PART III

MATRIMONIAL INSTITUTIONS IN THE UNITED STATES

CHAPTER XII
OBLIGATORY CIVIL MARRIAGE IN THE NEW ENGLAND COLONIES

[Bibliographical Note XII.—For this chapter a large quantity of files and records of Massachusetts colonial and provincial courts has been examined. In the office of the Clerk of Courts for Middlesex county (Cambridge) have been used the Records of the County Court for Middlesex, 1649-86, 4 vols., MSS. folio, Vol. II missing; supplemented by the Files of the County Court for Middlesex, 1655-99; and followed by the Records of the Court of General Sessions of the Peace for Middlesex, 1692-1822, 9 vols., MSS. folio, the ninth volume containing also Records of the Court of Pleas and General Sessions of the Peace, October 1686, to March, 1688. In the office of the Clerk of the Supreme Judicial Court for the County of Suffolk (Boston) have likewise been examined the Records of the Court of General Sessions of the Peace, 1702-32, 4 vols., MSS. folio, with a fifth volume of fragments, 1738-80; the Minute Books of the Court of General Sessions of the Peace, January 3, 1743, to August 3, 1773, 5 vols., MSS. folio; the Records of the Superior Court of Judicature, Court of Assize and General Goal Delivery in the Province of Massachusetts Bay, 1692-1780, 33 vols., MSS. folio, Vol. II containing also the records of certain courts during the Andros period, 1686-87; and the Early Court Files of Suffolk, 1629-1800—being papers of colonial and provincial courts held in Suffolk county, of the Superior Court of Judicature held in the several counties, and of the Supreme Judicial Court prior to last century, with miscellaneous papers, the whole collection comprising several hundred volumes, of which only those for the period 1629-1730 have been covered by this investigation. Careful examination has also been made of the MSS. folio volume of Records of the County Court of Suffolk, October 1671, to April, 1680, in the possession of the Boston Athenæum.

Very important are the published Colonial Records of Plymouth (Boston, 1855-61); Massachusetts Bay (Boston, 1853-54); New Haven (Hartford, 1857-58); Connecticut (Hartford, 1850-87); Rhode Island (Providence, 1856 ff.); and the Provincial, Town, and State Papers of New Hampshire (Concord, 1867-83).

The necessary complement of the records is of course found in the various compilations of statutes. For Massachusetts it has seemed best to cite by preference Whitmore's fine facsimile edition of the Colonial Laws (Vol. I, 1660-72, Boston, 1887; Vol. II, 1672-86, Boston, 1889), which should be used in connection with his Bibliographical Sketch of the Laws of the Massachusetts Colony, 1630-86 (Boston, 1890); and Ames and Goodell's Acts and Resolves (5 vols., Boston, 1869-86), which with the three supplementary volumes (Boston, 1892-96), cover the period of the provincial charter and carry us beyond the Revolution. The following original digests have also been employed: The Book of the General Lawes and Libertyes of the Massachusetts Colony (Boston, 1660); The General Laws and Liberties (Boston, 1672)—these two earliest codes being those reprinted by Whitmore; Acts and Laws, 1692-1714 (Boston, 1714); Acts and Laws, 1692-1765 (Boston, 1769); Acts and Laws (Boston, 1759); and the collection entitled Charters and General Laws of the Colony and Province of Massachusetts Bay (Boston, 1814). The first digests of New Haven and Connecticut plantations are comprised in Trumbull's True Blue Laws (Hartford, 1876). There is also a reprint of the Code of 1650, to which is added extracts from Laws and Judicial Proceedings of New Haven Colony commonly called Blue Laws (Hartford, 1822); and a facsimile reprint of The Book of the General Laws of 1673 (Hartford, 1865). For the eighteenth century we have the Acts and Laws of his Majesties Colony of Connecticut in New England (New London, 1715); Acts and Laws of his Majesties English Colony of Connecticut (New London, 1750); Acts and Laws (New Haven, 1769); and the Acts and Laws (New London, 1784). For New Hampshire, the "Province Laws" published in Vol. VIII of the New Hampshire Historical Society Collections; the Acts and Laws passed by the General Court or Assembly, 1696-1725 (Boston, 1726); the Acts and Laws (Portsmouth, 1761); and the Acts and Laws, 1696-1771 (Portsmouth, 1771), have been cited. To follow the tangled thread of Rhode Island legislation on any subject is a perplexing task; but the development of the written marriage law may be traced with tolerable clearness in the published digests. See Staples's Proceedings of the First General Assembly ... and the Code adopted by that Assembly in 1647 (Providence, 1847); Rider's facsimile reprint of the code of 1705, entitled Laws and Acts of his Majesties Colony of Rhode Island, 1636-1705 (Providence, 1896); his facsimile reprint of the code of 1719, entitled The Charter and the Laws of his Majesties Colony of Rhode-Island in America (Providence, 1895); also the original Acts and Laws (Newport, 1730); with Rider's facsimile reprint, entitled Supplementary Pages to the Digest of 1730 (Providence, [1898]); the original folio editions of the Acts and Laws dated respectively 1745, 1752, 1767 (Newport); and Gregory's facsimile reprint of the compilation of 1772, entitled Acts and Laws ... passed since the Revision in June 1767 (Providence, 1893). The Plymouth codes are printed in Vol. XI of the Colonial Records of that colony; and they are given in convenient form in Brigham's Compact, with the Charter and Laws of New Plymouth (Boston, 1836).

