II. OPTIONAL CIVIL MARRIAGE AND THE RISE OF OBLIGATORY RELIGIOUS CELEBRATION IN MARYLAND
The earliest extant record of a marriage in Maryland, we are told, is that of William Edwin and Mary Whitehead, dated March 26, 1638. They were married by license, with security to the Lord Proprietor for the payment of "one thousand weight of merchantable tobacco, to be paid upon demand, in case the said William Edwin hath precontracted himself to any other woman than Mary Whitehead (spinster)," or in case there is any other lawful impediment to the marriage.[742] According to Bozman, many similar marriage-license bonds have been preserved.[743] The requirement of a "caution," in such cases, is enforced in the act of the assembly passed in 1640.[744] No marriage may be solemnized without banns "three days before published in some Chappell or other place of the County where publique instnts are used to be notified, or else afore oath mad & caution entered in the County Court that neither partie is apprentice or ward or precontracted or within the forbidden degrees of consanguinity or under govermt of parents or tutors and certificate of such oath & caution taken from the Judge or Register of the Court."[745]
By the act of 1658, passed during the Fendall government, the civil ceremony is made legal. Persons desiring to be married have liberty to apply either to a magistrate or to a minister; but in all cases, under severe penalty, a certificate of the publication of banns at the county court, or in some church, chapel, or meeting, is required.[746] Banns or a license from the governor or lieutenant-general is prescribed by the act of 1662; and, as before, the ceremony may be performed by either a minister or a magistrate, but in presence of two witnesses. Otherwise the marriage is void.[747] Thus far no form of words at the nuptials had been prescribed. Therefore in 1666, by a statute which was to remain in force three years, a modification of the English ritual was adopted.[748]
The general provisions of the law of 1662 are repeated in the act of 1676, except that the intention to allow complete liberty with respect to the form of celebration is more accented. Instead of a "minister or magistrate," as in the former act, any "priest, minister, pastor, or magistrate" may now conduct the celebration; and, as before, a marriage not so solemnized is declared null and void; though it is highly probable that such a requirement was invalid as being inconsistent with the English common law.[749]
Up to this point, under the Catholic proprietors of the palatinate, absolute toleration had prevailed. Optional civil or ecclesiastical rites were sanctioned. But now arose a struggle for supremacy between the toleration party composed of Catholics and Quakers, who began to take strong root in the province, and a bigoted Protestant faction. "As happened twenty years before, a minority in the colony, in sympathy with the dominant party in England, wished to control in matters of religion, and, backed by the home government, renew a policy of intolerance in their own interests. Now, of course, this minority was composed of Protestants of the Established Church, instead of Puritans, as in the days of the Commonwealth."[750] The Episcopal minority triumphed with the establishment of the royal government in 1692, the Church of England was set up, and Catholics and dissenters were taxed for its support. A reactionary policy was begun with respect to the marriage celebration, and we have in this instance the only clear example of such retrogression that can be found in American history.[751] Only in Maryland was civil marriage entirely abrogated after it was once introduced.[752]
The change did not take place all at once. A beginning was made by the law of 1692 which in part deprived members of the established church of the privilege of the civil celebration, but as yet did not interfere with the liberty of others. As under the preceding acts, either a minister or a magistrate may perform the ceremony; but now it is provided that he "shall joyn them in manner and forme as is sett down & expressed in the Liturgy of the Church of England wch being finished the Minister, Pastor, or Magistrate shall say I being hereunto by Law Authorized do pronounce you lawfull man and wife."[753]
A more rigorous statute, affecting members of the establishment, appears in 1702. To "prevent all illegal and unlawful Marriages, not allowable by the Church of England," it is enacted that "no Minister, Priest or Magistrate shall presume to join together in Marriage, any persons whatsoever, contrary to the Table of Marriages, by this Act appointed to be set up in every Parish-Church within this Province," under penalty of five thousand pounds of tobacco for violation, and with a like punishment for each of the parties to such a marriage. To "prevent any Lay-Persons" from acting "where any Minister or Priest can be had, and to ascertain what shall be paid for Marriages," it is provided that "in every Parish where any Minister or Incumbent shall reside and have charge of souls therein, no Justice or Magistrate, being a Lay-Man, shall join any Persons in Marriage, under penalty of Five Thousand Pounds of Tobacco ... to our Sovereign Lord the King." The marriage fee is fixed at five shillings sterling, provided the persons to be married come to the parish church or chapel at time of divine service.[754]
In 1717 was passed a more elaborate act, which remained in force throughout the colonial period, but which did not extend to "persons of different persuasions from the Church of England," who are still to enjoy their own "manner of proceedings" unaltered. "Persons who desire Marriage" are to "apply themselves to a Minister ... and shall cause due Publication to be made, according to the Rubrick of the Church of England, of their Intent to marry, at some Church or Chapel of Ease belonging to the Parish" wherein the woman resides. In "case there be no Minister, Curate or Reader in such Parish, an Advertisement or public Notification ... shall be set up at the Court-house Door of the County, where such Marriage shall be intended, there to remain for the Space of Three Weeks at the least." The clerk of the county court is required to make a certificate of publication, on presenting which any "qualified" minister is empowered to solemnize the marriage "according to the Liturgy of the Church of England." For proceeding without certificate of publication or the governor's license, the minister and each of the parties shall severally forfeit five thousand pounds of tobacco, as under the act of 1702; and for evasion of the law by getting married in any place outside the province, except where the woman is a resident, the man is to suffer the same penalty.[755] But it is important to note that neither the act of 1702 nor that of 1717 invalidates an irregular or clandestine marriage.
Another statute of 1717 prescribes severe penalties for miscegenation. Any free negro or mulatto intermarrying with a white person shall become a slave for life, unless the free mulatto in question be "born of a white woman," when he is merely condemned to service for seven years. On the other hand, servitude for this same period is the punishment prescribed in case a white man or woman intermarry with a negro or mulatto.[756] Two years before a law provides that for joining any negro whatsoever or a mulatto slave to any white person the minister, pastor, or magistrate shall forfeit five thousand pounds of tobacco, one half to the use of free schools, and the other half to the informer.[757]
It is significant that throughout the whole colonial period all persons in Maryland, except members of the establishment, should have had unrestricted liberty to contract civil marriage, only to have that liberty taken away after the Revolution began. By the reactionary law of 1777, "the rites of marriage between any white persons, subjects or inhabitants of this State, shall not be celebrated by any person within this State, unless by ministers of the Church of England, ministers dissenting from that Church, or Romish priests, appointed or ordained according to the rites ... of their respective churches, or in such manner as hath been heretofore used and practiced in this State by the society of people called Quakers."[758] This monument of religious conservatism has survived to our own time.