The act of 1715 fixes the minister's marriage fee at five shillings; and to retain a monopoly of this perquisite at all hazards was the unswerving purpose of the Episcopal clergy throughout the colonial period. The governors, too, found the stipend for issuing marriage licenses a lucrative source of revenue. In 1730 the royal instructions to Governor Burrington declare, "to the end Ecclesiastical Jurisdiction of the Bishop of London may take place in that our Province so far as may be We do think fit that you give all countenance & encouragement to the exercise of the same excepting only the collating the Benefices Granting licenses for Marriages and probate of Wills which we have reserved to you our Governor and to the Commander in chief of our said Province for the time being as far as by law we may."[772] The license fee was fixed at ten shillings.[773]
A new law was passed in 1741, which, though it does not expressly forbid dissenting ministers from performing the marriage ceremony, at any rate, as Weeks insists, makes "dissent burdensome and humiliating," puts a "premium on conformity," and constitutes "religious persecution."[774] "To prevent clandestine marriages" it is enacted "that every Clergyman of the Church of England, or for want of such, any lawful magistrate, within this Government" may join persons in the "holy state of matrimony." By implication this provision widens the area within which a magistrate is empowered to act, for by the law of 1715 a layman may not perform the ceremony in any parish where a "minister or priest" resides, thus probably including dissenters, who in the present case do not count. The next clause gives still further chances for lay celebration; for, while a justice of the peace may not join in marriage "any persons whatsoever in any parish where a minister shall reside and have a cure," still by implication he may do so in any parish in the colony by obtaining permission from the minister, and, of course, in all cases turning over to said minister the legally prescribed fee.[775] Another provision of this statute may perhaps justify the inference that dissenting ministers are not absolutely excluded. To prevent "that abominable mixture and spurious issue" which would follow, it is enacted, "That if any white man or woman, being free, shall intermarry with an indian, negro, mustee, or mulatto man or woman, or any person of mixt blood, to the third generation, bond or free, he shall, by judgment of the county court, forfeit and pay the sum of fifty pounds, proclamation money, to the use of the parish;" and any persons, including dissenting ministers, are forbidden to solemnize such marriages, under the same penalty.[776] The marriage of servants indented or by custom is also dealt with. It is provided "That if any minister or reader shall willingly publish, or cause or suffer to be published, the banns of matrimony between any servants, or between a free person and a servant; or if any minister or justice of the peace shall willingly celebrate the rites of matrimony between any such, without a certificate from the master or mistress of such servant, that it is done by their consent; he shall forfeit and pay five pounds, proclamation money, to the use of the master or owner." Every servant so married without consent shall serve the master or mistress "one whole year, after the time of service by indenture or custom is expired."[777]
Regarding the scope and intent of the law of 1741, Weeks remarks that "in this, as in the former cases, the Assembly did not undertake to give" the right of celebrating marriages to the established clergy, "but simply recognized it as resting on prescription. But they might have granted this right to Dissenters as they proposed doing in the act of 1770. The Quakers seem to have been allowed to marry after their own fashion from the first," and why not grant the same privilege "to Presbyterians and Baptists"? Instead of taking such a just and tolerant course, "their preachers were debarred from performing the ceremony even among their own flocks. They were thus put to grave inconvenience, and the law of 1766 recites that the Presbyterians refused to consider themselves as bound by its provisions." Surely there was good reason to take this position, considering the previous law and custom of the colony. The Episcopalian government party seems to have been conscious of this fact, as appears from the discussion of the clergy bill of 1762. "The governor and council," continues Weeks, "tried to force on the lower house a clause by which it was enacted that 'no Dissenting minister of any denomination whatever shall presume on any pretence to Marry any person, under the penalty of forfeiting £50.' The law does not seem to have been successful, but it is a clear statement of the tendency of the act of 1741, and shows the position of a certain element in the province."[778]
The assembly rested from further matrimonial legislation until the passage of the act of 1766, already mentioned, which gave some relief to the Presbyterians, but not to any other dissenting body. Aside from the greed for the marriage fees, the principal motive leading to its passage was not justice, as will presently appear, but a desire to reward and strengthen the sympathy of the Presbyterians for the government in its struggle with the Regulators. The preamble of the act recites that because "the presbyterian, or dissenting clergy, conceiving themselves not included in the restrictions mentioned" in the act of 1741, have "joined many persons together in holy matrimony, without either licence or publication; whereby the payment of the just and legal fees to the governor on such occasions, has been eluded, and the validity of marriages may be endangered:" therefore all such marriages now celebrated or to be celebrated before the first day of January next are declared valid. Henceforth no minister of the Church of England or justice of the peace may celebrate marriage without a certificate of three times publication of banns, or a license from the governor or the commander in chief, "who is authorized hereby to grant the same, on certificate of the county court" of the person's "having taken and filed ... the usual bond," under the "penalty of fifty pounds, proclamation money; with condition that there is no lawful cause to obstruct the marriage for which such license is given." Presbyterian missionaries or itinerants in the western parishes, as well as all other dissenters in the province, are in effect excluded by the provision that after January 1 any Presbyterian minister regularly called to any congregation in this province may celebrate matrimony "in their usual and accustomed manner." But in all cases a license from the governor is requisite; and the marriage fee, it is carefully added, is always reserved to the clergyman of the Church of England having cure of any parish, no matter whether a dissenting minister or a justice performs the ceremony. Furthermore, a marriage celebrated without a license is declared "illegal and void."[779]
