 308 (1724); IV, 331 (1731): MSS. Records of the Court of Gen. Sessions of Middlesex, II, 197, 203, 204 (1729-30); (2) killing of bastard, at least ten convictions between 1692 and 1725, in nine of which the woman was sentenced to death; and not less than a dozen presentations and one capital sentence after 1725: see examples in MSS. Records of the Superior Court of Judicature, II (1686-1700), 49, 50; III (1700-1714), fol. 270; ibid. (1725-29), fol. 111; ibid. (1772), fol. 98; ibid. (1757-59), 295; (3) miscegenative fornication, a number of cases, the white woman almost always receiving twenty stripes: examples in MSS. Records of the Court of Gen. Sessions of Suffolk, I, 144 (1706), 206 (1710); II, 43, 45 (1713); (4) rape, at least two cases: MSS. Records of Superior Court of Judicature (1739-40), fol. 225; ibid. (1767-68), fol. 261; (5) prostitution of wife, one case: MSS. Minute Books of the Court of Gen. Sessions of Suffolk, III, Dec. 3, 1756. The darker crimes were, however, not unknown to the period of the first charter. Between 1674 and 1681 in Massachusetts four persons were sentenced to death for rape: Noble, Records of the Court of Assistants, I, 21, 50, 74, 199.

[587] Here are two typical cases:

Aug. 27, 1711: "Joseph Holbrook and Mary Cooke ... being presented ... for fornication, He appeared and owned the same; and that he is since Married to her. Ordered That [he] ... shall pay a Fine of Three pounds in behalf of himself and his 2d Wife & Costs ... standing Co[=m]itted."—MSS. Records of the Court of Gen. Sessions of Suffolk, I, 234.

April 4, 1721: "Mary Shaw the Wife of Benjamin Shaw ... being presented for having a child in September last, about five Months after Marriage, appeared and owned the same. Ordered That [she] ... pay a fine of Forty Shillings ... Costs ... standing committed."—Ibid., III, 83.

A sentence that includes the alternative of whipping is rare; for an example (July, 1702) see ibid., I, 4. The proceedings in the case of Benjamin and Hopestill Allen, March 5, 1696-7—Nov. 23, 1698, are especially instructive. They were presented by the grand jury of Bristol for having a child within six months after publishment. Hopestill was fined 50 shillings, or to be whipped ten stripes. On appeal to the superior court the legality of the marriage was called in question. The privilege of appeal was granted by special act of the legislature: with the MSS. Early Court Files of Suffolk, No. 3728, compare the MSS. Records of the Superior Court of Judicature, II, 198; and the petition and act regarding appeal in MSS. Mass. Archives, XL, 476, 478, 483.

[588] In addition to the 714 cases comprised in the table, during the same period 73 single men, perhaps all involved in those cases, were before the court as follows: putative fathers, 54; settled out of court, 9; appeared and gave bond to save the town, 8; fornication, pleading guilty, 2. Of these one (1750) was fined £5; and one (1732) was given the choice of 10 shillings or ten stripes.

[589] Fornication before marriage (presumably with husband).

[590] In general the later the date of the case, the smaller the fine. With few exceptions fines of 25 shillings or less are after 1745; and most of those for 5 shillings or under are many years later. The "married couples" and the "wives" are only fined. Eight "single women" have the alternative of fine or stripes as follows: One (1734), £5 or 5 stripes; two (1755, 1770), £3 or 10 stripes; two (1746, 1756), 50 shillings or 10 stripes, the first being an "old offender;" one (1751), an "old offender," 40 shillings or 10 stripes; one (1758), 10 shillings or 10 stripes; one (1761), 5 shillings or 10 stripes. One woman (1747), whose child is a mulatto bastard, is given 20 stripes and sold into "service." In two similar cases (1759, 1772) 10 and 20 stripes respectively are deemed sufficient; while in another instance (1761) an "old offender" is sentenced to 20 lashes. In the later years, it will be noted, stripes decrease in money value. On the other hand, with the progress in humanism, they are probably lighter and therefore worth less.

[591] During the period are also fifteen cases of putative fathers. Voluntary accusations of putative fathers were looked on with suspicion. In the fragments of later records of Suffolk it is not uncommon for the court to refuse to put the woman on her oath in such cases.

[592] By this rule children born in less than seven months after marriage were refused baptism, that is, were put in peril of eternal damnation, unless the parents made public confession of their fault before the whole congregation: Adams, Some Phases of Sexual Immorality, 20 ff.

In like spirit other offenses were subjected to church discipline. For minor shortcomings, such as cheating, the culprit, after examination, was required to give "christian satisfaction" by public confession of penitence. If he refused, he was "suspended" from the communion. For adultery the penalty was "excommunication" on refusal to confess: and this punishment in Puritan New England meant as complete a social ostracism as it did in old England during the Middle Ages. Sometimes the most shameful wrongs resulted from these church trials; and this is well illustrated by the case of Abigail Muxon who, in 1783, on the unsworn testimony of two gossips, was condemned for alleged misconduct, thirty years after she was "suspended" on the same charge. She positively declared the evidence of the witnesses false. She was then an old woman; but "there was no friend or attorney to represent her before the self-righteous tribunal; and without cross-examining the unsworn witnesses, the church voted (men only were allowed to vote) that she is guilty of the charge." For weeks she refused to "confess," although she was "admonished" by the parson and "labored" with by the brethren. At last before a tribunal of six ministers "her excommunication was pronounced by Parson Everitt, who in his condemnation describes her 'as being visibly a hardened and impenitent sinner out of the visible Kingdom of Christ, one who ought to be viewed and treated by all good people as a heathen and publican in imminent danger of eternal perdition'": For a full discussion of this case see the fascinating book of Bliss, Colonial Times on Buzzard's Bay, 99-101, 111-14.

[593] Adams, op. cit., 26 ff. The following scarce works are in the Harvard library: Jonathan Edwards, Thoughts concerning the Present Revival of Religion in New England (London, 1745); Chauncey, A Letter from a Gentleman to Mr. George Wishart ... concerning the State of Religion in New England (Edinburgh, 1742), criticising Tennant and Whitefield; The State of Religion in New England (Glasgow, 1742); and especially the Letter from New England (1742), 4, describing the symptoms of "conversion."

[594] Adams, op. cit., 28.

[595] The church confessions of married couples and single persons continued long after confession ceased to be made in court. In Groton the "seven months rule" was put in force in 1765 and not abrogated until 1803. Under its operation "the records of the Groton church show that out of two hundred persons owning the baptismal covenant in that church during the fourteen years between 1761 and 1775 no less than sixty-six confessed to fornication before marriage. The entries recording these cases are very singular. At first the full name of the person, or persons in the case of husband and wife, is written, followed by the words 'confessed and restored' in full. Somewhat later, about the year 1763, the record becomes regularly 'Confessed Fornication' which two years later is reduced to 'Con. For.;' which is subsequently still further abbreviated into merely 'C. F.' During the three years 1789, 1790, and 1791 sixteen couples were admitted to full communion; and of these nine had the letters 'C. F.' inscribed after their names in the church records." The practice existed at Dedham, Roxbury, and probably throughout Massachusetts: Adams, op. cit., 20-23, citing Butler, History of Groton, 174, 178, 181; Worthington, History of Dedham, 108, 109; and Report of Boston Record Commission, vi, 93, passim.

[596] Adams, op. cit., 31 ff., 34. Judd, History of Hadley (Northampton, 1863), 247, note, mentions Jonathan Edwards's sermon against bundling.

[597] Mielziner, The Jewish Law of Marriage and Divorce, 75.

[598] Deut. 20:7; 22:22-29.

[599] Mielziner, op. cit., 75.

[600] Ibid., 78. "As the formality of contracting marriage by money had in the Rabbinical Law merely a symbolical character, a coin of the least value (the peruta, the smallest used in Palestine), and even any other object representing such a value, could be used."—Ibid., 79. The practice may have been derived from the Roman coemptio. "The rabbinical formality differs, however, from the Roman in this, that the act is done by the man only; he gives the money or its value, and he speaks the formula, while her consent is expressed by her silent acceptance of both. This passivity on her side is in consequence of the Talmudic principle based on the expression used in the Mosaic law: 'If A Man Taketh A Wife;' he takes and she is taken; he is the active and she the passive party."—Talm. Kiddushin, 2b and 3b; Mielziner, op. cit., 78 n. 2. During the Middle Ages it became customary to use a plain ring instead of the piece of money: ibid., 79, 80.

[601] Mielziner, The Jewish Law of Marriage and Divorce, 76.

[602] Ibid., 77. "Since the third century it was regarded as improper to effect a betrothment without a previous engagement."—Ibid., 77.

[603] Mass. Col. Rec., I, 104.

[604] Plym. Col. Rec., VII, 101.

[605] Ibid., 109.

[606] Ibid., 101.

[607] For examples see MSS. Records of the County Court of Middlesex (Apr. 2, 1661), I, 185; MSS. Early Court Files of Suffolk (1663), No. 573; MSS. Records of the Superior Court of Judicature (1725-29), fol. 333; ibid. (1725-30), fol. 338; ibid. (1730-33), fol. 196.

[608] Ibid. (1735-36), fol. 243.

[609] Case of Daniels v. Bowin et ux.: ibid. (1764-65), fol. 4.

[610] Thus in 1686 John Row was sentenced for "committing folly with Martha Beale, then servant to his father, & publishing himself in marriage to her and now denying to accomplish the marriage."—MSS. Records of the County Court of Middlesex, IV, 218. For other cases of this kind see MSS. Records of the Superior Court of Judicature (1730-31), fol. 1; ibid. (1745-46), fol. 253; MSS. Early Court Files of Suffolk (Nov. 19, 1663), No. 600.

[611] Mass. Col. Rec., IV, Part II, 458.

[612] Plym. Col. Rec., V, 116.

[613] For many proofs of the niggardly economy and exceeding "nearness" of the old New Englander see Bliss, Colonial Times on Buzzard's Bay; Weeden, Ecc. and Soc. Hist. of N. E.; and especially the Diary and Letter-Book of Samuel Sewall.

[614] An example is afforded by the Plym. Col. Rec., IV, 163, where a stipulation is entered into between a widow and a widower about to marry. By this agreement the children are to remain "att the free and proper and onely dispose of theire owne naturall parents, as they shall see good to dispose of them." The wife is to retain "all her house and land goods & cattles, that shee is now possessed of, ... to dispose of them att her owne free will." If the husband die first, she is to have "one third pte ... of his estate that hee dieth possessed of ... during her life;" while in case of her death, the husband's property is to go to his heirs, "excepting her wearing apparrell and her bed and bedding ... which shee shall and may giue att her death to whom she pleaseth." For another such marriage agreement see MSS. Early Court Files of Suffolk (1671), No. 1063. In the MSS. Records of the Superior Court of Common Pleas for Middlesex (1707), I, 103, is a suit to recover a gift made to a fiancée as legacy.

[615] Weeden, Ecc. and Soc. Hist. of N. E., I, 413; cf. ibid., I, 420, II, 541 ff.; also Earle, Customs and Fashions, 62 ff., 43 ff.

[616] Thus in 1638 "Mary Joanes was consented to be taken care of by the countrey, and at the countreyes charge."—Mass. Col. Rec., I, 230. Four years later "It was ordered the Treasurer should give Mary Joanes five pounds against her Marriage."—Ibid., II, 20.

[617] Sewall, Diary, in 5 Mass. Hist. Coll., VI, 336. In like spirit the judge "dickers" with Joseph Dudley, whose daughter had been sought in marriage for Samuel Sewall, Jr.: idem, Letter-Book, in 6 Mass. Hist. Coll., I, 279-81; Diary, in 5 Mass. Hist. Coll., VI, 80.

[618] "Her father died in six years, leaving his fortune, which was large for that time, to his daughter and his widow. It was practically one estate for the mother lived in the most affectionate intimacy in Judge Sewall's family."—Weeden, Ecc. and Soc. Hist. of N. E., I, 420; cf. Hawthorne, Grandfather's Chair (Boston, 1893), chap. vi, 459-64.

[619] Sewall's Letter-Book, in 6 Mass. Hist. Coll., II, 83, 84 (letter of Jan. 25, 1718, referring to his wife's death in 1717); cf. the Diary, in 5 Mass. Hist. Coll., VII, 143, 144.

[620] Sewall's Diary, in 5 Mass. Hist. Coll., VII, 165.

[621] Ibid., 151, 163, 164.

[622] Feb. 3, 1718, he writes: "I sent Madam Winthrop, Smoking Flax Inflamed, the Jewish Children of Berlin, and my small vial of Tears."—Diary, in 5 Mass. Hist. Coll., VII, 164. On March 14 he sends her a copy of the Berlin Jewish Converts, ibid., VII, 177.

[623] Ibid., 177 (March 19, 1718), 180.

[624] Ibid., 178, 179 (March 26, 1718).

[625] Ibid., 182, 187, 188, 189, 190, 199.

[626] Ibid., 202 (Nov. 1, 1718).

[627] Weeden, Ecc. and Soc. Hist. of N. E., II, 542.

[628] Sewall, loc. cit., 205 (Nov. 28, 1718).

[629] Ibid., 206, 207 (Nov. 30, 1718).

[630] Ibid., 225, 232, 233.

[631] Ibid., 255 (May 26, 1720).

[632] Letter of Dec. 13, 1720, to Alexander Dummer, in Sewall's Letter-Book, in 6 Mass. Hist. Coll., II, 122, 123.

[633] "Asked her to Acquit me of Rudeness if I drew off her Glove. Enquiring the reason, I told her twas great odds between handling a dead Goat and a living Lady. Got it off.... Told her the reason why I came every other night was lest I should drink too deep draughts of Pleasure. She had talked of Canary, her Kisses were to me better than the best Canary."—Sewall's Diary, loc. cit., 267.

[634] Ibid., 269.

[635] Ibid., 270.

[636] "I pray'd her that Juno might light me home, she open'd the shutter, and said twas pretty light abroad; Juno was weary and gon to bed."—Ibid., 271.

[637] Sewall, loc. cit., 272.

[638] Ibid., 273, 274.

[639] Ibid., 275.

[640] Earle, Customs and Fashions of Old New England.

[641] Sewall's Diary, loc. cit., 299 (Jan. 12, 1722), 300.

[642] Ibid., 300, 301.

[643] "Madam, These are kindly to salute you, and to say, that the Omission of Answering one or two of my Letters, and of coming to Town, makes it needful to enquire, what the plain meaning of your letter of Jan^y. 30^th may be. 'I do chuse to comply with your last proposal, of Releasing my children, and Accepting of the sum you proposed.' The last Proposal was, For your children, or some in their behalf, to give Bond, to indemnify me from all debts contracted by you before the Marriage; and from all matters respecting the Administration. This I told you, I peremptorially insist on. I was to secure you Forty pounds per a[=n]um during the term of your natural Life, in case of your Survival. This proposal must be taken entirely, every part of it together, and if the words 'Releasing my Children' intend a Releasing them from this Bond, my last Proposal is not accepted by you."—Ibid., 303 (Feb. 10, 1722).

[644] The judge was almost tempted to bargain with his intended spouse for affectionate treatment. Speaking with "Mr. Dan Oliver," Feb. 2, 1722, he says: "Told, I hoped she was not so Attached to her children, but that she would carry it Tenderly to me; or else there would soon be an end of an Old Man. I said, I su[=p]osed they would clothe her, Answered, no question; And would be Tender of me."—Ibid., 302. On Sewall's courtships and New England wedding customs see Howe, The Puritan Republic, chap. v, 111 ff.

[645] Shirley, "Early Jurisprudence of New Hamp.," Procds. New Hamp. Hist. Soc. (1876-84), 307.

[646] For these cases see Goodwin, Pilgrim Republic, 599.

[647] Freeman, Hist. of Cape Cod, I, 208.

[648] Goodwin, loc. cit.

[649] Shurtleff, Top. and Hist. Description of Boston, 51.

[650] Goodwin, loc. cit.

[651] Winthrop, Hist. of New England, II, 51, 52. One might cheerfully forgive Governor Winthrop, had his sense of historical propriety suffered him to go farther into the details of the marriage customs. He apologizes parenthetically: "I would not mention such ordinary matters in our history, but by occasion of some remarkable accidents."

[652] Morse, in Mem. Hist. Bost., IV, 572. The MSS. Records of the County Court of Middlesex (Apr. 1, 1656), I, 80, contain the following case: "Mr. Joseph Hills being presented by the grand jury for marrying of himself contrary to the law of the Colony (page 38 of the old book); freely acknowledged his offence and his misunderstanding the grounds whereon he went, which he now confessed to be unwarrantable. Admonished by the court."

[653] Goodwin, loc. cit. See further on Bellingham's marriage Hildreth, Hist. of U. S., I, 279; Mem. Hist. Bost., I, 575.

[654] Complaints of clandestine marriages may be found in the New Hampshire records: see Provincial Papers, IV, 832; New Hamp. Hist. Coll., VIII, 117, 118. There is an unsettled case of alleged clandestine marriage in the MSS. Early Court Files of Suffolk (March, 1699-1700), Nos. 4590, 4663.

[655] See Conn. Col. Rec., I, 47, 48, 540; New Haven Col. Rec., II, 599; and the Massachusetts laws relating to the districts of ministers and justices, mentioned above.

[656] R. I. Col. Rec., I, 187; and Staples, Proceedings of the First Assembly, 47, 48.

[657] R. I. Col. Rec., II, 104.

[658] Ibid., III, 361, 362; also in Rider's reprint of the Laws and Acts (1705), 44.

[659] See the act of 1701: R. I. Col. Rec., III, 435, 436. Compare Rider's Laws and Acts (1705), 50; and his reprint of Charter and Laws (1719), 12, 13.

[660] By 32 H. VIII., cap. 38: Statutes at Large (London, 1763), II, 298; Sewall's Letter-Book, in 6 Mass. Hist. Coll., I, 351-53, 369, 370.

[661] "The greatest good the Land got by this Match, was a general leave to marry Cousin Germans, formerly prohibited by the Crown, and hereafter permitted by the Co[=m]on Law. A door of lawfull liberty, left open by God in Scripture; shut by the Pope for his privat profit; opend again by the King, first, for his own admittance ... and then for the service of such Subjects as would follow him."—Fuller, English Worthies (London, 1840), II, 352; Sewall's Letter-Book, in 6 Mass. Hist. Coll., I, 369. Compare his letter of Feb., 1603/4, in op. cit., 290-93.

[662] "They that will, from this Example, be fond of Marrying Cousin-Germans, Let 'em!"—Ibid., II, 19.

[663] Ibid.; cf. ibid., I, 290-93, where Sewall opposes the marriage of his cousin John Sewall with the widow of the latter's cousin german; also ibid., I, 17; and his Diary, in 5 Mass. Hist. Coll., V, 96, 424, for further illustrations.

[664] The Mosaic code does not clearly prohibit marriage with a deceased wife's sister: Lev., chaps. 18, 20; Deut., chaps. 23, 27. Cf. Mielziner, Jewish Law of Marriage and Divorce, 31-40; and chap. xi, sec. ii, b.

[665] Whitmore, Col. Laws of Mass. (1672-86), 102; Mass. Col. Rec., IV, Part II, 454.

[666] They published the decision in a printed tract of eight pages: The Answer of Several Ministers to that Case of Conscience whether it is Lawful for a man to Marry his Wife's own sister: Goddard, in Mem. Hist. Bost., II, 415 n. 2.

[667] "Friday, June 14. The Bill against Incest was passed with the Deputies, four and twenty Nos, and seven and twenty Yeas. The Ministers gave in their Arguments yesterday in Writing; else it had hardly gon, because several have married their wives sisters, and the Deputies thought it hard to part them. 'Twas concluded on the other hand, that not to part them, were to make the Law abortive, by begetting in people a conceipt that such Marriages were not against the Law of God."—Sewall, Diary, in 5 Mass. Hist. Coll., V, 407; cf. McKenzie, in Mem. Hist. Bost., II, 197.

[668] But, on the other hand, marriage with a husband's brother or nephew is not expressly prohibited; cf. 5 Mass. Hist. Coll., V, 407, note.

[669] Acts and Resolves, I, 209; also Charters and General Laws of Mass., 283. Goddard, Mem. Hist. Bost., II, 415 n. 2, is plainly in error when he says that this act "suggested the leading incident of Hawthorne's Scarlet Letter." It probably originated in the similar law, already mentioned, for the punishment of adultery which is expressed in nearly the same words: see Acts and Resolves, I, 171.

[670] 5 Mass. Hist. Coll., V, 407 n. 1.

[671] Historical Magazine and Notes and Queries, II, 301.

[672] Sewall's Diary, in 5 Mass. Hist. Coll., V, 354. For the case see Noble's Recs. of the Court of Assistants, I, 361. Samuel Newton, of Marlborough, married his uncle's widow and had two children by her. This marriage was judged void "by the word of God, as also by the law of England": ibid., 342. Cf. Cowley, Our Divorce Courts, 30, 31.

[673] On white slaves in New England, and elsewhere in America, see the valuable article of Butler, "British Convicts Shipped to American Colonies," American Historical Review, II, 12-33.

[674] Weeden, Ecc. and Soc. Hist. of New England, II, 449, 450. Cf. his entire discussion of the "African Slave Trade" in New England, ibid., 449-72; and Bancroft, Hist. of U. S. (New York, 1888), II, 268-80.

[675] See his admirable Massachusetts: Its History and Historians (Boston, 1893).

[676] Compare Moore's article "Slave Marriages in Mass.," in Dawson's Hist. Mag., 2d series, V (Feb., 1869), 135, to which I am much indebted.

[677] Palfrey, Hist. of New England, II, 30, note; cf. Moore, loc. cit., 135-37.

[678] Sumner, in his speech in the Senate, June 28, 1854: Works, III, 384.

[679] According to Hurd, Law of Freedom and Bondage, I, 225, "the involuntary servitude of Indians and negroes in the several colonies originated under a law not promulgated by legislation, and rested upon the prevalent views of universal jurisprudence, or of the law of nations, supported by the express or implied authority of the home Government." Compare Washburn, "The Extinction of Slavery in Mass.," 4 Mass. Hist. Coll. (1857), IV, 333-46; the same in Procds. Mass. Hist. Soc. (1855-58), 188 ff.; and Belknap's answer to Tucker's Queries (1795), in 1 Mass. Hist. Coll., IV, 191-211, which on the points under consideration is very superficial and misleading.

[680] See Justice Gray's note to the case of Oliver v. Sale: Quincy's Reports, 29. The authorities there cited are misleading and do not establish the assertions quoted. The well-known apology for Massachusetts slavery by Nathan Dane in his Abridgment, II, 413, 426, 427, is equally unsupported by the facts. The same view as that of Gray is taken by Chief Justice Dana in Littleton v. Tuttle (1796): 4 Mass. Reports, 128, note; by Chief Justice Shaw in Commonwealth v. Aves: 18 Pickering's Reports, 208, 209; and it is repeated in Cushing's Reports, 410. On the other hand, in Winchendon v. Hatfield: 4 Mass. Reports (1806), 123, Chief Justice Parsons correctly says "slavery was introduced" in Massachusetts "soon after its first settlement, and was tolerated until the ratification of the present constitution" in 1780. "The issue of the female slave, according to the maxim of the civil law, was the property of her master." The same opinion is held in Perkins, Town Treasurer of Topsfield v. Emerson (1799): Dane's Abridgment, II, 412; and by Chief Justice Parker in Andover v. Canton (1816): 13 Mass. Reports, 551, 552. In 1865 the errors of Gray, Dane, Webster, and others were fully exposed by Moore, Notes on the History of Slavery in Mass., 10 ff., 22 ff., 94 ff., 98 ff.; yet it is curious to see Bishop, Marriage, Divorce, and Separation (Chicago, 1891), I, 179 n. 1, 282, still accepting Gray's dictum as authority.