Original material has also been gleaned from the Collections (Boston, 1806-97) and the Proceedings of the Massachusetts Historical Society (Boston, 1879 ff.); Bradford's History of Plymouth Plantation (Boston, 1856); Winthrop's History of New England, 1630-49 (Boston, 1853); Hutchinson's History of Massachusetts, 1628-1774 (Vol. I, Salem, 1795; Vol. II, Boston, 1795; Vol. III, London, 1828); Cotton Mather's Magnalia Christi Americana (Hartford, 1820); Increase Mather's Answer of Several Ministers (Boston, 1695), on marriage with wife's sister; The Andros Tracts (Boston, 1868-74); Young's Chronicles of the Pilgrims, 1602-25 (2d ed., Boston, 1844); Historical Collections of the Essex Institute (Salem, 1896); Lechford's Note-Book, 1638-71 (Cambridge, 1885), idem, Plain Dealing (Boston, 1867); reprinted also in 3 Mass. Hist. Soc. Collections, III; Dunton's Life and Errors (Westminster, 1818); his Letters from New-England (Prince Society, Boston, 1867); the "Town Records of Boston," 1634-1777; and the "Town Records of Dorchester," both in the Reports of the Boston Record Commission; "Town Records of Salem," 1634-59, in Vol. IX of Hist. Coll. Essex Inst.; especially Sewall's "Diary," in 5 Mass. Hist. Coll., V, VI, VII (Boston, 1878-80); and his "Letter-Book," in 6 Mass. Hist. Coll., I, II (Boston, 1886), both of which afford a wealth of illustration for almost every phase of wedding and other social customs.

Among recent writings relating to the general subject most important are Shirley, "Early Jurisprudence of New Hampshire," in Proceedings of the New Hamp. Hist. Society, 1876-84 (Concord, 1885); Earle, Customs and Fashions in Old New England (New York, 1894); Weeden, Economic and Social History of New England, 1620-1789 (Boston, 1891); Goodwin, Pilgrim Republic (Boston, 1888); Howe, Puritan Republic (Indianapolis, 1899); Arnold, History of Rhode Island (New York, 1874); Friedberg, Eheschliessung (Leipzig, 1865); Cook, "Marriage Celebration in the Colonies," in Atlantic Monthly, LXI (Boston, 1888); Bishop, Marriage, Divorce, and Separation (Chicago, 1891); Lodge, Short History of the English Colonies (New York, 1882); Trumbull, History of Connecticut (New Haven, 1818); Hollister, History of Connecticut (Hartford, 1857); Atwater, History of the Colony of New Haven (New Haven, 1881); Freeman, History of Cape Cod (Boston, 1869); Bailey, Historical Sketches of Andover (Boston, 1880); Bliss, Side Glimpses from the Colonial Meeting-House (Boston, 1896); idem, Colonial Times on Buzzard's Bay (Boston, 1888); Brooks, The Olden Time Series: The Days of the Spinning-Wheel in New England (Boston, 1886); articles by Scudder, Whitmore, Edes, McKenzie, Morse, and Goddard, in Memorial History of Boston (Boston, 1882-83); and Newhall, Ye Great and General Court (Lynn, 1897).

Illustrative material has likewise been gathered from a large number of writers, among whom are Palfrey, History of New England (Boston, 1888-90); Carlier, Le mariage aux États-Unis (Paris, 1860); Oliver, Puritan Commonwealth (Boston, 1856); Doyle, English Colonies (New York, 1882-87); Ellis, Puritan Age (Boston, 1888); Dexter, Congregationalism (New York, 1880); Bacon, Genesis of the New England Churches (New York, 1874); Belknap, History of New Hampshire (Dover, 1812); Green, Short History of Rhode Island (Providence, 1877); Sanford, History of Connecticut (Hartford, 1888); Hawthorne, Grandfather's Chair (Boston, 1893); Campbell, The Puritan in Holland, England, and America (New York, 1892); Hildreth, History of the United States (New York, 1882); Snow, History of Boston (Boston, 1824); Shurtleff, Topographical and Historical Description of Boston (Boston, 1872); Gilman, The Story of Boston (New York, 1889); Drake (S. G.), History and Antiquities of Boston (Boston, 1854); Drake (S. A.), Old Landmarks of Boston (Boston, 1889); Drake (S. A.), The Making of New England (New York, 1887); Prime, Along New England Roads (New York, 1892); Read, in the Collections of the Old Colony Historical Society, No. 2 (Taunton, 1880); and Brigham, in Proceedings of the Mass. Hist. Society, IV.

