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Title: A History of Matrimonial Institutions, Volume 2 (of 3)
Author: Howard, George Elliott
Language: English
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       *       *       *       *       *



  A HISTORY OF

  MATRIMONIAL INSTITUTIONS

  CHIEFLY IN ENGLAND AND THE UNITED STATES WITH AN INTRODUCTORY
  ANALYSIS OF THE LITERATURE AND THE
  THEORIES OF PRIMITIVE MARRIAGE
  AND THE FAMILY


  BY

  GEORGE ELLIOTT HOWARD PH.D.

  PROFESSORIAL LECTURER IN THE UNIVERSITY OF CHICAGO AUTHOR OF "LOCAL
  CONSTITUTIONAL HISTORY OF THE UNITED STATES"


  VOLUME TWO


  CHICAGO
  THE UNIVERSITY OF CHICAGO PRESS
  CALLAGHAN & COMPANY

  LONDON
  T. FISHER UNWIN, PATERNOSTER SQUARE
  1904



  COPYRIGHT 1904
  THE UNIVERSITY OF CHICAGO

  Entered at Stationers' Hall

  MAY, 1904



  TO

  Alice Frost Howard

  HER HUSBAND DEDICATES THIS BOOK IN
  GRATEFUL RECOGNITION OF HER
  AID IN MAKING IT



ANALYTICAL TABLE OF CONTENTS



  VOLUME ONE

  PART I

  ANALYSIS OF THE LITERATURE AND THE THEORIES OF PRIMITIVE
  MATRIMONIAL INSTITUTIONS

                                                           PAGES

  CHAPTER I. THE PATRIARCHAL THEORY                         3-32

  I. Statement of the Theory                                9-13

  II. Criticism of the Theory by Spencer and McLennan      14-17

  III. The Theory in the Light of Recent Research          18-32


  CHAPTER II. THEORY OF THE HORDE AND MOTHER-RIGHT         33-89

  I. Bachofen and His Disciples                            39-65

  II. Morgan's Constructive Theory                         65-76

  III. McLennan's Constructive Theory                      77-89


  CHAPTER III. THEORY OF THE ORIGINAL PAIRING OR
      MONOGAMOUS FAMILY                                   89-151

  I. The Problem of Promiscuity                           90-110

  II. The Problem of Mother-Right                        110-117

  III. The Problem of Exogamy                            117-132

  IV. The Problem of the Successive Forms of the Family  132-151


  CHAPTER IV. RISE OF THE MARRIAGE CONTRACT              152-223

  I. Wife-Capture and the Symbol of Rape                 156-179

  II. Wife-Purchase and Its Survival in the Marriage
      Ceremony                                           179-201

  III. The Antiquity of Self-Betrothal or Free Marriage  201-210

  IV. Primitive Free Marriage Surviving with Purchase,
      and the Decay of the Purchase-Contract             210-223


  CHAPTER V. EARLY HISTORY OF DIVORCE                    224-250

  I. The Right of Divorce                                224-240

  II. The Form of Divorce                                240-241

  III. The Legal Effects of Divorce                      241-247

  IV. Frequency of Divorce                               247-250


  PART II

  MATRIMONIAL INSTITUTIONS IN ENGLAND


  CHAPTER VI. OLD ENGLISH WIFE-PURCHASE YIELDS TO
    FREE MARRIAGE                                        253-286

  I. The Primitive Real Contract of Sale and Its
         Modifications                                   258-276

  II. Rise of Free Marriage: Self-_Beweddung_ and
      Self-_Gifta_                                       276-286


  CHAPTER VII. RISE OF ECCLESIASTICAL MARRIAGE: THE
      CHURCH ACCEPTS THE LAY CONTRACT AND CEREMONIAL     287-320

  I. The Primitive Christian Benediction, the Bride-Mass,
      and the Celebration _ad Ostium Ecclesiae_          291-308

  II. The Priest Supersedes the Chosen Guardian, and
      _Sponsalia per Verba de Praesenti_ Are Valid       308-320


  CHAPTER VIII. RISE OF ECCLESIASTICAL MARRIAGE: THE
      CHURCH DEVELOPS AND ADMINISTERS MATRIMONIAL
      LAW                                                321-363

  I. The Early Christian Doctrine and the Rise of the
      Canonical Theory                                   324-340

  II. Clandestine Marriages the Fruit of the Canonical
      Theory                                             340-349

  III. The Evils of the Spiritual Jurisdiction           351-359

  IV. Publicity Sought through Banns and Registration    359-363


  CHAPTER IX. THE PROTESTANT CONCEPTION OF MARRIAGE      364-403

  I. As to the Form of Marriage                          370-386

  II. As to the Nature of Marriage                       386-399

  III. Child-Marriages in the Age of Elizabeth           399-403


  CHAPTER X. RISE OF CIVIL MARRIAGE                      404-473

  I. Cromwell's Civil Marriage Act, 1653                 408-435

  II. Fleet Marriages and the Hardwicke Act, 1753        435-460

  III. The Present English Law                           460-473


  VOLUME TWO

  PART II--_Continued_


  CHAPTER XI. HISTORY OF SEPARATION AND DIVORCE UNDER
      ENGLISH AND ECCLESIASTICAL LAW                       3-117

  I. The Early Christian Doctrine and the Theory of
      the Canon Law                                        11-60

  _a_) Historical Elements of the Christian Teaching       11-23
  _b_) Views of the Early Fathers                          23-28
  _c_) The Legislation of the Christian Emperors           28-33
  _d_) The Compromise with German Custom                   33-46
  _e_) Final Settlement of the Christian Doctrine in
      the Canon Law                                        47-60

  II. The Protestant Doctrine of Divorce                   60-85

  _a_) Opinions of Luther and the Continental Reformers    60-71
  _b_) Opinions of the English Reformers                   71-85

  III. Law and Theory during Three Centuries              85-117

  _a_) The Views of Milton                                 85-92
  _b_) Void and Voidable Contracts                        92-102
  _c_) Parliamentary Divorce                             102-109
  _d_) The Present English Law                           109-117


  PART III

  MATRIMONIAL INSTITUTIONS IN THE UNITED STATES


  CHAPTER XII. OBLIGATORY CIVIL MARRIAGE IN THE NEW
      ENGLAND COLONIES                                   121-226

  I. The Magistrate Supersedes the Priest at the
      Nuptials                                           125-143

  II. Banns, Consent, and Registration                   143-151

  III. Courtship, Proposals, and Government of Single
      Persons                                            152-169

  IV. Pre-contracts, Bundling, and Sexual Immorality     169-200

  V. Breach of Promise and Marriage Portions             200-209

  VI. Self-_Gifta_, Clandestine Contracts, and Forbidden
      Degrees                                            209-215

  VII. Slave-Marriages                                   215-226


  CHAPTER XIII. ECCLESIASTICAL RITES AND THE RISE OF
      CIVIL MARRIAGE IN THE SOUTHERN COLONIES            227-263

  I. The Religious Ceremony and Lay Administration
      in Virginia                                        228-239

  II. Optional Civil Marriage and the Rise of Obligatory
      Religious Celebration in Maryland                  239-247

  III. The Struggle for Civil Marriage and Free
      Religious Celebration in North Carolina            247-259

  IV. Episcopal Rites by Law and Free Civil or Religious
      Celebration by Custom in South Carolina and
      Georgia                                            260-263


  CHAPTER XIV. OPTIONAL CIVIL OR ECCLESIASTICAL MARRIAGE
      IN THE MIDDLE COLONIES                             264-327

  I. New York                                            266-308

  _a_) Law and Custom in New Netherland                  267-284
  _b_) Law and Custom under the Duke of York             284-296
  _c_) Law and Custom in the Royal Province              296-308

  II. New Jersey, Pennsylvania, and Delaware             308-327

  _a_) Law and Custom in New Jersey                      308-315
  _b_) Law and Custom in Pennsylvania and Delaware       315-327


  CHAPTER XV. DIVORCE IN THE AMERICAN COLONIES           328-387

  I. In New England                                      330-366

  _a_) Massachusetts                                     330-348
  _b_) New Hampshire, Plymouth, and New Haven            348-353
  _c_) Connecticut                                       353-360
  _d_) Rhode Island                                      360-366

  II. English Divorce Laws in Abeyance in the Southern
      Colonies                                           366-376

  Arbitration and Divorce in the Middle Colonies         376-387


  CHAPTER XVI. A CENTURY AND A QUARTER OF MARRIAGE
      LEGISLATION IN THE UNITED STATES, 1776-1903        388-497

  I. The New England States                              388-408

  _a_) Solemnization                                     389-395
  _b_) Forbidden Degrees: Void and Voidable Marriages    395-401
  _c_) Certificate and Record                            401-408

  II. The Southern and Southwestern States               408-452

  _a_) Solemnization                                     409-427
  _b_) Forbidden Degrees: Void and Voidable Marriages    427-441
  _c_) Certificate and Record                            441-452

  III. The Middle and the Western States                 452-497

  _a_) Solemnization                                     452-470
  _b_) Forbidden Degrees: Void and Voidable Marriages    470-481
  _c_) Certificate and Record                            481-497


  VOLUME THREE

  PART III--_Continued_

  CHAPTER XVII. A CENTURY AND A QUARTER OF DIVORCE
      LEGISLATION IN THE UNITED STATES                     3-160

  I. The New England States                                 3-30

  _a_) Jurisdiction: Causes and Kinds of Divorce            4-18
  _b_) Remarriage, Residence, Notice, and Miscellaneous
      Provisions                                           18-28
  _c_) Alimony, Property, and Custody of Children          28-30

  II. The Southern and Southwestern States                 31-95

  _a_) Legislative Divorce                                 31-50
  _b_) Judicial Divorce: Jurisdiction, Kinds, and Causes   50-79
  _c_) Remarriage, Residence, Notice, and Miscellaneous
      Provisions                                           79-90
  _d_) Alimony, Property, and Custody of Children          90-95

  III. The Middle and the Western States                  96-160

  _a_) Legislative Divorce      96-101
  _b_) Judicial Divorce: Jurisdiction, Kinds, and Causes 101-144
  _c_) Remarriage, Residence, Notice, and Miscellaneous
      Provisions                                         145-160


  CHAPTER XVIII. PROBLEMS OF MARRIAGE AND THE FAMILY     161-259

  I. The Function of Legislation                         167-223

  _a_) The Statutes and the Common-Law Marriage          170-185
  _b_) Resulting Character of Matrimonial Legislation    185-203
  _c_) Resulting Character of Divorce Legislation        203-223

  II. The Function of Education                          223-259

  BIBLIOGRAPHICAL INDEX                                  263-402

  I. Early History of Matrimonial Institutions           264-291

  II. Matrimonial Institutions in England and under
      Germanic and Canon Law                             291-339

  III. Matrimonial Institutions in the United States     339-355

  _a_) Manuscripts                                       339-340
  _b_) Books and Articles                                340-355

  IV. Problems of Marriage and the Family                355-396

  V. Session Laws and Collected Statutes Used in Chapters
      XVI-XVIII                                          396-402

  CASE INDEX                                             405-411

  SUBJECT INDEX                                          413-449



  PART II

  MATRIMONIAL INSTITUTIONS IN ENGLAND

  CONTINUED



CHAPTER XI

HISTORY OF SEPARATION AND DIVORCE UNDER ENGLISH AND ECCLESIASTICAL
LAW


     [BIBLIOGRAPHICAL NOTE XI.--For divorce among the Athenians
     Meier and Schömann's _Der attische Process_ (Berlin, 1883-87)
     is important. Assistance has also been given by Hruza,
     _Ehebegründung nach att. Rechte_ (Leipzig, 1892); _idem_,
     _Polygamie und Pellikat_ (Leipzig, 1894); and Müller and
     Bauer, "Die griech. Privat- und Kriegsalterthümer" (1893), in
     Müller's _Handbuch_. The Hebrew law on the subject is well
     treated by Mielziner, _The Jewish Law of Marriage and Divorce_
     (Cincinnati, 1884); and especially by Amram, in his excellent
     _Jewish Law of Divorce_ (Philadelphia, 1896). In his "Divorce
     on Condition," in the _Green Bag_, III, August, 1891, the
     last-named writer has described a curious device for escaping
     marriage with a brother-in-law and employed also in cases of
     long absence. Besides the works of Stubbe, Duschak, Döllinger,
     and Lichtschein, elsewhere noticed, see Selden, _Uxor ebraica_
     (Frankfort, 1673), or the same in his _Opera_, II (London,
     1726); Fraenkel, _Grundlinien des mosaisch-talmud. Eherechts_
     (Breslau, 1860); Saalschuetz, _Das mosaische Recht_ (2d ed.,
     Berlin, 1853); and Meyer, _Die Rechte der Israeliten, Athener,
     und Römer_ (Leipzig, 1862-66).

     The leading work on Roman divorce is Wächter's _Ueber die
     Ehescheidungen_ (Stuttgart, 1821). There is also a good account
     in the seventh and eighth chapters of Hasse's _Das Gütterrecht
     der Ehegatten nach röm. Recht_ (Berlin, 1824). Savigny has an
     article on "Die erste Ehescheidung in Rom," in _Abhandlungen der
     könig. Akad. der Wiss. in Berlin, 1814-16_ (Berlin, 1818). Very
     important also is Rein, _Das röm. Privatrecht_ (Leipzig, 1836);
     and on divorce in connection with the alleged depravation of
     morals at the close of the republic there is a fine passage in
     Lecky, _European Morals_ (3d ed., New York, 1881). The subject
     is treated by Marche, _Historia juris civilis de divortiis_
     (Leipzig, 1764); Langeron, _Du divorce en droit romain_ (Paris,
     1857); Morael, _Droit romain: du divorce_ (Paris, 1888); and
     Combier, _Du divorce en droit romain_ (Paris, 1880). Esmein,
     _Mélanges_ (Paris, 1886), has a chapter dealing in part with
     Roman divorce; and in the same volume may be found the best
     existing treatment of adultery in connection with the _Lex Julia
     de adulteriis_. With other matter this law is also considered by
     Gessert, _Ad leg. Jul. de adult. coerc._ (Würtemberg, 1795);
     Haupt, _De poena adulterii ex leg. Jul._ (Leipzig, 1797); Jörs,
     _Die Ehegesetze des Augustus_ (Marburg, 1894); and Bennecke in
     his able monograph _Die strafrechtliche Lehre vom Ehebruch_
     (Marburg, 1884), bringing the general history of his subject
     down to the middle of the fifteenth century. In this connection
     have likewise been of service Sohm's _Institutes_ and the works
     of Fustel de Coulanges, Hölder, Rossbach, Karlowa, Unger, Maine,
     Marquardt, and Zhishman elsewhere described. The ground of the
     chapter is mainly covered by Woolsey, _Divorce and Divorce
     Legislation_ (2d ed., New York, 1882); and Glasson, _Le mariage
     civil et le divorce_ (2d ed., Paris, 1880); as also by the
     general works of Popp, _Ehescheidung_ (Amberg and Sulzbach,
     1800); Tissot, _Le mariage, la séparation et le divorce_ (Paris,
     1868); Thwing, _The Family_ (Boston, 1887); Gide, _La femme_
     (2d ed., Paris, 1885); Scheurl, _Das gemeine deutsche Eherecht_
     (Erlangen, 1882); and there is a concise historical account by
     Friedericus, _De divortio meditationes_ (Leipzig, 1842).

     For the origin and early development of the Christian doctrine,
     besides the Scriptures, the principle sources are, of course,
     the writings of the Fathers and the provisions of the first
     ecclesiastical councils. The most important monograph is
     Geffcken's _Zur Geschichte der Ehescheidung vor Gratian_
     (Leipzig, 1894). The subject is treated in Moy, _Das Eherecht
     der Christen_ (Regensburg, 1833). There is a good account by
     Loening, _Geschichte des deutschen Kirchenrechts_ (Strassburg,
     1878); and another by Meyrick in his article "Marriage," in
     the second volume of the _Dict. of Christ. Antiquities_. The
     rigid theological point of view is taken by Watkins, _Holy
     Matrimony_ (London, 1895); and Luckock, _History of Marriage_
     (London, 1894). Among similar works, mainly controversial,
     may be consulted Ap Richard, _Marriage and Divorce_ (London,
     1888); Caverno, _Treatise on Divorce_ (Madison, 1889); Hovey,
     _The Scriptural Law of Divorce_ (Philadelphia, 1866); Greve,
     _Die Ehescheidung nach der Lehre des Neuen Testamentes_
     (Leipzig, 1873); and the anonymous _Ueber den einzig wahren
     Ehescheidungsgrund in der christ. Kirche_ (Bayreuth, 1838).
     Standard Catholic treatises are Cigoi, _Die Unauflösbarkeit
     der christ. Ehe_ (Paderborn, 1895); Didon, _Indissolubilité
     et divorce_ (4th ed., Paris, 1880); or the German translation
     of the same by Schneider (Regensburg, 1893); Roskovány, _De
     matrimonio in eccle. cath._ (Augustae Vindelicorum, 1837);
     Scheicher-Binder, _Praktisches Handbuch des kath. Eherechts_
     (4th ed., Freiburg, 1891); and especially Perrone, _De
     matrimonio christ._ (Leodii, 1861). Pompen has a special
     _Tractatus de dispensationibus et de revalidatione mat._ (2d
     ed., Amsterdam, 1897).

     On Germanic law and custom see Tacitus's _Germania_; the
     _Monumenta Germaniae Historica_; and the collections of Thorpe,
     Schmid, and Liebermann. Heussler's _Institutionen_, Weinhold's
     _Deutsche Frauen_, Grimm's _Rechtsalterthümer_, Brunner's
     _Rechtsgeschichte_, and the similar works of Schroeder,
     Zoepfl, and Walter have all been consulted. The penitentials,
     containing evidence of compromise between Teutonic usage and
     the strict dogmas of the church, may be found in Thorpe,
     _Ancient Laws_; Haddan and Stubbs, _Councils_; Wasserschleben,
     _Bussordnungen_ (Halle, 1851); and Schmitz, _Bussbücher_
     (Mayence, 1883). These have largely superseded the older
     works of Kuntsmann, _Die lateinischen Poenitentialbücher der
     Angelsachsen_ (Mayence, 1844); and Hildebrand, _Untersuchungen
     über die germ. Poenitentialbücher_ (Würzburg, 1851). The
     penitentials are analyzed by Bennecke, Esmein, and Freisen; also
     by Hinschius, "Das Ehescheidungsrecht nach den angelsäch. und
     frank. Bussordnungen," in _Zeitschrift für deutsches Recht_,
     XX; and Rosenthal, _Die Rechtsfolgen des Ehebruchs nach kan.
     und deutsch. Recht_ (Würzburg, 1880). In this connection may
     also be read Heller, _Ueber die Strafe des Ehebruchs_ (Ulm,
     1773); Wächter, _Abhandlungen aus dem Strafrechte_ (Leipzig,
     1835), I, dealing with _Entführung_ and _Nothzucht_; Wilda,
     _Strafrecht_ (Halle, 1842); and Pollen, _Fatal Consequences of
     Adultery_ (London, 1772), giving literary and other curiosities
     of the subject. A useful book is Boehmer's _Ueber die Ehegesetze
     im Zeitalter Karls des Grossen_ (Göttingen, 1826), discussing
     the inconsistency of temporal and ecclesiastical legislation
     regarding divorce; as is also Sdralek's _Hinkmars Gutachten über
     die Ehescheidung des Königs Lothar II._ (Freiburg, 1881).

     Primary sources for the settlement of the canon law on the
     subject of divorce are the _Decretum_ of Gratian and the other
     materials comprised in Richter-Friedberg's _Corpus juris
     canonici_. For England Johnson's _Canons_ and Godolphin's
     _Repartorium canonicum_ (3d ed., London, 1687) are serviceable.
     The state of the law in the age of the decretalists may
     be learned from Wunderlich's edition of Tancred's _Summa
     de matrimonio_ (Göttingen, 1841); and for its historical
     development the great works of Esmein and Freisen, elsewhere
     mentioned, are indispensable. Schulte's _Lehrbuch_ and the
     _Lehrbuch_ of Friedberg cover the subject. In connection with
     the rise of the jurisdiction of the church should be read Sohm,
     "Die geist. Gerichtsbarkeit im frank. Reich," in _ZKR._, IX
     (Tübingen, 1870). For the matrimonial experiences of Margaret
     of Scotland, illustrating the facility of divorce by indirect
     methods under the canon law, see Tait's article in the _Dict. of
     Nat. Biog._, XXXVI; and similar material in the _Reports of the
     Historical Manuscripts Commission_. For the literature relating
     to the Council of Trent consult Bibliographical Note VII.

     The foundation of the Protestant doctrine of divorce was laid by
     Martin Luther. His writings on the subject may, of course, be
     found in his collected works mentioned in Bibliographical Note
     IX; or in the source-book of Strampff, _Luther: Ueber die Ehe_
     (Berlin, 1857); while the more important papers are reprinted
     in Vol. II of the _Kleinere Schriften Dr. Martin Luthers: von
     Ehe- und Klostersachen_ (Bielefeld and Leipzig, 1877). An
     earlier book of a somewhat similar character is Froböse's _Dr.
     Martin Luther's ernste, kräftige Worte über Ehe und eheliche
     Verhältnisse_ (Hanover, 1825). In the sixteenth century Luther's
     relatively conservative teaching regarding the scriptural
     grounds of divorce is adopted in the main by the theologians
     Brenz, _Wie yn Ehesachen ... zu Handeln_ (1530); Bugenhagen,
     _Von Ehebruch und Weglaufen_ (1539); also in the collections
     of Sarcerius, below mentioned; Chemnitz, _Examen concilii
     tridentini_ (Frankfort, 1615); Beza, _Tractatio de repudiis et
     divortiis_ (Geneva, 1569); the jurists Kling, _Matrimonialium
     causarum tractatus_ (1st ed., Frankfort, 1553; 3d ed., here
     cited, 1577), being a reprint of the title "De nuptiis" of his
     _Enarrationes in Institutiones_ (1542); Beust, _Tractatus de
     jure connubiorum_ (3d ed., Leipzig, 1592); _idem_, _Tractatus
     de sponsalibus et matrimoniis_ (Wittenberg, 1586); Schneidewin,
     _Commentarius in Institutiones_ (1st ed., Wittenberg, 1571); and
     _idem_, _De nuptiis_ (Jena, 1585), being a part of the earlier
     work published by the heirs after the author's death. In the
     seventeenth century the more stringent tendency is represented
     by the theologians Bidembach, _De causis matrimonialibus
     tractatus_ (Frankfort, 1608); Mentzer, _De conjugio tractatus_
     (Wittenberg, 1612); and by the jurists Cypräus, _De connubiorum
     jure_ (Frankfort, 1605); Nicolai, _Tractatus de repudiis et
     divortiis_ (Dresden, 1685); and Brouwer, _De jure connubiorum_
     (Amsterdam, 1665), whose book has the distinction of being
     placed on the _Index_. On the other hand, in the age of
     Luther a more liberal direction is taken by Erasmus, _Annat.
     in Nov. Testam._ (Basel, 1515); whose influence, according
     to Richter, is felt by Zwingli, "Ordnung wie zu Zürich ...
     über eelich sachen gericht soll werden" (1525): in Richter,
     _Kirchordnungen_, I, 21, 22; and his "Commentary on Matthew
     xix, 9," in Richter, _Beiträge_, 7; and by Zwingli's disciple
     Bullinger, _Der christlich Ehestand_ (1579). The laxer tendency
     is also represented by Lambert of Avignon, _De sacro conjugio_
     (Strasburg, 1524); Melanchthon, "De conjugio" (1551), in
     _Opera_, I (Erlangen, 1828); Bucer, whose work is mentioned in
     connection with the English Reformation; the jurist Monner,
     _Tract. de matrimonio et clandestinis conjugiis_ (Jena, 1561);
     and in the seventeenth century especially by Hülsemann,
     _Extensio breviarii theologici_ (3d ed., Leipzig, 1655); and
     the jurist Forster, _De nuptiis_ (Wittenberg, 1617). The more
     essential parts of the works of Luther, Brenz, Bugenhagen,
     Bullinger, and Melanchthon may also be found in that remarkable
     treasury of materials gathered by Sarcerius, _Ein Buch vom
     heiligen Ehestande_ (1553); enlarged under title _Corpus juris
     matrimonialis_ (Frankfort, 1569).

     Heading the modern literature is Richter's able _Beiträge
     zur Geschichte des Ehescheidungsrechts in der evang. Kirche_
     (Berlin, 1858), which has the special merit of first classifying
     the post-Reformation writers on divorce according to their more
     rigid or more liberal tendencies. The subject is also treated
     with the usual precision and thoroughness in his _Lehrbuch
     des kath. und evang. Kirchenrechts_ (8th ed., Leipzig, 1886).
     Important likewise are Strippelmann, _Das Ehescheidungsrecht_
     (Cassel, 1854); Goeschen, "Ehe," in Herzog's _Encyclopaedie_,
     III, 666-707 (Stuttgart and Hamburg, 1855); Hauber,
     "Ehescheidung im Reformations-Jahrhundert," in _Jahrbücher
     für deutsche Theologie_ (1857), II; Hubrich, _Das Recht der
     Ehescheidung_ (Berlin, 1891); Buchka, _Das mecklenburgische
     Ehescheidungsrecht_ (Wismar, 1885); Gräbner, _Ueber Desertion
     und Quasidesertion_ (Colberg, 1882); and Friedberg, "Beiträge
     zur Geschichte des brand.-preuss. Eherechts," in _ZKR._, VIII
     (Tübingen, 1886-87). Weydmann, _Luther_ (Hamburg and Gotha,
     1850), has two chapters on Luther's views and his matrimonial
     life. The second and third parts of Vol. III of Schulte's
     _Geschichte der Quellen und Litteratur des can. Rechts_
     (Stuttgart, 1880) provide a mass of valuable biographical and
     bibliographical material for the whole post-Reformation period.

     Richter's well-edited and now exceedingly scarce
     _Kirchenordnungen des sechszehnten Jahrhunderts_ (Weimar,
     1846) contains the legislation of the Evangelical churches on
     marriage and divorce. Especially important for the seventeenth
     century is the very rare _Des Herzogthums Wirtemberg ernuerte
     Ehe- und Ehe-Gerichts-Ordnung_ (Stuttgart, 1687), marking the
     beginning of a more liberal treatment of the divorce problem.
     The ecclesiastical ordinances are analyzed by Goeschen,
     _Doctrina de matrimonio_ (Halle, 1848); and by Dietrich,
     _Evangelisches Ehescheidungsrecht_ (Erlangen, 1892). Original
     divorce decrees and opinions are collected in Bruckner's
     _Decisiones juris matrimonialis_, II (Gotha, 1724); and several
     cases are published by Schleusner, "Anfänge des protest.
     Eherechts," in _ZKG._, XIII (Gotha, 1892). The best monographs
     on the evolution of jurisdiction and process in such causes,
     aside from the work of Dietrich just mentioned, are Geffcken,
     "Zur ältesten Geschichte und ehegericht. Praxis des Leipzig.
     Konsist.," in _ZKR._, 3. Folge, IV (Freiburg and Leipzig, 1894);
     Hinschius, "Beiträge zur Geschichte des Desertionsprocesses,"
     _ibid._, II (Berlin, 1862); and especially Stölzel, _Ueber das
     landesherrliche Ehescheidungsrecht_ (Berlin, 1891), the first
     part of which having already appeared in _ZKR._, XVIII (Freiburg
     and Tübingen, 1883). Stölzel holds that the authority of the
     chief magistrate to grant divorce is originally a right of
     episcopal dispensation, and that his authority is not superseded
     by the imperial law of 1875. On the controversy growing
     out of this dual question see Meurer, _Das landesherrliche
     Ehescheidungsrecht_ (Freiburg, 1891); and compare Scheurl, "Die
     Ablösung des Eherechts von dem Kirchenrecht," in _ZKR._, XIII
     (Tübingen, 1876); Buchka, "Das Eheschliessungsrecht," _ibid._,
     XVI; Sicherer, _Personnenstand und Eheschliessung_ (Erlangen,
     1879); the two dissertations of Wasserschleben, each entitled
     _Das Ehescheidungsrecht kraft landesh. Machtvollkommenheit_
     (Giessen, 1877; Berlin, 1880); and Hinschius, _Das Reichsgesetz_
     (3d ed., 1890). On the rise of the early consistorial courts
     see especially Mejer, "Anfänge des Wittenberger Consistoriums,"
     in _ZKR._, XIII (Tübingen, 1876); _idem_, "Zur Geschichte des
     ältesten protest. Eherechts," _ibid._, XVI (Tübingen, 1881);
     both articles being reprinted with other matter in his _Zum
     Kirchenrecht des Reformationsjahrhunderts_ (Hanover, 1891).

     Since the Reformation the questions of the proper grounds
     of divorce and of the remarriage of divorced persons have
     given rise to perennial discussion. Among the many writings
     so produced may be mentioned Gerlach, _Kirchenrechtliche
     Untersuchung_ (Erlangen, 1839); Savigny, "Darstellung der
     in den preuss. Gesetzen über die Ehescheidung unternommenen
     Reform," in _Vermischte Schriften_, V (Berlin, 1850); Müller,
     _Ueber Ehescheidung und Wiederverehlichung geschiedener Gatten_
     (Berlin, 1855); Hundrich, _Ueber Ehen und Scheidungen_ (Breslau,
     1855); Seidler, _Beiträge zur Reform der preuss. Gesetzgebung_
     (Nordhausen, 1861); Hoyer, _Die Ehescheidungsfrage_ (Berlin,
     1859); Scheurl, _Zur praktischen Lösung der Ehescheidungsfrage_
     (Nürnberg, 1861); Harless, _Die Ehescheidungsfrage_ (Stuttgart,
     1861); Bräunig, _Das Recht der Ehescheidung_ (Zwickau, 1861);
     Huschke, _Was lehrt Gottes Wort über die Ehescheidung?_ (Leipzig
     and Dresden, 1860); _idem_, _Beleuchtung der Einwürfe gegen
     meine Schrift_ (Leipzig and Dresden, 1861). Among the many
     Latin dissertations on the subject are Majer, _De separatione
     cohabitationis_ (Tübingen, 1675); Eckstein, _De divortio ex
     causa desertionis_ (Tübingen, 1675); Wagner, _De divortio,
     et convictus conjugalis separatione_ (Magdeburg, 1723);
     Memminger, _De divortio propter insidias vitae structas_
     (Halle, 1738); Struvvius, _De jure divortiorum_ (Jena, 1735);
     Seiff, _De divortio totali_ (Giessen, 1740); Mossheim, _De
     divortio_ (Jena, 1737, 1773); Scopp, _Tractatus, de jure
     divortiorum_ (Frankfort and Leipzig, 1756); Wunderlich, _De
     separatione a thoro et mensa_ (Jena, 1774); and especially
     the _Controversiae circa jura divortiorum_ (2d ed., Halle,
     1729), being a reprint of tracts of Kayser, Lange, and
     Michaelis. For the more recent development of the law in
     German lands see Schilling, _Der Ehescheidungsprocess in den
     sächsischen Gerichten_ (Leipzig, 1831); _Ehegerichts-Ordnung
     für den Kanton Basel-Stadtheil_ (Basel, 1857); Lauenstein,
     _Hannoverisches Eherecht und Process-Verfahren_ (Hanover, 1869);
     Peters, _Die Ehescheidung_ (Berlin, 1881); Wasserschleben,
     _Das Ehescheidungsrecht_ (Berlin, 1887); Hergenhahn, _Das
     Eheschliessungs- und Ehescheidungs-Recht_ (Hanover, 1890-93);
     Ney, _Das Kirchenrecht_ (Berlin, 1895); Part II of Lehr, _Le
     mariage, le divorce, et la séparation_ (Paris, 1899); Erles,
     _Ehescheidungsrecht und Ehescheidungsprozess_ (2d ed., Berlin,
     1900); and Dedekind, _Das protest. Ehescheidungsrecht und
     Verwandtes_ (Braunschweig, 1872), containing decisions extending
     over many years with full bibliographical citations.

     Of primary importance for the Reformation in England are the
     writings of Becon, Hooper, Tyndale, and Whitgift, all, with
     the _Original Letters_, comprised in the publications of the
     Parker Society and described in Bibliographical Note IX. The
     radical doctrines of Bucer's _De regno Christi_ (1557) were
     supported by Milton, who published an English version under
     title of "The Judgment of Martin Bucer," in _Prose Works_, III.
     Pocock's _Records of the Reformation: The Divorce, 1527-1533_
     (Oxford, 1870), has placed within easy reach a fine collection
     of original materials relating to Henry VIII.'s famous cause;
     and Huth, _The Marriage of Near Kin_ (2d ed., London, 1887), has
     provided a bibliography of the extensive literature to which it
     has given rise. For the whole period Burnet's _History of the
     Reformation_ (London, 1850) is of service. The state of public
     sentiment is reflected in Raynold's _Defence of the Judgment
     of the Reformed Churches_ (1609, 1610); the opposing work of
     Bunny, _Of Divorce for Adultery, And Marrying againe: that there
     is no sufficient warrant so to do_ (Oxford, 1610; prepared for
     publication in 1595); and the curious _Lawes Resolutions of
     Womens Rights_ (London, 1632). The corruption and injustice
     often attending the proceedings of the old spiritual courts in
     actions for annulment of wedlock are revealed in Archbishop
     Abbot's _The Case of Impotency As Debated in England, In that
     Remarkable Tryal An. 1613, between Robert, Earl of Essex, and
     the Lady Frances Howard_ (London, 1715), in which King James
     I. appears in the rôle of pander to the lust of his guilty
     favorite. The publication of this book, a century after it
     was written, appears to have been suggested by the similar
     _Pleadings for the Marquis de Gesvres against the Marchioness_
     (London, 1714). In this connection may also be mentioned as
     illustrative material the _Cases of Divorce for Several Causes_
     (London, 1715); and the _Crim. Con. Actions and Trials and other
     Legal Proceedings relating to Marriage before the passing of the
     present Divorce Act_ (London, n. d.). With these may be compared
     the modern case _Ehescheidungs-Process Colin-Campbell_ (London,
     1886). For the Stuart period have also been used Barrington,
     _Observations Upon the Statutes_ (2d ed., London, 1766); Hale,
     _History of the Pleas of the Crown_ (London, 1800); Coke,
     _Reports_ (London, 1826); his _Institutes_; and the _Reports_ of
     Croke, Kelyng, and Marche.

     Milton's "Doctrine and Discipline of Divorce," "Tetrachordon,"
     and "Colasterion" may be found in Vols. III and IV of his
     _Prose Works_ (London, 1889-90). The only special work on
     parliamentary divorce is that contained in Macqueen's _Practical
     Treatise on the Appellate Jurisdiction of the House of Lords
     and Privy Council_ (London, 1842). There are a number of papers
     relating to the early cases in the _Reports of the Historical
     Manuscripts Commission_. Morgan, _Marriage, Adultery, and
     Divorce_ (Oxford, 1826), has a long account; and the Lord Roos
     suit gave rise to _The Case of Divorce and Re-Marriage_ (London,
     1673). The proceedings in the Northampton case may be found in
     Howell's _State Trials_, XII.

     The _Statutes at Large_ and Hansard's _Parliamentary Debates_
     are, of course, in frequent requisition. For the reform of the
     laws relating to affinity and divorce important sources are
     the "First Report of the Commissioners" (affinity), in _Brit.
     Documents, 1847-8_, XXVIII (London, 1848); "First Report of the
     Commissioners" (divorce), _ibid._, _1852-3_, XL (London, 1853);
     "Evidence before the Select Committee of the House of Lords,
     1844" (divorce), reprinted _ibid._; _A Return giving an Outline
     of Marriage Laws, and the State of the Law of Divorce_, in
     three parts (London, 1894); _Return of the Number of Divorces_,
     Part I, "Foreign Countries;" Part II, "Brit. Colonies"(London,
     1895-96); and the _Report of the Upper House of the Convocation
     of Canterbury, 1885_ (divorce).

     The development of a liberal sentiment in contemporary
     literature may be traced in _A Treatise Concerning Adultery and
     Divorce_ (London, 1700); _Two Cases: The First of Adultery and
     Divorce_ (London, 1702); the anonymous _Essay upon Divorcement_
     (London, 1715), replying to Milton; Salmon, _A Critical Essay
     Concerning Marriage_ (London, 1824), accepting Milton's views;
     _Cri d'une honnête femme qui réclame le divorce_ (London, 1770);
     _Observations on the Marriage Laws particularly in reference
     to the Case of Desertion_ (London, 1815); and _Plea for an
     Alteration of the Divorce Laws_ (London, 1831). With these
     writers may be compared Ireland, _Nuptiae sacrae_ (London, 1801,
     1821, 1830), opposing Bishop Horsley's argument that in case of
     divorce the Scriptures directly prohibit the marriage of the
     adulterer with the adulteress; Tebbs, _Essay on the Scripture
     Doctrines of Adultery and Divorce_ (London, 1822), too harshly
     accused of plagiarism by the author of the preceding book;
     Keble, _Sequel of the Argument against immediately repealing
     the Laws which treat the Nuptial Bond as indissoluble_ (Oxford,
     1857), opposing the proposed divorce law; and Browne, _The
     Marriage of Divorced Persons in Church_ (London and New York,
     1896), taking a reactionary position.

     Important for the chapter are Glasson, _Histoire du droit et des
     institutions ... de l'Angleterre_ (Paris, 1882-83); Cleveland,
     _Woman under the English Law_ (London, 1896); Barclay, _La femme
     anglaise_ (Paris, 1896); Lehr, _Le mariage, le divorce, et la
     séparation_ (Paris, 1899); Lecky, _Democracy and Liberty_ (New
     York, 1896); Neubauer, "Ehescheidung im Auslande," in _ZVR._,
     VII (Stuttgart, 1887); Swinderen, "Ueber das Gütterrecht der
     Ehefrau in England," _ibid._, V (Stuttgart, 1884); Hirschfeld,
     "The Law of Divorce in England and in Germany," in _Law
     Quarterly Review_, XIII, October (London, 1897); Montmorency,
     "The Changing Status of a Married Woman," _ibid._, April
     (London, 1897); and the able article "Divorce," in _Law Review_
     (English), I (London, 1845). The absurd conflicts of English
     and Scottish law, as illustrated especially by Lolley's case,
     are discussed in Brougham's "Discourse on the Law of Marriage,
     Divorce, and Legitimacy" (1835) and his "Speech on the Scotch
     Marriage and Divorce Bills" (1835), both in _Speeches_, III
     (London, 1838); Fraser, _Conflict of the Laws in Case of
     Divorce_ (Edinburgh, 1860); and Fergusson, _Reports of Some
     Decisions_ (Edinburgh, 1817); while the proceedings in divorce
     under the old law are treated by Poynter, _Doctrine and Practice
     of the Ecclesiastical Courts in Doctors Commons_ (London,
     1822). Besides the technical treatises of Bishop, Geary, Ernst,
     and Hammick may be consulted Spence, _Equitable Jurisdiction_
     (Philadelphia, 1846); Baker, _Husband and Wife and the Married
     Women's Property Act, 1882_ (London, 1882); Barrett-Leonard,
     _The Position in Law of Woman_ (London, 1883); Shelford,
     _Marriage and Divorce_ (London, 1841); Browne, _Divorce and
     Alimony_ (Philadelphia, 1890); Browning, _Practice and Procedure
     of the Court for Divorce_ (London, 1862); _idem_, _Exposition of
     the Laws of Marriage and Divorce_ (London, 1872); and Harrison,
     _Probate and Divorce_ (4th ed., London, 1891). Among the works
     elsewhere described from which aid has been derived are those of
     Bracton, Blackstone, Reeves, Burn, Jeaffreson, Lingard, Wharton,
     Pollock and Maitland, and Haggard, _Reports of Cases in the
     Consistory Court of London_ (London, 1822).

     For the literature relating to marriage with a deceased wife's
     sister and other kindred see a footnote below and the elaborate
     bibliography by Huth in the work already mentioned.]


I. THE EARLY CHRISTIAN DOCTRINE AND THE THEORY OF THE CANON LAW

_a_) _Historical elements of the Christian teaching._--According to
the spirit of the earliest Christian teaching divorce, properly so
called, is strongly condemned, though by a strict interpretation
of its letter it may not be entirely forbidden. Between the first
assertion of the new doctrine and the final triumph of the canonical
theory of absolute indissolubility of the marriage bond intervenes a
struggle of twelve hundred years, whose more salient features may
now be sketched in rapid outline.

To understand the influences which aided in molding the conceptions
of the founders of the Christian church relative to marriage
and divorce, one must first of all notice the legal and social
environment. By each of the three systems of law with which
originally the Christians were most acquainted marriage was treated
as a private or lay contract, and its dissolution was therefore
freely allowed. Among the early Greeks, at any rate in the Homeric
age, divorce is thought, on slender evidence, to have been entirely
unknown,[1] although the practice arose later. By the Athenian law,
which probably was not entirely supplanted by the Roman until 212
A.D.,[2] it was freely granted to either spouse. The benefit inured,
however, mainly to the husband, since to begin proceedings for a
divorce the wife was required to present in person to the archon
a written statement of her desire; and this, in a society where
popular sentiment relegated woman to a seclusion truly oriental, it
was in practice exceedingly hard to do.[3]

  [Footnote 1: HOMER, _Odyssey_, x, 58; xxii, 38. _Cf._
  MEIER-SCHÖMANN, _Der attische Process_, II, 510; GEFFCKEN,
  _Ehescheidung vor Gratian_, 12; GLASSON, _Le mariage civil et le
  divorce_, 151; HRUZA, _Polygamie und Pellikat_, 64 n. 7.]

  [Footnote 2: GEFFCKEN, _op. cit._, 15.]

  [Footnote 3: Thus Alcibiades "collected a band of men and
  dragged" his wife Hipparete from the archon, when she attempted
  to get a divorce on account of his licentiousness: WOOLSEY,
  _Divorce and Divorce Legislation_, 31. _Cf._ GEFFCKEN, _op.
  cit._, 12, 13; and in general on the Grecian law of divorce see
  MEIER-SCHÖMANN, _Der attische Process_, II, 510-13; MÜLLER,
  _Handbuch der Alterthumswissenschaft_; MÜLLER AND BAUER'S _Die
  griech. Privat- und Kriegsalterthümer_ (1893), 152; POPP,
  _Ehescheidung_, 12-18; TISSOT, _Le mariage_, 53 ff.; GLASSON,
  _Mariage civil et le divorce_, 151-53; WOOLSEY, _op. cit._,
  25-34. The unfavorable position of the Athenian woman is
  discussed by HRUZA, _Die Ehebegründung nach attischem Rechte_,
  21, 22; GIDE, _La femme_, 63 ff., 74 ff.; COMBIER, _Du divorce_,
  17 ff.; TEBBS, _Essay_, 44 ff.]

By the Jewish law, as it still existed at the dawn of the present
era, divorce was the one-sided privilege of the man.[4] At most
there was only a faint trace of the woman's later right, sanctioned
by the Talmud, of demanding a separation.[5] Legally, for the
slightest reason, as the school of Hillel justly maintained, the
husband could put away the wife by simply handing her a "get" or
bill of divorce.[6] By the written law only in two cases, for
grave misconduct, was he deprived of this power;[7] though in
practice there were several ameliorating conditions which tended
to put a check upon arbitrary action. Thus, while divorce was a
private transaction, certain formalities had to be observed in
connection with the "get" which secured the restraining influence
of publicity;[8] and in case the wife was unjustly repudiated the
dower, representing the ancient _mohar_, or purchase price of
the bride, had to be paid to her from the husband's property.[9]
Moreover, some of the limitations of the husband's despotic power
recognized by the Mishnah or oral law may already have been in
force; and the highest ethical sentiment among the Jews had long
been decidedly against too great freedom of divorce. It was the
rabbi's duty as much as possible to discourage it and to effect
reconciliations between husband and wife.[10]

  [Footnote 4: On Jewish divorce in general see STUBBE, _Die
  Ehe im alten Testament_, 31, 32; FRAENKEL, _Grundlinien des
  mosaisch-talmud. Eherechts_, 42 ff.; MEYER, _Die Rechte der
  Israeliten, Athener und Römer_, II, 370 ff.; DUSCHAK, _Das
  mosaisch-talmud. Eherecht_, 83 ff.; MICHAELIS, _Ehegesetzen
  Mosis_, 358, 359; LICHTSCHEIN, _Die Ehe nach mosaisch-talmud.
  Auffassung_, 85 ff.; MIELZINER, _The Jewish Law of Divorce_,
  115 ff.; STRIPPELMANN, _Ehescheidungsrecht_, 8 ff.; TISSOT,
  _Le mariage_, 44 ff.; POPP, _Ehescheidung_, 37 ff.; GLASSON,
  _Le mariage civil et le divorce_, 145-50; TEBBS, _Essay_, 8
  ff.; GIDE, _La femme_, 56 ff.; COMBIER, _Du divorce_, 20 ff.;
  WOOLSEY, _Divorce and Divorce Legislation_, 10-34; THWING, _The
  Family_, 40-44; GEFFCKEN, _Ehescheidung vor Gratian_, 14, 16;
  and especially the admirable book of AMRAM, _The Jewish Law of
  Divorce_, 22 ff. Among controversial works see LUCKOCK, _History
  of Marriage_, 16 ff.; AP RICHARD, _Marriage and Divorce_, 54 ff.,
  62-72; BROWNE, _Marriage of Divorced Persons in Church_, 5 ff.]

  [Footnote 5: Exod. 21:7-11; as interpreted by AMRAM, _The Jewish
  Law of Divorce_, 55 ff.; MILTON'S _Prose Works_, III, 185 ff.,
  322 ff.]

  [Footnote 6: "When a man hath taken a wife, and married her, and
  it come to pass that she find no favour in his eyes, because he
  hath found some uncleanness in her; then let him write her a bill
  of divorcement, and give it in her hand, and send her out of his
  house. And when she is departed out of his house, she may go
  and be another man's wife."--Deut. 24:1, 2. The Hebrew _Ervath
  Dabar_, here translated "uncleanness," literally "the nakedness
  of the matter," or "something unseemly," are the doubtful
  words. The school of Hillel, or the "broad constructionists of
  the Bible," held "that the husband need not assign any reason
  whatever for his divorce, and that he may, for instance, if he
  please, divorce his wife for spoiling his food." On the other
  hand, the school of Shammai, or the "strict constructionists,"
  held that sexual immorality was the only scriptural ground of
  divorce: AMRAM, _op. cit._, 32 ff. Some writers who accept the
  view of the school of Shammai for the ancient law admit that, in
  consequence of moral degeneration, the broad constructionists
  were right for the days of Christ: see DUSCHAK, _op. cit._, 83
  ff.; LICHTSCHEIN, _op. cit._, 86; MIELZINER, _op. cit._, 118-20.
  _Cf._ GEFFCKEN, _op. cit._, 74; WOOLSEY, _op. cit._, 15 ff.;
  TISSOT, _op. cit._, 49; TEBBS, _op. cit._, 28-30.]

  [Footnote 7: Deut. 22:13-19, 28, 29: The case of the ravisher and
  that of the husband who falsely accuses the wife of ante-nuptial
  incontinence; in the latter instance he is not to "put her away
  all his days," which might be a trifle hard on the woman, unless
  indeed custom allowed her the right to free herself. See AMRAM,
  _op. cit._, 41 ff. By the Mishnah or oral law other restrictions
  are gradually imposed: _ibid._, 45.]

  [Footnote 8: Before the compilation of the Mishnah the form
  of the get "was not yet strictly fixed, it only having been
  required to contain, besides the date and the names of the
  parties, the words 'Thou art now free for any man.'" But later
  custom required a more elaborate form and the "presence of at
  least ten persons."--MIELZINER, _The Jewish Law of Marriage and
  Divorce_, 128. Eventually the procedure in ordering, writing,
  and delivering the bill of divorce became complex, and it took
  place before a rabbi specially skilled in the law, who thus had
  opportunity to check hasty or unjust action through his advice
  or by refusing to deliver the document: see SAALSCHUETZ, _Das
  mosaische Recht_, 801; MIELZINER, _op. cit._, 116 ff.; DUSCHAK,
  _Das mosaisch-talmud. Eherecht_, 95 ff.; especially LICHTSCHEIN,
  _Die Ehe nach mosaisch-talmud. Auffassung_, 94 ff.; and AMRAM,
  _op. cit._, 132-204, both giving full details as to the "get."
  For the form of the "get" see MEYRICK, "Marriage," _Dict. Christ.
  Ant._, II, 1111; AMRAM, _op. cit._, 157; LICHTSCHEIN, _op. cit._,
  136; DUSCHAK, _op. cit._, 143, 144; MIELZINER, _op. cit._, 129;
  SELDEN, _Uxor ebraica_, III, 24: in _Opera_, IV, 797.]

  [Footnote 9: For full details see AMRAM, _op. cit._, 47, 48,
  111-31; MIELZINER, _op. cit._, 85-89; STUBBE, _Die Ehe_, 20, 21.]

  [Footnote 10: AMRAM, _op. cit._, 25, 45, 78 ff.; LICHTSCHEIN,
  _op. cit._, 87 ff.]

Negatively, however, it was the later law of Rome which had most
to do with shaping the ideas of the Christian Fathers relative to
the nature of marriage and the doctrine of divorce.[11] By each of
the three ancient forms of marriage the wife came or might come
under the power of the husband, _in manu viri_. In the family she
was legally regarded as being in a daughter's place, _in loco
filiae_;[12] and in each case divorce was solely the husband's
prerogative.[13] But by the beginning of our era all these older and
stricter forms, with their consequent one-sided right of separation,
had been practically superseded by free contract in which the
husband and wife were placed on an equal footing.[14] By this form
marriage became a simple private agreement. The wife did not pass
under the _manu_ of the husband. She retained full control of her
property, being in this regard, as it were, temporarily deposited
at her husband's side;[15] while divorce became a formless private
transaction to which the woman was as freely entitled as was the
man.[16] No intervention of court or magistrate was essential.
So far, indeed, was carried the theory of absolute liberty of
either spouse to dissolve the contract that, according to Cicero,
the jurists in one case were in doubt whether a divorce did not
legally arise _ipso facto_ through the consummation of a second
marriage by one of the parties during the lifetime of the other.[17]
Augustus, however, introduced an important change in the interest
of publicity, requiring the party wishing a divorce to declare to
the other his purpose in the presence of seven witnesses, who must
be Roman citizens of full age; otherwise the divorce to be null
and void.[18] But there was no intention through this condition
of establishing the jurisdiction of the state in the matter of
divorce, which remained, as before, a private legal act of the
interested persons. "Still less was it the purpose of the state
to put any material restriction upon the freedom of divorce."[19]
To this liberty there was but one exception. The freedwoman might
not repudiate her patron, her former master, who had taken her in
marriage.[20] In all other cases the divorce, however arbitrary
or unjust, was legally effective. There was no action for the
restitution of conjugal rights; though the responsible party might
in certain cases suffer pecuniary damage.[21]

  [Footnote 11: In general, on the Roman law of divorce, see
  ESMEIN, _Mélanges_, 17 ff.; SOHM, _Institutes_, 381-84, 341;
  PUCHTA, _Institutionen_, II, 403; WÄCHTER, _Ehescheidungen bei
  den Römern_, 19 ff., 62 ff.; GLASSON, _Le mariage civil et le
  divorce_, 173 ff.; REIN, _Das Privatrecht und der Civilprozess
  der Römer_ (Leipzig, 1858), 445 ff., giving a bibliography of
  the older literature; POPP, _Ehescheidung_, 18 ff.; TISSOT, _Le
  mariage_, 56 ff.; BENNECKE, _Ehebruch_, 2 ff.; COMBIER, _Du
  divorce_, 29 ff.; TEBBS, _Essay_, 55 ff.; ZHISHMAN, _Das Eherecht
  der orient. Kirche_, 4 ff.; WOOLSEY, _Divorce and Divorce
  Legislation_, 34-49; GEFFCKEN, _Ehescheidung vor Gratian_, 9-12;
  STRIPPELMANN, _Ehescheidungsrecht_, 31 ff.]

  [Footnote 12: By _confarreatio_ and _coemptio_ the man
  acquired the _manus_ at the nuptials; but by the _usus_, or
  the form through which transition was made from the strict
  to the free marriage, he seems to have gained it only by a
  year's prescription: when the woman neglected her privilege
  of _trinoctium_. In the meantime, before the _manus_ was
  acquired, it is a question whether the woman was legally _uxor_
  or merely _uxoris loco_: KARLOWA, _Die Formen der röm. Ehe_,
  68 ff.; ROSSBACH, _Die röm. Ehe_, 156 ff., 243 ff.; SEHLING,
  _Die Unterscheidung der Verlöbnisse im kanon. Recht_, 5; SOHM,
  _Institutes_, 263; GLASSON, _Le mariage civil et le divorce_,
  161, 174; HÖLDER, _Die röm. Ehe_, 8 ff.; GEFFCKEN, _Ehescheidung
  vor Gratian_, 10 n. 4, who cites other authorities; WÄCHTER,
  _Ehescheidungen bei den Römern_, 28 ff.]

  [Footnote 13: Whether the _confarreatio_ or sacramental
  marriage was originally indissoluble even for the man is
  uncertain; but later it could be dissolved by _diffareatio_:
  GEFFCKEN, _Ehescheidung vor Gratian_, 11; SOHM, _Institutes_,
  381; FUSTEL DE COULANGES, _Ancient City_, 60; THWING, _The
  Family_, 37; GLASSON, _Le mariage civil et le divorce_,
  174, 179; ROSSBACH, _Die röm. Ehe_, 128 ff.; and ESMEIN,
  _Mélanges_, 17 ff., who believes at first _confarreatio_ was
  indissoluble. The _coemptio_, or sale-marriage, was dissolved
  by remancipation, but only in a family council including the
  wife's relatives; but whether the _usus_ was dissolved in the
  same way or by prescription we are not informed: GEFFCKEN,
  _op. cit._, 11; ROSSBACH, _op. cit._, 131; WOOLSEY, _Divorce
  and Divorce Legislation_, 37, 38; REIN, _Privatrecht_, 456;
  KUNTZE, _Institutionen_ (Leipzig, 1869), I, § 776. For the
  very restricted legal grounds of divorce under the sacramental
  marriage see UNGER, _Die Ehe_, 71; and in general compare
  WÄCHTER, _Ehescheidungen_, 62 ff., 94 ff.]

  [Footnote 14: After the second Carthaginian war free marriage,
  or _matrimonium sine conventione in manum mariti_, until that
  time regarded only as _matrimonium juris gentium_, was accepted
  as _matrimonium iustum_ for plebeians as well as patricians;
  and it rapidly became the only form observed among the Romans,
  except that _confarreatio_ was preserved for the _flamines_;
  while the _usus_, though not entirely abolished, was deprived
  of real significance by a _senatus consultum_ under Tiberius
  which abrogated the effects of _manus_ in the domain of private
  law: GEFFCKEN, _op. cit._, 11, 12; _ap._ TACITUS, _Annales_,
  IV, 16; ZHISHMAN, _Das Eherecht der orient. Kirche_, 5. On free
  marriage see WÄCHTER, _op. cit._, 77 ff., 95 ff.; ROSSBACH, _op.
  cit._, 42-62, 182 ff., 242; KARLOWA, _Die Formen der röm. Ehe_,
  79 ff.; ESMEIN, _Le mariage en droit canonique_, II, 46; SOHM,
  _Institutes_, 263, 267, 268; UNGER, _Die Ehe_, 72 ff.]

  [Footnote 15: MAINE, _Ancient Law_, 150.]

  [Footnote 16: Freedom of divorce in _matrimonium sine manu_
  reacted upon the _manus_ marriages to the extent that the causes
  of dissolution were increased in number.

  "The famous divorce of Sp. Carvilius Ruga [_ca._ 520 A. U. C.]
  is not only the first Roman divorce in general, but also the
  first dissolution of a _manus_ marriage in which no fault but
  merely a _vitium corporis_ of the woman was assigned" as ground
  of action.--GEFFCKEN, _op. cit._, 12. But it is very doubtful
  whether this is really the first divorce among the Romans:
  WÄCHTER, _op. cit._, 82 ff.; COMBIER, _Du divorce_, 42 ff. The
  time is uncertain. According to Dionysius, the divorce occurred
  in 520 A. U. C.; while AULUS GELLIUS, _Noctes atticae_, IV,
  3, § 2, xvii, 21, gives confusingly 519 and 523 as the date.
  Compare WÄCHTER, _op. cit._, 78 ff.; SAVIGNY, "Ueber die erste
  Ehescheidung in Rom," _Abhand. d. k. Akad. d. Wis. in Berlin_,
  1814-16 (Berlin, 1818); REIN, _Privatrecht_, 450 ff.; KARLOWA,
  _Rechtsgeschichte_, 188; GLASSON, _Le mariage civil et le
  divorce_, 175; WOOLSEY, _Divorce_, 39; THWING, _The Family_, 36;
  POPP, _Ehescheidung_, 22; LANGERON, _Du divorce_, 17.]

  [Footnote 17: CICERO, _De orat._, I, 40, 56: GEFFCKEN, _op.
  cit._, 12.]

  [Footnote 18: By the _Lex Julia de adulteriis_ of _ca._ 18 B. C.:
  GEFFCKEN, _op. cit._, 15; JÖRS, _Die Ehegesetze des Augustus_,
  36-39. For the best analysis of the _Lex Julia_, with an account
  of the preceding history, see ESMEIN, _Mélanges_, 71-169; and
  compare BENNECKE, _Ehebruch_, 2-6.]

  [Footnote 19: GEFFCKEN, _op. cit._, 15.]

  [Footnote 20: By the _Lex Julia et Papia Poppaea_ of 9 B. C.; but
  even this restriction was narrowed in various ways: GEFFCKEN,
  _op. cit._, 15; WÄCHTER, _op. cit._, 143 ff. It should be noted,
  however, that the husband was compelled to put away a wife guilty
  of adultery. On this law see JÖRS, _Die Ehegesetze des Augustus_,
  49 ff.; COMBIER, _Du divorce_, 55.]

  [Footnote 21: "Scheidung zufolge friedlicher Übereinkunft
  (_divortium consensu_) sowie einseitige Scheidung aus einem
  rechtmässigen Grunde, ohne dass eine Verschuldung des entlassenen
  Gatten vorlag (_divortium bona gratia_), war durchaus erlaubt und
  hatte für keinen der sich Trennenden nachteilige Konsequenzen,
  bei willkürlicher Scheidung (_repudium iniustum_) traf ihren
  Urheber, bei der durch Schuld des einen Teils, namentlich durch
  Ehebruch veranlassten Scheidung den Schuldigen Nachteil an
  Geld und Gut."--GEFFCKEN, _op. cit._, 15, 16; _ap._ ULPIAN,
  VI, 13. See REIN, _Das Privatrecht_, 433 ff. Forfeiture of
  property rights for adultery was prescribed by the _Lex Julia
  de adulteriis_: ESMEIN, _Mélanges_, 114; UNGER, _Die Ehe_, 86;
  GLASSON, _Le mariage civil et le divorce_, 178, 179. On the
  legislation of Augustus compare WOOLSEY, _Divorce_, 47, 49, 88,
  89, 92-94; and JÖRS, _Die Ehegesetze des Augustus_.]

What were the moral and social results of this excessive freedom
of divorce? To many the answer seems easy enough; for during the
later republic and the early empire the laxity of the nuptial bond
became a notorious scandal. At the capital, and especially in the
imperial circle, wives as well as husbands gave free rein to their
licentious passions. Marriage became unpopular. A recent historian
even declares that "almost always" it was ended by divorce.[22]
Already in the age of the Gracchi, Metellus the Macedonian cynically
exclaimed: "Romans, if we could get along without wives, assuredly
none of us would accept so grievous a burden; but since nature has
ordained that one cannot live easily with them, nor live without
them, let us sacrifice the happiness of our short life to the
perpetuity of our nation."[23] Later even the most distinguished and
reputable men, as if in mockery of wedlock, put away their wives
on purely selfish or absurdly trivial grounds.[24] To believe the
exaggerations of the satirists, one changed his partner almost
as often as the cut of his garment.[25] "Seneca denounced this
evil with especial vehemence, declaring that divorce in Rome no
longer brought with it any shame, and there were women who reckoned
their years rather by their husbands than by the consuls."[26]
Nevertheless, the abuse was more a result than a cause of the
gradual decline of Roman morals during the two centuries following
the conquest of Carthage.[27] Doubtless, the state in neglecting
to exercise a proper jurisdiction in this field had abrogated a
function important for her own stability. Proper restraints would
have lessened the evil. But the character of the law was very far
from being its sole, or even its primary, cause. "In a purer state
of public opinion," well observes Lecky, "a very wide latitude of
divorce might probably have been allowed to both parties, without
any serious consequences. The right of repudiation which the husband
had always possessed was, as we have seen, in the Republic never
or very rarely exercised. Of those who scandalised good men by the
rapid recurrence of their marriages, probably most, if marriage had
been indissoluble, would have refrained from entering into it....
A vast wave of corruption had flowed in upon Rome, and under any
system of law it would have penetrated into domestic life. Laws
prohibiting all divorce have never secured the purity of married
life in ages of great corruption, nor did the latitude which was
accorded in imperial Rome prevent the existence of a very large
amount of female virtue."[28] Nor, it may be added, does it appear
that the family life of the people at large, notably that of the
middle classes in the provinces, was seriously tainted by the
social corruption of the capital, where all the causes of moral
degeneration were especially active.

  [Footnote 22: GLASSON, _op. cit._, 176, 178. Poisoning became a
  frequent substitute for divorce, especially where marriage by
  _confarreatio_ had been contracted: _ibid._, 177; WOOLSEY, _op.
  cit._, 42, 43.]

  [Footnote 23: AULUS GELLIUS, _Noctes atticae_, I, 6.]

  [Footnote 24: "We find Cicero repudiating his wife Terentia,
  because he desired a new dowry; Augustus compelling the husband
  of Livia to repudiate her when she was already pregnant, that he
  might marry her himself; Cato ceding his wife, with the consent
  of her father, to his friend Hortensius, and resuming her after
  his death; Mæcenas continually changing his wife; Sempronius
  Sophus repudiating his wife, because she had once been to the
  public games without his knowledge; Paulus Æmilius taking the
  same step without assigning any reason, and defending himself
  by saying, 'My shoes are new and well made, but no one knows
  where they pinch me.'... Christians and Pagans echoed the same
  complaint. According to Tertullian 'divorce is the fruit of
  marriage.' Martial speaks of a woman who had already arrived at
  her tenth husband; Juvenal, of a woman having eight husbands in
  five years. But the most extraordinary recorded instance of this
  kind is related by St. Jerome, who assures us that there existed
  at Rome a wife who was married to her twenty-third husband, she
  herself being his twenty-first wife."--LECKY, _Hist. of European
  Morals_, II, 306, 307, who cites the authorities in the margin.
  For other illustrations see WOOLSEY, _op. cit._, 39-49; THWING,
  _The Family_, 36 ff.]

  [Footnote 25: The evidence of the satirists, jurisconsults,
  and other writers regarding the abuses of divorce, with full
  citation, is collected by MARQUARDT, _Das Privatleben der Römer_,
  I, 66-80; and GLASSON, _op. cit._, 175 ff. See, for example,
  JUVENAL, _Sat._, XI, 229; VI, 230; PLAUTUS, _Mercat._, 805;
  QUINTILIAN, V, 11, 35.]

  [Footnote 26: LECKY, _Hist. of European Morals_, II, 307. _Cf._
  SENECA, _De Benef._, III, 16; also PLUTARCH, _Lives_ (London,
  1890), 526, 531, 532 (Cato of Utica).]

  [Footnote 27: On the depravation of Roman society see UNGER,
  _Die Ehe_, 80 ff.; COMBIER, _Du divorce_, 51 ff.; POPP,
  _Ehescheidung_, 23 ff.]

  [Footnote 28: LECKY, _op. cit._, II, 307, 308.]

