The act of 1632 determined the broad outline of the marriage law of Virginia until after the Revolution. But two or three important modifications were made by subsequent legislation. Thus, an act of the Commonwealth period, 1657-58, enforces the provision that "ministers only shall celebrate marriages;" and significantly adds that they shall not do so without license or publication of banns "as formerly," under a penalty of "tenne thousand pounds of tobacco to ease the leavye of that county." No license is to be granted "without certificate vnder the hands of the parents, masters, or guardians of the parties to be married."[706] Again, the first act of the Restoration, 1661-62, requires license or "thrice publication according to the prescription of the rubric in the common prayer booke, which injoynes that if the persons to be marryed dwell in severall parishes the banes must be asked in both parishes, and that the curate of one parish shall not solemnize the matrimony untill he have a certificate from the curate of the other parish, that the banes have been there thrice published, and noe objection made" to the union. For violation of the law by the minister the penalty of 1657-58 is retained. But this statute goes farther and declares that "any pretended marriage hereafter made by any other then a minister" shall be "reputed null, and the children borne out of such marriage of the parents" shall be "esteemed illegitimate and the parents suffer such punishment as by the laws prohibiting fornication ought to be inflicted."[707] This act of the Restoration, like that of the Duke of York, 1665, was probably invalid as transcending the requirements of the English common law.[708] In part it may have been intended to punish violation of the marriage law by dissenters, and its severity must have been keenly felt. At any rate, it was repealed in 1696 and replaced by an "act for the prevention of clandestine marriages." The preamble recites that "many great and grievous mischeifes have arisen and dayly doe arise by clandestine and secret marriages to the utter ruin of many heirs and heiresses," and that "the laws now in force ... do inflict too small a punishment for so heinous and great an offence." The minister guilty of violating the provision for banns or license, which is re-enacted, is to suffer imprisonment "for one whole year without bayle or mainprize and shall forfeitt and pay the sume of five hundred pounds currant money, one moyety thereof to our sovereign lord the king, ... and the other moyety to him or them that shall sue or informe for the same." No licenses are to be granted without a certificate from the clerk of the county court; and the certificate may not be issued by the clerk without the consent of the parent or guardian given in person or by writing attested by two witnesses, under penalty of a year's imprisonment and the payment of a fine of five hundred pounds current money. The clause of the preceding act making the issue of irregular marriages illegitimate is not repeated in this act or subsequently—an admission, seemingly, that the provision was originally null and void. But a female between the ages of twelve and sixteen contracting such a marriage forfeits during coverture her inheritance to the next of kin. After the death of her husband the inheritance reverts to her or those who should have claimed "in case this act had never been made."[709] This clause was retained in subsequent legislation.[710] By the act of 1705 still more careful provision is made for license and certificate; and if any minister, contrary to the spirit of the law, shall "go out of this her majesty's colony and dominion" and there join in matrimony "persons belonging to this country," without license or publication, he is to suffer the same penalty as if the offense had been done in the province.[711]
No relaxation in the illiberal rule requiring solemnization by a clergyman of the establishment was made until after the Revolution. First in 1780 the court of each county was authorized to license not more than four ministers of any religious society to solemnize marriages. In 1784 ministers of all denominations, except itinerants, were put on the same level in this regard. Already the preceding year laymen "in the western waters" had grudgingly been empowered to act, provided they make use of the ritual of the English church; but it was not until 1830 that it became possible, when the court saw fit, to appoint laymen for this purpose in all counties of the commonwealth; and this policy has survived to the present hour.[712]
But if the Anglican clergy during the entire colonial period were given a monopoly of matrimonial business, it by no means follows that the dissenters, whose numbers were constantly gaining, ever tamely submitted. On the contrary, they often took the law into their own hands and had their marriages celebrated before their own ministers, or resorted to the local magistrates. This fact is made clear by the act of 1780 and subsequent statutes, by which marriages irregularly contracted are declared valid. Indeed, as early as 1677 we have evidence that dissenters refused to observe an unjust and probably invalid law. A memorial of the bishop of London in that year laments that in Virginia there is a great "defect in the execution of those two wholesome laws ... of the Assembly, the one prohibiting all marriages to be solemnized without a lawful minister imposing the punishment due for fornication on the parties & making their children illegitimate & so not capable of inheriting, the other prohibiting any persone the ministeriall Function without proveing himself to have first received Orders from some Bishop in England."[713]