[681] Palfrey, Hist. of New England, II, 30, note.

[682] Compare sec. 91 of the "Body of Liberties," upon which the apologists have mainly rested their case, with the later version of the provision: Whitmore, Col. Laws of Mass. (1660-72), 53, 125; ibid. (1672-86), 10; and read Moore's convincing argument as to the significance of the altered wording: Notes on the Hist. of Slavery in Mass., 10-18. For Connecticut see Fowler, "The Historical Status of the Negro," in Dawson's Hist. Mag., 3d series, III, 12-18, 81-85, 148-53, 260-66; Steiner, "Hist. of Slavery in Conn.," J. H. U. S., XI, 371-452; and Hurd, Law of Freedom and Bondage, I, 267 ff.

[683] In 1700 Sewall, then a judge of the superior court, wrote an anti-slavery tract entitled The Selling of Joseph. It is reprinted in the Procds. Mass. Hist. Soc. (1863-64), 161-65; with the Diary in 5 Mass. Hist. Coll., VI, 16-20, note; and in Moore, Notes on Hist. of Slavery in Mass., 83-87. The next year John Saffin, a judge of the same court, replied to Sewall in A Brief and Candid Answer (Boston, 1701); reprinted by Moore, op. cit., 251-56. Compare Sewall's letter To the Rev^d. & aged Mr. John Higginson (Apr. 13, 1706), and his extract from the Athenian Oracle, II, 460-63, both reprinted by Moore, op. cit., 89-94. Sewall favored a law requiring "that all importers of Negroes shall pay 40 shillings per head to discourage the bringing of them." Cf. Bliss, Side Glimpses from the Col. Meeting-House, 21; Weeden, Ecc. and Soc. Hist., II, 450.

[684] According to Bliss, "as time passed on and the slave trade flourished," Sewall "must have dismissed his anti-slavery opinions;" for the following advertisement appears in the Boston News-Letter of June 23, 1726: "To be sold by Mr. Samuel Sewall at his House in the Common, Boston, several likely young Negro Men & Boys Just Arrived."—Side Glimpses from the Col. Meeting-House, 21.

[685] "An Act for the better preventing of a spurious and mixt issue" (Dec. 5, 1705): Acts and Resolves, I, 578, 579; Charters and Gen. Laws, Appendix, 748: "Be it enacted ... that none of her majesty's English or Scottish Subjects, nor of any other Christian nation within this province, shall contract matrimony with any Negro or Molatto: nor shall any ... presume to join any such in Marriage, on pain of forfeiting ... fifty pounds."

[686] By the act of 1786 intermarriage of whites with Indians, negroes, and mulattoes is forbidden.

[687] Of the bill for the act of 1705 Sewall writes: "Deputies send in a Bill against fornication or Marriage of White men with Negros or Indians; with extraordinary penalties.... If it be pass'd, I fear twill be an O[=p]ression provoking to God, and that which will promote Murders and other Abominations. I have got the Indians out of the Bill, and some mitigation for them [the Negroes] left in it, and the clause about their Masters not denying their Marriage." Diary: in 5 Mass. Hist. Coll., VI, 143.

[688] Ibid., 22. The MSS. Records of the General Sessions of Suffolk (Jan. 30, 1709-10) contain the following evidence: "Upon reading the Petition of Jack Negroman Servant ... relating to his ... being Married to Esther a Negro Woman Servant [to another master] ... Ordered that [he] ... be not denyed marriage provided he attend the Directions of the law for the Regulation of Marriages." Compare "Flora's case" (1758) in MSS. Records of the Superior Court of Judicature (1757-59), 295, where the court held that the child of a female slave "never married according to any of the Forms prescribed by the Laws of this Land," by a person supposed also to be a slave, was not a bastard. From this decision it is argued that in Massachusetts all actual marriages were deemed good without any formal solemnization or the presence of priest or magistrate. Cf. Bishop, Mar., Div., and Sep., I, 179.

[689] By the act of 1705 already cited: Acts and Resolves, I, 578.

[690] So in the Pequot War: 4 Mass. Hist. Coll., III, 360; in King Philip's War; and by the Articles of Confederation (1643), in Plymouth Col. Rec., IX, 4. Compare Moore, Notes on Hist. of Slavery in Mass., 1-10, 30-40.

[691] For an interesting discussion of this point see Bliss's chapter on "Rum and Slavery," Side-Glimpses from the Col. Meeting-House, 12 ff.; and Weeden, Ecc. and Soc. Hist., II, 449-72. Such men as Peter Faneuil and Thomas Amory, of Boston, were "deep" in the rum and slavery business: Bliss, op. cit., 15.

[692] For examples of advertisements of slave auctions in New England see Bliss, op. cit., 15-19.

[693] "A deacon of the church at Newport esteemed the slave trade with its rum accessories as home missionary work. It is said that on the first Sunday after the arrival of his slaves he was accustomed to offer thanks 'that an overruling Providence had been pleased to bring to this land of freedom another cargo of benighted heathen to enjoy the blessings of a Gospel dispensation.'"—Bliss, op. cit., 22. In general on the slave trade as missionary work see Froude, History of England, VIII, 439.

[694] Bancroft, Hist. of U. S. (New York, 1888), II, 275, 276. On this subject see Bruce, Economic Hist. of Virginia, II, 94-98; the discussion by Fiske, Old Virginia and Her Neighbors, I, 16; II, 192-94; and Goodwin, The Colonial Cavalier, 178, who says: "Baptism was permitted to the slave, but with the distinct understanding that it was to make no difference in the condition of bondage of these brothers in Christ." The Virginia law of 1667 will be found in Hening, Statutes, II, 260.

[695] It was consecrated "sans égard à la religion de l'esclave": Carlier, Histoire du peuple américain, I, 364; cf. also Hildreth, Hist. of U. S., I, 372.

[696] Bliss, op. cit., 92.

[697] Taken from Moore, Notes on Hist. of Slavery in Mass., 92, note, who cites Records as Reported by Rev. C. Chapin, D.D., Quoted in Jones's Religious Instruction of the Negroes, 34. Cf. Steiner, "Hist. of Slavery in Conn.," J. H. U. S., XI, 386.

[698] Athenian Oracle, II, 460-63: in Moore, Notes on Hist. of Slavery in Mass., 93, 94.

[699] Moore, op. cit., 55.

[700] Sewall, The Selling of Joseph: in 5 Mass. Hist. Coll., VI, 17, 18.

[701] Belknap's answer to Tucker's Queries: in 1 Mass. Hist. Coll., IV, 200; cf. Moore, Notes on Hist. of Slavery in Mass., 57.

[702] Moore, Slave Marriages in Mass.: Dawson's Hist. Mag., 2d series, V, 136, reprinting Hobart's Serious Address to the Episcopal Separation in New England (1748), 77, 78; and quoting in reply Dr. John Beach's Calm and Dispassionate Vindication, 39, who in logic characteristic of the age argues in "substance that as a Slave was capable of being made free, and so of having property in a large estate, there was no profaneness" in the use of the phrase mentioned.

[703] "And finally," continues the minister, "I exhort & charge you to beware lest you give place to the Devil, so as to take Occasion from the Licence now given you, to be lifted up with Pride, and thereby fall under the Displeasure, not of Man only, but of God also; for, it is written, that God resisteth the Proud, but he giveth Grace to the humble.

"I shall now conclude w^th Prayer for you, that you may become good Christians, and that you may be enabled to conduct as such; and in partic^r, that you may have Grace to behave suitably towards each Other, as also dutifully towards your Masters & Mistresses, not w^th Eye-Service, as Men-pleasers, but as y^e serv^ts of Chr^t, doing y^e will of God from y^e heart." Published by Moore, Slave Marriages in Mass.: in Dawson's Hist. Mag., 2d series, V, 137.

[704] Hening, Statutes, I, 156, 157. See also the act of 8 Chas. I., expressed in about the same terms, ibid., 181.

[705] Ibid., 158, 183.

[706] Ibid., 433. By the act of 1646 the penalty for celebration without license or banns was 1,000 pounds of tobacco: ibid., 332.

[707] Ibid., II, 49-51. By the law of 1788 the issue of even "incestuous" marriages are made legitimate: ibid., XII, 689.

[708] See chap. xiv, i, b), below.

[709] Hening, Statutes, III, 149-51.

[710] See the act of 1705, ibid., 443, 444; and that of 1748, ibid., VI, 83.

[711] Ibid., III, 441, 442.

[712] See chap, xvi, where this legislation is treated in detail.

[713] O'Callaghan, Doc. Rel. to Col. Hist. of N. Y., III, 253.

[714] Hening, Statutes, I, 158, 182, 183 (1632).

[715] Ibid., 155.

[716] Ibid., 242. Cf. the act of the Commonwealth, 1657-58, ibid., 433.

[717] Ibid., II, 54.

[718] Ibid., X, 362.

[719] Ibid., III, 442. Cf. the act of 1748: ibid., VI, 82.

[720] Act of 1657-58: ibid., I, 433.

[721] Hening, op. cit., II, 54, 55; cf. 28 (1660-61). Only the clerk of the county in which the woman, her parents, or guardians dwell may act: ibid., 281.

[722] Ibid., III, 150 (1696).

[723] Ibid., 442, 443.

[724] Beverley, Hist. of Va., 211, 212; also 1 Mass. Hist. Coll., V, 136; and Hening, op. cit., III, 445; VI, 84, 85; II, 55.

[725] Ibid., II, 28.

[726] Ibid., IX, 66 (1775). The tax was raised to ten pounds in 1780: ibid., X, 245.

[727] Ibid., 225.

[728] Spotswood, Letters, I, 128 n. 90; Beverley, Hist. of Va., 211; Hening, op. cit., III, 45; VI, 84, 85, etc. Earlier the marriage fee was 2 shillings: ibid., I, 160, 184.

[729] Acts of the Gen. Assembly, 203.

[730] Hening, op. cit., IV, 245 (1730). Marriage with a deceased wife's sister is forbidden: ibid., XII, 689 (1788).

[731] Ibid., I, 252, 253.

[732] Ibid., 438. By this act either the man or the woman suffers a penalty of one year's extra service.

[733] Ibid., II, 114. The penalty for a freeman was made 1,000 pounds of tobacco in 1705: ibid., III, 444.

[734] Ibid., VI, 83, 84.

[735] On this marriage see Winsor, Nar. and Crit. Hist., III, 132; Holmes, Annals, I, 162; Campbell, Hist. of Va., 65.

[736] William Strachey, For the Colony in Virginea Britannea, Lawes Diuine, Morall, and Martiall, 11: in Force, Tracts, III.

[737] Hening, op. cit., I, 240, 310, etc. The following curious judgment was rendered by the governor and council sitting as a court in 1627: "Upon the presentment of the church-wardens of Stanley Hundred for suspicion of incontinency betweene Henry Kinge and the wife of John Jackson, they lyinge together in her husband's absence; it is thought fitt that the sayd Kinge shall remove his habitation from her, and not to use or frequent her company until her husband's return."—Ibid., 145, note. This may be compared with the following record of the same court in 1631: "Because Edw. Grymes lay with Alice West he gives security not to marry any woman till further order from the Governor and Council."—Ibid., 551.

[738] Ibid., 433; III, 74, 139, 361; Acts of the Gen. Assembly, 287. The first representative assembly, which met at Jamestown in the summer of 1619, enacted, "Against excesse in apparell that every man be cessed in the church for all publique contributions, if he be unmarried according to his owne apparell, if he be married according to his owne and his wives, or either of their apparell."—Col. Rec. of Va. (ed. Bancroft), 20. The same assembly provided that "All Ministers in the Colony shall once a year, namely in the moneth of Marche, bring to the Secretary of Estate a true account of all Christenings, burials and marriages, upon paine, if they faill, to be censured for their negligence by the Governor and Counsell of Estate; likewise where there be no ministers, that the comanders of the place doe supply the same duty,"—Ibid., 26.

[739] Quoted by Cooke, Virginia, 149; also Fiske, Old Virginia and Her Neighbors, I, 246, 247.

[740] See, however, Goodwin, The Colonial Cavalier, 45 ff.; and on social customs in general Fiske, op. cit., II, 174, 269.

[741] For this document see The Virginia Mag. of Hist. and Biog., IV (July, 1896), 64-66.

[742] Streeter, Papers Rel. to the Early History of Md., 278, 279. This license may be compared with the bonds required by Governor Andros in New England or by the New York governors: see chaps, xii and xiv.

[743] In the "book in the land office, entitled, Liber No. 1": Bozman, Hist. of Maryland, II, 604, who gives the following example: "November 2d, 1638. This day came William Lewis, planter, and made oath, that he is not precontracted to any other woman than Ursula Gifford, and that there is no impediment of consanguinity, affinity, or any other lawful impediment to his knowledge, why he should not be married to the said Ursula Gifford; and further he acknowledgeth himself to owe unto the lord proprietor 1000 lb. tobacco in case there be any precontract or other lawful impediment whatsoever as aforesaid, either on the part of the said William Lewis or the said Ursula Gifford."

[744] Among the thirty-six bills of the assembly of February, 1639/40, which according to Bozman were engrossed for a third reading, but not finally enacted into laws, was one giving the so-called "county court" jurisdiction in "all causes matrimonial, for as much as concerns the trial of covenants and contracts, and the punishment of faults committed against the same; and all offences of incest; attempting of another's chastity; defamation; temerarious administration; detention of legacies; clandestine marriage without banns thrice published or bond entered in the court."—Bozman, op. cit., II, 106, 128, 129. Since at this time there was but one organized county, St. Mary's, and this "county court" is made a tribunal of appeal in all civil common-law cases, the body is really the supreme provincial court, and it is given about the same jurisdiction thereafter exercised by the latter.

[745] Archives of Md.: Proceedings and Acts of the General Assembly, 1637-64, 97.

[746] Ibid., 374. The fine for each of the parties violating the statute is 1,000 pounds of tobacco; for the magistrate or minister, 5,000 pounds, one half to the Lord Proprietor, the other half to the informer. In 1650 it is provided that adultery shall receive punishment as the court may see fit, but "not extending to life or member": ibid., 286. The penalty is the same in 1654: ibid., 344. In the last-named year "the names of all that shall be borne, married or buried ... shall be Exhibited to the Clarke of Every Court who shall Inst Register thereof who shall be allowed five pounds of Tobacco as a ffee due to him for every such Regist^r made and kept."—Ibid., 345.

[747] Ibid., 442, 443. This act is approved in 1664: ibid., 537.

[748] "The man taking the woman by the R^t hand shall say I A B doe take thee C D to my wedded wife To have and to hould from this day forward for better for worse for Rich or for Poore in sickness & in health till death us do part and thereto I plight thee my troth which being finished lett her hand goe." Similar words are to be used by the woman: ibid., 1664-76, 148.

[749] Ibid., 1666-76, 522, 523.

[750] Lodge, Short History, 105. Elsewhere this writer says the Episcopal church in Maryland was as "contemptible an ecclesiastical organization as history can show." "It is not easy to conceive the utter degradation of the mass of the Maryland clergy. Secure in their houses and glebes, with a tax settled by law, and collected by the sheriffs for their benefit, they set decency and public opinion at defiance. They hunted, raced horses, drank, gambled, and were the parasites and boon companions of the wealthy planters. A common jest was the question:

'Who is a monster of the first renown?
'A lettered sot, a drunkard in a gown.'

"They extorted marriage fees from the poor by breaking off in the middle of the service, and refusing to continue until they were paid."—Ibid., 123, 120-24; cf. Browne, Maryland, 184 ff.

[751] See, however, the case of North Carolina below, where the original toleration of the early years was later somewhat curtailed; and that of West Virginia.

[752] Compare Cook, "Mar. Cel. in the Colonies," Atlantic, LXI, 356, 357.

[753] Archives of Md.: Procds. and Acts of the Gen. Assem., 1684-92, 450, 451.

[754] Bacon, Laws of Maryland, 1702, chap. i, §§ iv, v.

[755] Bacon, op. cit., 1717, chap. xv, §§ i-v. The fee for marriage after license is "10 shillings and no more;" after publication of banns it is 100 pounds of tobacco or 6 shillings and 8 pence current money.

[756] Ibid., chap. xiii, § v.

[757] Ibid., 1715, chap. xliv, § xxv.

[758] Kilty, Laws, 1777, chap. 12, sec. 5; also Laws of Md., 1763-87 (Annapolis, 1787), chap. xii, sec. v; cf. Cook, "Mar. Cel. in the Colonies," Atlantic, LXI, 357.

[759] The Quakers were strong in Maryland and practiced the same rites as their brothers elsewhere. The Labadists, who had a colony in the province, thoroughly disliked the Friends, though in some respects the doctrines of the two bodies were strikingly alike. The Labadists were even more narrow than the Pennsylvania Friends regarding intermarriage with gentiles. A convert was expected to leave his unregenerate spouse behind when he joined the society; see James, "The Labadist Colony in Maryland," J. H. U. S., XVII, 12 ff., 17 ff.

[760] Archives of Md.: Judicial and Testamentary Business of the Provincial Court, 1649/50-57, 531-33.

[761] "Fundamental Constitutions," c. 96: Poore, Charters, II, 1406. The charter of 1663 allows the proprietors to use their discretion in dispensing from the liturgy and ceremonies of the English church: ibid., 1389. The supplementary charter of 1665 declares that no one shall be "in any way molested, punished, disquieted or called in question, for any differences in opinion, or practice in matter of religious concernments, who do not actually disturb the civil peace." All are to enjoy "judgment and conscience in matter of religion."—Ibid., 1397.

[762] After thus expressing the motive for toleration, the Constitutions curiously provide that any seven or more persons agreeing in any religion may form themselves into a "church or profession;" and no person over seventeen years of age "shall have any benefit or protection of the law, or be capable of any place of profit or honor, who is not a member" of such a church or profession, "having his name recorded in some one, and but one religious record at once."—Ibid., 1407.

[763] N. C. Col. Records, IV, 264; Hawks, Hist. of N. C., II, 341. For Virginia see Lodge, Short History, 60 ff. Cf. Howard, Local Const. History, I, 133, 134.

[764] Paragraphs 45 and 84 of the Fundamental Constitutions (1669) provide for matrimonial jurisdiction and for registration. Paragraph 87 declares that "no marriage shall be lawful, whatever contract and ceremony they have used, till both parties mutually own it before the register of the place where they were married, and he register it, with the names of the father and mother of each party."—Poore, Charters, II, 1402, 1406. Compare Hewitt, An Hist. Account of the Rise and Progress of South Carolina and Georgia (London, 1779), 321-47.

[765] N. C. Col. Rec., I, 184; also in Hawks, Hist. of N. C., II, 152, 153; and Carroll, Hist. Coll. of S. C., II.

[766] Thus Doyle, Eng. Colonies, I, 453, says the acts of the assembly of 1669/70, of which the marriage act is one, tended to make North Carolina "an Alsatia for ready and profligate adventurers." So also George Chalmers, Political Annals of the United Provinces: in Carroll, Hist. Coll. of S. C., II, 291, concludes, "From this remarkable law we may judge of their state of religion and morals." On the other hand, Hawks, Hist. of N. C., II, 152, 153, says of this statute: "It has given rise to some abortive efforts at wit, which, if genuine, would, we think, be sadly misplaced; and has, besides, sorely troubled the over-sensitive and camel-swallowers who thank God they are 'not as other men are;'" justly adding: "It is difficult to conjecture any other course, which under the circumstances, they could reasonably have adopted. The very fact that any plan was devised to afford a legal and decent mode of entering into the marriage contract, certainly implies that the moral sense of the community revolted at general concubinage." Cf. also Weeks, Church and State in N. C.: in J. H. U. S., XI, 244.

[767] Hawks, op. cit., II, 154. These are nearly the words of the charter of 1665: Poore, op. cit., II, 1397. Cf. also Weeks, op. cit., 244, 245.

[768] "Records of the Friends Monthly Meeting in Pasquotank Precinct": in N. C. Col. Rec., I, 688. There is a similar entry in 1711: ibid., 813. Two years earlier we find a "precinct" court—about the only part of the machinery of the "Fundamental Constitutions" which was ever made use of (Howard, Local Const. Hist., I, 129)—sentencing for adultery: "Ordered that Ellinor Mearle be punished by receiving Ten Stripes on her Back well laid & pay cost also Ex[=o]."—Records of Perquiman's Precinct Court, in N. C. Col. Rec., I, 626 (1705).

[769] N. C. Col. Rec., II, 212, 213.

[770] Ibid., 877, 878.

[771] Iredell-Martin, Public Acts of the Assembly (Newbern, 1804), I, 18, 19.

[772] N. C. Col. Rec., III, 110, 111.

[773] Ibid., 160. According to Cook, "Colonel Byrd, writing about 1728, says that in North Carolina, 'for want of men in holy orders, justices of the peace and members of the council were empowered to celebrate marriage.'"—Op. cit., 355, 356.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[797] Poore, Charters, I, 375.

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

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

[800] Even in Virginia civil marriages were frequent before the Revolution, though liable to penalty. For Maryland the view of the text as to the common-law contract was sustained in the case of Cheseldine v. Brewer, 1 Har. and McH., 152 (1739). This decision was, however, overruled in Denison v. Denison (1871), 35 Md., 361, 379, in which Justice Alvey says: "We think we are safe in saying that there has never been a time in the history of the state, whether before its independence of Great Britain or since, when some ceremony or celebration was not deemed necessary to a valid marriage. In the early days of the province, it was not absolutely necessary that a minister of religion should officiate,—a judge or magistrate could perform the ceremony—but still, in all cases, some formal celebration was required." Of course, the opinion of a judge long after the colonial era, not professing to be based on evidence, can have little weight in settling the present historical problem. Though the laws of the Maryland assembly, like those of Connecticut and Rhode Island (Story, Commentaries, I, § 171), were not required to be submitted to the king for approval, it cannot be assumed that such laws could deprive a person of any liberty secured by the common law, but they might bestow greater privileges. Cf. Bishop, Mar., Div., and Sep., I, § 416.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[824] Fernow, op. cit., XII, 512: case of the Fiscal v. Jacob Fabricius, March 1, 1674, before Governor-General Colve and the council. A version of the case is also given by O'Callaghan, op. cit., II, 693, who translates "license" where Fernow uses "consent" in the last sentence.

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

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

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

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

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

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

[830] Records of New Amsterdam, I, 54; see ibid., 167, 199, 200. It may perhaps be inferred that the couple concluded to release each other; for only seven years after the trial (May 24, 1661) "Annetje Dircks, widow of Pieter Koch," is mentioned; ibid., III, 310; and similar phrase is twice repeated: ibid., 403; IV, 34.

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

[831] J. M. Stearns.

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

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

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

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

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

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

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

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

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

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

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

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

[840] Ibid.

[841] Ibid., 65.

[842] Ibid., 70.

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

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

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

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

[847] Ibid., 624, 625.