It is, however, not surprising that the founders of the Christian
church should have regarded the laxity of the marriage bond as a
sign, if not the primary cause, of the degradation of Roman society.
From the beginning an earnest effort is made so far as possible
to restrict the liberty of separation and to prohibit the persons
separated on proper grounds from contracting further marriage.
The various passages of the New Testament relating to the subject
are disjointed and confusing in their details.[29] Many vital
questions are either completely ignored or left in such obscurity
as to open the way for wide divergence of doctrine and the bitter
controversies of future ages, especially those of the Reformation
period. According to the fundamental teaching of Jesus, as reported
by Matthew, the husband is forbidden to put away the wife except
for unfaithfulness.[30] Divinely created as male and female, "they
twain shall be one flesh;" and "what therefore God hath joined
together, let not man put asunder."[31] Whether for the same reason
the woman may put away the man, or whether either the innocent or
the guilty party may contract a second marriage, we are here not
expressly informed. Inferences may, of course, be drawn by assuming
that Jesus had the principles of the Jewish law in mind; but this
mode of procedure is scarcely satisfying.[32] Nor do the other
sacred writers throw any clear light on these important questions.
Rather do they deepen the obscurity; for both Mark and Luke appear
absolutely to prohibit divorce, not expressly admitting even the
one ground of separation granted on the authority of Matthew.
Moreover, Mark sets up a new stumbling-block. In the presence of
the Pharisees, who sought to tempt him, Jesus is made to put aside
as morally wrong and born of hardness of heart the harsh freedom
of divorce secured to the man alone by the Mosaic code; while "in
the house" he tells his disciples that "whosoever shall put away
his wife, and marry another, committeth adultery against her,"
and "if a woman shall put away her husband, and be married to
another, she committeth adultery;" so leaving us in doubt whether
legal separation _without_ the privilege of a further marriage
is sanctioned--in effect thus anticipating the later distinction
between divorce _quoad thorum_ and _quoad vinculum_; or, if such
separation be sanctioned, whether, in sharp contrast to the spirit
of Jewish law, the wife is placed on a level with the husband in
this regard.

  [Footnote 29: The principal passages are Matt. 5:31, 32; 19:3-12;
  Mark 10:2-12; Luke 16:18; 1 Cor. 7:10-16; Rom. 7:2,3.

  In general, on the interpretation of these passages, consult
  GEFFCKEN, _Ehescheidung_, 16 ff.; ESMEIN, _Le mariage en droit
  canonique_, II, 48 ff.; FREISEN, _Geschichte des can. Eherechts_,
  769, 770; FRIEDBERG, _Lehrbuch_, 337 ff.; LOENING, _Geschichte d.
  deutschen Kirchenrechts_, II, 606; PERRONE, _De mat. Chr._, III,
  147-219; ROSKOVÁNY, _De mat. in ecc. cath._, II, 61-187; MEYRICK,
  in _Dict. Christ. Ant._, II, 1110; ZHISHMAN, _Das Eherecht
  der orient. Kirche_, 96 ff., 734; GIDE, _La femme_, 169 ff.;
  THWING, _The Family_, 45 ff.; WOOLSEY, _Divorce_, 50-85; POPP,
  _Ehescheidung_, 51 ff.; TEBBS, _Essay_, 74 ff.; STRIPPELMANN,
  _Ehescheidungsrecht_, 11 ff.; especially MILTON, "Doctrine and
  Discipline of Divorce," _Prose Works_, III, 180 ff.; _idem_,
  "Tetrachordon," _ibid._, 322 ff.; MENTZER, _De conjugio_, 190
  ff.; SARCERIUS, _Vom heil. Ehestande_, 161 ff.; and BUCER, in
  MILTON'S _Prose Works_, III, 296, _passim_. Partisan writers are
  HOVEY, _The Scriptural Law of Divorce_; CAVERNO, _Divorce_, 29
  ff.; AP RICHARD, _Marriage and Divorce_, 77-112; LUCKOCK, _Hist.
  of Marriage_, 44-79; BROWNE, _Marriage of Divorced Persons in
  Church_, 27 ff.]

  [Footnote 30: On the use here of the generic term _porneia_
  (fornication), instead of the specific _moicheia_ (adultery), see
  MILTON, "Tetrachordon," _Prose Works_, III, 394 ff.; also the
  labored argument of WOOLSEY, _Divorce_, 60-70; ZHISHMAN, _Das
  Eherecht der orient. Kirche_, 578 ff.; MEYRICK, in _Dict. Christ.
  Ant._, II, 1110; GRAY, _Husband and Wife_, 95, 104 ff.; LUCKOCK,
  _Hist. of Marriage_, 56, 57; AP RICHARD, _Marriage and Divorce_,
  80; SELDEN, _Uxor ebraica_, III, 23, 27.

  The scope of _porneia_ is of historical importance; for some of
  the early Fathers and some of the leaders of the Reformation
  by giving it an allegorical meaning sought to multiply the
  scriptural grounds of divorce. _Cf._ FREISEN, _Geschichte des
  can. Eherechts_, 770; also MILTON, in _Prose Works_, III, 255
  ff., 394 ff. In general read the elaborate essay of MORGAN,
  _Marriage, Adultery, and Divorce_, II, 394-550, on _porneia_.]

  [Footnote 31: Matt. 19:4-6; _cf._ 5:31, 32, and Mark 10:6-9. This
  doctrine is laid down in reply to the Pharisees who "tempting
  him" ask: "Is it lawful for a man to put away his wife for every
  cause?"--doubtless having in mind the teaching of the school of
  Hillel. When Jesus declares that "what therefore God hath joined
  together, let not man put asunder," they further demand: "Why
  did Moses then command to give a writing of divorcement, and
  to put her away?" To which "he saith unto them, Moses because
  of the hardness of your hearts suffered you to put away your
  wives; but from the beginning it was not so." Thus, it may be
  suggested, Jesus admits that legally the followers of Hillel--the
  "broad constructionists"--are right in their interpretation;
  while morally he sides with the school of Shammai. See n. 2, p.
  13, above. _Cf._ however, the specious assertions of WOOLSEY,
  _Divorce_, 58.]

  [Footnote 32: By the Jewish law, of course, the woman had no
  right to divorce her husband for any cause; the man putting away
  his wife could take other wives; and the woman divorced for
  adultery--the only cause of separation contemplated by Jesus--was
  stoned to death. _Cf._ GEFFCKEN, _Ehescheidung_, 17; and WOOLSEY,
  _op. cit._, 59 ff., 70 ff., who holds that the words of Jesus
  apply to the wife equally with the man, and that the innocent,
  though not the guilty, party may marry again, sustaining his
  position, as he fancies, by reference to Paul in 1 Cor., chap.
  7. For a fair sample of theological special pleading see BROWNE,
  _Marriage of Divorced Persons in Church_, 30 ff.]

The utterances of Paul on this subject,[33] as on all questions
connected with marriage and the family, are of the highest
importance in view of their historical consequences. Referring
directly to the teaching of Jesus, he first seemingly denies the
right of divorce to either party. With Mark and Luke he omits
the exception mentioned by Matthew; and with Mark he expressly
forbids the wife to "depart from her husband," adding, however,
the inconsequent and bewildering command, "if she depart, let her
remain unmarried, or be reconciled to her husband." Here apparently,
where both persons are believers, separation _a mensa et thoro_
is approved. Whether in such case this is the only Christian
form of divorce allowed either party, however grave the cause of
separation;[34] or whether his rule applies to the woman only, and
then merely when some lesser ground of action exists, the Apostle to
the Gentiles fails entirely to place beyond the field of debate.

  [Footnote 33: 1 Cor. 7:8-16.]

  [Footnote 34: The Catholic doctrine as finally settled. WOOLSEY,
  assuming that this is a case of separation of two "believers" for
  some "dissension" or other cause less than adultery (which he
  holds allows a second marriage), says, "we have here an actual
  separation _a mensa et toro_ without a separation _a vinculo
  matrimonii_. This third state between absolute divorce and
  full marriage union has then the sanction of the Apostle--not
  of course as something desirable, but probably as a kind of
  barricade against divorce and a defense of the Saviour's
  commandment. It may be introduced therefore into the law of
  Christian lands."--_Divorce_, 73, 74.]

Thus far Paul has spoken professedly on the authority of "the
Lord." Next he contemplates the case of an existing union between
a Christian and an unbeliever; and on his own judgment he admits a
new ground of separation. "But to the rest speak I, not the Lord."
The Christian may not put away or abandon his spouse on account
of difference in religious faith. "For the unbelieving husband is
sanctified by the wife, and the unbelieving wife is sanctified by
the husband: else were your children unclean; but now are they holy.
But if the unbelieving depart, let him depart. A brother or a sister
is not under bondage in such cases."[35] Again, through this last
remark, the seeds of dissension are planted; for it is not clear
whether the "bondage" from which the brother or sister is freed is
that of the existing marriage or the irksome necessity of perpetual
single life after separation.

  [Footnote 35: 1 Cor. 7:12-16.]

Upon these Bible passages, often vague and puzzling in the
extreme,[36] was eventually erected the whole doctrine of the
mediæval church relating to divorce. It is not surprising that
harmony was reached only after many centuries of struggle. With the
exact processes of argument by which ingenious theologians have in
all ages sought to reconcile or interpret the scriptural teaching we
are here but little concerned. At present we are mainly interested
in the general results of thought as they find expression in the
law and practice of the church previous to the Reformation. The
subject presents four phases or aspects of development, each of
which will be briefly considered: the views of the early Fathers;
the legislation of the Christian emperors; the compromise with
Germanic custom; and the final settlement of doctrine in the canon
law.

  [Footnote 36: Thus AUGUSTINE (_De adult. conjug._) confesses
  the extreme difficulty of reconciling the scriptural texts
  relating to divorce and second marriage: "His ita pro meo modulo
  pertractatis atque discussis quaestionem tamen de conjugiis
  obscurissimam et implicatissimam esse, non nescio." On this
  FREISEN (_Geschichte des can. Eherechts_, 772, 773) remarks, "es
  wird ihm hierin gewiss jeder zustimmen, der die Worte der hl.
  Schrift durchliest."]

_b_) _Views of the early Fathers._--During the first four centuries
of our era the so-called "strict" construction of the utterances of
Jesus and Paul relating to the twofold question of separation and
second marriage was formulated by the Fathers of the church; and the
principles then agreed upon were in the end, after an intervening
period of vacillation and compromise, to be accepted and elaborated
into a complete system of law by the canonists. The literature of
this early debate may be regarded as reaching from the Pastor of
Hermas, a writer in the first half of the second century, highly
respected in Christian antiquity,[37] to Augustine, late in the
fourth century (died 430), who towers above all the other Fathers in
his influence for good or evil in the history of European thought.
At first the Pauline interdict of further marriage after separation
receives more attention perhaps than the question of divorce itself,
with its assigned cause as laid down by Jesus; for it is strongly
urged that the chief evil of a too lax divorce system, such as the
Roman, is the facility of second marriage regardless of the guilt or
innocence of the parties.[38] Setting aside for the present the case
of the Christian whose unbelieving spouse voluntarily departs--the
_casus apostoli_ or _privilegium Paulinum_, as it is later styled
by the canonists[39]--nearly all are agreed that divorce is
forbidden except for the one cause mentioned by Matthew. There is,
however, a divergence of view in two important particulars. On the
one hand, certain writers, such as Tertullian and pseudo-Ambrose,
following the principle of the Jewish law, admit this ground of
repudiation to the advantage of the man, but not to that of the
woman; while others, like Epiphanius, maintain the equal right of
the sexes in this regard. On the other hand, in a few instances
the word "adultery"[40] is accepted in an allegorical or spiritual
sense, thus greatly widening the field of divorce. In this way, for
example, Hermas, Hieronymus, and, for a time, Augustine anticipate
the mode of interpretation adopted by some of the Reformation
Fathers, admitting idolatry, apostasy, and covetousness, equally
with carnal transgression, as proper grounds of separation.[41]

  [Footnote 37: GEFFCKEN, _Ehescheidung_, 18-20. In general on the
  views of the early Fathers see also FREISEN, _Geschichte des can.
  Eherechts_, 770 ff.; ESMEIN, _Le mariage en droit canonique_,
  II, 48-55; MEYRICK, in _Dict. Christ. Ant._, II, 1110; WOOLSEY,
  _Divorce_, 86 ff., 107 ff.; POPP, _Ehescheidung_, 54 ff.; GREVE,
  _Ehescheidung_, 190 ff.; _Observations on Mar. Laws_, 330 ff.;
  MOY, _Eherecht der Christen_, 10-45; ZHISHMAN, _Das Eherecht der
  orient. Kirche_, 99-102; LUCKOCK, _Hist. of Marriage_, 80-153;
  TEBBS, _Essay_, 125 ff.; MILTON, "Tetrachordon," _Prose Works_,
  III, 414 ff.; BURNET, _Hist. of the Reformation_, I, 26-133, 330
  ff., who discusses Henry VIII.'s divorce from Queen Katherine
  and summarizes the results of Cranmer's examination of the
  Fathers and early canons in connection with the Northampton case.
  Burnet's summary is also given by GEARY, _Marriage and Family
  Relations_, 577, 578.

  For the Roman Catholic view see particularly CIGOI,
  _Unauflösbarkeit der ch. Ehe_, 1 ff.; ROSKOVÁNY, _De mat. in ecc.
  cath._, II, 1 ff., 187 ff., 198 ff.; PERRONE, _De mat. christ._,
  III, 221 ff.]

  [Footnote 38: _Cf._ GEFFCKEN, _op. cit._, 18.]

  [Footnote 39: ESMEIN, _op. cit._, I, 220 ff.; II, 268 ff.]

  [Footnote 40: Or "fornication," the _porneia_ of Matthew.]

  [Footnote 41: _Cf._ the sources cited by FREISEN, _Geschichte
  des can. Eherechts_, 770; MEYRICK, in _Dict. Christ. Ant._, II,
  1110. This view is taken by AUGUSTINE, _De serm. dom. in monte_,
  c. xvi; but he doubts its correctness in the "Retractions;"
  MEYRICK, _loc. cit._ Tertullian shows also that mishandling and
  insult, as well as adultery, are considered sufficient grounds
  of separation: GEFFCKEN, _Ehescheidung_, 20, 21. See however,
  PERRONE, _De mat. christ._, III, 231 ff.]

The case is similar with respect to second marriage. Apparently
there is a strong tendency from the beginning to treat marriage
as indissoluble, but, "intentionally or unintentionally," the
utterances of the Fathers on this vital question are unclear.
Frequently they content themselves, as Geffcken observes, with a
"paraphrase of the scriptural texts relating to the matter."[42]
Seemingly, according to the common or prevailing opinion, neither
party whether innocent or guilty is allowed to form a new marriage
during the lifetime of the other; but there is on this point a great
lack of precision.[43] Tertullian, after yielding to Montanism,
even goes so far as to reject all second marriage as un-Christian;
and the same position is taken by Minutius Felix.[44] There are,
however, less rigid constructions. By some Fathers the right of
remarriage is conceded to the man repudiating a guilty wife,
while they deny it to the woman under like conditions. Others,
actuated by a livelier sense of justice, like Epiphanius, concede
it to both consorts alike; but these opinions are rejected by the
majority.[45] More and more, in theory if not always in practice,
the antagonism of the church to the second marriage of a divorced
man or woman becomes apparent as we approach the close of the
period under consideration. This is proved even by the action of
the provincial assemblies. Thus the Spanish Council of Elvira of
the year 306 decrees that the woman who puts away a guilty husband
and marries another shall be excommunicated; and, save in case
of mortal sickness, she shall not be admitted again to communion
until after her first husband's death. If, however, she have left
her husband without cause and contracted another marriage, she
shall not be admitted to communion even on the death-bed; but
nothing is said concerning a dissolution of the later marriage.[46]
Similar in spirit are the canons of the Council of Arles held in
the year 314. The general principle of the indissolubility of the
matrimonial relation is positively asserted,[47] but in connection
with a concession which illustrates the practical difficulty of
consistently enforcing the new doctrine in all parts of the Roman
world. The youthful husband[48] who puts away a guilty wife is to
be "advised" not to marry again during her lifetime; thus dealing
far more gently with the man than did the Council of Elvira with the
woman for the same offense.[49]

  [Footnote 42: GEFFCKEN, _op. cit._, 21. _Cf._ FREISEN, _op.
  cit._, 770, who says: "Man hatte, wie es scheint, hier eine Scheu
  sich durchaus klar zu erklären. Sicher ist jedoch das eine,
  dass sich keine Stelle findet, welche die Wiederverheiratung in
  solchem Falle [adultery] als schriftgemäss verteidigt hätte.
  Vielleicht wurden die Kirchenväter bei ihrer Ansicht von der
  alten Anschauung geleitet, nach welcher die zweite Ehe in jener
  Zeit überhaupt gemissbilligt, als _honesta fornicatio_, angesehen
  wurde."]

  [Footnote 43: Thus the strict view is taken by Justin Martyr,
  Clement of Alexandria, Tertullian, and Cyprian. They all
  declare, says FREISEN, that "whoever marries a divorced person
  commits adultery;" but he adds, "Dass dieser Ehebruch auch dann
  statthabe, wenn die erste Ehe wegen Ehebruch geschieden, sagt
  meines Erachtens keiner der genannten Kirchenväter, ebenso wenig
  wie sie sagen, dass in solchem Falle die Wiederverheiratung
  erlaubt sei."--_Op. cit._, 770, 771. _Cf._ LOENING, _op. cit._,
  607; who is criticised by GEFFCKEN, _op. cit._, 19 n. 1; also
  ESMEIN, _op. cit._, II, 49 ff.; PERRONE, _op. cit._, III, 243
  ff.; WOOLSEY, _op. cit._, 109, 110; ZHISHMAN, _op. cit._, 101.]

  [Footnote 44: TERTULLIAN, "On Monogamy," in DONALDSON'S
  _Ante-Nicene Fathers_, IV, 66, 67. See also GEFFCKEN, _op. cit._,
  19-21.]

  [Footnote 45: ESMEIN, _op. cit._, II, 51. CHRYSOSTOM (_De libello
  repudii_, c. iii), Asterius of Amasea, Theodoret, and Hilarius of
  Poitiers all appear to hold that marriage is absolutely dissolved
  by adultery, from which the right of second marriage for both
  parties logically follows: _ibid._, II, 50, 51; ZHISHMAN, _op.
  cit._, 101, 102; GEFFCKEN, _op. cit._, 31.]

  [Footnote 46: FREISEN, _op. cit._, 771. _Cf._ also GREVE,
  _Ehescheidung_, 195, 208 ff. (second marriage in general); CIGOI,
  _Unauflösbarkeit_, 23 ff.; GEFFCKEN, _op. cit._, 22; LOENING,
  _op. cit._, II, 608.]

  [Footnote 47: The rubric of Canon 10 of the council runs:
  "Ut is, cujus uxor adulteravit, aliam illa vivente non
  accipiat."--FREISEN, _op. cit._, 771.]

  [Footnote 48: The canon itself provides: "De his, qui conjuges
  suas in adulterio deprehendunt, et iidem sunt adolescentes
  fideles et prohibentur nubere, placuit, ut, in quantum possit,
  consilium iis detur, ne viventibus uxoribus suis licet adulteris
  alias accipiant."]

  [Footnote 49: This disparity is variously explained. FREISEN,
  _op. cit._, 771, sees here the influence of the Roman law (c.
  1, _Cod. ad leg. Jul._ [ix-9]), which he alleges judges the man
  more leniently than the woman; but GEFFCKEN, _op. cit._, 22,
  23, explains it more reasonably as the result of a difference
  of local practice, since such a discrimination between man and
  woman "the church had thus far zealously opposed;" and, besides,
  he insists that the passage from the code is not in point. It
  should be remembered, also, that some of the early Fathers, as
  we have seen, followed the illiberal principles of the Mosaic
  law discriminating against the woman; this prejudice may have
  prevailed at the Council of Arles. On these councils see also
  ESMEIN, _op. cit._, II, 55, 56; LOENING, _op. cit._, II, 609 ff.]

Finally, with Augustine, the strict doctrine of the early church
takes a definite form, to which the masters of later times look
back as to an authoritative canon of interpretation. He gave to
the theory of indissolubility, declares Esmein, a "basis solid, in
a measure scientific. He gave it a consistency forced from the
sacrament of marriage. He set aside at one stroke all the causes
of divorce admitted by the secular law: sickness, captivity, or
prolonged absence. He was, one may say, the artisan who gave the
final touch to the theory of indissolubility."[50] According to
Augustine, adultery is the only scriptural ground of separation; but
even this does not dissolve the nuptial bond. Moreover, those who,
following the letter of Matthew's text, would for this offense allow
the man, but not the woman, the right of repudiation, he "justly
reproaches with violating one of the great principles of Christian
law--the equality of the wedded pair."[51] Similar views are held by
Hieronymus, Ambrose, Jerome, Chrysostom, and other contemporaries of
Augustine;[52] and it is probably due to his influence mainly that
in 407 the strict theory of indissolubility was proclaimed by the
Council of Carthage;[53] as already in 405 it had been accepted in a
decree of Pope Innocent I. addressed to the bishop of Toulouse.[54]

  [Footnote 50: ESMEIN, _op. cit._, II, 53. "Mais c'est vraiment
  dans saint Augustin que l'on voit établie pour la première
  fois une relation logique et nécessaire entre le sacrement et
  l'indissolubilité."--_Ibid._, I, 65. _Cf._ WOOLSEY, _op. cit._,
  110; ZHISHMAN, _op. cit._, 124.]

  [Footnote 51: ESMEIN, _op. cit._, II, 51, 52, who collects the
  important passages from AUGUSTINE'S _De adult. conjug._, and his
  other works. _Cf._ FREISEN, _op. cit._, 772-74; WOOLSEY, _op.
  cit._, 69,110-12.]

  [Footnote 52: FREISEN, _op. cit._, 772-74; WOOLSEY, _op. cit._,
  112 (Jerome). See CHRYSOSTOM, _Homilia_, XIX, in 1 Cor., chap. 7,
  as opposed to his _De libello repudii_, c. iii, already cited.
  HIERONYMUS, _Epist. 77 ad Oceanum de morte Fabiolae_, c. 3, thus
  expresses the doctrine of equality of the sexes: "Apud nos, quod
  non licet feminis, atque non licet viris." Such also is the view
  of Lactantius: WOOLSEY, _op. cit._, 116.]

  [Footnote 53: "Placuit, ut secundum evangelicam et apostolicam
  disciplinam neque dimissus ab uxore, neque dimissa a marito
  alteri conjungantur, sed ita permaneant, aut sibimet
  reconcilientur. Quod si contempserint ad poenitentiam
  redigantur": contained in _Decret. Grat._, c. 5 C. 32 qu. 7.
  _Cf._ FREISEN, _op. cit._, 774; ESMEIN, _op. cit._, II, 56, 57.]

  [Footnote 54: FREISEN, _op. cit._, 774, 775; ESMEIN, _op. cit._,
  II, 59.]

In practical life the strict theory of the Fathers came very far
short of realization. Hermas, who strongly favors the rigid view,
allows the man to marry again whose wife sins a second time after
once being reconciled.[55] Basil goes farther, declaring that the
husband abandoned by his wife is worthy of pardon, and that the
woman who then marries him is not condemned.[56] Even Jerome excuses
Fabiola, a young Christian woman of high position who had repudiated
a licentious husband and contracted a new marriage, saying, "if
she is blamed because when her husband was divorced she did not
remain unmarried, I will readily admit her fault, while I admit her
necessity."[57] Origen shows that some rulers of the church in such
a case permit a woman to marry again while the first husband is
living;[58] and Augustine confesses that the women who abstain from
remarriage after divorce are extremely few.[59]

  [Footnote 55: "Verily, if her husband do not take her back, he
  sins, and allows himself to commit a great sin; he ought to
  take back the sinning woman who has repented; but ought not to
  do this often. For there is one repentance for the servants of
  God."-- HERMAS, Lib. II, mandat. iv, c. 1; WOOLSEY'S translation,
  _Divorce_, 108. Thus Hermas understands Paul in 1 Cor. 7:11 to
  refer to adultery as the cause of separation. _Cf._ GEFFCKEN,
  _op. cit._, 18, 19; FREISEN, _op. cit._, 770: WOOLSEY, _op.
  cit._, 107-9.]

  [Footnote 56: BASILIUS, _Epist. ad Amphiloch._, c. 9: "Quare quae
  reliquit, est adultera, si ad alium virum accessit, qui autem
  relictus est, dignus est venia et, quae una cum eo habitat, non
  condemnatur." _Cf._ FREISEN, _op. cit._, 772; GEFFCKEN, _op.
  cit._, 30; ESMEIN, _op. cit._, II, 55; PERRONE, _op. cit._, III,
  263. EPIPHANIUS (_Penarion_, lib. 59, c. 4) takes a similar
  position; FREISEN, _op. cit._, 772.]

  [Footnote 57: JEROME, _Ad Oceanum_, cc. iii, iv. _Cf._ WOOLSEY,
  _op. cit._, 112, 113; ESMEIN, _op. cit._, II, 55.]

  [Footnote 58: ORIGINES, _Comment. in Matt._, tom. xiv, no. 23. He
  declares this practice to be against the Scriptures; but still
  he is not inclined to judge severely, as it has been adopted to
  avoid worse evils. _Cf._ FREISEN, _op. cit._, 771; ESMEIN, _op.
  cit._, II, 54]

  [Footnote 59: AUGUSTINE, _De conjug. adult._, II, 17. See
  FREISEN, _op. cit._, 772. Augustine also admits that the man who
  contracts a new marriage after putting away a guilty wife commits
  merely a venial sin: _De fide et operibus_, c. xix; ESMEIN, _op.
  cit._, II, 53; WOOLSEY, _op. cit._, 115.]

_c_) _The legislation of the Christian emperors._--Where the most
severe teachers of the early church, and even the ecclesiastical
councils themselves, as we have seen, were thus led to temporize,
it is not surprising that an enlightened secular policy should
be compelled to take intermediate ground. The legislation of the
first Christian emperors goes far beyond the narrow limits which
Tertullian, Clement, or Augustine would have drawn. For centuries,
through every change in the statutes, the Roman principles of
one-sided divorce and divorce by mutual consent were maintained,
though it was precisely these principles against which primitive
Christianity took its firmest stand. "It was a maxim of Roman law
far down beyond the time when the emperors became Christian, that
no obstacle ought to be put in the way of a dissolution of marriage
caused by the free consent of the partners, liberty of marrying
again being in this case equally unrestricted. The lawyer Paulus
says, that it has been thought improper that marriages, whether
already contracted or about to take place, should be secured by the
force of penalty (_poenae vinculo obstringi_), that is that two
parties ought not to be forced by fear of penalty either to enter
into a state of wedlock to which they were pledged, or to keep
up such a state if they were agreed to the contrary. And it was
laid down that marriage was so free, according to ancient opinion,
that even agreements between the parties not to separate from one
another could have no validity (_pacta ne liceret divertere non
valere_)."[60] One-sided divorce was equally free, except in the
cases and under the conditions fixed by Augustus,[61] "saving that
here, if the woman had caused the divorce by her conduct, a large
share of her dower was withheld from her, and if the man had caused
it, he might be liable to pay over the whole of the dower, and that
within a short term. The parties were subjected until the time of
Justinian to a _judicium morum_, which might be instituted on a
complaint of either consort. The fear, then, of losing a portion
or the whole of the dower, and the dread of a loss of reputation,
when the conduct of the parties in their married life should be
investigated, seem to have been the only inducements to prevent
one-sided divorces. But what if no misconduct could be alleged on
the part of the man, what if he dismissed his wife to marry a richer
woman, the law in this case had no restraining power. And where the
wife brought no dower, as might happen in the lower classes, there
could be no operation of the law at all."[62]

  [Footnote 60: WOOLSEY, _op. cit._, 92, 93: PAULUS, in _Dig._,
  XLV, 1, 134; _Cod._, viii, 39, 1, 2, de inutil. stip.]

  [Footnote 61: The requirement of seven witnesses; the case of
  the freedwoman marrying her patron; and the obligation of the
  husband, under penalty, to put away a guilty wife: see above, p.
  16.]

  [Footnote 62: WOOLSEY, _op. cit._, 94. _Cf._ on the survival of
  the principles of Roman law, GEFFCKEN, _op. cit._, 24, 25.]

Accordingly, the legislation of the early Christian emperors shows
no radical departure from the principles of the existing civil
law. Divorce _ex consensu_ was not prohibited until Justinian, who
decreed that only when both partners are about to enter the cloister
shall a separation by mutual agreement be permitted.[63] But this
prohibition was short-lived; for in consequence of it the number
of suits growing out of "poisoning or other attempts upon life
among married people increased in so frightful a manner"[64] that
the provision was abrogated by Justin II., the immediate successor
of Justinian.[65] On the other hand, the efforts of Constantine
and later rulers are directed mainly toward checking the evils of
one-sided divorce. This is done chiefly through restricting the
number of legal grounds of separation and sharpening the penalties
for their disregard. Thus in 331 Constantine ordains that trifling
causes (_exquisitae causae_) shall no longer suffice for a _repudium
justum_ or legal divorce at the will of one party. The woman may
put away her husband only when he is a murderer, poisoner, or
violator of sepulchers; and the man is allowed to repudiate his
wife only when she is guilty of poisoning, procuring, or adultery.
If the divorce takes place for any other reason, the woman so
violating the statute shall forfeit all claim to restitution of
dower and suffer transportation to an island; while the man in
like case must at once surrender the entire _dos_, being prohibited
also from contracting another marriage.[66] "Still further, if he
thus married, his repudiated wife 'could invade his house,' as
the law expresses it, and acquire possession of the entire dower
of her successor."[67] It should be noted, however, that the
Roman principle of divorce _bona gratia_, or one-sided separation
for a legal cause not implying any guilt or offense, was still
retained.[68]

  [Footnote 63: _Nov._, 117, c. 10.]

  [Footnote 64: GEFFCKEN, _op. cit._, 25.]

  [Footnote 65: _Nov._, 140; _cf._ GEFFCKEN, _loc. cit._]

  [Footnote 66: GEFFCKEN, _op. cit._, 25: _L. 1. C. Theod. de
  repud._, 3, 16. _Cf._ also WOOLSEY, _op. cit._, 96, 97. On the
  legislation of Constantine and his successors see WÄCHTER,
  _Ehescheidungen_, 201 ff., 259 ff.; GLASSON, _Le mariage
  civil et le divorce_, 203 ff.; ESMEIN, _Mélanges_, 157 ff.;
  LUCKOCK, _Hist. of Marriage_, 112 ff.; COMBIER, _Du divorce_,
  81 ff.; TISSOT, _Le mariage_, 88 ff.; TEBBS, _Essay_, 139 ff.;
  BENNECKE, _Ehebruch_, 16 ff.; HENNET, _Du divorce_, 25 ff.; POPP,
  _Ehescheidung_, 62 ff.]

  [Footnote 67: WOOLSEY, _op. cit._, 97; WÄCHTER, _op. cit._, 207
  ff.]

  [Footnote 68: Constantine allowed the wife the right of divorce
  whose husband had been four years absent in the army without
  sending her word. Justinian first raised the period of waiting to
  ten years, and then entirely abolished divorce for this cause.
  "Dagegen blieb die Scheidungsbefugniss bestehen für den Fall der
  Impotenz, wobei jedoch nach Justinians Bestimmung eine Probezeit
  von zwei, später von drei Jahren eingehalten werden sollte." A
  vow of chastity or imprisonment was also counted a legal ground
  of separation by Justinian: GEFFCKEN, _op. cit._, 27. _Cf._ also
  GLASSON, _Le mariage civil et le divorce_, 205, who appears to
  confuse divorce _ex consensu_ and _bona gratia_.]

In 363 Julian repealed the divorce law of Constantine;[69] but the
principle of restricting the grounds of arbitrary repudiation was
again adopted in 421 by Honorius and Constantius; though, like
Julian, they allowed arbitrary separation for lesser faults, with
retention of some portion of the dower.[70] Theodosius II., in 439,
abrogating previous legislation, restored the law of the early
empire; but "after ten years of experiment, in which divorces had
alarmingly increased, gave out another law,[71] which laid down the
causes for which one party might lawfully separate from the other.
The woman was authorized to do this if the man had been guilty of
certain crimes, among which are murder, poisoning, plotting against
the government, fraud, and various sorts of robbery, cruelty toward
or attempts on the life of his wife, intimacy with prostitutes, and
adultery. The causes for which a man could without penalty put away
his wife were for the most part of the same description with those
just mentioned. But peculiar to her are the offenses of passing the
night out of his house, or visiting the theatre, circus, or other
public place against his will."[72] If the divorce occurs for any
reason other than those mentioned in the statute, the penalty for
either person is loss or surrender of the dower and the ante-nuptial
gift; while in addition the woman, under penalty of "infamy," is
prohibited from marrying again within five years.[73] This is a
severe discrimination against the wife; but in one important matter,
it will be noted, the law of Theodosius is strikingly impartial;
for separation is permitted on account of adultery of the man
as well as for that of the woman. In this regard the measure is
far more liberal than the earlier Roman law, according to which
adultery is not a crime which a husband can commit against his
wife.[74] Moreover, while this offense is not always mentioned in
the constitutions of the Christian emperors as legal ground for
divorcing the husband, it is punished with extreme rigor. Sometimes
both offenders are condemned to death. Sometimes a discrimination is
made, the woman usually suffering the harsher penalty.[75]

  [Footnote 69: _L. 2, C. Theod. de dotib._, 3, 13. _Cf._ GEFFCKEN,
  _op. cit._, 25; WÄCHTER, _op. cit._, 202, 213.]

  [Footnote 70: _L. 2, C. Theod. de repud._, 3, 16. _Cf._ WÄCHTER,
  _op. cit._, 215, 216.]

  [Footnote 71: _L. 8, C. de repud._, 5, 17.]

  [Footnote 72: WOOLSEY, _op. cit._, 98, 99; _cf._ GEFFCKEN, _op.
  cit._, 25, 26. The woman is allowed fourteen causes of divorce
  and the man but six; but in effect they are nearly equivalent,
  except as indicated: see WÄCHTER, _op. cit._, 216 ff.]

  [Footnote 73: See the summary of the act in GEFFCKEN _op. cit._,
  25, 26; and WÄCHTER, _op. cit._, 218-20.]

  [Footnote 74: L. 34, § 1, _Dig._, XLVIII, 5, _ad. leg. Jul._:
  _L._ 101, _Dig. dev. sign_. "It may need to be said that only
  a crime to which a married woman was a party could be called
  _adulterium_. The Romans held that the _jus tori_ pertained
  to the husband. He could not commit this crime against his
  wife."--WOOLSEY, _op. cit._, 90, note. _Cf._ FREISEN, _Geschichte
  des can. Eherechts_, 617.]

  [Footnote 75: "Constantine the Great imposed death with
  confiscation of goods on the _adulterer_. His sons punished the
  adulteress with burning and took away from her paramour the
  privilege of appeal, but this seems to have been only a case
  of extraordinary and temporary legislation. Under Valentinian
  the guilty woman was again sentenced to death. Justinian's
  legislation shut up the woman in a cloister, making it illegal
  for her husband to take her back within two years. If the parties
  were not reconciled at the end of this term the marriage was
  dissolved, and the woman's imprisonment in the cloister was
  perpetual. As for the offending man, he was visited with death,
  but not with confiscation of goods, if he had near relatives
  in the direct line."--WOOLSEY, _op. cit._, 91, 92; REIN,
  _Criminalrecht_, 848-52; _Nov._, 134, § 10. In general, on the
  development of the law relating to adultery, see FREISEN, _op.
  cit._, 615-35, 830 ff.; ESMEIN, _Le mariage en droit canonique_,
  I, 102, 103, 111, 384-90; II, 61, 62, 90 ff., 125, 296 ff.;
  _idem_, _Mélanges_, 157 ff.; BENNECKE, _Ehebruch_, 13-33.]

The legislation of Justinian, except in abolishing divorce by common
consent, does not differ essentially in principle or detail from
that of Theodosius II. The causes assigned for a reasonable divorce
(_ex rationabili causa_) are much the same as in the former law. For
disregard of the statute the woman loses her dower and is condemned
to lifelong imprisonment in a cloister; while the man forfeits the
nuptial gift (_donatio propter nuptias_), and besides must pay a
fine equal to one-third of that donation.[76]

  [Footnote 76: _Nov._, 117, cc. 8, 9. _Cf._ GEFFCKEN, _op. cit._,
  26, 27; WOOLSEY, _Divorce_, 99, 100; WÄCHTER, _op. cit._, 206,
  207, 222 ff.]

Thus it appears that during the two centuries between Constantine
and Justinian the legislation of the state relative to the vital
question of divorce is practically untouched by the influence of
Christianity. Informal divorce _bona gratia_[77] and divorce by
mutual consent, both contrary to Christian teaching, are freely
allowed. The principle of further marriage after separation is fully
maintained for the innocent party, and usually under restrictions
for the guilty person as well. The causes of legal divorce are,
indeed, limited and the penalties for unjust repudiation made more
severe; but the strict principle of indissolubility of the marriage
bond, as already conceived by Augustine and his contemporaries, is
completely ignored.[78]

  [Footnote 77: On divorce _bona gratia_ see WÄCHTER, _op. cit._,
  224 ff.]

  [Footnote 78: _Cf._ the conclusions of GEFFCKEN, _op. cit._, 28,
  29; WOOLSEY, _op. cit._, 101.]

_d_) _The compromise with German custom._--Far more important in
its results is the contact of the Christian doctrine with Germanic
customs and ideas. To the newly converted nations of Teutonic
stock came the western empire as a proper heritage. It would be
their task to make the history of the future; to construct a new
civilization by blending the best elements of their own culture
with the maturer results of Roman experience. But this could be
accomplished only through ages of struggle and compromise; through
a slow and painful process of amalgamation in religion, language,
and jurisprudence. For the Germans were relatively young in social
progress. In law and institutions at the time of conversion they
stood about where the Romans were when Roman legendary history
begins. With respect to the customs of marriage and divorce they
stood even lower; for the earliest collections of folk-laws, some
of which were made after the acceptance of Christianity, disclose
marriage as a real contract of sale through which the wife in
theory, and no doubt often in practice, becomes the husband's
chattel. With regard to the primitive law of divorce there is
scarcely any direct information. But it seems probable that
originally the right of repudiation was the sole privilege of the
man, though in practice the arbitrary use of his power must have
been restrained by dread of the blood-feud and the fear of pecuniary
sacrifice.[79] In the historical period, however, and long after the
conversion divorce by mutual agreement seems to have prevailed very
widely among the Germanic peoples; but with the exception of the
_Lex romana Burgundionum_, it does not appear to be sanctioned in
the folk-laws until the seventh[80] century, which fact has led to
the conjecture that this form of separation, "originally alien to
the German legal consciousness," was gradually adopted under Roman
influence.[81] The folk-laws show that, side by side with divorce by
free consent of the parties, the husband still possessed the right
to put away his wife for certain specified crimes;[82] or, indeed,
without assigning any cause whatever, though in that case he might
suffer serious disadvantage with respect to property.[83]

  [Footnote 79: GEFFCKEN, _op. cit._, 33, 34, 43, 44. With this
  view JEAFFRESON, _Brides and Bridals_, II, 295, 296, agrees:
  The Anglo-Saxon wife, he says, could be repudiated at will by
  her "master." But many writers hold that divorce by mutual
  consent is recognized in the ancient Teutonic law. Thus HEUSLER,
  _Institutionen_, II, 291, 292, declares that there was absolute
  liberty of separation by agreement, and that one-sided divorce
  (by _Kündigung_) was very restricted. A similar opinion is
  held by ZOEPFL, _Deutsche Rechtsg._, III, 37, 38; POLLOCK AND
  MAITLAND, _Hist. of English Law_, II, 390; GLASSON, _Le mariage
  civil et le divorce_, 185 ff., 195; FREISEN, _Geschichte
  des can. Eherechts_, 779-81; LOENING, _Geschichte des deut.
  Kirchenrechts_, II, 617; SCHROEDER, _Rechtsgeschichte_, I, 174.
  In general, _cf._ BRUNNER, _Rechtsgeschichte_, 302 ff.; WEINHOLD,
  _Deutsche Frauen_, II, 43 ff.; GRIMM, _Rechtsalt._, 454; WALTER,
  _Deutsche Rechtsgeschichte_, I, 134-36; GLASSON, _Histoire du
  droit et des inst. de l' Angleterre,_ I, 119, 120.]

  [Footnote 80: For examples among Franks and Alamanni see MEYRICK,
  in _Dict. Christ. Ant._, II, 1111.]

  [Footnote 81: GEFFCKEN, _op. cit._, 34, 43, 44. "Das erste
  Volksrecht, welches die freiwillige Scheidung ganz analog dem
  römischen _divortium communi consensu_ gestattet, ist der
  seiner Entstehung nach in die erste Hälfte des 7. Jahrhunderts
  fallende _pactus Alamannorum_."--_Ibid._, 44. The first formulary
  (_libellum_ or _libellus repudii_) for a divorce by mutual
  consent in the folk-laws appears in the _formulae Andegavenses_,
  a collection made in the last quarter of the same century:
  _ibid._, 44; also BRUNNER, _Rechtsgeschichte_, 403, 404; FREISEN,
  _op. cit._, 778, 779. The following formulary for such a divorce
  is taken from Marculf (II, 30) by GLASSON, _op. cit._, 186,
  though it may have been intended for the Roman population living
  on Frankish territory: "Idcirco dum et inter illo et conjuge
  sua ... discordia regnat ... placuit utriusque voluntas ut se a
  consortio separare deberent.... Propterea has epistolas inter
  se uno tenore conscriptas fieri et adfirmare decreverunt, ut
  unusquisque ex ipsis, sive ad servitium Dei in monasterio aut ad
  copulam matrimonii se sociare voluerit, licentiam habeat."]

  [Footnote 82: _Lex Visig._, III, 6, c. 2 (adultery); _Lex
  Burgund._, 34, 3 (_adultera_, _maleficia_, _sepulcrorum
  violatrix_): FREISEN, _op. cit._, 779.]

  [Footnote 83: _Pact. Alam._, III, 3; _Lex Bajuw._, VII, 14; _Lex
  Burg._, tit. 34, c. 2; _Lex Vis._, III 6, c. 2; FREISEN, _op.
  cit._, 779.]

Another principle of the ancient German law it is necessary to
mention in order to obtain a starting-point for the measure of
Christian influence. Originally, according to Wilda,[84] by the
strict legal theory adultery is not a crime which a man can commit
against his wife. He may be punished: indeed very generally in the
folk-laws both the guilty persons may be slain when surprised by
the aggrieved; but if he be punished "it is not for unfaithfulness
to his wife, but for violating the rights of another husband."[85]
On the other hand, for similar misconduct the woman is put to
death. So "in Saxony, where the old heathen ideas survived until the
forcible conversion under Charles the Great, as Boniface reports,
the adulteress, stripped to the girdle, was driven out of her
husband's house and whipped through the streets of the village until
she died."[86]

  [Footnote 84: WILDA, _Strafrecht_, 821 ff. _Cf._ WALTER,
  _Deutsche Rechtsgeschichte_, II, 398 ff.; GLASSON, _Hist. du
  droit_, I, 120.]

  [Footnote 85: GEFFCKEN, _op. cit._, 33. The following provision
  of the old English law illustrates this principle in all its
  harsh reality: "If a freeman lie with a freeman's wife, let him
  pay for it with his wer-geld, and provide another wife with
  his own money, and bring her to the other." Here doubtless the
  guilty woman had been slain: _Laws of Æthelberht_, 31: HADDAN
  AND STUBBS, _Councils_, III, 45. For the same offense with
  an "esne's" wife, sec. 85 of the same laws requires a man to
  "make two-fold bot": _ibid._, III, 50. _Cf._ also secs. 10, 11:
  _ibid._, III, 43; CLEVELAND, _Woman under the English Law_, 9, 51
  ff. (adultery and divorce).]

  [Footnote 86: GEFFCKEN, _op. cit._, 33. _Cf._ in general TACITUS,
  _Germania_, c. 19; GRIMM, _Rechtsalt._, 454; FREISEN, _Geschichte
  des can. Eherechts_, 779; WEINHOLD, _Deutsche Frauen_, II, 25-27,
  who shows that the guilty woman's paramour might lawfully be
  slain by the husband when seized in the act.

  For discussion of the customs of the early Germans regarding
  the punishment of adultery and summaries of the provisions of
  the folk-laws, the capitularies, and later legislation on the
  subject see ROSENTHAL, _Rechtsfolgen des Ehebruchs_, 40 ff.; and
  BENNECKE, _Die strafrechtliche Lehre vom Ehebruch_, 82 ff. Of
  some service is HELLER, _Ueber die Strafe des Ehebruchs_, 17 ff.,
  _passim_.]

To analyze the secular laws or ecclesiastical canons relating to
divorce, as they were slowly developed on Germanic territory after
the conversion, is not an easy task; for they reveal a striving
to harmonize in various ways the often irreconcilable elements
of Roman, Teutonic, and Christian ideas. In the first place, the
imperial legislation remained in force for the Roman population,
though in the compilations made under the barbarian kings various
changes are made to satisfy new and complex relations.[87] Next,
the German folk-laws show in many ways the evidences of compromise
with Christian doctrine under the exigencies of practical life.[88]
National sentiment will not suffer the absolute interdict of further
marriage after separation; but the penalties for unjust action
may be made so severe as to prepare the way for the strict theory
of the church. In the Burgundian code, for example, the man who
puts away his wife for any cause other than those named in the
statute must surrender to her his house and all his possessions;
whereas in the West Gothic Interpretation of the Theodosian code
the chapter on which this provision is modeled prescribes a similar
penalty, not for the illegal divorce itself, but for contracting a
second marriage after the unjust repudiation of the first wife.[89]
Accordingly, in these laws one-sided divorce on the part of the
husband is not entirely taken away; but the grounds on which he
may act are more or less restricted in harmony with the scriptural
rules; and the wife is herself given a rudimentary right of
one-sided repudiation when the husband is guilty of very grave
crimes. In the law of the West Goths, for instance, where Christian
influence is more marked than in any of the other codes before the
close of the eighth century,[90] the right of the man to put away
his wife is restricted to the one cause mentioned by Matthew; while
for two scandalous wrongs the woman may repudiate the husband and
contract another marriage if she likes.[91] On the other hand, the
ancient rule that a man cannot be guilty of adultery against his
wife yields very slightly to the Christian principle of equality of
the sexes with respect to the punishment of carnal sins. Generally,
according to the harsh sanction of the ancient law, the guilty
woman as well as her paramour may be slain by the aggrieved.[92]
In theory, as Geffcken insists, a husband in similar case is still
merely responsible for violating the rights of another man; the only
concessions to the Christian teaching being a tendency to check
concubinage and the privilege of the woman, already mentioned, of
repudiating her husband for certain offenses, among which, it may be
noted, intimacy with other women is not found.[93]

  [Footnote 87: On the _Lex romana Burgundionum_, the _Lex romana
  Visigothorum_, and the _Lex romana curiensis_, see FREISEN,
  _op. cit._, 776-78. _Cf._ also GEFFCKEN, _op. cit._, 42, 43.
  The folk-laws are clearly reviewed by MEYRICK in _Dict. Christ.
  Ant._, II, 1111.]

  [Footnote 88: BOEHMER, _Ehegesetze im Zeitalter Karls des
  Grossen_, 89 ff., summarizes the provisions of the folk-laws and
  capitularies regarding divorce, enumerating twelve different
  causes of separation, some of them being properly grounds of
  nullity.]

  [Footnote 89: See GEFFCKEN'S interesting discussion of tit.
  34, c. 4, _Lex Burgundionum_, in _Ehescheidung_, 35-38. He
  shows, following LOENING, _Geschichte des deut. Kirchenrechts_,
  II, 619, note, that the clause in question is of later origin
  than the rest of tit. 34, probably under Christian influence.
  _Cf._ GLASSON, _Le mariage civil et le divorce_, 187, 188.
  For the text see SALIS'S edition of the Burgundian laws in
  _Mon. Germ. hist.: Legum_, sec. i, tom. ii, p. 68; and compare
  sec. xxiv, "De mulieribus Burgundiis ad secundas aut tertias
  nuptias transeuntibus," _ibid._, pp. 61-63; and sec. lxviii, "De
  adulteriis," _ibid._, p. 95.]

  [Footnote 90: The _Lex Bajuwariorum_, near the end of the
  eighth century, likewise admits divorce only for the one cause:
  GEFFCKEN, _op. cit._, 46.]

  [Footnote 91: _Lex Visig._, lib. iii, tit. iv, c. 3; tit. v, c.
  5; tit. vi, c. 2. For sodomy or for forcing her to adultery, the
  wife may put away the husband and marry again. _Cf._ GEFFCKEN,
  _op. cit._, 38-40; GLASSON, _op. cit._, 187. There is a similar
  provision in the Longobard code: GEFFCKEN, _op. cit._, 41. As a
  general rule, the woman is not allowed one-sided divorce; indeed,
  for attempting such a separation, the _Lex Burgund._, tit. xxxiv,
  c. 1, prescribes the death penalty: _cf._ FREISEN, _op. cit._,
  780, who holds that the woman cannot by German law have the right
  of one-sided divorce, because she cannot dissolve the _mund_
  which belongs solely to the man; and he contends against Sohm,
  Schroeder, and Loening that when the woman, as in exceptional
  cases cited, has the right of separating, it is not she who
  dissolves the marriage, but the law indirectly by depriving the
  man of the _mund_.]

  [Footnote 92: So by the Burgundian, West Gothic, and Longobard
  laws: GEFFCKEN, _op. cit._, 35, 39, 41.]

  [Footnote 93: C. 6 of the laws of the Longobard Grimoald appended
  to the _Edictus Rothari_ in 668, after acceptance of orthodox
  Catholicism, permits the wife not guilty of a _culpa legitima_ to
  leave the husband who keeps permanently in the house a concubine
  whom he prefers to the wife. It may be noted that occasional
  fornication is not mentioned; and that c. 8 of the law assumes as
  a rule that there will be a reconciliation: GEFFCKEN, _op. cit._,
  41, 42. _Cf._ FREISEN, _op. cit._, 780, who holds that, according
  to c. 8 of the _Lex Grimoald._, bigamy does not allow the wife a
  divorce.]

Such are the salient features of secular legislation on German
territory following the migration and settlement of the new
nations. Let us now look at the question from the opposite point
of view--that of the decrees and practice of the church itself.
For more than three hundred years after the strict theory of
Augustine had been proclaimed by the Council of Carthage and by
Innocent I. in the beginning of the fifth century, there is more
or less wavering on the part of ecclesiastical authorities. In
general, it may be said there is a tendency to uphold the rigid
doctrine of indissolubility; but the evidences of compromise with
popular sentiment are by no means wanting. Almost always in the
papal letters divorce with remarriage is absolutely forbidden.[94]
Yet in 726 Gregory II., in a letter addressed to St. Boniface,
permits a man to contract a new marriage because his wife by reason
of infirmity is unable to perform her conjugal duty; and this
opinion has proved a sore puzzle to canonists and theologians,
for it is utterly inconsistent with an earlier decision of the
same pontiff.[95] A similar inconsistency exists in the conciliar
decrees. The doctrine of indissolubility is rigidly enforced by the
Council of Angers in 453; the two Councils of Orleans in 533; the
Council of Nantes in 658; that of Friuli in 796; and generally by
those of the ninth century.[96] On the other hand, several decrees
are much more tolerant. In 465 the Council of Vannes "expressly
exempts from anathema those men who marry again after putting away
their wives for adultery proved;"[97] and, still more liberal, the
Council of Agde, 505, while expressly allowing more than one cause
of separation _a vinculo_, threatens with excommunication only
those who repudiate their wives for the sake of remarriage without
"establishing in advance before the bishops of the province the
causes of their divorce."[98]

  [Footnote 94: ESMEIN, _Le mariage en droit canonique_, II, 59;
  FREISEN, _op. cit._, 782; LUCKOCK, _Hist. of Marriage_, 154-72.]

  [Footnote 95: On Gregory's two decisions see ESMEIN, _op. cit._,
  II, 59, 60; and FREISEN, _op. cit._, 331 ff., 782, who tries to
  explain away the contradiction, claiming that here is a case
  of declaring a marriage void _ab initio_. _Cf._ PERRONE, _De
  mat. christ._, III, 332 ff.; LOENING, _Geschichte des deut.
  Kirchenrechts_, II, 623.]

  [Footnote 96: ESMEIN, _op. cit._, II, 57, 58.]

  [Footnote 97: _Ibid._, 57; FREISEN, _op. cit._, 781.]

  [Footnote 98: _Decret. Grat._, c. 1 C. 33 qu. 2. _Cf._ FREISEN,
  _op. cit._, 781; ESMEIN, _op. cit._, II, 57.]

At the time of the conversion the old English laws on this subject
were probably much the same in character as those of their
Teutonic kinsmen across the channel. From the code of Æthelberht
it may perhaps be inferred that divorce is allowed at the will of
either spouse. Apparently in all cases of arbitrary separation
the responsible party suffers a severe penalty. The man loses
all claim to repayment of the purchase price of the wife; while
the woman or her guardian has to restore the same to the husband
or his family.[99] The penitentials, as will presently be seen,
afford abundant evidence that in practice the spirit of ancient
custom yielded but stubbornly to ecclesiastical influence. But,
so far as it could be done by legislation, the century following
the conversion of Kent saw the strict doctrine of the Roman see
established in the daughter-church of England. At the Council of
Hertford in 673 it is decreed that divorce shall not be permitted
except on the ground assigned by the "holy evangel;" but should
a man "put away the wife united to him in lawful wedlock, if he
wish to be rightly a Christian, let him not be joined to another,
but remain as he is or else be reconciled to his wife."[100] After
nearly two centuries, during which the records are silent on this
subject, the same rule is laid down in the so-called _Law of the
Northumbrian Priests_, by which anathema is invoked on one in holy
orders who shall "forsake a woman and take another;" while the
layman guilty of the same offense shall want "God's mercy, unless he
make bot;" everyone being required to "lawfully keep his wife, as
long as she lives, unless ... they both choose, with the bishop's
consent, to separate, and will thenceforth observe chastity."[101]
From this time onward, as clearly shown by the canons of
Dunstan,[102] those issued under Æthelred at the Council of Eanham
(_ca._ 1009),[103] and later decrees, the theory of indissolubility
was unswervingly accepted by the English church under sanction of
the temporal power.[104]

  [Footnote 99: The statements of the text are probably sustained
  by _Æthelberht_, 31, 77-83: in HADDAN AND STUBBS, _Councils_,
  III, 45, 49; THORPE, _Anc. Laws_, I, 11, 33, taking into account
  the usual effects of wife-purchase. _Cf._ however, JEAFFRESON,
  _Brides and Bridals_, II, 294-98, who holds that among the pagan
  Britons and Anglo-Saxons divorce may be described as "simple
  repudiation of wives at the will of their masters." In the tenth
  century, he adds, Howell Dha, sovereign of Wales, "decreed that
  a husband might righteously eject from his home the wife who had
  given a single kiss to any man but himself." See also GLASSON,
  _Le mariage et le divorce_, 195, whose references to the laws of
  Æthelberht do not seem to warrant all his conclusions; also his
  _Histoire du droit_, I, 120; and POLLOCK AND MAITLAND, _Hist. of
  Eng. Law_, II, 390. In general see ROSENTHAL, _Rechtsfolgen des
  Ehebruchs_, 55 ff.]

  [Footnote 100: HADDAN AND STUBBS, _op. cit._, III, 118. ESMEIN,
  _op. cit._, II, 57, regards the last clause as merely advising
  the man not to marry again; and FREISEN, _op. cit._, 782, thinks
  it not quite certain that it applies to the case of separation
  for adultery. _Cf._ also LUCKOCK, _Hist. of Marriage_, 167-69;
  and CIGOI, _Unauflös. der ch. Ehe_, 79.]

  [Footnote 101: _Law of Northumbrian Priests_, secs. 35, 64, 65:
  THORPE, _Anc. Laws_, II, 296, 300. _Cf._ LUCKOCK, _op. cit._,
  170, 171; JOHNSON, _Canons_, I, 950, 35, 54.]

  [Footnote 102: JOHNSON, _op. cit._, I, 963, 27.]

  [Footnote 103: _Ibid._, 1009, 8.]

  [Footnote 104: The ecclesiastical laws of Howell the Good of
  Wales (928) show more clearly, perhaps, than is done anywhere
  else the way in which the church was often constrained to put
  up with barbarian custom. One-sided divorce with remarriage is
  allowed each party, under penalty for repudiation without legal
  cause. If the husband desert the wife within seven years, he must
  pay her the dower (_agweddi_), the maiden-fee (_cowyll_), and
  the maiden-dues (_gobyr_) for the lord. "If after seven years,
  he leave her; let all be shared between them, unless privilege
  should give precedence to the husband: two parts of the children
  go to the husband, and the third to the mother. The eldest
  and the youngest go to the father." "A man is free to forsake
  his wife, if she notoriously attach herself to another man;
  and she is to obtain nothing of her right excepting the three
  things [cowyll, argyvren (paraphernalia), wyneb-werth (fine for
  husband's fornication)] which are not to be taken from a woman,
  and the seducer is to pay to the lawful husband his saraad," or
  injury fine. "If a man deserts his wife unlawfully and takes
  another; the rejected wife is to remain in her house until the
  end of the ninth day; and then, if she be suffered to depart
  entirely from her husband, everything belonging to her is to go
  in the first place out of the house; and then she is to go last
  out of the house, after all her property; after that, on bringing
  the other into the house, he is to give dilysdawd (assurance) to
  the first wife; because no man, by law, is to have two wives."
  "Whoever shall leave his wife, and shall repent leaving her,
  she having been given to another husband; if the first husband
  overtake her with one foot in the bed and the other out; the
  first husband by law is to have her." "For three causes, if a
  woman desert her husband, she is not to lose her dower: for
  leprosy; want of connection; and bad breath."--HADDAN AND STUBBS,
  _Councils_, I, 246-51.]

Already in the Carolingian empire, through co-operation of the
secular authority, the teachings of Augustine had gained a similar
triumph. The ecclesiastical capitularies of the Frankish kings, from
the ascendency of the house of Charles Martel to the consolidation
of the state under Charles the Great, are of especial interest in
this connection, for they prepare the way for the synthetic work
of the canonists. During the dark period of the Merovingian line
any attempt through legislation to deal seriously with divorce or
any similar social or moral problem could scarcely arise; for it
would have meant some restriction of the prevailing licentiousness,
to which all classes were committed. Civil rulers were steeped in
debauchery. The church was apathetic and corrupt. "With the advent
of the Carolingian major domus, the level of morality begins to
rise."[105] Already in 744, at the Synod of Soissons, a royal
capitulary clearly forbids divorce to each spouse, except that a
husband may put away a guilty wife on the scriptural ground; but in
that case whether the innocent person may contract a new marriage we
are not informed.[106] This attempt to enforce the rigid doctrine
of the ancient church seems to have been premature; for a few years
later, at the synods of Verberie (753) and Compiègne (757), rules
much more tolerant are proclaimed.[107] These capitularies possess
more than usual historical interest in view of their "profound and
durable influence" on the final settlement of the law by Gratian and
his successors.[108] Several grounds of divorce with remarriage are
admitted. According to the decree of Verberie, the man whose wife
plots against his life may put her away and take another spouse; but
the divorced woman may not remarry. So also, by the same decree, the
man may form a new marriage, if his wife through love of her parents
or some selfish interest refuses to accompany him when he flees from
danger or is constrained to follow his lord into another duchy or
province. In this case, the woman must remain unmarried while her
husband lives.[109] Again, the Synod of Verberie provides that if
either person in course of the wedded life shall fall into slavery,
the one remaining free is at liberty to marry again when he likes.
"A single exception is admitted which throws a sombre light on the
society of that epoch: if a spouse under pressure of misery has sold
himself as a slave, the partner remaining free, who has shared the
bread thus gained and whom the sale has saved from hunger, is not
entitled to a divorce."[110]

  [Footnote 105: GEFFCKEN, _op. cit._, 45, who gives, 44-46, 52-55,
  an interesting discussion of the reasons for the absence of
  divorce regulations during the Merovingian era.]

  [Footnote 106: ESMEIN, _op. cit._, II, 58, 64; GEFFCKEN, _op.
  cit._, 55.]

  [Footnote 107: The dates are uncertain. In general, on these
  synods see FREISEN, _op. cit._, 782-84; GEFFCKEN, _op. cit._,
  55-57; and especially ESMEIN, _op. cit._, II, 64-69; who gives a
  clear summary of their decrees. _Cf._ PERRONE, _De mat. christ._,
  III, 332, 338 ff.]

  [Footnote 108: ESMEIN, _op. cit._, II, 69.]

  [Footnote 109: C. ix of the decree runs: "Si quis necessitate
  inevitabili cogente in alium ducatum seu provinciam fugerit, aut
  seniorem suum, cui fidem mentiri non poterit, secutus fuerit, et
  uxor ejus, cum valet et potest, amore parentum aut rebus suis,
  eum sequi noluerit, ipsa omni tempore, quamdiu vir ejus, quem
  secuta non fuerit, vivet, semper innupta permaneat. Nam ille vir
  ejus ... si se abstinere non potest, aliam uxorem cum poenitentia
  potest accipere." _Cf._ ESMEIN, _op. cit._, II, 66, note. In
  contrast with this decision, the Synod of Compiègne forbids both
  parties to remarry when the husband abandons his wife in order to
  escape private vengeance: _ibid._, 66.]

  [Footnote 110: ESMEIN, _op. cit._, II, 68; I, 325: _ap._ c. vi,
  decree of Verberie. _Cf._ also FREISEN, _op. cit._, 788; and
  CIGOI, _Unauflös. der ch. Ehe._, 74, who regards this synod more
  as an imperial diet than an ecclesiastical assembly, and so
  excuses its action. _Cf._ HEFELE, _Konzilien-Geschichte_, III,
  537.]

Even more striking is the decree of Compiègne regarding the effect
of religious vows. When by agreement either partner enters the
cloister, the spouse remaining in the world has the right of
remarriage. To this decision, so sharply in contrast with the mature
doctrine of the canon law, it is significant that a papal delegate
to the synod, Bishop George of Ostia, gave his consent. The severer
and more orthodox principle had been followed by the Synod of
Verberie, which prohibits the man from remarriage when he suffers
his wife to take the veil.[111] Both decrees permit separation
on various other grounds, such as error of condition and certain
degrees of affinity, which, under the dangerous guise of nullity,
"constitute veritable exceptions to the rule" that the nuptial tie
cannot be dissolved.[112]

  [Footnote 111: ESMEIN, _op. cit._, II, 65.]

  [Footnote 112: These decrees are for the most part included
  in the collection of Gratian; "mais il se fera tout un
  travail pour les mettre d'accord avec la règle triomphante de
  l'indissolubilité; elles contribueront néanmoins à introduire,
  dissimulées sous la forme de nullités, de véritables exceptions à
  cette règle."--ESMEIN, _op. cit._, II, 69.]

Finally there is a singular omission which has called forth an
instructive comment from a modern scholar. "It is remarkable that
neither of these decrees mentions adultery as a cause of divorce.
This is so without doubt because the capitulary of Soissons already
gave that quality to the sin of the woman who alone was considered.
Besides, in that rude society, this cause of divorce in most cases
was probably superfluous. The deceived husband had no need to invoke
it. Not merely when he surprised his wife _flagrante delicto_,
but also when he had grave suspicion against her, did he take
justice into his own hands, killing the guilty woman; and the deed
probably went unpunished. In this regard the church appears to
have shown ample indulgence. No doubt she entirely forbade a new
marriage to the spouse who slew a partner; but that was never more
than a prohibitive impediment for which dispensation was granted
with sufficient ease. Here a means was admitted by law and custom
for evading the rule of indissolubility of the conjugal bond.
St. Augustine had already contemplated it; and various passages
of Hincmar of Rheims show clearly that more than one husband had
recourse to it in his time."[113]

  [Footnote 113: _Ibid._, 66, 67.]

It is strange that so wide a relaxation of the principle accepted
by the early church, in part under the sanction of Rome itself,
should have preceded by so few years its complete triumph in the
capitularies of Charles the Great. From 774 onward, with slight
wavering, the rigid doctrine is maintained both by imperial and
papal authority; as likewise it is expounded in the canonical
literature of Gratian's predecessors, notably by Benedict Levita and
Hincmar of Rheims.[114]

  [Footnote 114: _Cf._ GEFFCKEN, _Ehescheidung_, 57-62; FREISEN,
  _Geschichte des can. Eherechts_, 792 ff.]