As already stated, the matrimonial laws of Virginia were from an early day locally administered, and mainly by the civil magistrate. The minister of every parish was required to keep a "booke wherein shall be written the day and yeare of every christeninge, wedding, and buriall;"[714] and annually on the first day of June it was the duty of the church wardens and ministers to make a return to the quarter court of all marriages solemnized during the year.[715] By the act of 1642 the report is to be made to the "commander of every monethly court;"[716] and in 1661-62 the duty of registration is laid upon the reader equally with the minister.[717] At length, in 1780, the officiating minister is required to transmit a certificate of every marriage solemnized by him to the clerk of the county court for record.[718] It was the minister's duty to publish the banns thrice, as required by law. But in consequence of the scarcity of clergymen of the established church, in some places it became practically impossible to comply with the statutes. So, in 1705, the clerk or reader in any parish having no minister was empowered to publish banns and, "if no objection be made," to grant a certificate thereof to the officiating minister.[719]
In Virginia, as we have seen, the governor's license instead of banns takes the place of the license of the English bishop. Licenses are not to be issued "without certificate under the hands of the parents, masters or guardians."[720] On account of the rapid growth of population, in which was an ever-increasing proportion of dissenters, and on account of the scarcity of ministers of the established church, the demand for licenses became so great that, in 1661, the clerks of the county courts were empowered to issue them. "Whereas," runs the statute, "many times lycences are granted and the persons are marryed out of the parishes, which lycences have been usually granted by the governor, whose knowledge of persons cannot possibly extend over the whole country," therefore persons desiring to be married by license are required to give bond to the clerk that there is no lawful impediment. The clerk is then to write the license and certify to the first justice in the commission for the county, or else to the person appointed for this business by the governor, who shall sign it.[721] Later the personal or written consent of the parent or guardian is required before the clerk may issue certificate.[722] But by the act of 1705 a bond is required in all cases, and parental consent only in the case of minors. The license is then issued by the clerk for the signature of the magistrate or the governor's deputy.[723]
The granting of licenses was an important source of income for the governor, he receiving two hundred pounds of tobacco or twenty shillings for each license issued. Such, for example, was the law in the days of Beverley.[724] These fees were collected by the sheriff and turned over to the governor or secretary of the colony.[725] At the beginning of the Revolution, in order to provide for the expense of the militia, a tax of forty shillings was laid by the assembly upon each marriage license;[726] and in the next year the law granting license fees to the governor was repealed.[727] The legal fee allowed the minister was twenty shillings or two hundred pounds of tobacco for each marriage when celebrated by license, and five shillings or fifty pounds of tobacco when celebrated by banns.[728] In 1792, however, the uniform fee for a marriage was fixed at one dollar.[729]
Marriages within the "levitical degrees prohibited by the laws of England" were forbidden;[730] and curious and stringent regulations concerning the secret marriage of indented servants were made. Thus in 1642-43, since "many great abuses & much detriment hath been found to arise both against the law of God and likewise to the service of manye masters of families in the collony" by secret marriage of servants, it is provided that a man servant contracting a secret marriage with a maid servant shall serve an additional year after the completion of the term of indenture; while a maid servant so offending is to double the time of her service. A freeman for secretly marrying an indented maid servant must double the value of her service and pay a fine of five hundred pounds of tobacco to the parish where the offense is committed.[731] The unjust discrimination against female servants was done away with in 1657-58.[732] A still more rigorous law was passed in 1661-62. The minister is prohibited under a penalty of ten thousand pounds of tobacco from either publishing the banns or celebrating the contract of marriage without a certificate of consent from the masters of both the persons, who are each to suffer the penalty of a year's extra service, as before; while the freeman clandestinely marrying a servant is to pay to the master fifteen hundred pounds of tobacco or a year's service.[733] But in 1748 for the offending parties the year's extra service is commuted at "five pounds current money."[734] It may be noted that in this Virginia legislation there is no provision like that of Plymouth for compelling the consent of stubborn masters.
