A History of Matrimonial Institutions, Vol. 2 of 3

by George Elliott Howard

[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.