IV. EPISCOPAL RITES BY LAW AND FREE CIVIL OR RELIGIOUS CELEBRATION BY CUSTOM IN SOUTH CAROLINA AND GEORGIA
The history of marriage in South Carolina runs much the same course as in the northern province; except that we hear of no struggle by the privileged establishment to enforce the statutes eventually enacted in its behalf. For a time, under the same charters, the two colonies were ruled in the same way by the proprietors; and in South Carolina for over three decades there was apparently full toleration with respect to matrimonial rites. That such was the case near the close of the seventeenth century may be inferred from the registration act of 1696. It is required that "every man which hereafter shall be married according to the rubrick of the Church of England, or by any other contract or ceremony," shall record his marriage in the register's office within thirty days after celebration, or else forfeit "one royall" for neglect. But at the time of registration he must produce "a certificate from under the hand of the parson, minister, magistrate, or otherwise," attested by "six persons at least met and congregated at such religious meateing" where the ceremony took place. For neglecting to file the certificate the register forfeits his office.[791]
The Church of England was established by law in 1704. In the act for that purpose it is declared that "no justice or magistrate, being a layman, shall presume to join any persons in marriage, under penalty of one hundred pounds currant money of this province." Vestries are to provide a fit person as register of births, christenings, marriages, and burials, except those of "negroes, Mullatoes, and Indian slaves;" and a fine is prescribed for wedding contrary to the table of forbidden degrees.[792] All these provisions are repeated in the new act of 1706 for the "establishment of religious worship" in the province.[793] Six years thereafter the full text of the law of Henry VIII., "for marriages to stand notwithstanding Pre-Contracts" is adopted; and it appears again and again in the statute book until recent days.[794]
No further important change was made in the law before the Revolution. The act of 1706, giving a monopoly of the business of solemnizing matrimony to the established clergy, remained nominally in force. A fine could be levied for neglect of its provisions. But in the "Up" or "Back" country it was quietly disregarded; and, apparently without a contest, custom sanctioned the optional civil ceremony or optional ecclesiastical rites according to the usage of each denomination. "In the early stages of our juridical and civil history," says Brevard, "the laws of the province on this subject were in conformity to the English; but as the population ... encreased by emigrants from all countries, and of different religious denominations, this adherence to Episcopal regulations and forms was gradually relaxed, and at length generally disregarded." The church act of 1706, he adds, must have gone into "effectual and general operation." But, except partially, "it seems never to have extended farther than about sixty miles from Charleston."[795]
What has just been said regarding South Carolina applies equally to Georgia, whose territory had belonged to South Carolina since the original grant of 1663. But the charter issued to James Oglethorpe and his associates in 1732 expressly abrogates the laws of the parent colony,[796] and gives the power to enact new laws to the corporation of associates as trustees for the colony. The Episcopal system was introduced, but it was not rigidly enforced. The charter to Oglethorpe "guaranteed liberty of conscience to all except papists,[797] and the spirit exhibited in ecclesiastical legislation was one of toleration. Hence a considerable Puritan element was drawn to the Colony."[798] The preamble of the act of 1785 shows that it had been the custom for justices, ministers, and "preachers of the gospel" to solemnize marriage. Such marriages are made valid and the practice legalized for the future.[799]
It appears, then, that throughout the southern colonies matrimonial legislation was tending in the same direction. Everywhere, except in Maryland, the optional civil ceremony was legally or practically recognized, though under various restrictions. Marriage was already a civil contract of mutual partnership; and, notwithstanding an occasional invalidating clause for neglect of the prescribed forms, the common-law marriage by mutual consent was probably valid, though, so far as it appears, the records of the provincial courts are almost entirely silent on that question.[800] In short, in its principal elements, throughout the South matrimonial law had reached or was strongly tending toward the existing American type.
CHAPTER XIV
OPTIONAL CIVIL OR ECCLESIASTICAL MARRIAGE IN THE MIDDLE COLONIES
[Bibliographical Note XIV.—The New York Colonial MSS., of more service for the history of divorce, afford several important documents available for the present chapter. The use of these papers is facilitated by O'Callaghan's Calendar of Historical Manuscripts (Albany, 1866). Among the treasures also preserved in the State Library at Albany may be found the MS. copy of the Dongan Laws, including the marriage act of 1684 concerning which there has been much discussion; and some forty volumes of MSS. Marriage License Bonds, of interest to the genealogist and historian. The use of these is made easier by the published Names of Persons for Whom Marriage Licenses Were Issued by the Secretary of the Province of New York, Previous to 1784 (Albany, 1860), to which O'Callaghan has given an Introduction.