Governor Tryon, who approved the act of 1766, was not overfond of the Presbyterians as such, and all other "sectaries" he looked upon "as enemies to society and a scandal to common sense."[780] The next year, writing to the Earl of Shelburne, he says the law of 1766 "has more objects in view than appears on the sight of it." The Marriage Act of "1741 to which it has relation entitles every Justice of the Peace to marry by licence. In abuse of this privilege many Justices performed the marriage ceremony without licence ... and took the fee allowed to the Governor, most generally dividing the spoil between the Justice and the Clerk of the county who gave the bond and certificate. Another tendency of this Act was to prevent the frequent abuses of rascally fellows who travelled thro' the province under the title of ministers of the Presbyterian and other sectaries and who being beggars in conscience as well as in circumstances sought all opportunities to perform that sacred office to the great prejudice of the country. It is also to be observed most of the justices in the back or western settlements are Presbyterians, who by the Act of 1741 had the power to marry by licence: Therefore upon the whole I do not conceive the allowing the Presbyterian ministers the privilege to marry in their usual and accustomed manner can be of any real prejudice to the established Church especially as the marriage fee is reserved to the ministers of the parish; and the licence to be granted under the hand and seal of the Governor, this last provision prevents the former abuses in the application of the fee collected. The Act also provides a summary and effectual method for the Governor to oblige the county court clerks to account for the fees due to him: a recovery tho' an equitable one, was never yet secured but in temporary laws."[781]
The Presbyterians were by no means satisfied with the reward their loyalty had received. Especially did the "rascally" missionaries of the western frontiers feel themselves abused. Petitions protesting in strong terms against the act were presented by the clergy. Those of Mecklenburg, for instance, regard themselves as "highly injured and aggrieved" by the statute, "the preamble whereof scandalizes the Presbyterian clergy."[782] The petitioners of Tryon county say they are "much aggrieved," the law depriving them of a privilege "which a million of our fellow-professors in America now enjoy ... neither was it ever taken from Dissenters in America until it was taken from us by this act."[783] The "manly protest from the inhabitants of Orange and Rowan claims that the right of 'dissenting ministers' to perform the marriage ceremony after their own fashion was a 'priviledge they were debarred of in no other part of his majesty's Dominions; and as we humbly conceive, a priviledge they stand entitled to, by the Act of Toleration, and in fine, a priviledge granted even to the very Catholics in Ireland and the Protestants in France.'"[784]
The vigorous resistance aroused by the unjust law of 1766, and the continued services rendered by the Presbyterian pastors to the governor in his struggle with the Regulators had the desired result. In December, 1770, a legislative committee brought in a report recommending a new law. "Upon perusing the several Acts of Assembly concerning the solemnization of the rites[785] of matrimony and considering the great number of Presbyterian Inhabitants settled in the western Frontier Counties in this Province and the difficulties and expenses they must necessarily be under," the committee "Can't but think that the restraints and penalties in the Said Acts are in some measure hard and oppressive and that they have a just and reasonable claim to the attention of the Legislative body for granting to them a religious toleration in that particular, and that it is well becoming the Catholic and liberal principles of the Members of the House Representatives of this Colony, to appoint a Committee to prepare and bring in a Bill for impowering all regular Presbyterian Ministers in this Province to Solemnize the rites of Marriage, according to the Westminster confession of Faith, by publication in their religious Assemblies, where the parties are best known, and by License, without any Tax or Fees to the Clergy of the Establishment."[786] Such a bill was accordingly brought in and passed with the governor's approval, "but with a clause suspending its operation until the pleasure of the King should be known."[787]
No relief was offered by this act to the other dissenters; and the report of Governor Tryon shows that he felt himself under special obligations to the Presbyterians. According to Saunders, he said that the act was an "indulgence" to which they were well "entitled because of the attachment they had shown to the Government;" and it appears, aside from the "merits of the case," that something was due from Tryon to the Presbyterians "for the support their pastors gave him in 1768." Certainly "the letters in which all the Presbyterian pastors in the Province united to praise Tryon and denounce the Regulators were as strong in language as they were opportune in point of time. Indeed, old Parson Micklejohn of the Established Church was not more pronounced in enforcing the duty of obedience to 'the powers that be' as being of divine origin than the Presbytarian pastors were. The Governor in his report put him" and these ministers "on the same footing in this regard."[788]
The act had passed the house and received the governor's signature; but the battle was not yet won. It is perhaps not surprising that the ear of George III., in the days immediately following the Stamp Act, should have inclined more to the desires[789] of the loyalist clergy of the English church than to the complaints of "sectaries" in a rebellious province. Accordingly, the marriage act was disallowed by his Majesty; and the law of 1766 remained in force until 1778, two years after the constitution of 1776 had brought the establishment to an end.[790]