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

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

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

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

[852] The petition concludes with the following exhortation: "and we earnestly desire y^e Lord may perswade your hearts, vnto whome we are now concerned, that y^e may remoue y^e cause of this our address and open that eye in you that can see vs as we are, who can pray for those thats in authority that vnder them we may live a peaceable holy and Godlike life

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[867] Munsell's Annals of Albany, II, 182.

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

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

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

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

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

[873] See Cumming's "Historical Note," Col. Laws of N. Y., I, xix. Cumming cites the note of Robert Ludlow Fowler to Fac Simile of the Laws and Acts of the General Assembly ... as printed and sold by William Bradford, 1694, 78 ff.

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

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

[876] Law Reports, X, 693.

[877] Ibid., 794.

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

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

[880] Webster, Opinion, 2 ff., 55, 59, 70. He cites Fenton v. Reed (4 Johnson, Reports, 51), in favor of validity of consensual or common-law marriage; and Milford v. Worcester (7 Mass. Rep., 48), on the opposite side. In substantial agreement with Webster are the opinion of Seward, Answer, 1-53; and that of Fowler, Letter and Opinion, 60, 61, passim, who to prove the validity of the duke's law cites the cases of Fabricius and Ralph Doxy, above discussed.

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

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

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

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

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

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

[886] Law Reports, X, 742.

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

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

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

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

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

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

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

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

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

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

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

[898] A "Bill for the General Laws of the Province of East New Jersey," March, 1682/83: Leaming and Spicer, op. cit., 236. By this act marriage within the degrees there named is declared void: ibid., 243.

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

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

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

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

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

[903] Cook, loc. cit.

[904] Instructions to Lord Cornbury, 1702: in Leaming and Spicer, op. cit., 639; also in Smith, op. cit., 253.

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

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

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

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

[909] See, for example, the curious pamphlet of Thomas Underhill, Hell broke loose: Or An History of the Quakers Both Old and New. Setting forth many of their Opinions and Practices. Published to Antidote Christians against Formality in Religion and Apostasie (London, 1660), 16, 37, where, contradictorily, they are accused of believing, "that we sould endeavor to be perfect; and therefore to forbear all carnall acts of Generation, as being of Sin and of the Devil; and therefore Husband and Wife should part asunder, or abstain;" and that "marriage was made by Man;" while one of them is charged with defending a woman who went naked and confessing "That of late he went to bed with a woman, who was not his wife, and that he did it without sin."

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

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

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

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

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

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

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

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

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

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

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

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

[921] This is chap. 35 of the Great Law as given by Hazard, Annals of Pa., 626, 627; but it was not engrossed and does not appear in Linn's edition, which follows Patrick Robinson's copy: Nead, Historical Notes: in Linn, op. cit., 481 n. 3.

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

[923] Ibid., 229.

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

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

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

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

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

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

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

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

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

[933] "Whereas John Roades of the County of Philadelphia and Hannah Willcox daughter of Sarah Willcox of Schoolkil in the County aforesaid having declared theire Intentione of Takeing Each Other as Husband and Wife before several Men and Womens Meetings of the People called Quakers whose Proceedings Therein after deliberate Consideration Thereof and Consent of parties and Relations concerned being approved by the said Meeting.

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

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

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

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

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

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

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

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

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

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

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

[941] Ibid., 21.

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

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

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

[945] Earle, loc. cit.

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

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

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

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

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

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

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

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

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

[955] N. = Noble's Records of the Court of Assistants, I; W. = Record of the Court of Assistants, in Whitmore's Bibliog. Sketch.

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

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

[958] Mass. Col. Rec., IV, i, 401.

[959] Of course, the alleged "wicked expense" may possibly have been admitted as a second ground.

[960] Mass. Col. Rec., IV, i, 401. The reason for Halsall's petition is not stated. Was it, perhaps, that "male adultery" was not a sufficient ground of divorce?

[961] The petition and decree here mentioned are not in the Suffolk Files. Perhaps further search in the Mass. Archives would bring them to light.

[962] MSS. Early Court Files of Suffolk, No. 1741 (Sept. 9).

[963] Mass. Col. Rec., V, 205.

[964] Case of Christopher and Elizabeth Lawson: MSS. Early Court Files of Suffolk, No. 913. Though the decree in this case has not been discovered, it is certain that it came before the assistants; for the papers in the proceedings are marked "vera copia E[dward] R[awson] S[ec.]". In the Nailer case, mentioned below, there was similar reference from the county court to the court of assistants.

[965] Mass. Col. Rec., IV, i, 259, 269; cf. Whitmore, Col. Laws of Mass. (1660-72), 100, note.

[966] MSS. Rec. of the County Court of Middlesex, I, 85. In the same year the case of "Mary Batchiler" was referred for settlement to the county court of York: Mass. Col. Rec., IV, i, 282.

[967] Ibid., 32.

[968] Ibid., 89; III, 277.

[969] Ibid., III, 350; IV, i, 190.

[970] Ibid., IV, ii, 8.

[971] Mary complained of her husband's "deficjency": ibid., IV, ii, 91.

[972] Ibid., IV, ii, 465.

[973] Ibid., V. 188.

[974] MSS. Early Court Files of Suffolk, No. 1807. This document begins: "At a Generall Court." The case is also in Mass. Col. Rec., V, 248, 249.

[975] The divorce of James Skiffe was also granted "Att a Generall Court held vpon the Vineyard": Plym. Col. Rec., V, 33. See subsection b) below.

[976] These are the cases of Samuel Freeman (before 1656) and Philip Wharton (before 1678). The first is mentioned in the Halsall case. Cf. Whitmore, Col. Laws of Mass. (1660-72), 100, note, who says: "Samuel Freeman had a wife Apphia, and it has been thought that his widow married Gov. Thomas Prence of Plymouth. It has now been suggested that she was divorced, and married a second time while Freeman stayed in England, but this surmise needs examination." The second case is inferred from the following: "At a Circuit Court at Boston, Apr. 30, 1678, Philip Wharton and Mary Gridley, formerly his wife, bound over to answer for disorderly and offensive cohabiting together, having sued out a divorce. They owned they lived together. Bonds for good behavior until next court, especially to refrain from each other's company."—MSS. Records of the County Court of Suffolk, 506. Evidently it was common to resume the maiden name: cf. the Nailer and Lyndon cases.

[977] Cases of Sarah Helwis, Sept. 9, 1664; Katherine Nailer, 1672; Mary Sanders, March 4, 1674/5; and Thomas Winsor, Sept. 17, 1685: all in MSS. Early Court Files of Suffolk, Nos. 651, 1148, 1360, 2347. The Sanders case is also in Noble's Records of the Court of Assistants; Cowley, Our Divorce Courts, 28.

[978] The Nailer case. Two years later (March 11, 1674/5) we learn that "Edward Naylor being Complayned on for Intruding into his late wiues Katherin Nanny^s Company The Court on hearing what was lajd to the sajd Naylors charge doe Judge & declare his bond to be forfeited."—Noble's Records of Court of Assistants, I, 32.

[979] It is just possible that in the case of Mary Drury, Oct. 10, 1677, the decree is intended as a separation from bed and board. It is voted "whether the Court [probably the assistants] would declare it a nullity, past in the negative. Whether they would be compelled to Cohabit past in y^e Negative."—MSS. Early Court Files of Suffolk, No. 1644. Four years earlier (ca. March 5, 1673) the following record appears: "In the case of Hugh Drury & Mary His Wife The Court after due hearing of the case & euidences therein produced Doe declare that they Doe enjoine them both to liue together according to the ordinance of God as man and wife."—Noble's Rec. of Court of Assistants, I, 91.

[980] Nov. 3, 1692: Acts and Resolves, I, 61.

[981] Jan. 13, 1755: ibid., III, 782.

[982] In Whitmore, Col. Laws of Mass. (1672-85), 42, the date is given as 1641; but ibid. (1660-72), 146, it is 1647.

[983] June 19, 1696: Acts and Resolves, I, 209; cf. Acts and Laws, 1692-1765, 60.

[984] June 6, 1694: Acts and Resolves, I, 171, 172.

[985] Dec. 2, 1698: ibid., 353, 354.

[986] Jan. 29, 1710/11: MSS. Records of the Court of Gen. Sessions of Suffolk, I, 225.

[987] Apr. 26, 1725: ibid., III, 330. For a similar case, see ibid., 311.

In the MSS. Records of Superior Court of Judicature, 1725-30, fol. 284, may be found the following entry: At a court held for Barnstable and Duke's Cos., Apr. 21, 1730, "Hannah Marshall, wife of the Rev. Josiah Marshall, complained that she has lived with him for a considerable time past in daily fear of her life, threats of being brained, etc. Josiah appeared and made answer. Hannah admitted to her oath ... Court directed and advised her to keep at her father's house until further order from the Court or from the General Sessions. Josiah to find surety for his good behavior." This is the only case in these records between 1725 and 1780.

[988] Beginning with No. 37, 1776, the record in each suit consists of (1) the charge; (2) the specifications; and (3) the decree. The cause or causes assigned in the charge are usually identical with those named in the decree; but the specifications often contain more points than does the charge. Before 1776 the record has two parts, there being but one instance (No. 22, 1770) of a charge before that date.

[989] Defendant contumacious: does not appear to defend, though repeatedly summoned.

[990] However, in Nos. 34 (1773) and 36 (1774), Table III, adultery of the husband is the only reason for the divorce mentioned in the decree, but other grounds are specified in the petition. Perhaps these may be regarded as the earliest cases of divorce for "male adultery" during the eighteenth century.

[991] See Table III, Nos. 18, 32, 33, 36, 58.

[992] Table III, No. 21. This is the only case where custody of a child is asked for. In all other cases where children are mentioned they are already in the hands of the plaintiff; and in no instance are children referred to in the decree. Separation from bed and board is usually granted for cruelty (see Table III, Nos. 5a, 24, 18, 55, 65, 83a, 84); but a full divorce is never granted for this cause alone.

[993] Table III, Nos. 83, 83a. With this case may be compared that of Sarah v. William Vernon (Nos. 87, 87a, 87b). On October 16, 1784, the wife asked for such relief as the "laws of the land" provide, charging her husband with adultery and cruelty. The court found the evidence insufficient for either kind of divorce; but on July 21, 1785, the marriage was dissolved on the ground of adultery alone. Singularly enough, her petition for alimony six days later was denied.

[994] Table III, No. 29. Cf. Nos. 32 and 50, where marriage is dissolved for desertion accompanied by adultery (or remarriage).

[995] On April 22, 1760, for this offense "William Arbuthnot, Esq.," secured a divorce from his wife. In his petition he explains "that the reason of his application to this Court, before ... Eleanor hath been legally convicted of adultery by the course of Common Law, is, because the said Eleanor before she could be prosecuted" absconded ... and still continues out of the jurisdiction of the Common Law Courts of this Province": see Table III, No. 1. In Nos. 17, 20, 41, 56, and 57 the decree is based in part on proceedings in other courts; while in Nos. 78 and 80 such proceedings are pleaded.

[996] See Table III, Nos. 2, 8, 15, 24, 25, 26, 74, 85.

[997] MSS. Early Court Files of Suffolk, DCCXCIII, No. .29730: see Table II, Nos. 5 and 6.

[998] In Table III, Nos. 11 and 19, after previous written agreement, separation from bed and board with alimony is allowed. The same is true of No. 65, except that the wife retained her right of dower. Nos. 55, 56, and 57 are cases of verbal agreement; but this does not constitute the sole reason for the decree.

[999] Table III, No. 4; cf. Table III, No. 7, and Table II, No. 8.

[1000] In 1745 a slave was allowed a divorce for his wife's adultery with a white man: see Gray's note to Oliver v. Sale in Quincy, Reports, 29; and Bishop, Mar., Div., and Sep., I, 282.

[1001] Acts and Laws of ... New Hamp., 1696-1726 (Boston, 1726), 10; ibid. (Portsmouth, 1761), 54; ibid. (Portsmouth, 1771), 11.

[1002] The petition is in the "Province Records and Court Papers": Coll. New Hamp. Hist. Soc., VIII, 68.

[1003] Woolsey, Divorce, 196, says, "At first, divorces were mainly, if not quite exclusively, granted by an act of a colonial legislature, in accordance, perhaps, with the practice then, and until recently, existing in England, for the House of Peers to take cases of dissolution of marriage into their own hands." This statement is of course too broad; but Cowley is decidedly in error when he declares that the "remark of President Woolsey requires modification with respect to Rhode Island, and still more with respect to Connecticut. Neither Massachusetts nor New York nor any other Colony or State knew anything of legislative divorce until a much later day."—Our Divorce Courts, 22.

[1004] So stated by Goodwin, Pilgrim Republic, 596, 597, who gives a list of the cases, to which, after independent examination of the Plymouth Records, I am unable to add any new examples.

[1005] Ply. Col. Rec., IV, 66 (1664), 187, 192 (1668), 42, 46, 47 (earlier notices). Cf. Goodwin, op. cit., 596.

[1006] Ply. Col. Rec., V, 127.

[1007] Goodwin, op. cit., 597. The case is in Ply. Col. Rec., V, 159.

[1008] On the Connecticut law as to seven years' absence, Swift, Digest of the Laws of the State of Conn., I, 21, says: "By common law, that period of absence unheard of, is presumptive evidence of the death of the person; yet in such cases it would be proper that there should be a divorce before a marriage is had, for if the party should return, the first marriage would undoubtedly be valid, though by the [Connecticut] statute a prosecution for the crime of bigamy could not be sustained."

[1009] Ply. Col. Rec., VI, 44, 45.

[1010] Ibid., 190.

[1011] There are two other references to divorce matters in the Records. In 1670, on his wife's confession of legal cause, Samuel Hallowey petitioned for a divorce; but the court, "being not very clear," postponed the case three months to see if the wife would persist in her confession or the parties become reconciled. In June the case was referred to two men for examination; but it is not again mentioned: ibid., V, 32, 41, 42. Cf. Goodwin, op. cit., 597. Again, curiously enough, we find here the certified copy of a decree of divorce granted in the Massachusetts jurisdiction to James Skiffe, "late inhabitant of Sandwich, but now att the Viniyard," by a "Generall Court" held on that island. Skiffe's wife had run away to Roanoke with another man: Ply. Col. Rec., V, 33.

[1012] This, of course, is practically equivalent to "fraudulent contract" as usually permitted in the modern statutes.

[1013] For the foregoing orders see New Haven's Settling in New England. And some Lawes for Government published for the Use of that Colony (London, 1656): in New Haven Col. Rec., II, 586. They are also embodied in the code of 1655: Trumbull, Blue Laws, 241, 242. Their date is not given, but it is probably previous to 1648 or 1649: New Haven Col. Rec., II, preface, iv; Trumbull, op. cit., 40.

[1014] New Haven Col. Rec., II, 479, citing also "1 Cor., 7:15," as in the order before cited.

[1015] Swift, System of the Laws of the State of Conn. (Windham, 1795), I, 192; cf. idem, Digest (New Haven, 1823), I, 24, 25.

[1016] Swift, System of the Laws, I, 193.

[1017] See Public Statute Laws of the State of Conn. (Hartford, 1808), I, 236, editorial note 1; also Swift, Digest, I, 24, 25.

[1018] Conn. Col. Rec. (Oct. 18, 1677), II, 328: "It is ordered, by this court that noe bill of divorce shall be granted to any man or woman lawfully married but in case of adultery, fradulent contract, or willful desertion for three years with totall neglect of duty, or seven years' providentiall absence being not heard of after due enquiry made and certifyed, such party shall be counted as legally dead to the other party; in all which cases a bill of divorce may be granted by the Court of Assistants to the aggrieved party who may then lawfully marry or be marryed to any other."

[1019] Acts and Laws (New London, 1715), 28; ibid. (New London, 1750), 43; ibid. (New Haven, 1769), 43. Almost the only change during the period mentioned in the text is the substitution of "superior court" for "court of assistants." Cf. Pub. Stat. Laws (1808), 236 n. 1. As in Massachusetts, the divorced wife is to have a part of the husband's estate, not exceeding one-third thereof: Acts and Laws (1769), 146.

[1020] Act of June 6, 1843: Public Acts (1843), 20; Revision of the Stat. of the State of Conn. (Hartford, 1849), 274.

[1021] Swift, Digest, I, 21.

[1022] This is the view of Swift, Digest, I, 21, 22, referring to Blackstone, Commentaries, III, 94. Thus a decision of the Connecticut superior court of errors seems to limit "fraud" as a cause of divorce to "corporal imbecility": 1 Day, Reports, 111. But in 1848, at the August term of the superior court for Litchfield county, "it was held ... upon a consultation with judges of the Supreme Court, that where a woman at the time of her marriage was pregnant with a bastard child, and fraudulently concealed the fact from her husband, this was a sufficient cause for a divorce."—Dutton and Cowdrey's Revision of Swift's Digest (New Haven, 1851), I, 22; citing 9 Conn. Rep., 321; and for New York, where a similar practice prevailed, 4 Johnson, Chancery Rep., 343. In the earlier period doubtless a still broader meaning was given to the term "fradulent contract": see the examples for illustration in Swift, Digest, I, 22.

[1023] Swift, System of the Laws, I, 193.

[1024] Conn. Col. Rec., I, 275 (May 17, 1655).

[1025] Ibid., 301 (Aug. 12, 1657).

[1026] Ibid., 362 (Mch. 14, 1660).

[1027] Ibid., 379 (May 15, 1662).

[1028] Ibid., II, 129 (May 12, 1670).

[1029] Ibid., 292, note.

[1030] Ibid., 292 (Oct. 21, 1676).

[1031] Ibid., 293 (Oct. 18, 1677). For two cases of divorce, each for six years' desertion, see ibid., 293 (Oct. 12, 1676), 322 (Oct. 11, 1677); one for five years' desertion, ibid., 327 (Oct. 18, 1677); and another for three years' "wilful" desertion, ibid., III, 23 (1678).

[1032] Conn. Col. Rec., IV, 37 (Oct. 9, 1690).

[1033] Ibid., 52, 53 (May, 1691).

[1034] Ibid., 59 (Oct. 8, 1691).

[1035] In a pamphlet entitled Appeal to the Public (New Haven, 1788), full of errors, Trumbull attacks the divorce laws of his state. According to him (48), there is no example of divorce in New York from the settlement to 1787; and with equal inaccuracy he declares (46) that "in the Massachusetts and Connecticut codes printed at Cambridge 1672, there is no law respecting divorce. The law of Connecticut relating to it was made five years after, Oct. 11, 1677." For Connecticut he makes the further extraordinary statement (46) that "more than forty years from the settlement" elapsed "before any such law was in existence. No divorce was given by virtue of the law, till the year 1692. After this divorces were, for many years, sparingly given. But as they became customary, as there were no punishments for delinquents, and as the shame decreased with the growth of the practice, they have, within this few years, had a rapid increase. In less than a century [1692-1788], four hundred and thirty-nine (439) pair ... have been separated by divorce. This whole number, forty-eight couple excepted, have been divorced in the short term of fifty-two years. Between twenty and thirty pair ... are now annually "thus separated" in the Superior Court, besides those put asunder by the General Assembly. About twenty times as many are now divorced annually, as were in almost sixty years after the first settlement of the State; and about half as many as were divorced through the whole first century. Seventeen pair have been divorced last circuit." It is to be hoped that the statistics are more trustworthy than the history.

[1036] Conn. Col. Rec., X, 168 (May, 1753).

[1037] Ibid., XI, 544, 545 (May, 1761).

[1038] Thus a divorce was granted in 1774: ibid., XIV, 223, 387, 388; and two instances occurred in May, 1821: Swift, Digest, I, 23.

[1039] An act of 1837 refers incidentally to divorces which have been or shall be "granted, either by the general assembly or by the superior court, on the application of a married woman."—Pub. Stat. Laws (1837), 33; also in Pub. Stat. Laws (general revision, 1838), 187. Query: Did this act invite and authorize appeal to the assembly in such matters?

[1040] For the annual lists of divorces granted by the assembly see Resolves and Private Acts of the State of Conn. (1837), 3 ff.; ibid. (1838), 13-16; ibid. (1839), 28-42; ibid. (1840),9-14; ibid. (1841), 23-28; ibid. (1842), 4-16; ibid. (1843), 10-20; ibid. (1844), 8; ibid. (1845), 15, 16; ibid. (1846), 15-19; ibid. (1847), 31-34; ibid. (1848), 61-69; ibid. (1849), 46-56. The last of these divorces is that of Candace Williams, of New Haven, from F. Walter Williams, May, 1850; ibid. (1850), 21.

[1041] Here is a typical case, though often the resolve is much briefer:

"Upon the petition of Polly M. Mead of Danbury, Fairfield County, and State of Connecticut, praying a bill of divorce from her husband, Martin Mead of said Danbury, which petition was duly served and returned:

"Resolved by the Assembly, that the said Polly M. Mead be, and she is hereby divorced from the said Martin Mead, and is and forever hereafter shall be absolved from all obligations to the said Martin Mead by virtue of the said marriage contract, and is hereby declared to all intents and purposes, sole, single and unmarried.

"Resolved that the said Polly ... have the sole charge, care and custody of her only child, and that the said Martin ... shall have no power or authority over him, in any way or manner whatsoever."—Resolves and Private Acts (1837), 3.

[1042] Act of June 19, 1849: Pub. Acts of the State of Conn. (Hartford, 1849), 17.

[1043] Rhode Island Col. Rec., I, 231 (Oct. 26, 1650); cf. Arnold, Hist. of R. I., I, 322.

[1044] R. I. Col. Rec., I, 312 (1655). "And if any persons in this Colonie," continues the order, "shall part themselves and marrie again without y^e authoritie of y^e Court of Commissioners, or be convicted of carnal copulation with any other [bigamy], they shall be punished as in case of adulterie."—Ibid., 312.

[1045] Ibid., 319.

[1046] Peter Talman got a divorce on his wife's confession of adultery: Arnold, Hist. of R. I., I, 320; and it "was ordered that Thomas Genings shall goe and demand his wife to live with him, but in case she refuse, he shall make his addresses to the General Court of Commissioners."—R. I. Col. Rec., I, 312. Ann Talman, the divorced wife of Peter, referred to, was later more than once whipped for her misconduct: ibid., II, 187,188.

[1047] Durfee, Gleanings from the Judicial Hist. of R. I., 35.

[1048] Carr, Cartwright, and Maverick.

[1049] Is this the same "John Hicks" who in New Netherland obtained a divorce in 1655? See sec. iii, below.

[1050] R. I. Col. Rec., II, 99 ff. At the same time, with astonishing inconsistency, it was enacted that similar offenders shall be amenable to the laws punishing fornication, which are made more stringent; but all present reputed marriages are declared valid and the children legitimate (104, 105). By this rule Horod and George should either have been regularly divorced or ordered to cohabit as husband and wife. In any event their punishment was unjust.

[1051] Ibid., 188, 189. In the same year Robert Colwell got a divorce from his wife Mary: ibid., 204.

[1052] Arnold, Hist. of R. I., I, 320. This case came before the assembly in 1665: R. I. Col. Rec., II, 119-21; cf. Durfee, Gleanings from the Judicial Hist. of R. I., 35.

[1053] Arnold, Hist. of R. I., I, 365 (Nov., 1672). This bill was granted to Richard and Mary Pray, whom the assembly had permitted to live apart in 1667: R. I. Col. Rec., II, 479.

[1054] Ibid. (1664-77), 543.

[1055] The entry is marked "returned to county court": Early Records of Muddy River, 69.