But there is other testimony of a most convincing nature that the
practice of the church could not keep pace with her theory. It is
afforded by the penitentials. These are private manuals designed
for the practical guidance of priests in their daily ministrations,
one of the oldest and most interesting of which is that bearing the
name of Theodore of Tarsus,[115] the reorganizer of the English
church and president of the Council of Hertford, where the orthodox
rule relating to divorce was proclaimed. On this penitential and
the somewhat older one of the Irish Columban the earlier Frankish
penitentials are modeled, sometimes with literal exactness. Divorce
with remarriage is allowed to one or both persons on various
grounds. In case of adultery a discrimination is made in favor
of the husband. He is given the right of repudiating the guilty
woman; and, in case it be a dissolution of the first marriage, he
may take a new spouse without delay. Even the divorced woman may
remarry after a penance of five years. For the like sin, however,
the wife is forbidden to send the husband away, except to enter a
monastery.[116]

  [Footnote 115: The _Poenitentiale Theodori_ is contained in
  HADDAN AND STUBBS, _Councils_, III, 173-213; also that of
  Ecgberht, _ibid._, III, 413-31. Versions of these may be found
  in THORPE, _Ancient Laws_, II, 1 ff., 129 ff.; also with many
  others in WASSERSCHLEBEN, _Bussordnungen_; and in SCHMITZ,
  _Bussbücher_, 510 ff., 565 ff., who, contrary to the generally
  accepted view, traces (3 ff.) all the penitentials to Roman
  models. In general, see GEFFCKEN, _op. cit._, 61-67; FREISEN,
  _op. cit._, 785-92; ESMEIN, _op. cit._, II, 60-64; PERRONE, _De
  mat. christ._, III, 374 ff.; HINSCHIUS, "Das Ehescheidungsrecht
  nach den angelsächsischen und fränkischen Bussordnungen,"
  _Zeitsch. für deut. Recht_, XX, 66 ff.; ROSENTHAL, _Rechtsfolgen
  des Ehebruchs_, 2 ff.; and especially BENNECKE, _Ehebruch_, 34
  ff. LUCKOCK, _Hist. of Marriage_, 165-67, tries, of course, to
  take away the authenticity of THEODORE'S Penitential.]

  [Footnote 116: _Poenitentiale Theod._, II, xii, 5, 6: HADDAN AND
  STUBBS, _Councils_, III, 199: _cf._ THORPE, _Anc. Laws_, II, 17.
  For similar provisions, see _Poenitentiale XXXV Capitulorum_,
  c. 9, § 1: WASSERSCHLEBEN, _Bussordnungen_, 511; and the
  _Excerptiones Ecgberti_, c. 121: THORPE, _op. cit._, II, 114,
  115.]

Again, for malicious desertion on the part of the wife, the man
may contract a new marriage after five years, if the bishop gives
his consent;[117] and a woman whose husband loses his liberty for
crime committed has the right to wed another man after a single
year, if it be the first marriage which is thus dissolved.[118]
Remarriage is allowed either spouse when the other is made captive
in war;[119] and in case of conversion each spouse has the right of
one-sided divorce, if the other remains in paganism.[120] Several
other grounds of repudiation are recognized, as, for instance, when
anyone has ignorantly married a person of servile condition;[121] or
when a husband or wife is raised in rank and the consort remains in
servitude.[122] But perhaps the most striking proof that in practice
the church was obliged to compromise with popular sentiment is the
repeated recognition of divorce by mutual consent.[123]

  [Footnote 117: "Si mulier discesserit a viro suo despiciens eum,
  nolens revertere et reconciliari vero, post v. annos cum consensu
  Episcopi aliam accipere licebit uxorem."--_Poenit. Theod._, II,
  xii, 19: HADDAN AND STUBBS, _op. cit._, III, 200. The _Poenit.
  Merseburgense_, c. 104: WASSERSCHLEBEN, _op. cit._, 402, seems to
  allow the man in such case to marry after one year: "Si mulier
  a viro discesserit et iterum reversa fuerit, suscipiat eam sine
  dote et ipsa ann. I poeniteat in p. e. a., similiter et ille,
  si aliam duxerit."--HINSCHIUS, _Das Ehescheidungsrecht_, 80;
  but GEFFCKEN thinks the second wife must be sent away when the
  first wife returns, the man doing penance: _Ehescheidung_, 63,
  64. _Cf._ similar provisions in _Poenit. Cummeani_, c. 3, § 31,
  _Poenit. XXXV Cap._, c. 9, § 2: WASSERSCHLEBEN, _op. cit._, 474,
  511; and _Poenit. Theod._, I, xiv, 13: HADDAN AND STUBBS, _op.
  cit._, III, 188.]

  [Footnote 118: _Poenit. Theod._, II, xii, 8: HADDAN AND STUBBS,
  _op. cit._, III, 199.]

  [Footnote 119: In that case, "licet aliam accipere; melius est
  sic facere quam fornicationes": _Poenit. Theod._, II, xii, 23:
  HADDAN AND STUBBS, _op. cit._, III, 200, 201; _cf._ THORPE, _op.
  cit._, II, 19.]

  [Footnote 120: _Poenit. Theod._, II, xii, 17, 18: HADDAN AND
  STUBBS, _op. cit._, III, 200.]

  [Footnote 121: _Poenit. Theod._, II, xii, 32, xiii, 5: HADDAN AND
  STUBBS, _op. cit._, III, 201, 202; _cf._ ESMEIN, _Le mariage en
  droit canonique_, II, 64.]

  [Footnote 122: _Poenit. Theod._, II, xiii, 4: HADDAN AND STUBBS,
  _op. cit._, III, 202.

  These provisions (notes 4 and 5) are similar to those of the
  synods of Verberie and Compiègne relating to _error conditionis_
  and loss of freedom. See p. 42, above; and ESMEIN, _op. cit._, I,
  325; II, 68.]

  [Footnote 123: "Legitimum conjugium non licet frangi sine
  consensu amborum."--_Poenit. Theod._, II, xii, 7: HADDAN AND
  STUBBS, _op. cit._, III, 199. _Cf. Poenit. Mers._, c. 123,
  _Poenit. XXXV Cap._, c. 9, § 1: WASSERSCHLEBEN, _Bussordnungen_,
  403, 511. Sometimes in such case remarriage is forbidden:
  _Judicium Clementis_, § 15: WASSERSCHLEBEN, _op. cit._, 435.
  _Cf._ ESMEIN _op. cit._, II, 61; GEFFCKEN, _op. cit._, 64;
  GLASSON, _op. cit._, I, 130, who favors the view of the text;
  but FREISEN, _op. cit._, 779, 780, thinks that § 7 of _Poenit.
  Theod._ is supplemented by § 12, which forbids separation on
  account of infirmity or even to enter religion _cum consensu
  ambrorum_. This view may be favored by _Excerptiones Ecgberti_,
  c. 120, 121: THORPE, _op. cit._, II, 114, 115.]

Such laxity seems to have marked the practice of the Frankish,
and probably also that of the Anglo-Saxon, church during a period
of a hundred and fifty years (650-800). With the beginning of the
ninth century, however, a turning-point is reached. More stringent
rules are prescribed by the councils; and new penitentials are
prepared under ecclesiastical authority much more in harmony with
the teachings of Rome. But even now, seemingly, the clergy shrank
from the attempt fully to carry out the reactionary discipline. As
a result a third class of manuals for a time appeared, occupying
medial ground, and better fitted to satisfy the needs of populations
not yet entirely able to give up the liberty which their ancient
laws secured.[124]

  [Footnote 124: For an illustration see the _Poenit.
  pseudo-Theod._, c. iv (19), § 24, in WASSERSCHLEBEN, _op. cit._,
  582. The best account of the three classes of penitentials is
  that of GEFFCKEN, _op. cit._, 62-65, which is here followed. See
  also ESMEIN, _op. cit._, II, 60; BENNECKE, _Ehebruch_, 54 ff.]

_e_) _Final settlement of the Christian doctrine in the canon
law._--From the age of Charles the Great the ultimate triumph of
the strict ecclesiastical theory of divorce was entirely assured.
But there yet remained a twofold task which it would still require
centuries to accomplish. On the one hand, the discordant utterances
of the Fathers, the popes, and the councils had to be harmonized or
explained away; while, at the same time, the results thus gained
had to be exactly formulated and wrought into the intricate system
of matrimonial jurisprudence. This was the work reserved for the
canonists, and especially for the two great "masters," Gratian and
Peter Lombard. On the other hand, the practice of the church must
be made more thoroughly to coincide with her theory. A means must
be found by which the people could be constrained, so far indeed as
that was ever to be realized, to accept the canon law as a guide in
the affairs of actual life. This end the church was destined to win
by gaining exclusive control of divorce procedure as a part of her
general competence in matrimonial causes.

Under the Roman law, as also by that of the Jews, divorce was
a private transaction. The intention of the person repudiating
his spouse was declared orally[125] before seven witnesses. The
state might, indeed, punish the crimes causing the separation
or enforce the penalties for unjust action, thus incidentally
passing on the legality of the divorce itself; but if the proper
forms were observed, the private divorce, whether one-sided or by
mutual consent, was valid, and the state gave no action either
for enforcing the separation or for the restitution of conjugal
life.[126]

  [Footnote 125: During the empire a written form, the _libellus
  repudii_, or letter of divorce, came into use; but the delivery
  of the _libellus_ was not essential to the divorce: GEFFCKEN,
  _op. cit._, 27: _ap._ SCHLESINGER, in _Zeitschrift für
  Rechtsgeschichte_, V (1866), 203 ff.]

  [Footnote 126: GEFFCKEN, _op. cit._, 26, 27; ESMEIN, _op. cit._,
  II, 89.]

The same principle obtains among the German nations after the
conversion. Divorce is a private act, and there is no proper
divorce process in the temporal courts. Separation by free consent
is usually effected merely through exchange of duplicate copies of a
written agreement, or _libellus repudii_;[127] and if sometimes the
intention of the parties must be declared before judicial authority,
it does not follow that there is any examination of the grounds of
action or any judgment admitting or refusing the separation. The
"function of the court can have only the purpose of establishing
the formal correctness of the act of self-divorce."[128] In the
case of one-sided divorce the same general rule prevails. There may
be judicial action; but it is an action to punish the crime of the
guilty person or to enforce the penalty for unjust repudiation.
"The form of one-sided divorce in the Teutonic folk-laws rests upon
the same fundamental principles as that of the _leges Romanae_.
Self-divorce is in equal degree true Roman and true German. In
each case justifiable separation may be preceded by a penal action
to determine the guilt of the accused. In each case, moreover, it
is not the divorce which the sentence directly decrees, but its
justification. It still rests with the aggrieved spouse whether he
will make use of his right of separation, or whether he will allow a
reconciliation to take place."[129]

  [Footnote 127: The _libellus_ was copied from the Roman model.
  For an example, see above p. 35, note.]

  [Footnote 128: GEFFCKEN, _op. cit._, 47, referring to the
  _formulae salicae Merkelianae_, where the intention of the
  parties must be personally announced "an Gerichtsstätte vor
  dem Grafen und der Gerichtsgemeinde." His view, he declares,
  is intermediate between that of LOENING, _Geschichte des
  deut. Kirchenrechts_, II, 627 n. 1, who regards the count
  and judicial community as mere witnesses of the transaction
  (_Solennitätszeugen_); and that of SOHM, _Trauung und Verlobung_,
  7, who sees here a judicial sentence.]

  [Footnote 129: GEFFCKEN, _op. cit._, 48, 49.]

The church was ambitious to take the matter of divorce procedure
entirely into her own hands; to establish a real jurisdiction which
would enable her effectually to forbid separation except on the
grounds which she herself approved, and to compel the restitution
of married life when separation occurred for any other cause.[130]
It was long before this ambition was realized. The council of Agde
as early as the year 505 did indeed declare, in effect, that,
besides the penal sentence of the temporal court, a recognition of
the grounds of divorce by the ecclesiastical authority shall be
required for a separation; and whoever puts away his wife without
first satisfying these conditions shall be excommunicated.[131] To
this decree, so emphatic in its demands, the origin of spiritual
jurisdiction in divorce questions is commonly traced;[132] but this
seems far from being the truth. The decree must rather be accepted
as an early but "isolated" expression of an ideal toward which the
church for ages was striving; and as such it became of more and more
importance as the great doctors of the canon law found themselves in
a position to give it meaning.[133]

  [Footnote 130: The church sought through excommunication and her
  system of penance to enforce her rules regarding divorce. Her
  relation to the state in this regard is thus forcibly described
  by GEFFCKEN, _op. cit._, 51: "Da jedoch eine aufrichtige
  Busse in unserem Falle sinngemäss nur möglich ist, wenn die
  ungerechtfertigte Scheidung rückgängig gemacht wird, so operiert
  die Kirche hier mit einer _lex plus quam perfecta_, d. h. einem
  Gesetz, das die Zuwiderhandlung bestraft und gleichzeitig für
  nichtig erklärt, während dem weltlichen Richter nur eine _lex
  minus quam perfecta_ zu Gebote steht, er also nur die Übertretung
  bestrafen, nicht aber den durch sie herbeigeführten Zustand
  redressieren kann. In dieser Sachlage ist die Erklärung der
  ganzen Geschichte des christlichen Ehescheidungsrechtes bis zum
  endgültigen Siege der kirchlichen Doktrin enthalten."]

  [Footnote 131: C. 25, Council of Agde reads: "Saeculares, qui
  coniugale consortium nulla graviori culpa dimittunt vel etiam
  dimiserunt et nullas causas discidii probabiliter proponentes
  propterea sua matrimonia dimittunt, ut aut illicita aut aliena
  praesumant, si antequam apud episcopos comprovinciales discidii
  causas dixerint et priusquam iudicio damnentur, uxores suas
  abiecerint, a communione ecclesiae et sancto populi coetu pro eo,
  quod fidem et coniugia maculant, excludentur." _Cf._ GEFFCKEN,
  _op. cit._, 50; FREISEN, _op. cit._, 781.]

  [Footnote 132: It is preferably cited by Hincmar of Rheims in his
  decree concerning the divorce of Lothar and Teutberge; and since
  Regino of Prüm it belongs to the standing armor of the canonists,
  until it receives its immortalization in the decree of Gratian
  (c. 33, qu. 2, c. 1): GEFFCKEN, _op. cit._, 52, note.]

  [Footnote 133: GEFFCKEN, _op. cit._, 52. _Cf._ on this decree and
  its use by the canonists ESMEIN, _op. cit._, II, 89, notes.]

Even during the Carolingian era theoretically the state still
maintained the old position. The judgment in a penal action neither
nullified nor enforced self-divorce. In reality, however, the power
of the church in this field was vastly increased at the expense of
the state.[134] For the state then undertook as never before to
enforce the discipline through which hitherto the church had striven
in vain to realize her doctrine.[135] Backed by the state, the
church thereafter had the power to compel a restitution of conjugal
life when a divorce was attempted against her will--a power which
the secular judge had never possessed. Accordingly, "the temporal
divorce jurisdiction of the Frankish empire, so far indeed as one is
justified in speaking of such a jurisdiction, was not abolished by a
legislative act; but it gradually perished through the contradiction
to its own laws in which the state of the Carolings involved
itself when it made the unqualified support of the disciplinary
jurisdiction of the church one of its cardinal principles of
government."[136] Already by the beginning of the tenth century this
process was practically complete.[137] In German lands the diocesan
court of the bishop had become the ordinary tribunal for divorce
causes; and for annulment of the uncanonical separation an exact
formula, the oath of reconciliation, had been devised.[138]

  [Footnote 134: "Wenn trotzdem die Zeit der Karolinger als
  diejenige Epoche zu bezeichnen ist, in welcher die Kirche den
  ihren endgültigen Sieg im Kampfe um das Ehescheidungsrecht
  besiegelnden Fortschritt machte, so wird dieser Fortschritt
  weniger auf dem Gebiete des materiellen Rechtes als auf
  demjenigen des Ehescheidungsverfahrens gesucht werden
  müssen."--GEFFCKEN, _op. cit._, 68.

  Geffcken criticises SDRALEK, _Hincmars Gutachten über die
  Ehescheidung des Königs Lothar II._, 108 ff., who holds that
  the Frankish civil court has full authority to decree divorces.
  According to SOHM, "Die geistliche Gerichtbarkeit im fränk.
  Reich," _ZKR._, IX, 218, 242 ff., the Frankish matrimonial
  law is "temporal law, and receives its development through
  temporal custom and legislation." The canons are statutes for
  the spiritual and not for the temporal law; and only through
  the public lawgiver do they have any effect upon the legal
  principles governing marriage. "By virtue of public law marriage
  is subordinate to the state and not to the church." The spiritual
  law is no law for the temporal court; and in matrimonial causes
  the spiritual court is no court according to public law. There
  exists, in fact, in the Frankish empire no spiritual jurisdiction
  in the sense of public law. With this view GEFFCKEN, _op. cit._,
  68 n. 3, agrees; while rejecting as inconsistent therewith Sohm's
  later statement in _ZKR._, XVII, 179, that the judgment of the
  temporal as well as that of the spiritual court was necessary for
  a divorce. Compare BOEHMER, _Ehegesetze im Zeitalter Karls des
  Grossen_, 108-16, who explains the contradictory enactments of
  the period as the result of the two systems of jurisprudence--the
  temporal and the spiritual.]

  [Footnote 135: See the remarkable capitulary of Lothar I., 825.
  For the correction of all sins and crimes (_quibuslibet culpis
  atque criminibus_) the count is associated with the bishop.
  When excommunication fails to correct the offender, "_a comite
  vinculis constringatur_": quoted by GEFFCKEN, _op. cit._, 72;
  _cf._ ESMEIN, _op. cit._, I, 13, 14.]

  [Footnote 136: GEFFCKEN, _op. cit._, 74.]

  [Footnote 137: See GEFFCKEN'S argument based on the _Libri duo
  de synodalibus causis et disciplinis ecclesiasticis_ of Regino,
  abbot of Prüm (883-915): _op. cit._, 77-79. In England under
  King Cnut the bishop already appears to have had jurisdiction in
  divorce cases, although not until more than a century later was
  the matrimonial jurisdiction of the English ecclesiastical courts
  fully established: POLLOCK AND MAITLAND, _Hist. of Eng. Law_, II,
  364, 365.]

  [Footnote 138: The following is the form of the _iuramentum de
  reconciliatione coniugatorum_ taken by GEFFCKEN (_op. cit._,
  79) from cc. 241, 242, of REGINO'S book: The man shall swear:
  "Ab isto die in antea istam tuam coniugem, nomine illam, quam
  iniuste dimiseras, ita tenebis, sicut per rectum maritus suam
  debet habere coniugem in dilectione et debita disciplina, nec eam
  per ullum malum ingenium a te separabis, nec ea vivente aliam
  accipies. Sic te Deus adiuvet." The oath of the woman runs: "A
  modo in antea istum tuum maritum, quem iniuste dimiseras, ita
  tenebis et amplexaberis, et ei in servitio, in amore et in timore
  ita eris subiecta et obediens, sicut per rectum uxor suo debet
  subiecta esse marito, nec unquam ab eo te separabis, nec illo
  vivente alteri viro te sociabis in coniugio aut adulterio. Sic te
  Deus adiuvet."]

A powerful instrument was thus provided for the development and
enforcement of a complete system of divorce jurisprudence. Little by
little the canonists, in tedious succession from Hincmar of Rheims
to the decretalist Tancred,[139] brought order out of confusion
and agreement out of contradiction. Through special pleading and
violent assumption, unscrupulous twisting and suppressing of texts,
earnest argument and childish allegory, the law of divorce was
gradually brought into some degree of harmony with the sacramental
theory of marriage.[140] The middle of the tenth century saw the
task virtually accomplished at the hands of Gratian and Peter
Lombard,[141] the master-builders of the canon law;[142] although
their teachings are still "on the surface obscured by reminiscences"
of earlier theories, and after them the Decretals show certain
aberrations from the strict doctrine, like "sporadic cases after a
great epidemic."[143]

  [Footnote 139: See WUNDERLICH'S excellent edition of _Tancredi
  summa de matrimonio_, especially 16 ff., on the impediments, and
  70 ff., on causes of separation.]

  [Footnote 140: Thus, for example, Gratian accounts for the
  liberty of divorce and remarriage accorded in the letter of
  Gregory II. (confusing him with Gregory I.) by assuming that
  it was in consequence of a papal dispensation in favor of the
  English (_Decret. Grat._, _dictum_ to c. 18, C. XXXII, qu. 7),
  although elsewhere he more sensibly rejects Gregory's action as
  unorthodox. Peter Lombard makes no mention of Gregory's letter
  and with Gratian rejects as false the passage of pseudo-Ambrose
  allowing separation and remarriage for adultery (ESMEIN, _op.
  cit._, II, 76); while others get out of the difficulty through
  the gratuitous assumption that pseudo-Ambrose refers, not to
  simple adultery, but to a case of incest committed by a woman
  with a relative of her husband, _affinitas superveniens_. Gratian
  will not accept this explanation, on the ground that, according
  to the theory of _affinitas superveniens_, husband and wife are
  treated alike. Yet, with delicious inconsequence, he proceeds
  to explain why pseudo-Ambrose had given the man alone the right
  to remarry in case of the wife's adultery, without granting the
  woman the reciprocal privilege. In the text of Ambrose, he says,
  the words _vir_ and _mulier_ are not employed in their proper
  sense, but figuratively. Each is used for man irrespective of
  sex. _Vir_ is from _virtus_, and means man as a strong being
  resisting temptation; _mulier_ is from _mollities_ (softness),
  and it is used to denote the weak-minded man guilty of sin (_Dec.
  Grat._, _dictum_ to c. 18, C. XXXII, qu. 7. _Cf._ ESMEIN, _op.
  cit._, II, 76; FREISEN, _op. cit._, 582, 805). Ivo of Chartres,
  bent on sustaining the rigid theory of indissolubility, cites
  cc. 5 and 9 of the decree of Verberie in its favor, deliberately
  suppressing the clauses allowing the man to remarry (see his
  _Decretum_, X, 169; VIII, 189; also his _Panormia_, VI, 91:
  GEFFCKEN, _op. cit._, 82); and Gratian, by adopting Ivo's
  text for c. 9 instead of the original, gets around a similar
  difficulty (FREISEN, _op. cit._, 803). Celestin III. and Urban
  III. allowed the faithful spouse divorce and remarriage when the
  other becomes an infidel or a heretic; but the later canonists
  evaded this authority by claiming that these popes spoke merely
  as "simple doctors" (ESMEIN, _op. cit._, II, 80).

  On the wide use of "metaphor" in the history of the church see
  LECKY, _Democracy and Liberty_, II, 217; and especially his
  _Hist. of European Morals_, II, 326, 327, 356-58.]

  [Footnote 141: For once at least we can almost pardon Milton for
  using strong language. SELDEN'S work, _Of the Law of Nature and
  of Nations_, he holds more useful than anything which "pontifical
  clerks have doted on, ever since that unfortunate mother famously
  sinned thrice, and died impenitent of her bringing into the world
  those two misbegotten infants, and for ever infants, Lombard
  and Gratian, him the compiler of canon iniquity, the other the
  Tubalcain of scholastic sophistry, whose over-spreading barbarism
  hath not only infused their own bastardy upon the fruitfullest
  part of human learning, not only dissipated and dejected the
  clear light of nature in us, and of nations, but hath tainted
  also the fountains of divine doctrine, and rendered the pure
  and solid law of God unbeneficial to us by their calumnious
  dunceries."--"Doctrine and Discipline of Divorce," _Prose Works_,
  III, 269.]

  [Footnote 142: _Cf._ especially _Decretum Gratiani_, cc. 1-24,
  _causa_ xxxii, qu. 7: RICHTER-FRIEDBERG, _Corpus Juris Can._, I;
  PETER LOMBARD, _Sententiae_, IV, D. xxvii ff.]

  [Footnote 143: ESMEIN, _op. cit._, II, 79, 80. The early
  canonists are discussed by GEFFCKEN, _op. cit._, 58-62, 75-82;
  CIGOI, _Unauflösbarkeit_, 93 ff.; but for the most minute
  examination of them all see FREISEN, _op. cit._, 793-847; also
  the very clear account of ESMEIN, _op. cit._, II, 71 ff. On the
  formation of the canon law see TISSOT, _Le mariage_, 111 ff.]

Theoretically, as commonly stated, divorce proper is entirely
eliminated from the mature law of the western church; but
inconsistently the name "divorce" is retained as a rubric in the
collections of canons; and it is used in two senses, neither of
which corresponds with its ancient and proper meaning as a complete
dissolution of the bond of true wedlock. First, the term _divortium
a vinculo matrimonii_ is commonly employed to designate, not the
dissolution of a lawful union, but the judicial declaration of
nullity of a spurious marriage which on account of some impediment
is void, or at least voidable, from the beginning. Secondly, the
term _divortium a mensa et thoro_ means a judicial separation of
husband and wife which does not touch the marriage tie. In each
case, therefore, the use of the word "divorce" is loose and very
misleading.[144]

  [Footnote 144: ESMEIN, _op. cit._, II, 73, 85-89, who gives
  a brief account of the evolution of the uses of the term
  _divortium_. Originally, among the canonists, there was but one
  kind of _divorce_, _i. e._, any judicial separation between man
  and wife, whether or not with the right to remarry. This led to
  confusion; and so the distinction between divorce _a vinculo_ or
  _quoad vinculum_ and _a mensa et toro_ or _quoad mensam et torum_
  was differentiated. Beginning with Bernard of Pavia, the first
  compiler of the Decretals, the term _divortium_ appears regularly
  as a rubric in the later collections of the canon law.]

As finally settled, the canon law permits a separation from bed and
board on three grounds. First is adultery. For this offense the
woman as well as the man is given an action for divorce, which,
however, may be defeated by pleading various exceptions, such as
the like guilt of the accusing party.[145] The second cause is
"spiritual adultery,"[146] being historically an enlargement of the
first cause through allegorical interpretation. Originally under
this head separation was allowed for various offenses;[147] but in
the end it is restricted to the heresy or apostasy of one of the
persons, and perhaps to the case of one spouse compelling the other
to commit a wrong,[148] although on this point the authorities
are by no means agreed. A third cause for which separation may be
demanded is cruelty committed by one partner against the other.
Whether in this case blows alone will suffice, especially as
concerns the woman, is not settled by the laws; but the "dominant
opinion inclines to leave the determination of this point to the
discretion of the judge."[149]

  [Footnote 145: For the exceptions see ESMEIN, _op. cit._, II,
  91, 92; FREISEN, _op. cit._, 833-36; SCHEURL, _Das gem. deut.
  Eherecht_, 288, 289.]

  [Footnote 146: More exactly speaking _fornicatio spiritualis_ "as
  opposed to _fornicatio carnalis_," the first cause mentioned.]

  [Footnote 147: Crimes against nature, idolatry, etc.: ESMEIN,
  _op. cit._, II, 90 n. 1.]

  [Footnote 148: Such as forcing a spouse to idolatry or to some
  heinous crime. This case is regarded as an enlargement of the
  conception of _fornicatio spiritualis_: ESMEIN, _op. cit._, II,
  90 n. 4, 92 nn. 8, 9. _Cf._ FREISEN, _op. cit._, 836.]

  [Footnote 149: ESMEIN, _op. cit._, II, 93, 94. Earlier divorce
  _a mensa et thoro_ was not granted on this ground unless there
  was real danger to the life of one of the parties; but at last
  it was decided that _nimia saevitia_ would suffice, but the term
  is not defined: _idem_, _loc. cit._ In general on this species
  of divorce see FREISEN, _op. cit._, 830-47; GEARY, _Marriage
  and Family Relations_, 238, 239, 350; SCHEURL, _Das gem. deut.
  Eherecht_, 286-91.]

It thus appears that theological subtlety, partly under stress
of the needs of actual life, has found a way to pass far beyond
the limits which any reasonable interpretation of the scriptural
precepts will permit. In dealing with the question of divorce _a
vinculo_ an inconsistency even greater is shown, and the results are
far more disastrous; for the door is thereby opened for manifold
hardships and corruption. In the first place, two exceptions to the
rule that a genuine marriage cannot be dissolved are sanctioned by
the law and practice of the Church. The _privilegium Paulinum_ is
thus freely admitted.[150] If the Christian convert is abandoned by
his infidel spouse, he is allowed to contract a new marriage. Only
by an ingenious assumption can this liberty be harmonized with the
prevailing dogma. The case is no exception, we are told, for it is
the infidel, not the believer, who dissolves the marriage; and the
rule of the church does not apply when the unbeliever "renounces
his right" to maintain that relation, in order to "make use of his
own heathen law."[151] In England, where the canon law of divorce
was in full force, the _casus apostoli_ had a practical application
to the advantage of the faithful in their dealings with the Jews.
"In 1234 a Jewish widow was refused her dower on the ground that
her husband had been converted and that she had refused to adhere
to him and be converted with him. An Essex jury even doubted
whether if two Jews married under the 'Lex Judaica' but afterwards
turned to the 'Lex Christiana' and then had a son, that son could
be legitimate;"[152] but this finding is not in harmony with the
teaching of the canon law. Moreover, in modern times, with the
spread of Catholic missions into many new lands, this privilege has
been of increasing importance.[153]

  [Footnote 150: _Decret. Grat._, II, _caus._ xviii, qu. 2,
  C. 2; and _Decretals_ IV, 19, _de divortiis_, c. 7: see
  RICHTER-FRIEDBERG, _Corpus juris can._, I.]

  [Footnote 151: This is FREISEN'S argument, _op. cit._, 825-27,
  817 ff. See also SCHEURL, _Das gem. deut. Eherecht_, 276-78.
  The canon law maintains the validity of a marriage between
  two infidels contracted before conversion. According to PETER
  LOMBARD, the believer may, indeed, put away his unconverted
  consort, but may not remarry. Only when the infidel is the active
  party, the Christian being the passive, is the latter released
  from the marriage bond: _Sententiae, IV._, D. 39, § G; FREISEN,
  _op. cit._, 814. This privilege is much discussed in modern
  theological literature: see the references in FREISEN, _op.
  cit._, 826 n. 27. In general compare WOOLSEY, _Divorce_, 74 ff.,
  125; ESMEIN, _op. cit._, I, 220-32; II, 268 ff., 307; SCHEURL,
  _op. cit._, 276, 277.]

  [Footnote 152: POLLOCK AND MAITLAND, _Hist, of Eng. Law_, II,
  391, 392: citing for the first case TOVEY, _Anglia Judaica_, 84;
  _Co. Lit._, 31_b_, 32_a_; and for the second, _Calend. Geneal._,
  II, 563.]

  [Footnote 153: So in India: POLLOCK AND MAITLAND, _op. cit._,
  II, 391 n. 2: citing Maine's speech on the "Remarriage of Native
  Converts," in _Memoir and Speeches and Minutes_ (London, 1892),
  130. _Cf._ especially ESMEIN, _op. cit._, II, 268 ff., who
  discusses some of the "curious problems" growing out of this
  rule.]

By the second exception the church found herself entangled in the
subtle theory accepted after Peter Lombard that a contract _de
praesenti_ constitutes a valid marriage whether followed by actual
wedded life or not.[154] The mature doctrine of the canon law,
which is still obeyed by the Roman church, permits the unconsummate
marriage _de praesenti_ to be dissolved through papal dispensation
or _ipso facto_ by taking holy orders.[155] Here in effect the
older theory of Gratian, that only the consummate marriage is
a real marriage, is adopted for a practical end, although it is
absolutely irreconcilable with the still accepted orthodox theory of
Lombard, whose enforcement in the ecclesiastical courts has been the
cause of so much evil in western Christendom.[156]

  [Footnote 154: For the evils arising in clandestine marriage
  _de praesenti_, the complexity of the law of forbidden degrees,
  and the conflicting jurisdiction of the temporal and spiritual
  courts, see chap. viii above.]

  [Footnote 155: FREISEN, _op. cit._, 826 ff., 212 ff.,
  shows that the _dispensatio summi pontificis a matrimonio
  rato nondum consummato_ originated with the reforms of
  Alexander III.; and argues rightly that these two kinds of
  dissolution--dispensation and orders--are in harmony with the
  rule of indissolubility according to the doctrine of Gratian,
  but not according to the existing theory. Thus, of the old
  eight causes which were sufficient of themselves to dissolve
  _matrimonium initiatum_--identical with the later _sponsalia de
  praesenti_--holy orders alone remains; the papal dispensation has
  taken the place of the other seven: _ibid._, 827, 829; _cf._ on
  these exceptions SCHEURL, _Das gem. deut. Eherecht_, 278-86.]

  [Footnote 156: See chaps. vii and viii, above.]

Taking the church's own definition of marriage, it seems, after
all, that divorce _a vinculo_ did not in reality quite disappear
from the canon law. It would be a serious error to imagine that the
opportunity for escaping entirely from the bonds of undesirable
wedlock was restricted to the contract _de praesenti_ not followed
by actual conjugal life, which in direct violation of her own theory
the church was constrained to treat as an imperfect marriage. To all
intents and purposes, when judged from a rational modern standpoint,
the decree of nullity was a divorce proper. Practically speaking,
it cannot be doubted that there existed a very wide liberty of
divorce in the Middle Ages, though it existed mainly for those who
were able to pay the ecclesiastical judge for finding a way through
the tortuous maze of forbidden degrees.[157] In a divorce procedure
masquerading under the guise of an action for nullifying spurious
marriages lurked the germs of perjury and fraud. When both persons
were willing to separate, the matter must have been easy enough
by collusion; and when one consort was tired of the other, the
ecclesiastical court for money would be able to find good reasons
for effecting his release.[158] "Spouses who had quarreled began to
investigate their pedigrees and were unlucky if they could discover
no _impedimentum dirimens_" or cause which would have prevented
the contraction of a valid marriage.[159] "The canons prescribing
the prohibited degrees of relationship were marvels of ingenuity.
Spiritual relationships, those gained in baptism, were recognized
no less than natural relationships, and equally with them served
as barriers to legal marriage. Marriage was prohibited within
seven[160] degrees of relationship and affinity; and none but the
astutest students of the law were able to unravel so complicated
a system. The annulling of marriages, which had been contracted
within the prohibited degrees, became a flourishing business of
the Church. No exercise of its power yielded more money, or caused
more scandal. So tangled was the casuistry respecting marriage, at
the beginning of the sixteenth century, that it might be said that,
for a sufficient consideration, a canonical flaw could be found in
almost any marriage."[161]

  [Footnote 157: JEAFFRESON, _Brides and Bridals_, II, 299 ff.,
  conjectures that during the Middle Ages there must have been many
  irregular self-divorces; and he cites the famous case of William
  Paynel and Margaret his wife who, in 1302, "petitioned the king
  for the dower that was due to her as widow of her first husband
  John de Camoys," who with her consent had "openly and before
  witnesses 'given, granted, released, and quit-claimed' the said
  Margaret to 'her chivalric knight,'" the said William. The court
  refused the dower on the ground of desertion and adultery. _Cf._
  on this case POLLOCK AND MAITLAND, _Hist. of Eng. Law_, II, 393,
  394.]

  [Footnote 158: JEAFFRESON, _op. cit._, II, 306-9.]

  [Footnote 159: POLLOCK AND MAITLAND, _op. cit._, II, 391 n. 1.
  Read the interesting remarks of LECKY, _Democracy and Liberty_,
  II, 193-96, who cites, as illustrative of the policy of the Roman
  church, the divorce case of Napoleon and Josephine. See also _Law
  Review_ (English), I, 353-56.]

  [Footnote 160: Before Innocent III., 1215, who reduced the number
  to four: WOOLSEY, _Divorce_, 121.]

  [Footnote 161: THWING, _The Family_, 83. _Cf._ WOOLSEY, _op.
  cit._, 118 ff.]

The marvelous resources of the church in the binding and unbinding
of wedlock are strikingly exhibited in the matrimonial adventures of
Margaret Tudor, daughter of Henry VII. To enable her to marry King
James IV. of Scotland a papal dispensation was requisite, as they
were related within the fourth degree. After he was slain at the
battle of Flodden (1513), Margaret espoused Archibald Douglas, sixth
earl of Angus; and from him in 1527 she obtained by papal authority
a divorce "on the desperate plea first brought forward in 1525,
that James IV. had lived for three years after Flodden," and so was
alive at the time of her second nuptials.[162] Her next experiment
in the spiritual courts was less successful. In vain she tried to
rid herself of her third consort, Henry Stuart, on the pretext that
her previous cohabitation with her husband's fourth cousin, the earl
of Angus, had created a bar to their marriage through affinity.[163]

  [Footnote 162: It is interesting to find Wolsey writing in
  Henry VIII.'s name "to remind her of the 'divine ordinance of
  inseparable matrimony first instituted in paradise,' protesting
  against 'the shameless sentence sent from Rome'": TAIT, in _Dict.
  of Nat. Biog._, XXXVI, 155.]

  [Footnote 163: Henry Stuart (Stewart) was made Lord Methven
  by Margaret's son, James V. She "attempted to get rid of that
  nobleman by a sentence of the ecclesiastical court, on the ground
  that before the marriage she had been (as the record expresses
  it) _carnaliter cognita_ by her husband's fourth cousin, the earl
  of Angus."--RIDDELL, _Scots' Peerage Law_, 187; _Law Review_, I,
  354. On Margaret's marriages and divorces compare THWING, _The
  Family_, 83; WOOLSEY, _Divorce_, 169, who says she "got from
  Rome a separation from her second husband, the Earl of Angus, on
  the pretext of a pre-contract between him and another lady;" and
  especially the very accurate account of TAIT, in _Dict. of Nat.
  Biog._, XXXVI, 150-57.]

Long before this, in the days of Edward II., a satirist describes
the "prodigious traffic" in divorces. Any husband having "selver
among the clerkes to send" could rid himself of his wife by
"bringing her to the constery" or consistory court, with two false
witnesses to support his declarations.[164] A case is mentioned
by Coke "in which a marriage was pronounced null because the
husband had stood god-father to the cousin of his wife."[165]
Before the Reformation the voidance of alleged false wedlock on the
ground of pre-contract or forbidden degrees of affinity, spiritual
relationship, consanguinity, or on some other canonical pretext, had
become an intolerable scandal. "Marriages have been brought into
such an uncertainty thereby," complains a statute of Henry VIII.,
"that no marriage could be so surely knit or bounden but it should
lie in either of the parties' power ... to prove a pre-contract, a
kindred and alliance, or a carnal knowledge to defeat the same."[166]

  [Footnote 164: JEAFFRESON, _Brides and Bridals_, II, 310, who
  quotes the following verses entitled "A Poem on the Times of
  Edward II." from the _Percy Society Publication_:

    "If a man have a wyf,
    And he love her nowt,
    Bring her to the constery,
    There trewth schuld be wrowt.
    Bring twei fals wytnes with hym,
    And hymself the thrydde,
    And he shall be deperted,
    As fair as he wold bydde,
            From his wyf;
    He schal be maynteyned fulle well
            To lede a sory lyf.

    "When he is deperted
    From hys trew spowse,
    Take hys neyghboures wyf
    And bryng her to howse,
    Yif he have selver
    Among the clerkes to send,
    He may have hir to hys wyf
    To hys life's end,
            With onskylle,
    Thei that so fair with falseness dele
            Godde's corse on her bille."
  ]

  [Footnote 165: LECKY, _Democracy and Liberty_, II, 194. For other
  examples see HUTH, _Marriage of Near Kin_, 118-20.]

  [Footnote 166: 32 H. VIII., c. 38: _Statutes at Large_ (London,
  1763), II, 298.

  The facility with which dispensations could be secured is
  illustrated by a Scotch case in 1426-28. On April 11, 1426,
  Pope Martin V. granted a dispensation to Alexander of Hume
  and Marion of Lander to marry, though of double fourth degree
  of consanguinity. Curiously enough, perhaps because this
  dispensation had not yet been received, on Oct. 6, 1427, Hume
  appeared before the rector sitting as judge and proposed that
  his marriage could not stand of right because of consanguinity.
  The marriage was therefore pronounced null and void, and the
  parties were given license to marry whom they pleased. On the
  fourth day of the following January Hume and his former wife
  presented a petition to the papal see, announcing that, aware of
  their consanguinity, they had contracted marriage _per verba de
  praesenti_ and begotten children; that when their ordinary heard
  of the consanguinity he rightly celebrated a divorce, which they
  obeyed; but they feared scandal, and for this and other reasons
  they desired to be joined in marriage. The pope therefore granted
  another dispensation and declared their offspring legitimate:
  _Hist. Manuscripts Commission, XII. Report_, App. VIII, 122,
  123. In another case, 1459, the earl of Rothes declares on oath
  that he had within the last year obtained certain knowledge of
  the impediment of consanguinity as set forth in his libel, and
  that formerly, for the space of thirteen years after birth of the
  last of his living children, he was altogether ignorant of it:
  _ibid._, _IV. Report_, 507.]

Nevertheless, the Council of Trent introduced no essential change in
the divorce law of the Catholic church.[167] A vain attempt was made
to remedy the evils arising in the confusion of terms.[168] Anathema
was pronounced against those who should deny the indissolubility
of wedlock as a necessary consequence of its sacramental nature;
and a like curse was fulminated against any who shall dare to
say that the church errs in allowing divorce _quoad torum et
cohabitationem_, temporarily or perpetually, for any cause besides
unfaithfulness.[169] But neither at the council nor since has there
ever been made any essential change in the law relating to the papal
power of dispensation.[170]

  [Footnote 167: In general see CIGOI, _Unauflösbarkeit_, 149 ff.;
  PERRONE, _De mat. christ._, III, 376 ff., 389 ff., 398 ff.;
  GODOLPHIN, _Repartorium canonicum_, 61, 62, 492-512; ESMEIN,
  _Le mariage en droit canonique_, II, 295 ff., 308 ff.; SCHULTE,
  _Lehrbuch_, 359-61; LECKY, _Democracy and Liberty_, II, 193,
  196, 197; GLASSON, _Le mariage civil et le divorce_, 216, 217;
  SCHEURL, _Das gem. deut. Eherecht_, 275, 276, where the canons
  adopted at the twenty-fourth session are given.]

  [Footnote 168: By the bishop of Barcelona, who proposed the word
  _separatio_ for divorce _quoad torum_: ESMEIN, _op. cit._, II,
  309. On the misleading names for the two kinds of separation
  see POLLOCK AND MAITLAND, _Hist. of Eng. Law_, II, 392 n. 5.
  However, a "modern distinction of some Catholic writers between
  _anullatio_ and _separatio_ removes all ambiguity."--WOOLSEY,
  _Divorce_, 124.]

  [Footnote 169: "viii. Si quis dixerit ... vel Ecclesiam errare,
  dum ob alias causas, praeter adulterium, facit divortium quoad
  thorum seu cohabitationem, ad tempus vel perpetuo: anathema
  sit."--THEINER, _Acta_, II, 313: ESMEIN, _op. cit._, II, 309 n.
  1.]

  [Footnote 170: Distinction is made between _dispensatio super
  matrimonio_, that is, for dissolving an unconsummate marriage;
  and _dispensatio matrimonialis_, that is, to remove an impediment
  which otherwise would invalidate a proposed contract. In all
  cases of dispensation careful judicial inquiry as to the grounds
  of application is made: GEARY, _Marriage and Family Relations_,
  510-14. _Cf._ WOOLSEY, _op. cit._, 122, 123; and especially the
  convenient manual of POMPEN, _De dispensationibus_, 122-68.
  For a full discussion of the intricate law and custom as to
  dispensation see ESMEIN, _op. cit._, II, 315-68; FREISEN,
  _Geschichte des can. Eherechts_, 891-906; SCHEURL, _Das gem.
  deut. Eherecht_, 281 ff. In the oriental church dispensation from
  the forbidden degrees is in general not allowed, ZHISHMAN: _Das
  Eherecht der orient. Kirche_, 709-17.]


II. THE PROTESTANT DOCTRINE OF DIVORCE

_a_) _Opinions of Luther and the continental reformers._--With the
rejection of the sacramental theory of marriage at the Reformation
it was inevitable that more liberal ideas respecting divorce
should arise. The mother-church was accused of fostering vice by
professing a doctrine too severe;[171] while at the same time
she was bitterly reproached with a scandalous abuse of her own
jurisdiction through which in effect the forbidden degrees had
become an open door to divorce for the use of the rich and powerful.
Accordingly, the leaders of Protestantism took intermediate ground.
On the one hand, while Luther and some other reformers sanctioned
temporary separations[172] of husband and wife, there was a strong
tendency to reject entirely perpetual divorce _a mensa et thoro_
as being a "relatively modern invention" unknown to the ancient
church; and a condition of life incompatible with the true ideal of
wedlock.[173] On the other hand, they generally favored complete
divorce _a vinculo_, admitting two or more grounds according as
they interpreted strictly or more liberally the scriptural texts.
For they still appealed to authority rather than to reason and
experience in their attempts to solve a great social problem. They
were thus often sorely embarrassed. Their writings, indeed, reveal
not a little of the casuistry and self-deception which so often
vitiate the reasoning of the canonists and their predecessors.[174]

  [Footnote 171: The writings of Luther, Milton, and other
  Reformation and Puritan writers abound in examples of such
  charges. "For no cause, honest or necessary," says MARTIN BUCER,
  "will they permit a final divorce: in the meanwhile, whoredoms
  and adulteries, and worse things than these, not only tolerating
  in themselves and others, but cherishing and throwing men
  headlong into these evils. For although they also disjoin married
  persons from board and bed, that is, from all conjugal society
  and communion, and this not only for adultery, but for ill
  usage, and matrimonial duties denied; yet they forbid those thus
  parted to join in wedlock with others: but, as I said before,
  any dishonest associating they permit."--"The Judgment of Martin
  Bucer," in MILTON'S _Prose Works_, III, 292.]

  [Footnote 172: GOESCHEN, _Doctrina de mat._, 60; also MEJER,
  "Zur Geschichte des ält. prot. Eherechts," in _ZKR._, XVI, 47;
  HUBRICH, _Das Recht der Ehescheidung_, 139 ff.]

  [Footnote 173: _Cf._ ESMEIN, _Le mariage en droit canonique_, II,
  308, 309. Throughout his _Doctrine and Discipline of Divorce_, as
  elsewhere in his writings, MILTON insists that a real marriage
  implies a full spiritual as well as conjugal companionship,
  with which the theory of separation without dissolution is
  inconsistent; and this is the common Puritan view.]

  [Footnote 174: For example, see MILTON'S specious argument,
  following the allegorical method of some of the early
  theologians, to show the scope of the term "fornication" as used
  by Jesus and Moses: "Doctrine and Discipline of Divorce," _Prose
  Works_, III, 251-58, 394-401.]

From the outset the continental reformers took a bold stand;[175]
for the Protestant doctrine of divorce, like the Protestant
conception of the form and nature of marriage, was shaped mainly
by the thought of Martin Luther. Yet revolutionary as were his
teachings, he did not go so far in his departure from the orthodox
rule as did some of his contemporaries and successors. The analysis
of Richter has disclosed two distinct tendencies in the doctrine
and practice of the Reformation period.[176] In the sixteenth
century the more rigid or conservative direction is taken by Luther
and the more influential Protestant leaders, among whom are the
theologians Brenz, Bugenhagen, Chemnitz, Calvin, and Beza, with
the jurists Kling, Beust, and Schneidewin.[177] All are agreed
that absolute divorce should be granted for adultery, although
some of them, like Chemnitz, appear to discriminate against the
woman in this regard.[178] Malicious desertion is also generally
admitted as a second cause for the full dissolution of wedlock,
following the same Bible text which gave rise to the _casus
apostoli_ of the canonists.[179] It is characteristic of Luther and
the representatives of the more rigid tendency that, rather than
multiply the number of admissible grounds of divorce, an effort was
made by hard logic to broaden the definition of desertion so as to
give to it a wide range without seeming to transgress the letter of
scriptural authority.[180] In this way, for instance, _saevitia_,
or cruelty, was included, as was also refusal of conjugal duty,
eventually giving rise to the doctrine of "quasi-desertion." But for
this last cause a marriage must not be dissolved except on failure
of all prescribed means, however cruel, to induce reconciliation
or submission. For it was a natural result of the carnal theory of
wedlock that theological dogma and church ordinance alike in effect
permitted a brutal husband, through the aid of fine, exile, or
imprisonment, to force an unwilling wife to render him her "conjugal
duty."[181]

  [Footnote 175: See MILTON'S summary of their views:
  "Tetrachordon," _loc. cit._, 423-33.]

  [Footnote 176: RICHTER, _Beiträge zur Gesch. des
  Ehescheidungsrechts in der evang. Kirche_, 11 ff., 15 ff., 56
  ff.; _idem_, _Kirchenrecht_, 1177.]

  [Footnote 177: Adultery and desertion are the only grounds of
  full divorce recognized by BRENZ, _Wie yn Ehesachen ... zu
  Handeln_, in SARCERIUS, _Vom heil. Ehestande_, 152-57, and
  _idem_, _Corpus juris mat._, 183 ff.; with which may be compared
  the passages from the writings of BRENZ quoted by RICHTER,
  _Beiträge_, 19-23; BUGENHAGEN, _Vom Ehebruch und Weglauffen_: in
  SARCERIUS, _Vom heil. Ehestande_, 138-51; or _Corpus juris mat._,
  171-84; CHEMNITZ, _Examen conc. trid._, II, 430; Calvin, in
  RICHTER, _op. cit._, 25, 26; BEZA, _Tract. de repud. et divort._
  (Geneva, 1569), 228 ff., 275 ff.; KLING, _Tract. mat. causarum_
  (Frankfort, 1577), 89 ff.; BEUST, _Tract. de jure connub._;
  _idem_, _Tract. de spons. et mat._, 147 ff.; SCHNEIDEWIN, _Com.
  in inst._; _idem_, _De nupt., lib. primi com._ (Jena, 1585), §§ 7
  ff.

  These and other writers are discussed by RICHTER, _Kirchenrecht_,
  1175 ff.; _idem_, _Beiträge_, 15 ff.; MEJER, _Zum Kirchenrechte
  der Reformat._, 147 ff.; HAUBER, _Ehescheid. im Reformat._, II,
  209 ff. In general, compare GREVE, _Ehescheidung_, 225 ff.; POPP,
  _Ehescheidung_, 80 ff.; STRIPPELMANN, _Das Ehescheidungsrecht_,
  54 ff., 128 ff.; STÖLZEL, _Ehescheidungsrecht_, 9 ff.;
  GLASSON, _Le mar. civ. et le divorce_, 224, 225, 329, 330;
  SCHEURL, _Das gem. deut. Eherecht_, 291 ff.; BUCHKA, _Das
  meckl. Ehescheidungsrecht_, 20 ff.; HUBRICH, _Das Recht der
  Ehescheidung_, 43 ff.; FRIEDBERG, _Lehrbuch_, 366-78; _idem_,
  "Beiträge," _ZKR._, VII, 56-127; and SCHULTE, _Lehrbuch_, 414-28.]

  [Footnote 178: CHEMNITZ, _Examen conc. trid._ (Frankfort, 1615),
  II, 430 says: "We have, then, two cases in Scripture where
  the bond of matrimony is dissolved--not as by men, but by God
  himself. 1. On account of adultery a man lawfully, rightfully,
  and without sin, can repudiate his wife." 2. Desertion of the
  believer by the unbeliever, according to 1 Cor., 7. _Cf._
  WOOLSEY, _Divorce_, 131; RICHTER, _Beiträge_, 27, 28. On the
  adoption of these two general causes at the Reformation see
  HUBRICH, _Das Recht der Ehescheidung_, 44 ff.]

  [Footnote 179: 1 Cor. 7:15.]

  [Footnote 180: As early as 1520 in his _Von dem bab. Gefängniss
  der Kirche_ (STRAMPFF, 349, 350, 381, 382) LUTHER admits the
  two grounds of divorce, adultery and desertion; the latter when
  either spouse abandons the other "über zehen Jahr oder nimmer
  wiederkommen." Two years later, in his _Vom ehelichen Leben_,
  he appears to regard refusal of conjugal duty as equivalent
  to desertion. "We may find an obstinate woman," he says, "who
  stiffens her neck, and if her husband should fall ten times into
  unchastity, cares nothing about it. Here it is time for a man to
  say, 'if you won't, another can be found that will. If the wife
  will not, let the maid come.' Yet let it be so that the husband
  give her two or three warnings beforehand, and let the matter
  come before other people, so that her obstinacy may be known
  and rebuked before the congregation. If she will not, let her
  be gone, and procure an Esther for yourself and let Vashti be
  off, as Ahasuerus did."--As rendered by WOOLSEY, _Divorce_, 130,
  131. For the original see STRAMPFF, 350, 351, 394, 395; LUTHER'S
  _Kleinere Schriften_, II, 26-31; and SARCERIUS, _Vom heil.
  Ehestande_, 137, 138. _Cf._ RICHTER, _Beiträge_, 16; SCHEURL,
  _Das gem. deut. Eherecht_, 300 ff. In LUTHER'S _Von Ehesachen_
  (1530) the refusal of conjugal duty is not mentioned; but it is
  doubtless included under malicious desertion; and besides in
  1531 he commends the book of Brenz in which this position is
  taken. _Cf._ RICHTER, _op. cit._, 18, 19; STRAMPFF, 394. In the
  _Tischreden_ flight on account of theft is regarded as desertion:
  RICHTER, _loc. cit._ On the use made of "definition" by the
  Protestants see HUBRICH, _Das Recht der Ehescheidung_, 51.]

  [Footnote 181: _Quasi malitiosa desertio_ comprehends not
  only refusal of conjugal duty, but also applies to the
  case of a defendant who abandoned a consort, but who does
  not necessarily, as in malicious desertion, remain in a
  place unknown or one beyond the reach of judicial process:
  STRIPPELMANN, _Ehescheidungsrecht_, 146 ff. _Cf._ DIETRICH,
  _Evang. Ehescheidungsrecht_, 25 ff.; HUBRICH, _Das Recht der
  Ehescheidung_, 80, 88 ff. See especially LUTHER, _Vom ehel.
  Leben_; STRAMPFF, 394, 395, who says the "weltliche Ubirkeit das
  Weib zwingen oder umbbringen" soll.]

Only two general causes of full divorce on alleged scriptural
authority were thus admitted by Luther and his immediate followers.
Other offenses, except as by logical fiction brought under the
definition of desertion or adultery, were merely accepted as
grounds of temporary separation from bed and board, subject to
reconciliation.[182] On the other hand, the representatives of
the more liberal tendency anticipated in many ways modern ideas
as to the grounds of absolute dissolution of the marriage bond.
Avoiding to some extent the indirect method of attaining practical
ends by juggling with definitions, they were inclined to appeal
for authority directly to Roman imperial legislation; and so,
"since the other direction is connected with the canon law, we have
here a phase of the struggle" between that system and the Roman
jurisprudence.[183] The first step in the liberal direction is
taken by Erasmus, who sustains a rational method of dealing with
the divorce problem through appeal to the teachings of the early
Fathers, notably those of Origen; and this brought him in contact
with the principles of the old Roman law.[184] His influence, as
Richter strongly urges, seems to have been felt by Zwingli, who,
with his disciple Bullinger, argues that in admitting adultery as
a cause of divorce the Scriptures sanction as such all equal or
graver offenses.[185] Accordingly, in the Zurich marriage ordinance
of 1525, "adultery, malicious desertion, and plotting against the
life of a consort are not regarded as the only causes, but rather
as the standard causes of divorce, and to the judge it is left to
decide what others shall be put by their side. And not only this,
but cruelty, madness, leprosy, are mentioned as causes which the
judge can take into account."[186] Lambert of Avignon is likewise
conspicuous for liberal ideas regarding the causes of divorce.
Anticipating the principle so often enforced by modern legislation,
he holds that when a wife is forced by intolerable suffering to
leave the husband who mistreats her and denies her proper support,
this should be counted as repudiation by the man, and not as
desertion by the woman, who should therefore be allowed to contract
another marriage.[187] Similar views are held by Bucer,[188]
Melanchthon,[189] and the jurist Monner.[190] All accept the two
general causes, and each admits several other grounds.

  [Footnote 182: Luther does not allow absolute divorce on account
  of anger or incompatibility, _insidiae_, or attempts upon life,
  exile, sickness, incurable disease, misfortune to an innocent
  spouse, or similar grounds: see his _Von Ehesachen_, in STRAMPFF,
  398, 399; _Vom ehel. Leben_: _ibid._, 400; _Predigt von dem
  Ehestande_ (1525): _ibid._, 400; and _Auslegung des 17. Cap. 1
  Cor._ (1523): _ibid._, 397, 398, where only temporary separation
  is allowed, unless one of the parties refuses reconciliation
  and the other "kunnt nicht halten;" but in this case the
  "separation has the refusal of conjugal duty as a consequence,
  or it has become malicious desertion": STRAMPFF, 396, 351, 352,
  382 ff. _Cf._ BRENZ, _Wie yn Ehesachen ... zu Handeln_: in
  SARCERIUS, _Vom heil. Ehestande_, 155 ff.; DIETRICH, _Evang.
  Ehescheidungsrecht_, 31 ff.; HAUBER, _Ehescheid. im Reformat._,
  II, 242 ff.]

  [Footnote 183: RICHTER, _Beiträge_, 14, who points out that,
  through reaction against the papal system the theologians for
  the most part were in favor of the Roman law, while the majority
  of the jurists were opposed to it. The Protestant leaders are
  thus divided on the question whether the canon law should be
  accepted as binding: HUBRICH, _Das Recht der Ehescheidung_, 45.
  On the admission of other grounds of divorce see STRIPPELMANN,
  _Ehescheidungsrecht_, 151 ff.; SCHULTE, _Lehrbuch_, 416.]

  [Footnote 184: ERASMUS, _Annot. in Nov. Test._ (Basel, 1515);
  quoted by RICHTER, _Beiträge_, 8-10.]

  [Footnote 185: RICHTER, _op. cit._, 6 ff.; BULLINGER, _Der
  christ. Ehestand_ (ed. 1579), lf. 102.]

  [Footnote 186: WOOLSEY, _Divorce_, 132; also THWING, _The
  Family_, 84. For the ordinance see RICHTER, _op. cit._, 6, 7.
  Similar causes are approved by BULLINGER, _Der christ. Ehestand_,
  102, appealing to the laws of the "holy Constantine, Theodosius,
  Valentinian, Anastasius, and Justinian."]

  [Footnote 187: LAMBERT OF AVIGNON, _De sacro conjugio_
  (Strassburg, 1524): cited by RICHTER, _op. cit._, 31, 32.]

  [Footnote 188: See his _De regno Christi_ (1557), II, 25 ff.;
  and the elaborate dissertation entitled _Etlicher gelerten
  Theologi bedencken von der Ehescheidung_: in SARCERIUS, _Vom
  heil. Ehestande_, 161 ff.; also _ibid._, _Corpus juris mat._, 196
  ff., which RICHTER, _op. cit._, 34 ff., ascribes to Bucer; though
  MEJER, _Zum Kirchenrecht_, 183, doubts the correctness of this
  view. On Bucer's doctrines see the discussion of Milton below.]

  [Footnote 189: MELANCHTHON, "De conjugio," _Opera Omnia_
  (Erlangen, 1828), I, pars II, 236 ff.; or in SARCERIUS, _Vom
  heil. Ehestande_, 159 ff.; or _ibid._, _Corpus juris mat._, 190
  ff. _Cf._ also RICHTER, _Beiträge_, 32-34; and especially MEJER,
  _Zum Kirchenrecht_, 179-82, who compares the view of Melanchthon
  with that of Luther, showing that the former goes back to the
  Theodosian code.]

  [Footnote 190: MONNER, _Tract. de mat. et clandes. conjugiis_
  (Jena, 1561): _ap._ RICHTER, _Beiträge_, 40, 41. Representatives
  of the more liberal tendency in the sixteenth century are
  Chyträus, Hunnius, Wigand, Osiander, and the Danish theologian
  Hemming: RICHTER, _op. cit._, 42, 43, 28.]

With no exception in case of divorce, the continental reformers
appear to sanction the remarriage of the innocent man or woman
without any delay or other condition.[191] The earliest church
ordinances confer the same privilege;[192] but regarding the
question whether an adulterous spouse should be suffered to contract
further wedlock the Protestant leaders are not agreed. The majority
would have the magistrate deal with the offender according to the
harsh principle of the Jewish law. Such is the view of Bugenhagen,
who opens his discussion with the curt remark that were the
adulterer hanged there would be small need of further parley.[193]
Lambert of Avignon insists that the culprit ought to be stoned,
warning the sluggish magistrates that they themselves perish even
because they do not administer this punishment.[194] Beust, on the
contrary, prides himself that in the land of the Saxons there is
no flinching in this regard, and so the divorce question in that
country is solved. Beza and Brenz are both eager for the death
penalty.[195] Melanchthon appears to favor the same treatment, or
else exile of the guilty spouse in case the political magistrate is
unwilling to proceed with such rigor; for he says the "condemned is
as one dead" to his innocent spouse.[196] Similar is the position
of Luther, who "insists with great energy that death ought to be
the penalty for adultery, but since the civil rulers are slack and
indulgent in this respect, he would permit the criminal, if he must
live, to go away to some remote place and there marry again. So
Calvin, in several places, declares that death ought to be inflicted
for this crime, as it was by the Mosaic code, but if the law of the
territory stop short of this righteous penalty, the smallest evil is
to grant liberty of remarriage in such cases."[197]

  [Footnote 191: Of course, after regular process was somewhat
  developed, as will presently be shown, the _toleramus_ or
  permission of the magistrate concluding the decree was requisite
  to the remarriage even of the innocent person.]

  [Footnote 192: The _Renovatio ecc. Nord._ (1525): RICHTER,
  _Kirchenordnungen_, I, 20, tolerates the second marriage of
  a person whose spouse has committed adultery. The Prussian
  _Landesordnung_ of the same year expressly sanctions the
  divorce and remarriage of the injured spouse whose partner has
  committed the same offense: RICHTER, _op. cit._, I, 32. In 1531
  the church ordinance of Goslar and that of Lübeck, drafted by
  Bugenhagen, recognize malicious desertion as a second ground
  for dissolving wedlock: RICHTER, _op. cit._, I, 156, 148; and a
  similar provision appears in the Pommer ordinance of 1535, also
  drafted by Bugenhagen: RICHTER, _op. cit._, 250. Compare SCHULTE,
  _Lehrbuch_, 414-28, who gives an account of the provisions of the
  many ordinances regarding divorce and remarriage.]

  [Footnote 193: "Wenn der Ehebruch bey dem halse gestraffet würde,
  so bedürffte man hie nicht viel fragens": BUGENHAGEN, _Vom
  Ehebruch und Weglauffen_: in SARCERIUS, _Vom heil. Ehestande_,
  138.]

  [Footnote 194: RICHTER, _op. cit._, 31, 45; citing LAMBERT OF
  AVIGNON, _De sacra conjugio_, who recommends excommunication in
  case the magistrate does not execute the criminal.]

  [Footnote 195: On Beust, Beza, and Brenz see RICHTER, _op.
  cit._, 45, 46. Compare BEUST, _Tract. de spons. et mat._, 140,
  where he declares that the penalty for adultery is death; and
  BRENZ, _Wie yn Ehesachen ... zu Handeln_: in SARCERIUS, _Vom
  heil. Ehestande_, 152, where he leaves the offender to the
  temporal magistrate, urging rigorous punishment; and in cases of
  negligence advising excommunication by the parish priest.]

  [Footnote 196: MELANCHTHON, "De conjugio," _Opera Omnia_, I,
  pars II, 238: "Respondeo: magistratus politicus adulteria punire
  debet: ideo persona condemnata, si non punitur durius, pellenda
  est ex iis locis, ubi vivit persona innocens: cui altera,
  videlicet condemnata, velut mortua existimanda est; et haec
  severitas ad politicum magistratum pertinet."]

  [Footnote 197: WOOLSEY, _Divorce_, 138, 139. See Luther, _Vom
  ehel. Leben_: in STRAMPFF, 363, 364; or in SARCERIUS, _op. cit._,
  137. On Calvin see STRIPPELMANN, _Ehescheidungsrecht_, 69, 70.
  The same view is expressed by HOOPER, _Early Writings_, 383; and
  by Bucer: MILTON'S _Prose Works_, III, 299.]