Among the works drawn upon in the treatment of special topics are Stiles's Bundling (Albany, 1871); supplemented by his History of Windsor (New York, 1859); and the very suggestive paper of Charles Francis Adams, Some Phases of Sexual Morality and Church Discipline in Colonial New England, reprinted from the Mass. Hist. Soc. Proceedings, June, 1891 (Cambridge, 1891); while there is an interesting passage relating to the same custom in Burnaby's Travels through the Middle Settlements in North America, 1759-60 (London, 1798); as also a characteristic reference in Irving's Knickerbocker History of New York (Philadelphia, 1871). For the first time the history of the stigma of the "scarlet letter" has been treated from the sources in Davis's careful monograph, The Law of Adultery and Ignominious Punishments (Worcester, 1895). In connection with the influence of the Levitical law on the New England conception of marriage and the family, Amram's The Jewish Law of Divorce (Philadelphia, 1896), and Mielziner's The Jewish Law of Marriage and Divorce (Cincinnati, 1884) are important. Of most service for the legal character of New England slave marriages are Moore's Notes on the History of Slavery in Massachusetts (New York, 1866); his "Slave Marriages in Massachusetts," in the Historical Magazine, XV (1869), containing a significant ritual used by Rev. Samuel Phillips, minister at Andover, 1710-71; and Steiner's "History of Slavery in Connecticut," in Johns Hopkins University Studies, XI (Baltimore, 1893). The originality of the system of civil registration created by the New England settlers is appreciated by Kuczynski, "The Registration Laws in the Colonies of Massachusetts Bay and New Plymouth," in Publications of the Am. Statistical Ass., VII, 65-73 (Boston, 1901). See also Bibliographical Note XV.]

I. THE MAGISTRATE SUPERSEDES THE PRIEST AT THE NUPTIALS

The continuity of English law and custom in the New England colonies is not more striking than the innovation. First of all it would indeed be strange if the planting of new states in the wilderness should not have afforded to thoughtful men a rare opportunity for freeing themselves from the trammels of antiquated methods and traditions which the "inertia of vested interests" might yet for ages sustain in the native land. In some instances the influences of a new and primitive environment might cause an unconscious return to the practices of earlier days. Religious and ecclesiastical ideas must necessarily play the leading part. In fact, the zeal with which the Pioneers of Plymouth and Massachusetts Bay proscribed the ceremonies and usages of the Roman and Anglican churches has had much to do with the character of civil institutions in the United States. On the part even of the Puritan there was thus sometimes a strong reaction in favor of the temporal power in matters hitherto regarded as exclusively pertaining to the spiritual jurisdiction. The sway of the so-called theocracy in Massachusetts and New Haven tended, sometimes inadvertently, to foster the growth of the American idea of complete separation of church and state. Thereby the forces of local self-government were quickened. Thus for a time the town-meeting and the congregation were practically one and the same; but authority was exercised in the name of the lay township and not in that of the ecclesiastical parish. So also the probate of wills, the administration of estates, the exercise of chancery jurisdiction,[357] and the supervision of primary and secondary education[358] were taken out of the hands of the church and vested mainly in the local community. The process of secularization in legal functions proceeded with rapid strides.

In no respect was the change more remarkable than in the administration of matrimonial law and in the conception of the marriage contract. Here, as in so many other instances, our ancestors anticipated the thought and the legislation of the mother-country by more than two hundred years.[359] It will be remembered that in the beginning of the seventeenth century—and ever since the thirteenth—English marriage law was in an anomalous and most chaotic state. The Reformation in England had brought no real change in the canonical conception of the form of wedlock, though its sacramental nature was denied. On the one hand was the church at the demand of the state trying to enforce ecclesiastical rites and to secure publicity by requirement of banns, parental consent, and registration; on the other was the "irregular" or common-law marriage, entered into without any of these safeguards, by mere private agreement; and the validity of the latter was not squarely impeached by the church, though the disregard of the priestly office was punished by spiritual censure. All this is changed in the colonies. In place of confusion and complexity is found simplicity. In New England particularly civil rites, civil registration, and uniform theory of marriage tend at once to prevent the manifold evils growing out of a lax or uncertain law. The conception of wedlock which existed there from the beginning was identical with that which later found expression in the writings of Milton and the legislation of Cromwell. Marriage was declared to be, not a sacrament, but a civil contract in which the intervention of a priest was unnecessary and out of place.

Governor Winthrop, in commenting upon "a great marriage to be solemnized at Boston," in 1647, expresses the sentiment prevailing during the first three-quarters of a century after the settlement. The bridegroom was "of Hingham, Mr. Hubbard's[360] church," and the latter "was procured to preach and came to Boston to that end. But the magistrates, hearing of it, sent to him to forbear. The reasons were, 1. for that his spirit had been discovered to be averse to our ecclesiastical and civil government, and he was a bold man, and would speak his mind. 2. we were not willing to bring in the English custom of ministers performing the solemnity of marriage, which sermons at such times might induce, but if any ministers were present and would bestow a word of exhortation, etc., it was permitted."[361] The last remark reminds us of the benediction of the early Christian priest, who, like the Puritan, discriminated between the religious act and the marriage. Sermons, however, were originally proscribed at the nuptials, though they were permitted at the betrothal.[362]