The matrimonial history of Virginia begins with the nuptials of Ann Burras and John Laydon, celebrated in 1608.[735] A few years later, in Dale's code, appear the first marital regulations, though to what extent they were ever carried out must remain uncertain. Every minister is required to "keepe a faithful and true Record, or Church Booke, of all Christnings, Marriages, and deaths of such our people, as shall happen within their Fort, or Fortresse, Townes or Towne at any time, vpon the burthen of a neglectfull conscience, and vpon paine of losing their Entertainment."[736]
The statutes of the Dominion are silent as to the celebration of pre-contract or espousals; and the penalties prescribed for adultery and fornication are in marked contrast with those of early New England. Persons were presented for these offenses by the church wardens at the annual visitations;[737] and the culprits were punished by fines or whipping.[738] Nor do the laws concern themselves with the regulation of courtship and "sinful dalliance" in New England style; although a proclamation of Governor Wyatt shows that his excellency was willing to supply the law's defect in this regard. He announces that "every minister should give notice in his church that what man or woman soever should use any word or speech tending to a contract of marriage to two several persons at one time," such "as might entangle or breed scruples in their consciences, should for such their offense, either undergo corporal correction, or be punished by fine or otherwise, according to the quality of the person so offending."[739]
Very little material has been collected regarding wedding customs in Virginia.[740] But this sketch may be concluded by reference to a curious "marriage agreement" which took place in Eastville, Northampton county, in 1714, and which throws light on domestic economy in the Old Dominion. Mr. John Custis and Frances, his wife, having fallen out, are inspired with hope and faith that they may renew "perfect love and friendship" by bond and covenant. First, therefore, it is duly stipulated that "the sd Frances shall return to the sd John all the money, Plate and other things what soever that she hath from him or removed out of the house upon oath and be obliged never to take away by herself or any other, anything of value from him again or run him in debt without his consent, nor sell, give away or dispose of anything of value out of the family without his consent, upon the condition that the plate and damaske linen" shall not be given away or otherwise disposed of by the said John during her life, but be delivered to his children "by the said Frances immediately after her decease." Next it is agreed that "Frances shall henceforth for bear to call him ye sd John any vile names or give him any ill language, Neither shall he give her any," but they are "to live lovingly together and to behave themselves to each other as a good husband & good wife ought to doe. And that she shall not intermeddle with his affairs but that all business belonging to the husband's management shall be solely transacted by him, neither shall he intermeddle in her domestique affairs but that all business properly belonging to the management of the wife shall be solely transacted by her." Again, after settling his debts, John gives bond in the sum of one thousand pounds that he will keep "true and perfect accounts of all the profitts and disbursements of his whole Estate," present and future, in Virginia or the rest of the world, and that he will "produce the same accounts yearly if it be required upon oath. And that after all debts hereafter necessarily accrueing; for buying cloaths, tools and all the necessary [things] for the servants and the plantations, paying leavys and Quitt-rents & making necessary repairs of his whole estate and alsoe all other necessary charges acrewing for the use & benefitt of the estate which is to descend to the child of ye said Frances are deducted and paid he shall freely & without grudging allow one full moity ... of his whole estate" to her annually, "for clothing herself and the children with a reasonable proportion thereof and the remainder to be all laid out in the education of the children & for furnishing ... all things ... necessary for house keeping (that are to be brought from England) and Phisick," so long as she remains peacefully with him; and that he shall allow for her maintenance and that of the family "one bushell of wheat for every week and a sufficient quantity of Indian Corn and as much flessh of all kinds as the stocks of Cattle, Sheep and hoggs" will stand, with "sufficient quantity of Cyder and Brandy if so much be made on the plantation." But if Frances exceed her allowance, then it is to cease, and the "bond to be voyd." Out of her allowance Frances is to have "free liberty to keep a white servant if she shall think fitt;" also the usual colored servants, among whom are mentioned "Jenny," "Queen," and "Billy boy," who are to "tend the garden, goe of errands or with the coach, catch horses, and doe all other necessary works" both in and about the house. Moreover, with impulsive generosity, "ye sd John" binds himself, not only to allow Frances "fifteen pounds of wool and fifteen pounds of fine dresst flax or fifteen pounds of wool in lieu thereof every year to spin for any use in the family she shall think fit;" but even to suffer her "to give away twenty yards of Virginia cloth every Year to charitable uses if soe much remain after the servants are clothed." Finally, pending the marketing of the tobacco crop in England, which will take twelve months, Frances is graciously endowed by John with fifty pounds in money for support of herself and the family, if there should happen to be so much left when all the debts are paid.[741]