Thus far we have dealt with doctrine and opinion as disclosed
by the legal and theological writings of the century of Luther.
The legislation of this period reveals a like difference of view
regarding the grounds of divorce and the privilege of remarriage;
although the majority of the church ordinances contained in
the collection of Richter appear to follow the more rigid
direction.[198] Usually the two general causes, adultery and
desertion, are allowed; but in a few instances only the first-named
ground is admitted.[199] On the other hand, as Goeschen has pointed
out,[200] the number of causes is sometimes increased, either by
adding new grounds,[201] by appeal to common imperial law,[202]
or by leaving the decision to the judge's discretion.[203]
Furthermore, during the seventeenth century, under influence of such
writers as Bidembach and Mentzer,[204] divorce legislation follows
the conservative lines laid down in the Würtemberg ordinances
of 1534 and 1553.[205] The beginning of a new and more liberal
treatment of the subject is first seen in the Würtemberg ordinance
of 1687, which, besides adultery, desertion, and quasi-desertion,
sanctions several other grounds of absolute divorce.[206] This
change in the tone of the law-maker is mainly due to the rise of
more generous doctrinal views, especially those of Hülsemann, who
taught that marriage is dissolved by every offense which, like
adultery and desertion, destroys the physical unity of the wedded
pair or violates the conjugal troth constituting the safeguard of
that unity.[207]

  [Footnote 198: RICHTER, _Die evangelischen Kirchenordnungen des
  sechszehnten Jahrhunderts_.

  In many Protestant lands these ecclesiastical statutes or
  provisions, with the sanction of the civil authority, took the
  place of the old canon law. For a discussion of their contents
  see especially the monographs of GOESCHEN, _Doctrina de mat._,
  59 ff.; _idem_, in HERZOG'S _Encyclopädie_, III, 702 ff.;
  DIETRICH, _Evang. Ehescheidungsrecht_; and compare HAUBER,
  _Ehescheid. im Reformat._, II, 219 ff.; RICHTER, _Beiträge_,
  51 ff.; _idem_, _Kirchenrecht_, 1177, 1178; STRIPPELMANN, _Das
  Ehescheidungsrecht_, 78 ff.; GREVE, _Ehescheidung_, 298 ff.;
  THWING, _The Family_, 84, 85; WOOLSEY, _Divorce_, 136-38.]

  [Footnote 199: For example, by the _Renovatio ecc. nord._ (1525):
  RICHTER, _Kirchenordnungen_, I, 20; the Würtemberg ordinance
  of 1537: _ibid._, I, 280; the ordinance of the "Niederländer
  in London": _ibid._, II, 115; that of the foreign "Gemeinde zu
  Frankfurt": _ibid._, 157.]

  [Footnote 200: GOESCHEN, _Doctrina de mat._, 61, 62, notes.]

  [Footnote 201: As by the Prussian ordinance of 1584: RICHTER,
  _op. cit._, II, 468.]

  [Footnote 202: As by the Brandenburg ordinance of 1540: _ibid._,
  I, 330; that of Pfalz-Neuburg: _ibid._, II, 146, 147.]

  [Footnote 203: As by the ordinance of Zurich, 1529: _ibid._, I,
  22; that of Basel, 1529: _ibid._, 126. _Cf._ GOESCHEN, _Doctrina
  de mat._, 63 n. 218, 29 n. 105.]

  [Footnote 204: BIDEMBACH, _De causis mat._ (Frankfort, 1608),
  81-93; and MENTZER, _De conjugio_ (Wittebergae, 1612), 190
  ff., allow as causes only adultery and desertion. Other
  representatives of the conservative tendency in the seventeenth
  century, as enumerated by RICHTER, _Beiträge_, 58 ff., are the
  theologians Gerhard, Havemann, Calovius, and Hollaz, and the
  jurists Cypräus, Carpzov, Nicolai, Brunnemann, and Schilter;
  while the more liberal direction is taken by the theologians
  Brochmand, Hülsemann, Calixtus (J. U.), Dannhauer, and Quenstedt,
  and the jurists Henning Arnisaeus, Forster, Kitzel, Pufendorf,
  Samuel Stryk, and Bruckner.]

  [Footnote 205: For the ordinance of 1553, drafted by Brenz, see
  RICHTER, _Kirchenordnungen_, II, 130. By this act full divorce
  is allowed only for adultery and desertion, including refusal of
  marital duty: and separation _a thoro et mensa_ is not permitted
  even for _saevitia_. _Cf._ RICHTER, _Beiträge_, 57.]

  [Footnote 206: See _Des Herzogthums Wirtemberg erneuerte Ehe- und
  Ehe-Gerichts-Ordnung_ (Stuttgart, 1687), 22 ff., 82 ff., 100-111.]

  [Footnote 207: HÜLSEMANN, _Extensio breviarii theologici_ (3d
  ed., Leipzig, 1655), 502: cited by HUBRICH, _Das Recht der
  Ehescheidung_, 54-56, 119 ff.; RICHTER, _Beiträge_, 57, 63;
  _idem_, _Kirchenrecht_, 1177.]

The acceptance of Luther's teaching that marriage is not a
sacrament, but a "worldly thing," led at once to the rejection of
the jurisdiction of the existing ecclesiastical courts. A dual
problem thus arose for solution: Is marriage dissolved _ipso facto_
through the commission of the offenses recognized as grounds of
divorce; or, if any intervention of public authority is requisite,
what is that authority, and what is its exact function? The
researches of Stölzel have clearly established that in the beginning
the reformers returned to the principle of self-divorce prevailing
among the ancient Romans and Hebrews, and accepted by some of
the early church councils. According to the modern conception,
he declares, a marriage may normally be dissolved during the
lifetime of the parties by the sentence of a judge in a legally
constituted court after due process of law. Only in exceptional
cases is a resort to a political magistrate allowed. The judicial
decree is the medium of the dissolution; and it implies, without
express permission, the right of each of the divorced persons to
remarry, unless the statute has otherwise provided. The divorce law
of the Reformation starts from a different, almost an opposite,
conception. When an adequate cause exists, a marriage is thereby
dissolved in favor of the innocent person without any magisterial
authority whatsoever. If in certain cases, in order to establish
the existence of the grounds of dissolution, any action is needful,
it is regarded as extra-judicial; and when gradually such informal
proceedings have grown into an orderly process dealing directly with
the question of divorce, this process concludes with a decree; not
that the marriage _is_ thereby dissolved, but that it _has_ already
been dissolved in consequence of the grounds now established. Nor
did the divorce of itself involve the right of remarriage. That
privilege was always in practice, if not in theory, denied to the
guilty spouse; and after a regular process arose it was usual, even
as late as the eighteenth century, to grant it to the innocent
person only by special magisterial permission or "toleramus."[208]
From the beginning in some German lands the only purpose of the
judicial action was to determine the fact that the marriage was
already dissolved in order to justify this license.[209] Luther and
other Protestant leaders accepted the theory just explained that a
marriage is "broken" or dissolved when a proper cause intervenes;
and if without exception[210] they insisted that the married persons
should not separate themselves, but appeal to public authority, they
had in mind, as Luther plainly shows, the establishment of the fact
of wedlock already broken in order, where it was desired, to grant
the permission of marrying again.[211]

  [Footnote 208: STÖLZEL, _Ueber das landesherrl.
  Ehescheidungsrecht_, 9-19; or the same in _ZKR._, XVIII, 1-4;
  DIETRICH, _Evang. Ehescheidungsrecht_, 39.]

  [Footnote 209: STÖLZEL, _op. cit._, 10, 11.]

  [Footnote 210: SCHULTE, _Lehrbuch_, 416.]

  [Footnote 211: STÖLZEL, _op. cit._, 11-19, where the proof is
  given from the writings of Luther and others; and DIETRICH,
  _Evang. Ehescheidungsrecht_, 37 ff. See STRAMPFF, 363-65, 353,
  375.]

The seeds from which would eventually spring a new public
jurisdiction in matrimonial causes were nevertheless in this way
planted by Luther. For a time the practice was uncertain and
informal. Cases were taken before various officials or bodies,
with the prince or sovereign as final authority. The _Pfarrer_ or
parish priest, who is especially commended by Luther[212] for such
business, was often called in; and on hard questions opinions were
solicited from jurists and theologians, those of Luther having all
the weight of the decisions of a court of last resort. As a result,
during this early period jurisdiction came more and more into the
hands of the church. Only gradually, following the example of
Wittenberg in 1539, were consistorial courts[213] created under
sanction of the civil power; and these bodies were composed of both
lay and ecclesiastical members.[214]

  [Footnote 212: LUTHER, _Von Ehesachen_: in STRAMPFF, 297, 298,
  392, where he names _Pfarrer_ and _Oberkeit_ as co-ordinate
  authorities in such causes. On the significance of _Oberkeit_
  (temporal magistracy) see STÖLZEL, _Entwicklung des gelehrten
  Richterthums_, I, 207 ff.; and compare _idem_, _Ueber das
  landesherrl. Ehescheidungsrecht_, 22, 23.]

  [Footnote 213: On the rise of the Wittenberg consistory and
  its influence as a model for others see MEJER, "Anfänge des
  Witt. Consistoriums," _ZKR._, XIII, 28-123; and _idem_, "Zur
  Geschichte des ält. prot. Eherechts," _ibid._, XVI, 35-106.
  These two papers, revised and enlarged, with a chapter on the
  establishment of the consistory at Rostock, may also be found in
  MEJER'S _Zum Kirchenrechte des Reformationsjahrhunderts_, 3 ff.,
  146 ff. Compare SCHLEUSNER, "Zu den Anfängen prot. Eherechts,"
  _ZKG._, VI, 390 ff., 412 ff.; GEFFCKEN, "Zur ält. Geschichte und
  ehegericht. Praxis des Leipzig. Konst.," _ZKR._, 3. Folge, IV,
  7-67; HINSCHIUS, "Beiträge zur Gesch. des Desertionsprocesses
  nach evang. Kirchenrechte," _ibid._, II, 1-38; and DIETRICH,
  _Evang. Ehescheidungsrecht_, 37-62, who gives a clear account of
  the development of matrimonial process and jurisdiction.]

  [Footnote 214: According to STÖLZEL, _Ueber das landesherrl.
  Ehescheidungsrecht_, 46 ff., _passim_, after the creation
  of consistories, as well as before, the head of the
  state--_Landesherr_--retained a right of dispensation as _summus
  episcopus_; and in Protestant lands his power to grant divorces
  in certain cases was not entirely superseded by the imperial
  law of 1875. These points, especially the last, have given
  rise to a controversial literature: see MEURER, _Das landesh.
  Ehescheidungsrecht_, 12 ff., who holds that the authority of
  the _Landesherr_ was superseded by the act of 1875; and compare
  HUBRICH, _Das Recht der Ehescheidung_, 147 ff.; the works cited
  by STÖLZEL, _op. cit._, 54 ff.; by MEURER, _op. cit._, 8 ff.; and
  those in this connection described in Bibliographical Note XI.]

A true idea of the position of German Protestantism regarding the
divorce problem cannot be obtained merely from an examination of its
doctrines or its legislation. These were supplemented in several
ways. Their severity regarding the grounds of separation can only
be appreciated at its real value by keeping in mind, as already
suggested, that the sword of the judge often cut the marriage tie on
account of adultery or other crimes; and that some of the reformers,
notably Luther, Brenz, and Melanchthon, were inclined in certain
cases to tolerate concubinage or even bigamy, in preference to full
divorce.[215] But it is especially noteworthy that the judicial
decisions in divorce suits, whether consisting in the opinions of
the learned or the decrees of the magistrates or consistories, were
in general somewhat more liberal and more practical than either the
ordinances or the dogmas of the church.[216]

  [Footnote 215: See the proofs presented by RICHTER, _Beiträge_,
  46-50; and chap, ix, p. 390, above.]

  [Footnote 216: RICHTER, _op. cit._, 43 ff., cites several cases
  as evidence. On the other hand, the Wittenberg decisions analyzed
  by MEJER, _Zum Kirchenrechte_, 196 ff.; and those published by
  SCHLEUSNER, "Zu den Anfängen prot. Eherechts," _ZKG._, XIII, 130
  ff., 142 ff., follow mainly the conservative direction. In this
  connection read the "Antwort auff etliche Fragen und Gegenwurff"
  in SARCERIUS, _Vom heil. Ehestande_, 204 ff.; or in _idem_,
  _Corpus juris mat._, 248 ff.]

_b_) _Opinions of the English reformers._--The Fathers of English
Protestantism as a body are more conservative than their brethren
across the channel.[217] By the chiefs of the really reforming or
Puritan party among them, however, ideas scarcely less bold than
those of Luther or Calvin are advanced. The same arguments are used
and the same causes of separation are admitted. But these ideas
ultimately find no place in the canons of the established church.
Under Edward VI. the leaders of the Protestant movement defend their
position. "Strongly disapproving the excessive liberty of divorce
which the ecclesiastical tribunals had for generations afforded to
society, they were not less unanimous in condemning the doctrine
of the absolute indissolubility of wedlock. If it was wrong on the
one hand to allow husbands and wives the liberty of separating on
frivolous pretexts, and to provide the fortress of marriage with
numerous gates of egress, whose double locks obeyed the pass-keys of
perjury and corruption; it was on the other hand no less hurtful to
society and impious to God to constrain a pair of human creatures
in the name of religion, to persevere in an association, that could
not accomplish the highest purposes of matrimony, and debarred the
ill-assorted couple from the serene and wholesome pleasures of
Christian life."[218]

  [Footnote 217: _Cf._ LECKY, _Democracy and Liberty_, II, 200;
  GLASSON, _Le mariage civil et le divorce_, 310, 311; and _idem_,
  _Histoire du droit_, V, 89 ff.]

  [Footnote 218: JEAFFRESON, _Brides and Bridals_, II, 316.
  This summary really gives the gist of MILTON'S argument in
  his "Doctrine and Discipline of Divorce," _Prose Works_, III,
  169-273.]

The average sentiment of the age is quaintly expressed in
Bullinger's _The Christen State of Matrimonye_, translated by Bishop
Miles Coverdale in 1541. "That is called iuste diuorce, when as
nether partye maye take the tother agene, so it is in the lybertye
of the fawtlesse partye to mary another." Such a "divorce is
permitted of god for the welth and medicine of man and for amendment
in wedlok. And like as all maner of medicynes and specially some
as they that go nyest death as to cut of whole membres ... are
very terrible. So is divorce indede a medicyne, but a perilous and
pitefull.... The papistes haue forbydden the innocent and vnguiltye
parte to marye after the diuorce made: Which yt was no thinge els
but euen violently to cast a snare about poore peoples neckes, and
to drawe them vnto vyce and synne. For the diuorced coulde not
refrayne, and mary they were not permitted, therfore with violence
were they forced into whordome."[219]

  [Footnote 219: _The Christen State of Matrimonye_, lvs. lxxvi,
  lxxvii.]

The favorite metaphor of the reformers is also employed by Master
Henry Smith. In his _Preparation to Marriage_, written in the reign
of Elizabeth, divorce is described as the "rod of mariage" and the
"medicine of adultery." If duty be done, he says, "then I need not
speake of divorcement, which is the rod of mariage and divideth them
which were one flesh, as if the bodie and soul were parted asunder.
But because all performe not their wedlocke vowes, therefore He
which appointed mariage hath appointed divorcement, as it were,
taking a privilege from us when we abuse it. As God hath ordained
remedies for every disease, so He hath ordained a remedie for the
disease of mariage. The disease of marriage is adultery, and the
medicine thereof is divorcement."[220]

  [Footnote 220: MASTER HENRY SMITH, _Preparation to Marriage_:
  quoted by JEAFFRESON, _Brides and Bridals_, II, 294, note.]

Nearly all the English reformers of the sixteenth century
agree in rejecting separation from bed and board as a "papist"
innovation; and they are equally unanimous in allowing the man
for unfaithfulness to put away his wife and contract another
marriage.[221] Prevailing opinion appears also to have accorded the
same privilege to the woman on like provocation; but there were
undoubtedly some in the Protestant ranks who were not so liberal in
her behalf. In particular this seems to be the correct inference
to be drawn from the antagonism and excitement caused by the bold
position of Hooper,[222] who won a perilous distinction through his
sensible demand for even justice to the sexes in this regard.[223]
According to the common view, malicious desertion on the part
of either spouse is a second scriptural ground for the complete
dissolution of wedlock. The singular logic through which the words
of Paul are made to sustain this distinctively Protestant doctrine
may be illustrated by a typical example. "But to our purpose,"
exclaims Tyndale, "what if a man run from his wife and leave her
desolate? Verily, the rulers ought to make a law, if any do so and
come not again by a certain day, as within the space of a year or
so, that then he be banished the country; and if he come again, to
come on his head, and let the wife be free to marry when she will."
But how is this liberty to be reconciled with the words of Paul who
allows a brother or sister a divorce when deserted by an unbelieving
spouse? Easily; for elsewhere "he saith, 'If there be any man that
provideth not for his, and namely for them of his own household,
the same denieth the faith, and is worse than an infidel.' And even
so is this man much worse to be interpreted for an infidel, that
causeless runneth from his wife."[224]

  [Footnote 221: _Cf._, for example, BECON'S "Catechism," _Works_,
  II, 647; and his "Prayers," _ibid._, III, 532; TYNDALE,
  _Expositions_, 51, 52; Bucer in MILTON'S _Prose Works_, III, 299,
  300, who grants this cause to both parties.]

  [Footnote 222: Hooper's teaching caused great excitement: see
  the letter of JOHN AB ULMIS to BULLINGER, in _Original Letters
  relating to English Reformation_, 416. Bullinger is said to hold
  the same views: _ibid._, 422. At his trial one of the charges
  against Hooper was that he taught that the bond of wedlock may be
  dissolved for adultery: HOOPER, _Later Writings_, xxiii.]

  [Footnote 223: HOOPER, _Early Writings_, 382-87, declares, on the
  authority of Mark 10:12, that the woman as well as the man may
  divorce for adultery. To those who deny this according to the
  Mosaic law he says: "I grant the same, but I am sure the poor
  woman was not compelled to live with her adulterous husband; for
  the law commanded such a villain to be slain, and so put the
  honest party to liberty; and so should it be now-a-days, and
  then the question of divorcement would be ended" (383). Again,
  to those who say if woman had this right "marriage could never
  be sure nor constant, for women would change still at their
  pleasure," he replies, "there is given no such liberty to man
  or woman by the word of God," meaning, doubtless, separation at
  pleasure, except for cause established in court. In a letter to
  Henry Bullinger he defends his doctrine of divorce as to the
  woman: _Original Letters rel. to English Reformation_, 64.]

  [Footnote 224: TYNDALE, _Expositions_, 54, 55. A similar
  illustration of the straits to which the Protestant was brought
  in his necessity of appealing to authority is afforded by Bucer,
  in MILTON'S _Prose Works_, III, 309: "Hither may be added, that
  the Holy Spirit grants desertion to be a cause of divorce, in
  those answers given to the Corinthians.... But some will say,
  that this is spoken of a misbeliever departing. But I beseech
  ye, doth not he reject the faith of Christ in his deeds, who
  rashly breaks the holy covenant of wedlock instituted by God?
  And besides this, the Holy Spirit does not make the misbelieving
  of him who departs, but the departing of him who disbelieves,
  to be the just cause of freedom to the brother or sister. Since
  therefore it will be agreed among Christians, that they who
  depart from wedlock without just cause, do not only deny the
  faith of matrimony, but of Christ also, whatever they profess
  with their mouths; it is but reason to conclude, that the party
  deserted is not bound in case of causeless desertion, but that
  he may lawfully seek another consort, if it be needful to him,
  toward a pure and blameless conversation." _Cf_. also the
  argument of MILTON, "The Doctrine and Discipline of Divorce,"
  _Prose Works_, III, 258, 259.]

Far more daring than any of the English writers before Milton is
Martin Bucer, of Strassburg, whose doctrines of divorce comprised
in the book dedicated to Edward VI. are almost as bold as those
of Zwingli. According to this famous theologian, for two years
professor at Cambridge, and greatly venerated by his contemporaries,
divorce is a divine institution; and it ought to be granted not
merely for unfaithfulness and desertion, but for many other reasons
as well. It is curious, but thoroughly in keeping with the mental
habits of his age, to see how he persuaded himself that the causes
of divorce sanctioned by the decrees of the "pious emperors" from
Constantine to Justinian are not "contrary to the word of God;"
may therefore "be recalled into use by any Christian prince or
commonwealth;" and are thus "by divine approbation" valid among
Christians at the present hour.[225] Usually in his treatise he
advocates equal liberty of divorce for both consorts; but, in
contradiction to the spirit of his own teaching, in one chapter he
sets forth a doctrine which would place the wife absolutely at the
mercy of a licentious or despotic lord. A passage from the prophet
Malachi Bucer renders: "'Take heed to your spirit, and let none deal
injuriously against the wife of his youth. If he hate, let him put
away, saith the Lord God of Israel. And he shall hide thy violence
with his garment'--that marries her divorced by thee."[226] On this
authority he concludes that "by these testimonies of the divine law
... the Lord did not only permit, but also expressly and earnestly
commanded his people, by whom he would that all holiness and faith
of marriage covenant should be observed, that he who could not
induce his mind to love his wife with a true conjugal love, might
dismiss her, that she might marry to another."[227] Verily this is
naïve morality. Such singular care for the wife's happiness finds
scarcely a parallel, unless indeed it be in the ethics of John
Milton, to which we must presently recur.

  [Footnote 225: BUCER, in MILTON'S _Prose Works_, III, 302, 303,
  292, 293, 306-8. By some of his brethren he was regarded as a
  fanatic on this subject as the following letter from JOHN BURCHER
  to HENRY BULLINGER shows: "Strasburgh, June 8, 1550: Bucer is
  more than licentious on the subject of marriage. I heard him once
  disputing at table upon this question, when he asserted that
  a divorce should be allowed for any reason, however trifling;
  so that he is considered, not without cause, by our bishop of
  Winchester as the author of the book published in defence of the
  Landgrave. I am ignorant as to what the hireling Bucer, who fled
  from this church before the wolf came in sight, is plotting in
  England."--_Original Letters rel. to the Eng. Ref._, 655, 656.

  "Philip, landgrave of Hesse, in addition to Christina, the
  daughter of the late duke George, to whom he had been united many
  years, and by whom he had a large family, married on March 3,
  1540, a lady named Margaret de Sala, and this with the consent of
  the landgravine under her own hand and seal. Previous to this he
  sought to obtain the sanction of Luther, Melanchthon, and Bucer,
  whose want of firmness in this painful case has called forth the
  most violent invectives from Vorillas and Bossuet, bishop of
  Meaux."--_Ibid._, 666, note.]

  [Footnote 226: Mal. 2:15, 16, which in the James version is
  given: "Therefore take heed to your spirit, and let none deal
  treacherously against the wife of his youth. For the Lord,
  the God of Israel, saith that he hateth putting away: for one
  covereth violence with his garment," etc. It may be noted that
  MILTON, "Doctrine and Discipline of Divorce," _Prose Works_,
  III, 196, following "Calvin and the best translations," renders
  the passage from Malachi, "he who hates, let him divorce," thus
  agreeing essentially with Bucer.]

  [Footnote 227: BUCER, in MILTON, _Prose Works_, III, 297. _Cf._
  JEAFFRESON, _Brides and Bridals_, II, 329-32, who believes
  that these sentiments of Bucer, however shocking to us, were
  accepted by the most "virtuous and devout" in the sixteenth and
  seventeenth centuries.]

But positive evidence of the views of the Reformation Fathers has
been preserved for the time of Edward VI. Under Henry VIII. the
principles of the canon law touching divorce remained in full force,
except that by restricting the number of forbidden degrees to
those recognized by the Levitical code, and through the abolition
of pre-contracts, the chances for escaping the ties of marriage
by crooked ways were somewhat lessened.[228] The restoration of
pre-contracts[229] under Edward VI., however, caused the reformers
to fear lest the old evils growing out of clandestine unions and
nullification of false wedlock on the pretext of previous _sponsalia
de praesenti_ would also be revived; and this quickened their desire
for a formal settlement of the law of divorce in harmony with
the altered views of the English church. Accordingly, an act of
Parliament authorized the appointment of a commission of thirty-two
persons to prepare a "complete code of ecclesiastical laws."[230]
The commission selected in pursuance of this statute comprised
the most learned divines and lawyers of the Protestant party.
Their task was well performed; and their report, drafted mainly
by Cranmer and translated into Latin by Dr. Haddon and Sir John
Cheke, was submitted in 1552 under the title of _Reformatio Legum
Ecclesiasticarum_.[231]

  [Footnote 228: By 32 H. VIII, c. 38. _Cf._ REEVES, _Hist. of Eng.
  Law_, IV, 333-36; GLASSON, _Hist. du droit_, V, 89.

  On Henry VIII.'s divorce see POCOCK, _Records of the Reformation:
  The Divorce, 1527-1553_, containing the original documents;
  BURNET, _Hist. of the Reformation_, I, 26-123; GEARY, _Marriage
  and Family Relations_, 596-602; THWING, _The Family_, 87;
  WOOLSEY, _Divorce_, 168, 169; JEAFFRESON, _Brides and Bridals_,
  I, 114, 124; II, 312 ff., who defends the king on the ground that
  the pope did not grant him the indulgence which private citizens
  constantly enjoyed, especially when they were able to pay for
  it. There is a valuable bibliography of Henry's divorce in HUTH,
  _Marriage of Near Kin_, 404-11.]

  [Footnote 229: By 2 and 3 Ed. VI, c. 23.]

  [Footnote 230: By 3 and 4 Ed. VI, c. 11. _Cf._ the account by
  JEAFFRESON, _op. cit._, II, 317, 318.]

  [Footnote 231: The report was published in 1571 under supervision
  of Archbishop Parker; and then in an Oxford reprint of 1850:
  WOOLSEY, _Divorce_, 170, note. I have followed the excellent
  summary by JEAFFRESON, partly containing the Latin text: _op.
  cit._, II, 318-23; and REEVES, _Hist. of Eng. Law_, V, 74-80,
  gives a good analysis. _Cf._ also HALLAM, _Const. Hist._, I,
  101, 102, note; LINGARD, _Hist. of England_, IV, 284; HAMMICK,
  _Marriage Law_, 6; GEARY, _Marriage and Family Relations_, 8
  n. 6, 578; _Report of the Divorce Commission, Parl. Papers_,
  1852-53, 4; _Report of the Ecc. Courts Comm._, 1883, xxxi-xxxiii,
  xxxvi; BISHOP, _Marriage, Divorce, and Separation_, I, § 1496;
  MACQUEEN, _Practical Treatise_ (London, 1842), 467; _Law Review_
  (English), I, 356-58; BURN, _Ecc. Law_, II, 503 ff.; LECKY,
  _Democracy and Liberty_, II, 175; LUCKOCK, _Hist. of Marriage_,
  175, 176; MORGAN, _Marriage, Adultery, and Divorce_, II, 227-29.]

This code, though it was never put in force, perhaps in consequence
of the king's death, is regarded as a faithful index of Protestant
opinion. Before referring to its treatment of the question of
divorce, some of its general provisions may be mentioned. These
often show the strong common-sense and lofty moral purpose of its
framers. The consent of the parent or guardian is made necessary to
a valid marriage. Children whose reasonable desires in matrimony
are hindered by the caprice or unkindness of those having authority
over them are granted the right of appeal to the ecclesiastical
magistrate, who may give redress. Aged women are advised to forbear
from wedlock with young men. A marriage secured through fear or
violence is rendered void. An attempt is also made through severe
penalties to check those crimes against women which, as elsewhere
shown, were first effectively dealt with during the Puritan
Commonwealth.[232] "They ordered that the betrayer of a virgin
should be excommunicated until he had married his victim, if it was
in his power to wed her; or until he had assigned to her a third
of his property, or made some other sufficient arrangement for the
support of her offspring," if on account of legal impediment he
could not make her his wife.[233]

  [Footnote 232: See chap. x, sec. i, pp. 421-23 above.]

  [Footnote 233: JEAFFRESON, _op. cit._, II, 322.]

Hereafter, according to the report, spiritual affinity is not to
count as an impediment to matrimony. Separation _a mensa et thoro_
is not recognized; but complete divorce _a vinculo matrimonii_ is
granted "in cases of extreme conjugal faithlessness; in case of
conjugal desertion or cruelty; in cases where a husband, not guilty
of deserting his wife, had been for several years absent from her,"
provided there be reason to believe him dead; "and in cases of such
violent hatred as rendered it in the highest degree improbable that
the husband and wife would survive their animosities and again love
one another;"[234] but separation is not permitted for frequent,
though not incessant or vehement, quarrels.[235] Divorce is denied
where both partners are guilty of unfaithfulness; and when one is
guilty, only the innocent spouse is permitted to contract another
marriage. Self-divorce is forbidden. In all cases it is the province
of the ecclesiastical court to determine whether there exists a just
cause for separation.[236] Finally, it may be noted that adultery
as a crime is severely dealt with, though the commissioners do not
go to the length of prescribing capital punishment, as some of the
English reformers would have desired. The guilty husband, if a
layman, shall "restore to his injured wife whatever possessions she
had brought him, and also surrender to her one-half of all his other
property. He was, moreover, sentenced to exile or imprisonment for
life. Convicted of the same offence, the wife lost her dower and all
interest in her husband's property, and was consigned to life-long
imprisonment or banishment." For this crime and similar offenses
"clerical delinquents" are treated with even greater severity.[237]

  [Footnote 234: "Inter conjuges si capitales intercedant
  inimicitiae tamque vehementer exarserint, ut alter alterum
  aut insidiis aut venenis appellat, aut aliqua vel aperta
  vi, vel occulta peste, vitam velit eripere, quamprimum tam
  horribile crimen probatum fuerit, rite in juditio divortio
  volumus hujuscemodi personas distrahi."--_Ref. leg. ecc.: ap._
  JEAFFRESON, _op. cit._, II, 320, 321, note.]

  [Footnote 235: "Parva contentiones, nisi perpetuae sint,
  divortium non inducunt."--_Ref. leg. ecc.: ap._ JEAFFRESON, _op.
  cit._, II, 321.]

  [Footnote 236: JEAFFRESON, _op. cit._, II, 321.]

  [Footnote 237: _Ibid._, 322, 323.]

The report prepared by the commission never received the sanction
of the king; nor does it appear that any authoritative change in
the canon law relating to divorce was ever made until the present
century. Nevertheless the _Reformatio Legum_ "is a work of great
authority, showing the recognized opinion and sentiment of the
church of England at that time and containing the views of the first
reformers."[238] The principle represented by it was carried out in
practice, though it may well be doubted whether, as is sometimes
urged,[239] the decrees of the ecclesiastical court ever went so
far as expressly to grant dissolution of wedlock. According to the
ancient form of judgment, divorce was probably still pronounced only
_a mensa et thoro_; but, whatever the shape of the decrees, there
is strong evidence that from about 1548 to 1602, except for the
short period of Mary's reign, "the community, in cases of adultery,
relied upon them as justifying a second act of matrimony."[240] For
already in 1548--four years before Edward's commission had completed
its report--the new doctrine had been in a measure sustained
by the well-known case of Lord Northampton, brother of Queen
Catherine Parr. After obtaining a decision of an ecclesiastical
court separating him from his wife, Anne Bourchier, the marquis
had contracted another union with Elizabeth Brooke, daughter of
Lord Cobham. Subsequently a commission of delegates, headed by
the archbishop of Canterbury, declared the second marriage valid,
"because the former contract had been absolutely destroyed" by Anne
Bourchier's infidelity;[241] and in 1552 this decision was confirmed
by an act of Parliament[242] which declares the marriage valid "by
the law of God,--any decretal, canon ecclesiastical, law, or usage
to the contrary notwithstanding."[243]

  [Footnote 238: GEARY, _Marriage and Family Relations_, 8 n. 6.]

  [Footnote 239: So by Sir John Stoddart in his evidence before the
  Lords' Select Committee, 1844: "Therefore I apprehend that the
  _Reformatio legum_ having been published as a work of authority,
  although not of absolute legislative authority, it must have
  been, and in all probability was, followed: and for that reason
  _in the Spiritual Courts there were dissolutions of marriage_.
  Because _I believe that from about the year 1550 to the year 1602
  marriage was not held by the Church, and therefore was not held
  by the Law, to be indissoluble_."--_Minutes of Evidence_, 27:
  _Law Review_ (Eng.), I, 358, 359.]

  [Footnote 240: _Law Review_ (Eng.), I, 359. _Cf._ JEAFFRESON,
  _op. cit._, II, 323.]

  [Footnote 241: JEAFFRESON, _op. cit._, II, 323, 324. Cranmer
  examined the Fathers and other authorities on divorce for
  adultery; and the material which he thus collected grew into a
  large book, which Burnet, who gives a summary, says he has seen:
  _Hist. of Reformation_, I, 330 ff. Burnet's summary is also
  given by GEARY, _Marriage and Family Relations_, 577, 578. _Cf._
  MACQUEEN, _Practical Treatise_, 468, 469.]

  [Footnote 242: 5 and 6 Ed. VI., c. 4.]

  [Footnote 243: MACQUEEN, _op. cit._, 469. "This bill is often,
  but erroneously, referred to as the earliest example of
  parliamentary divorce (SHELFORD, 373). It is not a divorce bill;
  neither did it proceed upon the principle of a divorce bill. Its
  object was merely to declare that the adultery of the first wife,
  followed by the ecclesiastical sentence, entitled the Marquis
  to take a second wife. The principle on which the act passed
  assumed the jurisdiction of the Church Court, to dissolve the
  marriage _proprio vigore_. The act did not divorce the parties,
  but merely declared them to be _already_, by the ecclesiastical
  sentence, sufficiently divorced to admit of the Marquis marrying
  again."--_Ibid._, 469 n. _e_. On this case see also _Law Review_
  (Eng.), I, 358, 359; _Report of the Royal Commission on Divorce,
  Parl. Papers_, 1853, 57 ff.; GEARY, _op. cit._, 17; WOOLSEY,
  _Divorce_, 169-71; LECKY, _Democracy and Liberty_, II, 174, 175;
  BURN, _Ecc. Law_, II, 503_a_-503_b_; REEVES, _Hist. of Eng. Law_,
  V, 80, 81; MORGAN, _Marriage, Adultery, and Divorce_, II, 229
  ff.]

This is, indeed, convincing evidence of the changed opinion of the
English church. Nor can it be questioned that throughout nearly
the whole of Elizabeth's reign popular practice was in harmony
with the doctrine thus proclaimed.[244] New marriages were freely
contracted after obtaining divorce from unfaithful partners.[245]
Clear evidence of this fact is afforded by Bunny, himself strongly
opposed to the liberal tendency.[246] As a matter of fact, popular
custom, sustained by the profound sentiment of the Reformed clergy,
was fast ripening into a law as valid as any which a legislature
could enact. Such a tendency, however, could not fail to become
more and more obnoxious to many of the leaders of the established
clergy, as Elizabeth's reign progressed. Archbishop Whitgift
defends the ancient divorce jurisdiction of the spiritual courts
against Cartwright,[247] and the Puritan party is treated with
ever-increasing rigor. Still the reactionary canons passed by the
Chamber of Convocation in 1597, doubtless designed to check what
was already looked upon as a dangerous abuse, bear witness to its
continued existence; if indeed by implication, as is powerfully
argued, they do not directly sanction the dissolution of marriage
through divorce.[248]

  [Footnote 244: According to the _Report of the Commissioners,
  1852-3_, 5, divorce was allowed during the period 1550-1602.]

  [Footnote 245: See, however, WOOLSEY, _Divorce_, 170, 171, 313,
  who, insisting that the ancient canon law was unchanged, remarks
  that "for a number of years, although remarriage after divorce
  was null and void, so that the issue would not be legitimate,
  no civil penalties were attached to it, and it was punishable
  only by ecclesiastical censures." Hence many married "without
  scruple." _Cf._ CRAIK, _Romance of the Peerage_, I, Appendix,
  upon whom Woolsey relies; and JEAFFRESON, _Brides and Bridals_,
  II, 323, 324, who holds that the decision of the delegates in the
  Northampton case was "good law" until 1602.]

  [Footnote 246: BUNNY, _Of Divorce for Adulterie, and Marrying
  againe: that there is no sufficient Warrant so to do_ (Oxford,
  1610). This book had been written many years before. The preface
  is dated Dec. 13, 1595; and in it Bunny refers to the state of
  public opinion and to events, notably in Yorkshire, of a still
  earlier time. In "a Sermon," he says: "I breefly noted, that the
  libertie, that in these our daies many doe take, of divorcing
  their wiues for adulterie and marying of others, had not such
  warrant in the worde of God as they thought that it had." Just
  before delivering this discourse a gentleman who desired to put
  away his wife for adultery and marry again, "and having already
  gotten (into a little paper-book of his) the handes of sundrie
  of the Preachers of those parts," had come to him for similar
  support. He further notes that "a few yeeres" earlier not less
  than "fowre several persons" of one of the greatest families in
  "those parts" had married again after divorce; and in general
  his "Advertisement to the Reader" leaves the impression that the
  new doctrine was, on the whole, the prevailing one; although,
  according to law, "neither those second women were allowed any
  dowrie, nor their children to be legitimate."]

  [Footnote 247: WHITGIFT, "Defence of the Answer," _Works_, III,
  267 ff. _Cf._ BULLINGER, _Decades_, IV (V), 511.]

  [Footnote 248: These ordinances are known as the "Ecclesiastical
  Constitutions" of 1597. Canon 105 urges greater care in
  matrimonial causes, especially in cases where marriage "is
  required to be _dissolved_ or _annulled_;" and it is strictly
  charged "that in all proceedings in _divorce_ and _nullities of
  marriage_, good circumspection and advice be used, and that the
  truth may, as far as possible, be sifted out by depositions of
  witnesses and other lawful proofs; and that credit be not given
  to the sole confession of the parties themselves, howsoever taken
  upon oath either within or without the court." The 107th canon
  requires a bond to be given in case of "sentences pronounced
  only for divorce and separation _à thoro et mensâ_," that "the
  parties so separated shall live chastely, and neither shall they,
  during each other's life, contract matrimony with other persons."
  From these canons it has been inferred with some plausibility
  that both "dissolving divorce" and "nullifying divorce" are
  contemplated as valid and customary; and that the requiring of
  a bond implies that the marriage which the bond is intended to
  prevent would have been valid: see _Law Review_ (Eng.), I, 359,
  360, and the opinions there cited; also _Plea for an Alteration
  in the Divorce Laws_ (London, 1831), 3 ff.]

Similar testimony is afforded by the celebrated Foljambe case
in 1602, when a court sitting in the Star Chamber incidentally
pronounced invalid a marriage which had been contracted after
separation from bed and board by decree of an ecclesiastical judge;
and this decision follows the advice of a council of the "most sage
divines and civilians assembled by Archbishop Whitgift at Lambeth,
declaring in harmony with the ancient law that remarriage after
judicial separation is null and void."[249]

  [Footnote 249: The Foljambe case has given rise to much
  controversy. It is commonly regarded as marking the formal
  abandonment of the more liberal _law_ of the Reformation period
  and a return to canonical principles. This view is mainly
  traceable to the statements of SALKELD, _Reports of Cases in the
  King's Bench_ (Philadelphia, 1822, from 6th London ed.), III,
  137, who commits several errors, and is otherwise misleading.
  He is followed by JEAFFRESON, _Brides and Bridals_, II, 324;
  GEARY, _Marriage and Family Relations_, 12; MACQUEEN, _Practical
  Treatise_, 470, 471; HARRISON, _Probate and Divorce_, 115; and
  especially BISHOP, _Marriage and Divorce_ (5th ed.), I, §§ 661,
  705. On the other hand, WOOLSEY, _Divorce_, 172, note, 310-13,
  following the researches of CRAIK, _Romance of the Peerage_, I,
  Appendix, regards the decision as merely confirming existing law.
  He criticises Bishop for being misled by Salkeld, whereas the
  facts appear to be more correctly given in NOY'S _Reports_, 100;
  and particularly in MOORE'S _Cases_ (2d ed. folio, London, 1688),
  683, which may be translated from the law-French as follows:
  "Feb. 13, _anno_ 44 Eliz. In the Star Chamber it was declared
  by all the court, that whereas Foljambe was divorced from his
  first wife for incontinence of the woman [in fact, for his own
  adultery], and afterwards had married Sarah Poge [Page], daughter
  of Rye, in his former wife's life-time, this was a void marriage,
  the divorce being _a mensa et thoro_, and not _a vinculo
  matrimonii_. And John Whitgift, then Archbishop of Canterbury,
  said that he had called to himself at Lambeth the most sage
  divines and civilians, and that they had all agreed therein." It
  is concluded, therefore, that this decision of the "sage divines
  and civilians" must have been incidental to a case under trial in
  the Star Chamber, and that the law was merely declared and not
  changed. See, however, the sixth edition of BISHOP'S work, I, §
  1498 n. 3, where the author insists on the essential correctness
  of his original view. _Cf_. also _Law Review_ (Eng.), I, 361,
  362; _Report of the Commissioners_ (Divorce), 1852-53, 4-6; and
  MORGAN, _Marriage, Adultery, and Divorce_, II, 233.]

Strictly speaking, it may not be correct to say, as is commonly
done by law writers, that the Foljambe case marks a change in the
law of divorce by requiring a return to the doctrine of the ancient
church; but from it, at any rate, two important inferences may be
drawn. On the one hand, it shows that the custom of remarriage
after separation _a mensa et thoro_ was continued to the very end
of Elizabeth's reign. On the other hand, it constitutes a stage in
the development of a more conservative policy. As such it may have
had something to do with the legislation of about a year later. By
royal authority in 1603 the canons of 1597 were re-enacted "word for
word," and consequently, as already suggested, they incidentally
bear witness to the Reformation theory and practice as to divorce
and remarriage, while seeming to admit the possibility of a valid
dissolution of wedlock by judicial decree.[250] For the first time
in English history a statute of 1604 makes bigamy[251] in the modern
sense a felony punishable with death; but there are exceptions
to the operation of the act which tell strongly in favor of the
view that the custom of remarriage after judicial separation had
been something more than tolerated. It is expressly provided that
the penalty fixed by the act shall not extend to a man or woman
who has contracted a new marriage after seven years' desertion;
nor to "any person or persons that are or shall be at the time
of such marriage divorced by any sentence had or hereafter to
be had in the ecclesiastical court."[252] Here it is clear that
dissolution of wedlock by sentence of nullity is not intended; for
this is provided for by another exception in the act itself. It is
equally clear that all cases of divorce by judicial decree _are_
comprehended, whatever the cause of separation assigned. The law as
then interpreted seems to have remained unchallenged until 1637,
when in Porter's case the court of King's Bench, without squarely
deciding the point, expressed a doubt whether a woman remarrying
after divorce for cruelty was exempt from punishment under the
proviso of King James's statute; because, "if this should be
suffered, many would be divorced upon such pretence, and instantly
marry again, whereby many inconveniences would arise. Whereupon she
was advised not to insist upon the law, but to procure a pardon to
avoid the danger; for it was clearly agreed by all the civilians and
others, that the second marriage was unlawful."[253] Nevertheless,
the hesitation of the court does not appear to be justified
either by the plain words of the act or by the weight of legal
authority.[254]

  [Footnote 250: _Law Review_ (Eng.), I, 362. One of these canons
  "provided that no persons separated _a toro et mensa_ should,
  during their joint lives, contract matrimony with other persons,
  and that the parties requiring the sentence of divorce should
  give sufficient caution and security into the court that they
  would not transgress this restraint. Another canon required the
  judge who should grant divorce, without observing these rules,
  to be suspended for one year by the archbishop or bishop, and
  declared his sentence utterly void."--WOOLSEY, _Divorce_, 171,
  172. _Cf._ LUCKOCK, _Hist. of Marriage_, 177 n. 2; MORGAN,
  _Marriage, Adultery, and Divorce_, II, 233 ff.]

  [Footnote 251: By the act of 1 James I., c. xi, "bigamy" is
  used in the modern sense. In mediæval law a "bigamist" is one
  who marries again _after_ his first wife's death; the word
  "polygamist" being employed for the person who takes another
  woman _before_ the death of the first spouse. By 4 Ed. I., 1276
  (_Stat. de bigamis_, _Stat. at Large_ [Pickering], I, 116),
  benefit of clergy is denied him who is a bigamist, _i. e._, has
  contracted a second marriage after death of the first wife:
  JEAFFRESON, _Brides and Bridals_, II, 327. Compare GLASSON,
  _Hist. du droit_, III, 184, 185.

  "As for the crime of polygamy [the modern bigamy], it hath not
  been made penal by any statute, till the time of James the First.
  A canon of Pope Gregory the Tenth had taken away all clerical
  privileges from a bigamist, as the marrying a second wife was
  considered by the ecclesiastical law, to be proof of a most
  incontinent disposition; this regulation having been adopted in
  England, the clergy had a doubt, whether a person, who had been
  guilty of this offence before the canon law took place, might
  claim the indulgence of the common law; this statute [4 Ed. I.],
  therefore, retrospectively declares, he shall not be entitled to
  such privilege."--BARRINGTON, _Observations upon the Statutes_
  (4th ed., London, 1775), 106; also JEAFFRESON, _op. cit._, II,
  327, note. But it may be noted that by 1 Ed. VI., c. 12, sec.
  16: _Stat. at Large_ (Pickering), V, 265, 266, benefit of clergy
  is restored in terms which may leave it in doubt whether bigamy
  in the modern sense is intended. This privilege is granted to
  offenders, "although they or any of them have been divers and
  sundry times married to any single woman or single women, or to
  any widow or widows, or to two wives or more." On the ancient
  meaning of "bigamy" see also GLASSON, _op. cit._, III, 184.]

  [Footnote 252: 1 James I., c. xi: _Stat. at Large_ (Pickering),
  VII, 88, 89.

  However, inferences as to the law in the preceding period must be
  made with caution. The case of Stephens _v._ Totty, decided at
  the Michaelmas term, 44 and 45 Eliz., shows that a husband and
  a wife divorced _a mensa et thoro_ were still married: CROKE'S
  _Reports_ (Elizabeth), 908. _Cf._ on this act especially HALE,
  _Hist. of the Pleas of the Crown_ (London, 1800), I, 691-93;
  also WOOLSEY, _Divorce_, 171; _Law Review_ (Eng.), I, 362.
  Furthermore, RAYNOLDS, a strong advocate of absolute divorce,
  in his _Defence of the Judgment of the Reformed Churches_
  (1609), appears to make no claim that his doctrine is sustained
  either by law or custom. So also in the quaint treatise, _The
  Lawes Resolutions of Women's Rights_ (London, 1632), 64 ff.,
  full divorce is not recognized; although, referring to the
  fact that legally "no crime dissolueth marriage," the compiler
  (67) seemingly approves Conrad Lagus who says, "seeing that
  in Contracts of Wedlock we regard as well what is decent and
  conuenient, as what is lawfull, I cannot tell why we be not bound
  in dissoluing of it to follow the like equitie; and for example,
  if a Wife cannot dwell with her husband without manifest danger
  of death ... why may not she be separated iudicis ordinarij
  cognitione precedente?"

  On the other hand, SPENCE, _Equitable Jurisprudence_, I, 702,
  believes that the bond not to marry required by the canons of
  1603 was the only hindrance to remarriage after divorce; and
  from this time onward he thinks it "not unlikely that the court
  of chancery decreed divorces _a vinculo_; and that the American
  courts of equity brought this doctrine (or right) with them."
  This view is rejected by SCRIBNER, _Treatise on the Law of
  Dower_, II, 545-47, although he agrees as to the effect of the
  bond.]

  [Footnote 253: Porter's case, Easter term, 12 C. I.: CROKE'S
  _Reports_ (Charles I.), 461-63.]

  [Footnote 254: See the strong argument of Holburn and Grimston
  for the defendant who justly claim that a "divorce _causa
  saevitiae_ is grounded _ex jure naturae_, and is in the same
  manner and nature as a divorce _causae adulterii_: CROKE'S
  _Reports_ (Charles I.), 463. HALE, _Hist. of Pleas of the Crown_,
  I, 693, remarks "certainly the divorce intended" by James's act
  "is not _a vinculo matrimonii_;" and then further observes,
  in Porter's case "it was doubted, whether a divorce _causâ
  saevitiae_ were such a divorce as was within this exception,
  because it seemed rather to be a provisional separation for the
  wife's safety and maintenance, than a divorce; but it was never
  resolved." _Cf._ also _Co. Lit._, 235; MARCH, _Reports of New
  Cases_, 101; COKE, _Institutes_, III, 89; KELYNG, _Report of
  Divers Cases_ (Dublin, 1789), 27; GEARY, _Marriage and Family
  Relations_, 12.]


III. LAW AND THEORY DURING THREE CENTURIES

_a_) _The views of Milton._--With the opening of the Stuart
era, therefore, a reactionary policy with respect to divorce
was established. For two centuries and a half thereafter the
principles of the ancient canon law were administered by the English
spiritual courts. In fact, it was now more difficult than before
the Reformation to escape the marriage tie;[255] for the papal
dispensation could grant no relief, and in consequence of the
decrease in the number of restraints to a valid marriage, the decree
of nullity was not so often a convenient subterfuge. Only the rich
or noble were able to afford the costly remedy of a special act of
Parliament to cure their matrimonial ills. Hence it is not a little
surprising that the Puritan Revolution brought with it no change
in this regard. One would naturally expect the Independents under
Cromwell's leadership, by whom the remarkable civil-marriage law
of 1653 was conceived, to relegate the whole matter of divorce and
nullity to the temporal courts under proper legal conditions; yet
there seems to be no record of such a course.

  [Footnote 255: JEAFFRESON, _Brides and Bridals_, II, 315, perhaps
  with too much emphasis, thus describes the effects of 32 H.
  VIII., c. 38: "It rendered wedlock easier of entrance, but closed
  all the many gates which had hitherto afforded spouses the means
  of escape from conjugal wretchedness.... The Elizabethan jest,
  that compared matrimony to a public rout, was no less applicable
  to wedlock in Catholic than to marriage in Protestant England;
  but whereas our ancestors before the Reformation could always get
  out of the press by a few permissible falsehoods and the payment
  of money, the marriage law of Protestant times declared that,
  having once forced their way into the crowd, they should remain
  in it till death came to their relief."]

But if the Puritan statute-book was silent, Puritan thought
produced the boldest defense of the liberty of divorce which
had yet appeared. If taken in the abstract and applied to both
sexes alike, it is perhaps the strongest defense which can be
made through an appeal to mere authority. For, in spite of their
casuistry, their inconsistencies, and their injustice to woman,
the writings of John Milton may be said to have about exhausted
the resources of theological argument and the learning of his age
on this subject.[256] He goes farther than Zwingli, Bucer, or any
other reformer in admitting grounds for the absolute dissolution
of marriage. According to Milton, divorce is a "law of moral
equity," a "pure moral economical law ... so clear in nature and
reason, that it was left to a man's own arbitrement to be determined
between God and his own conscience;" and "the restraint whereof,
who is not too thick-sighted, may see how hurtful and distractive
it is to the house, the church, and the commonwealth."[257] It is
lawful to Christians "for many other causes equal to adultery,"
such as cruelty, idolatry, and "headstrong behaviour" on the part
of the woman, as also for desertion.[258] For "what are these
two cases [adultery and desertion] to many other, which afflict
the state of marriage as bad, and yet find no redress?" Hence he
spurns a narrow construction as contrary to reason. "What hath the
soul of man deserved, if it be in the way of salvation, that it
should be mortgaged thus, and may not redeem itself according to
conscience out of the hands of such ignorant and slothful teachers
as these, who are neither able nor mindful to give due tendance to
that precious cure which they rashly undertake; nor have in them
the noble goodness, to consider these distresses and accidents of
man's life, but are bent rather to fill their mouths with tithe
and oblation?"[259] Nor is this the only time when Milton speaks
the language of the modern social reformer, though sometimes his
strongest arguments from the standpoint of reason are ill sustained
by the authority upon which he relies. From the law of Moses, with
which he insists that the law of Jesus must agree, he thus reaches
the conclusion that just ground of divorce is "indisposition,
unfitness, or contrariety of mind, arising from a cause in nature
unchangeable, hindering, and ever likely to hinder the main
benefits of conjugal society, which are solace and peace."[260]
To this ideal of the true end of wedlock he returns again and
again. Rejecting the gross and carnal conception of the Fathers
and canonists, their glaring contradiction between marriage as a
"defilement" and a sacrament,[261] he urges that matrimony is a
society "more than human," centering "in the soul rather than in the
body;" a companionship resting upon the "deep and serious verity" of
"mutual love," without which wedlock is "nothing but the empty husks
of an outside matrimony, as undelightful and unpleasing to God as
any other kind of hypocrisy."[262] Hence, where such society does
not exist, where mutual affection has given place to deceit, the
legal bond of the sham wedlock ought to be dissolved.

  [Footnote 256: His four principal works dealing with divorce
  are the "Doctrine and Discipline of Divorce" (_Prose Works_,
  III, 169-273); supplemented by "The Judgment of Martin Bucer"
  (_ibid._, 274-314); "Tetrachordon" (_ibid._, 315-433); and the
  "Colasterion" (_ibid._, 434-61). See also _Prose Works_, IV,
  243-49; I, 259.]

  [Footnote 257: MILTON, "Doctrine and Discipline of Divorce,"
  _Prose Works_, III, 241, 242.]

  [Footnote 258: MILTON, "Colasterion," _Prose Works_, III, 423-33,
  where the views of many reformers are quoted; and "Doctrine and
  Discipline of Divorce," _ibid._, 251-58, where Jesus's words are
  examined.]

  [Footnote 259: MILTON, "Colasterion," _Prose Works_, III, 425.]

  [Footnote 260: MILTON, "Doctrine and Discipline of Divorce,"
  _Prose Works_, III, 185.]

  [Footnote 261: The doctrine of indissolubility compels
  uncongenial minds to "fadge together, and combine as they may
  to their unspeakable wearisomeness, and despair of all sociable
  delight in the ordinance which God hath established to that very
  end.... All which we can refer justly to no other author than
  the canon law and her adherents, not consulting with charity,
  the interpreter and guide of our faith, but resting in the mere
  element of the text; doubtless by the policy of the devil to make
  that gracious ordinance become unsupportable, that what with men
  not daring to venture upon wedlock, and what with men wearied
  out of it, all inordinate licence might abound."--"Doctrine and
  Discipline of Divorce," _Prose Works_, III, 181.]

  [Footnote 262: _Ibid._, 210, 211, 195. For similar expressions
  see _ibid._, 181, 182, 185, 267.]

Unfortunately, there is another and less pleasing aspect of Milton's
teaching. Beyond question saturated as he is in the sentiments
of the Hebrew law, Milton has a very low ideal of womanhood.
Almost invariably it is the husband's grievances which excite his
compassion. Scarcely by implication does he ever admit that the
wife may initiate proceedings, private or public, to rid herself of
an unwelcome spouse. It is not quite clear whether he would allow
her to put away even the unfaithful husband against his will;[263]
while repudiation for lack of sympathy, for "loneliness," on account
of failure to realize that comfort and full spiritual society
upon which he so fondly dwells, is apparently the sole privilege
of the man. In his opinion the man is emphatically the head of the
woman, who was created by God expressly "to comfort and refresh him
against the evil of solitary life."[264] No disciple of Hillel was
ever more thoroughly persuaded that mere dislike is adequate cause
for putting away a wife at the sole command of the husband than was
he. "No libertine, for the sake of wickedness and gratification of
low desire, ever demanded greater license in marriage than Milton
in the name of religion demanded for Christian men, in order that
they might find meet-helps, and escape the grievances of uncongenial
wedlock," though doubtless his sole aim was the attainment of
domestic purity and happiness.[265]

  [Footnote 263: However, chap. xxxiv of BUCER'S work, entitled
  "That it is lawful for a wife to leave an adulterer, and to marry
  another husband," Milton disposes of with the remark that "this
  is generally granted, and therefore excuses me the writing out":
  "The Judgment of Martin Bucer," _Prose Works_, III, 300. But
  this must be considered in connection with his positive claim of
  entire jurisdiction for the man in divorce causes, below referred
  to. Occasionally he drops a word from which possibly it may be
  inferred that he believes in a reciprocal right of the sexes; but
  it is amazing how adroitly he avoids a direct statement to that
  effect. _Cf._, for example, "Doctrine and Discipline of Divorce,"
  _Prose Works_, III, 182, where he seems to approve the liberal
  laws of the Christian emperors; _ibid._, 247-49, where he refers
  to Beza's view that divorce is for the benefit of the woman;
  "Tetrachordon," _Prose Works_, III, 359, 372, where he touches
  lightly upon the mutual rights of husband and wife.]

  [Footnote 264: MILTON, "Doctrine and Discipline of Divorce,"
  _Prose Works_, III, 181. "And what his chief end was of creating
  woman to be joined with man, his own instituting words declare,
  and are infallible to inform us what is marriage, and what is
  no marriage; unless we can think them set there to no purpose:
  'It is not good,' saith he, 'that man should be alone. I will
  make him a help meet for him.'"--_Ibid._, 187. Beza holds, says
  Milton, that divorce (by the Jewish law) is created "only for the
  help of wives." This leads him to exclaim: "Palpably uxorious!
  Who can be ignorant, that woman was created for man, and not man
  for woman, and that a husband may be injured as insufferably in
  marriage as a wife! What an injury is it after wedlock not to be
  loved! What to be slighted! What to be contended with in point of
  house rule who shall be the head; not for any parity of wisdom,
  for that were something reasonable, but out of a female pride! 'I
  suffer not,' saith St. Paul, 'the woman to usurp authority over
  the man.' If the apostle could not suffer it, into what mould is
  he mortified that can?"--_Ibid._, 247; _cf._ also _ibid._, 209.]

  [Footnote 265: JEAFFRESON, _Brides and Bridals_, II, 333. He was
  not solely actuated by irritation against his wife, Mary Powell,
  whom he had put away; for he retained his views after taking her
  back and to his life's end: _ibid._, II, 333.]

That this judgment is scarcely too severe is clearly proved by
Milton's theory of proper divorce procedure.[266] Rejecting all
aid of court or magistrate, he goes back to the ancient principle
of self-divorce.[267] For it was an "act of papal encroachment"
to "pluck the power and arbitrement of divorce from the master of
the family, into whose hands God and the law of all nations had
put it, and Christ so left it, preaching only to the conscience,
and not authorizing a judicial court to toss about and divulge the
unaccountable and secret reason of disaffection between man and
wife, as a thing most improperly answerable to any such kind of
trial." For the sake of "revenue and high authority" the "popes
of Rome" have "subjected that ancient and naturally domestic
prerogative to an external and unbefitting judicature." Differences
"in divorce about dowries, jointures, and the like, besides
the punishing of adultery," ought indeed to be referred to the
magistrate; yet "against the will and consent of both parties, or of
the husband alone," the "absolute and final hindering of divorce"
cannot rightly "belong to any civil or earthly power." For "ofttimes
the causes of seeking divorce reside so deeply in the radical and
innocent affections of nature, as is not within the diocese of law
to tamper with." Among such "deep and serious regresses of nature"
is hate, "of all things the mightiest divider." Moreover, the lord
of the family cannot go wrong in acting from such motive; "for
although a man may often be unjust in seeking that which he loves,
yet he can never be unjust or blamable in retiring from his endless
trouble and distaste, whenas his tarrying can redound to no true
content on either side."[268] All this despotic power is placed in
the husband's hands for the woman's good; for it is "an unseemly
affront to the sequestered and veiled modesty of that sex, to have
her unpleasingness and other concealments bandied up and down, and
aggravated in open court by those hired masters of tongue-fence....
It is true an adulteress cannot be shamed enough by any public
proceeding; but the woman whose honour is not appeached is less
injured by a silent dimission, being otherwise not illiberally dealt
with, than to endure a clamouring debate of utterless things."
Whether it would be well to shame the adulterer by publicity we are
not informed. Power would thus be restored to the "master of the
family," where it was divinely placed. For its exercise there is but
one condition needful among Christian men. The repudiation should
take place in "the presence of the minister and other grave selected
elders." These are to "admonish" him; and he in turn is to declare
solemnly by "the hope he has of happy resurrection, that otherwise
than thus he cannot do, and thinks himself and this his case not
contained in that prohibition of divorce which Christ pronounced,
the matter not being of malice, but nature, and so not capable of
reconciling." He must not be restrained further. To do so "were to
unchristian him, to unman him, to throw the whole mountain of Sinai
upon him, with the weight of the whole law to boot, flat against the
liberty and essence of the gospel." The procedure thus provided for
by Milton, remarks Jeaffreson, is a "strictly private trial in which
the husband discharged the function of prosecutor, furnished the
evidence, and played the part of a judge." But Milton is conscious
that the denial of a reciprocal liberty to the wife may require some
defense. This he supplies by a singular piece of logic, which in
its effect would sanction and encourage the basest tyranny for even
the vilest purposes, though he does not appear to see it.[269] "The
law can only appoint the just and equal conditions of divorce,"
he declares, "and is to look how it is an injury to the divorced,"
that is to say, to the repudiated wife. But in truth, he hastens
to add, "as a mere separation" it can be no injury to her; "for
if she consent, wherein has the law to right her? or consent not,
then is it either just, and so deserved; or if unjust, such in all
likelihood was the divorcer: and to part from an unjust man is a
happiness and no injury to be lamented. But suppose it be an injury,
the law is not able to amend it, unless she think it other than a
miserable redress, to return back from whence she was expelled, or
but entreated to be gone;" or else, if not formally separated, "to
live apart still married without marriage, a married widow." The
circular argument is thus complete. "The poet, whose Adam prayed
the Almighty to give him an _equal inferior_ for his companion in
the happy garden, does not appear to have conceived it possible
for a woman in her right mind to wish to put away her lord and
master."[270]

  [Footnote 266: For MILTON'S theory of divorce procedure, as
  summarized in the text, see "Doctrine and Discipline of Divorce,"
  _Prose Works_, III, 263-73. _Cf._ JEAFFRESON, _Brides and
  Bridals_, II, 335-38.]

  [Footnote 267: SCHEURL, _Das gem. deut. Eherecht_, 294 ff.,
  forcibly argues that the conception of divorce through
  magisterial intervention, as opposed to self-divorce, is a mark
  of Reformation thought. According to Luther, God speaks through
  the civil magistrate. Hence in case of divorce from the bond of
  wedlock by judicial decree it is not "man," but God himself,
  who parts man and wife. Therefore the command of Jesus is not
  broken. So here we have another illustration of the casuistry
  necessitated by the appeal to authority.]

  [Footnote 268: Accordingly MILTON justifies Parliament and the
  clergy in consenting to Henry VIII.'s putting away Anne of
  Cleves, "whom he could not like after he had been wedded half a
  year."--"Doctrine and Discipline of Divorce," _Prose Works_, III,
  266.]

  [Footnote 269: _Cf._ JEAFFRESON'S suggestion, _Brides and
  Bridals_, II, 337.]

  [Footnote 270: _Ibid._, 338. A representative Catholic writer,
  REV. WILLIAM HUMPHREY, S. J., defending the sacramental doctrine
  of marriage, transposes Milton's phrase, declaring the woman in
  paradise and "as she is now" to be the "subordinate equal of
  man."--_Christian Marriage_, 16.]

_b_) _Void and voidable contracts._--It is a striking illustration
of the completeness with which in social questions the English mind
was dominated by theological modes of thought that no change in the
law of divorce was effected until the present century. Yet there
was crying need of reform. The rigid tightening of the bonds of
wedlock seems to have produced its natural fruit. Immorality grew
apace.[271] The lot of the married woman became harder even than
before the Reformation. To the anomalies of the mediæval system,
some of which survived, were added others not less harmful. Chief
among them were those arising in the dualism, amounting sometimes
to antagonism, subsisting between the civil and the spiritual
law. Theoretically, of course, the temporal judge had no divorce
competence at all. Still where dower or inheritance was involved a
policy had to be defined. "Ultimately the common lawyers came to
the doctrine that while the divorce _a vinculo matrimonii_ did, the
divorce _a mensa et toro_ did not deprive the widow of dower, even
though she was the guilty person."[272] Such was the law onward from
the days of Edward III.[273] Earlier, according to Glanville, and
apparently also according to Bracton, the woman "divorced for her
misconduct can claim no dower;"[274] and even at a time when she was
not deprived of dower through the fact of divorce, she might have
the right to claim it taken away as a punishment for her crime, if
she "eloped and abode" with her paramour.[275]

  [Footnote 271: _Cf._ JEAFFRESON, _op. cit._, II, 339, 340.]

  [Footnote 272: POLLOCK AND MAITLAND, _Hist. of Eng. Law_, II,
  392: _Co. Lit._ , 32_a_, 33_b_, 235_a_.]

  [Footnote 273: _Year Book_, 10 Edw. III., fol. 35 (Trin. pl. 24):
  POLLOCK AND MAITLAND, _op. cit._, II, 392.]