[1056] Arnold, op. cit., I, 470 (June, 1683).

[1057] Ibid., 483 (1685).

[1058] See Acts and Laws (Newport, 1767), 74, containing the changes made in 1749 and 1754. The superior court is authorized in its discretion to grant alimony from the husband's estate.

[1059] In that year the court of trials, composed of the governor and assistants or councillors, which with no essential change in composition and functions had existed from about 1644, was superseded by a regular law tribunal, the superior court of judicature: Arnold, op. cit., II, 157. But already in 1729 a "Superior Court," composed of at least five members of the upper branch of the legislature, and apparently lower than the court of trials, was established: ibid., 90. In general on the various stages in the history of the court of trials, see ibid., I, 210 (1647), 302 (1663-64), 460 (1680); II, 16 (1704).

[1060] In Oct., 1749, a divorce was granted by the assembly; and this is the first Arnold had noticed, probably meaning in that period: op. cit., II, 175.

[1061] Durfee, Gleanings from the Judicial Hist. of R. I., 35, 36. See Laws of R. I. (1851), 796, where petitions for divorce on account of wilful desertion are transferred by the assembly to the supreme court; and similar reference, ibid. (1846), 57, 85.

[1062] Bishop, Mar., Div., and Sep., I, § 116. "If an uninhabited country is discovered and planted by British subjects, the English laws are said to be in force there, for the law is the birthright of every subject."—Story, Commentaries, I, §§ 147 ff. Cf. Kent, Commentaries, I, 343, 473; and Blackstone, Commentaries, I, 107, who regards the colonies as a conquered country.

[1063] Bishop, First Book, §§ 51-59; idem, Mar., Div., and Sep., I, § 117.

[1064] The expression "all laws" is used advisedly. Though "in some of the American cases the term 'common law' is used, the broad meaning of the term, not its narrow and technical one, is intended."—Bishop, Mar., Div., and Sep., I, § 119; citing C. v. Knowlton, 2 Mass. Rep., 530, 534: Sackett v. Sackett, 8 Pickering, Reports, 309, 316. Cf. Jefferson, Works, VI, 65; VIII, 374, 379; IX, 282.

[1065] Bishop, op. cit., I, §§ 115-37, where the authorities for each step in the argument are cited.

[1066] Ibid., §§ 119, 109. See Latour v. Teesdale, 8 Taunt., Eng. Com. Pleas Rep., 830; Rex v. Brampton, 10 East, King's Bench Rep., 282; Caterall v. Caterall, 1 Rob., Ec., 580, 581; and Lauderdale Peerage Case, 10 Law Reports, 744, 745.

[1067] On "parol separation" see Bishop, Mar., Div., and Sep., I, §§ 1203-52.

[1068] Hening, Stat., I, 303; V, 491.

[1069] This court was so called since 1662: Hening, Stat., II, 58; cf. Howard, Local Const. Hist., I, 390 ff.

[1070] June 16, 1691: Palmer, Calendar of Va. State Papers, I, 29.

[1071] Case of Purcell v. Purcell (1810), 4 Hen. and Munf., Reports, 506-19. "It is not commonly thus assumed that a court of equity will take jurisdiction of a subject simply because the common law tribunals do not."—Bishop, Mar., Div., and Sep., I, § 1398, note 5; Story, Equity Jurisprudence, § 62.

[1072] Tucker, Blackstone's Commentaries (1803), III, 94.

[1073] Case of Almond v. Almond (1823), 4 Rand., Rep., 662-68; also in 15 Am. Decisions, 781.

[1074] Bishop, op. cit., I, §§ 1394, 1395; following Fonblanque, Equity, 97, note. In Helms v. Franciscus, 12 Bland, 544 ff., it is taken for granted that the equity judges of the commonwealth assumed the jurisdiction in question as naturally coming to them; nothing is said of a statute conferring it.

[1075] The subject is worked out in detail by Bishop, op. cit., I, §§ 1383-1421.

[1076] Case of Galwith v. Galwith, 4 Harris and McHenry, Reports, 477, 478.

[1077] The act of 1639, engrossed but not finally approved, gave the so-called "county court" power in certain matrimonial causes belonging properly to ecclesiastical courts: but this tribunal was really the predecessor of the provincial court: Bozman, Hist. of Md., 106, 128, 129, 131, 604.

[1078] Macnamara's case, 2 Bland, 566, note: Bishop, op. cit., I, § 1396 n. 3.

[1079] Case of Farnshill v. Murray, 1 Bland, 479 ff.; 18 Am. Decisions, 344-50. Cf. the case of Utterton v. Tewsh, Ferguson's Reports of Consist. Court of Sc. (1811), 23.

[1080] That is, for cruelty and adultery: case of Helms v. Franciscus (1830), 2 Bland, 544 ff.; 20 Am. Decisions, 402 ff. Cf. the case of Wallingsford v. Wallingsford, 6 Har. and J., 485.

[1081] By the same act it is provided that "the general court may inquire into, hear and determine, either on indictment or petition of either of the parties, the validity of any marriage, and may declare any marriage, contrary to the table in this act [table of forbidden degrees] or any second marriage, the first subsisting, null and void," with appeal to the "court of appeals."—Laws of Md. (Annapolis, 1799), I, Feb., 1777, c. xii, par. xiv, xv.

[1082] Jamison v. Jamison, 4 Md. Ch., 289, 295. This case is thus more liberal than Helms v. Franciscus just cited.

[1083] Bishop, op. cit., I, § 1396. Cf. Hewitt v. Hewitt, 1 Bland, 101: Crane v. Meginnis, 1 Gill and J., 463, or 19 Am. Decisions, 237; Wright v. Wright's Lessee, 2 Md., 429, or 56 Am. Decisions, 723.

[1084] Case of Crane v. Meginnis, 1 Gill and J., 468; 19 Am. Decisions, 237-42. Cf. also Wright v. Wright's Lessee, 2 Md., 429, or 56 Am. Decisions, 723-33.

[1085] See chap. xvii, sec. ii.

[1086] Case of Head v. Head (1847), 2 Kelly, Georgia Reports, 191-211. Cf. on the same point, Finch v. Finch, 14 Ga., 362: and Brown v. Westbrook, 27 Ga., 102, which varies from the two other decisions.

[1087] See chap. xiv, above.

[1088] These three cases are in the New York Colonial MSS., 1630-1664: Dutch: Part First, VI, 49; VIII, 415, 417, 419; X, 291, 293. They were first brought to light by Cowley, Our Divorce Courts, 32, 33.

[1089] This was a case of alleged incest: O'Callaghan, Doc. Rel. to Col. Hist., N. Y., II, 704.

[1090] Case of desertion and adultery: N. Y. Col. MSS. (translation from the Dutch), XXIII, 248; also, with slightly different translation, in O'Callaghan, op. cit., II, 730.

[1091] Case of elopement with adultery, Dec. 15, 1661: Gerard, The Old Stadt Huys, 386, 387; also in O'Callaghan, op. cit., XII, 359, where we read: "This fine priest demanded with great circumstantiality in the above-mentioned meeting a decree of divorce on account of his wife's flight and received the same, subject to your Honors' approval, on the 15^th of December" (letter from Beeckman to Stuyvesant and others, dated at Altona, South River, Feb. 1, 1662).

[1092] Records of New Amsterdam, III, 73.

[1093] Ibid., 70. Cf. ibid., 370 (1661), for mention of a case of seduction.

[1094] At "ffort James in New Yorke the 24th day of October 1670."—Munsell, Annals of Albany, IV, 20.

[1095] Earle, Colonial Days in Old New York, 48.

[1096] For this case (July 11, 1665) see Valentine, Manual of the Corporation (1852), 486, 487, 489, 494.

Some further details are given in the Records of New Amsterdam, V, 262-65: "Lodowyck Pas, his wife and daughter (the wife of Arent Jurriaansen Lantsman), entering the aforesaid Lantsman's wife's request to be divorced from her husband, as she cannot keep house with him. Decreed to postpone the matter until the next court day when the said Lantsman is to be heard and the aforesaid Lodowyck Pas was allowed to retain his daughter with him during that time" (262). Then Beletje produces a remonstrance against being obliged to go to her husband (263). Lantsman next appears, and is ordered to produce his witnesses by next court day (264, 265). No further mention of the matter appears in these documents. Whether the proceedings just indicated were preliminary or after failure of arbitration is, of course, not clear; but the former seems more probable.

[1097] Earle, op. cit., 49.

[1098] New York Col. MSS., XXIII: Calendar of Hist. Man. (1664-1776), 26; cf. ibid., XXIII, 269, 390; XXV, 84, 85.

[1099] Earle, op. cit., 48, 49.

[1100] Ibid., 50.

[1101] Ibid.

[1102] Quoted from Earle, op. cit., 46, 47.

[1103] See Chancellor Kent, in Williamson v. Williamson, 1 Johnson, Chancery Rep., 488, 491, 492; and Chancellor Walworth's decisions in Wood v. Wood, 2 Paige, Chancery Rep., 108, 111; North v. North, 1 Barbour, Chancery Rep., 241, 245: 43 Am. Decisions, 778; and Burr v. Burr, 10 Paige, Chancery Rep., 20, 35. Cf. Bishop, Mar., Div., and Sep., I, §§ 132, 133, notes; and Story, Commentaries, I, 80, 81.

[1104] Bishop, op. cit., I, § 109.

[1105] Duke of Yorke's Book of Laws: in Linn, Charter and Laws, 63.

[1106] Kent, Commentaries, II, 97, 98.

[1107] Letter of Nov. 24, 1773: O'Callaghan, Doc. Rel. to Col. Hist., N. Y., VIII, 402; also in New Jersey Archives, X, 411, 412.

[1108] Colden, Letters on Smith's History of New York: in Coll. N. Y. Hist. Soc., Fund Series, I, 1868, 187.

[1109] New York Col. MSS., XXV, 84. Here is the document in full, though some phrases are hard to decipher:

"To the Right Honr^ble Maij Edmo^nd Andross, Gouev^nr Gen^ll of all his Highnes Territories in America:

"The Humble Petiton of Richard Wood:

"Humbly: Sheweth:

"That whereas your Honou^rs Petitioner haueing liue under his Highness Jurisdiction in Westchester about fifteen years, during w^ch time your petitioner hath endeauoured to demeane himselfe as a true and Loyall subject and serviceable in his generation, to the best of his power, but through the unchastity and disloyalty of y^e petitioners wife by name Mary Wood, sustained great detriment and endured a very troublesome and vexatious liueing to the Dishonour of God, and repugnant to the holy bond of wedlock, she haueing as much as in her lay endeauoured the totall ruine and destruction of your petitioner, by her most abominable words and actions, haueing openly confessed she hath defiled her marriage bedd, and that purposely to breed difference between your petitioner and her selfe, notwithstanding y^e petitioner endeauoured to reclaime her, by all means lawfull, who yet continued the same and rather worse, and now purposely absented her selfe by reason she knows her selfe guilty and to prevent that shame and punishment due to her base and wicked actions....

"Y^r Petitioner humbly beggs your Hon^rs would bee pleased to take your petitioners sad case into consideration, and if it shall seem good in your Hon^rs sight a separation may be made, otherwise noe [illegible] can be expected but a sad euent of such deplorable doings.

"and y^e Petitioner shall for
Euer Pray as in Duty bound."

[1110] Linn, Charter and Laws, 109, 110. This provision was abrogated by William and Mary, 1693, but re-enacted the same year: ibid., 110, note, 194 (the re-enacted law).

By the Dutch code fornicators, if single, are to marry or pay a heavy fine; O'Callaghan, Ordinances, 495. Under the duke of York the penalty is marriage, fine, or corporal punishment, in the discretion of the court: Duke of Yorke's Book of Laws: in Linn, Charter and Laws, 27. The New Jersey laws of "Carteret's time" (ca. 1675) contain the same provisions: Leaming and Spicer, Grants, 107; and the Pennsylvania statutes authorize the county court to impose "all or anie" of these three penalties: Linn, op. cit., 145, 210; Bioren, Laws, I, 2, c. 3.

[1111] For incest the guilty person "shall forfeit one-half of his estate, and both suffer imprisonment a whole year, in the house of Correction, at hard labour, and for the second offence, imprisonment in manner aforesaid during life."—Linn, op. cit., 110; abrogated and re-enacted in 1693: ibid., 194; and a similar law was passed in 1700: Bioren, Laws, I, 2, 6.

[1112] For bigamy, according to the Great Law, whosoever shall be "Convicted of having two wives or two husbands, att one and the same time shall be imprisoned all their Lifetime in the House of Correction, at hard labour, to the behoof of the former wife and children, or the former husband and children." When one of the persons is single and the other married, the penalty is the same: Linn, op. cit., 110, 111; abrogated and re-enacted in 1693: ibid., 194; and again in substance re-enacted in 1700: Bioren, Laws, I, 2, 6.

[1113] Gordon, Hist. of Pa., 557. But Gordon (op. cit., 70) is in error when he states that by the Great Law divorce was sanctioned after a "second" offense; and regarding this law some other mistakes occur.

[1114] Pa. Col. Rec., IX, 564, 566, 567, 568, 580.

[1115] Ibid., X, 26, 42, 104, 105.

[1116] Ibid., 40, 53, 54, 55, 104, 105.

[1117] Laws of the Com. of Mass., 1780-1816, I, 321.

[1118] Act of Feb. 12, 1821: Laws of the Com. of Mass. (1821), 507. This somewhat extends the provisions of the act of Feb. 20, 1818: ibid. (1818), 550.

[1119] Act of April 1, 1834: Laws of the Com. of Mass. (1834), 252-57.

[1120] Pub. Stat. (1882), 811. The law has remained substantially the same since 1835: see Rev. Stat. (1836), 477; Supp. to Gen. Stat., 1860-1872, I, 540.

[1121] Acts and Resolves of Mass. (1899), 379.

[1122] Act of April 22, 1896: Acts and Resolves, 257. This statute further declares that "no rabbi of the Israelitish faith shall solemnize marriage until he has filed with the clerk or registrar of the town or city where he resides a certificate of the establishment of the synagogue of which he is rabbi, and of the date of his appointment thereto, and of the term of his engagement."—Ibid., 257. Cf. Rev. Laws (1902), II, 1349-50, with somewhat different wording.

[1123] Also the wardens of the town of New Shoreham: Pub. Statutes (1882), 416; Gen. Laws (1896), 621. The justice has power in any town of the state.

[1124] Pub. Laws of R. I. (1798), 481-83; ibid. (1844), 267. By this date the justice of the peace had ceased to act.

[1125] Revised Stat. (1849), 273; Stat. of the State of Conn. (1854), 374, 375; Gen. Stat. (1875), 186; ibid. (1887), 609; ibid. (1902), 1086.

[1126] Slade, State Papers, 292, 484. Cf. Laws of the State of Vermont (1798), 330.

[1127] Act of Feb. 15, 1791: Laws of the State of N. H. (1797), 295, 296.

[1128] Cf. Const. and Laws (1805), 296; Laws of the State (1815), 350, 351; ibid. (1830) 172-74.

[1129] Laws of N. H. (1833), 88.

[1130] Gen. Laws (1878), 428; Pub. Stat. (1891), 494; ibid. (1900), 589.

[1131] Pub. Laws (1798), 481-83; same provision, ibid. (1822), 371.

[1132] Ibid. (1844), 267.

[1133] Gen. Laws (1896), 621. Cf. Pub. Stat. (1882), 416.

[1134] Laws of the State of Maine (1821), I, 341.

[1135] Public Acts (1828), 1157, 1158; Laws of the State of Maine (1831), III, 238-40.

[1136] Revised Statutes of Maine (1884), 516, 517. This provision has long existed: see Acts and Resolves (1876), chap. 110, sec. 2, pp. 78, 79; Revised Stat. (1871), 485; ibid. (1857), 391. Cf. Wright, Report, 53.

[1137] Acts and Resolves (1875), chap. 56, p. 44; Revised Stat. (1884), 517. Cf. 62 Maine Reports, 596.

[1138] Slade, State Papers, 292, 484.

[1139] Laws of the State of Vt. (1798), 330.

[1140] Act of Nov. 7, 1800: Laws of the State of Vt. (1808), I, 268.

[1141] Ibid., 269.

[1142] Ibid., 272, 273.

[1143] Revised Stat. of 1839 (1840), 319.

[1144] Vermont Stat. (1894), 500.

[1145] Acts and Laws (1784), 130.

[1146] Pub. Stat. Laws (1821), 316; the same provision, ibid. (1835), 370.

[1147] Pub. Acts (1847), 39.

[1148] Gen. Stat. (1866), 301, note, giving a summary of changes in the law since 1640. Cf. Gen. Stat. (1874), 186; ibid. (1887), 609; ibid. (1902), 1086. See 1 Root, 381; 4 Conn. Reports, 134, 209.

[1149] Gen. Stat. (1887), 609.

[1150] Pub. Stat. of Mass. (1882), 811; Pub. Stat. of N. H. (1891), 494; Gen. Stat. of N. H. (1867), 331; Gen. Laws of R. I. (1896), 622; Vermont Stat. (1894), 500; Revised Stat. of Maine (1884), 516.

[1151] Two witnesses, besides the person solemnizing the marriage, must attend: Gen. Laws of R. I. (1896), 624; Acts and Resolves (1899), 50, 51.

[1152] Pub. Stat. (1900), 590; Gen. Stat. (1867), 332.

[1153] In Massachusetts the penalty is a fine not exceeding $500, or imprisonment in jail or in the house of correction for a term not exceeding one year, or both: Act of April 22, 1896: Acts and Resolves (1896), 257; in Maine it is $1,000, or not less than five years' imprisonment: Rev. Stat. (1884), 517; in New Hampshire it is not exceeding $300, one-half to the complainant: Pub. Stat. (1891), 494; Gen. Laws (1878), 429; in Vermont, not less than six months' imprisonment or a fine of from $100 to $300; in Connecticut, not to exceed $500, or six months' imprisonment: Gen. Stat. (1887), 348; in Rhode Island the fine is $500: Gen. Laws (1896), 625.

[1154] Pub. Stat. of Mass. (1882), 811; Revised Stat. of Maine (1884), 517; Pub. Stat. of N. H. (1891), 494; Vermont Stat. (1894), 502; Gen. Laws of R. I. (1896), 625.

[1155] Pub. Stat. of Mass. (1882), 811; Rev. Laws of Mass. (1902), II, 1351; Rev. Stat. of Maine (1884), 517; Pub. Stat. of N. H. (1891), 494; Gen. Laws of R. I. (1896), 625.

[1156] For a digest or tabulation of the statutes of all the states and territories relating to definition, age of consent to marriage, age below which parental consent is required, prohibited degrees, void, voidable, and forbidden marriages, as the law stood in 1887, see Wright, Report, 28-45.

[1157] See chap, xviii, sec. i, b), for some account of the laws governing the "age of consent."

[1158] Pub. Stat. of N. H. (1900), 588.

[1159] Written consent is requisite in Connecticut, Maine, Rhode Island, and Vermont; but it may be either written or verbal in Massachusetts; and in all cases the consent is preliminary to issuance of license: Pub. Stat. of Mass. (1882), 810; Rev. Stat. of Maine (1884), 516; Vermont Stat. (1894), 501; Gen. Stat. of Conn. (1887), 608, 609; ibid. (1902), 1085; Gen. Laws of R. I. (1896), 623; and Acts and Resolves (1899), 49.

[1160] Pub. Acts of Conn. (1895), 474.

[1161] Act of May 18, 1894: Acts and Resolves (1894), 453, 454. See also the provision referred to below, relating to the clandestine marriage of a girl of sixteen secured by abduction.

[1162] Acts and Resolves of Mass. (1899), 160; cf. Revised Laws (1902), II, 1347-49.

[1163] Swift, System of the Laws of Conn. (1795), I, 186, 187.

[1164] Pub. Stat. (1900), 588. Cf. Wright, Report, 34.

[1165] Acts and Laws (1750), 144.

[1166] Pub. Stat. Laws (1808), I, 478, 479 n. 4.

[1167] The law forbidding such unions was repealed in May, 1816: Pub. Stat. Laws (1816), 261.

[1168] In Vermont, Connecticut, and Rhode Island such unions are void; in the other three states they are both void and incestuous; but in Vermont and Massachusetts they are void only when solemnized in the state; while in all the issue is illegitimate: Pub. Stat. of N. H. (1891), 493; Pub. Stat. of Mass. (1882), 808, 809, 1166; Gen. Laws of R. I. (1896), 621, 1000; Vermont Stat. (1894), 500, 505; Gen. Stat. of Conn. (1902), 1085; Rev. Stat. of Maine (1884), 520, 903.

[1169] In Rhode Island marriage or carnal connection between persons so related is punishable by imprisonment of from five to twenty years: Gen. Laws (1896), 1001; in Connecticut, by two to five years' imprisonment: Gen. Stat. (1887), 343; in New Hampshire, by a fine of not exceeding $500 or imprisonment not exceeding three years: Pub. Stat. (1891), 728; in Massachusetts, by confinement in state's prison not exceeding twenty years, or in jail not exceeding three years: Pub. Stat. (1882), 1166; in Maine, one to ten years' imprisonment: Rev. Stat. (1884), 903; in Vermont, confinement in state's prison not more than five years or a fine of not more than one thousand dollars or both: Vermont Stat. (1894), 902, 903.

[1170] Pub. Stat. Laws (1808), 478, 479 n. 4. See chap, xii, sec. iv.

[1171] For adultery the Massachusetts statute prescribed the gallows, whipping, and the scarlet badge; Act of Feb. 17, 1785; Laws of the Com. of Mass., 1780-1816, I, 217; and the gallows with fine, whipping, or imprisonment appears in the early New Hampshire laws: Laws of the State (1794), 294, 295, 285.

[1172] So by implication in Maine: Wright, Report, 39 n. k. Cf. Vermont Stat. (1894), 506 (voidable); Pub. Stat. of Mass. (1882), 809.

[1173] Rev. Stat. of Maine (1884), 515; Vermont Stat. (1894), 506 (voidable); Pub. Stat. of Mass. (1882), 809; Gen. Laws of R. I. (1896), 621.

[1174] Vermont Stat. (1894), 506, 507 (voidable).

[1175] Pub. Stat. of N. H. (1891), 495; ibid. (1900), 590; Gen. Laws of R. I. (1896), 621; Vermont Stat. (1894), 505; Rev. Stat. of Me. (1884), 515; Pub. Stat. of Mass. (1882), 809.

[1176] Such unions were void without process in Maine: Rev. Stat. (1847), 364; ibid. (1857), 396. They are so now by implication: Wright, Report, 39 n. k.

[1177] So in Rhode Island as late, at any rate, as 1844: Pub. Laws (1844), 268.

[1178] There are copies of three of these reports in the library of Harvard University, one marked "Mass. General Court, No. 46;" a second marked "No. 7, 1841;" and a House report marked "No. 28, 1839." For the repeal, see Acts and Resolves (1843), 40; Supp. to Rev. Stat., 1836-1853, 248.

[1179] Gen. Stat. (1887), 609. The question of good faith is not raised in the statute. Cf. Gen. Stat. (1902), 1086.

[1180] Wright, Report, 28. Cf. Vermont Stat. (1894), 516; Rev. Stat. of Mass. (1836), 476; ibid. (1882), 809; Rev. Laws of Mass. (1902), II, 1346; Rev. Stat. of Maine (1884), 516; ibid. (1857), 391.

