A History of Matrimonial Institutions, Vol. 2 of 3

by George Elliott Howard

The attempt to force the rites of the English church and the jurisdiction of the bishop of London on the people of New Jersey proved a failure. So, March 27, 1719, a new act appears, which shows that serious abuses, notably in the issue of licenses, must have existed during the orthodox rule. "Whereas of late Years," says the preamble, "several Young Persons have been, by the Wicked Practices of evil disposed Persons, and their Confederates, inticed, inveigled and deluded, led away and clandestinely so Married," to the "great Grief of their Parents and Relatives," it is therefore enacted that, under forfeit of five hundred pounds, no license shall be granted to a person under twenty-one years of age without consent of the parent or guardian, "signified by a certificate in writing" under his hand; which certificate must be filed in the office of the secretary of the province. The person presenting the certificate of parental consent, before issue of license, must "take an Oath upon the Four Holy Evangelists, of Almighty God, or if really of Tender Conscience, shall make a Solemn Affirmation and Declaration," that it is genuine; and besides, as in New York, he is required to execute a bond to the governor, with two sufficient sureties, in the penal sum of five hundred pounds.[905] In case of celebration by banns instead of license the procedure is the same. The certificate of consent must be presented by the persons to the clerk of the peace or to the county clerk; they must take the oath on the evangelists, and execute a bond of the same tenor as that already described. Thereupon the clerk, within fourteen days, "shall affix a Writing in a fair legible Hand, in the English Tongue, at three the most publick Places in said County, setting forth the Persons names, Places of Abode, and Intentions of Marriage." All religious societies may celebrate according to their own rites; and by implication ministers of the gospel, justices of the peace, and "others" may perform the ceremony.[906]

At this point legislation rested. No further change was made in the matrimonial law of New Jersey until long after the Revolution.[907] However, in 1765 a vain attempt was made by the Episcopal clergy, though a small minority in the province, to monopolize the income derived from the celebration of marriages on the governor's license, showing that they were not less greedy nor selfish than were their brethren of New York seventeen years before. In a letter to the Lords of Trade the "Bishop of London at the request of the clergy of ... New Jersey begs leave to represent, ... that by an old Law the Licences for Marriages are directed to any Protestant Minister or Justice of the Peace, which however necessary at the first Establishment of the Colony to facilitate Marriages, when there were few Ministers in the Country, seems at present not only prejudicial to the clergy, who are depriv'd of a considerable part of their Income, but gives occasion to many Inconveniences and abuses." It appears, as the letter further shows, that in 1760 the clergy petitioned Governor Boone to "alter the Direction of the Licences." The petition was declined on the ground that authority to make the change belonged to the Lords of Trade on application of the bishop of London. The request being now made to the bishop, the latter hopes that the lords "will take the matter into Consideration, and if they see no particular Objections will give their Instructions to the Governor of that Province, that for the future Marriage Licences may be directed only to a Protestant Minister of the Gospel." The Bishop's communication was forwarded by the Lords of Trade to Governor Franklin of New Jersey, with a sensible letter in which certain pertinent questions are so forcibly raised as seemingly to bring the correspondence to a speedy end. Their lordships see no objection to what the bishop proposes, "if there is no Law in force by which the Civil Magistrate is authorized to perform the Marriage Rites, or if long usage and custom has not established such a practice." But they add, "as it does not appear to Us from any Information we can collect here, how the case stands in respect to this matter, we desire you will by the first opportunity acquaint Us, whether the civil Magistrates in New Jersey do or do not perform those Ceremonies; and if they do; whether it is by virtue of any declared Law or by usage only; and if the latter, whether such practice may in your opinion be altered in the manner proposed by the Bishop of London without Inconvenience or Complaint."[908]

It is evident what a truthful answer from the governor must have been; but we hear no more of the matter.

b) Law and custom in Pennsylvania and Delaware.—It was one of the many false charges originally brought against the Quakers by their orthodox adversaries that they did not celebrate marriage in an orderly and decent way. They were even accused of repudiating the marital relation and of indulging on principle in licentious conduct.[909] There is no ground whatever for such slanders, unless the rejection of the ring, with the peculiar observances of the English church, and the insistence that marriage, as a divine ordinance, is a matter between man and his own conscience, in which the priest shall have nothing to do, may be counted a justification. The Quakers always held the institutions of marriage and the family in great esteem. From the beginning they have exacted due publicity in the celebration which was attended by a modest, though devout and severe, ceremonial. So important, indeed, was the nuptial contract in their eyes, as will presently appear, that the Pennsylvania Friends were too much inclined to extravagant display in the wedding festivities. One may well marvel what was Masson's notion of a religious rite when he wrote that the Quakers "had no religious ceremony in sanction of marriage."[910] "Professor Masson, as his context proves, had ample opportunity to avoid this blunder, and it can only be accounted for on the theory that his mind is prejudiced by the still popular notion that the presence and offices of an ordained minister are necessary to make a marriage ceremony religious and to secure the Divine sanction of the nuptial rites. The Quakers thought otherwise. They repudiated the claims of the clergy, and believed that God alone can join men and women in the solemn covenant."[911]