  [Footnote 274: GLANVILLE, _Tractatus_, VI, 17; BRACTON, _De
  legibus_, fol. 92, 304. BRITTON, II, 264, seems to say, though
  his statement is somewhat confusing, that in case of divorce
  _a mensa et thoro_ "if verified or not denied, the wife shall
  not recover any dower." Were not that interpretation of the
  law in the highest degree improbable, Britton's context might
  appear to show that such a divorce worked a complete dissolution
  of marriage. "In the recorded cases it is often difficult to
  see whether the divorce that is pleaded is a dissolution of
  marriage; e. g., Note Book, pl. 690. It is believed however
  that _divortium_, standing by itself, generally points to a
  divorce [nullification] _a vinculo_, e. g., in Lit. sec.
  380."--POLLOCK AND MAITLAND, _op. cit._, II, 392 n. 5. BISHOP,
  _Marriage, Divorce, and Separation_, I, §§ 1497, 1498 n. 3,
  appears to think that the "effect of a divorce for adultery ...
  was to dissolve the marriage" bond, because the guilty woman may
  "not be heard upon a claim of dower" (BEAMES, _Glanville_, 133).
  But this view is surely wrong, as the researches of POLLOCK AND
  MAITLAND have finally established: _op. cit._, II, 372-95. Their
  results are thus summarized (373): "If however we can not argue
  that a woman was not married because she can not claim dower,
  still less can we argue that a union is a marriage because the
  issue of it will--or is not a marriage because the issue of it
  will not--be capable of inheriting English land."]

  [Footnote 275: As by the statute of Westminster, II, c. 34, under
  Ed. I.: POLLOCK AND MAITLAND, _op. cit._, II, 392, 393.]

Especially disastrous in its effects was the absurd distinction,
maintained after as well as before the Reformation, between _void_
and _voidable_ marriages.[276] This had its origin in the canonical
doctrine of "putative" wedlock.[277] A union unlawful on account of
some diriment impediment, such as affinity or consanguinity, was
held not to be _ipso facto_ void, but only voidable, if it had been
solemnized with the proper rites of the church; and the temporal
courts assumed the validity of all such marriages until they were
declared null by an ecclesiastical decree. The happiness of an
innocent family was thus put in jeopardy. At any moment a fatal flaw
in the union might be discovered or for money invented, when _pro
salute animarum_ a separation of the parties would be enforced. In
that case the canonists declared that the issue should not suffer.
If one or both of the parents were ignorant of the impediment at the
time the children were born, these were held to be legitimate. This
rule was adopted by the secular courts in determining questions of
inheritance. "As late as 1337 English lawyers still maintained that
the issue of a _de facto_ marriage, which was invalid because of
the consanguinity of the parties, were not bastards if born before
divorce.[278] Later, however, they developed a different doctrine
which was enforced after the Reformation. Taking "no heed of good
or bad faith," the temporal law even in Protestant times made the
"legitimacy of the children depend on the fact that their parents
while living were never divorced."[279] The persons separated for
spurious wedlock were permitted to contract new marriages; but in
that event they were exposed to one of the innumerable hardships
caused by the fine-spun theories of the canonists. The "validity
of the first marriage was always an open question, and new
evidence might at any time reverse the decree. In this case the
second marriage would be a nullity and the first would recover its
obligatory force, so that now two separations, it might be, would
be demanded by canonical law."[280] But from the reign of James I.,
through intercession of the temporal courts, the action for voidance
of false wedlock had to be brought during the joint lives of the
consorts.[281] After the death of either spouse the spiritual judge
was prevented from issuing a decree. For all practical purposes the
spurious marriage then became a valid marriage, and the unlawful
issue became legitimate;[282] though, absurdly enough, the surviving
consort might be punished for the sin of wedding within the
forbidden degrees.[283]

  [Footnote 276: The term "voidable" as applied to marriage is
  still used in various senses besides the special meaning referred
  to in the text. For a full discussion see BISHOP, _Marriage,
  Divorce, and Separation_, I, chap. xiii, §§ 252-92.]

  [Footnote 277: See the excellent discussion of the relation of
  the spiritual and temporal law in cases of "putative" wedlock by
  POLLOCK AND MAITLAND, _op. cit._, II, 373 ff.]

  [Footnote 278: _Ibid._, 375; _ap. Year Book_, 11-12 Ed. III.,
  xx-xxii; for the early period see GLANVILLE, _Tractatus_, VI, 17;
  BRACTON, _De legibus_, fol. 63. _Cf._ also WOOLSEY, _Divorce_
  124.]

  [Footnote 279: POLLOCK AND MAITLAND, _op. cit._, II, 375 n. 3.
  _Cf._ BLACKSTONE, _Commentaries_, I, 440; _Co. Lit._, 233, 235;
  also GLASSON, _Hist. du droit_, IV, 152; BURN, _Ecc. Law_, II,
  501_b_-501_c_.]

  [Footnote 280: WOOLSEY, _op. cit._, 124.]

  [Footnote 281: See _First Report of Commissioners_ (affinity),
  1847-48, v; also HAMMICK, _Marriage Law_, 32. Originally the
  decree might be rendered after the death of one or both of
  the persons, without, of course, affecting the status of the
  children.]

  [Footnote 282: See Pride _v._ The Earls of Bath and Montague
  (1695): in 1 SALKELD'S _Reports_, 120, declaring that the
  reason why the spiritual court cannot give sentence to annul a
  marriage after the death of the parties is "because sentence is
  given only _pro salute animae_, and then it is too late." _Cf._
  GEARY, _Marriage and Family Relations_, 10, 11; BLACKSTONE,
  _Commentaries_, I, 444; JEAFFRESON, _Brides and Bridals_, II,
  262-64.]

  [Footnote 283: Harris _v._ Hicks (1694): in 2 SALKELD'S
  _Reports_, 548, where such consort may be proceeded against for
  incest. "Our forefathers, with exquisite inconsistency, were of
  opinion that the survivor might (for his or her soul's good) be
  proceeded against and punished in a spiritual court, for having
  committed sin in respect of the marriage which might not be
  adjudged a sinful nullity."--JEAFFRESON, _op. cit._, II, 264.
  _Cf._ GEARY, _op. cit._, 10, 11, 32.]

Such remained the state of the law until the appearance of Lord
Lyndhurst's act in 1835.[284] This statute declares, because "it
is unreasonable that the state and condition of the children
of marriages between persons within the prohibited degrees of
affinity should remain unsettled during so long a period" as the
joint lives of the parents, therefore "all marriages which may
hereafter be celebrated between persons within the prohibited
degrees of consanguinity or affinity" ought to "be _ipso facto_
void, and not merely voidable;" and accordingly it is so enacted.
With respect to existing unions of this kind a distinction is
made between "affinity" and "consanguinity." Marriages within the
forbidden degrees of affinity already celebrated may not "hereafter
be annulled for that cause by any sentence of the ecclesiastical
court," unless pronounced in a pending suit; while existing
marriages within the prohibited degrees of consanguinity are not so
exempt.[285] Voidable wedlock in the sense here employed[286] thus
disappears from the English law, except in those minor cases where
"canonical" impediments are still recognized.[287]

  [Footnote 284: 5 and 6 W. IV., c. 54; also in HAMMICK, _Marriage
  Law_, 281. Compare HANSARD'S _Parl. Debates_, 3d series, XXXVIII,
  203-7; XXX, 661, 662. In general, see GEARY, _op. cit._, 10, 11,
  32; BURN, _Ecc. Law_, II, 501_c_-501_e_; HAMMICK, _op. cit._,
  32, 33, 23; ERNST, _Marriage and Divorce_, 183, 184; LUCKOCK,
  _Hist. of Marriage_, 300-307; JEAFFRESON, _op. cit._, II, 264-66;
  BISHOP, _Marriage, Divorce, and Separation_, I, §§ 288, 289, 753;
  _Tracts Issued by the Mar. Law Defence Union_, II, 91-104.

  The act extends to Ireland. "By the law of Scotland the
  distinction between void and voidable marriages was never
  recognized, all marriages within the prohibited degrees being
  void _ab initio_."--HAMMICK, _op. cit._, 33 n. _a._]

  [Footnote 285: This liberal exception, mainly in favor of
  existing unions with a deceased wife's sister, is of course
  denounced by writers such as LUCKOCK, _op. cit._, 305, as a
  "mischievous concession and compromise principle."]

  [Footnote 286: For the special senses in which the term is used
  see the discussion of BISHOP, _op. cit._, I, §§ 252-92, already
  cited.]

  [Footnote 287: The only surviving canonical impediment for which
  a marriage may be voidable, but not void, is impotence. The same
  principle is also applied to marriages secured by force: GEARY,
  _op. cit._, 34, 203 ff., 212; HAMMICK, _Marriage Law_, 48, 49.]

Lord Lyndhurst's act was especially designed to put an end to
marriage with a deceased wife's sister.[288] Such unions, clearly
unlawful, appear to have become very common since the age of the
Stuarts.[289] For where no property or other interests were at
stake a man's marriage with his sister-in-law was likely to go
unchallenged until the death of husband or wife made it perfectly
valid. Doubtless in such cases, through delay in "collusive suits,"
greedy relatives may sometimes have been prevented from securing
estates which by natural justice, if not by law, belonged to
the children or other heirs; for "no fresh proceedings could be
initiated so long as any suit of a similar kind was pending."[290]
But the avowed purpose of the act is its best justification, if
the times were not ripe for a more liberal remedy. If this class
of marriages could not be legalized in harmony with the practice
of most other civilized peoples, it was perhaps well in this way
to make an attempt to relieve their innocent offspring from the
uncertainty which "hung over them sometimes for years like a sword
of Damocles."[291] The attempt, however, did not prove successful.
"In 1847 a Royal Commission was appointed to inquire into the state
and operation of the law of marriage as relating to the prohibited
degrees of affinity. In their report the commissioners state
that of marriages within the prohibited degrees by far the most
frequent class was that of marriage of a widower with a sister of
his deceased wife, so that in fact it formed the most important
consideration in the whole subject; and that as these so-called
marriages will take place, especially among the middle and poorer
classes, when a concurrence of circumstances gives rise to mutual
attachment, the commissioners were of opinion" that Lord Lyndhurst's
act "had failed to attain its object." They furthermore declare,
even at this early date, that such unions are permitted, "by
dispensation or otherwise, in nearly all the continental states of
Europe," as well as in most of the states of the American Union.[292]

  [Footnote 288: Marriage with a deceased wife's sister or a
  husband's brother is included in the table of forbidden degrees
  approved by Archbishop Parker in 1563. It purports to be based on
  the Levitical code; and it was accepted as the law of the English
  church by the ninety-ninth canon of 1603: HAMMICK, _op. cit._, 32
  ff., 350; _Tracts Issued by the Mar. Law Defence Union_, I, 51
  ff.]

  [Footnote 289: JEAFFRESON, _op. cit._, II, 258-66. These
  marriages were called "Altona marriages" (from Altona in Denmark,
  where they were sometimes solemnized), and are the counterpart
  of the "Gretna marriages," except that the latter were valid and
  the former were not: _ibid._, II, 259, 260. The case of Brook
  _v._ Brook (House of Lords, March, 1861) grew out of a marriage
  celebrated near Altona, June, 1850: _Tracts Issued by the Mar.
  Law Defence Union_, II, 313 ff.]

  [Footnote 290: LUCKOCK, _op. cit._, 303, 304, who holds that
  sometimes by such collusion the "ends of justice were defeated,
  and persons defrauded of their rights." _Cf._ the remarks to this
  effect of Lord Selborne in the House of Lords, 1873, in _Tracts
  Issued by the Mar. Law Defence Union_, II, 168.]

  [Footnote 291: LUCKOCK, _op. cit._, 304.]

  [Footnote 292: _First Report of the Commission of 1847-8_, v, vi,
  xii; HAMMICK, _Marriage Law_, 33 n. _b_; GEARY, _Marriage and
  Family Relations_, 11, 30 n. 3. See HUTH, _Marriage of Near Kin_,
  129 n. 1.

  According to the _Report_ (viii), since the Lyndhurst act (1835)
  there had been 1,364 marriages within the prohibited degrees,
  of which nine-tenths were with a deceased wife's sister. Only
  in 88 cases had the act prevented an intended marriage; and of
  these 32 resulted in open cohabitation. Ten of the 88 cases were
  among the lower classes. See the epitome of evidence, xvii-xxxix;
  the minutes of evidence, 1-120; and the interesting letters and
  papers in the Appendix, 121-65.]

No legislation followed the commissioners' report. Nor, despite
repeated efforts, has the perennial "deceased wife's sister's bill"
ever yet become a law. It is, indeed, curious to see a noble senate
capable of accepting the liberal civil marriage law of 1836 still
stubbornly resisting in this particular the secularizing of marriage
which a recent writer observes "is an evident accompaniment, if it
is not a consequence, of the progress of democracy."[293] There
"can be little doubt," adds the same author, "that the opposition
to these marriages rests mainly upon theological grounds."[294] Yet
even on such grounds it is hard to see why the Protestant theologian
or lawgiver should retain them in the table of degrees of affinity
prohibited by the code of Moses, while other provisions of that
law far more clearly enjoined are rejected or ignored. "The Jews
themselves maintain that this kind of marriage is not forbidden in
the Old Testament, and great numbers of the most eminent Christian
divines concur in their opinion."[295] The Catholic is far more
consistent and liberal in this respect; for he "regards the
prohibition as resting, not on direct Divine or natural law, but
merely on an ecclesiastical command, and his Church therefore claims
and constantly exercises the right of dispensing with it."[296]
The arguments on either side of the controversy need not here be
summarized. Those in favor of the prohibition rest almost wholly
upon authority. Only secondarily is an attempt made to defend it
on social, political, or moral grounds. For most people of the
civilized world[297] the subject is already "ancient history." Hence
the modern student who first takes this controversial literature in
hand is amazed to find men of high repute still earnestly speaking
the language of the Middle Ages; still juggling with the casuistry
and quibbles which satisfied Tancred and his predecessors.[298]

  [Footnote 293: LECKY, _Democracy and Liberty_, II, 214. There
  is already an immense literature relating to the question of
  marriage with a deceased wife's sister. The most complete
  bibliography of the subject is comprised in Mr. HUTH'S
  "Bibliography of Works on the Impediments to Marriage" appended
  to his _Marriage of Near Kin_, 393-449; also in part previously
  published by the _Index Society_, IV, 1st App. to 1st Report.
  In the _Church Quarterly Review_, XV, 426, may be found a table
  showing the results of the various attempts to pass the deceased
  wife's sister's bill during the period 1842-82.

  The absurdities and anomalies of the system are described in
  his trenchant manner by LECKY, _op. cit._, II, 214-23. With his
  account should be read the able discussion by HUTH, _op. cit._,
  124-26. The peculiar arguments of the opponents of a change in
  the law, mainly resting upon the alleged authority of the Old
  Testament, are best seen in the two volumes of _Tracts Issued by
  the Mar. Law Defence Union_ (London, 1889); while the antidote
  may be found in T. PAYNTER ALLEN'S _Opinions of the Hebrew and
  Greek Professors of the European Universities_ (London, 1882),
  prepared for the Marriage Law Reform Association. The speeches
  in the two houses of Parliament in 1849, 1851, 1855, 1873,
  1883, 1895, and whenever a bill on the subject has been under
  consideration, may of course be found in HANSARD'S _Parliamentary
  Debates_; and the _Report of the Royal Commission_ of 1848
  (London, 1848) is especially important. A strong partisan in
  favor of the existing law is LUCKOCK, _Hist. of Marriage_, Part
  II, 213 ff., particularly 250 ff., 292 ff., 300 ff. For his and
  similar arguments from the standpoint of Hebrew law a partial
  remedy, on the homeopathic plan, is afforded by the curious
  essay of REV. GEORGE ZABRISKIE GRAY, _Husband and Wife_ (2d
  ed., Boston, 1886). Starting with the scriptural premise that
  man and wife are "one flesh," not "by his becoming part of her
  flesh, nor by both forming a new flesh, but by her entering into
  his flesh," the author, arguing with an ingenuity which would
  have done credit to Peter Lombard in his palmiest days, reaches
  the triumphant conclusion that a widower may properly marry his
  sister-in-law. In the same way he shows that by divine intent a
  woman may not divorce her husband under any circumstances, for "a
  member can not put away the head" (90); though she may "leave"
  him--secure a separation _a mensa et thoro_--if he is "cruel or
  unclean" (100).

  On the general controversy see especially _Colloquii über die
  Frage: Ob Gott verboten oder zugelassen habe dass einer seines
  verstorbenen Weibes Schwester heyraten möge_ (Oettingen [1681]),
  12 ff.; and KETTNER (L.F.E.), _Judicia und Responsa von der Ehe
  mit des Weibes Schwester_ (Quedlinburg [_ca._ 1710]), 1 ff.,
  neither of which appears in HUTH'S list; also ZEIDLER, _De mat.
  cum defunctae uxoris sorore_, published with his _De polygamia_
  (Helmstadt, 1698); and MICHAELIS _Abhandlung von den Ehegesetzen
  Mosis_ (Göttingen, 1768). Among the vast number of tracts and
  books on the subject for England a few of the more important are
  KEBLE, _Against Profane Dealing with Holy Matrimony_ (Oxford,
  1849); FOSTER, _Review of the Law_ (London, 1847); PUSEY, _Letter
  on the proposed Change in the Laws prohib. Mar. between Near Kin_
  (Oxford, 1842); _idem_, _Evidence given before the Commission_
  (Oxford, 1849); _idem_, _God's Prohibition_ (Oxford and London,
  1860); BINNEY, _The Men of Glasgow and the Women of Scotland_
  (London, [1850]); GIBSON, _Mar. Aff. Question_ (Edinburgh, 1854);
  DUKE, _The Question of Incest_ (2d ed., London, 1883). This
  question, with others, is also dealt with by FRY, _The Case of
  Mar. between Near Kindred_ (London, 1756, 1773); ALLEYNE, _The
  Legal Degrees of Mar._ (London, 1774, 1775); MACRAE, _Script.
  Law of Mar._ (2d ed., Edinburgh, 1862); MEYER, _Uxor christiana_
  (Amsterdam, 1688), 2d dissertation; and KETTNER (J. J.), _Zwei
  Abhandlungen_ (Leipzig, 1780), 67 ff. For discussion of related
  questions of kinship compare BUTLER, _Marriage of Cousin Germans_
  (Oxford, 1619); the same in Latin under the leading title
  _Suggeneia_ in FLORENS, _De nuptiis consobrinarum_ (Frankfort,
  1643); DUGARD, _Marriage of Cousin Germans_ (Oxford, 1673);
  JOHNSTOUN, _Juridical Dissertation_ (London, 1734); PATON, _Mar.
  with a Dec. Brother's Wife_ (London, 1869), and in general read
  _Observations on the Mar. Laws_, 126 ff.; LAWRENCE, in _Revue de
  droit int._, II, 65 ff.; JEAFFRESON, _Brides and Bridals_, II,
  258 ff.; HAMMICK, _Marriage Law_, 23, 30-40; GEARY, _Mar. and
  Fam. Rel._, II, 30-32; WHARTON, _Exposition of the Laws_, 200,
  note; BISHOP, _Mar., Div. and Sep._, I, §§736 ff., 747, 750, 752,
  753, 875 ff.; _Law Mag._, XXI, 371-82 (May, 1839); _Quarterly
  Review_, LXXXV, 156-82 (July, 1849); _Ecc. Review_, new series,
  II, 735-48.]

  [Footnote 294: LECKY, _Democracy and Liberty_, II, 214, who
  cites "the very candid confession of the Bishop of Winchester":
  HANSARD'S _Debates_, 3d series, CCLXXX, 1671.]

  [Footnote 295: LECKY, _op. cit._, II, 215, citing T. PAYNTER
  ALLEN'S pamphlet already mentioned. There is a weak criticism of
  this work in the _Tracts Issued by the Mar. Law Defence Union_,
  I, 177-96. On its high authority see HUTH, _Mar. of Near Kin_,
  129.

  "It is certain that the Old Testament does not directly condemn
  such marriages, and it is very doubtful whether it condemns them
  even by inference. It is not at all doubtful that it sanctions,
  and sometimes eminently blesses, polygamy; that it strictly
  enjoins that, in every case of adultery, both parties should
  be put to death; that it makes it a capital offence for a man
  to have intercourse with a woman who, though unmarried, was
  betrothed to another; that it commands that a man who had defiled
  an unbetrothed virgin should be compelled to marry her; that
  it forbids marriage with aliens in religion; that it not only
  permits, but enjoins a man to marry the widow of his deceased
  brother if she had no children, or only daughters, which could
  scarcely be the case if such marriages of affinity were in their
  own nature incestuous. It is not easy to understand the process
  of mind which, among all these provisions of the Jewish code,
  selects a very doubtful inference condemnatory of marriage with
  the deceased wife's sister as alone binding on the conscience of
  the Imperial Parliament."--LECKY, _op. cit._, II, 216, 217.]

  [Footnote 296: LECKY, _op. cit._, II, 215; _cf._ ALLEN,
  _Opinions_, 36.]

  [Footnote 297: Russia appears to be the only important European
  exception: HUTH, _op. cit._, 130, 131.]

  [Footnote 298: For abundant proofs of what Mr. Lecky would call
  the "insularity" of the English mind in this regard, see the
  mass of matter--letters, speeches, and declarations of prelates,
  noblemen, and private persons--contained in that marvelous
  monument of mediævalism, the two volumes of _Tracts Issued by
  the Mar. Law Defence Union_. Mr. Gladstone's speeches are a
  conspicuous example: _ibid._, II, 174 ff.]

The nature of the problem and the way it is conceived by the English
theological mind are thus strongly stated by Lecky in the fine
paragraph with which he closes his interesting discussion of these
marriages: "It would be difficult to overstate the extravagance of
the language which has been sometimes employed in England by their
opponents. One gentleman, who had been Lord Chancellor of England,
more than once declared that if marriage with a deceased wife's
sister ever became legal 'the decadence of England was inevitable,'
and that, for his part, he would rather see 300,000 Frenchmen landed
on the English coasts.[299] Pictures have been drawn of the moral
anarchy such marriages must produce, which are read by American,
colonial, and continental observers with a bewilderment that is not
unmixed with disgust, and are, indeed, a curious illustration of
the extreme insularity of the English mind. The truth seems to be
that there are cases in which the presence of a young and attractive
sister-in-law in a widower's house would, under any system of
law, produce scandal. There are others where, in all countries, a
sister-in-law's care and presence would seem natural. There are
cases where every murmur is silenced by the simple consideration
that the two parties are at perfect liberty to marry if they please.
Experience--the one sure guide in politics--conclusively shows how
quickly the best public opinion of a country accommodates itself
to these marriages; how easy, natural, and beneficent they prove;
how little disturbance of any kind they introduce into domestic
relations. They will long be opposed on the ground of ecclesiastical
traditions, and apart from all considerations of consequences, by a
section of theologians in England, in America, and in the Colonies.
Those who consider them wrong should abstain from contracting
them, and a wise legislature will deal gently with the scruples of
objecting clergymen, as it has done in the case of the marriage of
divorced persons. But the law of the land should rest on other than
ecclesiastical grounds, and a prohibition that has no foundation in
nature or in reason is both unjust and oppressive. It is not for the
true interests of morals or of family life that the law should brand
as immoral, unions which those who contract them feel and know to be
perfectly innocent, and which are fully sanctioned by the general
voice of the civilised world, by an overwhelming majority of the
English race, by a great and steadily increasing weight of public
opinion at home, and by repeated majorities in the House of Commons.
In an age when most wise and patriotic men desire that the influence
and character of the Upper House should be upheld and strengthened,
few things can be more deplorable than that this House should have
suffered itself to be made the representative of a swiftly vanishing
superstition, the chief instrument in perpetuating a paltry and an
ignoble persecution."[300]

  [Footnote 299: HANSARD, 3d series, CCLXXX, 1675. This was Lord
  Hatherley: see _Tracts Issued by Mar. Law Defence Union_, II,
  161, 162, where he repeats the statement. Compare the views of
  the bishop of Exeter, in the same _Tracts_, I, 19, who predicts
  an orgy of incest if the law be changed: "At the present, no
  doubt, there is a strong natural instinct against the marriage
  of a man with his own mother. It is awful to think of. The
  marriage of a man with his own blood sister is fearful. But this
  instinctive protection of our domestic purity, how far does it
  go if we begin to pare the edges off." The Metropolitan (1880)
  indulges in like forebodings: _ibid._, I, 97, 98.]

  [Footnote 300: LECKY, _Democracy and Liberty_, II, 221-23.]

_c_) _Parliamentary divorce._--More than twenty years were yet to
pass before the appearance of the first English statute providing
for divorce through regular civil process. Proximately the act of
1857 owes its origin to the anomaly of parliamentary divorce, whose
glaring inconsistency but served to accent the evils fostered by
the canons of 1603. In theory marriage continued to be absolutely
indissoluble. Only by giving bond not to marry again could a person
secure even a judicial separation. No matter how grave the offense,
or how notorious the breach of the nuptial vow, the parties in
most legal respects were chained for life. At most they might be
suffered to dwell apart. Obviously the proper remedy would have
been a general law of civil divorce whose benefits should be placed
within the easy reach of rich and poor alike. Instead, a resort
was had to special acts of Parliament whose advantages could be
enjoyed only by a fortunate class.[301] The practice originated
in the last years of the seventeenth century, though it may have
been suggested by prior instances of legislative intervention in
matrimonial questions. As early as 1436 a marriage obtained by force
was declared void.[302] More clearly analogous is the opposite case
of Lord Northampton, already mentioned, whose second marriage after
decree of separation was pronounced valid in 1552. This, however,
is not an instance of parliamentary divorce.[303] Nor, strictly
speaking, is that of Lord Roos in 1670, which Macqueen regards as
the first "genuine example;" for the bill is entitled merely "an act
for John Manners, called Lord Roos, to marry again;" and does not as
alleged expressly effect a "rescission of the contract."[304] The
earliest clear precedents are the case of the Earl of Macclesfield
in 1698 and that of the Duke of Norfolk, two years later, in each
of which the act provides for a dissolution of marriage.[305]
Ultimately (1798) a standing order of the House of Lords requires
that "all bills of divorce shall be preceded by a sentence of
separation _a mensa_, issuing out of the ecclesiastical court;"[306]
and usually such bills must be preceded also by the action at law
against the guilty paramour for damage.[307] Thus a vast power was
placed in the hands of the spiritual courts to hinder an aggrieved
husband or wife from resorting to Parliament for redress. This fact
is illustrated in the history of the cases already cited. Lord
Roos had previously secured a decree of separation, no mention
being made of an action for damage. In Lord Macclesfield's case the
bill for divorce was sustained neither by a judgment at law nor
by an ecclesiastical sentence. For "in consequence of the skilful
opposition set up by the countess in the spiritual courts, and the
narrow antiquated maxims which there prevailed, she contrived to
baffle all her husband's efforts to obtain a sentence of divorce _à
mensâ et thoro_. The circumstances of the case, however, were so
scandalous and flagrant, that it would have been an outrage upon
every principle of justice to withhold relief." In like manner for
seven years the Duke of Norfolk tried in vain to obtain a decree of
separation, although he "recovered damage at law from the adulterer,
Sir John Jermayne."[308] But in no other case save these two has
there been a successful resort to Parliament without first obtaining
the sentence of an ecclesiastical judge;[309] and the clumsy, almost
farcical, nature of the procedure in divorce suits may be more
fully appreciated when it is borne in mind that an aggrieved spouse
desirous of securing a divorce from a guilty partner through an
act of Parliament was compelled, before he could "get through the
ecclesiastical courts, to pledge himself not to remarry."[310]

  [Footnote 301: The only special work on parliamentary divorce
  is that contained in MACQUEEN'S _Practical Treatise_, 463-68,
  comprising a clear historical "Introduction;" the "Action at
  Law;" the "Petition and Bill;" the "General Preparation of the
  Case;" the "Second Reading and Subsequent Proceedings;" and an
  interesting "Selection of Leading Cases." See also _Law Review_,
  I, 362 ff.; LECKY, _Democracy and Liberty_, II, 200-202; GEARY,
  _Marriage and Family Relations_, 17, 18; HAMMICK, _Marriage Law_,
  18; SHELFORD, _Law of Marriage and Divorce_, 373-79; BISHOP,
  _Marriage, Divorce, and Separation_, I, §§ 1422 ff.; WOOLSEY,
  _Divorce_, 172-74; JEAFFRESON, _Brides and Bridals_, II, 340-44;
  LUCKOCK, _Hist. of Marriage_, 178-81; WHARTON, _Exposition of
  Laws Relating to Women_, 471-84; GLASSON, _Le marriage civil et
  le divorce_, 318, 319; BURN, _Ecc. Law_, II, 503_b_, 503_c_;
  HIRSCHFELD, "The Law of Divorce in England and in Germany," _Law
  Quarterly Review_, XIII, 398, 399; MONTMORENCY, "The Changing
  Status of a Married Woman," _ibid._, 191; _Plea for an Alt. in
  the Divorce Laws_, 5 ff.; SCRIBNER, _Treatise on the Law of
  Dower_, II, 542 ff.; and especially the full account by MORGAN,
  _Marriage, Adultery, and Divorce_, II, 237-313.]

  [Footnote 302: GEARY, _Marriage and Family Relations_, 17: _Rot.
  Parl._, 15 H. VI, Nos. 14, 15.]

  [Footnote 303: MACQUEEN, _Practical Treatise_, 469. _Cf._ n. 4,
  p. 80, above.]

  [Footnote 304: The act, being private, was never printed in the
  collections of statutes; but a writer in the _Law Review_, I,
  363 n. 1, publishes it from the "House copy in the parliament
  office." _Cf._ MACQUEEN, _op. cit._, 471-73, 551-61, who
  discusses the case, giving Bishop Cozen's argument, but he does
  not appear to have had a copy of the statute before him. See
  EVELYN, _Diary_ (London, 1878), II, 49 n. 3, who declares that
  the Roos divorce bill was carried under influence of corrupt
  political motives; and he is followed by KEBLE, _Sequel to
  the Argument_, 212 ff.; and MORGAN, _Marriage, Adultery, and
  Divorce_, II, 237 ff. For a number of instructive details
  relating to this case, extending over the years 1662-70, taken
  from the manuscripts of the House of Lords, see _Reports of Hist.
  MSS. Com._, VII, 165, 166; VIII, 102_a_, 117_a_, App. I, 141_a_;
  XII, App. V, 8; App. VII, 69. The last entry runs: "1669, March
  14. News letter. Lord Roos presses for liberty to marry again,
  urging precedent of Marquess of Northampton. All the bishops
  oppose except the B. of Durham." It is here noted that the act
  finally passed April 11, 1670; 22 Car. II., 1, Private Acts. The
  case gave rise to _The Case of Divorce and Re-Marriage thereupon_
  (London, 1673), in which a "Reverend Prelate of the Church of
  England" denies, and a "private Gentleman" maintains, the right
  of remarriage on scriptural authority.]

  [Footnote 305: On these two cases see MACQUEEN, _op. cit._, 473,
  562-76; and _Law Review_, I, 364. The proceedings in the Norfolk
  case are contained in Vol. II, 59-324, appended to ARCHBISHOP
  ABBOT'S _The Case of Impotency_; also in HOWELL'S _State Trials_,
  XII, 883-948; and in part in the _Reports of Hist. MSS. Com._,
  XIV, 17-27, 278, where, in addition, arguments of the counsel are
  given. Sir W. Williams, counsel for the duchess, calls this case
  the "first precedent."]

  [Footnote 306: MACQUEEN, _op. cit._, 474, 496; LUCKOCK, _Hist.
  of Marriage_, 179, note; WHARTON, _Exposition of Laws rel. to
  Women_, 471, 472; MORGAN, _Marriage, Adultery, and Divorce_,
  II, 244 ff. The "earliest specimen of a dissolving statute
  passed by the Legislature, _after_ sentence of divorce in the
  ecclesiastical court" is the "Act to dissolve the marriage of
  Ralph Box with Elizabeth Eyre, and to enable him to marry again,"
  1701. This form was followed ever after: _Law Review_, I, 364,
  365.]

  [Footnote 307: Since about 1800: MACQUEEN, _op. cit._, 489. _Cf._
  WHARTON, _op. cit._, 472, 483; GLASSON, _Le marriage civil et
  le divorce_, 318. For examples of these actions for "criminal
  conversation" see _Cases of Divorce_ (London, 1715), 1 ff.
  (Feilding), 41 ff. (Dormer); and _Crim. Con. Actions and Trials_,
  10 ff., containing a good historical introduction.]

  [Footnote 308: _Law Review_, I, 364; MACQUEEN, _op. cit._, 473.]

  [Footnote 309: MACQUEEN, _op. cit._, 550.]

  [Footnote 310: _Plea for an Alt. in the Divorce Laws_, 5,
  referring to the security required by the canons of 1603.]

In consequence of the standing order of the House of Lords,
Parliament was unable to grant relief, except on the one ground
of conjugal infidelity; for the spiritual court declined to
issue a decree of separation for malicious desertion, unless in
connection with acts of cruelty.[311] "On a retrospect of one
hundred and seventy years, since the establishment of the system
of parliamentary divorce _a vinculo_," says Macqueen, writing in
1842, "I find no case in which that remedy has been awarded or
sought, without a charge of adultery. There is no example of a bill
of divorce for malicious desertion," although from the Reformation
onward this has been a clearly recognized ground for dissolution of
wedlock in other Protestant lands.[312] Furthermore, with respect
to the rights of the wife Parliament was more illiberal than the
spiritual courts themselves, refusing, even after the ecclesiastical
sentence of separation, to free her from a dissolute husband, unless
his offense were attended by "aggravating" conduct, such as cruelty.
In no case was the woman granted relief merely for the husband's
unfaithfulness, however flagrant and shameless his conduct might be.
Indeed, for the entire period during which the practice existed,
there were but three or four examples of legislative divorce at
the instance of a woman, and in each case the man's infidelity was
attended by other offenses.[313] In two other cases the bill of
the wife was rejected by the Lords, although the grievous wrong
which she had suffered was established by the clearest proof.[314]
Parliament appears to have accepted the view of Dr. Johnson that
there is a "boundless" difference between the infidelity of the
man and that of the woman. In the husband's case, according to
that philosopher, there is no danger of a "confusion of progeny;"
and this, he says, "constitutes the essence of the crime."[315]
Therefore, "wise married women don't trouble themselves" about such
mere peccadilloes.[316]

  [Footnote 311: HAGGARD, _Consistory Reports_, 120; MACQUEEN, _op.
  cit._, 474.]

  [Footnote 312: MACQUEEN, _op. cit._, 473, 474.]

  [Footnote 313: The first three cases are those of Mrs. Addison,
  1801; Mrs. Turton, 1831; and Mrs. Battersby, 1840: MACQUEEN, _op.
  cit._, 474-80, 594-98, 657, 658; also _Law Review_, I, 371; and
  LECKY, _Democracy and Liberty_, II, 200, 201. There appears to
  have been a fourth case: GEARY, _Marriage and Family Relations_,
  18; and in several instances Parliament interfered by bill to
  nullify marriage or to grant separation _a mensa_: MACQUEEN, _op.
  cit._, 475, note.]

  [Footnote 314: The cases of Tewsh, 1805; and Mrs. Moffat,
  1832: MACQUEEN, _op. cit._, 480, 482, 602-4, 658-60. These are
  discussed in _Law Review_, I, 371-74. Lord Chancellor Brougham
  opposed Mrs. Moffat's bill; but later he took the opposite and
  more liberal view: BROUGHAM, _Speeches_, III, 446.]

  [Footnote 315: "He said, confusion of progeny constitutes the
  essence of the crime; and therefore a woman who breaks her
  marriage vow is much more criminal than a man who does it. A man,
  to be sure, is criminal in the sight of God, but he does not
  do his wife any material injury if he does not insult her; if,
  for instance, he _steals privately_ to her chambermaid. Sir, a
  wife ought not greatly to resent this. I would not receive home
  a daughter who had run away from her husband on that account.
  A wife should study to retain her husband by more attention to
  please him."--BOSWELL, _Life of Johnson_, III, 46 (ed. 1835).
  Some recent writers, who ought to know better, indulge in similar
  sophistry; _cf._ NISBET, _Marriage and Heredity_, 18 ff.; AP
  RICHARD, _Marriage and Divorce_, 25, 34, 35.]

  [Footnote 316: BOSWELL, _Life of Johnson_, VII, 288. For
  discussion of Dr. Johnson's philosophy see JEAFFRESON, _Brides
  and Bridals_, I, 338, 339; II, 278-88; MACQUEEN, _op. cit._, 482,
  483; _Law Review_, I, 369, 370.]

The sphere of parliamentary divorce was greatly narrowed in still
other ways. As a matter of fact, for the century and a half during
which the practice prevailed perhaps not more than two hundred such
separations were granted.[317] In the first place, the rules of
evidence observed in the spiritual courts tended to thwart justice
even in cases of the most cruel and scandalous wrongs. Two witnesses
were invariably required; whereas in the lay tribunals one witness
is accepted as sufficient when no more can be had.[318] On such
testimony, for instance, damage may be awarded in the suit at law
for adultery, when the same evidence is rejected as insufficient in
the ecclesiastical action for separation. Yet it is precisely in
cases of adultery that a "_penuria testium_ is most likely to occur.
To require two witnesses of facts almost necessarily secret is, in
most cases, to ensure a denyal of justice. Of this constant examples
are to be found in the records of the ecclesiastical courts."[319]

  [Footnote 317: Sixty between 1715 and 1775; 14 between 1775 and
  1780; 110 between 1800 and 1852: GEARY, _Marriage and Family
  Relations_, 18; MORGAN, _Marriage, Adultery, and Divorce_, II,
  239, 240; _Report of Commission_ (divorce), 1852-53.]

  [Footnote 318: "One witness (if credible) is _sufficient_
  evidence to the jury of any single fact, though undoubtedly
  the concurrence of two or more corroborates the proof. Yet our
  law considers that there are many transactions to which only
  one person is privy; and therefore does not _always_ demand
  the testimony of two which the civil [and ecclesiastical] law
  universally requires. '_Unius responsio testis omnino non
  audiatur._' To extricate itself out of such absurdity, the modern
  practice of the civil law courts has plunged itself into another.
  For, as they do not allow a less number than two witnesses to be
  _plena probatio_, they call the testimony of one, though never
  so clear and positive, _semi-plena probatio_ only, on which no
  sentence can be founded. To make up, therefore, the necessary
  complement of witnesses, when they have one only to a single
  fact, they admit the party himself (plaintiff or defendant) to be
  examined in his own behalf; and administer to him what is called
  the _suppletory_ oath; and if his evidence happens to be in his
  own favour, this immediately converts the half proof into a whole
  one."--BLACKSTONE, _Commentaries_, III, 370. _Cf._ also BISHOP,
  _Marriage, Divorce, and Separation_, II, § 456; _Law Review_, I,
  378, 379.]

  [Footnote 319: _Law Review_, I, 379, 380. See the illustrative
  case of Evans _v._ Evans in _Notes of Cases in Ecc. and Mar.
  Courts_, II (1842-43), 470-76. _Cf._ BISHOP, _op. cit._, I, §
  1532; BURN, _Ecc. Law_, II, 503_e_-503_g_.]

Again, the relief granted by Parliament was effectively placed
beyond the reach of all save the plutocracy. The triple cost of
the law action, the ecclesiastical decree, and the legislative
proceedings was enormous. How utterly the luxury of divorce was
placed beyond the wildest dreams of the poor man clearly appears
when one understands that it could be obtained only through the
expenditure of a fortune sometimes amounting to thousands of
pounds.[320] The shameful injustice of the system has never been so
vividly brought out as in the often-quoted words of Justice Maule
in a case tried before him in 1845: "The culprit was a poor man who
had committed bigamy. The defence was that when the prisoner married
his second wife he had in reality no wife, for his former wife had
first robbed, and then deserted him, and was now living with another
man. The judge imposed the lightest penalty in his power, but he
prefaced it with some ironical remarks which made a deep and lasting
impression. Having described the gross provocation under which the
prisoner had acted, he continued: 'But, prisoner, you have committed
a grave offence in taking the law into your own hands and marrying
again. I will now tell you what you should have done. You should
have brought an action into the civil court, and obtained damages,
which the other side would probably have been unable to pay, and you
would have had to pay your own costs--perhaps 100 _l._ or 150 _l._
You should then have gone to the ecclesiastical court and obtained
a divorce _a mensa et thoro_, and then to the House of Lords, where
having proved that these preliminaries had been complied with, you
would have been enabled to marry again. The expenses might amount
to 500 _l._ or 600 _l._ or perhaps 1000 _l._ You say you are a poor
man, and you probably do not possess as many pence. But, prisoner,
you must know that in England there is not one law for the rich and
another for the poor.'"[321]

  [Footnote 320: According to the writer in the _Law Review_, I,
  367, two thousand pounds is not an overcharged estimate. "In
  some cases even the preliminary proceedings in Doctors' Commons
  will cost nearly as much. From the evidence of Mr. Swaby, the
  Registrar of the Admiralty Court, before the Select Committee,
  p. 33, it appears that even in an ordinary litigation, with
  moderate opposition, and where the witnesses are at hand, the
  expense of obtaining a definitive sentence of divorce _à mensâ_
  may reasonably amount to 1700 _l._; and this merely to lay a
  foundation for the proceedings before Parliament, and quite
  independently of the action at law. It is well known that Lord
  Ellenborough's divorce cost 5000 _l._"--_Ibid._, 367 n. 6. At
  the same time the cost of a divorce _a vinculo_ in Scotland was
  only 25 _l._: _ibid_., 367, 368. But in the _Evidence before the
  Select Committee of the House of Lords, 1844_, 39, the expense of
  getting a full divorce is then put at about 800 or 900 pounds.]

  [Footnote 321: LECKY, _Democracy and Liberty_, II, 201, 202; also
  cited by JEAFFRESOn, _Brides and Bridals_, II, 342, 343, note.
  For this case see MORGAN, _Marriage, Adultery, and Divorce_, II,
  234-313.

  On the law before 1857 see POYNTER, _Doctrine and Practice of
  Ecc. Courts in Doctors' Commons_, 68 ff. Against the proposed
  alteration is KEBLE, _Sequel of the Argument against immediately
  repealing the Laws which treat the Nuptial Bond as indissoluble_
  (Oxford, 1857), 196-220; while strongly in favor of a reform are
  the anonymous authors of _Plea for an Alt. in the Divorce Laws_
  (London, 1831), 1 ff.; and _Observations on the Marriage Laws_
  (London, 1815); as well as much earlier SALMON, _Crit. Essay
  Concerning Marriage_ (London, 1724), 109 ff.]

_d_) _The present English law._--It is, indeed, wonderful that
a great nation, priding herself on a love of equity and social
liberty, should thus for five generations tolerate an invidious
indulgence, rather than frankly and courageously to free herself
from the shackles of an ecclesiastical tradition! But even in
England, so far as the state is concerned, the dogma that marriage
is an indissoluble bond has finally run its course. A partial
remedy for the scandals and hardships of the existing system was at
last grudgingly provided in the civil divorce law of 1857. By this
act,[322] which during a whole session of Parliament was stubbornly
resisted, mainly on religious grounds,[323] the entire jurisdiction
in matrimonial questions hitherto belonging to the spiritual courts,
except "so far as relates to the granting of marriage licences,"
is transferred to a new civil "Court for Divorce and Matrimonial
Causes;" and since 1873 this tribunal has given place to the
"Probate, Divorce, and Admiralty Division" of the "High Court of
Justice."[324] It is "a court for England only," its competence not
extending to Ireland, Scotland, or the Channel Isles.[325]

  [Footnote 322: 20 and 21 Vict., c. 85: _Statutes at Large_,
  XCVII, 532-46. In general on the present English law of divorce
  see GLASSON, _Le mariage civil et le divorce_, 317-27; HARRISON,
  _The Laws of Probate and Divorce_, 115 ff.; GEARY, _Marriage and
  Family Relations_, 237-430; BROWNING, _Practice and Procedure_,
  1 ff.; LECKY, _Democracy and Liberty_, II, 202 ff.; THWING, _The
  Family_, 194; ERNST, _Marriage and Divorce_, 55 ff.; WOOLSEY,
  _Divorce_, 174-78; GLASSON, _Hist. du droit_, VI, 177-84;
  NEUBAUER, "Ehescheidung im Auslande," _ZVR._, VII, 297-99;
  _Montmorency_, "The Changing Status of a Married Woman," _Law
  Quart. Rev._, XIII, 189-92; HIRSCHFELD, "The Law of Divorce in
  England and in Germany," _ibid._, XIII, 399-405.]

  [Footnote 323: HANSARD'S _Parl. Debates_, 3d series, CXLIV-VIII.
  "The discussions on the subject were curious as showing how
  powerfully, even to that late period, theological methods of
  thought and reasoning prevailed in the British Legislature. There
  were speeches that would seem more in place in a church council
  than in a lay Parliament."--LECKY, _Democracy and Liberty_, II,
  202.]

  [Footnote 324: 36 and 37 Vict., c. 66, secs. 16, 31.]

  [Footnote 325: See GEARY, _Marriage and Family Relations_, 238
  ff., for the jurisdiction and procedure of these courts. _Cf._
  also HARRISON, _The Laws of Probate and Divorce_, 191 ff.]

By the law of 1857, supplemented in various ways through subsequent
statutes, three forms of separation are recognized. First, on
petition of either consort the court is empowered to grant a
complete dissolution of wedlock; but in this respect the provisions
of the act are conceived in the same narrow spirit that actuated
the policy of legislative divorce. The woman is treated with
precisely the same injustice. For while the husband may secure an
absolute divorce on account of the simple adultery of the wife, the
wife is unable to free herself from an unfaithful husband unless
his infidelity has been coupled with such cruelty as "would have
entitled her to a divorce _a mensa et thoro_;" or "with desertion,
without reasonable cause, for two years and upwards;" or with
certain other aggravating offenses.[326] Friends and enemies of
the bill alike joined in condemning the unequal position in which
man and wife were placed. Gladstone, who tenaciously resisted the
act on theological grounds, declared: "If there is one broad and
palpable principle of Christianity which we ought to regard as
precious it is, that it has placed the seal of God Almighty upon the
equality of man and woman with respect to everything that relates to
these rights."[327] On the other hand, the attorney-general, who
introduced the measure, found it necessary to apologize for this
defect. "If this bill," he says, "were thrown aside and the whole
law of marriage and divorce made the subject of inquiry, I should
be the last man to limit the field of discussion or to refuse to
consider a state of law which inflicts injustice upon the women
most wrongfully and without cause, and which may be considered
opprobrious and wicked;" moreover, he continues, the "present bill
need not be the end-all of legislation upon the subject."[328]

  [Footnote 326: 20 and 21 Vict., c. 85, sec. 27: _Statutes at
  Large_, XCVII, 537. But various "absolute" or "discretionary"
  bars may be pleaded against a decree. On these see GEARY,
  _op. cit._, 267-304; HARRISON, _op. cit._, 130 ff.; WOOLSEY,
  _Divorce_, 175.]

  [Footnote 327: HANSARD, _Parl. Debates_, 3d series, CXLII, 394
  ff. See the suggestive paper of HIRSCHFELD, "The Law of Divorce
  in England and in Germany," _Law Quart. Review_, XIII, 400-403,
  giving illustrative passages from the debates relating to the
  unfair treatment of the wife.]

  [Footnote 328: HANSARD, _op. cit._, 3d series, CXLVII, 1545.]

In judicial practice, however, the terms "cruelty" and "desertion"
have acquired a rather broad meaning.[329] In particular through
the doctrine of "constructive" and "moral" cruelty there is a
"strong tendency to equalize the positions of the two" sexes.[330]
Nevertheless, the woman is still in a relatively unfavorable
position; and the sphere of divorce _a vinculo_ is exceedingly
narrow. There are doubtless many other causes besides infidelity
for which the welfare of society and the happiness of individuals
require that marriage may be dissolved. "It is a scandal to English
legislation," observes Lecky, that divorce "should not be granted
when one of the partners has been condemned for some grave criminal
offence involving a long period of imprisonment or penal servitude,
or for wilful and prolonged desertion, or for cruelty, however
atrocious, if it is not coupled with adultery. In all continental
legislations which admit divorce a catalogue of grave causes is
admitted which justify it."[331]

  [Footnote 329: Thus adultery, if long persisted in, ripens
  into "desertion." For a detailed discussion of "cruelty" and
  "desertion" according to definition and judicial precedent, and
  particularly on "constructive" and "moral" cruelty, see GEARY,
  _op. cit._, 323 ff., 330 ff. _Cf._ BISHOP, _Marriage, Divorce,
  and Separation_, I, §§ 1524 ff., especially 1532; HARRISON, _op.
  cit._, 138 ff.]

  [Footnote 330: "From the meaning of pain inflicted on the
  body it [cruelty] has in recent years attained the extended
  meaning that includes pain inflicted on the mind. Coldness and
  neglect may now almost of themselves constitute such cruelty
  as, coupled with misconduct, will give the right of divorce.
  The time may very reasonably be looked forward to when almost
  every act of misconduct will in itself be considered to convey
  such mental agony to the innocent party as to constitute the
  cruelty requisite under the Act of 1857. The difference already
  is very marked when we compare the 'cruelty' of today with the
  thrashing by the husband that constituted cruelty thirty years
  ago. Probably in those days the doctrine of a husband's right
  to administer physical correction to his wife was not entirely
  discredited. Today it is possible for a woman, with celerity and
  at little cost, to separate herself from her husband if she be
  able to prove that he is either a brute or a monster. Forty years
  ago the vast majority of women were indissolubly tied to their
  husbands though the whole world knew them to be both brutes and
  monsters. It is a great change in a short period."--MONTMORENCY,
  "The Changing Status of a Married Woman," _Law Quart. Review_,
  XIII, 191, 192.]

  [Footnote 331: LECKY, _op. cit._, II, 202, 203.]

While depriving the ancient spiritual tribunals of the monopoly
of matrimonial jurisdiction which they had so long possessed,
Parliament made a proper concession to the scruples of the regular
clergy. By the act a divorced person, whether guilty or innocent,
is permitted to marry again if he likes; but a clergyman of the
"United Church of England and Ireland" is not compelled to solemnize
the marriage. Should he refuse, however, he cannot legally prevent
a brother-minister of the establishment from using his church or
chapel for the celebration; and this last provision has in our own
day become a standing grievance on the part of those who denounce
such a celebration as a "defilement" of the sanctuary.[332]

  [Footnote 332: Read, for instance, the complaint of Right Rev.
  G. F. Browne, bishop of Stepney, in his _Marriage of Divorced
  Persons in Church: Two Sermons Preached in St. Paul's Cathedral
  on Feb. 16 and 23, 1896_. The author seems to pine for the good
  old days before the act of 1857 when "things were different;"
  when, thanks to the singular merits of the old system, the
  "difficulty and cost of a special Act" of Parliament made
  separations _a vinculo_ very few; when that evil statute had not
  yet caused a "horrible familiarity with the idea of divorce"
  (42). Compare LUCKOCK, _Hist. of Marriage_, 197-209, who likewise
  laments the desecration of the church through the celebration
  of the marriage of divorced persons; while he also condemns the
  alleged "connivance on the part of the Church of England" in
  the violation of the doctrine of indissolubility through the
  "issue of licences to divorced persons to remarry from Diocesan
  Registrars, ostensibly with the sanction of our own Bishops." He
  gives extracts from the _Report_ of the lower house of the York
  Convocation (1894), which denounces the two practices mentioned,
  as also the "admission of persons who have entered into such
  unions to Holy Communion." Technically such a license is a
  "dispensation" which the bishop may refuse. It is often refused,
  as in the "Instructions issued to Surrogates in the Diocese of
  Lichfield": HAMMICK'S _Marriage Law_, 362, and n. _a._ On these
  questions see GEARY, _Marriage and Family Relations_, 577-93,
  giving extracts from the proceedings of the Lambeth Conference,
  (1888), and the Convocation of Canterbury at various times, as
  also from the opinions of individual bishops and ministers.]

The act of 1857 directs that, before granting a decree, the court
shall "satisfy itself, so far as it reasonably can, not only as to
the facts alleged," but also whether there has been any collusion
between the petitioner and either of the respondents, or whether
there is any bar or counter-charge against the petitioner.[333]
But no special procedure was created for making the inquiry
suggested, "nor could a stranger without any legal private interest
intervene."[334] The necessary machinery for that purpose was
provided by the Matrimonial Causes Act[335] of 1860, which rests
upon the theory "that the public is interested in seeing that
no marriage is dissolved except on certain grounds."[336] Two
distinct stages in the proceedings for a dissolution of wedlock are
prescribed. If a sentence of divorce be rendered, it must always
in the first instance be a decree _nisi_. Only after an interval
of six months, unless a shorter time be set by the court, can such
a decree be made _absolute_. In the meantime, the queen's proctor,
or any member of the public, whether interested in the suit or not,
may "intervene" to show collusion or the suppression of material
facts;[337] and in case of such intervention the court shall deal
with the cause "by making the decree absolute, or by reversing the
decree _nisi_," or by conducting further examination, as "justice
may require."

  [Footnote 333: 20 and 21 Vict., c. 82, secs. 29-31: _Statutes at
  Large_, XCVII, 538.]

  [Footnote 334: So decided in Y. _v._ Y. (1860): 1 SWABEY AND
  TRISTRAM, _Reports_, 598-600; GEARY, _op. cit._, 249, 261.]

  [Footnote 335: 23 and 24 Vict., c. 144. For the discussion of
  the bill see HANSARD, _Parl. Debates_, 3d series, CLX, 1628-31,
  1734-42. _Cf._ also GLASSON, _Le mariage civil et le divorce_,
  322 ff.; GEARY, _op. cit._, 261 n. 6; HARRISON, _The Laws of
  Probate and Divorce_, 141 ff.]

  [Footnote 336: Lord Hannen, in the celebrated case of Crawford
  _v._ Crawford (1886), 11 P. D., 150-58, where the queen's proctor
  is allowed to intervene to prove a previous decision unjust.
  See also GEARY, _op. cit._, 257 n. 2, 262, where this case is
  summarized.]

  [Footnote 337: 23 and 24 Vict., c. 144, sec. 7. The "intervener
  cannot be the respondent, or any one actually instigated by
  him or her, or his or her nominee; but the mere fact that the
  intervener may be (as he usually is) the friend or relative
  of the respondent is no objection."--GEARY, _op. cit._, 263,
  264: Howarth _v._ Howarth (1884), 9 P. D., 218-31; Forster _v._
  Forster (1863), 3 SWABEY AND TRISTRAM, _Reports_, 158-60. The
  queen's proctor may intervene as one of the public. Only the
  petitioner can apply to have a decree _nisi_ made absolute,
  but in long default of such application the respondent may ask
  to have the petition dismissed. Decrees _nisi_ "only apply
  to petitions for dissolution of marriage and not to judicial
  separations, restitution of conjugal rights, or jactitation;" but
  by 36 Vict., c. 31, they do apply to nullity suits: GEARY, _op.
  cit._, 249, 250 nn. 355, 356.]

Secondly, the present English law allows a decree for "judicial
separation" with the "same force and the same consequences" as the
former sentence of divorce _a mensa et thoro_, which is abolished
by the act of 1857.[338] To such a decree either the husband or
the wife is entitled on the ground of adultery, cruelty, or two
years' desertion;[339] provided no legal bar to the petition such
as condonation, cruelty, or a separation deed, be established. At
the prayer of the petitioner, or when the evidence is insufficient
to warrant a decree of complete divorce, a judicial separation may
be granted in a suit brought for dissolution of marriage.[340]
After such separation the wife is considered as a _feme sole_ with
respect to property, contracts, wrongs, suing and being sued; and
her husband is not liable for her engagements.[341] In place of
the old action at law for "criminal conversation" a prayer for
damage against the wife's paramour may be joined with the petition
for judicial separation or for dissolution of wedlock; or the
aggrieved husband may make separate application for indemnity.[342]
Adultery thus becomes a mere "private injury" and not a crime. The
damage recovered may be "applied by the court for the benefit of
the children of the marriage or for the maintenance of the wife."
When the wife is the guilty person and is entitled to property in
possession or in reversion, the court, at its discretion, may settle
"such property, or any part of it, on the innocent party, or on the
children of the marriage."[343] The rules, principles, and procedure
observed in the old ecclesiastical courts are to be followed by the
civil judge in a suit for judicial separation except as otherwise
provided by statute.[344]

  [Footnote 338: 20 and 21 Vict., c. 85, secs. 7, 16, 23, 25, 26:
  _Statutes at Large_, XCVII, 533, 534, 536, 537. On the law for
  judicial separation see GEARY, _op. cit._, 352-59; HARRISON, _The
  Laws of Probate and Divorce_, 148-53; WOOLSEY, _Divorce_, 175.]

  [Footnote 339: By the Matrimonial Causes Act of 1884, 47 and
  48 Vict., c. 68, sec. 5, failure to respond to a decree for
  restitution of conjugal rights, even for a less time than two
  years, is made equivalent to desertion.]

  [Footnote 340: GEARY, _op. cit._, 353, 354.]

  [Footnote 341: Except when alimony has been decreed and is in
  arrear the husband is liable for necessaries furnished his wife:
  20 and 21 Vict., c. 85, secs. 25, 26: _Statutes at Large_, XCVII,
  537. _Cf._ HARRISON, _op. cit._, 152, 153; GEARY, _op. cit._,
  424.]

  [Footnote 342: 20 and 21 Vict., c. 85, sec. 33: _Statutes at
  Large_, XCVII, 539. _Cf._ Mason _v._ Mason (1883), 8 P. D.,
  21-23, C. A.; also WOOLSEY, _Divorce_, 177; GEARY, _op. cit._,
  354, 255-61; HARRISON, _op. cit._, 182, 183.]

  [Footnote 343: WOOLSEY, _Divorce_, 177; 20 and 21 Vict., c. 85,
  secs. 33, 45: _Statutes at Large_, XCVII, 539, 541.]

  [Footnote 344: 20 and 21 Vict., c. 85, sec. 22: _Statutes at
  Large_, XCVII, 536; _cf._ also HARRISON, _op. cit._, 117.]

In the third place, by the existing law provision is made for what
is commonly called "magisterial separation." The "separation order,"
presently to be considered, is one of several remedial devices
introduced by various statutes in the injured wife's behalf. Thus
the act of 1857 enables a woman deserted by her husband to apply
to a local court of summary jurisdiction, or, if she prefer, to
the high divorce court of the kingdom, for an order to protect her
subsequently acquired earnings or property from being seized by
him or any of his creditors.[345] By this "protection order" the
wife is to be in the same position as to property and contracts,
suing and being sued, as if she had obtained a decree of judicial
separation.[346] In all respects she is treated as a _feme sole_.
For a number of years after it was first introduced the protection
order was a means of real redress; for then, according to the
principles of the barbarous laws of the Middle Ages which still
survived, a married woman without settlements had practically no
property rights at all during her husband's lifetime. Her landed
property at marriage passed into his control; her chattels and
personal effects of every description became absolutely his; and
she had no legal power to dispose even of the wages of her own
toil.[347] The protection order merely gave the wife her own,
preventing the man who had basely abandoned her without making
any provision for her support from appropriating the wages or the
property which she might thereafter gain. More than this it did
not do. "So to a poor wife a protection order was but little,
if any, advantage, and now seems absolutely useless. For it did
not relieve her from cohabitation, it did not compel the husband
to pay her any alimony, and it did not permit her to pledge his
credit for necessaries."[348] Since the Married Women's Property
Acts, therefore, notably those of 1870 and 1882, by which many of
the worst evils of the old system have been remedied,[349] the
protection order has been of little avail. Accordingly, a new
measure of relief was adopted. The act of 1886,[350] in case of
desertion, provides that any two justices in petty sessions or any
stipendiary magistrate may make a "maintenance order" when they "are
satisfied that the husband, being able wholly or in part to maintain
his wife and family has wilfully refused and neglected to do so."
The maintenance order requires the husband to "pay to the wife such
weekly sum, not exceeding two pounds, as the justices or magistrate
may consider to be in accordance with his means and with any means
the wife may have for her support and the support of her family;"
and the payment of the sum so ordered may be enforced by distress
or by imprisonment if necessary.[351] Unlike the protection order,
the order for maintenance is not expressly declared to be equivalent
to a judicial separation; so it is inferred that a husband may "at
any moment terminate the desertion," and require to be taken back by
the wife who will "be in default" for refusal.[352]

  [Footnote 345: Application may be made to a police or petty
  sessional court and to the Court for Divorce and Matrimonial
  Causes or its successor, the Probate and Divorce Division. _Cf._
  20 and 21 Vict., c. 85, sec. 21: _Statutes at Large_, XCVII, 535,
  536; also GEARY, _op. cit._, 360 ff., 425 ff.; HARRISON, _op.
  cit._, 176, 177; GLASSON, _Le mariage civil et le divorce_, 323:
  ERNST, _Marriage and Divorce_, 53.]

  [Footnote 346: 20 and 21 Vict., c. 85, sec. 21: _Statutes at
  Large,_ XCVII, 536.]

  [Footnote 347: For a good summary of the old law as to property
  rights of married women see GLASSON, _Hist. du droit_, II, 284;
  IV, 157-59; V, 103 ff.; VI, 162; GEARY, _op. cit._, 184 ff.;
  and especially SWINDEREN, "Ueber das Güterrecht der Ehefrau in
  England," _ZVR._, V, 275 ff.]

  [Footnote 348: GEARY, _op. cit._, 363, 364.]

  [Footnote 349: On these and other statutes giving the married
  woman control of her property see SWINDEREN, _op. cit._, 278 ff.;
  GLASSON, _op. cit._, VI, 193 ff.; and MONTMORENCY'S valuable
  article, "The Changing Status of a Married Woman," _Law Quart.
  Review_, XIII, 192 ff.]

  [Footnote 350: 49 and 50 Vict., c. 52. On the "maintenance order"
  see GEARY, _op. cit._, 363, 368-70; HARRISON, _op. cit._, 178,
  179.]

  [Footnote 351: It is to be enforced as under an order of
  affiliation; but that is by distress, or, in default of distress,
  by imprisonment: GEARY, _op. cit._, 366, 369, 415.]

  [Footnote 352: _Ibid._, 370.]

By the protection and maintenance orders a deserted wife is secured
in the enjoyment of her own property or is given a just share in
her delinquent partner's goods. In the meantime, a statute of 1878
attempts to shield her from a husband's brutality through the
so-called "separation order."[353] The court is authorized in case
of "aggravated assault," if "satisfied that the future safety of
the wife is in peril," to order that she shall no longer be bound
to live with her husband; that he shall render to her such weekly
alimony[354] as may seem just; and to place the children in her
custody.[355] This order for "magisterial separation," as it is
called, has the "effect in all respects of a decree of judicial
separation on the ground of cruelty." Like the protection, and
probably also the maintenance, order, it does not preclude the
wife's right, when she sees fit, to apply for a judicial separation
or even for a dissolution of marriage.[356]

  [Footnote 353: 41 Vict., c. 19. On the separation order see
  GEARY, _op. cit._, 364 ff., 424, 425; HARRISON, _op. cit._, 177,
  178.]

  [Footnote 354: The weekly amount and the manner of enforcing
  payment are expressed in exactly the same terms as later adopted
  in the act of 1886 for the maintenance order.]

  [Footnote 355: This order, like that for maintenance, may be
  discharged or varied on proof of the wife's adultery; and the
  weekly sum may be varied in amount with an alteration in the
  amount of the wife's or husband's means: GEARY, _op. cit._, 366,
  367, 369, 370.]

  [Footnote 356: "If the husband goes out of the jurisdiction
  and leaves no tangible goods that are physically seizable, the
  wife is without remedy, however large be the husband's property
  in stocks and shares, etc., or by way of interest under a
  settlement." She may then apply for a judicial separation or a
  dissolution of marriage, when "she will obtain alimony in the
  usual way; and this will be indeed her only effectual course if
  the husband absconds."--GEARY, _op. cit._, 367. Compare Gillet
  _v._ Gillet (1889), 14 P. D., 158.]