[1181] Wright, Report, 35.

[1182] Gen. Stat. (1887), 343; ibid. (1902), 375.

[1183] Rev. Stat. of Me. (1884), 883.

[1184] In case of abduction. This offense is punishable by imprisonment for a term of not more than one year or a fine of not exceeding $1,000: Pub. Stat. (1882), 1165. This law originated in 1852: see the act of May 20, 1852 (Supp. to Rev. Stat., 1836-1853, 852), whose penalties are, however, not the same. Cf. Rev. Laws (1902), II, 1785.

[1185] Pub. Acts of Conn. (1895), 667. This precedent has been followed by Minnesota and Kansas: see p. 480, below.

[1186] Under a penalty of $20 for each offense: Rev. Stat. (1884), 516; ibid. (1870), 484; Acts and Resolves (1858), chap, xiv, secs. 2, 3, p. 12.

[1187] In the case of paupers a license may not be issued without the written consent of the selectmen or overseer of the poor of each of the towns where the parties reside, or which are liable for their support: Vermont Stat. (1894), 501.

[1188] In Maine such children are legitimized by marriage; in Connecticut, Massachusetts, New Hampshire, and Vermont, by marriage and acknowledgment of father: Wright, Report, 26, 27. Cf. Pub. Stat. of N. H. (1891), 495; Vermont Stat. (1894), 485; Gen. Stat. of Conn. (1887), 157; Rev. Stat. of Me. (1884), 611; Pub. Stat. of Mass. (1882), 743.

[1189] Gen. Laws of R. I. (1896), 805, 806; Rev. Stat. of Me. (1884), 838, 839; Vermont Stat. (1894), 269, 270; Pub. Stat. of N. H. (1891), 596; Gen. Stat. of Conn. (1887), 318, 319.

[1190] Acts and Laws of Conn. (1784), 135, 136.

[1191] Pub. Stat. Laws (1808), I, 477 n. 1.

[1192] Acts and Laws (1750), 144. Cf. also Acts and Laws (1786), 135 ff.; ibid. (1805), 285, 286; Pub. Stat. Laws (1821), 316; ibid. (1835), 369, 370; ibid. (1839), 412, 413; Rev. Stat. (1849), 272; Statutes (1854), 374-78 (repeal of old law and enactment of a new registration system).

[1193] Laws of N. H. (1797), 296.

[1194] See Const. and Laws (1805), 296, 297; Laws of the State (1815), 350, 351; ibid. (1830), 172-74; Rev. Stat. (1843), 290-92; Compiled Stat. (1853), 375, 376; Laws of N. H. (1854), 1415, 1416 (new system introduced).

[1195] Laws of the Com. of Mass., 1780-1816, I, 322, 323.

[1196] Laws of the Com. of Mass. (1834), 251-57; Rev. Stat. (1836), 476; Supp. to Rev. Stat., 1836-1853, I, 597; Acts and Resolves (1850), 347 (act of March 28, establishing the modern license system).

[1197] It was retained in Vermont until 1864: Gen. Stat. (2d ed., 1870), 856. Cf. the acts of 1779 and 1784 in Slade, State Papers, 292, 484; and Laws of the State (1798), 380, 331; and in Maine until after 1858: compare Laws of the State (1821), I, 340 ff.; Rev. Stat. (1857), 390; Acts and Resolves (1858), 12 (new system introduced). A reactionary step was taken in the Rhode Island law of Jan., 1849. Hitherto the optional plan had prevailed; by this act, in all cases, solemnization is allowed only after at least one notice in a religious meeting: see Public Laws, 1848-1851, 757. The Pub. Laws (1844), 267, show the optional plan in force; but it does not appear in Rev. Stat. (1857), 312, 313, a certificate of qualification presented by the parties to the person conducting the ceremony taking its place.

The following is the form of notice required to be posted for fourteen days, when application is made to a lay officer—justice, warden, and later a judge—as given in the Pub. Laws of R. I. (1798), 481, 482:

"Know all men by these presents, that A. B. of —— and C. D. of —— have declared unto me their intentions of marriage.... I do therefore hereby make public the said intentions. If any person know any just cause or impediment why these persons shall not be joined together in marriage, they may declare the same as the law directs. Given under my hand and seal, at ——, this —— day of ——."

[1198] For the special case of a male under eighteen and a female under sixteen, see above, subsec. b).

[1199] Pub. Stat. of Mass. (1882), 810; Rev. Laws (1902), II, 1347, 1348, 1352.

[1200] Pub. Stat. of Mass. (1882), 258.

[1201] Rev. Stat. of Me. (1884), 515, 516; Vermont Stat. (1894), 501.

[1202] Pub. Stat. of R. I. (1882), 416, 417; Gen. Laws (1896), 622, 623, where the elaborate forms of the declarations of the "expectants" are given in full; and the act of 1898, Acts and Resolves, 47 ff. Cf. Gen. Stat. of Conn. (1887), 24, 608, 609; Pub. Stat. of N. H. (1891), 493, 494; Gen. Laws of N. H. (1878), 428; Gen. Stat. of N. H. (1867), 331; Laws of N. H. (1903), 79, requiring non-residents to file notice five days before issue of certificate.

[1203] In Connecticut the fine for such illegal celebration was for a long time just $67: Acts and Laws (1805), 286; Rev. Stat. (1849), 273; but it is now $100: Gen. Stat. (1902), 1086. In Massachusetts the fine is not to exceed $500: Acts and Resolves (1896), 257; earlier it was $50 to $100: Pub. Stat. (1882), 811; in Rhode Island the penalty is $1,000, or not to exceed six months' imprisonment: Gen. Laws (1896), 625; Acts and Resolves of R. I. (1899), 51; in Maine, $100, one-third to the prosecutor and two-thirds to the county: Rev. Stat. (1884), 517; in Vermont, not less than $10: Vermont Stat. (1894), 502; in New Hampshire it is $60, to the parent, master, or guardian of either party, who may prosecute: Pub. Stat. (1891), 494; Gen. Laws (1878), 428.

[1204] By the early laws of Rhode Island, after the wedding, the person solemnizing gave to the parties a certificate in the following form: "I hereby certify that A. B. of ——, son of ——, and C. D. of ——, daughter of ——, were lawfully joined together in marriage on the —— day of —— by me the subscriber."—Pub. Laws (1798), 486. At present the "indorsement" is in similar form: Gen. Laws (1896), 624.

[1205] In Connecticut and Vermont the indorsed certificate is sent to the officer of the town whence it issued; in Rhode Island, to the officer of the town where the marriage was solemnized: Gen. Stat. of Conn. (1887), 609; Vermont Stat. (1894), 501, 502; Acts and Resolves of R. I. (1899), 49, 50; Gen. Laws of R. I. (1896), 624. The form of indorsement prescribed in Rhode Island is as follows: "I hereby certify that the herein described —— and —— were joined in marriage by me, in accordance with the law of the state of Rhode Island, in the —— of —— this —— day of ——, A. D., 189-."—Ibid., 624. Earlier in Connecticut a separate certificate of the solemnization was sent to the clerk: Pub. Stat. Laws (1821), 317.

[1206] Pub. Acts of Conn. (1899), 998.

[1207] Rev. Stat. of Me. (1887), 517: Freeman, Supp. to Rev. Stat., 368, 369.

[1208] Act of May 17, 1892: Acts and Resolves (1892), 250-52.

[1209] Pub. Stat. of Mass. (1882), 811.

[1210] Rev. Stat. of Me. (1884), 516. But in Maine the certificate or declaration must be filed in the towns where the parties "respectively" dwell.

[1211] Pub. Stat. of N. H. (1891), 494; ibid. (1900), 589; Gen. Laws (1878), 428.

[1212] Vermont Stat. (1894), 540.

[1213] Ibid.

[1214] Acts and Resolves of Mass. (1897), 420, 421. For the earlier law as to the clerk's record see Pub. Stat. (1882), 256. In 1786 the town clerk is to report to the clerk of the general sessions of the peace in each county, who is to keep a record: Laws of the Com., 1780-1816, I, 323.

[1215] Pub. Stat. of N. H. (1900), 588. Cf. Gen. Laws (1878), 428; Gen. Stat. (1867), 331; and the act of 1851, Laws of N. H. (1851), chap. 1103; Comp. Stat. (1853), 284, 285, which seem to have first introduced something like a modern provision for record.

[1216] Freeman, Supp. to Rev. Stat., 1885-1895, 370-75; Laws (1891), chap. 118, 127, as amended by Laws (1893), chap. 233, 248, and Laws (1895), chap. 154, 169-73.

[1217] Act of May 6, 1897: Pub. Acts, 850. Cf. for the earlier law Gen. Stat. (1887), 608.

[1218] Gen. Laws of R. I. (1896), 331, 622, 623; superseded by act of May 6, 1898: Acts and Resolves, 47 ff.

[1219] In Massachusetts report is made to the secretary of the commonwealth: Pub. Stat. (1882), 255-58; Acts and Resolves (1897), 421-29; in New Hampshire and Maine, to the state registrar of vital statistics, being the secretary of the state board of health: Pub. Stat. of N. H. (1891), 490-92; Laws (1899), 255, 256; Freeman, Supp. to Rev. Stat. of Me., 1885-1895, 370; in Connecticut, to the superintendent of registration of vital statistics, who is the secretary of the state board of health: Gen. Stat. (1887), 20 ff., 566; cf. Public Acts (1897), 850.

[1220] Gen. Laws (1896), 624. See the act of 1899, Acts and Resolves, 19, providing for the registration of births, deaths, and marriages, knowledge of which may in any reliable way come to the recorder.

[1221] By an act of 1893 the registrars of births, deaths, and marriages are directed, so far as possible, to complete the records from Jan. 1, 1850: Pub. Acts (1893), 324. This act has since been twice supplemented: ibid. (1895), 552; ibid. (1897), 836.

[1222] Acts and Resolves of Me. (1903), 168.

[1223] Act of Nov. 30, 1898: Acts and Resolves of Vt. (1898), 41-46, repealing the act of 1896 and all other acts in conflict. Cf. also Vermont Stat. (1894), 538-40.

[1224] In this section the laws of marriage are traced for the following twenty-one districts and commonwealths: the states of Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Carolina, South Carolina, Tennessee, Texas, Virginia, and West Virginia; Indian Territory, the territories of Arizona, New Mexico, Oklahoma, Porto Rico, and the District of Columbia.

[1225] See chap. xiii.

[1226] See chap, xiii, sec. i.

[1227] Hening, Statutes, X, 361-63; cf. Jefferson, Notes on the State of Va. (Brooklyn, 1794), 174.

[1228] Hening, op. cit., X, 363.

[1229] The testimonial runs as follows: "This shall certify to all whom it may concern, that at a court held for ——, on the —— day of ——, one thousand seven hundred and ——, A. B. produced credentials of his ordination, and also of his being in regular communion with the —— church, took the oath of allegiance to the commonwealth, and entered into bond, as required ... , and that he is hereby authorized to celebrate the rites of matrimony," etc.—Hening, op. cit., XI, 503 (act of Oct., 1784).

[1230] Ibid., 504.

[1231] Act of Dec. 22, 1792: Acts of the Gen. Assembly (1794), 202-6.

[1232] Hening, op. cit., XI, 281, 282. By the act of 1792, also, marriages celebrated by magistrates before 1785 were legalized: Acts of the Gen. Assem., 203.

[1233] They are called "commissioners" in the act of 1830: Acts (1830-31), 103.

[1234] Acts of the Gen. Assem. of Va. (1794), 331.

[1235] So to Ohio and Brooke counties in 1796: Acts of the Gen. Assem. (1803), 371; and to Bath county in 1830: Acts (1830-31), 103.

[1236] Act of Dec. 20, 1830: Acts (1830-31), 103. Compare Revised Code (1819), I, 393-403; and Tate, Digest (1823), 417, where the provisions of 1794 and 1792 as to lay commissioners and bond are retained and made general.

[1237] Code of Va. (1887), 555. Cf. Code of Va. (2d ed., 1860), 524, where this provision appears in the same terms.

[1238] Laws of 1784 and 1792 as amended at the revision of 1819: Revised Code (1819), I, 396; Tate, Digest, 416.

[1239] Act of Feb. 13, 1812, chap. 25: Tate, Digest, 416.

[1240] Act of Feb. 16, 1831: Acts (1830-31), 102; also in Supplement to Revised Code (1833), 221.

[1241] Code of Va. (1878), 555.

[1242] Acts of the Legislature of W. Va. (1868), 29.

[1243] Ibid. (1872-73), 501.

[1244] Acts of the Legislature of W. Va. (1877), 135.

[1245] See the act of March 18, 1882: Acts of the Leg. (1882), 312, 313; which is retained in Code of W. Va. (1897), 654, 655; and there has been no later legislation.

[1246] Act of Feb. 3, 1798: Stat. Law of Ky. (ed. Littell), II, 65, 66. Provision was made in 1814 for revoking the testimonial whenever a minister shall be "suspended, deposed, or excommunicated, by and from the society to which he belongs, for any other cause than a difference in religious tenets."—Ibid., V, 95, 96.

[1247] Act of Dec. 12, 1799: Stat. Law of Ky., II, 275, 276.

[1248] Kentucky Stat. (1894), 764, 765; agreeing in essential provisions with the act of March 24, 1851, taking effect July 11, 1852: in Acts (1850-51), 212-16. Cf. Kentucky Stat. (1899), 823.

[1249] See chap. xiii, sec. ii, above.

[1250] Poe, Code of Md. (1888), 975. Compare Kilty, Laws, 1777, chap. 12, sec. 3; and Laws of Md. (1787), 1777, chap. 12, sec. iii.

[1251] Act of May 13: U. S. Stat. at Large, XXIX, 118-20; Moore, Code (1902), 266.

[1252] Iredell-Martin, Acts of the Gen. Assem., 1715-1803, I, 253.

[1253] North Carolina Code, I, 689, retaining the act in Laws (1871-72), chap. 193, sec. 3.

[1254] For the early years see Scott, Laws of the State of Tenn. (1821), Index at "marriage;" Statute Laws (1831), 219, 220; Caruthers and Nicholson, Compilation (1836), 449-52.

[1255] Code of Tenn. (1884), 609. The judges were empowered by Acts (1846), chap. 145, pp. 220, 221; chancellors in 1842; Statute Laws (1846), 126; rabbis by Acts (1879) chap. 98; and the governor and speakers by Acts (1889), chap. 134, p. 272.

[1256] Editorial note, Brevard, Alphabetical Digest (1814), II, 438. Cf. on this point the remarks of Editor Desaussure, in connection with the case of Vaigneur et al., v. Kirk (1808), in 2 S. C. Equity Reports, 644-46.

"In South Carolina the only reference to the parties by whom marriages may be solemnized is found in section 2034, General Statutes, 1882, which provides a penalty for the solemnization of marriage between white and colored persons by 'any clergyman, minister of the gospel, magistrate, or other person authorized by law to perform the marriage ceremony.'"—Wright, Report, 50, 51.

[1257] Digest of the Laws of Georgia (Philadelphia, 1801), 314. Contracts previously celebrated before any justice of the peace, minister, or preacher of the gospel are confirmed: and the same persons, if properly qualified or ordained, are in future authorized to perform the ceremony, in each case after due notice or license.

[1258] Judges and justices of inferior courts are mentioned as having power to join persons in marriage in the act of 1799: Digest of the Laws of Ga., 733.

[1259] Code of Ga. (1882), 392, 393; ibid. (1896), 11, 223, 224.

[1260] Acts (1866), 156, 157; Code of Ga. (1896), II, 5.

[1261] An act of Feb. 19, 1836, validates marriages illegally solemnized by members of the board of county police: Code of Miss. (1848), 496.

[1262] In these states and territories marriage may be celebrated as follows:

(1) Florida: By "all ordained ministers of the gospel in communion with some church, all judicial officers and notaries public": Rev. Stat. of Florida (1892), 679 (act of Feb. 8, 1861). For the earlier law see act of Nov. 2, 1829, in Thompson, Manual or Digest (1847), 219; Duval, 88.

(2) Arkansas: By the governor of the state for the time being; any judge of the courts of record; any justice of the peace of the county where the marriage is solemnized; any regularly ordained minister or priest of any religious sect or denomination, when he shall have caused to be recorded in the office of clerk and recorder of some county in the state the license or credentials of his clerical character, and shall have obtained from such clerk a certificate of the record thereof; religious societies which reject formal ceremonies, to which the parties belong, using their own rites: Digest (1894), 1126, 1127, being the same law as in Rev. Stat. (1838), 536-38.

(3) Arizona: By a regularly licensed or ordained minister of the gospel; any judge of the courts of record; justices of the peace of the several counties: Rev. Stat. (1887), 371; ibid. (1901), 808, 809.

(4) New Mexico: By any ordained clergyman, without regard to the sect to which he may belong; any civil magistrate; any religious society by its own rites: Compiled Laws (1897), 405, 406; see act of Feb. 2, 1860: Laws (1860), 120, or in Rev. Stat. (1865), 534.

(5) Alabama: By any licensed minister of the gospel in regular communion with the Christian church or society of which he is a member; pastor of any religious society, according to the rules ordained or customs established thereby; Quakers, Menonists, and other Christian societies, according to their forms of consent published and declared before the congregation; all judges of supreme, circuit, or city courts, or a chancelor, throughout the state; any judge of probate or justice of the peace within his county: Code of Alabama (1897), I, 828. For the law of Jan. 5, 1805, enacted by the "Legislative Council and House of Representatives of Mississippi Territory," see Toulmin's Digest (1823), 576, 577; or Stat. of Miss. Territory (1816), 328-30.

(6) Mississippi: By any minister of the gospel ordained according to the rules of his church or society, in good standing; judges of the supreme or circuit court; justices of the peace within their respective counties; members of the boards of supervisors within their respective counties; Quakers, Menonists, or any other Christian society, to which the parties belong, according to their own customs: Annotated Code (1892), 678. Compare the laws of Jan. 5 and July 20, 1805, revised and amended Feb. 10, 1807, in Stat. of Miss. Territory (1816), 328-30, already cited for Alabama, which was originally a part of the Mississippi Territory; also the act of June 29, 1822, in Code of Miss. (1848), 492, 493, being practically the same as the law of 1805 as modified by that of 1807.

(7) Missouri: By any judge of a court of record; any justice of the peace; or any licensed or ordained preacher of the gospel who is a citizen of the United States: act of March 1, 1897: Laws, 116; also in Rev. Stat. (1899), I, 1036. The statute of April 24, 1805, enacted by the "Governor and Judges of the Indiana Territory"—who were authorized and empowered by an act of Congress to make laws for the "District of Louisiana," of which Missouri was a part—allows judges of the general court, or of the county court of common pleas, in their respective jurisdictions, and ministers of any religious society or congregation within the districts in which they are settled, and Quakers in their public meetings to solemnize marriages: Laws of a Pub. and Gen. Nature (1842), I, 66. Compare the act of Feb. 20, 1835, in Rev. Stat. (1835), 401, 402; and Rev. Stat. (1845), 729-31.

(8) Indian Territory: By act of Congress, May 2, 1890, U. S. Stat. at Large, XXVI, 81, the marriage laws of Arkansas, except as expressly modified, are put in force. Thus, by federal enactment, marriages entered into by Indian customs are valid; and, in addition to the persons authorized in Arkansas, they may be solemnized by clerks, deputy clerks, and commissioners of the United States courts, Annot. Stat. of Ind. Ter. (1899), 12, 13, 507 ff.

(9) Oklahoma: By a justice of the supreme court, judge of the district or probate court, justice of the peace, a duly ordained, licensed, or authorized preacher or minister of the gospel or priest of any denomination; and previous to 1897, in case of Indians, by the peacemakers, their agents, or the superintendent of Indian affairs. Non-compliance with the statute does not invalidate a marriage: Stat. of Oklahoma (1893), 669; act of Feb. 26: Session Laws (1897), 210. By another act of 1897 Indian marriages hitherto celebrated by their own rites are validated, and for the future forbidden, the Indians having accepted land in severalty being subjected to the statute: ibid., 212-15.

(10) Porto Rico: By any judge, or by any clergyman or minister of any religion or sect, whether a citizen of the Island or of the United States: Rev. Stat. and Codes (1902), 808, 811.

[1263] Compare the acts of March 26, 1804, and March 2, 1805: U. S. Stat. at Large, II, 283-89, 322, 323; also in Poore, Charters, I, 691-97.

[1264] Act of March 3, 1805: U. S. Stat. at Large, II, 331, 332; also in Poore, Charters, I, 697, 698. This act places the appointment of the governor in the hands of the president; but the judges are merely to be "appointed" and hold their office for four years.

On the institution of government in the territory of Orleans see Adams, U. S., II, chap. ii.

[1265] Digest of Civil Laws now in force in the Territory of Orleans (1808), 26.

[1266] Ibid., 24.

[1267] Lislet, General Digest (1828), II, 3.

[1268] It is contained in Lislet, op. cit., II, 3-13; also (in part) in the Digest of the Civil Laws now in force in the Territory of Orleans, 24 ff.; with the changes to date of publication in Code civil de l'état de la Louisiane (1825), 80 ff.; in the reprint of the last-named compilation in Civil Code of La. (1853). Compare the provisions of the present law in Voorhies and Saunders, Revised Civil Code (1888), 60-68. See also The Laws of Las Siete Partidas, which are still in force in the State of Louisiana, translated from the Spanish (1820), I, 451-64.

[1269] Lislet, op. cit., II, 7-9, 10.

[1270] Act of March 17, 1809: Lislet, op. cit., II, 13.

[1271] Lislet, op. cit., II, 14.

[1272] Civil Code (1853), 15.

[1273] Ibid.

[1274] Revised Code (1888), 62, 63. For the clause regarding citizenship see Acts (1855), 128. The present powers of justices and parish judges are determined by Acts (1864), 50. For the power of district judges see Wright, Report, 53.

[1275] Ordinances and Decrees of the Consultation, Provisional Government of Texas, and the Convention Which Assembled at Washington March 1, 1836 (1838), 137, 138; also in Dallam, Digest of the Laws of Texas (1845), 167.

[1276] Act of June 5, 1837: Laws of the Republic of Texas (1838), 233.

"When persons have intermarried as aforesaid agreeably to the customs of the country and either the husband or wife has died previous to the passage of this law," then such marriages are legal and binding and the issue are legitimized, provided the parties were living together as man and wife "at the said death of either party."—Ibid., 233, 234.

[1277] Laws of the Rep. of Tex., 234; also Dallam, Digest, 167, 168. An act of Feb. 5, 1841, validates marriages previously made by "bond": Laws of Rep. of Tex. (5th Cong.), 176.

[1278] Act of April 13, 1891: Gen. Laws of Tex. (1891), 96; being the same except as to Jewish rabbis, as act of Nov. 1, 1866: Laws (1866), 72, and Revised Civil Stat. (1888), I, 877; Ann. Civ. Stat. of Tex. (1897), I, 1081.

[1279] Code of Md. (1888), I, 975.

[1280] Lislet, General Digest (1828), II, 8.

[1281] Voorhies and Saunders, Revised Code of La. (1888), 63; Merrick, Rev. Civil Code (1900), 25.

[1282] Session Laws of Okla. (1897), 210; Wilson, Stat. of Okla. (1903), I, 858. Earlier one witness was sufficient: Stat. of Okla. (1893), 669, 670. Cf. Rev. Stat. and Codes of Porto Rico (1902), 810.

