No attempt is here made to describe wedding customs in the colonial era;[759] but the Archives of Maryland contain a unique document, entitled "Articles of Courtship," which may serve as companion-piece and counterpart to the "Marriage Agreement" with which the domestic economy of Virginia, half a century later, has already been illustrated. In this instance Robert Harwood essays by formal indenture to compound a lawsuit and at the same time reclaim the reluctant affections of Elizabeth Gary, despite the fact that ungallantly he had sought to requite her fickleness through "slanders and unhandsome attempts." From the "Articles of agreement ... made the 24th of September 1657 between Peter Sharpe of Putuxent County in the Province of Maryland Chirurgeon of the one pte, and Robert Harwood of the Same County planter of the other parte," it appears that "there hath been a Suit Commenced by the Said Peter Sharpe before the Governour and Councell ... a gainst the abovenamed Robert Harwood on the behalf of Elizabeth Gary Daughter of Iudith now the wife of the Said Peter Sharpe, for reparation for Slanders, and undhandsome attempts charged to be acted and reported by the Said Robert Harwood to the great Detriment of the Said Elizabeth, and of the Said Peter Sharpe his wife and family;" and, on the other side, that Robert, "for his own Vindication, doth much insist upon a former promise of Marriage Grounded upon a Mutuall declared affection" between him and Elizabeth, "obtained after a long familiaritie and Sollicitation;" with which engagement the said Peter and Judith his wife "are much dissatisfied," but which they are nevertheless willing to see followed by wedlock, if Elizabeth really have the proper "affection and resolution of marriage to and with the Said Robert."
Therefore it is duly stipulated that the insistent suitor shall have a fair chance to ensnare the coy damsel on neutral ground. "Imprimis the said Peter Sharpe doth for himself and his heirs ... agree that the Said Elizabeth Gary shall within fifteen dayes ... be conveyed to the house of mr Thomas Davis at the Cliftes and there she is to remaine for the Space of six weekes," the said Robert "during all the Said Time" being given "full free and perfect Liberty (bringing one or more of the Neighbours with him) to have all freedom of discourse" with her, and "to use all faire and Lawfull Endeavours" to win her consent to marry him. That Robert's "nerve" and zeal were confidently relied upon is revealed by the proviso that "one or more of the Neighbours" are "alwayes to be present" with the lovers at the above specified courting, the "Said Robt Harwood paying for the Said Elizabeth Gary her Entertainment during her Stay at the Said Davis his house."
Next it is covenanted by Peter, "if it should by Gods permission, So happen" that Elizabeth shall "within the Said prefixed time give her consent," that he will not directly or indirectly, "neither by himself nor by any other person or persons," try to hinder the marriage, which "shall be permitted to take effect without obstruction." On his part Robert doth agree that, if in the time set he fail to gain Elizabeth's consent to "intermarry with him," he "will from thence forth totally and absolutely discharge the Said Elizabeth" from all former promises; and will "never after by himself, or any other person or persons, either by words Letters or any other way directly or indirectly Endeavour to gain" her affections, "or to procure any familiaritie of discourse with her or willingly to Come into her Company." But if "Robert and Elizabeth shall entermarry," the docile bridegroom "shall first enter into Good Caution and Securitie not to upbraid or deride or any other way Exercise, or use any bitherness" toward the bride, "for or in relation to any former passages between them;" and in case of "breach of this his Engagement he shall from thenceforth be absolutely disabled and made uncapable of Entermedling with or disposing of any part of the Estate now belonging to the Said Elizabeth, or any part of the produce thereof."