PART III

MATRIMONIAL INSTITUTIONS IN THE UNITED STATES



CHAPTER XII

OBLIGATORY CIVIL MARRIAGE IN THE NEW ENGLAND COLONIES


     [BIBLIOGRAPHICAL NOTE XII.--For this chapter a large quantity
     of files and records of Massachusetts colonial and provincial
     courts has been examined. In the office of the Clerk of Courts
     for Middlesex county (Cambridge) have been used the _Records
     of the County Court for Middlesex_, 1649-86, 4 vols., MSS.
     folio, Vol. II missing; supplemented by the _Files of the County
     Court for Middlesex_, 1655-99; and followed by the _Records
     of the Court of General Sessions of the Peace for Middlesex_,
     1692-1822, 9 vols., MSS. folio, the ninth volume containing
     also _Records of the Court of Pleas and General Sessions of
     the Peace_, October 1686, to March, 1688. In the office of the
     Clerk of the Supreme Judicial Court for the County of Suffolk
     (Boston) have likewise been examined the _Records of the Court
     of General Sessions of the Peace_, 1702-32, 4 vols., MSS. folio,
     with a fifth volume of fragments, 1738-80; the _Minute Books
     of the Court of General Sessions of the Peace_, January 3,
     1743, to August 3, 1773, 5 vols., MSS. folio; the _Records of
     the Superior Court of Judicature, Court of Assize and General
     Goal Delivery in the Province of Massachusetts Bay_, 1692-1780,
     33 vols., MSS. folio, Vol. II containing also the records of
     certain courts during the Andros period, 1686-87; and the _Early
     Court Files of Suffolk_, 1629-1800--being papers of colonial
     and provincial courts held in Suffolk county, of the Superior
     Court of Judicature held in the several counties, and of the
     Supreme Judicial Court prior to last century, with miscellaneous
     papers, the whole collection comprising several hundred volumes,
     of which only those for the period 1629-1730 have been covered
     by this investigation. Careful examination has also been made
     of the MSS. folio volume of _Records of the County Court of
     Suffolk_, October 1671, to April, 1680, in the possession of the
     Boston Athenæum.

     Very important are the published _Colonial Records of Plymouth_
     (Boston, 1855-61); _Massachusetts Bay_ (Boston, 1853-54); _New
     Haven_ (Hartford, 1857-58); _Connecticut_ (Hartford, 1850-87);
     _Rhode Island_ (Providence, 1856 ff.); and the _Provincial,
     Town, and State Papers of New Hampshire_ (Concord, 1867-83).

     The necessary complement of the records is of course found in
     the various compilations of statutes. For Massachusetts it has
     seemed best to cite by preference Whitmore's fine facsimile
     edition of the _Colonial Laws_ (Vol. I, 1660-72, Boston,
     1887; Vol. II, 1672-86, Boston, 1889), which should be used
     in connection with his _Bibliographical Sketch of the Laws of
     the Massachusetts Colony_, 1630-86 (Boston, 1890); and Ames
     and Goodell's _Acts and Resolves_ (5 vols., Boston, 1869-86),
     which with the three supplementary volumes (Boston, 1892-96),
     cover the period of the provincial charter and carry us beyond
     the Revolution. The following original digests have also been
     employed: _The Book of the General Lawes and Libertyes of the
     Massachusetts Colony_ (Boston, 1660); _The General Laws and
     Liberties_ (Boston, 1672)--these two earliest codes being those
     reprinted by Whitmore; _Acts and Laws_, 1692-1714 (Boston,
     1714); _Acts and Laws_, 1692-1765 (Boston, 1769); _Acts and
     Laws_ (Boston, 1759); and the collection entitled _Charters and
     General Laws of the Colony and Province of Massachusetts Bay_
     (Boston, 1814). The first digests of New Haven and Connecticut
     plantations are comprised in Trumbull's _True Blue Laws_
     (Hartford, 1876). There is also a reprint of the _Code of 1650,
     to which is added extracts from Laws and Judicial Proceedings of
     New Haven Colony commonly called Blue Laws_ (Hartford, 1822);
     and a facsimile reprint of _The Book of the General Laws of
     1673_ (Hartford, 1865). For the eighteenth century we have the
     _Acts and Laws of his Majesties Colony of Connecticut in New
     England_ (New London, 1715); _Acts and Laws of his Majesties
     English Colony of Connecticut_ (New London, 1750); _Acts and
     Laws_ (New Haven, 1769); and the _Acts and Laws_ (New London,
     1784). For New Hampshire, the "Province Laws" published in Vol.
     VIII of the _New Hampshire Historical Society Collections_;
     the _Acts and Laws passed by the General Court or Assembly_,
     1696-1725 (Boston, 1726); the _Acts and Laws_ (Portsmouth,
     1761); and the _Acts and Laws_, 1696-1771 (Portsmouth, 1771),
     have been cited. To follow the tangled thread of Rhode Island
     legislation on any subject is a perplexing task; but the
     development of the written marriage law may be traced with
     tolerable clearness in the published digests. See Staples's
     _Proceedings of the First General Assembly ... and the Code
     adopted by that Assembly in 1647_ (Providence, 1847); Rider's
     facsimile reprint of the code of 1705, entitled _Laws and
     Acts of his Majesties Colony of Rhode Island_, 1636-1705
     (Providence, 1896); his facsimile reprint of the code of 1719,
     entitled _The Charter and the Laws of his Majesties Colony of
     Rhode-Island in America_ (Providence, 1895); also the original
     _Acts and Laws_ (Newport, 1730); with Rider's facsimile
     reprint, entitled _Supplementary Pages to the Digest of 1730_
     (Providence, [1898]); the original folio editions of the _Acts
     and Laws_ dated respectively 1745, 1752, 1767 (Newport); and
     Gregory's facsimile reprint of the compilation of 1772, entitled
     _Acts and Laws ... passed since the Revision in June 1767_
     (Providence, 1893). The Plymouth codes are printed in Vol. XI of
     the _Colonial Records_ of that colony; and they are given in
     convenient form in Brigham's _Compact, with the Charter and Laws
     of New Plymouth_ (Boston, 1836).

     Original material has also been gleaned from the _Collections_
     (Boston, 1806-97) and the _Proceedings_ of the Massachusetts
     Historical Society (Boston, 1879 ff.); Bradford's _History of
     Plymouth Plantation_ (Boston, 1856); Winthrop's _History of
     New England_, 1630-49 (Boston, 1853); Hutchinson's _History
     of Massachusetts_, 1628-1774 (Vol. I, Salem, 1795; Vol.
     II, Boston, 1795; Vol. III, London, 1828); Cotton Mather's
     _Magnalia Christi Americana_ (Hartford, 1820); Increase Mather's
     _Answer of Several Ministers_ (Boston, 1695), on marriage with
     wife's sister; _The Andros Tracts_ (Boston, 1868-74); Young's
     _Chronicles of the Pilgrims_, 1602-25 (2d ed., Boston, 1844);
     _Historical Collections of the Essex Institute_ (Salem, 1896);
     Lechford's _Note-Book_, 1638-71 (Cambridge, 1885), _idem_,
     _Plain Dealing_ (Boston, 1867); reprinted also in 3 _Mass. Hist.
     Soc. Collections_, III; Dunton's _Life and Errors_ (Westminster,
     1818); his _Letters from New-England_ (Prince Society, Boston,
     1867); the "Town Records of Boston," 1634-1777; and the "Town
     Records of Dorchester," both in the _Reports of the Boston
     Record Commission_; "Town Records of Salem," 1634-59, in Vol.
     IX of _Hist. Coll. Essex Inst._; especially Sewall's "Diary,"
     in 5 _Mass. Hist. Coll._, V, VI, VII (Boston, 1878-80); and his
     "Letter-Book," in 6 _Mass. Hist. Coll._, I, II (Boston, 1886),
     both of which afford a wealth of illustration for almost every
     phase of wedding and other social customs.

     Among recent writings relating to the general subject most
     important are Shirley, "Early Jurisprudence of New Hampshire,"
     in _Proceedings of the New Hamp. Hist. Society_, 1876-84
     (Concord, 1885); Earle, _Customs and Fashions in Old New
     England_ (New York, 1894); Weeden, _Economic and Social
     History of New England_, 1620-1789 (Boston, 1891); Goodwin,
     _Pilgrim Republic_ (Boston, 1888); Howe, _Puritan Republic_
     (Indianapolis, 1899); Arnold, _History of Rhode Island_ (New
     York, 1874); Friedberg, _Eheschliessung_ (Leipzig, 1865); Cook,
     "Marriage Celebration in the Colonies," in _Atlantic Monthly_,
     LXI (Boston, 1888); Bishop, _Marriage, Divorce, and Separation_
     (Chicago, 1891); Lodge, _Short History of the English Colonies_
     (New York, 1882); Trumbull, _History of Connecticut_ (New Haven,
     1818); Hollister, _History of Connecticut_ (Hartford, 1857);
     Atwater, _History of the Colony of New Haven_ (New Haven,
     1881); Freeman, _History of Cape Cod_ (Boston, 1869); Bailey,
     _Historical Sketches of Andover_ (Boston, 1880); Bliss, _Side
     Glimpses from the Colonial Meeting-House_ (Boston, 1896);
     _idem_, _Colonial Times on Buzzard's Bay_ (Boston, 1888);
     Brooks, _The Olden Time Series: The Days of the Spinning-Wheel
     in New England_ (Boston, 1886); articles by Scudder, Whitmore,
     Edes, McKenzie, Morse, and Goddard, in _Memorial History of
     Boston_ (Boston, 1882-83); and Newhall, _Ye Great and General
     Court_ (Lynn, 1897).

     Illustrative material has likewise been gathered from a large
     number of writers, among whom are Palfrey, _History of New
     England_ (Boston, 1888-90); Carlier, _Le mariage aux États-Unis_
     (Paris, 1860); Oliver, _Puritan Commonwealth_ (Boston, 1856);
     Doyle, _English Colonies_ (New York, 1882-87); Ellis, _Puritan
     Age_ (Boston, 1888); Dexter, _Congregationalism_ (New York,
     1880); Bacon, _Genesis of the New England Churches_ (New York,
     1874); Belknap, _History of New Hampshire_ (Dover, 1812);
     Green, _Short History of Rhode Island_ (Providence, 1877);
     Sanford, _History of Connecticut_ (Hartford, 1888); Hawthorne,
     _Grandfather's Chair_ (Boston, 1893); Campbell, _The Puritan
     in Holland, England, and America_ (New York, 1892); Hildreth,
     _History of the United States_ (New York, 1882); Snow, _History
     of Boston_ (Boston, 1824); Shurtleff, _Topographical and
     Historical Description of Boston_ (Boston, 1872); Gilman, _The
     Story of Boston_ (New York, 1889); Drake (S. G.), _History and
     Antiquities of Boston_ (Boston, 1854); Drake (S. A.), _Old
     Landmarks of Boston_ (Boston, 1889); Drake (S. A.), _The Making
     of New England_ (New York, 1887); Prime, _Along New England
     Roads_ (New York, 1892); Read, in the _Collections of the Old
     Colony Historical Society_, No. 2 (Taunton, 1880); and Brigham,
     in _Proceedings of the Mass. Hist. Society_, IV.

     Among the works drawn upon in the treatment of special topics
     are Stiles's _Bundling_ (Albany, 1871); supplemented by his
     _History of Windsor_ (New York, 1859); and the very suggestive
     paper of Charles Francis Adams, _Some Phases of Sexual Morality
     and Church Discipline in Colonial New England_, reprinted from
     the _Mass. Hist. Soc. Proceedings_, June, 1891 (Cambridge,
     1891); while there is an interesting passage relating to
     the same custom in Burnaby's _Travels through the Middle
     Settlements in North America_, 1759-60 (London, 1798); as also a
     characteristic reference in Irving's _Knickerbocker History of
     New York_ (Philadelphia, 1871). For the first time the history
     of the stigma of the "scarlet letter" has been treated from the
     sources in Davis's careful monograph, _The Law of Adultery and
     Ignominious Punishments_ (Worcester, 1895). In connection with
     the influence of the Levitical law on the New England conception
     of marriage and the family, Amram's _The Jewish Law of Divorce_
     (Philadelphia, 1896), and Mielziner's _The Jewish Law of
     Marriage and Divorce_ (Cincinnati, 1884) are important. Of most
     service for the legal character of New England slave marriages
     are Moore's _Notes on the History of Slavery in Massachusetts_
     (New York, 1866); his "Slave Marriages in Massachusetts," in
     the _Historical Magazine_, XV (1869), containing a significant
     ritual used by Rev. Samuel Phillips, minister at Andover,
     1710-71; and Steiner's "History of Slavery in Connecticut,"
     in _Johns Hopkins University Studies_, XI (Baltimore, 1893).
     The originality of the system of civil registration created
     by the New England settlers is appreciated by Kuczynski, "The
     Registration Laws in the Colonies of Massachusetts Bay and New
     Plymouth," in _Publications of the Am. Statistical Ass._, VII,
     65-73 (Boston, 1901). See also Bibliographical Note XV.]


I. THE MAGISTRATE SUPERSEDES THE PRIEST AT THE NUPTIALS

The continuity of English law and custom in the New England colonies
is not more striking than the innovation. First of all it would
indeed be strange if the planting of new states in the wilderness
should not have afforded to thoughtful men a rare opportunity for
freeing themselves from the trammels of antiquated methods and
traditions which the "inertia of vested interests" might yet for
ages sustain in the native land. In some instances the influences of
a new and primitive environment might cause an unconscious return to
the practices of earlier days. Religious and ecclesiastical ideas
must necessarily play the leading part. In fact, the zeal with
which the Pioneers of Plymouth and Massachusetts Bay proscribed the
ceremonies and usages of the Roman and Anglican churches has had
much to do with the character of civil institutions in the United
States. On the part even of the Puritan there was thus sometimes a
strong reaction in favor of the temporal power in matters hitherto
regarded as exclusively pertaining to the spiritual jurisdiction.
The sway of the so-called theocracy in Massachusetts and New Haven
tended, sometimes inadvertently, to foster the growth of the
American idea of complete separation of church and state. Thereby
the forces of local self-government were quickened. Thus for a time
the town-meeting and the congregation were practically one and the
same; but authority was exercised in the name of the lay township
and not in that of the ecclesiastical parish. So also the probate
of wills, the administration of estates, the exercise of chancery
jurisdiction,[357] and the supervision of primary and secondary
education[358] were taken out of the hands of the church and vested
mainly in the local community. The process of secularization in
legal functions proceeded with rapid strides.

  [Footnote 357: In Massachusetts the county courts had an
  equity jurisdiction; _Mass. Col. Rec._, V, 477, 478; _Acts and
  Resolves_, I, 75, 356; WASHBURN, _Judicial Hist. of Mass._, 34,
  166, 167; HOWARD, _Local Const. Hist._, I, 330, 331. See the able
  article by WOODRUFF, "Chancery in Massachusetts," _Law Quarterly
  Review_ (London, 1889), V, 370-86.]

  [Footnote 358: An important epoch in the history of social
  progress is reached when our New England ancestors recognized
  the support of popular education as a proper function of local
  government. The event is all the more remarkable because it led
  the development of thought in the mother-country by more than
  two centuries and a half. However, the primary motive of the
  Massachusetts act of 1647 for the establishment of elementary and
  grammar schools was to provide religious knowledge. "It being
  one cheife p'iect of y^t ould deluder, Satan, to keepe men from
  the knowledge of y^e Scriptures, as in form^r times by keeping
  y^m in an unknowne tongue, so in these latt^r times by p'swading
  from y^e use of tongues, y^t so at least y^e true sence & meaning
  of y^e originall might be clouded by false glosses of saint
  seeming deceivers, y^t learning may not be buried in y^e grave
  of o^r fath^{rs} in y^e church & co[=m]onwealth," etc.--_Mass.
  Col. Rec._, II, 203. _Cf._ also HOWARD, _Local Const. Hist._, I,
  66-70; and _idem_, "The State University in America," _Atlantic
  Monthly_, LXVII (1891), 332 ff.]

In no respect was the change more remarkable than in the
administration of matrimonial law and in the conception of the
marriage contract. Here, as in so many other instances, our
ancestors anticipated the thought and the legislation of the
mother-country by more than two hundred years.[359] It will be
remembered that in the beginning of the seventeenth century--and
ever since the thirteenth--English marriage law was in an anomalous
and most chaotic state. The Reformation in England had brought no
real change in the canonical conception of the form of wedlock,
though its sacramental nature was denied. On the one hand was the
church at the demand of the state trying to enforce ecclesiastical
rites and to secure publicity by requirement of banns, parental
consent, and registration; on the other was the "irregular" or
common-law marriage, entered into without any of these safeguards,
by mere private agreement; and the validity of the latter was not
squarely impeached by the church, though the disregard of the
priestly office was punished by spiritual censure. All this is
changed in the colonies. In place of confusion and complexity is
found simplicity. In New England particularly civil rites, civil
registration, and uniform theory of marriage tend at once to prevent
the manifold evils growing out of a lax or uncertain law. The
conception of wedlock which existed there from the beginning was
identical with that which later found expression in the writings of
Milton and the legislation of Cromwell. Marriage was declared to be,
not a sacrament, but a civil contract in which the intervention of a
priest was unnecessary and out of place.

  [Footnote 359: Many of the enactments of the colonies are
  described by Lord Campbell as "anticipating and going beyond most
  of the salutary amendments which have been adopted in the reigns
  of William IV. and Victoria."--GOODWIN, _Pilgrim Republic_, 251.]

Governor Winthrop, in commenting upon "a great marriage to be
solemnized at Boston," in 1647, expresses the sentiment prevailing
during the first three-quarters of a century after the settlement.
The bridegroom was "of Hingham, Mr. Hubbard's[360] church," and the
latter "was procured to preach and came to Boston to that end. But
the magistrates, hearing of it, sent to him to forbear. The reasons
were, 1. for that his spirit had been discovered to be averse to
our ecclesiastical and civil government, and he was a bold man,
and would speak his mind. 2. we were not willing to bring in the
English custom of ministers performing the solemnity of marriage,
which sermons at such times might induce, but if any ministers
were present and would bestow a word of exhortation, etc., it was
permitted."[361] The last remark reminds us of the benediction of
the early Christian priest, who, like the Puritan, discriminated
between the religious act and the marriage. Sermons, however, were
originally proscribed at the nuptials, though they were permitted at
the betrothal.[362]

  [Footnote 360: Peter "Hobart": GOODWIN, _Pilgrim Republic_, 596;
  DEXTER, _Congregationalism_, 458 n. 166; YOUNG, _Chronicles of
  the Pilgrims_, 402 n. 2.]

  [Footnote 361: WINTHROP, _History of New England_ (ed. SAVAGE,
  1853), II, 382 (313).]

  [Footnote 362: See especially DEXTER, _Congregationalism_, 458,
  who has pointed out the error of Mr. Savage (WINTHROP, _Hist. of
  New England_, II, 382 n. 2) in confusing the nuptials with the
  "contraction."]

The early colonial laws, generally, required that all marriages
should be celebrated before a justice of the peace or other
magistrate, sometimes under penalty of nullity for those solemnized
in any other way.[363] Where no statutory provision to the contrary
existed the common-law marriage by private consent was valid.[364]
The question now arises as to the causes which determined the
establishment of civil marriage in the New England colonies. Was
it set up in imitation of the practice in Holland? Did it come
as a natural result of the general tendency of Protestant, and
especially of Puritan, thought? Or was it perhaps the product of
both influences combined? Already in the middle of the eighteenth
century colonial historians were at a loss to account for it. Thus
Governor Hutchinson makes a difficulty of understanding why the
lay celebration was introduced. "Their laws concerning marriage
and divorce," he says, "are somewhat singular. I suppose there had
been no instance of a marriage, lawfully celebrated, by a layman
in England, when they left it. I believe there was no instance of
marriage by a clergyman after they arrived, during their charter;
but it was always done by a magistrate, or by persons specially
appointed for that purpose.... It is difficult to assign a reason
for so sudden a change, especially as there was no established form
of the marriage covenant."[365]

  [Footnote 363: The fact that ministers as such were not allowed
  to celebrate in New England until near the end of the seventeenth
  century is, of course, well known to students. Very many,
  however, who now insist on the religious ceremony are ignorant of
  the fact; and it is not a little surprising to find so reputable
  a writer as AUGUSTE CARLIER, speaking of the "émigrants dans la
  Nouvelle Angleterre," declaring that marriage "se formait sous
  les yeux et avec l'approbation du chef de famille; il était
  consacré par le pasteur; d'après les prescriptions impératives
  de la loi, mais surtout pour obéir à la conscience d'un devoir
  religieux."--_Le mariage aux États-Unis_, 8, 9.]

  [Footnote 364: BISHOP, _Marriage, Divorce, and Sep._, I, 176,
  178; FRIEDBERG, _Eheschliessung_, 471, 472.]

  [Footnote 365: HUTCHINSON, _Hist. of Mass._, I, 392. Compare
  COOK, "Mar. Celebration in the Colonies," _Atlantic Monthly_,
  LXI, 351, who, following Hutchinson, thinks that the colonists
  instituted "a form of marriage celebration unique in modern
  times."]

On the other hand, Governor Bradford believed that the civil
celebration was introduced by the Pilgrims directly from Holland.
The first marriage in Plymouth Plantation--that of Edward Winslow
and Susannah White[366]--occurred on May 12 (22), 1621. This, he
declares "according to y^e laudable custome of y^e Low-Cuntries, in
which they had lived, was thought most requisite to be performed by
the magistrate, as being a civill thing, upon which many questions
aboute inheritances doo depende, with other things most proper to
their cognizans, and most consonante to y^e scriptures, Ruth 4, and
no wher found in y^e gospell to be layed on y^e ministers as a part
of their office. 'This decree or law about marriage was published
by y^e State of y^e Low-Cuntries An^o: 1590. That those of any
religion, after lawfull and open publication, coming before y^e
magistrats in y^e Town or Stat-house, were to be orderly (by them)
married one to another.' Petits Hist. fol: 1029. And this practiss
hath continued amongst, not only them, but hath been followed by all
y^e famous churches of Christ in these parts to this time,--An^o:
1646."[367]

  [Footnote 366: On this marriage see also GOODWIN, _Pilgrim
  Republic_, 181; SHIRLEY, "Early Jurisprudence of New Hampshire,"
  _Procds. New Hamp. Hist. Soc._ (1876-84), 309; BACON, _Genesis
  of the New England Churches_, 339-41; YOUNG, _Chronicles of the
  Pilgrims_, 201.]

  [Footnote 367: BRADFORD, _Hist. of Plymouth_, 101. The work
  mentioned by Bradford, according to Mr. Deane, "is probably
  _La grande Chronique ancienne et moderne de Holland, Zélande,
  Westfrise, Utrecht_, &c., by Jean-François le Petit, 1601, and
  1611."--BRADFORD, _op. cit._, 101, note by the editor.]

The testimony of Bradford must, indeed, command our earnest
attention, though in the matter of dates he is apparently misled
by his authority. For, as already seen,[368] two of the Netherland
provinces had established civil marriage as early as 1580; while it
was not extended to them all until seventy-six years later. Nor is
the mere fact that, seemingly without discussion, civil marriage
was adopted by Massachusetts and her daughter-colonies, as well
as by Plymouth, necessarily a fatal objection to this theory of
origin, though it has a bearing upon the question which must be
carefully considered. For the New England Pilgrim and Puritan alike
were simply doing what their brethren did a few years after when
they found their opportunity in the days of the Commonwealth. If
America owes the institution of civil marriage to Holland, it is so
not merely because of the residence of the Scrooby congregation at
Leyden, but because of the profound influence which Dutch Puritanism
exerted upon the Puritanism of England for a hundred years after
the Spanish and Tudor persecutions began. It can scarcely be
doubted that in various ways Dutch ideas made themselves felt in
the remarkable legislative and constitutional experimentation of
Cromwell's reign.[369] Moreover, the argument is strengthened by the
fact that the Fathers of the English Reformation, unlike Luther and
his followers, do not seem to have raised a single voice in favor of
the lay ceremony.

  [Footnote 368: See chap. x, sec. i.]

  [Footnote 369: The evidence for the influence of Holland upon
  English and American institutions is presented in CAMPBELL,
  _The Puritan in Holland, England, and America_ (New York,
  1892), an able and timely work, calling attention to many facts
  strangely neglected by previous writers, but too sweeping in its
  general conclusion that American law and institutions, in their
  essential characteristics, are not Anglo-Saxon, but Dutch. For
  the interrelations of the Puritans in England and Holland see
  especially _op. cit._, I, 485 ff.; II, 44 ff.]

Nevertheless, though Dutch custom undoubtedly furnished a direct
precedent which should not be ignored, it seems highly probable
that without the influence of Holland the early establishment of
civil marriage in New England was inevitable. It was required by
the spirit of Protestantism. Under favorable conditions, which New
England did and old England did not afford, it was sure to arise as
a consequence of rejecting the sacramental theory of wedlock.[370]
There is another factor of the problem which must be reckoned with.
The New England Puritans were steeped to the marrow in Hebraism;
and, as we shall presently see, the growth of a sentiment in favor
of lay marriage was fostered by the example of the Jewish law.[371]
It is vain to apologize for them on the ground that under the
influence of the Mosaic code they really regarded the officiating
magistrate as the "minister of God." In his "judicial" capacity
the magistrate may, indeed, have been looked upon as a divine
agent.[372] That is the well-known casuistry by which Luther and the
early Protestants persuaded themselves that absolute divorce through
the temporal court is not forbidden by the scriptural precepts.[373]
But it is a grave error to suppose that the seventeenth-century
Puritan had this in mind when he rejected the priestly ceremony.
Doubtless he did not forget that marriage from its social and
ethical sides is something higher than a _mere_ civil contract. Yet
for more than half a century after the settlement so intent was he
in emphasizing its secular character that in the statutes the words
"holy" or "sacred" as applied to it very seldom, if ever, appear.
"Honorable" or some similar epithet is the strongest term usually
employed. Even the publication of banns, as will hereafter be seen,
was at first ordinarily required to be made, not on the sabbath, but
at public "lecture" or on training day.[374]

  [Footnote 370: At a very early day the English Separatists are
  found advocating civil marriage: see BACON, _Genesis of the New
  England Churches_, 107, who states Greenwood's view (1587).]

  [Footnote 371: See sec. iv, below.]

  [Footnote 372: ELLIS, _Puritan Age_, 185.]

  [Footnote 373: See chap. xi, sec. ii.]

  [Footnote 374: But publication of banns on the sabbath was not
  ordinarily _prohibited_, the laws being usually silent as to
  that, while naming other days. Probably in some towns from the
  beginning sabbath publication may have been customary, as it was,
  apparently, at Andover: BAILEY, _Hist. Sketches of Andover_, 75.
  _Cf._ BACON, _Genesis of the New England Churches_, 339-41, who
  also seems to misapprehend the attitude of the Separatist and
  Puritan in his anxiety to show that early New England marriages
  were not "godless."]

The difference between the colonists and their Anglican adversaries
in this regard is brought out in an interesting way through the
experience of Edward Winslow, whose second marriage has just been
mentioned. In 1634 he was sent on public business to England,
where, partly in the interest of Merry-Mount Morton, Mason, and Sir
Ferdinando Gorges, he was accused by Archbishop Laud--whose scheme
for setting up a governor-general and a bishop in the colonies
seemed likely to be frustrated by Winslow's petition relative to
the encroachments of the French and Dutch--of "teaching in y^e
church publickly," and of performing the marriage ceremony. The
latter offense he had committed in his capacity as magistrate.
In reply to the charge he excused himself on the ground that the
colonists were "necessitated so to doe, having for a long time
togeather at first no minister; besids, it was no new-thing, for he
had been so maried him selfe in Holland, by y^e magistrats in their
statthouse."[375] But "with more courage and candor than caution, he
proceeded to defend the practice on its merits, declaring that he
knew no scriptural ground for confining this office to the clergy;
while from the relations which marriage often had to property and
to business obligations, there seemed good reason for making it a
civil contract, as in Holland."[376] As a consequence Winslow was
imprisoned in the Fleet for seventeen weeks.[377]

  [Footnote 375: BRADFORD, _Hist. of Plymouth Plantation_, 327-30.]

  [Footnote 376: GOODWIN, _Pilgrim Republic_, 386.]

  [Footnote 377: _Cf._ PALFREY, _Hist. of New England_, I, 543.]

It appears certain, then, that in the two older colonies the lay
ceremony was invariably required from the beginning.[378] But in
neither case does there seem to have been any direct legislation
on the subject for many years. Indeed, were there no prudential
reason,[379] a positive legal sanction may well have been deemed
superfluous while public opinion was so sensitive and so united.
The first extant order of the general court of Plymouth requiring
celebration before a civil officer was passed, it is said,[380] in
1671. But in this jurisdiction, as in Massachusetts, the assistants
or "magistrates" had always exercised this function; and it had
long been the custom for the general court to appoint commissioners
in the particular towns to join persons in marriage.[381] The
earliest statute of Massachusetts relating to the celebration is
the act of 1646, providing "that no person whatsoever in this
Jurisdiction, shall joyne any persons together in Marriage, but
the Magistrate, or such other as the General Court, or Court of
Assistants shal Authorize in such place, where no Magistrate
is neer."[382] In practice the last provision of this act was
carried out in various ways. Thus, for example, any citizen might
be appointed for a particular town during the pleasure of the
court.[383] Or, in absence of the regular officer, a commission
might be issued to perform the ceremony in specified cases; as
when Henry Chickering was given authority to marry "two or three
couples, legally published at Dedham."[384] In one instance we find
a curious optional commission in which are inserted the names of
three persons, either one of whom is empowered to join "M^{r.} John
Apleton and M^{rs.} Priscilla Glover" in marriage.[385] But, as a
rule, one or more of the three commissioners, chosen for the ending
of small causes in towns where no assistant resided, was authorized
by the county court to perform this duty.[386]

  [Footnote 378: WEEDEN, _Ecc. and Soc. Hist. of New England_, I,
  217 ff., has some interesting gleanings on the civil contract.]

  [Footnote 379: "To make a law that marriage should not be
  solemnized by ministers is repugnant to the laws of England; but
  to bring it a custom by practice for the magistrate to perform it
  is by no law made repugnant."--WINTHROP, _Hist. of New England_,
  II, 313, 314 (382). _Cf._ COOK, in _Atlantic Monthly_, LXI, 351.]

  [Footnote 380: By BRIGHAM, _Mass. Hist. Soc. Proceedings_,
  IV, 283, 284. In general on civil marriage in New England see
  LECHFORD, _Plain Dealing_ (Boston, 1867), 86, 87, or in 3
  _Mass. Hist. Coll._, III, 94; DUNTON, _Life and Errors_ (1686),
  in 2 _Mass. Hist. Coll._, II; _Mem. Hist. of Boston_, I, 196;
  READ, in _Coll. of Old Col. Hist. Soc._, No. 2, 9; FRIEDBERG,
  _Eheschliessung_, 470-78; DRAKE, _Making of New England_, 98;
  OLIVER, _Puritan Commonwealth_, 415; HILDRETH, _Hist. of U. S._,
  I, 192; WEEDEN, _Ecc. and Soc. Hist. of New England_, I, 217
  ff., and Index; COOK, "Marriage Celebration in the Colonies," in
  _Atlantic Monthly_, LXI, 350 ff.; and especially the excellent
  chapter in EARLE'S _Customs and Fashions of Old New England_,
  36-81.

  SEWALL'S _Diary_, in 5 _Mass. Hist. Coll._, V, VI, VII; and his
  _Letter Books_, in 6 _Mass. Hist. Coll._, I, II, are a mine of
  information on social usages connected with dowers, courting, and
  wedlock. For very interesting records of marriages celebrated by
  magistrates at Salem in the seventeenth century see _Hist. Coll.
  Essex. Inst._, I, II.]

  [Footnote 381: _Plym. Col. Rec._, II, 155; IV, 10, 22, 43, 65,
  73, 74, 108, 186; VI, 217, etc. _Cf._ 3 _Mass. Hist. Coll._, II,
  270. In one instance we find the court abrogating a commission:
  FREEMAN, _Hist. of Cape Cod_, I, 208.]

  [Footnote 382: WHITMORE, _Colonial Laws of Mass._ (1660-72), 172;
  _ibid._ (1672-86), 102. _Cf._ _Mass. Hist. Soc. Procds._, IV,
  283, 284. Compare NEWHALL, _Ye Great and General Court_, 367.]

  [Footnote 383: So, in 1646, the court "granted co[=m]ission to
  M^r Edw^d Rawson to see people ioyne in marriage in Newberry,"
  during pleasure, Watertown receiving a similar commission: _Mass.
  Col. Rec._, II, 166. In 1651, on petition, Captain William
  Gerrish was similarly appointed for Newberry: _ibid._, III,
  256; IV, Part I, 65; _cf. ibid._, IV, Part II, 63; V, 483. Such
  commissioners were usually so appointed at the request of the
  inhabitants. See two further examples for 1654, _ibid._, III,
  345, 346. On May 29, 1663, we find a "humble request by two men
  to _General Court_ that Lieu. Goodinnough be authorized to marry
  their son and daughter. Granted with addition that Goodinnough be
  authorised to marry all who apply to him in that town [Sudbury?]
  and who have been properly published."--_MSS. Early Court Files of
  Suffolk_, No. 519.]

  [Footnote 384: _Mass. Col. Rec._, IV, Part I, 407. In October,
  1647, Captain Wm. Hathorne was commissioned to marry Thomas
  Jeggles and Abigail Sharpe, in the absence of "y^e major
  Gennerall."--_Mass. Col. Rec._, III, 115. The _MSS. Early Court
  Files of Suffolk_, No. 221, under date of Nov. 13, 1655, contains
  the following: "Order by the deputies in _General Court_ for
  appointing Captain Hathorne to join together in marriage at
  Salem such as desire it, there not being in or near there any
  Magistrate. The Magistrates judge meet that the Deputies of Salem
  be authorized to join in marriage. The Deputies judge meet to
  leave the choice to the town of Salem."]

  [Footnote 385: _Mass. Col. Rec._, IV, Part I, 74; _cf. ibid._,
  407; and SHIRLEY, "Early Jurisprudence of New Hamp.," in _Procds.
  of New Hamp. Hist. Soc._ (1876-84), 308.]

  [Footnote 386: At a "County Court at Charlestown," June 25, 1658,
  "Mr. Richard Russell at the request of the freemen of Charlestown
  is empowered to solemnize marriages and to take oaths in civil
  cases."--_MSS. Records of the County Court of Middlesex_, I, 133.
  See also _Mass. Col. Rec._, IV, Part I, 255 (1656), 322 (1658).
  The "associates," who sat with the "magistrates" to compose the
  county court, were often commanded to join persons in marriage:
  _ibid._, V, 139, 145, 101.]

The law and custom of the other New England colonies were
essentially the same as those already discussed. Everywhere
marriage was regarded as a civil contract and the celebration was
performed by a civil magistrate. In New Hampshire members of the
council could act.[387] In Rhode Island, besides the magistrate,
"none but Quakers[388] and clergymen of the Church of England
could perform the ceremony," and these were given such authority
by special grant of the king.[389] The law of New Haven, 1648, is
peculiar in requiring not only that the marriage be performed before
a magistrate or someone expressly allowed by the general court;
but when the persons to be united are "able to go forth," that it
be solemnized in some public place,[390] under penalty of five
pounds for "every such miscarriage."[391] In Connecticut, likewise,
compulsory civil marriage was adopted.[392]

  [Footnote 387: See the Cutt Code in _Provincial Papers_, I, 396,
  397; also _New Hamp. Hist. Soc. Coll._, VIII, 23, 117, 118; _cf._
  SHIRLEY, "Early Jurisprudence of New Hamp.," _Procds. New Hamp.
  Hist. Soc._ (1876-84), 307 ff.]

  [Footnote 388: "A good story is told of Wm. Wanton--governor of
  Rhode Island, 1732-3--in Deane's Scituate. Before his removal
  from that place to Newport, prior to 1700, he had married Ruth
  Bryant, daughter of a Congregational deacon. Wanton's family were
  Quakers. Religious objections were made to the match on both
  sides. He said, 'Friend Ruth, let us break from this unreasonable
  bondage--_I_ will give up _my_ religion, and _thou_ shalt
  _thine_, and we will go over to the Church of England, _and go to
  the devil together_.' They fulfilled this resolution so far, says
  our author, as to go to the Church of England, and marrying and
  adhering to the Church of England during life."--ARNOLD, _Hist.
  of Rhode Island_, II, 113, note.]

  [Footnote 389: GREEN, _Short Hist. of Rhode Island_, 152, 153;
  ARNOLD, _Hist. of Rhode Island_, II, 113. By the code of 1647
  marriages were to be celebrated ("confirmed") before the "head
  officer of the towne": STAPLES, _Proceedings of the First Gen.
  Assembly, 1647_ (Providence, 1847), 47, 48; _R.I. Col. Rec._, I,
  187. On the head officer see HOWARD, _Local Const. Hist._, I,
  88, 89. According to the law of 1663 the intentions are to be
  published, and "afterwards before one of the Gener^{ll} officers
  shall they be married": in RIDER'S reprint of the _Laws and Acts_
  (1705), 12. But in RIDER'S reprint of _The Charter and the Laws_
  (1719), 12, it is declared lawful for "any Assistant, Justice of
  the Peace, or Warden" to perform the ceremony. The act cited is
  one of a group dated 1662; and it appears to be a modification
  of the law just cited from the collection of 1705. The act of
  1701 reserves the right of Quakers and members of the Church
  of England to be married according to their own usage: RIDER,
  _Charter and Laws_ (1719), 48; also in _Acts and Laws_ (Newport,
  1730), 44, 46.]

  [Footnote 390: "This requirement was sufficiently answered when
  spectators were present; and usually marriages were solemnized
  at the home of the bride."--ATWATER, _Hist. of the Colony of New
  Haven_, 363.]

  [Footnote 391: _New Haven Col. Rec._, II, 599, 600.]

  [Footnote 392: The civil-marriage form is recognized by
  the code of 1650: see TRUMBULL, _Blue Laws_, 167; COOK, in
  _Atlantic Monthly_, LXI, 351; SANFORD, _Hist. of Conn._, 125;
  and HOLLISTER, _Hist. of Conn._, I, 438. By the code of 1673 no
  person is to solemnize marriages "but the Magistrates, or such
  other as the General Court shall Authorize in such places where
  no Magistrate is near": see the reprint of _The Book of the
  General Laws of 1673_ (Hartford, 1865), 46.]

During the "usurpation" period, beginning in 1686, the laws
requiring civil marriage were set aside. Joseph Dudley, who
entered upon his duties as president of New England in May of that
year, published "an order of council, authorizing and empowering
ministers and justices of the peace, the order says, 'to consummate
marriages,' after three several times publication or licence from
the president or deputy."[393] With this compromise Governor Andros
was not satisfied; and it was his intention to allow marriages to be
performed only by the Episcopal clergy. To do this at once, however,
was impracticable. "Magistrates," says Hutchinson, "still continued
to give people in matrimony. Other provision could not immediately
be made." For at the time there was but one Episcopal clergyman in
the country; and "Sir Edmund considered the Congregational ministers
as mere laymen. Randolph wrote to the bishop of London, 'I press for
able and sober ministers, and we will contribute largely to their
maintenance; but one thing will mainly help, when no marriages shall
hereafter be allowed lawful but such as are made by the ministers
of the church of England."[394] Another restraint upon marriage was
accounted a still more serious hardship. "None were allowed to marry
except they entered into bonds with sureties to the governor, to be
forfeited in case there should afterwards appear to have been any
lawful impediment."[395] This requirement in many cases amounted to
a practical prohibition.[396]

  [Footnote 393: HUTCHINSON, _Hist. of Mass._, I, 392, note; _cf._
  SNOW, _Hist. of Boston_, 172, 173, 192; DRAKE, _Hist. of Boston_,
  472, 473; SHIRLEY, "Early Jurisprudence of New Hamp.," _Procds.
  New Hamp. Hist. Soc._ (1876-84), 308; WHITMORE, in _Mem. Hist.
  Bost._, II, 1, 2.]

  [Footnote 394: HUTCHINSON, _Hist. of Mass._, I, 318; _cf._
  ARNOLD, _Hist. of Rhode Island_, I, 498, 499; GREEN, _Short
  Hist. of Rhode Island_, 103. TRUMBULL, _Hist. of Conn._, I,
  372, followed by HOLLISTER, _Hist. of Conn._, I, 317, makes the
  following extraordinary statement: "Magistrates only were allowed
  to join people in the bands of wedlock. The governor (Andros) not
  only deprived the clergy of the perquisite from marriages, but
  soon superseded the laws for their support."]

  [Footnote 395: HUTCHINSON, _Hist. of Mass._, I, 318. At least
  twenty-two of these bonds are extant. One, dated Jan. 11,
  1686-87, given "unto Edward Randolph, Esq., Secretary of his
  Majesty's Territory and Dominion," may be found among the
  "Usurpation Papers" in 3 _Mass. Hist. Coll._, VII, 170; and also
  in _New Hamp. Provincial Papers_, II, 18. The other twenty-one
  are in the _Early Court Files of Suffolk_, Nos. 29996-30016.
  Following is a copy of the first:

  "Know all men by these p^{re}sents that Wee John Harris of the
  Isle of Shoales ffisherman and Jabesh Negus of Boston Carpenter
  are houlden and firmely bound vnto his Excellency S^r Edmund
  Andros Kn^t Cap^t G[~r]all and Governour in Cheife vnder his most
  Sacred Ma^ty James the Second King of England ec in and over
  the Territory & Dominion of New England ~ In two Hundred pounds
  Currant money of New England aforesaid to be paid to his said
  Excellency S^r Edmund Andros his Executo^rs Admin^rs or Assignes.
  To which payment well and truly to be made Wee bind ourfelves and
  each of vs and each of our heires Executo^rs and Administrato^rs
  Joyntly and feurally in the whole and for the whole firmely by
  these p^{re}sents. Dated the 24th day of June Anno Dni 1587 Annoq
  R R Jacobii Secdi nunc Anglice ec Tertio.

  "The Condicon of this Obligãcon is fuch That if hereafter there
  fhall not appeare any Lawfull Lett or Impediment by reason of any
  p^{re}contract Consanguinity Affinity or any other Lawfull meanes
  whatsoeur But that the above said John Harris and Mary Sparks of
  Ipswich Spinster may Lawfully solemnize Marriage togeather; And
  in the same afterwards Lawfully remaine and Continue Like man and
  wife~ according to the Lawes in that behalfe made and provided
  That then this Obligac[~c]on to be void or else to Remaine in
  full force & virtue.

                                                             +----+
  "Signed Sealed and Deliured         [Signed] John Harris   |Seal|
                                                             +----+
                                                             +----+
  "In the p^{re}sence of vs.          [  "   ] Jabesh Negues |Seal|
                                                             +----+
  [Signed] "Jn Bonamy

  [  "   ] Wm Marshall"

  The earliest bond is dated June 24, 1687 (1587 in the MS.),
  and the latest Oct. 24, 1688. They are alike in all essential
  respects, differing very slightly from the above sample either
  in form or wording. They are all for £200; and all are executed
  in Boston, as shown by the names of the witnesses, although only
  six are "dated in Boston." Seventeen of them were witnessed by
  John Bonamy, and thirteen by Pe[ter] Heyman. These seemingly were
  men who made a business of witnessing in Boston; and all the
  other witnesses appear in connection with them. The bridegroom is
  always a bondsman. In one case, that of the fifteenth bond, dated
  March 5, 1687/8, the other signer is a woman, but not the bride.
  The other bondsman is never of the same name as the bride to be.
  The places of residence are Salem, Boston, Piscataqua, Nevis, and
  Plymouth; the counties of Bristol, Suffolk, and Plymouth; while
  in one case the man is from "Rhode Island."]

  [Footnote 396: TRUMBULL, _Hist. of Conn._, I, 372; HOLLISTER,
  _Hist. of Conn._, I, 317.]

The "first marriage at Boston with prayer-book and ring" occurred
on May 18/28, 1686, just four days after Dudley received his
commission as president of New England.[397] But there is evidence
that zealous opposition to the religious ceremony existed up to the
very beginning of this period. Thus, according to Savage, "Lawrence
Vanderbosk, a Huguenot clergyman, undertook to solemnize marriages
in Boston in 1685." But he was brought before a tribunal for this
enormity and promised "to do no more such things," yet in September,
says Judge Sewall, "he joined together Giles Sylvester and Hannah,
widow of Benjamin Gillam. The reverend offender went to New York the
same week."[398]

  [Footnote 397: GOODWIN, _Pilgrim Republic_, 596; DRAKE, _Hist. of
  Boston_, 472; DOYLE, _Eng. Colonies_, III, 232.]

  [Footnote 398: Note by WHITMORE, _Andros Tracts_, II, 37. "'Tis
  confessed," says Increase Mather referring to this incident,
  "that once or twice a Debauched _Priest_ has appeared amongst
  them; particularly one _Vardenbosch_, who, besides the good work
  of _Baptizing_ a noted whore or two of his acquaintance, made
  private _Marriages_ without any previous publication of _Banes_
  (which is a nusance & _Bane_ to all humane society); and yet
  so tender was the government as only to give them some _Orall
  Rebukes_, upon which the guilty Knaves have run away."--MATHER,
  "A Vindication of New England," _Andros Tracts_, II, 36, 37.
  For the passage in SEWALL'S _Diary_ referred to, see 5 _Mass.
  Hist. Coll._, V, 98. There is a discussion of the first clerical
  marriage in New England, with reference to Vanderbosk, in
  _Historical Magazine and Notes and Queries_, VIII, 279, 348.]

Gradually, however, the stern Puritanism of the colonists became
softened; the prejudice against ecclesiastical rites rapidly
subsided; marriages were solemnized even by the Congregational
clergy;[399] and soon after the struggle for the charters, laws
were enacted allowing the ministers of all denominations to
perform the ceremony. Yet, in Rhode Island, it was not until 1733
that the "settled and ordained ministers and elders of every
society and denomination of Christians" were permitted to join
persons in marriage, the legal fee therefor being fixed at three
shillings.[400] By an act of October, 1694, the same privilege was
conferred upon the "ordayned ministers of the severall plantations"
of Connecticut--in order, says the general court, to satisfy
"such as are conscienciously desirous to be" so joined.[401] For
Massachusetts a similar statute was passed in 1692, authorizing
all "settled ministers" to solemnize marriages, but only in their
"respective towns;" while, on the other hand, the authority of
the justice of the peace extended throughout the county.[402] The
careful limitation of the respective districts of the minister and
magistrate was doubtless intended to act as a check upon clandestine
unions, as by the more stringent act of 1695. By this statute
none may join any persons in marriage who are not inhabitants or
residents of the county or town; nor without a proper certificate
of due publication and parental consent from the clerks of the
towns where the parties respectively dwell. For celebrating a
marriage contrary to the act the minister or justice suffers a
penalty of fifty pounds and is forever disabled to join persons in
marriage, with the added liability of prosecution from the parent
or guardian.[403] By several subsequent acts the powers of the
clergy are still further enlarged. Thus in 1763 they are empowered
to solemnize marriages in "parishes" and "districts" composed of
"parts of towns" in "as ample a manner" as in the several towns
where they dwell.[404] In 1773 they are allowed to perform the
ceremony, not merely within their official districts, but for any
whose "ministerial taxes" they are entitled to receive; or if for
any cause a parish is without a minister, or if the incumbent
himself desires to get married, then the next minister of the same
denomination in the town may lawfully act.[405]

  [Footnote 399: During the Andros period Rev. Charles Morton--who
  was installed as pastor of the church in Charlestown, Nov. 5,
  1686--began to solemnize marriages. He was probably the first
  Congregational minister in New England who did so. See EDES,
  _Mem. Hist. of Boston_, II, 315.]

  [Footnote 400: _Rhode Island Col. Rec._, IV, 490; RIDER, _Supp.
  Pages to the Digest of 1730_, 258, 259; _Acts and Laws_ (1745),
  176. _Cf._ ARNOLD, _Hist. of R. I._, II, 113; GREEN, _Short Hist.
  of R. I._, 152, 153.]

  [Footnote 401: _Conn. Col. Rec._, 136. As the law stood in 1769,
  marriages might be solemnized by magistrates and justices, each
  within his own county, and by any ordained minister within
  his town or society during his continuance in the work of the
  ministry: _Acts and Laws_ (New Haven, 1769), 144.]

  [Footnote 402: _Acts and Resolves_, I, 61. On this act JUDGE
  SEWALL makes the following characteristic entry in his _Diary_:
  "Nov. 4, 1692. Law passes for Justices and Ministers Marrying
  persons. By order of the Co[=m]ittee, I had drawn up a Bill for
  Justices and such others as the Assembly should appoint to marry:
  but came new-drawn and thus alter'd from the Deputies. It seems
  they count the respect of it too much to be left any longer with
  the Magistrate. And salaries are not spoken of; as if one sort
  of men might live on the Aer. They are treated like a kind of
  useless, worthless folk."--5 _Mass. Hist. Coll._, V, 368. The
  marriage fee was fixed by this act at three shillings.]

  [Footnote 403: _Charters and General Laws_ (Boston, 1814), 285;
  _Acts and Resolves_, I, 209, 210. In Nov., 1704, James Gardner,
  "preacher of the Gospel" at Dartmouth, that town being destitute
  of an "ordained minister," was allowed to solemnize marriages:
  _ibid._, VIII (Appendix, Vol. III), 92.]

  [Footnote 404: _Acts and Resolves_, IV, 622; _Charters and Laws_,
  655. _Cf._ the earlier act of 1716-17: _Acts and Resolves_, II,
  60.]

  [Footnote 405: _Acts and Resolves_, V, 231; _Charters and Laws_,
  679.]

So it appears that the proclamation of President Dudley in 1686
marks an epoch of some importance in institutional history. For by
it the principle of American law, generally recognized at present
by the statutes of the various states, and imitated by English
legislation, was first recognized. Almost everywhere in this country
the lay and the religious celebrations are equally valid; and it is
not without interest to note that long before the Revolution the
priest had once more practically superseded the magistrate at the
nuptials.[406] It was already regarded as good social "form" to have
the nuptials solemnized by religious rites.

  [Footnote 406: In Hutchinson's time marriages were usually
  performed by the clergy. "Although," he says, "the law admits of
  its being done by a justice of the peace, yet not one in many
  hundred is performed by them;" and he adds in a note: "Perhaps,
  in a few years, the people of England will be equally well
  satisfied with the provision made by the late marriage act, and
  no body will be at the pains of a journey to Scotland to avoid
  conformity to it."--HUTCHINSON, _Hist. of Mass._, I, 392, 393.]

No prescribed marriage ritual existed. The intention of the persons
entering into the covenant might be expressed in any fitting
words.[407] In the early period weddings were usually celebrated
quietly in the home of the bride. But it must not be understood that
all festivity was for long rigorously proscribed. Soon feasting
was added to prayer and the singing of psalms.[408] A sumptuary
law of 1637, forbidding the sale of buns and cakes in the markets,
victualling houses, and elsewhere, carefully makes an exception of
"such cakes as shalbee made for any buriall, or marriage, or such
like speciall occation."[409] The ancient practice of our teutonic
ancestors of "bedding" the newly married pair was maintained in
some quarters. Judge Sewall had that experience when he took his
second wife.[410] "In Marblehead bridesmaids and groomsmen put the
wedded couple to bed;" and we are told that "along the New Hampshire
and upper Massachusetts coast, the groom was led to the bridal
chamber clad in a brocaded night-gown. This may have occasionally
taken place among the gentry," comments Mrs. Earle, "but I fancy
brocaded night-gowns were not common wear among New England country
folk."[411] Another "survival" was the sham "bride-stealing" which
was long kept up in the Connecticut valley. "The last bride
stolen in Hadley was Mrs. Job Marsh, in the year 1783;" and to
this day "in certain localities in Rhode Island, the young men
of the neighborhood invade the bridal chamber and pull the bride
downstairs, and even out-of-doors, thus forcing the husband to
follow to her rescue. If the room or house-door be locked against
this invasion, the rough visitors break the lock."[412] Furthermore,
numerous instances of "smock marriages" in New England are recorded.
Here the English superstition elsewhere mentioned[413] took the
special form that "if the bride were married 'in her shift on the
king's highway,' a creditor could follow her person no farther in
pursuit of his debt."[414]

  [Footnote 407: See GILMAN, _The Story of Boston_, 177, 178, for
  an account of the marriage ceremony in the time of the Mathers.]

  [Footnote 408: LODGE, _Short History_, 462.]

  [Footnote 409: _Mass. Col. Rec._, I. 214; _cf._ ATWATER, _Hist.
  of the Col. of New Haven_, 363; BAILEY, _Hist. Sketches of
  Andover_, 74, 75; WEEDEN, _Ecc. and Soc. Hist. of N. E._, I, 113.]

  [Footnote 410: SEWALL, _Diary_, in 5 _Mass. Hist. Coll._, VII,
  233.]

  [Footnote 411: EARLE, _Customs and Fashions_, 73, 74.]

  [Footnote 412: EARLE, _Customs and Fashions_, 77. "A poem, by
  Mrs. Emma Willard, entitled 'Bride-Stealing, a Tale of New
  England's Middle Ages,' is preserved in Everest's _Poets of
  Connecticut_. It gives a poetical account of one among many
  instances of 'stealing the bride' that occurred in the early
  days of the colony."--HOLLISTER, _Hist. of Conn._, I, 438, note.
  See also STILES, _Windsor_, 475; WEEDEN, _Ecc. and Soc. Hist.
  of N. E._, I, 295; and HUNTINGTON, _Celebration of the 200th
  Anniversary of Hadley_ (Northampton, 1859), 43.]

  [Footnote 413: See above, chap. x, sec. ii, p. 441, note 3.]

  [Footnote 414: EARLE, _Customs and Fashions_, 77-79, where
  several instances are discussed. See also PRIME, _Along New
  England Roads_; WEEDEN, _Ecc. and Soc. Hist. of N. E._, II, 538.]

In the eighteenth century weddings were accompanied by much revelry
and extravagance. Gloves, rings, and scarves, as at funerals, were
given away in such profusion as to call for legislation to check
the abuse.[415] Unstinted feasting and drinking were the order of
the day. "Sack-posset" appears to have been the favorite wedding
beverage.[416] "All the friends were entertained at the bride's
home with a collation or supper, and afterward a dance; while in the
country they were the most important social events. The banns were
proclaimed in church, and all the neighbors were invited from the
pulpit to attend the ceremony. On the day of the wedding muskets
were fired, a procession was formed, and marched to the bride's
house, where the marriage took place; and then came a dinner, a
dance, and great merry-making. Usually these wedding feasts lasted
through the day and evening, but they were sometimes kept up for
two or three days. On one occasion at New London there was a great
wedding dance on the day after the marriage, when ninety-two
ladies and gentlemen assembled and proceeded to dance ninety-two
jigs, fifty-two contra-dances, forty-five minuets, and seventeen
hornpipes. This was probably an extreme case; but all over New
England weddings were great occasions, and were celebrated with much
pomp and rejoicing."[417]

  [Footnote 415: NOURSE, _Hist. of the Town of Harvard, Mass.,
  1732-1893_ (Harvard, 1894), 498, gives details as to marriage
  fees received and entered in his record by the local clergyman.
  At first John Seccomb usually had 5 shillings; later, about 1750,
  his fee became "one pound old tenor;" still later generally "a
  dollar," or "half a dollar," and once a "pistareen." From 1760
  Rev. Joseph Wheely usually records "2£ 5s." During the Revolution
  the ordinary charge was six shillings legal money.]

  [Footnote 416: Sack-posset was compounded of milk, spirits,
  and other ingredients; and it was eaten with a spoon: SEWALL'S
  _Diary_, in 5 _Mass. Hist. Coll._, VI, 403, note. On the
  wonderful mixed drinks of the New England Puritans see MRS.
  EARLE'S delightful chapter on "Old Colonial Drinks and Drinkers,"
  _Customs and Fashions_, 163-83; and also BLISS, _Side Glimpses
  from the Colonial Meeting-House_, 12-28.]

  [Footnote 417: LODGE, _Short History_, 462, 463; _cf._ SANFORD,
  _Hist. of Conn._, 125. BAILEY, _Hist. Sketches of Andover_,
  74-78, gives interesting details as to weddings and marriage
  settlements; and BROOKS, _Olden Time Series: Days of the
  Spinning-Wheel_, 32, 33, reprints specimens of marriage notices
  taken from newspapers of the eighteenth century. On these
  festivities, advertisements, and settlements see also EARLE,
  _Customs and Fashions_, 60-77.]

Of the New England marriage celebration at the beginning of the
eighteenth century we have some vivid, though imperfect, sketches
from the inimitable pen of Judge Sewall. Next to funerals, weddings
seem to have been his chief recreation. The brief and naïve entries
in his _Diary_ reveal to us the mingled praying, psalm-singing, and
posset which enlivened those festive occasions. Thus on October 22,
1713, he writes: "I go to Salem.... See Mr. Noyes marry Mr. Aaron
Porter and Mrs. Susan Sewall, at my Brother's. Was a pretty deal of
Company present.... Mr. Noyes made a Speech, said Love was the Sugar
to sweeten every condition in the married Relation. Pray'd once. Did
all very well. After the Sack-Posset, etc., Sung the 45th Psalm
from the 8th verse to the end, five staves. I set it to Windsor
Tune. I had a very good Turkey-Leather Psalm-Book which I look'd in
while Mr. Noyes Read: and then I gave it to the Bridegroom saying,
'I give you this Psalm-Book in order to your perpetuating this song:
and I would have you pray that it may be an Introduction to our
Singing with the Choir above.'"[418]

  [Footnote 418: SEWALL'S _Diary_, in 5 _Mass. Hist. Coll._, VI,
  403.]

Again in 1720 we find him solemnizing the marriage of his daughter,
Mrs. Judith Sewall, with Mr. William Cooper. "I said to Mr. Simeon
Stoddard and his wife, Sir, Madam, The Great Honor you have
conferr'd on the Bridegroom and the Bride, by being present at this
Solemnity does very conveniently supercede any further enquiry after
your Consent. And the part I am desired to take in this Wedding,
renders the way of my giving my Consent very Compendious: There's no
maner of room left for that previous Question, Who giveth this Woman
to be married to this Man? Dear child, you give me your Hand for one
moment, and the Bridegroom forever. Spouse, You Accept and receive
this Woman now given you, etc. Mr. Sewall pray'd before the Wedding,
and Mr. Coleman after. Sung the 115. Psalm from the 9. verse to the
end, in the New Hall, St. David's which I set. Then we had our Cake
and Sack-posset."[419]

  [Footnote 419: _Ibid._, VII, 253.]


II. BANNS, CONSENT, AND REGISTRATION

It is a fact of great historical interest that in the New England
colonies the administration of matrimonial law was relegated to
the sphere of local self-government. The requirement of previous
publication, parental consent, and registration was everywhere
carried into effect by the officers of the town as a part of their
regular functions; and by-laws for their guidance were enacted in
town-meeting.

The first extant statute for the regulation of marriage is contained
in the revision of the Plymouth laws made in 1636, and repeated
under a slightly altered form in the revision of 1658. It is a model
of brevity and precision; and it marks an epoch in the history of
English jurisprudence, attempting, as it does in few words, a remedy
for many of the evils which continued for two centuries to vex the
mother-country. No one "under the covert of parents" is allowed to
marry without their approbation. But in case such approval "cannot
be had then it shall be with the consent of the Gove[~r] or some
assistant to whom the persons are knowne whose care it shall be to
see the marriage be fitt before it be allowed by him." After the
consent of parent or magistrate has thus been obtained, the marriage
is to be published in "meeting" three several times before it is
solemnized. Or, if there is no meeting, then fifteen days' notice by
posting in the usual public place shall be sufficient; provided the
"writing be vnder some magistrats hand or by his order."[420]

  [Footnote 420: _Plym. Col. Rec._, XI, 13, 190; _cf._ PALFREY,
  _Hist. of New England_, II, 20; and BRIGHAM, _Plym. Col. Laws_,
  44, 272.]

The Old Colony, likewise, made careful provision for registration.
By an act of 1646 it is declared the duty of the town clerk to
keep a register of the "day and yeare of the marriage, birth, and
buriall of euery man, woman, and child" within his township. He is
to have "thripence apece for each particular person soe registered."
The persons marrying are themselves required, within one month,
to report their marriage to him under penalty of three shillings
for neglect--one-half to the Colony and the other half to the
register "upon his complaint." The clerk must also submit annually
to the general court at its March meeting a written report of all
registrations made by him during the year. By this act, moreover,
the publication of banns was devolved upon him.[421]

  [Footnote 421: _Plym. Col. Rec._, XI, 189,190; _cf._ _ibid._, 52,
  53. Records of births, deaths, and marriages are printed _ibid._,
  VIII. The record of marriages was sometimes included in the
  proceedings of the general court: _ibid._, I.]

The laws of the other colonies differed only in details from those
of Plymouth. In Massachusetts the first order of the general court
on the subject was passed in 1639. The intention is to be thrice
published, not at divine service on the sabbath, it may be noted,
but in town-meeting or at "publike lecture" in "both the townes
where the parties, or either of them, do ordinarily reside." If no
public lecture is held in the town, then fourteen days' notice may
be given in writing on "some poast standing in publike viewe" and
used solely for this purpose.[422] The "poast" is to be provided
by the town under penalty of ten shillings for default.[423] Later
it became customary for the town clerk or his deputy to publish
the banns on Sunday, "after the blessing to the evening exercise
was pronounced;" and so in 1696-97 we find the town-meeting of
Charlestown ordering that "publishments should be made 'on Lecture
days or any other public times, and not restrained to Sabbath
Days only.'"[424] Sometimes on petition the legislature granted
to individuals special permission to marry.[425] Originally the
registration of births, deaths, and marriages devolved upon the town
clerk; but it seems to have been neglected by him. For in 1642 the
general court laid this duty upon the clerk of the writs in each
town, under penalty for default, requiring him to make annual return
of all names registered to the recorder of the county court.[426]
A similar report to the same officer is to be submitted each year
by all magistrates or persons appointed to solemnize marriages; and
the "new married man" shall likewise, within one month, bring in to
the clerk of the writs a certificate of his marriage.[427] Under the
Province laws the duties of recorder were again performed by the
clerk of the township; and under severe penalty persons might not
be joined in marriage without presenting a proper certificate of
publication and satisfactory evidence of parental consent.[428]

  [Footnote 422: In the edition of the laws, 1660, notice is to be
  placed "upon some post of their Meeting-house door": WHITMORE,
  _Col. Laws of Mass._ (1660-72), 51, 52: _cf._ _ibid._ (1672-86),
  101.]

  [Footnote 423: _Mass. Col. Rec._, I, 275; WHITMORE, _Col. Laws of
  Mass._ (1660-72), 51, 52; _ibid._ (1672-86), 101.

  The meeting-house on Sunday or lecture-day was a general
  clearing-house for news and gossip; and not the least inviting
  topics were supplied by the marriage notices. "There they read,
  as from an old newspaper, of an intention of marriage between
  persons known to everybody; and although the town clerk had
  stood up in the congregation and screamed it at the top of his
  voice, it was an endless subject of comment, especially if the
  woman had as publicly renounced the intention--as women sometimes
  did."--BLISS, _Colonial Times on Buzzard's Bay_, 77, 78.]

  [Footnote 424: EDES, in _Mem. Hist. Bost._, II, 315, and n. 2.]

  [Footnote 425: For instance, on May 22, 1651, such a petition
  from Mary Longe was allowed, provided "she be published according
  to law": _Mass. Col. Rec._, III, 232. Sept. 7, 1643, "Jacob
  Sheath & Margaret Webbe are permitted to joyne in marriage,
  though but twice published": _ibid._, II, 46. May 30, 1644,
  "without further publishment," Robert Parke "hath libertye to
  proceed in marriage with Alice Tompson": _ibid._, III, 3.]

  [Footnote 426: _Mass. Col. Rec._, II, 15; IV, Part I, 290;
  _cf._ _ibid._, I, 275, 276; and WHITMORE, _Col. Laws of Mass._
  (1660-72), 188; _ibid._ (1672-86), 130. But town clerks continued
  to act: _Salem Town Rec._, 148. The office of "Clark of the
  writts" seems to have been created in 1641, primarily to issue
  summons and attachments: _Mass. Col. Rec._, I, 344, 345. See also
  "Province Laws of New Hampshire," in _Coll. of New Hamp. Hist.
  Soc._, VIII, 31. Originally clerks of the writs were appointed
  by the general court; but later it was ordered that they should
  be licensed by the shire court or court of assistants. Those
  presented for license were first nominated in town-meeting:
  _Mass. Col. Rec._, II, 188; _Dorchester Town Rec._, 116; _Salem
  Town Rec._, 148, 195; _Boston Town Rec._ (1660-1701), 100, 103,
  130, 197. _Cf._ HOWARD, _Local Const. Hist._, I, 90, 91, 331.]