[1283] It appears to be assumed in the earlier statutes of Georgia that the celebration before a minister or magistrate is to be according to the Anglican ritual: Cobb, Analysis of the Stat. of Ga. (1846), 292, 293.

[1284] Code (1884), 609; ibid. (1896), 1039.

[1285] Session Laws of Okla. (1897), 210.

[1286] Code (1883), I, 689; Laws (1871-72), chap. 193, sec. 3.

[1287] Digest (1894), 1127; see Rev. Stat. (1838), 537; Ann. Stat. of Ind. Ter. (1899), 509.

[1288] Wright, Report, 57.

[1289] Rev. Stat. of Arizona (1887), 372; ibid. (1901), 810.

[1290] Act of March 21, 1889: Arizona Session Laws (1889), 58. This provision seems not to be retained in the Rev. Stat. of 1901.

[1291] In West Virginia the penalty is confinement in jail for not exceeding one year, or a fine of $500, or both: Code (1900), 972; in Virginia it is not exceeding one year in jail and a fine of not more than $500: Code (1887), 899; in Kentucky, not exceeding three years in the penitentiary, and the same penalty for falsely personating father, mother, or guardian: Kentucky Stat. (1894), 766; ibid. (1899), 824.

[1292] Miss. Ann. Code (1892), 679.

[1293] Tenn. Code (1884), 610, 611; ibid. (1896), 104.

[1294] Code of Va. (1887), 555; Code of W. Va. (1900), 655; Kentucky Stat. (1894), 763, 764; Code of Ga. (1882), 393.

[1295] See Daniel v. Sams, 17 Florida Rep., 487, an interesting case involving a slave marriage.

[1296] Littell, Kentucky Stat., II (1810), 571, 572; Cooper, Stat. at Large of S. C., II, 475, 476; Brevard, Alphabetical Digest, II (1814), 41-44; Rev. Stat. (1873), 481.

[1297] Code of Va. (1887), 556.

[1298] Colored persons cohabiting as husband and wife before Feb. 28, 1867, were recognized as such in West Virginia: Code (1900), 655; similarly in Tennessee: Code (1884), 609, 610; before March 12, 1872, in South Carolina: Rev. Stat. (1894), I, 753; when so living on Aug. 15, 1870, in Texas: Rev. Civil Laws (1888), I, 879; before Dec. 14, 1866, in Florida: Acts and Resolves (1866), 22, Rev. Stat. (1892), 681; before Dec. 20, 1866, in Arkansas: Digest (1894), 1128.

[1299] Moore, Code of D. C. (1902), 268.

[1300] Code of Md. (1888), II, 977, 978.

[1301] Subject to prosecution and punishment for fornication, or fornication and adultery, for refusal: Code of Ga. (1882), 356, 357. Cf. Acts (1865-66), 239, 240; Acts (1866), 156, 157; and also 61 Georgia Reports, 306, and 40 Georgia Reports, 244.

[1302] Digest of Ark. (1894), 1125; Ann. Stat. of Ind. Ter. (1899), 507; the same in Rev. Stat. (1838), 553; Rev. Stat. of Mo. (1899), I, 1035: Compiled Laws of N. M. (1897), 405.

But the Oklahoma statute of 1893 adds: "Consent alone will not constitute a marriage; it must be followed by a solemnization, or by a mutual assumption of marital rights, duties, or obligations."—Statutes (1893), 668. By the act of 1897 for this passage is substituted: "and the marriage relation shall only be entered into, maintained, or abrogated as provided by law."—Session Laws (1897), 208.

[1303] Voorhies and Saunders, Revised Code of La. (1888), 60, 61; cf. the act of 1807, in Digest of Civil Laws Now in Force (1808), 24; or Lislet, Gen. Digest (1828), 4; or Code Civil (1825), 80-82.

[1304] Rev. Stat. and Codes of Porto Rico (1902), 805.

[1305] Code of Ga. (1882), 392. Cf. the law of North Carolina above cited: Code of N. C. (1883), I, 689.

[1306] For both sexes see Code of Ala. (1897), 829; Digest of Ark. (1894), 1125; also Rev. Stat. (1835), 535; Ann. Stat. of Ind. Ter. (1899), 507; Rev. Stat. of Ariz. (1887), 371; Code of Ga. (1896), II, 222; Kentucky Stat. (1899), 822; Rev. Stat. and Codes of Porto Rico (1902), 807; Rev. Code of La. (1888), 61; Merrick, Rev. Civ. Code of La. (1900), 23; Session Laws of Okla. (1897), 208; Wilson, Stat. of Okla. (1903), I, 857; Comp. Laws of N. M. (1897), 407; Code of N. C. (1883), I, 688; Rev. Civil Stat. of Tex. (1888), I, 878 (law of 1837); Ann. Civil Stat. of Texas (1897), I, 1082; Code of Va. (1887), 560, 561; Acts of W. Va. (1897), chap. 34; Code of W. Va. (1900), 661; Moore, Code of D. C., 265. Cf. Wright, Report, 29.

[1307] By inference from the law below cited.

[1308] For both sexes see Code of Ala. (1897), 828; Rev. Stat. of Ariz. (1887), 371; ibid. (1901), 810; Digest of Ark. (1894), 1129, 874; Ann. Stat. of Ind. Ter. (1899), 413, 510; Rev. Stat. of Fla. (1892), 679; Stat. of Ky. (1899), 824; Session Laws of Okla. (1897), 208, 209; Rev. Code of La. (1888), 61, and the same in 1807, Lislet's General Digest (1828), II, 5; Maryland Code (1888), I, 976, or in Laws (1886), chap. 497; Ann. Code of Miss. (1892), 677; Rev. Stat. of Mo. (1899), I, 1037; Compiled Laws of N. M. (1897), 405, 406, 407; Rev. Civil Stat. of Tex. (1888), I, 378; Ann. Civil Stat. of Tex. (1897), I, 1082; Code of Va. (1887), 555; Code of W. Va. (1900), 654; Compiled Laws of D. C. (1894), 273; Acts of Tenn. (1899), 36.

[1309] Code of Ga. (1882), 393; ibid. (1896), II, 223. Cf. Wright, Report, 30.

[1310] Rev. Stat. of S. C. (1894), II, 347, 348.

[1311] Code of Ala. (1897), I, 828, 829; cf. Wright, Report, 29.

[1312] Kentucky Stat. (1899), 825. But the marriage of an infant without consent is not for that reason void: Canon v. Alsbury, 1 A. K. Marshall, Kentucky Reports, 76.

[1313] Code of W. Va. (1900), 656.

The Rev. Code of S. C. (1873), 441, contains the provision that if any "woman, child or maiden, being above the age of twelve years, and under the age of sixteen years, do at any time consent or agree to any contract of matrimony," against the will or without the knowledge of parent or guardian, "by secret letters, messages, or otherwise," she shall forfeit her estate, including lands, tenements, and hereditaments, "to the next of kin who next would inherit, during the life of the offender, then to the one who would have inherited had there been no such child."

[1314] Acts (1899), 36.

[1315] Rev. Stat. and Codes of Porto Rico (1902), 806.

[1316] Probably the "majority" of the grandparents of the two persons is meant.

[1317] Lislet, General Digest (1828), II, 5, 6; Civil Laws Now in Force in the Territory (1808), 62.

[1318] Rev. Civil Code of La. (1888), 62, 91, 92; Voorhies, Rev. Laws (1884), 236, 237; Rev. Laws (1897), 393. Since 1807 the council (or meeting) has been composed of at least five relatives or friends, summoned by the judge, and held before an officer, practically as required by the present law: see Civil Laws Now in Force in the Territory (1808), 62. For failure to attend a meeting, when cited, there is a fine of $20, in the discretion of the judge to be applied to the expenses of the meeting. In place of absentees "friends" may be appointed: Rev. Civil Code (1888), 92.

[1319] Rev. Stat. of Fla. (1892), 820, for the first time expressly prohibiting marriage within "Levitical consanguinity;" but probably earlier the law intended the same restriction: McClellan, Digest of the Laws of Fla., chap. 59, sec. 8; Wright, Report, 32.

[1320] Rev. Stat, of Ariz. (1887), 371; ibid. (1901), 809; Digest of Ark. (1894), 1125, 1126; Rev. Stat, of Mo. (1899), I, 1036; Ann. Stat, of Ind. Ter. (1899), 507; Session Laws of Okla. (1897), 208; Acts of La. (1900), 188.

[1321] Acts (1865-66), 244, removing penalty for marriage of first cousins since Dec. 11, 1863, and repealing conflicting laws.

[1322] Rev. Stat. and Codes of Porto Rico (1902), 806, 807.

[1323] Assuming that this relationship is included in the restrictions of the Levitical law which is in force in Georgia, and probably also in Florida: see McClellan, Digest of the Laws of Fla., chap. 59, sec. 8; and compare Wright, Report, 32.

[1324] Act of Oct., 1788: Hening, Statutes, XII, 688, 689. Persons married contrary to the act shall be "separated by the definitive sentence or judgment of the high court of chancery."

[1325] In 1827 the law forbidding marriage with a deceased wife's sister was considerably relaxed. The parties are no longer to be separated, but to be "deemed guilty of a misdemeanor, to be prosecuted by information, or indicted in the Superior Court of Law;" and on conviction they are to be punished by such fine or imprisonment or both, as the jury may determine: Acts (1826-27), 22. This law was still in force in 1841: Tate, Digest (2d ed.), 500, where the editor cites Vaughan's opinion in Hill v. Good, 2 Virginia Cases, 61. But the restriction does not appear in Code of Va. (1849), 470, 471 (degrees). Cf. Leigh, 17.

[1326] Act of March 15, 1860: Acts of the Assembly (1859-60), 188, 189. In West Virginia until later a man was not permitted to marry his brother's widow: see Acts (1872-73), chap. 161, p. 503, where the restriction is removed.

[1327] Laws of Md. (1790), chap. xx, repealing the act of 1777, chap. 12, sec. 1, Laws of Md., 1763-87 (1787), where these marriages are "void."

[1328] Louisiana Acts (1827), 4.

[1329] This dual restriction appears in Cobb's Analysis of Stat. of Ga. (New York, 1846), 290, 291; but it does not seem to be retained in Code of Ga. (1861), 331 (prohibited degrees of affinity), and there is no later statute on the subject.

[1330] In Alabama such marriages are incestuous and must be annulled by the court on conviction; but the issue born before annulment is legitimate: Code (1897), 828; in Arizona, Arkansas, Georgia, Indian Territory, Kentucky, Mississippi, and New Mexico they are incestuous and void or voidable after decree: Rev. Stat. of Ariz. (1887), 371; Digest of Ark. (1894), 1126; also Rev. Stat. of Ark. (1838), 536; Code of Ga. (1896), II, 222; Kentucky Stat. (1894), 763; Comp. Laws of N. M. (1897), 406; Ann. Code of Miss. (1892), 677. In Maryland, District of Columbia, Missouri, and North Carolina they are absolutely void or voidable after decree: Code of Md. (1888), I, 973, 974; Comp. Laws of D. C. (1894), 271; Rev. Stat. of Mo. (1899), I, 1036; Code of N. C. (1883), I, 688, 689. But the laws of New Mexico, while declaring these marriages "absolutely void," provides in sec. 1430 that they shall not be "declared void except by decree of the district court;" and the North Carolina act has the condition that no marriage followed by cohabitation and birth of issue shall be declared void after the death of either of the parties for any of the causes stated, except in case of unions of whites with negroes or Indians to the third generation. In Virginia prohibited marriages, if solemnized in the state, are void after decree, or when within the forbidden degrees, from the time of conviction for incest; and the law of West Virginia is similar: Code of Va. (1887), 560; Code of W. Va. (1891), 656, 661. See also Code of Tenn. (1884), 608; Rev. Stat. of Fla. (1892), 820; Rev. Civil Code of La. (1888), 61; Rev. Stat. of S. C. (1894), I, 751; and compare Wright, Report, 35-45.

[1331] For example, in Virginia the penalty for marriage within the forbidden degrees is imprisonment not exceeding six months or a fine of not more than $500: Code (1887), 898; in West Virginia, one or both of these penalties: Code (1900), 972; in Georgia, imprisonment in the penitentiary from one to three years: Code (1896), III, 116; in Maryland incest is a felony punishable by one to ten years' imprisonment at the discretion of the court: Code (1888), I, 511; in Missouri the penalty for the same crime is not exceeding seven years in the penitentiary: Rev. Stat. (1889), II, 907; in the District of Columbia, for marriage within the "three degrees of lineal direct consanguinity, or within the first degree of collateral consanguinity," the penalty for each is "five hundred pounds current money ($1333.33¹⁄₃);" and within any of the other forbidden degrees of consanguinity or affinity, it is "two hundred pounds current money ($533.33¹⁄₃)": Comp. Stat. of D. C. (1894), 272.

[1332] Code of Va. (1887), 560; Code of W. Va. (1891), 612, 918; Code of Ga. (1882), 287, 288.

[1333] Formerly in Maryland any person marrying out of the state to evade the law was fined 500 pounds: Kilty, Laws, 1777, chap. 12, sec. 6. Now each of the persons must pay $100: Code (1888), 523.

[1334] Moore, Code of D. C. (1902), 266.

[1335] Kentucky Stat. (1894), 764; ibid. (1901), 823.

[1336] In Mississippi marriages out of the state, to avoid penalties of forbidden degrees, are declared void: Ann. Code of Miss. (1892), 677.

[1337] See the lists in Wright, Report, 35-45. On these marriages I have not found changes since 1887, the date of that compilation.

In Virginia bigamy was formerly punished by death: see the act of 1792, in Acts of Gen. Assem. (1794), 205; now the penalty is three to five years' imprisonment: Code (1887), 680; in West Virginia it is one to five years in the penitentiary: Code (1891), 918; in Florida, not exceeding five years in state's prison, or not exceeding one year in the county jail, or a fine of not more than $500: Rev. Stat. (1892), 820; in Missouri, not exceeding five years in the penitentiary, or less than six months in the county jail, or not less than $500, or by both a fine of not more than $100 and imprisonment in the county jail for not less than three months: Rev. Stat. (1899), I, 608, 609. Bigamy is prohibited in Rev. Civil Stat. of Tex. (1888), I, 877; White, Penal Code (1901), 188; Digest of Ark. (1894), 1126.

[1338] In Texas they are prohibited and punished "when the female is abducted or forced into marriage;" but they are voidable when the license has been fraudulently obtained: Wright, Report, 43; Rev. Civil Stat. of Tex. (1888), I, 877, note; see Robertson v. Cole, 12 Texas, 356. Cf. Wilson, Supp. to Criminal Statutes (1900), 242, 243.

[1339] See, for example, Kentucky Stat. (1894), 764; ibid. (1901), 822; Digest of Ark. (1894), 1126; Moore, Code of D. C. (1902), 265.

[1340] In North Carolina marriages are void when either person is "incapable of contracting from want of will or understanding": Code (1883), I, 688, 689; in South Carolina they are void or voidable when lacking consent of either party or for "any other cause going to show that at the time said supposed contract was made it was not a contract," provided not consummated by cohabitation: Rev. Stat. (1894), I, 752.

[1341] Kentucky Stat. (1894), 763; Rev. Sta., of S. C. (1894), I, 750-52; Code of Ga. (1896), II, 222; Code of Va. (1887), 560; Code of W. Va. (1891), 612; Code of N. C. (1883), I, 688, 689; Digest of Ark. (1894), 1126; Code of Ala. (1896), I, 828; Comp. Laws of N. M. (1897), 406, 407.

[1342] In Kentucky marriages are void or voidable when not solemnized or contracted in the presence of an authorized person or society; but they are not so invalid if consummated with the belief of the parties or either of them that they have been lawfully married: Wright, Report, 39.

The Louisiana act of 1807 makes one who is deaf and dumb from "nativity" incapable of marriage, "unless it be previously proved to the satisfaction of the judge ... that such person is capable of giving a rational consent." So also "criminals definitively sentenced to death" are incapable until pardoned; and "persons sentenced to whipping, imprisonment, pillory, or other infamous punishment" are prohibited from marrying, "until such punishment has been inflicted, or the offender pardoned."—Lislet, Gen. Digest (1828), II, 4, 5.

[1343] By the statute of Tennessee marriage is prohibited between white persons and "negroes, mulattoes, or persons of mixed blood, descended from a negro to the third generation inclusive, or their living together as man and wife." Violation of the act is made a felony punishable by confinement in the penitentiary for a period of one to five years; though, on recommendation of the jury, the court may substitute a fine and imprisonment in the county jail: Code (1884), 608; ibid. (1896), 1038.

The law of Alabama is in substance the same; although to the clause prohibiting intermarriage "to the third generation inclusive," the Code, sec. 4018, when affixing the penalty, adds the words, "though one ancestor of each generation was a white person": see Code of Ala. (1897), II, 381; Wright, Report, 36.

[1344] In 1810 the Virginia act of 1753, chap. 2, secs. 14, 15, for the prevention of that "abominable mixture and spurious issue," was still in force: Stat. Law of Ky. (1810), II, 572.

[1345] In Georgia and Florida a person of color is one who has one-eighth negro or African blood in his veins: Code of Ga. (1882), 356; cf. ibid. (1896), II, 4, 224; Rev. Stat. of Fla. (1892), 681, 111.

[1346] In North Carolina, furthermore, a negro may not marry a Croatan Indian: Wright, Report, 42.

The code of this state is almost vindictive in its temper. The marriages between whites and negroes or Indians "shall be absolutely void to all intents and purposes, and shall be so held and declared by every court at all times, whether during the lives or after the deaths of the parties thereto; and it shall not be lawful for the issue of any such marriage to be legitimated to the supposed father."—Code of N. C. (1883), I, 514.

[1347] But see Ann. Code of Miss. (1892), 677: The marriage of a white person "with a negro, mulatto, or Mongolian or person who shall have one-eighth or more negro or Mongolian blood" is declared "unlawful and void."

[1348] Rev. Stat. of Ariz. (1887), 371; ibid. (1901), 809; Ann. Code of Miss. (1892), 677. In general, for the provisions regarding miscegenation, see also Rev. Stat. of Fla. (1892), 681; Digest of Ark. (1894), 1126; Ann. Stat. of Ind. Ter. (1899), 507; Kentucky Stat. (1894), 763; Louisiana Acts (1894), 105; Rev. Stat. of Mo. (1889), I, 908; ibid. (1899), I, 610; Code of Va. (1887), 560; Code of W. Va. (1900), 660, 661, 972 (void from decree); Maryland Code (1888), I, 523; Code of N. C. (1883), I, 514; Rev. Stat. of S. C. (1894), I, 753; Gen. Laws of Tex. (1891), I, 878; the same in 1837: Laws of Republic of Tex. (1838), 234, 235; Sess. Laws of Okla. (1897), 212.

[1349] Illegitimate children are legitimized by the marriage of parents and acknowledgment of the father in Alabama, Code (1887), 530; ibid. (1897), sec. 364; Arizona, Rev. Stat. (1887), 371, 372; Florida, Rev. Stat. (1892), 686; Georgia, Code (1896), II, 254; Kentucky, Stat. (1894), 545; Maryland, Code (1888), II, 813; Mississippi, Ann. Code (1892), 172; Missouri, Rev. Stat. (1899), I, 740; Virginia, Code (1887), 620; West Virginia, Code (1891), 666.

Penalty or prosecution for seduction is suspended by marriage of parents in Arizona, Rev. Stat., as cited; Kentucky, Stat., as cited; Missouri, Rev. Stat. (1899), I, 548; New Mexico, Comp. Laws (1897), 344; Texas, Act of March 25, 1899: Gen. Laws, 66: and Virginia, Code, as cited. Cf. Wright, Report, 27.

Prosecution for seduction is also suspended on marrying the woman in Arkansas; but it is specially provided that if at any time thereafter the accused shall wilfully and without such cause as now constitutes a legal ground of divorce desert and abandon the female, then the prosecution shall be continued and proceed as though no marriage had taken place. In such cases the female may be a witness: Acts (1899), 23, 24.

[1350] Laws of N. M. (1897), sec. 1346, pp. 391, 392, Cf. the law of Arizona, Rev. Stat. (1887), 371, 372.

[1351] Code of W. Va. (1891), 612; ibid. (1900), 661.

[1352] Code of Ga. (1882), 391; ibid. (1896), II, 221.

[1353] For the act of 1748, see Acts of the Assem. (1769), 246-48.

[1354] Act of May, 1780, in Hening, Statutes, N, 361-63. Compare the acts of 1783 and 1784, where the system of banns or license is retained, ibid., XI, 281, 282, 503-6. Later the fee was fixed at $1: Tate, Digest (1823), 417.

[1355] Act of Dec. 22, 1792: Acts of the Gen. Assem. (1794), 204, 205.

[1356] Compare the law of 1794: Acts of Gen. Assem. (1794), 331, 332; Rev. Code (1819), 393-403. But in 1803 the justice is no longer required to sign and direct the license: Acts of Gen. Assem., 372 (act to take effect May 1, 1797). In 1832 the consent of the mother is declared sufficient to authorize license to minors when there is no father or guardian: Acts (1831-32), 27; and in 1848 so much of the law of 1832 was repealed "as requires the consent of the mother of any infant desiring a marriage license to be certified under seal;" and henceforth in all cases the written consent of parents may be attested by one witness. When for any reason the clerk's office is vacant license may be issued by the "senior justice of the peace."—Acts of the Assem. (1847-48), 165.

[1357] Ibid.

[1358] Iredell-Martin, Public Acts, 1715-1803 (1804), act of 1778, chap. 7, I, 253. Compare Laws of N. C. (1821), I, 129; Rev. Stat. (1837), I, 386; and Laws (1871-72), 328-43. The register of deeds takes the place of the clerk of the county court as issuer of license in 1872. By the act of 1778 the bond necessary for license had been fixed at 500 pounds "lawful money."

[1359] Scott, Laws of Tenn. (1821), Index at "Marriage": Stat. Laws of Tenn. (1831), 219, 220. But oral banns do not appear in Code of Tenn. (1858), 480-82.

[1360] Littell, Stat. Law of Ky. II (1810), 64-69.

[1361] See act of April 24, 1805: Acts of a Pub. and Gen. Nature (1842), I, 66.

[1362] Act of Jan. 4, 1825: Laws of the State (1825), I, 527. Persons or societies solemnizing marriages are required to keep a record; and a general record must also be made by the registrar of the county. The provision of 1825 is repeated in Rev. Stat. (1845), 730.

[1363] Compare the act of 1777, chap. 12, secs. 5-12: see Kilty, Laws; or Laws of Md. (1787), at sections cited; and Poe, Code (1888), I, 975.

[1364] Comp. Stat. of D. C. (1894), 272.

[1365] Digest of Ga. (1801), 314. But by the constitution of the state (1798), Art. III, sec. 6, ibid., 40, the clerk of the inferior courts of the county, with powers of a court of ordinary or register of probates, shall issue marriage licenses.

[1366] Digest (1801), 733.

[1367] See Hotchkiss, Codification, (1845), 329; or Cobb, Digest (1851), 282, 819.