Finally it is stipulated that "in the Cause formerly depending and now to be withdrawen" Robert is to "beare his own Charge," as well as those "on the plaintiffes behalf," if the marriage take place, otherwise Peter is to pay his own costs. Thereupon the instrument is "signed, sealed and delivered in the presence of Thomas Turner Clerk," under date of September 26, 1657.[760]
III. THE STRUGGLE FOR CIVIL MARRIAGE AND FREE RELIGIOUS CELEBRATION IN NORTH CAROLINA
From the outset the colony of North Carolina had a population of diverse nationalities and various religious creeds. The "Fundamental Constitutions" of 1669, granted by the Earl of Clarendon and his colleagues, provided, hesitatingly, for the establishment of the English church;[761] but it was not until after the beginning of the eighteenth century that an attempt was made to enforce the Episcopal system by statute. In the meantime, the regular clergy were few, and dissenters came in large numbers; for lest "Jews, heathens, and other dissenters from the purity of the Christian religion may be scared and kept at a distance," the Constitutions had inconsistently guaranteed a qualified religious freedom.[762] Among the sects represented were Protestants from Germany, Huguenots from France, and Independents from New England. Later the Quakers and Presbyterians became relatively strong; and they stoutly resented the bigoted tyranny of the Episcopal minority, which was sustained by the government by whom the matrimonial legislation was shaped. The intolerance was the harder to bear because of the low character of the English clergy, some of whom in vice and dissipation being worthy rivals of the brawling and cock-fighting parsons of Maryland and Virginia. To this class belonged Rev. Daniel Brett, the first Episcopal clergyman who came to the colony; and Rev. John Boyd, notorious for open drunkenness.[763]
During nearly half a century following the charter[764] there was in practice full toleration as to the form of the marriage celebration. The very first statute of the "Assembly of Albemarle," the first legislative body after the "Fundamental Constitutions" went into effect, provides in characteristic American style for the solemnization of marriage. "Forasmuch," runs this act, "as there may be divers people that are minded to be joyned together in the holy state of Wedlock and for that there is noe minister as yet in this County by whom the said Partyes may be joyned in Wedlock according to the rites and customs of our native Country the Kingdome of England;" therefore, that "none may be hindred from this soe necessary a worke for the preservation of Mankind and settlement of this County it is enacted And be it enacted by the Pallatine and Lords Proprietors of Carolina by and with the advice and consent of the Present Grand Assembly ... that any two persons to be joyned together in the holy state of matrimony takeing three or fower of their Neighbors along with them and repairing to the Governor or any one of the Councell before him declaring that they doe joyne together in the holy state of Wedlock And doe accept one the other for man and wife; and the said Governor or Councellor before whom such act is performed giveing certificate thereof and the said certificate being registered in the Secretary's Office or by the Register of the Precinct or in such other Office as shall hereafter for that use be provided. It shall be deemed a Lawfull Marriage and Partyes violating this Marriage shall be punishable as if they had binn marryed by a minister according to the rites and customs of England."[765]
This timely act was ratified by the Proprietors, January 20, 1669/70; and there can be no doubt of its validity. It is a straightforward and sensible measure, such as the pioneer, forced to resort to self-help, has so often shown himself capable of throughout the history of the Anglo-Saxon race. Its clear expression, good English, and respectable spelling speak well for the training and intelligence of the first settlers of Carolina; although the act has been sneered at and ridiculed by some people who ought to know better.[766]
From the beginning the Quakers seem to have been allowed to solemnize marriage in their own way; and this they contrived to do even after the English forms were prescribed by statute. According to Hawks, the "Friends were entitled, by express grant from the proprietors, thus to adhere to their peculiar usage; for they had declared to them as an inducement to emigrate, 'there is full and free liberty of conscience granted to all, so that no man is to be molested or called in question for matters of religious concern; but every one to be obedient to the civil government, worshipping God after his own way.'"[767] The records of the monthly meeting in North Carolina reveal the Friends using the same simple rites as elsewhere in the colonies. The betrothed man and woman proclaimed their own banns, "passing the meeting" twice as in Pennsylvania. Thus at a monthly meeting of Friends "in Pasquotank ye 11th of ye first month 1707/8," held "as their manner is, to Inspect into ye affairs of ye Church," Zachariah Nixon and Elizabeth Symons appear the "second time & declare their Intentions of taking Each Other in Marriage and being approved by the said meeting are left to their liberty to take each other."[768]
It appears, then, that civil marriage, side by side with religious marriage according to the rites of each denomination, was lawful until 1715. By the so-called "Vestries Act" of that year, for the establishment of the Church of England in the province, magistrates are authorized to join people in wedlock only in "such parishes where no minister shall be resident." If any layman, except in such parishes, presume to act, he shall be fined five pounds, one-half to the parish for the use of the poor, and one-half to the resident minister or incumbent. After license or banns no marriage may be lawfully celebrated by minister, priest, or magistrate contrary to the table of marriages, which the church wardens and vestry are to have set up in every church or chapel.[769] But there is no invalidating clause for neglect. Already in 1704 some provision had been made by statute for registration.[770] Now it is enacted that the "inhabitants and freemen of each precinct" by majority vote are to elect three freeholders, from whom the governor or commander in chief is to choose one as register of deeds; and until there be a clerk of the parish church, such register is to record betrothals and marriages. Every "master or mistress of a family who shall neglect to register the birth or death of any person born or dying within his or her house or plantation; and every married man who shall neglect to remit to the said register a certificate of his marriage and cause the same to be registered, for longer than one month," must pay a fine of one shilling a month for the period of delay, provided the whole penalty do not exceed twenty shillings.[771]