  [Footnote 427: WHITMORE, _Col. Laws of Mass._ (1660-72), 188;
  _ibid._ (1672-86), 130; _Mass. Col. Rec._, II, 59.]

  [Footnote 428: See the acts of 1692 and 1696: _Acts and
  Resolves_, I, 61, 209, 210. By the former statute ministers and
  justices are required to make a quarterly report of marriages
  solemnized by them to the clerk of the sessions of the peace. The
  act of 1716, referred to in SEWALL'S _Diary_, provides that the
  town clerk shall send in to the same officer an annual transcript
  of marriages recorded by him. "The volume of such returns for
  Suffolk County has very recently (written 1882) been transferred
  to the custody of the city registrar of Boston."--SEWALL'S
  _Diary_, in 5 _Mass. Hist. Coll._, VII, 112, and the note by the
  editors.]

Previous to 1692, of course, the legal history of New Hampshire is
in the main identical with that of Massachusetts.[429] But in the
pioneer stage the township was sufficient unto itself. "Dover and
Portsmouth, for nearly twenty years, had no central authority.[430]
They had no ministry in any form, nor any magistrates, except
such as might be created by any mining hamlet in an unorganized
territory, or afterward as the result of forming themselves into
societies. This, however, did not prevent people either from
marrying or dying. The result was that marriage in New Hampshire
has borne from the outset not only the character of a civil
contract, but the impress of our township system."[431] After the
establishment of the royal province the contract might be solemnized
by "virtue either of publishment, or of a licence from the Governor.
The granting of these licences was accounted a part of the royal
prerogative;"[432] and it was complained of as leading to abuse.[433]

  [Footnote 429: Intentions of marriage were to be published three
  times, or else on fourteen days' written notice: "General Lawes
  and Liberties of New Hamp.," _Coll. New Hamp. Hist. Soc._, VIII,
  23. See also the Cutt Code, _Provincial Papers_, I, 396, 397.]

  [Footnote 430: DOYLE, _English Colonies_, II, 201 ff.; LODGE,
  _Short Hist._, 397 ff.; HILDRETH, _Hist. of U. S._, I, 200;
  BANCROFT, _Hist. of U. S._, I, 217, 218, 262.]

  [Footnote 431: SHIRLEY, "Early Jurisprudence of New Hampshire,"
  _Procds. New Hamp. Hist. Soc._ (1876-84), 309.]

  [Footnote 432: BELKNAP, _Hist. of New Hampshire_, III, 211.]

  [Footnote 433: _Provincial Papers_, IV, 832 (1737).]

The statutes of Connecticut contain a curious provision, which
will receive further notice hereafter. Distinction is made between
the "contract" and the "covenant." Eight days' public notice of
the proposed engagement must be given; and after the contract the
betrothed pair must "forbeare" for a second period of eight days
before joining in the covenant.[434] By the code of 1673 persons
are not to be joined in wedlock "before the intention ... hath been
sufficiently published at some publick Lecture or Town meeting in
the Towns where the parties or either of them do ordinarily reside,
or be set up in Writing ... upon some post of their Meeting House
Door in publick view, there to stand so as it may be read eight days
before such marriage."[435] In general, the marriage laws of both
Connecticut[436] and New Haven[437] on the topic considered are
plainly modeled upon those of Massachusetts, and so need not here
receive further analysis.

  [Footnote 434: _Conn. Col. Rec._, I, 47, 48 (1640), 540;
  TRUMBULL, _True Blue Laws_, 106. Compare _The Code of 1650_
  (Hartford, 1836), 67, 68.]

  [Footnote 435: _The Book of General Laws of 1673_ (Hartford,
  1865), 46. The _Acts and Laws_ (New London, 1715), 75, require
  three publications or eight days' posting; while by the _Acts and
  Laws_ (New Haven, 1769), 144-47, intentions are to be announced
  only eight days before the celebration "in some public Meeting
  or Congregation on the Lord's Day, or on some public Fast,
  Thanksgiving, or Lecture Day, in the Town, Parish, or Society
  where the Parties or either of them do ordinarily reside," or
  else posted eight days, as before.]

  [Footnote 436: For the law of registration see _Conn. Col. Rec._,
  I, 48, 105, 106, 551; TRUMBULL, _op. cit._, 123.]

  [Footnote 437: _New Haven Col. Rec._, II, 599, 600, 607;
  TRUMBULL, _op. cit._, 241, 242, 255; ATWATER, _Hist. of New Haven
  Colony_, 363.]

Some interesting details may be gleaned from the matrimonial
legislation of Rhode Island. The code of 1647 requires the
publication of banns at two town-meetings, confirmation before the
head officer, and registration in the town clerk's book; otherwise
the marriage is void. It is further enacted that the "man that goes
contrarie to this present Ordinance ... shall forfeit five pounds
to the parents of the Maid, and be bound to his good behaviour; and
all the accessories shall forfeit five pounds a man, halfe ... to
the grieved parents and the other halfe to the Town."[438] Thus was
established at an early day, says Arnold, a system of registration
"such as recent legislation has attempted to revive."[439] In 1656
it was permitted either to publish marriages at town-meeting, or
"on a traininge day at y^e head of y^e Companie,"[440] or by a
"Writinge under y^e Magistrates hands fixed upon some noted place
in y^e Towne."[441] If "the banns were forbidden, the case was
to be heard by two magistrates; should they allow it, the parties
might marry; but if not, the general Court of trials were to
decide."[442] A later version of the law of 1647, of uncertain
date, is somewhat more detailed. The "man y^t hath A respect to a
maid & doth desi[re] to Obtaine her in Marriage ... shall first
acquaint her Parents thereof & upon their consenting thereto he
shall have Baines of matrimony set up in a Publick Place in y^e Town
or be Published two sever^{ll} times In A Public Assembly In the
Town & then remaine from After y^e first Publication Tenn Days."
Afterward, "before one of the Gener^{ll} officers" the celebration
may take place according to "y^e usuwal Custome of this place &
then a Certificate Shall be given by y^e Officer y^t Ioynes them
togeather in Marriage to y^e party So married who shall Carry it
to the Clarke of y^e Town where y^e Marriage was Solemnized &
have it Placed upon Record." For violation of the act the same
penalties are imposed on the principals and accessories as in 1647;
and the children "y^t any shall have w^{th}out this due & orderly
Course of Law ... shall be looked at not to be Legitimate."[443]
It appears that the execution of the laws was sadly neglected, and
so by an act of 1698 all marriages thus far solemnized, but not
duly registered, are declared valid. Persons married in future are
ordered within ten days to make return to the town clerk; while the
latter is required to submit annually to the head officer of the
town or to the chief justice of the peace a report of all births,
marriages, and deaths by him recorded.[444] Three years later a more
stringent statute appears. Persons from another colony or township
must present to the officer performing the ceremony a magistrate's
certificate of proper publication and qualification.[445] "Fine
and suspension from office were the penalties for any violation of
this act by a magistrate, and fine, imprisonment, or whipping, is
the punishments for the principals who disregard it."[446] After
various changes[447] the law of the provincial era reached its
full development in the code of 1767. A dual system of banns and
lay publication is provided. If application be made to a "settled
and ordained" minister of any denomination, he shall "openly and
by public speaking" proclaim the banns on three several Sundays,
holidays, or days of public worship "in the Meeting in the Town,
where the Parties respectively belong." If lay publication be
preferred, the assistant, warden, or justice, under his hand and
seal, is required to post a notice in some public place in each
of the towns where the parties dwell fifteen days before the
wedding.[448] A method of "under-writing" in case of objection is
prescribed. With leave of any assistant, justice, or warden, the
person opposing the marriage is to make the objection "in writing
under his or her Hand, therein assigning the Impediment, and affix
the same under the Publication;" but in case of oral banns the
written objection, in the presence of two witnesses, is to be
delivered to the minister or elder who proclaimed the banns. The
person forbidding the marriage must enter into recognizance with two
good sureties to appear at the next court of general sessions of
the peace and there "make good and prove" his allegations, or, in
default, pay to the persons to be wedded "all such Damages as they
shall sustain by Means of staying their Marriage." A certificate
of publication must be produced; two credible witnesses to the
ceremony are required; the person conducting the celebration must
give a certificate[449] thereof to the newly wedded pair; and he is
entitled to a fee of three shillings. Only fines are imposed for
violation of the act by the solemnizer or by the parties. Neither by
this law nor apparently by any statute subsequent to the act of 1663
is a contract declared void for non-observance of legal forms.[450]

  [Footnote 438: _R. I. Col. Rec._, I, 187; STAPLES, _First
  Proceedings_, 47, 48.]

  [Footnote 439: ARNOLD, _Hist. of Rhode Island_, I, 208.]

  [Footnote 440: Publication on training day seems to have been
  customary elsewhere in New England, doubtless that day being one
  of the "public times" referred to in the Massachusetts laws.]

  [Footnote 441: This practice may be illustrated by the following
  anecdote concerning the marriage of Ruth Wilkinson and William
  Hopkins at Providence, related by MR. C. C. BEAMAN in _Hist.
  Coll. Essex Inst._, II, 116: "The lovers could not muster courage
  enough to speak to the 'awful Justice,' for Mr. Wilkinson
  (Ruth's father) held that office so dignified in former days.
  In the house or office it was the custom to post up 'Intentions
  of Marriage.' The timid lovers, who had often looked with an
  envious or emulous eye upon such important steps preliminary to
  a 'consumation devoutly to be wished,' wrote a notice of their
  'intentions,' and placing it unobserved upon the table of the
  'Justice,' watched to see how it would be regarded. 'Squire
  Wilkinson, as they saw by a peep through the door, took up the
  paper, read it, and deliberately posted it up in the proper
  location. There were some blushes on the cheeks of Ruth that day,
  probably, but the desired approbation thus ingeniously obtained
  soon led on to marriage."]

  [Footnote 442: ARNOLD, _Hist. of R. I._, I, 260; _R. I. Col.
  Rec._, I, 330.]

  [Footnote 443: RIDER'S _Laws and Acts_ (1705), 12.]

  [Footnote 444: _R. I. Col. Rec._, III, 362; also in RIDER'S _Laws
  and Acts_ (1705), 44.]

  [Footnote 445: _R. I. Col. Rec._, III, 436; _cf._ _ibid._, IV,
  395, 396; RIDER, _op. cit._, 50.]

  [Footnote 446: ARNOLD, _Hist. of R. I._, II, 3; _R. I. Col.
  Rec._, III, 436, 437. By this act fourteen days' notice is
  required of those living in the jurisdiction.]

  [Footnote 447: Compare RIDER'S _Charter and Laws_ (1719), 12,
  13, 47, 48; _Acts and Laws_ (1745), 30, 31, 176, 177 (1733),
  100 (registration act of 1727); and RIDER'S _Supp. Pages to the
  Digest of 1730_, 258, 259 (act of 1733).]

  [Footnote 448: The prescribed notice is in the following form:

  "Know all Men by these Presents, that A. B. of ---- and C. D.
  of ---- have declared unto me their Intention of Marriage: I do
  therefore hereby make public the said Intention. If any Person
  knows any just Cause or Impediment why these Two Persons shall
  not be joined together in Marriage, they may declare the same
  as the Law directs. Given under my Hand and Seal at ---- this
  ---- Day of ---- _Anno Domini_ ----."--_Acts and Laws_ (Newport
  1767,), 172, 173.]

  [Footnote 449: The marriage certificate is in the following form:

  "I Hereby certify, That A. B. of ---- Son of ---- and C. D. of
  ---- Daughter of ---- were lawfully joined together in Marriage
  on the ---- Day of ---- Anno Domini ---- by me the Subscriber."]

  [Footnote 450: _Acts and Laws_ (Newport, 1767), 172-75.]

In conclusion it may be noted that generally throughout New England
neglect of the prescribed forms did not invalidate marriage,
though the offender against the law might be punished.[451] It is
historically probable, where words of nullity were not contained
in the statute, that the irregular contract by simple present
agreement, without intervention of a minister or magistrate,
was valid. But this is a disputed point which will hereafter be
considered in connection with the history of common-law marriage in
the United States.[452]

  [Footnote 451: See the case of Usher _v._ Troop (Throop),
  1724-29, in _MSS. Records of the Superior Court of Judicature_
  (Mass.), 1725-30, folio 236. In 1724 John Usher, of Bristol, a
  minister of the Church of England, convicted in the inferior
  court of common pleas of marrying a couple without certificate
  of the town clerk, was fined 50 pounds and "forever thereafter
  disabled to Joyn Persons in Marriage." On appeal it was found:
  "If the Constitutions and Canons Ecclesiastical of the Church of
  England are sufficient to support the Appellant here, in Joyning
  Persons together in Marriage without such certificate.... Then
  the Jury say the Applt is not Guilty; otherwise they say he is
  Guilty." The appeal was finally dismissed (1729) on default of
  the "appellee."]

  [Footnote 452: See chap. xviii, i.]


III. COURTSHIP, PROPOSALS, AND GOVERNMENT OF SINGLE PERSONS

It may be an exaggeration to say that the Mosaic code was the
_corpus juris_ of the Puritan.[453] But it is certain that the
early private law of New England was profoundly influenced by it.
The family in many respects took on a patriarchal character. The
sway of the house-father, though in the main just, became in theory
despotic. Even the conception of marriage as a civil contract gained
support from the Jewish law.[454] Our ancestors loved to cite the
book of Ruth and other scriptural texts in its favor; and their
view of the proper relations of husband and wife, those of parent
and child, or those of man and woman before marriage, was derived
directly from the biblical ordinances.[455]

  [Footnote 453: "Il y avait même un tel mélange de la religion à
  toutes les circonstances de la vie civile, que la législation,
  en certaines matières, en référait à la Bible qui était,
  pour ainsi dire, le _corpus juris_ des émigrants dans la
  Nouvelle-Angleterre. La famille, où ils avaient puisé le
  sentiment religieux, était forte parce qu'elle était unie; et le
  père, qui ressemblait en quelque sorte au patriarche d'autrefois,
  avait une autorité incontestée qu'on aimait, car elle était
  composée de bienveillance et de justice."--CARLIER, _Le mariage
  aux États-Unis_, 7, 8.]

  [Footnote 454: "Between these two extreme views--that of marriage
  as merely a civil contract and marriage as a sacrament--stands
  that of the Jewish law. The act of concluding marriage is
  there certainly also considered as a contract, which requires
  the consent of both parties and the performance of certain
  formalities, similar to other contracts, and which, under
  certain circumstances, can be dissolved. But, inasmuch as
  marriage concerns a relation which is based on morality and
  implies the most sacred duties, it is more than a mere civil
  contract."--MIELZINER, _The Jewish Law of Marriage and Divorce_,
  25, 26. But "the presence of a rabbi or minister is, according to
  the Talmudic Law, not required at the betrothal or the nuptials.
  The prescribed benedictions were pronounced either by the
  bridegroom or by any of the friends present. Such was also the
  Jewish custom during the Middle Ages."--_Ibid._, 84. _Cf._ AMRAM,
  _The Jewish Law of Divorce_, 39.]

  [Footnote 455: See SHIRLEY'S comments on the Cutt Code, "Early
  Jurisprudence of New Hampshire," _Procds. New Hamp. Hist. Soc._
  (1876-84), 273 ff.]

Thus "old bachelors," though rare in early New England, were
looked upon with disfavor. They were regarded almost as "suspected
criminals."[456] Connecticut "in 1636 would not allow any young
unmarried man to keep house."[457] A special order of the town of
Windsor was necessary, in 1682, to permit "Isaac Sheldon and Samuel
Rockwell to keep house together, 'so they carry themselves soberly
and do not entertain idle persons to the evil expense of time by
day or night.'"[458] Hartford taxed "lone-men" twenty shillings
a week "for the selfish luxury of solitary living."[459] Even in
the eighteenth century a general statute of Connecticut, under the
same penalty of twenty shillings a week, forbade any "house-keeper"
or "master of a family," without "allowance of the selectmen," to
give "entertainment or habitation" to a single person; and "such
Bourders, Sojourners, and Young persons" are required to "attend
to the Worship of God" in the families where they live and "to be
subject to the domestick Government of the same," or else forfeit
five shillings for every breach of the law.[460] In Rhode Island in
one instance "single persons of three months' residence paid five
shillings, while the 'rate of faculties and personal abilities'
was left at the discretion of the assessors."[461] According to a
New Haven law, in order to "suppress inconvenience" and disorders
inconsistent with the "mind of God in the fifth commandment,"
single persons, not in service or dwelling with their relatives,
are forbidden to diet or lodge alone; but they are required to
live in "licensed" families; and the "governors" of such families
are ordered to "observe the course, carriage, and behaviour, of
every such single person, whether he or she walk diligently in a
constant lawful imployment, attending both family duties and the
publick worship of God, and keeping good order day and night or
otherwise."[462]

  [Footnote 456: EARLE, _Customs and Fashions_, 36.]

  [Footnote 457: WEEDEN, _Ecc. and Soc. Hist. of N. E._, I, 230;
  _Conn. Col. Rec._, I, 8.]

  [Footnote 458: WEEDEN, _loc. cit._; STILES, _Windsor_, 54.]

  [Footnote 459: EARLE, _Customs and Fashions_, 37.]

  [Footnote 460: _Acts and Laws_ (1715), 60; see also _Conn. Col.
  Rec._, I, 538; TRUMBULL, _Blue Laws_, 104.]

  [Footnote 461: In 1682: WEEDEN, _op. cit._, I, 272; MUNRO,
  _Bristol, R. I._, 115.]

  [Footnote 462: _New Haven Col. Rec._, II, 608; TRUMBULL, _op.
  cit._, 258.]

Similar measures were adopted by the other colonies. The law of
Plymouth provides that "wheras great Inconvenience hath arisen
by single persons in this Collonie being for themselues and not
betakeing themselues to live in well Gou^rned famillies. It is
enacted by the Court that henceforth noe single person be suffered
to liue by himselfe or in any family but such as the Celectmen of
the Towne shall approue of; and if any person or persons shall
refuse or neglect to attend such order as shalbe giuen them by the
Celectmen; that such person or persons shalbe sumoned to the Court
to be proceeded with as the matter shall require."[463] "Whereas,"
runs a statute of Massachusetts, "there is a loose and sinful
custom of going or riding from town to town, ... oftimes men and
women together, upon pretence of going to lectures, but it appears
... merely to drink and revel in ordinaries and taverns, which is
in itself scandalous, and it is to be feared a notable means to
debauch our youth and hazard the chastity of those that are drawn
fourth thereunto: for prevention whereof," it is ordered "that all
single persons who merely for their pleasure take such journeys
... shall be reputed and accounted riotous and unsober persons,
and of ill behavior ... and shall be committed to prison for ten
days, or pay a fine of forty shillings for each offence," unless
they can "give bonds and sufficient sureties for good behavior in
twenty pounds."[464] Earlier it was decreed that the "Select men
of every Town, in the several precincts, and quarters where they
dwel, shal have a vigilant eye over their brethren and neighbours,
to see, first that none of them shall suffer so much barbarism in
any of their families, as not to endeavour to teach, by themselves
or others, their children & apprentices, so much learning, as may
enable them perfectly to read the english tongue & knowledg of
the Capital laws." Once a week children and apprentices are to be
catechised "in the grounds and principles of Religion," or at
least taught "some short orthodox catachism without book;" and they
are to be bred and brought up "in some honest Lawfull calling ...
profitable for themselves and the Common-wealth," if their parents
or masters "will not, or cannot train them up in learning to fitt
them for higher imployments." If parents and masters neglect their
duty, "whereby children & servants become rude, stubborn & unruly,
the sayd Select men with the help of two Magistrates or the next
County Court for that Shire, shall take such children or apprentices
from them," and until they come of age place them with persons
who will more strictly look after their government as the law
directs.[465] It was further enacted that every town shall order and
dispose to service or otherwise all "single persons and inmates"
within its borders, anyone feeling aggrieved thereby "to have
Liberty to appeale to the next County Court."[466]

  [Footnote 463: _Plym. Col. Rec._, XI, 223.]

  [Footnote 464: WHITMORE, _Colonial Laws of Mass._ (1672-86), 236,
  237.]

  [Footnote 465: _Ibid._ (1660-72), 136.]

  [Footnote 466: _Ibid._, 196; _ibid._ (1672-86), 148; _Mass. Col.
  Rec._, I, 186.]

These laws were not wholly a dead letter, as shown by the judicial
records. Thus on April 2, 1672, "Thomas Henshaw and Thomas Hall,
singlemen, being convicted of living from under family government
... , are ordered forthwith to submit themselves" to such government
"and to appear at the next court and bring with them certificate
thereof."[467] Nevertheless complaint is made that the town officers
are negligent. In 1668 the legislature directs the clerk of each
shire court to send "to the Constables of the Towns" within the
shire an order which they are "enjoyned faithfully to execute."
In the preamble it is recited that the neglect of the laws, "as
by sad experience from Court to Court abundantly appears, doth
occasion much sin and prophaness to increase among us, to the
dishonour of God, and the ensnaring of many Children and Servants,
by the dissolute lives and practices of such as do live from under
Family Government, and is a great discouragement to those Family
Governours, who conscientiously endeavour to bring up their Youth
in all Christian nurture, as the Laws of God and this Common wealth
doth require: These are therefore ... to require you to acquaint
the Select men of your Town, that the Court doth expect and will
require, that the said Laws be accordingly attended... : and you are
also required to take a list of the names of those young persons
... who do live from under Family Government, _viz._, do not serve
their Parents or Masters, as Children, Apprentices, hired Servants,
or Journey men ought to do, and usually did in our Native Country,
being subject to their commands and discipline."[468]

  [Footnote 467: _MSS. Records of the County Court for Middlesex_,
  III, 21.]

  [Footnote 468: WHITMORE, _op. cit._ (1660-72), 260; also _ibid._
  (1672-86), 149. There is a copy of one of the orders sent to the
  constables, differing slightly in capitalization and punctuation
  from the above, in the _MSS. Files of the County Court for
  Middlesex_, Dec., 1668.]

The manuscript files of Middlesex show that lists[469] of delinquent
single persons were taken by the constables as required; and that
some of them were summoned to appear before the court. Following is
the "answer" of Robert Williams, whose name is in the list given in
the margin:

"I do desire to liue under family gouernment and haue so desired
euer sinc my time was out with my master that I liued with and
all the time sinc commited myself into mens housis of good report
as neer as I could and do desir to walk inofenciue to all men and
furder I do hop that the men which I do work with will say as I do
if the honered court will desir it indeed I am not a saruant yet do
submit myself to family ordor I [will] do as a saruant what els the
honered court would haue me do mor I hope I shall be willing to
obay the finil power."[470]

  [Footnote 469: Here is the list from Marlboro:

  "Samuell Goodenow, from under family Gouernment, Liuing upon his
  oune ground.

  "Isaius Tailer and Will Tayler, Renters....

  "John Howard ... out of his time ... and Entending as fast as he
  can to settell himselfe: so to liue under family gouernment.

  "Rober Williams...."--_MSS. Files of the County Court for
  Middlesex_, Dec. 1668.]

  [Footnote 470: The selectmen of "Billerica" thus "strove to free
  themselves of all blame":

  "To the Hon^rd Court....

  "Whereas Aaron Jaquese, a single prson liuing in our towne, who
  hath for sometime liued from vnder family gouernment contrary
  to Court Order, being su[=m]uned by y^e Constable to appear
  before this Honored Court: These are to enforme ... that ...
  Aaron Jaquese hath bin much complained of by seuerall of our
  inhabitants, for negligence in his calling, hauing obserued him
  much giuen to idleness; also shifting from house to house, &
  vnfaithfull to his Couenants & promises with such prsons, with
  whom he has engaged service, vpon which Complaints the selectmen
  haue endeauered acording to law, to place him foorth in service,
  but ca[=n]ot effect it. Our Humble request to this Hon'd Court
  is, that they would please to despose of ... Aaron to service,
  or otherwise to order something concering the same as may be
  effectuall to render him to a more regular Course of life, as y^e
  wisdome of this Court shall judg best. So shall we pray &c.

  Your humble seruants."

  The _MSS. Files of the County Court for Middlesex_, April, 1669,
  also contain a certificate of the selectmen of Charlestown to
  the effect that John Swain had given satisfaction for orderly
  behavior.]

In a society where marriages were formed very early, girls often
wedding at sixteen or less, and where widows were wooed almost at
the bier of the dear departed,[471] it is perhaps not surprising if
"old maids" were ridiculed and sometimes despised. A woman became an
"antient maid" at twenty-five.[472] In an often quoted passage of
his _Life and Errors_, John Dunton thus praises a woman who remained
single, not from "necessity," but from "choice," and who knew that
time is a "dressing-room for Eternity, and therefore reserves most
of her hours for better uses than those of the Comb, the Toilet, and
the Glass":

"It is true an _old_ (or super-annuated) maid in Boston is thought
such a curse as nothing can exceed it (and look'd upon as a _dismal
spectacle_); yet she, by her good-nature, gravity, and strict
virtue, convinces all (so much as the fleering Beaus) that it is
not her necessity, but her choice, that keeps her a Virgin. She is
now about thirty years (the age which they call a _Thornback_), yet
she never disguises herself, and talks as little as she thinks of
Love. She never reads any Plays or Romances, goes to no Balls, or
Dancing-match, as they do who go (to such Fairs) in order to meet
with Chapmen. Her looks, her speech, her whole behaviour, are so
very chaste, that but once (at Governor's Island, where we went to
be merry at roasting a hog) going to kiss her, I thought she would
have blushed to death."[473]

  [Footnote 471: Thus Judge Sewall went home with Widow Denison
  from her husband's funeral and "prayed God to keep house" with
  her: _Diary_, in 5 _Mass. Hist. Coll._, VII, 179 (March 26,
  1718). _Cf._ also EARLE, _Customs and Fashions_, 45, 46.

  "The colonists married early and they married often. Widowers and
  widows hastened to join their fortunes and sorrows. The father
  and mother of Governor Winslow had been widow and widower seven
  and twelve weeks respectively, when they joined their families
  and themselves in mutual benefit, if not in mutual love. At a
  later day the impatient governor of New Hampshire married a lady
  but ten days widowed."--EARLE, _op. cit._, 86. On early marriages
  see WEEDEN, _Ecc. and Soc. Hist. of N. E._, II, 541, 739.]

  [Footnote 472: EARLE, _op. cit._, 38.]

  [Footnote 473: DUNTON'S _Life and Errors_ (Westminster, 1818),
  I, 102, referring to Boston in 1686. In DUNTON'S _Letters from
  New-England_ (ed. by WHITMORE for the Prince Society, Boston,
  1867), 99, where this passage appears in a modified form, the age
  of a "thornback" is reduced to twenty-six years. The paragraph is
  also quoted by WEEDEN, _op. cit._, I, 299, 300; and EARLE, _op.
  cit._, 38, 39.]

But bachelors and "thornbacks" were not the only people who caused
the lawmaker anxiety. He kept a sharp eye on married persons
living away from their mates. An act of the Massachusetts general
court, in 1647, after reciting that diverse married persons are
living in the jurisdiction, whose wives or husbands are in England
or elsewhere, and who are guilty of making love to women, of
attempting marriage or even attaining it, or are under "suspition
of uncleannes"--the vice which seems to have sorely vexed the good
people of those days--and all of whom are a great dishonor to God
and a reproof to religion, commonwealth, and church--orders that
every such person shall be incontinently sent back "by y^e first
oportunity of shiping," unless present on transient business or
to "make way" for the family to come over.[474] Such complaints
were by no means groundless and the courts were often called upon
to execute the law. Under the circumstances bigamy was easily
committed, though not always permanently concealed. On December 3,
1639, the pretended marriage of James Luxford was declared void;
"all that hee hath" was given to his victim; and he himself was
fined, set in the stocks, and ordered "sent away to England by the
first opportunity."[475] In 1644 the "marriage of John Richardson to
Elizabeth Frier was annulled upon proof that he had a former wife
living in England."[476] Henry Jackson--whose case seems to justify
the act of 1647--was presented in 1672-73 "for lying, in saying
he was single and attempting marriage with several," though since
confessing that he has a wife beyond the sea; "for living from under
family government; and for carrying a fire brand at night near a
hay stack;" on all of which counts, we are prepared to hear, he got
twenty stripes, had to pay costs, and was ordered away to "England
by the next ship."[477]

  [Footnote 474: _Mass. Col. Rec._, II, 211, 212; WHITMORE, _Col.
  Laws of Mass._ (1660-72), 172; _ibid._ (1672-86), 216.]

  [Footnote 475: _Mass. Col. Rec._, I, 283.]

  [Footnote 476: _Ibid._, II, 86.]

  [Footnote 477: _MSS. Records of the County Court of Suffolk_,
  113.]

More numerous are the cases of "living apart." For example in 1637
the general court decreed that Isaac Davies should be sent home to
his wife in England.[478] Three years later "Willi Wake" in like
manner was advised to seek his consort.[479] Edward Iron in 1651
"upon promise to take some effectual course to send for his wife now
in England" was "granted liberty to abide in the country until the
next return of ships." Should his attempt fail, then he was "ordered
to depart out of this jurisdiction by the next opportunity."[480]
For similar absence from his spouse James Underwood in 1654 was
fined at Salem.[481] In 1663 for the same offense Christopher Blake
was presented by the grand jury of Suffolk, although in his petition
he avers that for three years he had "been desirous of getting
his wife across but she refused to come;" and that he had never
"presented himself as a single man, but always openly manifested
the true state of his condition." Accordingly the general court
ordered the prosecution "stayed for a year."[482] In 1671 Paul Hall,
presented in the same county, "appeared and declared he was informed
his wife was dead." The court, being skeptical, commanded him to
"repair to the last place of her abode or bring in a certificate
of her death."[483] Delinquent wives were looked after with equal
vigilance. In 1668 the constable of Boston is ordered to summon
"before the county court two women and one man for living apart
from their spouses contrary to law."[484] A presentment of Sarah
Pickering failed in 1674 because she produced evidence that her
husband had renounced her.[485] Even when both partners were in the
jurisdiction the law was not less harshly administered. On June
17, 1672, for "disorderly living apart," Michael Smith and wife,
"inhabitants of Charlestoun" were "admonished and ordered to pay
costs."[486] The case of "Abr. Hagborne" in 1663 is more remarkable.
Although he had come to the colony twenty-two years before; had
lived contentedly with his wife for fourteen or fifteen years until
she "did depart" for England; had sent for her to return home and
provided for her transportation, "whereby the innocence of Living
Apart is on your peticoners part;" and "had no idea the law against
living apart would apply to the known settled inhabitants, brethren
and freemen whose wives unnaturally desert them;" yet the county
court "was pleased to require him to depart the Countrie & to
repayre vnto his wife." So he "humbly petitions" the general court
that he may not be compelled to return to England and that he may
"not be put vpon [religious] temptacoñs or aboue his strength or
any kind of iniun[~cc]on [injunction] of going to Serue other Gods;"
but may be "allowed to continue his Abode here ... vnder the Shadow
of that happie Gouernment in Co[=m]onwealth and Churches ... those
few days of his pilgrimage that remayne." A gracious answer, it
is perhaps needless to add, was the meet reward of so just and so
skilful a prayer.[487]

  [Footnote 478: _Mass. Col. Rec._, I, 198.]

  [Footnote 479: _Ibid._, 311.]

  [Footnote 480: _MSS. Records of the County Court of Middlesex_,
  I, 18. Apparently Edward's attempts were a failure; for on Oct.
  4, 1653, he was "granted liberty to use what more effectual means
  he may or can to send for his wife from England": _ibid._, I, 32.]

  [Footnote 481: _Mass. Col. Rec._, III, 349, 350. But on petition,
  in order to present further testimony, the general court granted
  a respite.]

  [Footnote 482: _MSS. Early Court Files of Suffolk County_, No.
  531. This case is also partially reported in _Mass. Col. Rec._,
  IV, Part II, 84; and quoted in SHIRLEY, "Early Jurisprudence of
  New Hampshire," _Procds. New. Hamp. Hist. Soc._ (1876-84), 310.]

  [Footnote 483: _MSS. Records of the County Court of Suffolk_, 9.]

  [Footnote 484: _MSS. Early Court Files of Suffolk_, No. 867.]

  [Footnote 485: _MSS. Records of the County Court of Suffolk_,
  279.]

  [Footnote 486: _MSS. Records of the County Court of Middlesex_,
  III, 63.]

  [Footnote 487: _MSS. Early Court Files of Suffolk_, No. 527. For
  similar legislation see _New Haven Col. Rec._, II, 600; TRUMBULL,
  _Blue Laws_, 243.]

In like spirit single women and wives in the absence of their
husbands were forbidden to "lodge any inmate or sojourner," except
with the approval of the selectmen or other magistrates.[488] Of
course, these were pioneer days. The peace of the settlements was
probably disturbed by loose and riotous adventurers, outcasts from
the society of the Old World. Doubtless these measures, aside from
religious motives, were in some degree useful police ordinances; as
were also those prohibiting the husband from beating his wife, and
the wife from striking her spouse.[489]

  [Footnote 488: _Mass. Col. Rec._, V, 4; SHIRLEY, _Early
  Jurisprudence of New Hamp._, 310, 311. The harboring of
  "strangers"--and "stranger" might be a father, daughter, or son
  from a neighboring town--gave the good people of the colonies a
  great deal of trouble. See the illustrations in WEEDEN, _Ecc. and
  Soc. Hist. of N. E._, I, 272; and HOWARD, _Local Const. Hist._,
  I, 87, 88, where the town records are cited.]

  [Footnote 489: WHITMORE, _Col. Laws of Mass._ (1660-72), 51, 171;
  _ibid._ (1672-86), 101. _Cf. Mass. Col. Rec._, III, 212 (1650).
  In 1638 John Emerson, of Scituate, was tried before the general
  court for abusing his wife: _ibid._, I, 232; the same year for
  beating his wife, Henry Seawall was sent for examination before
  the court at Ipswich: _ibid._, 233; and in 1663 Ensigne John
  Williams, of Barnstable, was fined by the Plymouth court for
  slandering his wife: GOODWIN, _Pilgrim Republic_, 596.

  It would seem that the husband, too, really needed some legal
  protection. The early court records disclose the sad fact that
  husband-beating was painfully frequent in colonial times. Thus
  in Plymouth jurisdiction Joan, the wife of Obadiah Miller of
  Taunton, was presented "for beating and reviling her husband, and
  egging her children to healp her, bidding them knock him in the
  head, and wishing his victials might [~c]oake him."--_Plym. Col.
  Rec._, III, 75.

  The bad practice was not unknown among the "good wives" of
  Salem. For example, in 1637, at the fifth quarter court, it
  was decreed: "Whereas Dorothy the wyfe of John Talbie hath not
  only broak that peace & loue, w^{ch} ought to haue beene both
  betwixt them, but also hath violentlie broke the king's peace, by
  frequent Laying hands vpon hir husband to the danger of his Life,
  & Condemned Authority, not co[=m]ing before them vpon command,
  It is therefore ordered that for hir misdemeaner passed & for
  p^rvention of future evills that are feared wilbe co[=m]itted
  by hir if shee be Lefte att hir Libertie. That she shall be
  bound & chained to some post where shee shall be restrained of
  hir libertye to goe abroad or comminge to hir husband till shee
  manefest some change of hir course.... Only it is pmitted that
  shee shall come to the place of gods worshipp, to enjoy his
  ordenances." Later "Dorothy" was punished again for a similar
  offense: _Hist. Coll. Essex Inst._, VII, 129, 187. _Cf._ HOWARD,
  _Local Const. Hist._, I, 326, 327. For further illustrations see
  WEEDEN, _Ecc. and Soc. Hist, of N. E._, I, 294.]

But the colonists went farther and prescribed the death penalty
for disobedience to parents, following the precepts of the Mosaic
law.[490] Furthermore, they attempted to regulate courtship by
statute, in a way which, however wholesome, would scarcely be
relished by the young men and maidens of our generation. Thus the
general court of Plymouth prohibits "any motion of marriage to any
man's daughter or mayde servant" without having "first obtayned
leaue" of the parents or master under penalty of fine and corporal
punishment in the discretion of the bench. But appeal is allowed
to the magistrate, when the master "through any sinister end or
couetous desire," witholds his consent.[491] The courts were not
wholly without business growing out of this legislation, as appears
from illustrations collected by Mr. Goodwin. "In 1652 Jonathan
Coventry was indicted for 'making a motion of marriage' to Katherine
Bradbury, servant to Mr. Bourne, of Marshfield, without the latter's
consent.[492] Coventry left the Colony before arrest.... In 1648
Thomas Dunham was ordered to abstain from visiting or sending to
Martha Knott, of Sandwich, from October 4 till the first Tuesday
of December, that the Court may better learn of his pretended
contract, unless the Governor, on the clearing of things, give him
leave. A romantic case was that of Governor Thomas Prence against
Arthur Howland, Jr., nephew of the Pilgrim.[493] The tolerant course
of the elder Arthur Howland toward the Quakers had earned Prence's
hearty ill-will; and when, in 1660, he found that Arthur, Jr., had
wooed his daughter Elizabeth, he had the swain before the General
Court, where he was fined £5 for making love without her father's
permission. The couple remained constant, for in 1667 the irate
Governor once more brought up young Arthur, who was again fined £5
because he had 'disorderly and unrighteously endeavored to obtain
the affections of Mistress Elizabeth Prence,' and was put under bond
of £50 to 'refrain and desist.' But Prence, like Canute, was unable
to control the forces of Nature. This action was in July; but before
the next spring the imperious Governor seemed to have been forced
to capitulate, for Arthur and Elizabeth were united."[494] On the
other hand, the right of a lover to appeal to the magistrate, in
case his "motion" were hindered through "sinister end or couetous
desire," was occasionally of practical value. In 1646, for instance,
Richard Taylor complained to the general court of Plymouth that he
was prevented from marrying Ruth Wheildon by her father Gabriel;
but when before the court Gabriel yielded and promised no longer
to oppose the marriage.[495] The records show that parents might
be held accountable for "miscarriages" resulting from unreasonable
opposition.[496]

  [Footnote 490: WHITMORE, _Col. Laws of Mass._ (1660-72), 129;
  _New Haven Col. Rec._, II, 578, and TRUMBULL, _Blue Laws_, 201;
  _Conn. Col. Rec._, I, 515, and TRUMBULL, _op. cit._, 69; _New
  Hamp. Hist. Coll._, VIII, 12; SHIRLEY, _Early Jurisprudence of N.
  H._, 311; _Andros Tracts_, III, 13. _Cf._ a similar law for early
  New York: _Duke of Yorke's Laws_, 15.]

  [Footnote 491: _Plym. Col. Rec._, XI, 29, 108, 190, 191.]

  [Footnote 492: For the case see _ibid._, III, 5: "Wee psent
  Jonathan Couentry ... for makeing mocion of marriage vnto
  Katheren Bradberey, servant vnto M^r Burne, of the same town,
  without her master's consent, contrary to Court orders."]

  [Footnote 493: See _ibid._, IV (1666/7), 140, 158, 159.]

  [Footnote 494: GOODWIN, _Pilgrim Republic_, 598; _cf._ PALFREY,
  _Hist. of New England_, II, 21.]

  [Footnote 495: GOODWIN, _op. cit._, 597.]

  [Footnote 496: Dec. 16, 1679. At a court held at Charlestown,
  George Parminter and his wife convicted of fornication before
  marriage, court respited their sentence till next court, and
  ordered that their parents be summoned then to appear to give
  answer why they denied them the consummation of their marriage
  for so many months after they were in order thereto: _MSS.
  Records of the County Court of Middlesex_, III, 316.]

To the close of the colonial era a law of Connecticut provided that
"if any Man shall directly or indirectly endeavour to draw away
the affections of any Maid ... , on pretence of Marriage, before he
hath obtained Liberty and Allowance" from her parent, governor, or
guardian, should there be any, "he shall forfeit the sum of _Five
Pounds_ to the Party grieved; double that amount for the second
offence; and for a third transgression suffer imprisonment, besides
paying the costs of prosecution."[497]

  [Footnote 497: _Acts and Laws of Conn._ (New Haven, 1769), 144.
  Substantially the same provision appears in the _Code of 1643_:
  TRUMBULL, _Blue Laws_, 106, 107; _Conn. Col. Rec._, I, 92; in
  _The Book of General Laws, 1673_ (Hartford, 1865), 46; and in
  _Acts and Laws_ (New London, 1715), 75.]

An elaborate statute of New Haven, for the regulation of proposals,
provides "that whosoever within this jurisdiction shall attempt,
or endeavor to inveagle, or draw the affections of any maide, or
maide-servant, whether daughter, kinswoman, or in other relation,
for himself, or for any other person, without the consent of father,
master, governor, or such other, who hath the present interest, or
charge, or (in absence of such) of the nearest magistrate, whether
it be by speech, writing, message, company-keeping, unnecessary
familiarity, disorderly night meetings, sinful dalliance, gifts, or
any other way, directly or indirectly, every such person (besides
all damages which the parent, governor, or person intrusted or
interested, may sustain by such unlawful proceedings) shall pay
to the plantation forty shillings for the first offence; and for
the second offence towards the same party four pounds; and for the
third offence he shal be further fined, imprisoned, or corporally
punished, as the plantation court, or court of magistrates
considering all circumstances, shal determine."[498]

  [Footnote 498: _New Haven Col. Rec._, II, 600; TRUMBULL, _op.
  cit._, 242. _Cf._ ATWATER, _Hist. of Col. of New Haven_, 362.]

The foregoing act was probably suggested by the Massachusetts law
of 1647, which is likewise here presented. It is declared that,
"whereas God hath committed the care and power into the hands of
parents for the disposing their Children in Marriage, so that it is
against rule, to seek to draw away the affections of young maidens
under pretence of purpose of marriage, before their parents have
given way and allowance in that respect; and whereas it is common
practise in divers places for young men irregularly and disorderly
to watch all advantages for their evil purposes, to insinuate
into the affections of young Maidens by coming to them in places
and seasons unknown to their parents for such ends, whereby much
evil hath grown amongst us, to the dishonour of God and damage of
parties; for prevention whereof for time to come. It is further
Ordered, that whatsoever person from henceforth shall endeavour,
directly or indirectly, to draw away the affection of any mayd
in this jurisdiction, under pretence of marriage, before he hath
obtained liberty and allowance from her parents or Governors or
in absence of such of the nearest magistrate, he shall forfeit
for the first offence five pounds, for the second towards the
partie ten pounds, and be bound to forbeare any further attempt
and proceedings in that unlawful designe, without or against the
allowance aforesayd. And for the third offence upon information or
complaint by such parents or Governors to any Magistrate, giving
bond to prosecute the party, he shall be committed in prison, and
upon hearing and conviction by the next court, shal be adjudged to
continue in prison, untill the Court of Assistants shall see cause
to release him."[499]

  [Footnote 499: WHITMORE, _Col. Laws of Mass._ (1660-72), 172;
  _ibid._ (1672-86), 101; _Mass. Col. Rec._, II, 207. _Cf._
  FRIEDBERG, _Eheschliessung_, 477, note; NEWHALL, _Ye Great and
  General Court_, 349-65, giving interesting examples.]

The courts were not without employment under this statute. In 1658
Paul Wilson appeared before the county court of Middlesex, sitting
in Charlestown, "to answer the complaint of Deacon Upham for violent
soliciting his daughter against his will." Whereupon the tribunal
"admonished Wilson of his evil behavior towards the said Upham and
his daughter Priscilla, and ordered him to give bond of ten pounds
for his regular behavior towards the said parties." Accordingly
the culprit gave bond "yt he will no more frequent the company of
Priscilla Upham, nor by no means whether direct or indirect, make
any more addresses vnto her without her fathers leave first orderly
had & obteined."[500] For a similar offense, in 1672, the county
court of Suffolk fined Benjamin Scott five pounds.[501] Two years
later, before the same tribunal, Thomas Irons was presented "for
procuring Richard Barnum to publish a marriage" between himself
and Mary Arnold without her father's leave;[502] while the next
February, as we learn from the record, John Lorin stood "convict on
his own confession of making love to Mary Willis without her parents
consent and after being forwarned by them, £5."[503]

  [Footnote 500: _MSS. Records of the County Court for Middlesex_,
  I, 131.

  In 1662 Marmaduke Johnson, who by his own confession had a wife
  in England, was convicted of trying to steal the affections of
  the daughter of Samuel Green without his knowledge and consent;
  and he was ordered to join his spouse by the first oportunity:
  _ibid._, I, 206. The next year Johnson was "fined £20 unless he
  give security" so to depart, in the meantime being "committed
  until the order is performed": _ibid._, 249. It may be further
  noted that on April 7, 1674, a Marmaduke Johnson is spoken of as
  "late constable of Cambridge": _ibid._, III, 87.]

  [Footnote 501: _MSS. Records of the County Court of Suffolk_,
  106.]

  [Footnote 502: Irons was fined 20 shillings, and Barnum half that
  sum: _MSS. Records of the County Court of Suffolk_ (July 28,
  1674), 255, 256. On the same day "Edward Peggy being bound over
  for using indirect means 'by powders or other wayes unlawfull to
  Engage the affections or desires of women kinde to him' and for
  begetting a bastard child"--in particular for illegally "drawing
  away the affections of two girls"--was assessed 10 pounds and put
  under bonds for good behavior: _ibid._, 261.]

  [Footnote 503: _Ibid._ (Feb. 4, 1674-75), 301. The records of the
  court of assistants in _Mass. Col. Rec._ (Sept. 1, 1640), I, 299,
  300, contain a similar case.]

Although parents might be prosecuted for "unreasonably denying any
child timely or convenient marriage,"[504] it is evident that lovers
had to be very circumspect in old colonial days. In a community
where power to dispose of a son or daughter in wedlock was believed
to be the gift of heaven, it is not strange that "allowance" was
sometimes hard to gain. Praising the chaste reserve of the gentle
"old maid" of Boston whom he had learned to admire, John Dunton thus
expresses the dominant view: "I am sure this is most agreeable to
the _Virgin modesty_, which should make Marriage an act" rather of
"obedience" than "choice." "And they that think their Friends too
_slowpaced_ in the matter give certain proof that lust is the sole
motive."[505] Nor was the average New England house-father at all
likely to allow sentiment to get the better of prudence in seeking a
match for his child. He was more apt to be governed by a spirit of
cold calculation which never for an instant lost sight of the "main
chance." Judge Sewall, for example, can hardly be called "slowpaced"
in providing his daughters with wooers. He superintends the whole
"business" of love-making with never-flagging zeal. Poor, timid
daughter Betty is fairly worried into matrimony, perhaps as the only
sure way of escaping her father's nagging. What a procession of
"captains" and "persons of worth" he parades before the reluctant
girl before he succeeds in gaining his will! The first who "wished
to speak with her" is Captain Tuthill, who appears as a suitor when
she is but seventeen years of age. After the judge had made careful
and satisfactory inquiry as to the captain's estate--which he finds
valued at £600 or £700--and the young man "in good Business, and
like to be in better;"[506] and after having his daughter read to
him about the courtship of Adam and Eve "as a soothing and alluring
preparation for the thought of matrimony,"[507] the lover is invited
to call. Of this visit and its surprising result Sewall thus writes
in his _Diary_: "At night Capt. Tuthill comes to speak with Betty,
who hid her self all alone in the coach for several hours till he
was gon, so that we sought at several houses, till at last came
in of her self, and look'd very wild."[508] A number of others in
rapid succession have little better luck with the coy maiden. The
next fall, however, on returning from a journey to Rhode Island, the
judge finds his "family in health, only disturb'd at Betty's denying
Mr. Hirst." A month later he sadly records that he supposes even
this suitor has "taken his final leave."[509] Nevertheless two days
after, on October 26, 1699, he addresses Betty at "Brantry," where
she had gone on a visit, the following characteristic letter:

"Mr. Hirst waits upon you once more to see if you can bid him
welcome. It ought to be seriously considered, that your drawing back
from him after all that has passed between you, will be to your
Prejudice; and will tend to discourage persons of worth from making
their Court to you. And you had need well to consider whether you
are able to bear his final Leaving of you, howsoever it may seem
gratefull to you at present. When persons come toward us, we are apt
to look upon their Undesirable Circumstances mostly; and therefore
to shun them. But when persons retire from us for good and all, we
are in danger of looking only on that which is desirable in them to
our wofull Disquiet. Whereas 'tis the property of a good Balance
to turn where the most weight is, though there be some also in
the other Scale. I do not see but that the Match is well liked by
judicious persons, and such as are your Cordial Friends, and mine
also.

  [Footnote 504: Law of 1641: WHITMORE, _Col. Laws of Mass._
  (1660-72), 137.]

  [Footnote 505: DUNTON, _Life and Errors_, I, 103; _idem_,
  _Letters from New England_, 101, 102.]

  [Footnote 506: SEWALL'S _Diary_, in 5 _Mass. Hist. Coll._, V,
  490.]

  [Footnote 507: EARLE, _Customs and Fashions_, 57.]

  [Footnote 508: SEWALL'S _Diary_, in 5 _Mass. Hist. Coll._, V,
  491.]

  [Footnote 509: _Ibid._, 503.]

"Yet notwithstanding, if you find in yourself an i[=m]ovable,
incurable Aversion from him, and ca[=n]ot love, and honour, and obey
him, I shall say no more, nor give you any further trouble in this
matter. It had better be off than on. So praying God to pardon us,
and pity our Undeserving, and to direct and strengthen and settle
you in making a right Judgment, and giving a right Answer, I take
leave, who am, dear child, your loving father. Your mother remembers
to you."[510]

  [Footnote 510: SEWALL'S _Letter-Book_, in 6 _Mass. Hist. Coll._,
  I, 213.]

Either this letter had the desired influence or Betty was unable to
endure the "wofull disquiet" of a "final leaving;" for a year later
it stands written that "Mr. Grove Hirst and Elizabeth Sewall are
married by Mr. Cotton Mather."[511]

  [Footnote 511: SEWALL'S _Diary_, in 5 _Mass. Hist. Coll._, VI,
  24. In like spirit the judge manages the marriage of his daughter
  Mary with Sam Gerrish: SEWALL'S _Letter-Book_, in 6 _Mass. Hist.
  Coll._, I, 379; _Diary_, in 5 _Mass. Hist. Coll._, V, xxxviii;
  VI, 250, 251, 263. On these and other illustrations of New
  England courtship see EARLE, _Customs and Fashions_, 56 ff.]


IV. PRE-CONTRACTS, BUNDLING, AND SEXUAL IMMORALITY

The colonists were extremely anxious to restrain vice by
legislation. The whole field of private morals was brought under
the purview of the magistrate. Unchastity and sexual crimes,
especially, they were determined to prevent at all hazards; and,
in consequence, the early colonial and court records are far from
pleasant reading. Conjugal infidelity is especially abhorred by the
lawmaker. Originally, in all the New England colonies save Rhode
Island and Plymouth, death was the penalty prescribed for adultery
with a "married or espoused wife." In the New World the Puritan thus
actually realized what Luther, Hooper, and other Reformation Fathers
ardently desired as an ideal fulfilment of the Mosaic code.[512]
The capital law of Massachusetts, at any rate, was not a dead
letter, as is clearly shown by the records of the early period. The
only attempt to put in force the original act of 1631 was, indeed,
a failure. It appears that in 1637 two men and one woman were
convicted; but on the ground that the statute had been "made by the
court of assistants by allowance of the general court," and for fear
lest it had not been "sufficiently published," the extreme penalty
was not administered. Instead the culprits were whipped and then
banished on pain of death should they return.[513] The act of 1631
was, however, at once confirmed,[514] and it remained in force until
superseded by the "Body of Liberties," whose provision on this point
was not abrogated during the period of the colonial charter. Under
the law as thus constituted two persons were condemned and executed
in 1644.[515] Further, in his _Magnalia_ Cotton Mather mentions the
execution of an adulterer from Weymouth.[516] These are the only
cases of capital punishment for this offense yet discovered; but
a number of persons narrowly escaped it, where the evidence seems
sufficient to warrant the death penalty. Apparently the courts
shrank from pronouncing sentence according to the full rigor of the
law,[517] satisfying themselves with lesser punishments, such as
imprisonment, banishment,[518] or whipping.

  [Footnote 512: _Mass. Col. Rec._, I, 92 (1631); WHITMORE, _Col.
  Laws of Mass._ (1660-72), 55 ("Body of Liberties," 1641), 128;
  _ibid._ (1672-86), 15; _New Haven Col. Rec._, II, 577; TRUMBULL,
  _Blue Laws_, 200; _Conn. Col. Rec._, I, 77; TRUMBULL, _op. cit._,
  60; _New Hamp. Prov. Papers_, I, 385 (Cutt Code). Beginning with
  the "Body of Liberties," 1641, the capital law of Massachusetts
  cites Lev. 20:19; 18:20; Deut. 22:23, 24; and the laws of the
  other colonies are supported by the same or like passages of the
  Jewish Code.]

  [Footnote 513: The "elders" being appealed to promptly decided
  that the three persons then lying in prison should be put to
  death, "if the law had been sufficiently published." But for
  the reasons named in the text the general court thought it was
  "safest that these persons should be whipped and banished":
  WINTHROP, _Hist. of New England_, I, 309; _Mass. Col. Rec._, I,
  198, 202, 203, 225. Compare the excellent monograph of DAVIS,
  _The Law of Adultery and Ignominious Punishments_, 6-11, who
  gives the details regarding this case and the law of 1631; and
  calls attention to the English act of 1650, which classes incest
  and adultery among felonies, citing thereon PIKE, _Hist. of Crime
  in England_, II, 182; and BLACKSTONE, _Commentaries_, IV, 64.]

  [Footnote 514: March, 1637-38. "The law against adultery made
  by the Particular Court in October, 1631, is confirmed, that
  whosoever lieth with another man's wife, both shall be punished
  by death; and this is to be promulgated."--_Mass. Col. Rec._, I,
  225. This law was confirmed in 1640, the act of 1631 being then
  formally repealed: _ibid._, I, 301.]

  [Footnote 515: In 1643-44, at a quarter court held in Boston,
  "James Brittanie being found guilty of adultery with Mary
  Latham, he was condemned to death. Mary Latham being found
  guilty of adultery with James Brittanie, she was condemned to
  death."--_Record of the Court of Assistants of Mass. Bay Colony_,
  1641-44 (from the Barlow MS.) in WHITMORE'S _Bibliographical
  Sketch of the Laws of Mass._, xlii. According to WINTHROP, _Hist.
  of New England_, II, 157-59, these persons were executed.]

  [Footnote 516: DAVIS, _The Law of Adultery_, 15, 16.]

  [Footnote 517: Thus on Sept. 7, 1641, for adulterous practices
  a man was "censured to bee sent to the gallos w^{th} a roape
  about his neck, & to sit upon the lather an houre, the roapes end
  throwen over the gallos, so to returne to prison."--_Mass. Col.
  Rec._, I, 335; _cf._ DAVIS, _op. cit._, 15. In 1645 Henry Dawson
  came near suffering the extreme penalty: WINTHROP, _op. cit._,
  II, 305. Three years later the "Co^rte acquit Elisa : Pennion of
  the capitall offence charged upon her by 2 sev^rall inditements
  for adultery," but sentence her to be "whiped" in Boston and
  again "at Linn w^{th}in one month" (1648): _Mass. Col. Rec._, II,
  243. Still more striking are the cases of Elizabeth Hudson and
  Bethia Bulloine (Bullen), "married women and sisters," carried
  from the county court at Boston before the assistants in 1667.
  On a special verdict by the jury the latter tribunal sentenced
  each "to be by the Marshall Generall ... on y^e next lecture day
  presently after the lecture carried to the Gallowes & there by
  y^e Executioner set on the ladder & with a Roape about her neck
  to stand on the Gallowes an half houre & then brought ... to the
  market place & be seriously whipt w^{th} tenn stripes or pay the
  Sume of tenn pounds," standing committed till the sentence be
  performed: _MSS. Early Court Files of Suffolk_ (Sept. 11, 1667),
  No. 821. Whether this sentence was for adultery as charged or for
  "lascivious carriage" we are not informed. In NOBLE'S _Records of
  the Court of Assistants_, I, 56, 57, 70, 71, 73, 74, 114, 115,
  240, 252, are ten cases of punishment by rope and gallows and
  whipping instead of death, the jury plainly avoiding the penalty
  for adultery under the law.]

  [Footnote 518: Under date of Sept. 2, 1674, the Suffolk Files
  contain a petition from a husband praying that his wife--for
  adultery banished to Rhode Island the preceding year--might "be
  allowed to return in peace." His petition was denied, although
  he avers that through his wife's absence "his life is most
  uncomfortabell," having "no Relation at all that liveth with
  him and it being low with him and not abell to ... pay Rent in
  seuerall places & not willing to Remaine away from the things
  of god ... to goe to liue in a place and with such as he never
  delighted in."--_MSS. Early Court Files of Suffolk_, No. 1325.]

In Plymouth the death penalty for adultery seems never to have
been established.[519] Instead, the "scarlet letter," a punishment
even more terrible to bear, was there adopted as a permanent badge
earlier than in any other colony; while in England it appears never
to have been so employed for any crime.[520] So far as known, the
oldest typical case of bearing such a "stigma" continuously for
adultery occurred in 1639. In that year a woman was sentenced to be
"whipt at a cart tayle" through the streets, and to "weare a badge
vpon her left sleeue during her aboad" within the government. If
found at any time abroad without the badge, she was to be "burned
in the face w^{th} a hott iron."[521] Two years later a man and a
woman for the same offense were severely whipped "at the publik
post" and condemned while in the colony to wear the letters _AD_
"vpon the outeside of their vppermost garment, in the most emenent
place thereof."[522] So the custom was already developed in judicial
practice when the oldest statute providing for the "scarlet letter"
appeared in 1658. It was then enacted "that whosoeuer shall comitt
Adultery shalbee seuerly punished by whiping two seuerall times;
viz: once whiles the Court is in being att which they are convicted
of the fact and 2^{cond} time as the Court shall order; and likewise
to weare two Capital letters ziz; AD cut out in cloth and sewed on
theire vpermost Garments on theire arme or backe; and if at any time
they shalbee taken without the said letters whiles they are in the
Gou^rment soe worn to bee forth with taken and publickly whipt."[523]

  [Footnote 519: But the law is not entirely clear: see _Plym. Col.
  Rec._, XI, 12; and the comments of DAVIS, _The Law of Adultery_,
  16.]

  [Footnote 520: See the facts collected by DAVIS, _op. cit._,
  16-32. For Massachusetts, between 1633 and 1681, are a number
  of sentences to wear a badge for offenses other than adultery,
  such as drunkenness, theft, wanton behavior, incontinence, or
  the disturbing of public worship. In most instances the mark is
  to be worn temporarily; but in three cases it is a continuous
  punishment. Thus on March 4, 1633-34, for drunkenness, Robert
  Coles is "sentenced to be disfranchised, and to wear about his
  neck, and to hang about his outer garment a D made of red cloth
  set upon white, to continue for a year and not to leave it off at
  any time when he should come among company."--DAVIS, _op. cit._,
  18; _Mass. Col. Rec._, I, 112. This appears to be the earliest
  reference to a _red_ badge placed upon the outer garments. See
  also the case cited by Davis from JOSSELYN'S _Account of Two
  Voyages to New England_ (VEAZIE'S reprint, Boston, 1865), 178,
  179, occurring either in Massachusetts or Plymouth prior to
  1671; the similar case of sentence to wear a "Roman B cut out
  ridd cloth," for unclean and lascivious behavior and blasphemous
  words: in _Plym. Col. Rec._, III, 111, 112 (March 5, 1656-57);
  and one in _Mass. Col. Rec._ (Sept. 3, 1639), 269.]

  [Footnote 521: _Plym. Col. Rec._, I, 132.]

  [Footnote 522: _Ibid._, II, 28 (1641).]

  [Footnote 523: _Ibid._, XI, 95, 172.]

The Plymouth statute was copied into the Cutt Code for New Hampshire
in 1679-80.[524] By the act of 1701, taken from the Massachusetts
law of 1694, the initial letter is still prescribed;[525] and
down to its repeal in 1792 the law was frequently enforced by the
courts.[526]

  [Footnote 524: _New Hamp. Prov. Papers_, I, 384-86.]

  [Footnote 525: By the marriage act of 13 W. III., 1701: _New
  Hamp. Prov. Papers_, III, 224. This act is retained in _Acts
  and Laws of New Hamp._ (Portsmouth, 1761), 53, 54; and _ibid._
  (Portsmouth, 1771), 10, 11.]

  [Footnote 526: There is a discussion of several cases in SHIRLEY,
  "Early Jurisprudence of New Hamp.," _Procds. New Hamp. Hist.
  Soc._ (1876-84), 279 ff.]

It is an evidence of the more humane tendency of Rhode Island
legislation that neither death nor the scarlet badge seems ever
to have been prescribed for adultery, although the offense was
otherwise harshly punished. The culprit is to be "publickly set on
the Gallows in the Day Time, with a Rope about his or her Neck, for
the Space of One Hour; and on his or her Return from the Gallows to
the Gaol, shall be publickly whipped on his or her naked Back, not
exceeding Thirty Stripes; and shall stand committed to the Gaol of
the County wherein convicted, until he or she shall pay all Costs of
Prosecution."[527]

  [Footnote 527: Act of 1749: in _Acts and Laws of R. I._ (Newport,
  1767), 6; also _ibid._ (Newport, 1752), 67, 68. By the earlier
  statute as given in _Acts and Laws_ (1745), 118, the punishment
  is thirty-nine stripes or a fine not exceeding 10 pounds.]

In Connecticut a brand appears to have superseded the death penalty
at least by 1673, as shown in the code of that year. The provision
of this code is retained almost exactly in the compilation of 1769,
requiring "that whosoever shall commit adultery with a Married Woman
or one Betrothed to another Man, both of them shall be severely
Punished, by Whipping on the naked Body, and Stigmatized or Burnt
on the Forehead with the Letter _A_, on a hot Iron: And each of
them shall wear a Halter about their Necks, on the outside of
their Garments, during their Abode in this Colony, so as it may be
Visible: And as often as either of them shall be found without their
Halters, worn as aforesaid, they shall, upon Information, and Proof
of the same, made before an Assistant or Justice of the Peace, ...
be Whipt, not exceeding Twenty Stripes."[528]

  [Footnote 528: _Acts and Laws of Conn._ (New Haven, 1769), 7;
  _The Book of Gen. Laws, 1673_ (Hartford, 1865), 2, 3; nearly the
  same in _Acts and Laws_ (New London, 1715), 4, and _ibid._ (New
  London, 1750), 7.]

As a detail of interest it may be observed that nowhere save in
Connecticut is the continuous wearing of a halter provided for
by statute; although for offenses other than adultery several
decisions show that during the seventeenth century this punishment
was employed in the Bay Colony.[529] Furthermore, in Connecticut,
as will hereafter appear, the law of incest differs from that of
adultery in not requiring a rope to be so worn.

  [Footnote 529: In 1654, for rape, a man, besides being whipped
  in Boston and again in Watertown, is sentenced during the
  court's pleasure to wear a rope around his neck, the end of it
  "hanging downe two feete long." If found at any time without the
  rope "aboue forty rodd from his house," he is to be whipped:
  _Mass. Col. Rec._, IV, Part I, 212. There is a similar case in
  1642: DAVIS, _The Law of Adultery_, 30. That such sentences
  were executed is shown in a realistic way by a petition of 1670
  preserved in the Suffolk Files. William Stacey, suffering for
  some offense not mentioned, prays "that the rope which he is
  forced to wear around his neck may be taken off. In answer the
  Secretary is required to send a copy of the Court's sentence to
  the Constable of Charlestoun that he may see that the sentence
  requiring the rope to be worn outside the clothes is carried
  out."--_MSS. Early Court Files of Suffolk_, No. 988. On May 6,
  1646, "Elizabeth Fairefeild" petitioned the court of assistants
  that her husband might be discharged "from y^t pte of y^e censure
  inflicted on him for his notorious evills, of wearing y^e rope
  about his necke." He was, however, compelled to wear the rope six
  years more; for it was not until 1652 that his faithful wife's
  prayer was granted: _Mass. Col. Rec._, III, 67, 161, 273.]