[1368] Paragraph 1658, pp. 331, 332, of the Code of Ga., assented to Dec. 19, 1860, to take effect Jan. 1, 1862, provides for obtaining license, and "publication of the banns of marriage in a neighboring church, in the presence of the congregation, for at least three Sabbath days prior to its solemnization," all other marriages being declared invalid. Cf. Acts (1863-64), 48, editorial note. The change worked confusion. The preamble of the act of Dec. 14, 1863, declares that the "innovation" will "have the effect of giving rise to perplexing questions of legitimacy of children, and rights of property; and to domestic unhappiness." Therefore the paragraph is repealed, and marriages already solemnized under it are validated: ibid., 48.

For the present law see Code of Ga. (1896), II, 223, 221.

[1369] Act of 1807: Lislet, General Digest (1828), II, 6-8.

[1370] Merrick, Rev. Civil Code (1900), I, 21-25. But if objection be made on oath, the marriage may be suspended for ten days by the judge.

[1371] In West Virginia, where there is no lay celebration, the form of license is as follows: "To any person licensed to celebrate marriages: You are hereby authorized to join together in the holy state of matrimony, according to the rites and ceremonies of your church or religious denomination, and the laws of the state of West Virginia, —— —— and —— ——. Given under my hand, as clerk of the county court of ——, this —— day of ——."—Code (1891), 607.

[1372] When either person is under sixteen, a license will not be issued without written consent of parent or guardian: Acts of Tenn. (1899), 36.

[1373] In Baltimore city license is issued by the clerk of the court of common pleas: Code (1888), I, 975; in St. Louis, by the city recorder: Wright, Report, 49 n. cc.

[1374] Rev. Stat. and Codes of Porto Rico (1902), 807-9.

[1375] The Ann. Code of Miss. (1892), 677 ff., is silent as to bond.

[1376] In Missouri, failure to keep a record or solemnization without license is a misdemeanor. The transgressor must pay a fine of not exceeding $500, and in addition he is liable to a civil action by the parent or other person to whom "services" are due, to recover not more than $500: Laws (1881), 161; Rev. Stat. (1889), II, 1606; ibid. (1899), I, 1037. In Alabama the fine is $1,000, one-half to the state and one-half to the person suing: Code (1896), I, 829; in North Carolina, solemnization without license or failure to make return is a misdemeanor, subject to a fine of $200, payable to anyone who sues: Code (1883), I, 691, 692; in Kentucky, a fine of not more than $1,000, or imprisonment from one to twelve months, or both: Stat. (1894), 766; in Arkansas, a high misdemeanor and a fine of not less than $100: Digest (1894), 1127; in Tennessee, a misdemeanor and a fine of $500: Code (1896), 1040-41; in Georgia, a fine of $500: Code (1896), II, 223; in Virginia and West Virginia, forfeiture of bond: Code of Va. (1887), 557; Code of W. Va. (1891), 608; in Maryland, a fine of $100 to $500: Laws (1894), 124; in Texas, a misdemeanor and a fine of $50 to $500: Act of June 5, 1900: Gen. Laws, 307. In the District of Columbia for marriage without banns or license each of the parties and the person solemnizing are liable to a fine of 500 pounds current money: Comp. Stat. (1894), 272; Moore, Code, 266.

[1377] Arkansas and Indian Territory have a peculiar provision. The person obtaining a license is required to report "the same to the office of the clerk of the county court within 60 days from the date of such license; and if the same be duly executed and officially signed by some person authorized by law to solemnize marriage," the bond of the person so applying for the license shall be null and void, otherwise of full force: Digest (1894), 1129; Ann. Stat. of Ind. Ter. (1899), 510.

[1378] Return is made to the judge issuing the license in Porto Rico; to the proper officer in the county where the marriage is celebrated in Missouri, Mississippi, and New Mexico; in all other cases, in the county where the woman resides.

[1379] The Virginia law requires the clerk to deliver to the person entitled the license and also a certificate containing the names of the parties, date of the proposed marriage, etc. The person solemnizing is to return the license and the clerk's certificate, together with his own certificate of the time and place of the marriage: Code (1887), 556.

[1380] This is the form of indorsement required by the Tennessee law: "I solemnized the rite of matrimony between the above (or within) named parties, on the —— day of ——, 18—."—Code (1896), 1039.

[1381] Comp. Stat. (1894), 274, 273; Moore, Code, 267.

[1382] Comp. Stat. (1894), 273.

[1383] Ann. Code of Miss. (1892), 678.

[1384] Rev. Stat. of Mo. (1889), II, 1605: ibid. (1899), I, 1037.

[1385] Code of Va. (1887), 557; Code of W. Va. (1891), 608; ibid. (1900), 656, 657.

[1386] Code of Md. (1888), I, 975, 976: Laws of Mo. (1895), 222; Moore, Code of D. C. (1902), 267: Rev. Stat. and Codes of Porto Rico (1902), 810.

[1387] Digest of Ark. (1894), 1129.

[1388] Code of Ala. (1897), I, 828; Ann. Code of Miss. (1892), 678.

[1389] Except apparently in Tennessee.

[1390] Act of Feb. 3, 1900: Acts (1899-1900), 283, 284.

[1391] In West Virginia "the registration of births, marriages, and deaths of white and colored shall be kept separate and distinct."—Code (1900), 659. Cf. Ky. Gen. Stat. (1887), 204; Digest of Ark. (1894), 320, 321; Code of Va. (1887), 130, 558.

For the entire discussion of matrimonial administration in these states, as above given in subsec. c), compare Code of Ala. (1897), I, 827 ff.; Rev. Stat. of Ariz. (1887), 371, 372; Digest of Ark. (1894), 1126 ff.; Rev. Stat. of Fla. (1892), 679 ff.; Code of Ga. (1896), II, 221 ff.; Kentucky Stat. (1894), 765, 766; Rev. Civil Code of La. (1888), 60 ff.; Code of Md. (1888), I, 975 ff.; Ann. Code of Miss. (1892), 677, 678; Rev. Stat. of Mo. (1899), I, 1035 ff.; Comp. Laws of N. M. (1897), 403 ff.; Code of N. C. (1883), I, 690-92; Code of Tenn. (1884), 609-11; Gen. Laws of Tex. (1891), 96; Rev. Civil Stat. of Tex. (1888), I, 877, 878; Code of Va. (1887), 555-60; Acts (1900), 283, 284; Code of W. Va. (1900), 654 ff., 934; also Acts of Leg. (1887), chap. 64; Ann. Stat. of Ind. Ter. (1899), 507 ff.; Session Laws of Oklahoma (1897), 208 ff.; Comp. Stat. of D. C. (1894), 270-75.

[1392] In this section the laws of the following twenty-five districts and states are considered: Alaska, California, Colorado, Delaware, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Montana, Nebraska, Nevada, New Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, South Dakota, Utah, Washington, Wisconsin, and Wyoming.

[1393] Act of April 9, 1813: Laws of New York (1813), II, 201, 202.

[1394] Rev. Stat., Passed 1827-28 (Albany, 1829), II, 139, 140.

[1395] A false statement of either person is punishable as perjury: Laws (1873), chap. 25, pp. 19, 20; also in Rev. Stat. (1889), IV, 2597.

[1396] To the leader of the Society for Ethical Culture in the city of New York and the justices and the judges of all courts of record: Laws (1888), chap. 78, pp. 122, 123, superseding an amendment to Rev. Stat. (1829) authorized by Laws (1887), chap. 77, pp. 89, 90, and Laws (1877), chap. 430; Rev. Stat. (1889), "supplement" in IV, 2596, 2597.

[1397] Laws (1887), chap. 77, p. 90; also in Rev. Stat. (1889), IV, 2598.

[1398] Laws of N. Y. (1901), II, 933-35.

[1399] Act of May 18, 1892: Rev. Stat. (supplemental volume, 1892), V, 3742.

[1400] Laws of the State of N. J. (1800), 158, 159.

[1401] Pub. Laws (1882), 203; retained in Gen. Stat. of N. J. (1896), II, 2005. See for earlier acts amended Pub. Laws (1877), 168.

[1402] A justice of the peace may solemnize a marriage out of the county for which he is commissioned: Pearson v. Howey, 6 Halsted, N. J. Reports, 12.

[1403] Act of June 13, 1890: Pub. Laws (1890), 439; Gen. Stat. (1896), II, 2006.

[1404] Pub. Laws (1889), 139; Rev. Stat. (1896), II, 2005.

[1405] Laws (1885), No. 115, sec. 1.

[1406] Rodebaugh v. Sanks (1833), 2 Watts, 9; Fulkerson v. Day (1881), 15 Phila. Reports, 638. The provision of 1701 requiring the justice to subscribe the publication (or certificate) is not obsolete: Helffenstein v. Thomas (1835), 5 Rawle, Reports, 209.

[1407] Above, chap. xii, sec. iii.

[1408] Act of April 10: Laws of the Gen. Assembly (1849), 549; retained in Pepper and Lewis, Digest (1896), II, 2879.

[1409] Act of Jan. 29, 1790: Laws of the State of Del. (1797), II, 972, 973.

[1410] Rev. Stat. of Del. (1874), 473; also in Rev. Stat. (of 1852, as amended to 1893), 594. By the act of Feb. 25: Laws of Del. (1875), 260, the mayor of Newcastle was granted the same power, but it seems not to be continued in the present law.

[1411] On the significance of the settlement of Marietta, and the influence of the middle states and provinces, see Howard, Local Const. Hist., I, 408, 411, 387, passim.

[1412] Act of 1788: Chase, Stat. of Ohio and the Northwestern Ter., I, 101, 102.

[1413] Act of Aug. 1, 1792: Chase, op. cit., I, 126.

[1414] After 1810, at any rate, it is the county court of common pleas: Chase, op. cit., I, 672 (1810); II, 1211 (1822), 1407 (1824); Swan, Stat. of Ohio (1853), 569-71.

[1415] Act of April 4, 1803, repealing the two preceding laws: Chase, op. cit., I, 354, 355.

[1416] Ann. Rev. Stat. of Ohio (1897), II, 3016.

[1417] The act of June 11, 1822: Chase, op. cit., II, 1211, requires the minister to produce his license to the clerk of the county court of common pleas, who shall "enter the name of such minister upon record as a minister of the gospel duly authorized to solemnize marriage within the state, and shall note the county from which said license" was issued. At present the license must be presented to the county court of probate.

[1418] Ann. Stat. of Ohio (1897), II, 3017; cf. Wright, Report, 56, 57.

[1419] Laws of the State of Ind. (1897), 129 (act of March 4, 1897).

[1420] Act of May 30: Laws (1881), 112; retained in Hurd, Rev. Stat. (1898), 1068; cf. Rev. Stat. (1845), 343.

[1421] Act of Aug. 2, 1805: Laws of the Ter. of Mich. (1871-84), I, 30 (from the "Woodward Code"): repeated in the "Cass Code" (1816): ibid., I, 202, 203.

[1422] Act of 1820: Laws of the Ter., I, 646, 647.

[1423] Act of April 12, 1827: Laws of the Ter., II, 412-14.

[1424] Act of May 31, 1832: Laws of the Ter., III, 914, 915.

[1425] Act of July 31: Laws (1873), 20; also in Howell, Gen. Stat. (1882), II, 1619, 1620. It is expressly provided that marriage may be solemnized on Sunday: ibid., I, sec. 2015; and in certain extreme cases the county judge of probate may perform the ceremony: see the acts of 1897 and 1899, referred to in subsec. c) below.

[1426] But if the marriage among Quakers "does not take place in such meeting, such certificate shall be signed by the parties, and at least six witnesses present, and filed for record" with the county clerk: Gen. Stat. of Minn. (1894), I, 1266; the same in ibid. (1866), 408; and nearly the same in ibid. (1851), 271, 272.

[1427] The basis of the Wisconsin law of solemnization may be found in the Stat. (1838-39), 139, 140, giving authority to justices of the peace in their counties, to judges and commissioners of the supreme court, and to ordained ministers; and containing the provision regarding the filing of credentials with the clerk of the district court. See also Rev. Stat. (1849), 391-93, and ibid. (1858), 616-18; including the same provisions regarding celebration as Ann. Stat. (1889), I, 1354-56, except that the present authority for court commissioners in the counties is conferred by act of March 13, 1871: Gen. Laws, 99.

The Minnesota Law in Rev. Stat. of the Ter. (1851), 270-72, is practically the same regarding the celebration as in Gen. Stat. of the State (1866), 406, except the provisions in the latter regarding oath and credentials; and the law of 1866 is retained in Wenzell and Lane, Gen. Stat. (1894), I, 1264-66, except that the provisions for solemnization by the superintendent of the deaf and dumb appear in Laws (1885), chap. 38, p. 47. Licentiates are also required to take out a certificate: Gen. Laws (1901), 285.

[1428] The justice of the peace is not expressly given authority by the Oregon law; but in effect he is authorized by the general clause allowing "any judicial officer" to act within his proper jurisdiction: Codes and Stat. (1902), II, 1682.

[1429] Deering, Codes and Stat. of Cal. (1886), II, 25, 26; Rev. Stat. of Idaho (1887), 302; Mills, Ann. Stat. of Col. (1891), II, 1681.

[1430] The solemnizer is required to ascertain the "name and place of residence of the witness, or two witnesses, if more than one is present": Ann. Stat. of S. D. (1899), II, 1022.

[1431] Witnesses are mentioned in the form of return to be made by the solemnizer: Gen. Stat. of N. J. (1896), II, 2006: Deering, Codes and Stat. of Cal., II, 26, 27.

[1432] Wright, Report, 57.

[1433] On witnesses and the form of ceremony see Deering, Codes and Stat. of Cal. (1886), II, 26 (form); Rev. Stat. of Idaho (1887), 302; Howell, Gen. Stat. of Mich. (1882-90), II, 1619, 3602; Gen. Stat. of Minn. (1894), I, 1265; ibid. (1866), 407; Rev. Stat. of Minn. (1851), 271; Comp. Codes and Stat. of Mont. (1895), 477; Comp. Stat. of Neb. (1899), 757; Comp. Laws of Nev. (1900), 113; Rev. Stat. of N. Y. (1889), IV, 2597; same in ibid. (1827-28), 139, 140; Codes and Gen. Laws of Ore. (1892), II, 1319; same in Gen. Laws (1862), 86: Ann. Codes and Stat. of Wash. (1897), I, 1175, 1176; Rev. Stat. of Wyo. (1899), 791; Rev. Stat. of Wis. (1849), 392; also in Ann. Stat. of Wis. (1889), I, 1355.

[1434] Cf. Wright, Report, 56.

[1435] Sharon v. Sharon, 67 Cal. (1885), 185 ff.; 75 Cal. (1888), 1-78; 79 Cal. (1889), 633-703; 84 Cal. (1890), 424 ff. For other cases of "contract" marriages under the code of 1873, see Kelly v. Murphy, 70 Cal. (1887), 560; Kilburn v. Kilburn, 89 Cal. (1891), 46; People v. Beevers, 99 Cal. (1893), 286; Toon v. Huberty, 104 Cal. (1894), 260; People v. Lehman, 104 Cal. (1894), 631; Hinckley v. Ayres, 105 Cal. (1895), 357. From 1849 to 1873 common-law marriages were good in California: see Graham v. Bennett, 2 Cal. (1852), 503; Letters v. Cady, 10 Cal. (1858), 530; Case v. Case, 17 Cal. (1861), 598; People v. Anderson, 26 Cal. (1864), 130; estate of Charles Beverson, 47 Cal. (1874), 621; estate of McCausland, 52 Cal. (1878), 568; in re Briswalter, 72 Cal. (1887), 107; White v. White, 82 Cal. (1890), 427. The facts in the four cases last mentioned arose before 1873.

[1436] Deering, Codes and Stat. of Cal. (1886), II, 18, 19, 20, 27; amended by act of March 26, 1895: Stat. and Amendments to the Codes (1895), 121. Compare the present law of South Dakota: Ann. Stat. (1899), II, 1018, 1022; Rev. Codes of S. D. (1903), 596; and that of Montana: Comp. Codes and Stat. (1895), 475, 477, 478, which in the definition declares that consent "must be followed by a solemnization, or by a mutual and public assumption of the marital relation." In the use of the word "public" the present law of Montana differs from that of California previous to 1895. Formerly the laws of Idaho and California were identical; but now the provision for declaration is omitted from those of Idaho, although the prescribed celebration is not essential to a valid marriage. Cf. Comp. and Rev. Laws of Idaho (1875), 642, 645; Rev. Stat. (1887), 301.

[1437] Want of authority to solemnize does not avoid a marriage: State v. Brecht, 41 Minn., 50, 54; 42 N. W. Rep., 602; Martin v. Ryan, 2 Pinney, Wis. Reports, 24.

[1438] For unauthorized solemnization and the penalty see Rev. Stat. of Idaho (1887), 303, 761: a misdemeanor punished by confinement in the county jail not exceeding six months, or a fine of not more than $300, or both; Laws of Ind. (1897), 129 (March 4); Rev. Stat. (1896), I, sec. 2148: a fine of $50 to $500, to which may be added imprisonment in the county jail for from ten days to three months; Howell, Gen. Stat. of Mich. (1883), II, 1620: a misdemeanor punishable by imprisonment in the county jail of not more than one year, or a fine of $50 to $500, or both; Gen. Stat. of Minn. (1894), I, 1266: a misdemeanor, with not over one year's imprisonment, or a fine of not exceeding $500, or both; Comp. Codes and Stat. of Mont. (1895), 477; Comp. Stat. of Neb. (1899), 757: a misdemeanor, with not more than one year in jail, or a fine not to exceed $500; Comp. Laws of Nev. (1900), 114: a fine of not more than $500, or imprisonment till paid; Codes and Gen. Laws of Ore. (1892), II, 1320-22; I, 967: not more than one year in jail, or a fine of $100 to $500; and the same penalty for illegal solemnization and for illegally issuing a license by the clerk; Rev. Stat. of Utah (1898), 331; Laws (1888), 90: not exceeding three years in the state prison, and the same penalty for false personation of parent or guardian, or for forging a certificate of consent; Ann. Code of Wash. (1897), I, 1175, 1178; Ann. Stat. of Wis. (1889), I, 1356: not exceeding one year in jail, or a fine of not more than $500, and the same for illegal solemnization, making false certificate, or for false personation; Rev. Stat. of Wyo. (1899), 791, 792: a misdemeanor, and the same penalty as in Wisconsin for unauthorized solemnization, which is prescribed also for false certificate or false record by the clerk; Ann. Rev. Stat. of Ohio (1897), II, 3017: imprisonment for six months, or a fine of $500, or both; Laws of N. D. (1890), 278: a misdemeanor with fine of $100 to $500 and costs, or imprisonment in the county jail for from three months to one year.

[1439] Amendments to the Civil Code (1895), chap. 68.

[1440] Rev. Stat. of Idaho (1887), 302; Comp. Codes and Stat. of Mont. (1895), 476; Stat. of S. D. (1899), II, 1020.

[1441] Code of Iowa (1897), 1124; same in ibid. (1860), 428. Cf. ibid. (1851), secs. 1474, 1475. Thus the common-law contract is good: see Blanchard v. Lambert, 43 Ia. Reports, 228.

[1442] Horner, Rev. Stat. of Ind. (1896), II, sec. 5330; Burns, Ann. Stat. (1901), III, 705.

[1443] Mills, Ann. Stat. of Col. (1891), II, 1680. The Gen. Laws of Col. (1877), 613, show the exigencies of pioneer life in the provision that "all marriages which have been solemnized in this state, whether by any president or judge of any mining district, elected under and acting by the laws thereof," shall be valid. So in Oregon by an act of Jan. 17, 1854 (Stat. of Ore., 494), marriages contracted, with the consent of the parties, "when their residence is remote from any person duly authorized to solemnize such marriage, in any other manner than is prescribed, shall be valid; Provided that no legal impediment shall exist thereto; such contracts shall be made in writing duly attested, and shall be recorded in the office of the recorder of deeds of the proper county, within sixty days."

[1444] Carmichael v. State, 12 Ohio Reports, 553.

[1445] On the definition of marriage see Smith v. Smith, 17 N. Y. Rep., 76; and on marriage as a question of status, Sewall v. Sewall, 122 Mass., 156; Watkins v. Watkins, 135 Mass., 84.

[1446] "Marriage is a civil contract, requiring the consent of the parties capable of entering into other contracts, except as herein otherwise noted."—Code of Iowa (1897), 1123; cf. ibid. (1851), sec. 1464; ibid. (1873), sec. 2186.

[1447] "Marriage, so far as its validity in law is concerned, shall continue in this state a civil contract, to which the consent of parties capable in law of contracting, shall be essential."—Rev. Stat. of N. Y. (1827-28), II, 138; cf. ibid. (1889), IV, 2595.

[1448] "Mutual promises to marry in the future, though made by parties competent to contract, and followed by cohabitation as husband and wife, is not, in itself, a valid marriage."—Duncan v. Duncan, 10 Ohio Reports, 181.

[1449] Rev. Stat. of Idaho (1887), 302; Deering, Codes and Stat. of Cal. (1886), II, sec. 62, p. 24: act of March 30, 1874, Amendments (1873-74), 185.

[1450] The Ann. Codes and Stat. of Wash. (1897), I, 1174, fixes the age when marriage may be contracted at twenty-one for males and eighteen for females; but elsewhere provision is made for written consent of parent or guardian before license may be issued to persons below these ages respectively: ibid., I, 1177.

[1451] It is provided by the Rev. Code of Del. (1874), chap. 75, sec. 1, "that a divorce may be granted in case the parties were, when married, below the ages specified (eighteen and sixteen), and did not voluntarily ratify the marriage after arriving at those ages;" and this is retained in Rev. Stat. (1893), 596. Cf. Wright, Report, 30.

[1452] From 1864 to the act of Feb. 7, 1889, in Idaho, the ages of consent were respectively eighteen and sixteen for males and females; but in the last-named year eighteen was fixed as the age for both sexes: Laws (1863-64), 613: Gen. Laws (1889), 40.

[1453] Below the ages of sixteen and fourteen in Iowa "marriage is a nullity or not, at the option of the minor, made known at any time before he or she is six months older than said ages."—Wright, Report, 30; see Code of Iowa (1897), 1123; ibid. (1873), sec. 2186.

[1454] North Dakota shows a retrogression. By the Rev. Code (1895), 608, the ages of consent to marriage are sixteen and thirteen: the same by the act of March 20, 1890: Laws, 276; which act had been superseded by that of March 9, 1891, Laws, 228, 229, which is in turn repealed by the act of 1895. Still earlier the laws of Dakota Territory had fixed the ages at eighteen and fifteen respectively: Code of Dakota (1883), sec. 36, p. 743; at sixteen and fourteen on May 7, 1862: Gen. Laws (1862), 390; and at fourteen and thirteen in 1866: Civil Code (1865-66), 11. By this last act the marriage of a woman under fourteen might be annulled, if contracted without consent of parent or guardian, and not followed by cohabitation, nor ratified after the girl attained that age.

[1455] Formerly the ages in Utah were fourteen and twelve: Laws (1888), 88-91; they were fixed at sixteen and fourteen respectively for males and females by the act of March 11, 1897: Laws, 40.

[1456] Solemnization against law as to age and parental consent does not invalidate: Parton v. Hervey, 1 Gray, 119, 122; Holtz v. Dick, 42 Ohio Reports, 791. In Kansas, 1859-67, the ages were twenty-one for males and eighteen for females: Webb, Gen. Stat. (1897), II, 939, note.

[1457] In Oregon a license may be issued for the marriage of a minor without such consent, when there is no parent or guardian resident in the state, if the female has lived in the county where the license is applied for during six months: Codes and Gen. Laws (1892), II, 1321; Codes and Stat. (1902), II, 1684.

