[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.