The most important source for the province is the Documents Relating to the Colonial History of New York (Albany, 1856-83), edited by O'Callaghan and Fernow. Original material may also be found in the Records of New Amsterdam (New York, 1897); Munsell's Annals of Albany (Albany, 1850-59); the same compiler's Collections on the History of Albany (Albany, 1865-71); and Valentine's Manual of the Corporation of the City of New York (New York, 1843 ff.). For the Dutch period we have O'Callaghan's Laws and Ordinances (Albany, 1868); for the proprietary government, "The Duke of Yorke's Book of Laws," in Linn's Charter and Laws (Harrisburg, 1879); earlier in Vol. I of the Collections of the New York Historical Society for the Year 1809 (New York, 1811); and recently in Vol. I of the Colonial Laws of New York (Albany, 1894), while the last-named collection covers the period of the royal province, and is enriched by Cumming's Historical Note and his comments on the various statutes and papers. The celebrated "Lauderdale Peerage Case," so important for understanding the marriage law of New York for the period between 1691 and 1772, may be found in the English Law Reports, X (London, 1885); and also abridged in Cook, Reports of Cases Decided by the English Courts, XXXVII (Albany, 1887). In connection with this case several members of the American bar submitted written opinions, and three of those published are in the New York State Library: see Fowler, Letter and Opinion (New York, May 11, 1885); Seward, Answers to the Interrogations of Brodie and Sons (New York, June, 1885); and Webster, Opinion on the Law of Marriage in the Colony of New York (New York, May 26, 1885). But far more conclusive than the views of the witnesses and expert advisers called at the trial is the remarkable paper of Rev. John Rodgers, found in the cabinet of President Stiles by the historian Holmes, entitled "A brief view of the state of religious liberty in New York 1773," in 2 Mass. Hist. Coll., I (Boston, 1838).
For the history of bundling, besides the mention in Valentine's Manual, should be consulted the case of Seger v. Slingerland in Caine's Reports, II (New York and Albany, 1860), where the custom was judicially considered; also Lamb, History of the City of New York (New York and Chicago, 1877); and especially Stiles, Bundling (Albany, 1871). Stiles, History of the City of Brooklyn (Brooklyn, 1867-70), gives an account of the restrictions put on the remarriage of widows in the old Dutch wills; and there are some notices of marriage law and customs in Grant, Memoirs of an American Lady (New York, 1809); Weise, History of the City of Albany (Albany, 1884); Watson, Annals and Occurrences of New York City and State (Philadelphia, 1846); Vanderbilt, Social History of Flatbush (New York, 1882; new ed., 1899); Ostrander, History of the City of Brooklyn and King's County (Brooklyn, 1894); Gerard, The Old Stadt Huys of New Amsterdam (New York, 1875); Hazard, Annals of Pennsylvania (Philadelphia, 1850); and especially Earle's Colonial Days in Old New York (New York, 1896). In 1786 a brief account of wedding customs in New York state was given by Hannah Thompson, "Letters," in Pa. Mag. of Hist. and Biog., XIV (Philadelphia, 1890); and in 1748 the governor's lucrative monopoly of marriage-license fees is described by the Swedish botanist Kalm, Travels in North America (Warrington, 1770): see Hart, Source-Book of American History (New York, 1899), extract 50. Cook, "The Marriage Celebration in the Colonies," Atlantic, LXI (Boston, 1888), discusses the subject for the middle provinces; and for the historical background Brodhead, History of the State of New York (New York, 1853-71); O'Callaghan, History of New Netherland (2d ed., New York, 1855); Friedberg, Eheschliessung (Leipzig, 1865); and his Geschichte der Civilehe (Hamburg, 1877), have been of most service.
For New Jersey, Leaming and Spicer, Grants, Concessions, and Original Constitutions (2d ed., Philadelphia, 1881), is of first-rate importance. This collection is supplemented by the documents in New Jersey Archives (Newark, 1880-86); and Smith, History of the Colony of Nova-Caesaria or New Jersey (Burlington, 1765; reprint, 1877); while the law of 1719 may be found in Acts of the General Assembly (Woodbridge, 1752); or in Allinson, Acts of the General Assembly, 1702-1776 (Burlington, 1776).
The early legislation of Pennsylvania is contained in Linn's convenient Charter to William Penn, and Laws of the Province of Pa., 1682-1700 (Harrisburg, 1879), which is supplemented by Nead's valuable Historical Notes. Some illustrations of judicial and administrative proceedings have been gleaned from the Colonial Records of Pa. (Harrisburg, 1838-53); and the marriage laws enacted from 1700 onward are cited in Carey and Bioren, Laws (Philadelphia, 1803); the Laws of the Commonwealth of Pa., 1700-1810 (Philadelphia, 1810); and Pepper and Lewis, Digest (Philadelphia, 1896). For the doctrines of the Friends one must go to the founder. William Penn's Select Works (1 vol. fol., London, 1771; 5 vols., 8vo, London, 1782) are a mine Of information on every phase of Quaker teaching; and the same is true of William Sewel's History of the Rise, Increase, and Progress of the Christian People called Quakers (original Dutch ed., Amsterdam, 1717; first English ed., London, 1722), a work whose scrupulous accuracy has never been impeached. On the other hand, for the false charges brought against the Friends by their orthodox antagonists one should read Thomas Underhill, Hell broke loose: or an History of the Quakers Both Old and New (London, 1660), who has raked together scandals of every description; Nathaniel Smith, The Quaker's Spiritual Court (London, 1668); and Gerard Croese, Historia quakeriana (Amsterdam, 1695; English ed., London, 1696), the book whose errors called forth Sewel's History. More recently Quaker rites and wedding customs have been described by Watson, Annals of Philadelphia (last ed., Philadelphia, 1881); Hallowell, Quaker Invasion of Mass. (Boston, 1883); Applegarth, "Quakers in Pennsylvania," J. H. U. S., X (Baltimore, 1892); and in a lively sketch, drawn mainly from records of the Monthly Meeting, by Earle, "Among Friends," in New England Magazine, XIX (Boston, 1898). There is a typical Quaker marriage certificate of 1692 in Vol. XIII of the Pa. Mag. of Hist, and Biog. (Philadelphia, 1889). A brief summary of the matrimonial laws of the colony may be found in Gordon, History of Pennsylvania (Philadelphia, 1829).]