In at least one instance a sufficiently flexible special ritual was composed which very frankly discloses the idea of its author, and probably also that of a majority of his brethren, as to the real character of a slave marriage. According to Moore, it was discovered at Northampton, N. H., in 1868, by Mr. J. Wingate Thornton; and it was prepared and used by Rev. Samuel Phillips, of Andover, Mass., whose ministry there, beginning in 1710 and ending with his death in 1771, was a prolonged and eminently distinguished service of more than half of the eighteenth century." This "Form of a Negro-Marriage" is a decidedly safe and practical service from the master's point of view. The minister says:
"You S: do now in the Presence of God, and these Witnesses, Take R: to be your Wife; Promising that so far as shall be consistent with ye Relation wch you now sustain, as a Servant, you will Perform ye Part of an Husband towards her; And in particular, you Promise, that you will Love her: And that, as you shall have ye Opportty & Ability, you will take a proper Care of her in Sickness and Health, in Prosperity & Adversity: And that you will be True & Faithfull to her, and will Cleave to her only, so long as God, in his Provdce, shall continue your and her abode in Such Place (or Places) as that you can conveniently come together." Similar words are repeated to the woman; and when each in turn has sealed this unique troth-plight, the minister continues: "I then agreeable to your Request, and wth ye Consent of your Masters & Mistresses, do Declare, that you have Licence given you to be conversant and familiar together, as Husband and Wife, so long as God shall continue your Places of abode as aforesaid; and so long as you shall behave your-selves as it becometh Servants to doe: For you must, both of you, bear in mind, that you Remain Still as really and truly as ever, your Master's Property, and therefore it will be justly expected, both by God and Man, that you behave and conduct your-selves, as Obedient and faithfull Servants towards your respective Masters & Mistresses for the Time being."[703]
Through this ingenious device, it is clear, the permanence of the slave's nuptial bond, with all his connubial and family rights, was made absolutely dependent upon his owner's will.
CHAPTER XIII
ECCLESIASTICAL RITES AND THE RISE OF CIVIL MARRIAGE IN THE SOUTHERN COLONIES
[Bibliographical Note XIII.—For Virginia the chief materials have been drawn from Hening's Statutes at Large (Richmond, 1809-23), and the laws comprised in Acts of the Assembly (fol., Williamsburg, 1769). The third volume of O'Callaghan, Documents Rel. to the Col. History of New York, has an interesting memorial of the bishop of London written in 1677; and there are some references to marriage in Strachey, For the Colony in Virginea Britannea: Lawes Diuine, Morall, and Martiall, being "Dale's Code" (London, 1612): in Force, Tracts, III; Spotswood, Letters, constituting Vols. I and II, new series, of the Collections of the Va. Hist. Soc. (Richmond, 1882-85); Beverley, History of Virginia (reprint, Richmond, 1855); and the acts of the assembly of 1619 contained in the Colonial Records of Virginia (Richmond, 1874). Cooke, Virginia (Boston, 1884), gives a curious proclamation of Governor Wyatt for the regulation of courtship. In Vol. IV of the Va. Magazine of Hist. and Biog. (Richmond, July, 1896) there is a unique "Marriage Agreement" which throws some light on the economic affairs of the provincial household; and further illustrations of domestic and social customs may be found in Goodwin, The Colonial Cavalier (Boston, 1895); and Fiske, Old Virginia and Her Neighbors (Boston, 1898).
The principal sources for Maryland are Browne, Archives of Maryland (Baltimore, 1883-91); Bacon, Laws of Maryland (fol., Annapolis, 1765); and, to supplement these, the Laws of Maryland made since 1763 (fol., Annapolis, 1777); or the same (fol., Annapolis, 1787). Streeter, "Papers Rel. to the Early Hist. of Maryland," in Md. Hist. Soc. Publications (Baltimore, 1876), publishes a record of the first wedding in the colony, with the marriage license bond. The matrimonial doctrines of the Labadists are discussed by James, "The Labadist Colony in Maryland," in J. H. U. S., XVII (Baltimore, 1899); and the character of the episcopal clergy is described by Browne, Maryland (Boston, 1884), and by Lodge, Short History (New York, 1882).
On this subject, as on most topics for the period, the extremely valuable Colonial Records of North Carolina (Raleigh, 1886-90) are a mine of information; and they are enriched by Colonel Saunders's "Prefatory Notes." The first matrimonial statute, passed by the assembly of Albemarle in 1669, is also contained in Chalmers, Political Annals: in Carroll, Hist. Coll. of South Carolina (New York, 1836); and in Hawks, History of North Carolina (Fayetteville, 1857-58), likewise of service on other points. The various statutes of the eighteenth century may be consulted in Iredell-Martin's Public Acts of the Gen. Assembly (Newbern, 1804); in Swan's Revisal (ed. 1752); or Davis's Revisal (ed. 1773). Similar collections of laws for South Carolina are Cooper and McCord's Statutes at Large (Columbia, 1837-41), and Brevard's Alphabetical Digest (Charleston, 1814)—both of which contain useful editorial notes. Constitutional provisions are, of course, found in Poore, Charters (Washington, 1877). The works of Friedberg and the Atlantic article of Cook, elsewhere mentioned, are still of service; and Weeks in his valuable monograph, "Church and State in North Carolina," in J. H. U. S., XI (Baltimore, 1893), has traced from the sources the struggle of the Presbyterian with the Episcopalian government party for the privilege of using their own rites in the celebration of marriage.]
I. THE RELIGIOUS CEREMONY AND LAY ADMINISTRATION IN VIRGINIA
Throughout the colonial period in Virginia the religious marriage ceremony, according to the rites of the Church of England, was prescribed by law. Indeed, it was not until 1794 that the lay celebration before a magistrate was permitted, and then only in certain exceptional cases. But in two important particulars, even in the earliest statutes, there is a remarkable advance upon the custom of the mother-country. In the first place, it is noteworthy that the administration of matrimonial law is gradually intrusted to the county officers and the local courts. Here, as in New England, there is a quickening of the forces of local self-government; and the lay tribunals gained important functions which in England belonged to the ecclesiastical courts. Again, the legislation of 1631-32 embodies the essential principles of the Hardwicke act of 1753. The institution of marriage begins to be protected and defined by careful statutory provisions and is no longer left to the perils of uncertain custom. Banns or license, parental consent, certificate, and registration are all soon introduced. Marriage becomes in effect a civil contract long before it is squarely acknowledged to be such by the law.
The brief act of 7 Charles I., 1632, provides that "no mynister shall celebrate matrimony betweene any persons without a facultie or lycense graunted by the Governor, except the baynes of matrimony have beene first published three severall Sundays or holydays in the time of devyne service in the parish churches where the sayd persons dwell, accordinge to the booke of common prayer." The minister is forbidden to "ioyne any persons soe licensed in marriage at any unreasonable tymes, but only betweene the howers of eight and twelve in the forenoone." If the marriage is after publication of banns without license, and the persons are under twenty-one years of age, the consent of parents is required before legal celebration.[704] It was also enacted that all marriages should be solemnized in church "except in case of necessity."[705]