[1458] Laws (1797), II, 974.

[1459] Rev. Stat. of Del. (1853), as amended (1893), 594. This provision is now obsolete, though retained in the statutes.

[1460] A marriage with a step-parent or parent-in-law is forbidden in Delaware, Iowa, Michigan, New Jersey, and Washington; apparently also in Pennsylvania. In the latter state marriages within the degrees of affinity, forbidden by the act of March 31, Laws (1860), 394, were legalized by the act of April 6, 1868; Laws of the Gen. Assem., 67; or the same in Pepper and Lewis, Digest (1896), II, 2884.

[1461] Of course, such unions are included where marriage is expressly prohibited between persons nearer of kin than first or second cousins by the rules of the civil law.

[1462] In Utah marriage is forbidden within, but not including, the fourth degree of collateral kinship according to the rules of the civil law. Originally Iowa had the same rule as Minnesota: Code of Iowa (1843), 434.

[1463] First cousins are prohibited by act of March 10: Session Laws of Col. (1864), 108; the prohibition is retained in Gen. Laws (1877), 612; but omitted in Gen. Stat. (1883), 690, the change being made in Session Laws (1883), 243. But Mills, Ann. Stat. (1891), sec. 1320, p. 931, declares the marriage of first cousins incestuous and void. See Laws of Pa. (1901), 597, for prohibition of marriage of first cousins; Laws of Ore. (1893), 41; Codes and Stat. of Ore. (1902), II, 1681.

[1464] Such marriages are voidable in New Jersey, "and until dissolved by a court of competent jurisdiction must in all collateral proceedings, be treated as valid."—Gen. Stat. (1896), II, 2003. Cf. Boylan v. De Inzer, 18 Stewart, N. J. Equity Reports, 485.

[1465] For example, in Colorado, knowingly contracting or solemnizing such a marriage is a misdemeanor subject to a fine of $50 to $500, or imprisonment from three months to two years, or both: Mills, Ann. Stat. (1891), II, 1678; in Illinois incest is punished by imprisonment for not more than ten years, or twenty if the crime is that of father with daughter: Hurd, Rev. Stat. (1898), 577; in Kansas, for contracting, solemnizing, or licensing a marriage within the forbidden degrees the offender is liable to a fine of from $100 to $1,000, or imprisonment for from three months to five years, or both: Webb, Gen. Stat. (1897), II, 637; but elsewhere the law makes an incestuous marriage punishable by confinement and hard labor not exceeding seven years: ibid., II, 301; in Ohio, persons nearer of kin than cousins committing fornication or adultery are liable to imprisonment for from one to seven years: Bates, Ann. Stat. (1897), III, 3220; in Utah, solemnizing a marriage within the forbidden degrees is punished by not exceeding three years in the penitentiary, or a fine of not more than $1,000, or both: Rev. Stat. (1898), 331; by Laws (1888), 91; in Washington the penalty for contracting is imprisonment in the penitentiary for from one to ten years: Ann. Codes and Stat. (1897), I, 1175; in North Dakota it is a misdemeanor, with imprisonment not more than six months, or a fine of not more than $500: Laws (1890), 276; but for incest the penalty is one to ten years in the penitentiary: Rev. Codes (1895), 1273; in Delaware, a fine of $100: Rev. Stat. (1893), 593.

[1466] Mills, Ann. Stat. of Col. (1891), II, 1678. On the Spanish laws and their effect see Smith v. Smith, 1 Texas Reports, 621; 46 Am. Decis., 121, note, 130-34.

[1467] Sec. 11 of the Digest of the Laws of Pa. (1883) provides that "in all cases where a supposed or alleged marriage shall have been contracted which is absolutely void by reason of one of the parties thereto having a husband or wife living at the time, the court of common pleas shall have power to decree the said supposed or alleged marriage to be null and void upon the application of the innocent or injured party;" and this provision is still in force: Pepper and Lewis, Digest (1896), I, 1634. Now, as in 1785, a bigamous marriage is a ground of divorce: ibid., I, 1633. Myers, Rev. Stat. of Ill. (1895), 545, provides that "no divorce shall in any wise affect the legitimacy of children, except where the marriage shall be declared void on the ground of a prior marriage;" and Colorado has the same provision: Mills, Ann. Stat. (1891), I, 1035.

[1468] A bigamous marriage is ground for divorce in Colorado: Mills, Ann. Stat., III, 4341.

[1469] See Amendments to the Civil Code of Cal. (1897), sec. 61. Cf. secs. 82-84 of Deering, Codes and Stat. (1886), II, 22, 28, 30. In New York the same exception is made when either spouse has been "finally sentenced to imprisonment for life": Rev. Stat. (1827-28), 139; ibid. (1889), IV, 2596.

[1470] Bates, Ann. Rev. Stat. of Ohio (1897), III, 3220; Myers, Rev. Stat. of Ill. (1895), 445.

[1471] Laws (1896), 128, 129, 271, 272.

[1472] In Pennsylvania force or fraud in the marriage is a ground for divorce: Pepper and Lewis, Digest (1896), I, 1635; ibid. (1902), II, 1830.

[1473] Stover, Code of Civil Proced. (1892), II, 1627.

[1474] In Idaho, Michigan, Minnesota, Nebraska, New York, Oregon, Utah, Wisconsin, and Wyoming these marriages are not voidable when there has been subsequent voluntary cohabitation; in New York, Oregon, and Washington they are voidable only at the suit of the injured party; and in New York, only on a decree rendered during the lifetime of the parties.

[1475] In Idaho a marriage is voidable for unsound mind, unless after the removal of the disability the parties freely cohabited; but in Iowa, when either party was impotent, insane, or an idiot, a marriage is not declared void by the statute, but provision is made for its annulment: McLain, Ann. Code (1888), I, 897. By the law of Michigan, such a marriage is voidable, if solemnized in the state; but there, as also in New York, Nebraska, and Wyoming, in case of lunacy, a marriage is not voidable when the parties have freely cohabited after the lunatic recovered.

[1476] By the Indiana law such voidable marriages shall be declared void on application of the incapable party, and the children thereof shall be legitimate. The same is true in Kansas, but there cohabitation after incapacity ceases is a sufficient defense to the action for annulment. The law of Minnesota is similar. In Nevada and Nebraska a marriage is "not voidable for want of age, if after attaining the age of consent the parties for any time freely cohabited; nor for want of understanding, if after restoration to reason" they so cohabited. According to the New York statute a marriage is "not voidable on account of want of age at suit of the party who was of age of consent; nor where it appears that the parties after attaining such age freely cohabited; nor of a female under sixteen years of age if she had parental consent to the marriage," or when she ratified it after reaching that age. The law of Oregon is practically the same. In Michigan and Wyoming a marriage of persons below the age of consent is void if they separate during nonage and do not afterward cohabit.

[1477] In Nebraska, New York, and Wyoming an action for annulment on the ground of impotence must be brought in two years; while for this cause in Colorado, Indiana, Illinois, Oregon, and some other states a "divorce" will be granted. Physical incapacity is cause for divorce in Michigan; and suit to "annul" a marriage on this ground must be brought within two years: Miller, Comp. Laws (1899), III, 2664.

[1478] By the Ohio law marriages "contracted by male persons under the age of eighteen and females under the age of fourteen [now sixteen] are invalid, unless confirmed by cohabitation after arriving at those ages respectively; and such marriage, not so confirmed, does not subject a person to punishment for bigamy for contracting a subsequent marriage while the first husband or wife is living": see Shafher v. State, 20 Ohio Reports, 1.

[1479] California does not directly prohibit the intermarriage of whites and Chinese; but the county clerk is commanded not to "issue a license authorizing the marriage of a white person with a negro, mulatto, or Mongolian": Deering, Codes and Stat. (1886), II, 25, sec. 69.

[1480] Until Laws of Ore. (1893), 41, "Kanaka" blood was included in the prohibition. Cf. Codes and Stat. (1902), II, 1681, 1682; I, 274.

[1481] Laws (1883), 16; also in Howell, Gen. Stat. (1883), II, 1619; and retained in the act of June 15: Pub. Acts (1899), 387.

[1482] Pub. Acts of Mich. (1899), 387, 388 (June 15). The law applies to "syphilis and gonorrhœa."

[1483] "No woman under the age of forty-five (45) years or man of any age, except he marry a woman over the age of forty-five (45) years, either of whom is epileptic, imbecile, feeble minded, or afflicted with insanity, shall hereafter intermarry, or marry any other person within this state."—Gen. Laws of Minn. (1901), 334, 335.

[1484] Session Laws of Kan. (1903), 373, 374.

[1485] Except that in Delaware, if the parties to any marriage prohibited for consanguinity or affinity, or for miscegenation, "although the same may have been solemnized in another state, shall cohabit as husband and wife in this state, they shall each be deemed guilty of a misdemeanor and upon conviction thereof shall be fined $100."—Rev. Stat. (1893), 593.

[1486] Deering, Codes and Statutes (1886), II, sec. 1676, p. 311.

[1487] Ibid., sec. 710, p. 171; according to the amendment of March 30, 1874: Amendments to Codes (1873-74), 218. This provision "leaves no doubt but that the limitation of an estate to a widow so long as she remains unmarried is good;" and the "rules which govern a devise in restraint of a widow's marriage, apply to like devise in restraint of a widower's marriage: Bostwick v. Blades, 4 Am. Law Rec., 729 (Md. Ct. of App.)." See Editor Deering's valuable note in Codes and Stat., II, 171, where cases are cited.

[1488] The history of the various topics treated in this section b) for the several states may be traced as follows: (1) California: Stat. (1850), 424, 425; Comp. Laws (1853), 175-77; Acts Amendatory of the Codes (1873-74), 181 ff.; Stat. (1880), 121 ff.; Deering, Codes and Stat. (1886), II, 18-37; Amendments to Codes (1895), 121; (2) Colorado: Sess. Laws (1861), 313; ibid. (1864), 108 ff.; Gen. Laws (1887), 611-13; Gen. Stat. (1883), 690-94; Mills, Ann. Stat. (1891), II, 1675 ff.; (3) Delaware: Rev. Stat. (1893), 593, 594; (4) Idaho: Laws (1863-64), 613 ff.; ibid. (1864), 397; ibid. (1867), 71-73; Comp. and Rev. Laws (1875), 642-45; Gen. Laws (1889), 40, 278-80; Rev. Stat. (1887), 301-3; (5) Illinois: Hurd, Rev. Stat. (1898), 630, 577, 1067-69; (6) Indiana: Laws of the State (1897), 129; Indiana Stat. (1896), II, secs. 5324 ff.; (7) Iowa: Code (1860), 747; ibid. (1873), 628; ibid. (1897), 1123-25, 1940; (8) Kansas: Stat. (1855), 488, 489; Laws (1857-58), 326; Gen. Laws (1859), 563, 564; Laws (1870), 157, 158; Webb, Gen. Stat. (1897), II, 637 ff., 301, 339; (9) Michigan: Laws of the Ter. (1871-84), I, 30-32, 202, 203, 646-49; II, 412-14; III, 1191, 1192; Howell, Gen. Stat. (1882-90), II, 1618-20; Comp. Laws of Mich. (1899), III, 2645-52; (10) Minnesota: Rev. Stat. (1851), 270-72; Gen. Stat. (1866), 406-8; Wenzell and Lane, Gen. Stat. (1894), I, 1264-66; (11) Montana: Comp. Codes and Stat. (1895), 474-78; (12) Nebraska: Laws (1855), 209-11; ibid. (1856), 150-52; Stat. (1867), 254-57; Comp. Stat. (1899), 756-58; (13) Nevada: Laws (1861), 93-96; ibid. (1867), 88, 89; ibid. (1881), 107, 108; Comp. Laws (1900), 112-15; (14) New Jersey: Laws of the State (1800), 158-60; Gen. Stat. (1896), II, 2003-6; I, 1064, 1066; (15) New York: Rev. Stat. (1829), II, 138-41; ibid. (1889), IV, 2596-98; Stover, Code of Civil Proced. (1892), II, 1627, 1632 ff.; ibid. (1902), II, 1830-35; (16) North Dakota: Laws (1890), 276-79; ibid. (1891), 228, 229; Rev. Codes (1895), 608-11; Revised Codes (1899), 692-95, 1440, 1441, 1454, 1455; (17) Ohio: Chase, Stat. of Ohio and N. W. Ter. (1833-35), I, 101, 102, 126, 354, 355, 672, 673; II, 1407, 1408; Bates, Ann. Stat. (1897), II, 3015-18, 2211; III, 3220; (18) Oregon: Laws (1843-49), 36, 80, 81; Stat. (1853-54), 492-94; Code of Civil Proced. and Other Gen. Laws (1862), 85-88; Codes and Gen. Laws (1892), II, 1317 ff.; I, 967; Act of Oct. 24, 1866: Acts and Res. (1866), 10, 11; (19) Pennsylvania: Pepper and Lewis, Digest (1896), II, 2878-83; (20) South Dakota: Stat. (1899), II, 1018-25, 1917; Rev. Codes (1903), 596-99; (21) Utah: Laws (1888), 88-91; Rev. Stat. (1898), 329-31; (22) Washington: Stat. of the Ter. (1854), 404, 405; ibid. (1865-66), 80-85; Ann. Codes and Stat. (1897), I, 1174-78; II, 1952; (23) Wisconsin: Stat. of the Ter. (1838-39), 139, 140; Rev. Stat. (1849), 391-93; Ann. Stat. (1889), I, 1354-56; Wis. Stat. (1898), I, 1692-94; (24) Wyoming: Rev. Laws (1870), 458-61; Rev. Stat. (1887), 415-17; ibid. (1899), 790-92, 1213; (25) Alaska: U. S. Statutes at Large, XXXI, 494, 495. Laws since 1899 are cited in the previous footnotes.

[1489] Following is the form of the marriage-license bond: "That if there shall not hereafter appear any lawful let or impediment, by reason of any precontract, consanguinity, affinity, or any other just cause whatsoever, but that (the parties) may lawfully marry; and that there is not any suit depending before any judge, ecclesiastical or civil, for or concerning such precontract, and also if the said parties, and each of them, are of the ages aforesaid, to wit, female of eighteen and male of twenty-one years, and are not under the tuition of his or her parents, or have the full consent of his or her parents or guardians, respectively, to the said marriage; and if they, or either of them, are not indented servants and do and shall save harmless, and keep indemnified the president and his successors, for and concerning the premises, and shall likewise save harmless and keep indemnified the minister or preacher of the gospel, who shall join the said parties in matrimony, for or by reason of his so doing; then the obligation to be void, else to remain in full force; which said bond shall be filed of record in the office of the secretary."-Laws of Del. (1797), II, 974, 975.

[1490] By act of June 15, 1793: in Laws of Del. (1797), II, 1127, 1128.

[1491] Rev. Stat. (1893), 103.

[1492] Ibid., 594; and cf. ibid. (1874), 473.

[1493] Chase, Stat. of Ohio and the N. W. Ter. (1833-35), I, 101.

[1494] Act of April 4, 1803; Chase, Stat., I, 354, 355.

[1495] It is omitted in the act of Jan. 6, 1824: Chase, Stat., II, 1407, 1408; nor does it appear in Swan, Stat. (1854), 569 ff.

[1496] Ann. Rev. Stat. (1897), II, 3016. Cf. the act of Feb. 16, 1810: Chase, Stat., I, 672, 673. See the act of April 25, 1898, requiring a statement under oath from persons applying for license; also evidence of parental consent in case of minors; and allowing the parent or guardian, when non-resident, to appear before a judge of a court of record in the county where he is domiciled, and give his consent in writing; such written consent must be attested by two witnesses, certified to by the judge, and be forwarded to the probate judge of the county where the license is to be issued: Laws (1898), 309-11.

[1497] Laws of the Ter. of Mich. (1871-84), I, 30-32.

[1498] Ibid., I, 646-49.

[1499] Cf. Rev. Stat. of N. Y. (1827-28), 140: and ibid. (1889), IV, 2597.

[1500] Acts of N. J. (1897), 378.

[1501] See above, subsec. a) and cf. Laws of N. J. (1800), 158 (act of 1795) with Gen. Stat. (1896), II, 2005; Pub. Laws (1889), 139. The celebrant may administer an oath as to residence to either party; Acts (1900), 327, 328.

[1502] See in re Marriage License Act, 15 Pa. C. C., 345 (1894); and Pepper and Lewis, Digest, II, 2881, note.

[1503] Laws (1885), 146; ibid. (1893), 27; ibid. (1887), 170; Pepper and Lewis, Digest (1896), II, 2878-83.

[1504] Gen. Stat. of Minn. (1894), I, 1264, 1265.

Following is the form of license or "certificate" in Colorado: "Know all men by this Certificate, that any regular ordained minister of the Gospel authorized by the rules and usages of the Church or denomination of Christians, Hebrews, or religious body of which he may be a member, or any judge or justice of the peace to whom this may come, he not knowing of any lawful impediment thereto, is hereby authorized and empowered to solemnize the rites of matrimony between .... of .... of the county of .... Previously married? .... Wife deceased? .... Divorced? .... When? .... Where? .... On what grounds? .... And .... of .... of the county of .... Previously married? .... Husband deceased? .... Divorced? .... When? .... Where? .... On what grounds? ...."—Mills, Ann. Stat. of Col. (1891), III, 828.

[1505] Act of March 14, 1895: in Comp. Codes and Stat. (1895), 476.

[1506] In Michigan a girl under eighteen must bring written consent of parent or guardian before license will be issued: Pub. Acts (1895), 536, 537.

[1507] Act of April 29: Laws of Wis. (1899), 529-31; cf. the act of 1903: Laws, 477, 478.

[1508] The judge of probate must issue a license without publicity to a "female making application to him, under oath, containing a statement that she is with child, which if born alive before her marriage will become a bastard, or has lived with a man," etc. With consent of parent or guardian, such judge is empowered to marry persons under marriageable age, making such a statement, whenever he believes the marriage "would be a benefit to public morals." He is required to "file a complete set of all papers in each case in a private file, and shall within ten days after the marriage forward the duplicate thereof to the secretary of state, who shall file such duplicate in a private file and record the same in a private register." These private files of the probate judge and secretary of state "shall be open to inspection only upon the written order of the judge of any circuit or the supreme court of this state, and only for such use as is designated in such order. Such order shall be made only upon the written request of the person or persons who were so married, or when necessary to the protection of property rights arising from or affected by such marriage."—Pub. Acts of Mich. (1897), 230, 231; ibid. (1899), 363, 364.

[1509] Return is made to the designated officer of the county (or town) where the license was issued, in Idaho (1899), Kansas, Michigan, Montana, Nebraska, Nevada (1899), and Utah; but where the marriage was solemnized, in California, Delaware, Illinois, Indiana, Minnesota, North Dakota, Washington, Wisconsin, Wyoming, and Iowa. The Pennsylvania act of 1893 requires the return to be made to the clerk of the orphans' court in the county where the marriage was solemnized; and this, doubtless, supersedes the law of 1885, which designates for this purpose the county from which license was issued, and which also appears in Pepper and Lewis, Digest (1896), II, 2880, 2881, 2883. By the Ohio act of April 25, 1898, return is made to the probate judge of the county where the license was issued, or where the congregation in which publication of banns was made is located, or where the marriage was celebrated: Laws (1898), 309-11. Of course, the county of issue of license and the county of celebration are usually the same. In Oregon return is made both to the county clerk issuing the license and to the clerk of the county of the marriage: General Laws (1903), 99, 100.

[1510] Statutes of S. D. (1899), II, 1023; Rev. Codes of S. D. (1903), 598; Mills, Ann. Stat. of Col. (1891), II, 1679; Code of Iowa (1897), 1124, 1125; Amendments to the Civil Code of Cal. (1873-74), 187; Deering, Codes and Statutes (1886), II, 27, 28; Act of 1897: Amendments to the Civil Code, sec. 79½, p. 186.

[1511] Rev. Stat. of N. Y. (1889), IV, 2598; the same in Rev. Stat. (1827-28), 140, 141.

[1512] In California the original license, with the certificate of solemnization indorsed and attached must be filed with the county recorder in thirty days: Deering, Codes and Stat. (1886), II, secs. 73, 74, pp. 26, 27; but, in addition, the state registration law requires every person solemnizing marriages to keep a "registry," and "quarterly" to submit to the county clerk a certified copy of it: ibid., I, secs. 3074, 3077, pp. 460, 461.

[1513] So by the act of Feb. 15: Pub. Laws of N. J. (1888), 52 ff., as amended by that of March 29: Pub. Laws (1892), 351; both in Gen. Stat. (1896), II, 2011, 2012.

[1514] The period within which the certificate must be returned to the probate judge was formerly ninety days: Ann. Stat. of Ohio (1897), II, 3017; but by the act of April 25, 1898, it is fixed at thirty days: Laws (1898), 309-11.

[1515] By the act of March 1, 1893, amending that of June 23, 1885: Pepper and Lewis, Digest (1896), II, 2880, 2881, 2883.

[1516] Stat. of S. D. (1899), II, 1021, 1023.

[1517] A period within which the return is to be made does not seem to be fixed: Act of April 29: Laws of Wis. (1899), 530.

[1518] Rev. Stat. of Del. (1893), 594; practically the same in ibid. (1874), 472-74.

[1519] The Pennsylvania act of 1849 requiring a transcript of the marriage record to be given to the person applying therefor, on payment of the prescribed fee, still appears to be in force: Pepper and Lewis, Digest (1896), II, 2879.

[1520] Both Oregon and Washington allow the solemnizer to keep the license, the clerk or auditor first recording the facts contained therein: Codes and Stat. of Ore. (1902), II, 1684; Ann. Codes and Stat. of Wash. (1897), I, 1177, 1178.

[1521] See the act of April 7, 1881: Laws, XVI, chap. 381; act of March 13, 1879, amended and republished, April 11, 1893: Rev. Stat. (1893), 296-98, 405-8.

[1522] Act of Feb. 15: Pub. Laws of N. J. (1888), 52 ff.; act of March 29: ibid. (1892), 351; Gen. Stat. (1896), II, 2006-12, 1634, 1635 (board of health); act of Feb. 27, 1901: Acts of N. J., 36.

[1523] The law does not apply to cities of the first class nor to those of the second class, Grades 1, 2, and 3a. Special provision is made for a board of health in Cincinnati (cities of the first grade of the first class): Bates, Ann. Rev. Stat. (1897), I, 97, 978, 979.

[1524] Cf. act of 1867: Pub. Acts (1867), 266; that of 1869: ibid. (1869), 214; ibid. (1899), 67, 68; and Howell, Gen. Stat., 1, 96, 276-80, 464; Comp. Laws (1899), II, 1451 ff.

[1525] Cf. Acts (1852), 763-69; Rev. Stat. (1858), 618-22; Ann. Stat. (1889), I, 648-52; Laws (1897), 373; Wis. Stat. (1898), I, 1055, 785 ff.

[1526] Deering, Codes and Stat. (1886), I, 442 ff., 460 ff.

[1527] Cf. the act for registration of births, marriages, and deaths: Laws (1847), chap. 152, repealed by Laws (1885), chap. 270; Laws (1880), chap. 322; and Rev. Stat. (1889), II, 1205, 1207, 1209, 1195-98 (state board), IV, 2610, 2611 (clauses relating to New York city).

In general, to trace the history of the topics treated in this subsec. c), consult the last note in subsec. b).

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