From their founders we may learn their doctrine of matrimony. "We marry none," says George Fox, "but are witnesses of it; marriage being God's joining not man's."[912] In harmony with this is Penn's declaration that the Quakers believe marriage to be "an ordinance of God, and that God only can rightly join men and women" in wedlock.[913] Elsewhere he declares that ceremonies the Friends "have refused not out of humor, but conscience reasonably grounded; inasmuch as no Scripture-example tells us, that the priest had any other part, of old time, than that of a witness among the rest, before whom the Jews used to take one another; and therefore this people look upon it as an imposition, to advance the power and the profits of the clergy; and for the use of the ring, it is enough to say, that it was an heathenish and vain custom, and never practiced among the people of God, Jews or primitive Christians."[914] Again, he claims that wedlock is a union which should only grow out of mutual inclination. "Never marry but for love," is his advice, "but see that thou lovest what is lovely."[915] Similar evidence is given by Sewel, the Quaker historian. "In their Method of Marriage," he says, "they also depart from the common Way: For in the Old Testament they find not that the Joyning of a Couple in Marriage ever was the Office of a Priest, nor in the Gospel any Preacher among Christians appointed thereto. Therefore it is their Custom, that when any intend to enter into Marriage, they first having the Consent of Parents or Guardians, acquaint the respective Mens and Womens Meetings of their Intention, and after due Enquiry, all Things appearing clear, they in Publick Meeting solemnly take each other in Marriage, with a Promise of Love and Fidelity, and not to leave one another before Death separates them. Of this a Certificate is drawn, mentioning the Names and Distinctions of the Persons thus joyned, which being first signed by themselves, those then that are present sign as witnesses."[916]

Commenting on this passage, Hallowell says: "This custom is still in force, and with some unimportant verbal amendments, the phraseology of early Friends is still preserved. After an appropriate silence, the groom and bride rise, and taking each other by the hand, each in turn repeats, 'In the presence of the Lord and this assembly, I take thee to be my wife (or husband), promising, with Divine assistance to be unto thee a loving and faithful husband (or wife) until death shall separate us.' For religious solemnity and tender, touching simplicity, the Quaker marriage ceremony has always challenged comparison, and if anyone desires to feel and realize the presence of God in a public or private gathering, let him attend a Quaker wedding."[917]

These principles are revealed in the early legislation for Pennsylvania; for, while believing it an ordinance of God, the Friends held that the regulation and protection of marriage belong to the civil authority. In the "Laws agreed upon in England" May 5, 1682, it is provided "that all marriages (not forbidden by the law of God, as to nearness of blood and affinity ...) shall be encouraged; but the parents or guardians shall be first consulted, and the marriage shall be published before it be solemnized, and it shall be solemnized by taking one another as husband and wife, before credible witnesses, and a certificate of the whole, under the hands of parents and witnesses, shall be brought to the proper register of that county, and shall be registered in his office."[918]

This is a clear statement of the desires of the proprietor and his associates. Accordingly in a law enacted by the assembly in December, 1683, there is a provision regarding marriage only differing in details from the declaration made beyond the sea. The purpose of the act, as expressed in the preamble, is "to prevent Clandestine, Loose, and unseemly proceedings" in the province and its "territories." As before, marriage is to be encouraged; parental consent is required; the parties must clear themselves "from all other engagements assured by a Certificate from some Credible persons where they have lived;" affix their "intentions of Marriage on the Court, or Meeting-house Door of the County where they Dwell, one Month before the solemnization thereof;" the marriage shall be celebrated "by taking one another as husband and wife, before Sufficient Witnesses;" and a "certificate of the whole under the hands of parties and witnesses (at least twelve,) shall be brought to the Register of the County" where the marriage takes place and be with him filed for record. For neglect of the requirements of law the parties are to be fined ten pounds, and the "person so joining others in Marriage" twice that amount.[919] The "Great Law" of 1682, punishes adultery severely, sanctions divorce for that offense,[920] and contains the declaration, unique since old English days, that "no person, be it either widower or widow, shall contract marriage, much less marry, under one year after the decease of his wife or her husband."[921]