The statute of Massachusetts prescribing the death penalty for
adultery did not survive the fall of the charter. So in 1794 the
scarlet letter was substituted.[530] The act published on June 20
of that year, and remaining in force until after the close of the
provincial era, varies in several important details, though not
essentially, from the laws of Plymouth and Connecticut already
presented. The offenders "shall be set upon the gallows by the space
of an hour, with a rope about their neck, and the other end cast
over the gallows; and in the way from thence to the common goal
shall be severely whip'd, not exceeding forty stripes each." Also
the offenders "shall forever wear a capital A, of two inches long
and proportionate bigness, cut out in cloth of a contrary color to
their cloaths, and sewed upon their upper garments, on the outside
of the arm, or on their back, in open view." If "found without their
letters so worn, during their abode in this province, they shall,
by warrant from a justice of peace, be forthwith apprehended and
ordered to be publicly whip'd, not exceeding fifteen stripes, and
so from time to time, _toties quoties_."[531]

  [Footnote 530: Already in 1673, for having an illegitimate child
  and imposing it on her husband, a woman had been sentenced by
  the court, "if found in this Colony two months after this date
  that shee stands in the markett place on a stoole for one hower
  w^{th} a paper on hir breast w^{th} y^e Inscription THVS I STAND
  FOR MY ADVLTEROVS AND WHORISH CARRIAGE and that on a lecture day
  next after the lecture and then be seuerely whipt w^{th} thirty
  stripes."--NOBLE'S _Records of the Court of Assistants_, I, 10.]

  [Footnote 531: _Acts and Resolves_, I, 171. This provision seems
  to have been retained until it was omitted in the act of Feb. 17,
  1785: _The Perpet. Laws of the Com. of Mass._ (Boston, 1789),
  203, 204.]

Apparently writers have thus far failed to discover positive
evidence that the provision of this act regarding the capital
letter was ever carried out. A search in the manuscript records of
the superior court of judicature, however, has disclosed several
interesting cases. The earliest sentence occurred in March, 1707,
when Mathew Fuller and Hannah Parker were indicted before a superior
court at Plymouth. In the exact terms of the statute Hannah was
sentenced to be set on the gallows, receive thirty stripes upon
her naked back, and forever after to wear the capital _A_. But,
singularly enough, her paramour was acquitted, no reason being
assigned therefor either in the court record or in the files.[532]
Again in 1721 Jemima Colefix, for sinning with a free negro and
bearing a mulatto child, received a similar sentence; and in this
case also the accused man was acquitted of being the putative
father as had been charged.[533] The next case is dated February
9, 1730-31; and it shows that men as well as women had to endure
this penalty. Before a court held in Boston "the jurors present
John Warren, miller, and Rachel Gould for adultery," both being
married persons. Although they pleaded not guilty, they were each
set on the gallows, given thirty-nine stripes, and condemned to
wear the capital letter.[534] Twenty years later, on September
26, 1752, "Daniel Bayley, cooper, and Mary Rainer" received the
same punishment, except that they each suffered forty stripes, the
full number allowed by the statute.[535] Finally after the lapse of
thirty years more, just as the War of Independence was drawing to a
close, we learn from the records that, following the usual stripes
and exposure on the scaffold, Jerusha Doolittle was condemned to
wear the fatal _A_ as a badge of shame "forever."[536]

  [Footnote 532: _MSS. Records of the Superior Court of
  Judicature_, III (1700-14), fol. 206. This decree may not
  actually have been carried out. The record concludes, "she being
  big with child the sentence was suspended for the present."]

  [Footnote 533: _Ibid._ (May 2, 1721), IV, foll. 355, 356.
  According to the _MSS. Early Court Files of Suffolk_, No. 15,180,
  the order of execution to the sheriff says she was convicted
  on her own confession and accused the negro Humphers of being
  the father. The woman was apparently an experienced sinner.
  Fifteen years earlier "Jemima Colefix ... being presented ... for
  whoredom with a Negro, appeared and owned the same but that it
  was before marriage with her present Husband." Severely whipped
  twenty stripes, costs, and stands committed: _MSS. Records of the
  Court of General Sessions of Suffolk_ (Jan. 27, 1706), I, 144.]

  [Footnote 534: _MSS. Records of the Superior Court of Judicature_
  (1730-33), fol. 49.]

  [Footnote 535: _Ibid._ (1752-53), fol. 190. The _MSS. Early Court
  Files of Suffolk_, No. 29,729, show that on this conviction
  without further proof "George Rainer [Raynord]," Mary's husband,
  got a complete divorce. The statutory limit of forty stripes was
  originally fixed according to the "law of God": WINTHROP, _Hist.
  of N. E._, II, (ed. 1825-26), 250.]

  [Footnote 536: _MSS. Records of the Supreme Judicial Court_
  (1781-82), leaf 41. Besides the cases of conviction discussed
  in the text, there are in the records a number of instances of
  acquittal for the same offense. In the _MSS. Early Court Files
  of Suffolk_ (May 28-30, 1700), No. 4715, is an interesting
  example of extradition for adultery; and the survival of the
  ancient "chattel" interest of the husband in the wife is
  revealed by three damage suits for trespass on account of
  alleged assault upon, and in one for detaining, the wife: _MSS.
  Records of the Superior Court of Judicature_ (1763-64), fol.
  70; _ibid._ (1767-68), fol. 163; _ibid._ (1775-78), fol. 144;
  _ibid._ (1739-40), fol. 286. A similar case of "drawing away the
  affections" of a daughter may be found in _MSS. Early Court Files
  of Suffolk_ (1671-72), No. 1100.]

This closes the list of cases found in which the stigma is referred
to. On the other hand, there are a number of sentences for adultery,
or for what would ordinarily be so regarded, where this penalty
is not imposed. These are the cases of semi-adulterous conduct,
nominally provided for by the act of 1694, in which there is either
no charge or not sufficient evidence of absolute transgression.[537]
Usually one and sometimes both of the culprits are married. Fines,
stripes, and occasionally banishment are the penalties imposed.
As in the early period, there is manifestly a hesitation to urge
conviction for "adultery" so as to involve the extreme penalty
of the scarlet letter. The courts thus seem to favor a strict
construction of the statute, giving the accused the benefit of the
more lenient interpretation. In several cases the jury declines to
convict for the offense charged where the evidence would clearly
seem enough to sustain a verdict.[538]

  [Footnote 537: These convictions are usually not for "adultery,"
  but for being in bed together, according to a clause of the
  act of 1694 providing that when a man is found in bed with
  another person's wife each offender shall receive not more than
  thirty stripes, unless one was surprised and not consenting.
  For examples, some of them acquittals and some convictions, see
  _MSS. Records of the Superior Court of Judicature_, I (Oct.
  30, 1694), fol. 129; _ibid._, III (May 7, 1700), foll. 10, 11;
  _ibid._, 1736-38 (Aug. 8, 1738), fol. 209; _ibid._, 1757-59 (Aug.
  1, 1758), 391; _ibid._, 1757-59 (Feb. 21, 1759), 554; _ibid._,
  1760-62 (Sept. 16, 1760), foll. 122, 123; _ibid._, 1763-64 (Jan.
  25, 1763), fol. 11; _ibid._, 1763-64 (April 26, 1763), fol. 44;
  _ibid._, 1767-68 (April 12, 1765), fol. 164; _MSS. Records of
  Gen. Sessions of Suffolk_ (April 2, 1717), II, 151.

  For the earlier period the Athenæum copy of the _MSS. Records of
  the County Court of Suffolk_, 34 (March 17, 1671-72), 113 (Jan.
  28, 1672-73), 585 (May 5, 1679), 633 (Jan. 27, 1679-80), contains
  four analogous cases; and there is one in _MSS. Records of the
  County Court of Middlesex_ (April 1, 1684), IV, 97.]

  [Footnote 538: Thus at a superior court held at Falmouth for
  Cumberland and Lincoln counties, June 28, 1763, the "jurors
  present John Lawrence, husbandman, and Mary Lawton, _both
  married_, for adulterously dwelling together for five years,
  frequently lodging together in the same bed knowing each other
  to be married, being found adulterously in bed together and not
  surprised but consenting, and having carnal knowledge together.
  John was arraigned, pleaded not guilty, and the jury returned
  a verdict of guilty except to the charge of having committed
  adultery. 30 stripes and recognition in £100 to keep the peace."
  [Mary not tried.]--_MSS. Records of the Superior Court of
  Judicature_ (1763-64), fol. 90. So also before a superior court
  held at Worcester, April 20, 1773, Joshua Phillips, laborer,
  presented by the jury for "committing _adultery_" with Mary,
  wife of Edward Rice, was acquitted. Then the jurors present them
  both "for being found at divers times in bed together.... They
  pleaded not guilty. Convicted. Joshua fined £20 and costs. Mary
  20 stripes and costs."--_Ibid._ (1773-74), foll. 36, 38.]

Throughout New England, Rhode Island alone excepted, persons
guilty of incest--that is to say, of uniting within the degrees of
consanguinity or affinity legally forbidden--were stigmatized with
an initial letter precisely as in the case of adultery. An act of
Massachusetts in 1692, "for the punishing of capital offenders,"
makes this offense a felony punishable with death.[539] Because
some of the "articles" dealing with capital crimes, among which is
incest, "were conceived in very uncertain and doubtful terms," and
because in such cases the penalty of death was not "conformable to
y^e Laws of England," the act was disallowed by the privy council
in August, 1695.[540] However, in June of the same year a new act
for the prevention of incestuous marriages had been adopted by the
general court; and this remained in force during the provincial
era. By it the forbidden degrees are enumerated in harmony with the
English ecclesiastical law. For violation of its provision exactly
the same penalty in the same words is imposed as by the statute of
1694 for the punishment of adultery, except that in place of _A_
a capital _I_ is to be continuously worn.[541] This act of 1695
was adopted by New Hampshire in 1714,[542] and by Connecticut in
1702, the provision regarding the initial letter reappearing in the
statute books of the latter commonwealth until 1821.[543]

  [Footnote 539: _Acts and Resolves_, I, 56 (Oct. 29).]

  [Footnote 540: See the "Letter from the Privy Council," _Acts and
  Resolves_, I, 56, note; and compare DAVIS, _The Law of Adultery_,
  12, 13.]

  [Footnote 541: _Acts and Resolves_, I, 208-10.]

  [Footnote 542: By 13 Anne: in _Acts and Laws_ (Portsmouth, 1761),
  55, 56; and _ibid._ (Portsmouth, 1771), 42, 43.]

  [Footnote 543: Revision of 1702, 73; _Acts and Laws_ (New London,
  1715), 74-76; _ibid._ (New London, 1750), 145; _ibid._ (New
  Haven, 1769), 145; _ibid._ (New London, 1784), 136.]

In Massachusetts the legal stigma for incest was often imposed by
judicial sentence. As already noticed by Davis, such a sentence in
1743 was executed upon Andrew Fleming, of Groton, who had first
been set on the gallows for an hour and whipped forty stripes.[544]
Hitherto no other examples of wearing the capital _I_ seem to have
been discovered. But a careful search in the manuscript records of
the superior court for the period ending in 1780 has brought to
light five additional cases. The first of these occurred in 1729 and
the last in 1759. In every instance the culprit is punished with
rope and gallows, stripes, and the scarlet letter.[545]

  [Footnote 544: This case is in _MSS. Records of the Superior
  Court of Judicature_ (1740-42), fol. 264. From the Suffolk Files
  (360-66, 557) DAVIS, _The Law of Adultery_, 13, 14, quotes the
  warrant of the sheriff for the execution; and also a notice of
  the case from the _Boston Weekly News-Letter_ of Thursday, Feb.
  10, 1743, stating that the daughter Elizabeth, with whom the
  crime was committed, had absconded.]

  [Footnote 545: The five cases are as follows: (1) Salem, Oct. 28,
  1729: Peter Harding, tailor, for having carnal knowledge with his
  daughter; gallows an hour, thirty-nine stripes, and capital _I_;
  _MSS. Records of the Superior Court of Judicature_ (1725-30),
  fol. 274. (2) Worcester, Sept. 19, 1752: Jonathan Fairbanks,
  husbandman, and Sarah Armstrong, his wife's daughter; Jonathan
  sentenced as above, except twenty stripes: _ibid._ (1752-53),
  fol. 181. (3) Springfield, Sept. 24, 1754: Joseph Severance and
  Eunice Classon, his wife's sister; Joseph sentenced as above,
  except thirty stripes. (4) Eunice, _particeps criminis_ in
  the preceding case, receives the same sentence, except twenty
  stripes: _ibid._ (1755-56), fol. 341. (5) Cambridge, Aug. 7,
  1759: Judah Clark and Huldah Dudley, his wife's daughter; Huldah
  sentenced as above, except thirty stripes: _ibid._ (1757-59),
  655.]

The New England Puritans were, of course, very serious in their
efforts to check sexual immorality. Their laws are characteristic
of the age. As yet small progress had been made in enlightened
theories of crime and its punishment. Besides they were steeped
to the core in Hebraism. More or less as a religious duty they
accepted and re-enacted the harsh precepts of the primitive Jewish
code. It is not a little curious, however, to see them preserving
an ancient English usage, almost extinct in the mother-country--in
some instances regulating it by statute--which "thwarted their
endeavors for complete propriety."[546] This was the custom of
pre-contract, contraction, or betrothal, which everywhere in New
England was celebrated with due solemnity. Such was the case in
Massachusetts.[547] By the Connecticut statute, as already noted,
the "contract" was carefully distinguished from the "covenant;" and
because many persons entangle themselves by rash and inconsiderate
promises for their future joining in marriage, the act of 1640
requires eight days' public notice of the betrothal, after which
a second period of eight days must elapse before the covenant is
sealed.[548] The pre-contract was in use also in New Hampshire[549]
and Plymouth. In the latter jurisdiction the "couple--having the
consent of the parents or guardians, in the case of minors--made
before two witnesses a solemn promise of marriage in due time, the
ceremony having the formality of the magisterial weddings then in
vogue."[550]

  [Footnote 546: GOODWIN, _Pilgrim Republic_, 599, 600.]

  [Footnote 547: COTTON MATHER, in his life of Danforth, says:
  "After his Contraction, according to the old usage of New
  England, unto the virtuous daughter of Mr. Wilson (whereat
  Mr. Cotton preached the sermon), he was married unto that
  gentle-woman, in the year 1651."--MATHER, _Magnalia_, IV, c. 3,
  § 6, Vol. II, 50. _Cf._ DEXTER, _Congregationalism_, 458 n. 166,
  who cites also a statement in MATHER'S _Ratio_, 112; likewise
  WINTHROP, _Hist. of New England_, II, 382 n. 2, whose mistake has
  already been mentioned. Compare EARLE, _Customs and Fashions_, 68
  ff., who gives the "texts" of some of the betrothal sermons.]

  [Footnote 548: _Conn. Col. Rec._, I, 47, 48.]

  [Footnote 549: SHIRLEY, "Early Jurisprudence of New Hamp.,"
  _Procds. New Hamp. Hist. Soc._ (1876-84), 308.]

  [Footnote 550: GOODWIN, _Pilgrim Republic_, 600; _cf._ _Plym.
  Col. Rec._, XI, 172.]

Undoubtedly pre-contract was derived from the English "espousals,"
which, it has already appeared, were a direct survival of the
_beweddung_ of the Anglo-Saxon laws. But in New England the
betrothal gained a peculiar legal significance. "The betrothed woman
was put, both by law and social custom, one step above the woman who
was not betrothed, and one step below the woman who was married.
This was so both as respects the civil and the criminal law."[551]
In Massachusetts, Connecticut, and New Haven the "espoused wife"
like the married wife is to suffer death for adultery;[552] while
for fornication, on the other hand, the single woman and her partner
in guilt are much less severely punished. The betrothed woman "was
sentenced to wear the brand of the 'scarlet letter,' precisely as if
she were married."[553]

  [Footnote 551: SHIRLEY, _loc. cit._, 308.]

  [Footnote 552: WHITMORE, _Col. Laws of Mass._ (1660-72), 55,
  128; _Conn. Col. Rec._, I, 77; _New Haven Col. Rec._, II, 577;
  TRUMBULL, _Blue Laws_, 60, 200.]

  [Footnote 553: SHIRLEY, _loc. cit._, 308. This is true of
  Connecticut for the entire provincial period: _Acts and Laws_
  (New Haven, 1769), 7, but apparently not of Massachusetts under
  the second charter. In New Hampshire under the Canfield Code,
  1682, the betrothed woman is still treated as married, but
  whipping is dispensed with: _New Hamp. Prov. Papers_, I, 444,
  445. But by the act of 1701 she is punished for fornication as a
  single woman: _ibid._, III, 224.]

Thus in New England the betrothal regained a sanction similar to
that which it possessed according to primitive Germanic custom.
It was, in fact, a kind of marriage. The espoused couple were
separated from the world and placed in a relation whose sacredness
might not be violated as respects others without the most serious
consequences. On the other hand, it was entirely in harmony with
this theory that when they "were guilty of incontinence with each
other after pre-contract before marriage, their punishment was in
general one half, or less than one half, what it would have been
had there been no betrothment."[554] By the statute of Plymouth,
for example, the penalty in such cases was fifty shillings for
each person and imprisonment for a period not exceeding three days,
or if the guilty persons "will not or cannot" pay the fine, they
are to suffer "corporal punishment by whipping" instead; while for
transgression before contract the fine was twice as much.[555] This
was, in effect, to place a premium[556] upon wrongdoing committed
between the espousals and the nuptials. Naturally the immorality of
such offenses seemed thus to be lessened; and, as will presently
appear, a vast amount of sexual license was the natural result.

  [Footnote 554: SHIRLEY, _loc. cit._, 308.]

  [Footnote 555: The whole of this curious law may prove
  instructive. It is enacted "That any person or persons that shall
  Comit Carnall Copulation before or without lawfull contract
  shalbee punished by whiping or els pay ten pounds fine apeece
  and bee Imprisoned during the pleasure of the Court soe it
  bee not aboue three daies but if they bee or wilbee married
  [_i. e._, a "delayed" marriage voluntarily solemnized or else
  marriage prescribed as a penalty] the one to the other; then but
  ten pounds both and Imprisoned as aforsaid; and by a lawfull
  Contract the Court vnderstands the mutuall consent of parents or
  guardians if there bee any to bee had; and a sollemne promise of
  marriage in due time to each other before two competent witnesses
  [this being the regulation of pre-contract already mentioned in
  the text]; and if any person or persons shall Comitt carnall
  Coppulation after contract and before Marriage they shall pay
  each fifty shillings and bee both Imprisoned," etc.--_Plym. Col.
  Rec._, XI, 172, 95, 46. Originally the punishment for fornication
  was left in the discretion of the magistrates: _ibid._, 12.]

  [Footnote 556: _Cf._ SHIRLEY, _loc. cit._, 308, 309.]

The evil consequences of this anomalous state of the law were
rendered all the more serious through the custom of "bundling" which
obtained a wide prevalence in New England as it did also in New York
and the other middle colonies. According to Stiles, who has produced
the only general history of the subject, bundling "was practiced
in two forms; first, between _strangers_, as a simple domestic
makeshift arrangement, often arising from the necessities of a new
country, and by no means peculiar to America; and, secondly between
_lovers_, who shared the same couch, with the mutual understanding
that innocent endearments should not be exceeded."[557] It is the
second form with which we are here most concerned; and in its
origin this likewise appears to have been "a custom of convenience."
It was long regarded as a gross or licentious practice peculiar
to New England. Thus Irving taunts the people of Connecticut with
having tried to deprave the manners of the "Dutch lasses of the
Nederlandts" through the introduction of that "horrible" usage.[558]
But the Dutch maidens needed no lessons from their Yankee sisters
in this regard; for in their "queesting" they had brought with them
a form of bundling from Holland.[559] Indeed, it is not at all
improbable that in this case Pilgrim and Puritan alike may have been
strongly influenced by Dutch precedent, as they certainly were in
more important institutions. Such an inference seems all the more
justifiable, for as yet no trace of bundling has been reported "in
any localities of England itself, the mother country;"[560] though
in Ireland, Scotland, and Wales evidences of its recent existence
are not wanting,[561] and the custom seems clearly to be deeply
planted in the ancient usage of the German race.[562]

  [Footnote 557: STILES, _Bundling in its Origin, Progress, and
  Decline_ (Albany, 1871), 13, 14. GROSE, _Dictionary of the Vulgar
  Tongue_, thus explains the practice: "A man and a woman lying on
  the same bed with their clothes on; an expedient practiced in
  America on a scarcity of beds, when, on such occasions, husbands
  and parents frequently permitted travelers to _bundle_ with their
  wives and daughters." This applies, of course, only to the first
  named and less interesting form of the custom. In almost the same
  words as those used by Stiles, MASSON, _Journeys in Belochistan,
  Afghanistan_, etc., III, 287, describes the bundling of lovers
  among the Afghans: see ADAMS, _Some Phases of Sexual Immorality_,
  31, note. In general on this custom consult EARLE, _Customs and
  Fashions_, 62-64; WEEDEN, _Ecc. and Soc. Hist. of N. E._, II,
  739, 864.]

  [Footnote 558: IRVING, _Knickerbocker's Hist. of New York_
  (Philadelphia, 1871), Book III, chaps. vii, viii, 217-28; _cf._
  STILES, _Bundling_, 45 ff.; ADAMS, _Some Phases of Sexual
  Immorality_, 31.]

  [Footnote 559: _Queesting_ (a seeking, similar to English
  "quest") seems to have existed until last century on the islands
  of Vlie, Wieringen, and perhaps elsewhere in Holland. "At night
  the lover has access to his mistress after she is in bed; and,
  upon an application to be admitted upon the bed, which is of
  course granted, he raises the quilt, or rug, and in this state
  _queests_, or enjoys a harmless chit-chat with her, and then
  retires. This custom meets with perfect sanction of the most
  circumspect parents, and the freedom is seldom abused. The author
  traces its origin to the parsimony of the people, whose economy
  considers fire and candles as superfluous luxuries in the long
  winter evenings."--STILES, _op. cit._, 35, 36, citing CARR, _The
  Stranger in Ireland_ (1807).]

  [Footnote 560: ADAMS, _Some Phases of Sexual Immorality_, 33.
  Mr. Adams, however, while pointing out the "singular and to me
  unaccountable, fact" that traces of bundling, found so widely
  in the New England colonies, have not yet been discovered
  in England, thinks that it "could hardly have found its way
  as a custom" from Holland or the other countries named; and
  he mentions, by way of supporting his conclusion, its great
  prevalence in Cape Cod where, according to Palfrey, until about
  1825, "there was a purer strain of English blood to be found ...
  than could be found in any county of England." But wherever the
  Dutch settled the custom of bundling was tenacious, lasting in
  Pennsylvania at least until 1845: EARLE, _Customs and Fashions_,
  63: and in New York at least until 1804: STILES, _op. cit._, 111.]

  [Footnote 561: STILES, _op. cit._, 14-35, who cites various
  authorities for Wales, especially PRATT, _Gleaning through Wales,
  Holland, and Westphalia_ (3d ed., London, 1797), I, 105-7; and
  BINGLEY, _North Wales_ (London, 1804), II, 282. _Cf._ also ADAMS,
  _op. cit._, 32; and BRAND, _Popular Antiquities_, II, 98.]

  [Footnote 562: Bundling probably has its origin in the
  "proof-nights" which formerly were widely prevalent among the
  Teutonic peoples of Europe: see FISCHER, _Ueber die Probenächte_,
  12 ff., 24 ff., 32-36.]

In New England, however, it was by no means confined to
Connecticut.[563] It prevailed in the sister-provinces, and
especially in both western[564] and eastern Massachusetts, down
to the revolutionary period and perhaps for a good many years to
come. Burnaby,[565] writing of his visit to that colony in 1759-60,
gives a lively account of the custom, under the name of "tarrying,"
significantly observing that it takes place between the permission
to pay court and the banns. In his view, bundling is on the whole
an innocent practice, seldom being attended by evil consequences.
On the other hand, that veracious historian, Rev. Samuel Peters,
reproves Burnaby for presenting the custom in "an unfavorable light,
and as prevailing among the _lower class_ of people;" whereas,
according to Peters, it exists among "all classes, to the great
honor of the country, its religion and ladies."[566] Again in
1777 Lieutenant Anbury, "a British officer, who served in America
during the Revolutionary War, and whose letters preserve many
sprightly and interesting pictures of the manners and customs of
that period,"[567] chats racily of an invitation to bundle which he
received at Williamstown, Mass.--a courtesy brought about through
the scarcity of beds for the entertainment of strangers.[568]
Charles Francis Adams finds positive proof of the existence of
the custom "within a ten-mile radius of Boston" at least until
1781;[569] and he also quotes a reference to it from a letter of
Abigail Adams written three years later.[570] Nor apparently was
bundling entirely abandoned in eastern Massachusetts until nearly
fifty years thereafter, Cape Cod having the "dubious honor" of
holding out against the "advance of civilization" in this regard
until 1827.[571] The next year, in Franklin county, Me., a letter
to the Portland _Yankee_ reveals the custom existing in full
vigor.[572]

  [Footnote 563: STILES, _Windsor_, 495; WEEDEN, _Ecc. and Soc.
  Hist. of N. E._, II, 739.]

  [Footnote 564: JUDD, _Hadley_, 247.]

  [Footnote 565: "When a man is enamoured of a young woman and
  wishes to marry her, he proposes the affair to her parents....
  If they have no objection, they allow him to tarry with her
  one night, in order to make his court to her. At their usual
  time the old couple retire to bed, leaving the young ones to
  settle matters as they can; who, after having sate up as long
  as they think proper, get into bed together also, but without
  putting off their undergarments, in order to prevent scandal.
  If the parties agree, it is all very well; the banns are
  published, and they are married without delay. If not, they
  part, and possibly never see each other again; unless, which is
  an accident that seldom happens, the forsaken fair one prove
  pregnant, and then the man is obliged to marry her, under
  pain of excommunication."--_Travels in North America_, 110,
  111. Elsewhere he says that, while at first the practice may
  "appear to be the effects of grossness of character, it will,
  upon deeper research, be found to proceed from simplicity and
  innocence."--_Ibid._, 144. _Cf._ ADAMS, _op. cit._, 31, note; and
  LODGE, _Short History_, 438. The word "tarrying" is not always
  equivalent to "bundling," having a more general meaning. Nor was
  tarrying or bundling always restricted to one night; see STILES,
  _Bundling_, 70, 71.]

  [Footnote 566: See STILES, _op. cit._, 51-60, for a long extract
  from the lively account of Peters, who says that in Connecticut
  bundling is "as old as the first settlement in 1634;" and that
  "about the year 1756 Boston, Salem, Newport, and New York,
  resolving to be more polite than their ancestors, forbade their
  daughters _bundling_ on the bed with any young men whatever,
  and introduced a sofa to render courtship more palatable and
  Turkish;" but with more "natural consequences than all the
  _bundling_ among the boors with their _rurales pedantes_ through
  every village in New England besides." Of course, all this must
  be swallowed with a very large "grain of salt."]

  [Footnote 567: STILES, _op. cit._, 66.]

  [Footnote 568: ANBURY, _Travels through the Interior Parts of
  America; in a Series of Letters_ (new ed., London, 1781), II,
  37-40: cited by STILES, _op. cit._, 66 ff. In a subsequent letter
  Anbury plagiarizes the passage from Burnaby which we have quoted
  in a preceding note.]

  [Footnote 569: According to WORTHINGTON'S _History of Dedham_
  (1827), 109--"a town only ten miles from Boston--I find that the
  Rev. Mr. Haven, the pastor of the church there, alarmed at the
  number of cases of unlawful cohabitation, preached at least as
  late as 1781 'a long and memorable discourse,' in which, with
  a courage deserving of unstinted praise, he dealt with 'the
  growing sin' publicly from his pulpit, attributing 'the frequent
  recurrence of the fault to the custom then prevalent of females
  admitting young men to their beds who sought their company with
  intentions of marriage.'"--ADAMS, _op. cit._, 35. STILES, _op.
  cit._, 75-77, note, gives a long extract from Worthington, who
  represents Haven's sermon as having had a powerful influence in
  setting aside the custom of bundling. But already before this
  Jonathan Edwards had raised his voice against it.]

  [Footnote 570: ADAMS, _op. cit._, 35; citing MRS. JOHN ADAMS'S
  _Letters_ (1848), 161.]

  [Footnote 571: STILES, _op. cit._, 110, note, where personal
  testimony is adduced.]

  [Footnote 572: See the Appendix to STILES, _op. cit._, 113-25,
  where an article from the _Yankee_, of Aug. 13, 1828, containing
  the letter mentioned, is quoted. A search in the manuscript
  court records reveals not a single clear case of bundling. On
  Jan. 30, 1709-10, Jane Lee, widow, was presented and acquitted
  in Charlestown for conduct resembling bundling: _MSS. Records of
  the Court of Gen. Sessions of Suffolk_, I, 202. There is a more
  probable example in the _MSS. Records of the Court of General
  Sessions of Middlesex_ (Dec. 15, 1702), I, 137.]

According to the judgment of Stiles, bundling "came nearest to being
a universal custom from 1750 to 1780." Contrary to the popular
view,[573] it appears to have been confined to the more humble and
less cultivated classes; "to those whose limited means compelled
them to economize strictly in their expenditure of firewood and
candle-light."[574] No evidence has yet been produced showing
that it made its appearance in the main centers of New England
civilization.

  [Footnote 573: Thus SHIRLEY, "Early Jurisprudence of New Hamp.,"
  _Procds. New Hamp. Hist. Soc._ (1876-84), 308, declares that "the
  practice prevailed very largely in New England, among the rich
  and the poor, the educated and the uneducated, the cultivated and
  the uncultivated."]

  [Footnote 574: STILES, _op. cit._, 65, 106. ADAMS, _op. cit._,
  31, 32, 36, reaches the same conclusion. "It was," he says, "a
  practice growing out of the social and industrial conditions of a
  primitive people, of simple, coarse manners and small means," and
  probably did not exist in Boston, Salem, or Plymouth.]

Though bundling could arise only in a comparatively rude state of
society, it seems in itself to have been neither very vicious nor
very immoral. Yet manifestly it was easily capable of abuse. Under
dangerous conditions it might readily degenerate into coarseness
and vice. Such conditions were not wanting throughout the colonial
era. The general tone of sexual morality was not high. The laws and
usages already presented, which in effect invited transgression on
the part of engaged lovers, afforded a constant temptation.[575]
Bundling thus has its chief moral significance as an adjunct
of pre-contract which must be held responsible for a very large
share of the sexual misconduct revealed in the judicial records.
Before the general court of Plymouth the cases of "uncleanness"
after contract and before marriage are very numerous. According
to Goodwin, they averaged one a year; and this appears to be a
conservative estimate. By actual count the records of that colony,
for the twenty-eight years between 1633 and 1661, show at least
twenty-four sentences for ante-nuptial offenses, chiefly after
betrothal; while during the seventeen years following 1661 there are
not less than forty-one such judgments. Members of some of the most
illustrious families of New England were guilty of indiscretions
in this regard.[576] In several of the early cases the husband
was publicly whipped in view of the wife, who sat near in the
stocks.[577]

  [Footnote 575: So also in Holland, it is interesting to note,
  bundling appears in connection with the practice of public
  betrothals as the cause of ante-nuptial transgressions. See
  Townshend's speech on the Hardwicke act in COBBETT-HANSARD,
  _Parliamentary Debates_, XV, 56-59.]

  [Footnote 576: "There was Peregrine White, the first-born child
  of the Colony and stepson of Governor Winslow; Thomas Cushman,
  Jr., son of the elder; James Cudworth, Jr., son of the future
  general and deputy-governor, and Jonathan, his brother; Samuel
  Arnold, Jr., son of the Marshfield pastor; Isaac Robinson, Jr.,
  grandson of the great Leyden pastor; Thomas Delano; Nathaniel
  Church; and other scions of leading families."--GOODWIN, _Pilgrim
  Republic_, 600, who, thinks it a mistake to suppose that
  generation "below the present in general purity of life;" since
  the pre-contract was "a sort of semi-marriage" and "such cases
  were ferretted out and recorded" with "impartial diligence."]

  [Footnote 577: GOODWIN, _op. cit._, 600; _cf._ _New Hamp. Prov.
  Papers_, I, 386, 445. FREEMAN, _Hist. of Cape Cod_, I, 167,
  168, gives the following forms of sentence: "A. F. for having
  a child born six weeks before the ordinary time of women after
  marriage, fined for uncleanness, and whipt, and his wife set in
  the stocks." "C. E., for abusing himself with his wife before
  marriage, sentenced to be whipt publicly at the post, she to
  stand by whilst the execution is performed. Done, and he fined
  five pounds for the trouble."]

The manuscript records of two counties of Massachusetts for a
portion of the seventeenth century appear to demonstrate that such
"miscarriages" before complete wedlock were not less frequent in
the Bay Colony.[578] A thorough analysis of the records of the
county court of Suffolk, covering the ten years 1671-80, brings to
light twenty of these cases, while during the same period there are
forty-three instances of transgression by "single women."[579] Now,
it is important to remember that the statutes of Massachusetts,
unlike those of Plymouth, do not discriminate between the offenses
of single persons and those committed with each other by espoused
lovers.[580] The question therefore arises as to whether the
_custom_ of pre-contract--for pre-contract was not established by
_law_ in that province--can be held in any way accountable for these
facts. A comparison of the penalties imposed in the two classes of
cases, as exhibited in Tables I and II, shows that an affirmative
answer must be given. The sins of betrothed persons are in general
punished with far less rigor than those of single men and women.
Thus twenty-one out of forty-three single women, and eight out of
thirteen single men, are sentenced to stripes alone, nineteen of
them receiving each from fifteen to forty lashes;


TABLE I

CASES OF FORNICATION BEFORE MARRIAGE IN THE COUNTY COURT OF SUFFOLK
COUNTY, MASS., 1671-80

  1. Fine only                                     3 married couples
        £5 (both)                                  1    "       "
        £3   "                                     1    "       "
        40s. "                                     1    "       "

  2. Fine and confession before the congregation
        or stripes                                 2    "       "

  3. Fine or stripes                              15    "       "

     _a_) Fine--
          £5 (both)                                3    "       "
          £4   "                                   3    "       "
          £3   "                                   1    "       "
          50s. "                                   1    "       "
          40s. "                                   7    "       "

     _b_) Stripes--
          20                                       2 husbands   0 wives
          15                                      12    "       2   "
          10                                       1    "      13   "


TABLE II

CASES OF FORNICATION BY SINGLE PERSONS IN THE COUNTY COURT OF
SUFFOLK COUNTY, MASS., 1671-80

     The most noticeable feature of these cases is the tendency
     on the part of single men to confess the crime and accept
     punishment, besides becoming bound as putative fathers. All the
     convictions for fornication are by confession or pleading guilty.

  1. Single women convicted           43

     _a_) Fine or stripes             22
          £15 or 20 stripes            1
          £5 or {20    "               1
                {15    "               4
          £3 or {20    "               1
                {15    "               3
          50s. or {15  "               3
                  {10  "               2
          40s. or {15  "               2
                  {10  "               4

     _b_) Stripes alone               21
          40 (20 each in two places)   2
          30                           2
          20                          11
          15                           4
          10                           2

  2. Single men, confession           13

     _a_) Fine or stripes              5
       £5 or 20 stripes                4
       40s. or 15 stripes              1

     _b_) Stripes alone                8
          30                           3
          20                           5

     _c_) Putative fathers            17

  while in no case is a single man or woman merely fined. On
  the other hand, out of twenty married couples punished for
  ante-nuptial misconduct, fifteen are given the choice of fines or
  stripes, three are merely fined; and in no instance is whipping
  alone the penalty decreed. Furthermore, the fines are on the
  average smaller in these cases than in others, although as
  regards both fines and stripes the sentences are sadly lacking in
  uniformity. The conclusion seems irresistible that, in harmony
  with popular sentiment, the courts, exercising the discretion
  granted by the statute, were inclined to deal more leniently
  with the faults of the betrothed than with those of less favored
  bachelors and spinsters.

  [Footnote 578: In addition the records of the court of assistants
  for the early period contain six cases, in each instance the
  husband alone being punished; two cases in 1635, one in 1637,
  one in 1639, two in 1640: _Mass. Col. Rec._, I, 163, 193, 269,
  296, 297; and three cases where both husband and wife were
  fined, condemned to stand in the market place, or to confess on
  Lecture Day: _Rec. of the Court of Assistants, 1641-1643/44_, in
  WHITMORE, _Bib. Sketch_, xxxi, xxxiii, xxxvii.]

  [Footnote 579: These are in the Athenæum copy of the _MSS.
  Records of the County Court of Suffolk, 1671-80_. There is also
  a unique example in the _MSS. Early Court Files of Suffolk_
  (1675), No. 1412. This is a case of appeal to the assistants from
  the county court at Salisbury, where John Garland and wife had
  been fined £5 for having a child eleven weeks too early. On his
  appeal John says, significantly: "I and She had parents Concent
  to marry and Legally published & Stayed after publication a
  Considerable time, that had any Such Act been co[=m]ited by us
  we could haue preuented it by marrying sooner;" and he further
  alleges that it was an untimely birth caused by the wife's fall.
  In reply, the attorney for the county of Norfolk said Garland
  had pretended to quote "Aristottle" to prove a child might come
  in the seventh month, but that if the court "please to Cast an
  eye vpon John garland ... they will judg Him to be no deepe
  man in phylosophie." Whereupon the worthy barrister, rejecting
  pagan learning, imparted the following bit of strictly orthodox
  biology: "It was well knowne to the Honored Court at Salisbury
  that the usuall time of woman was a set time As in genesis the
  18 and the 10 compared with 2 of kings the 4th & the 16 verse,
  the Honored Court likewise knew that that time wast aboue seauen
  month as is the first of luke the 36 vers compared with the 39 &
  40 and 56 & 57 verse of that chapter." The "jury" reversed the
  decision of the lower court.]

  [Footnote 580: "If any man commit fornication with a single
  woman, they shall be punished, either by enjoining marriage, or
  fine, or corporal punishment, or all or any of these," as the
  court may determine: WHITMORE, _Col. Laws of Mass._ (1660-72),
  153. Later disfranchisement, in the case of a freeman, was added:
  _ibid._, 231. See also WHITMORE, _op. cit._ (1672-86), 54, 208;
  _Conn. Col. Rec._, I, 527; _New Haven Col. Rec._, II, 590; _Plym.
  Col. Rec._, XI, 12, 46, 95, 172.]

Similar evidence is afforded by the incomplete records of the county
court of Middlesex for the period 1629-86, supplemented by the
Files. These contain in all thirty cases of transgression before
marriage, eight of which fall within the ten years covered by the
Suffolk records already considered. Most of the severe sentences
(Table III) occur in this period and the six years immediately
following, although the heaviest fine, twenty pounds for the couple,
is imposed in 1663.[581] Seemingly, from the few cases known, single
persons were treated more harshly than those who were betrothed.[582]

  [Footnote 581: June 16, 1663. At a county court at Charlestown,
  "Daniel Weld and Bertha his wife convicted of fornication before
  marriage, appeared and made humble acknowledgment of their sin
  craving the favor of the court. Admonished seriously to consider
  their great sin and fined £10 apiece. Execution respited during
  the pleasure of the court."--_MSS. Records of the County Court of
  Middlesex_, I, 243. On the same day before the same court John
  Roy and wife were convicted of the same offense, and "pleaded
  that it was committed a fortnight after their solemn contract
  in marriage and being hindered of marriage were overcome by the
  temptation." They had to pay only 40s.: _ibid._, 241.]

  [Footnote 582: In these volumes there are five cases of
  fornication by single persons. In the first, April 4, 1654, the
  two culprits got each twelve stripes; in another, April 1, 1684,
  a married man and a girl were parties, the man being sentenced
  to pay £20 or receive thirty stripes, the woman, £5; and in
  one instance, October 2, 1677, the woman was "whipt fifteen
  stripes." More cruel was the fate of Sarah Pore. On July 7, 1785,
  for refusing to name the father of her two children, she was
  condemned "to be whipt severely twenty stripes and to lie in the
  house of correction for twelve months, there to be kept at hard
  labor and to be whipt once a month until she confess." Of course,
  on August 14, she named the man. For these cases see _MSS.
  Records of the County Court of Middlesex_, I, 39; III, 107, 194;
  IV, 97, 171, 173.]

On presentment by the grand jury[583] or voluntarily confessions
were made by wives and husbands before the court; and these
documents contain evidence of the close relation


TABLE III

CASES OF FORNICATION BEFORE MARRIAGE IN THE COUNTY COURT OF
MIDDLESEX COUNTY, MASS., 1649-86 [EXCEPT 1663-71]

During the same period these records contain five cases of
fornication by single persons.

  1. Fine only                               15 married couples
        £20 (together)                        1    "      "
        £5      "                             3    "      "
        £4      "                             6    "      "
        £3      "                             2    "      "
        40s.    "                             3    "      "

  2. Fine or stripes
     _a_) Fine                               10    "      "
        £1 (together)                         5    "      "
        £6     "                              1    "      "
        £4     "                              3    "      "
        £3     "                              1    "      "
        50s. (wife)                           1
     _b_) Stripes                            10    "
        20                        6 husbands 0 wives
        15                        1     "    0   "
        10                        3     "   10   "

  3. Stripes only
        15                        1     " (the wife 50s. or whipped)

  4. Confessions and petitions                3 married couples

  5. Convicted and respited                   1   "     "

existing between the colonial church and state. On October 31, 1671,
for instance, Christopher Wheaton and Martha his wife were sentenced
in Boston to make an acknowledgment "in publique at Hull to y^e
Satisfaction of y^e Congregation, & pay twenty Shillings fine," on
pain of being whipped ten stripes each by the constable.[584] An
elaborate "church confession," found among the Middlesex Files,
would seem to prove that in another case the decree of the court
was obeyed; and that the written acknowledgment made before the
congregation was returned to the court for record.[585]

  [Footnote 583: See the long petition and confession of Samuel and
  Elizabeth Manning, who had been presented by the grand jury of
  Middlesex. It is expressed in perfervid pious phrase, much like
  the "church confession" presently referred to: _MSS. Files of the
  County Court of Middlesex_, June, 1664.]

  [Footnote 584: _MSS. Records of the County Court of Suffolk_, 22.
  There was another sentence of this kind at the same session of
  this court.]

  [Footnote 585: See the acknowledgment of Samuel Wright and Lydea
  his wife beginning: "for as much as wee are heere called to
  confese our sine before God and his people wee doe therefore
  heere accnowlidg that wee haue sined in that wee haue brokne the
  seuenth comandmente in neglecting of our deuty therein required
  and comitinge the sine forbiddene: to the dishonour of God and
  Scandalizinge of the gospel;" and so on in scriptural phrase to
  the extent, in the author's copy, of a large typewritten page:
  _MSS. Files of the County Court of Middlesex_, Oct., 1664.]

The files and records of the same two counties, supplemented by the
record of the superior court, may next be examined for the period
of the second charter. The impression made by their contents is
decidedly disagreeable and depressing. The coarser and more heinous
sexual crimes are growing more frequent, although due allowance
must be made for the increase of population. Indeed, the bulk of
the records of the general sessions appears to be concerned with
sexual immorality of almost every kind.[586] Inquiry is, however,
here restricted to the two classes of cases thus far considered.
For convenience the material is treated chronologically in two
divisions. The first division covers the period ending in 1725;
and the second the years 1726-80. Within the former period (Table
IV) the records of the general sessions of Suffolk for the years
1702-25, inclusive,


TABLE IV

SUMMARY OF FORNICATION CASES BEFORE THE GENERAL SESSIONS OF SUFFOLK
COUNTY, 1702-25, AND THE GENERAL SESSIONS OF MIDDLESEX COUNTY,
1692-1725

     Between 1702 and 1725 the following cases brought conviction
     before the general sessions for Suffolk county:

  Cases of fornication where the woman alone was sentenced       104

  Cases of conception before marriage with fine, and in a few
    cases fine or whipping for husband, or both husband
    and wife                                                      48

  Cases of woman fined or whipped, and putative (or acknowledged)
    father sentenced to maintenance of child                      44

     Between 1692 and 1725 there were the following convictions
     before the general sessions for Middlesex county (each case
     stands for both man and woman if both were tried):

  Cases of fornication                                           135

  Cases of fornication and conception before marriage            155

yield forty-eight cases of conviction of married couples for
pre-nuptial misconduct, as compared with 148 cases of single women
sentenced for the same offenses.[587] The corresponding records
of the general sessions of Middlesex for the years 1692-1725
contain the extraordinary number of 155 cases of the first class,
as compared with 135 of the second. In a great many instances the
husband or both husband and wife appear "freely and voluntarily" and
confess their guilt.

  [Footnote 586: There are (1) many cases of bastardy, the woman
  being usually fined or whipped and the man in most cases
  sentenced merely to contribute to the child's support; for a
  few examples see _MSS. Records of the Court of Gen. Sessions of
  Suffolk_, I, 112 (1705), 190, 192 (1709); II, 234 (1719); III,
  154, 308 (1724); IV, 331 (1731): _MSS. Records of the Court of
  Gen. Sessions of Middlesex_, II, 197, 203, 204 (1729-30); (2)
  killing of bastard, at least ten convictions between 1692 and
  1725, in nine of which the woman was sentenced to death; and not
  less than a dozen presentations and one capital sentence after
  1725: see examples in _MSS. Records of the Superior Court of
  Judicature_, II (1686-1700), 49, 50; III (1700-1714), fol. 270;
  _ibid._ (1725-29), fol. 111; _ibid._ (1772), fol. 98; _ibid._
  (1757-59), 295; (3) miscegenative fornication, a number of cases,
  the white woman almost always receiving twenty stripes: examples
  in _MSS. Records of the Court of Gen. Sessions of Suffolk_, I,
  144 (1706), 206 (1710); II, 43, 45 (1713); (4) rape, at least two
  cases: _MSS. Records of Superior Court of Judicature_ (1739-40),
  fol. 225; _ibid._ (1767-68), fol. 261; (5) prostitution of wife,
  one case: _MSS. Minute Books of the Court of Gen. Sessions of
  Suffolk_, III, Dec. 3, 1756. The darker crimes were, however, not
  unknown to the period of the first charter. Between 1674 and 1681
  in Massachusetts four persons were sentenced to death for rape:
  NOBLE, _Records of the Court of Assistants_, I, 21, 50, 74, 199.]

  [Footnote 587: Here are two typical cases:

  Aug. 27, 1711: "Joseph Holbrook and Mary Cooke ... being
  presented ... for fornication, He appeared and owned the same;
  and that he is since Married to her. Ordered That [he] ... shall
  pay a Fine of Three pounds in behalf of himself and his 2d Wife &
  Costs ... standing Co[=m]itted."--_MSS. Records of the Court of
  Gen. Sessions of Suffolk_, I, 234.

  April 4, 1721: "Mary Shaw the Wife of Benjamin Shaw ... being
  presented for having a child in September last, about five
  Months after Marriage, appeared and owned the same. Ordered That
  [she] ... pay a fine of Forty Shillings ... Costs ... standing
  committed."--_Ibid._, III, 83.

  A sentence that includes the alternative of whipping is rare; for
  an example (July, 1702) see _ibid._, I, 4. The proceedings in
  the case of Benjamin and Hopestill Allen, March 5, 1696-7--Nov.
  23, 1698, are especially instructive. They were presented by the
  grand jury of Bristol for having a child within six months after
  publishment. Hopestill was fined 50 shillings, or to be whipped
  ten stripes. On appeal to the superior court the legality of the
  marriage was called in question. The privilege of appeal was
  granted by special act of the legislature: with the _MSS. Early
  Court Files of Suffolk_, No. 3728, compare the _MSS. Records of
  the Superior Court of Judicature_, II, 198; and the petition and
  act regarding appeal in _MSS. Mass. Archives_, XL, 476, 478, 483.]


TABLE V

FORNICATION CASES BEFORE THE GENERAL SESSIONS OF MIDDLESEX COUNTY,
MASS., FOR EACH QUINQUENNIUM, 1726-80[588]

  ===========================================================================
                           |                QUINQUENNIUM               |
                           +---+---+---+---+---+---+---+---+---+---+---+-----
                           | 26| 31| 36| 41| 46| 51| 56| 61| 66| 71| 76|TOTAL
                           | - | - | - | - | - | - | - | - | - | - | - |
                           | 30| 35| 40| 45| 50| 55| 60| 65| 70| 75| 80|
  -------------------------+---+---+---+---+---+---+---+---+---+---+---+-----
  Single women             |   |   |   |   |   |   |   |   |   |   |   | 523
    Appeared and confessed | ..| 13|  2|  4| 12|  4| 10|  6|  5| 13| 21| ...
    Confessed on           |   |   |   |   |   |   |   |   |   |   |   |
      recognizance         |  2|  3| 12|  3|  9|  7|  9|  6|  4|  2|  2| ...
    Pleaded guilty         |  9|  2|  3| 12| 10|  4| 11| 11| 13|  5|  2| ...
    Pleaded guilty and     |   |   |   |   |   |   |   |   |   |   |   |
      named man            |  1|  3|  1|  4|  5|  6| 21| 18| 16|  7|  3| ...
    Conf. on recogniz'nce  |   |   |   |   |   |   |   |   |   |   |   |
      and named man        | 10|  4|  6|  4|  3|  6| 16| 11| 15|  9|  1| ...
    Appeared, confessed,   |   |   |   |   |   |   |   |   |   |   |   |
      and named man        |  4| 15|  5|  1|  5|  4|  3|  9| 15| 16| 45| ...
  Married couples          |   |   |   |   |   |   |   |   |   |   |   | 160
    Appeared and confessed | 37| 65| 16|  3|  1| ..|  1| ..| ..| ..| ..| ...
    Pleaded guilty         | 15|  9|  8|  1|  1| ..| ..| ..| ..| ..| ..| ...
    Pleaded not guilty,    |   |   |   |   |   |   |   |   |   |   |   |
      but convicted        |  2| ..|  1| ..| ..| ..| ..| ..| ..| ..| ..| ...
  Wives[589]                 |   |   |   |   |   |   |   |   |   |   |   |  31
    Appeared and confessed |  2|  1|  3| ..|  1| ..| ..| ..|  1| ..| ..| ...
    Pleaded guilty         |  3| ..| ..| ..|  1|  2|  6|  7|  4| ..| ..| ...
                           +---+---+---+---+---+---+---+---+---+---+---+-----
      Total                | 85|115| 57| 32| 48| 33| 77| 68| 73| 52| 74| 714
  -------------------------+---+---+---+---+---+---+---+---+---+---+---+-----

This is especially true during the decade following 1715, there
being five such confessions at one sitting of the court, four of
them on one page of the record.

  [Footnote 588: In addition to the 714 cases comprised in the
  table, during the same period 73 single men, perhaps all involved
  in those cases, were before the court as follows: putative
  fathers, 54; settled out of court, 9; appeared and gave bond to
  save the town, 8; fornication, pleading guilty, 2. Of these one
  (1750) was fined £5; and one (1732) was given the choice of 10
  shillings or ten stripes.]

  [Footnote 589: Fornication before marriage (presumably with
  husband).]

The results for the later period (Table V) are still more striking.
Before the Middlesex court alone, during the fifty-five years
commencing in 1726, were 523 cases of single women and 191 cases
of married couples; but 189 of these couples were tried during the
twenty-five years ending in 1750--there being but two isolated cases
of confession after that date--and 181 within the first fifteen
years. On the


TABLE VI

PENALTIES IMPOSED IN CASES COMPRISED IN TABLE V[590]

  ===================================
    Fine  | Single | Married | Wives
          | Women  | Couples |
  --------+--------+---------+-------
  £12½    |   ..   |     1   |  ..
  £9      |    1   |    ..   |  ..
  £6      |    1   |     2   |  ..
  £5      |   18   |    37   |  ..
  £4      |   48   |    61   |   3
  £3      |    6   |    ..   |  ..
  50s     |   10   |    ..   |   1
  40s     |   24   |     2   |   4
  30s     |    9   |    ..   |   3
  25s     |    8   |     1   |  ..
  20s     |   43   |     3   |  ..
  15s     |   20   |    ..   |  ..
  10s     |   96   |     2   |   2
   5s     |  169   |    ..   |  16
   4s     |   11   |    ..   |  ..
   3s     |   13   |    ..   |   2
   2s     |    7   |    ..   |  ..
   1s     |   10   |    ..   |   1
          |  ---   |   ---   | ---
    Total |  494   |   109   |  32
  --------+--------+---------+-------

other hand, 337 single women were convicted during the twenty-five
and 257 during the same fifteen years. Again, 118 out of the
181 married couples tried between 1726 and 1740 appeared and,
presumably, freely confessed their faults. The leading years in
this regard are 1730 with twelve, 1732 with twenty-nine, and 1734
with sixteen confessions. The leading quinquennium is the second
(1731-35) with sixty-six confessions as compared with thirty-nine in
the first (1726-30) and nineteen in the third (1736-40). To offset
these figures we find thirteen presumably voluntary confessions by
single women in the second quinquennium, none in the first, and
two in the third. These facts seem to point directly to the action
of special causes in producing this kind of immorality, or, at any
rate, its confession. Whether this action was local for Middlesex
cannot positively be determined from these documents alone;
although, as will soon appear, other evidence shows that this cannot
be assumed. After 1725 the records for Suffolk are incomplete; but
it is surprising that during the seven years (September, 1725,
to October, 1732) covered by Table VII there were in that county
only seven convictions of married couples, not one of whom freely
confessed, as compared with forty-eight cases of single women,
including one confession.

  [Footnote 590: In general the later the date of the case, the
  smaller the fine. With few exceptions fines of 25 shillings or
  less are after 1745; and most of those for 5 shillings or under
  are many years later. The "married couples" and the "wives" are
  only fined. Eight "single women" have the alternative of fine
  or stripes as follows: One (1734), £5 or 5 stripes; two (1755,
  1770), £3 or 10 stripes; two (1746, 1756), 50 shillings or 10
  stripes, the first being an "old offender;" one (1751), an "old
  offender," 40 shillings or 10 stripes; one (1758), 10 shillings
  or 10 stripes; one (1761), 5 shillings or 10 stripes. One woman
  (1747), whose child is a mulatto bastard, is given 20 stripes and
  sold into "service." In two similar cases (1759, 1772) 10 and
  20 stripes respectively are deemed sufficient; while in another
  instance (1761) an "old offender" is sentenced to 20 lashes. In
  the later years, it will be noted, stripes decrease in money
  value. On the other hand, with the progress in humanism, they are
  probably lighter and therefore worth less.]

There can be little doubt that in the eighteenth century, just
as in the age preceding, the general cause of this ante-nuptial
immorality--and probably also of some part of the similar
misconduct of single persons whose engagements were not followed by
wedlock--was the custom of solemn pre-contract which still survived.
During the second quarter of the eighteenth century the penalties
were relatively severe, though not so rigorous as during the period
of the first charter; but the facts exhibited in Table VI show that
the courts still treated pre-nuptial offenders more mercifully than
those who were not married.

To determine the special cause of the sudden rise in the number
of confessions during the same period is a more difficult matter.
It is not improbable that a suggestion of Charles Francis Adams,
regarding another aspect of the problem, may give us a clue to
its right solution. Already the practice of church confession of
these offenses, in obedience to judicial decree, has been noticed;
and independently of the courts, as a religious expiation, such
acknowledgments were required by the authority of particular
churches. In the eighteenth century, if not earlier, under the
"seven months rule," the culpable parents were forced to humble


TABLE VII

FORNICATION CASES BEFORE THE GENERAL SESSIONS OF SUFFOLK COUNTY,
MASS., SEPTEMBER, 1725, TO OCTOBER, 1732[591]

  ==================================+=======================================+===
                                    |                 YEAR                  |
                                    +----+----+----+----+----+----+----+----+---
                                    |1725|1726|1727|1728|1729|1730|1731|1732|TO-
                                    |    |    |    |    |    |    |    |    |TAL
  ----------------------------------+----+----+----+----+----+----+----+----+---
  Single women:                     |    |    |    |    |    |    |    |    |
    Confessed                       | .. | .. | .. | .. | .. | .. | .. | .. |  1
      £3 or 10 stripes              | .. | .. |  1 | .. | .. | .. | .. | .. | ..
    Pleaded guilty                  | .. | .. | .. | .. | .. | .. | .. | .. |  8
      £4 or 10 stripes              | .. | .. |  2 | .. | .. | .. | .. | .. | ..
      £3 or 10 stripes              | .. | .. |  2 | .. | .. |  1 | .. | .. | ..
      £2 or 10 stripes              | .. | .. | .. |  1 | .. |  1 | .. |  1 | ..
    Pleaded not guilty, but         | .. | .. | .. | .. | .. | .. | .. | .. |  3
      convicted £5 or 10 stripes    | .. | .. | .. | .. | .. |  1 | .. | .. | ..
      10 stripes                    | .. | .. | .. |  1 | .. |  1 | .. | .. | ..
    Pleaded guilty and named man    | .. | .. | .. | .. | .. | .. | .. | .. | 35
      £5 or 10 stripes              | .. |  1 | .. | .. | .. | .. | .. | .. | ..
      £4 or 10 stripes              |  2 |  2 |  1 | .. |  2 | .. | .. | .. | ..
      £3 or 10 stripes              |  1 |  2 |  2 |  5 |  3 |  4 |  3 |  1 | ..
      £2 or 10 stripes              | .. | .. | .. |  1 |  1 | .. |  1 |  3 | ..
    Came in freely and accused a man| .. | .. | .. | .. | .. | .. | .. | .. |  1
      £2 or 10 stripes              | .. | .. | .. | .. | .. | .. |  1 | .. | ..
  Married couples:                  |    |    |    |    |    |    |    |    |
    Fornication before marriage,    |    |    |    |    |    |    |    |    |
        man alone accus'd           | .. | .. | .. | .. | .. | .. | .. | .. |  2
      20s. or 10 stripes            | .. | .. | .. | .. | .. |  1 |  1 | .. | ..
    Fornication before mar'ge, woman|    |    |    |    |    |    |    |    |
        alone accus'd               | .. | .. | .. | .. | .. | .. | .. | .. |  5
      40s. or 10 stripes            | .. |  1 | .. | .. |  1 |  1 | .. | .. | ..
      20s. or 10 stripes            |  1 |  1 | .. | .. | .. | .. | .. | .. | ..
                                    +----+----+----+----+----+----+----+----+---
          Total                     |  4 |  7 |  8 |  8 |  7 | 10 |  6 |  5 | 55
  ----------------------------------+----+----+----+----+----+----+----+----+---

themselves before the whole congregation or else expose their
innocent child to the danger of eternal perdition.[592] Yet, in
spite of the fact that the clergy had thus devised a punishment more
terrible to bear than the fines or stripes imposed by the criminal
law, during the very period under consideration the church records
show a great increase in the number of confessions. Adams suggests
that an explanation may be found in the religious excitement which
generally prevailed during the second quarter of the eighteenth
century, the period which includes the "Great Awakening" under
Whitefield in 1740, the Northampton revival of 1735, "engineered and
presided over by Jonathan Edwards," and earlier "harvests" of the
same character.[593] At Braintree, for example, there was a vast
increase in the number of church confessions during the pastorate of
John Hancock, 1726-43. It was "everywhere noticed that the women,
and especially the young women, were peculiarly susceptible to
attacks of the spiritual epidemic. Jonathan Edwards for instance
mentions, in the case of Northampton, how the young men of that
place had become 'addicted to night-walking and frequenting the
taverns, and leud practices,' and how they would 'get together
in conventions of both sexes for mirth and jollity, which they
called frolicks; and they would spend the greater part of the
night in them;' and among the first indications of the approach
of the epidemic noticed by him was the case of a young woman who
had been one of the greatest 'company keepers' in the whole town,
who became 'serious, giving evidence of a heart truly broken and
sanctified.' This same state of affairs doubtless then prevailed in
Braintree, and indeed throughout New England. The whole community
was in a sensitive condition morally and physically."[594] The
morbid quickening of the conscience would thus naturally result
in a greater number of confessions rather than in an increase of
sexual license; and this same cause seems adequate to explain the
extraordinary number of confessions which we have found in the
contemporary court records.[595] Besides, after the sin had been
disclosed before the congregation, an acknowledgment in court would
almost necessarily follow. It would be very strange, however, if
there were not a considerable increase in immorality. The practice
of bundling, as Adams believes,[596] may have afforded ready
opportunity. Any violent or protracted disturbance of the mental or
nervous equilibrium, often tending to produce sexual excesses, would
be sure to find "vent" in so dangerous a custom, especially when
sanctioned by the recognized doctrine of betrothal.

  [Footnote 591: During the period are also fifteen cases of
  putative fathers. Voluntary accusations of putative fathers were
  looked on with suspicion. In the fragments of later records of
  Suffolk it is not uncommon for the court to refuse to put the
  woman on her oath in such cases.]

  [Footnote 592: By this rule children born in less than seven
  months after marriage were refused baptism, that is, were put
  in peril of eternal damnation, unless the parents made public
  confession of their fault before the whole congregation: ADAMS,
  _Some Phases of Sexual Immorality_, 20 ff.

  In like spirit other offenses were subjected to church
  discipline. For minor shortcomings, such as cheating, the
  culprit, after examination, was required to give "christian
  satisfaction" by public confession of penitence. If he refused,
  he was "suspended" from the communion. For adultery the penalty
  was "excommunication" on refusal to confess: and this punishment
  in Puritan New England meant as complete a social ostracism as
  it did in old England during the Middle Ages. Sometimes the most
  shameful wrongs resulted from these church trials; and this is
  well illustrated by the case of Abigail Muxon who, in 1783, on
  the unsworn testimony of two gossips, was condemned for alleged
  misconduct, thirty years after she was "suspended" on the same
  charge. She positively declared the evidence of the witnesses
  false. She was then an old woman; but "there was no friend or
  attorney to represent her before the self-righteous tribunal;
  and without cross-examining the unsworn witnesses, the church
  voted (men only were allowed to vote) that she is guilty of the
  charge." For weeks she refused to "confess," although she was
  "admonished" by the parson and "labored" with by the brethren. At
  last before a tribunal of six ministers "her excommunication was
  pronounced by Parson Everitt, who in his condemnation describes
  her 'as being visibly a hardened and impenitent sinner out of the
  visible Kingdom of Christ, one who ought to be viewed and treated
  by all good people as a heathen and publican in imminent danger
  of eternal perdition'": For a full discussion of this case see
  the fascinating book of BLISS, _Colonial Times on Buzzard's Bay_,
  99-101, 111-14.]

  [Footnote 593: ADAMS, _op. cit._, 26 ff. The following scarce
  works are in the Harvard library: JONATHAN EDWARDS, _Thoughts
  concerning the Present Revival of Religion in New England_
  (London, 1745); CHAUNCEY, _A Letter from a Gentleman to Mr.
  George Wishart ... concerning the State of Religion in New
  England_ (Edinburgh, 1742), criticising Tennant and Whitefield;
  _The State of Religion in New England_ (Glasgow, 1742); and
  especially the _Letter from New England_ (1742), 4, describing
  the symptoms of "conversion."]

  [Footnote 594: ADAMS, _op. cit._, 28.]

  [Footnote 595: The church confessions of married couples and
  single persons continued long after confession ceased to be made
  in court. In Groton the "seven months rule" was put in force
  in 1765 and not abrogated until 1803. Under its operation "the
  records of the Groton church show that out of two hundred persons
  owning the baptismal covenant in that church during the fourteen
  years between 1761 and 1775 no less than sixty-six confessed to
  fornication before marriage. The entries recording these cases
  are very singular. At first the full name of the person, or
  persons in the case of husband and wife, is written, followed
  by the words 'confessed and restored' in full. Somewhat later,
  about the year 1763, the record becomes regularly 'Confessed
  Fornication' which two years later is reduced to 'Con. For.;'
  which is subsequently still further abbreviated into merely
  'C. F.' During the three years 1789, 1790, and 1791 sixteen
  couples were admitted to full communion; and of these nine had
  the letters 'C. F.' inscribed after their names in the church
  records." The practice existed at Dedham, Roxbury, and probably
  throughout Massachusetts: ADAMS, _op. cit._, 20-23, citing
  BUTLER, _History of Groton_, 174, 178, 181; WORTHINGTON, _History
  of Dedham_, 108, 109; and _Report of Boston Record Commission_,
  vi, 93, _passim_.]

  [Footnote 596: ADAMS, _op. cit._, 31 ff., 34. JUDD, _History
  of Hadley_ (Northampton, 1863), 247, note, mentions Jonathan
  Edwards's sermon against bundling.]

Finally it is not without interest to note that the higher legal
significance of the "contraction," as compared with that of the
English _sponsalia_, is due mainly to the influence of the Jewish
law. The code of Moses mentions no fixed ceremonies for concluding
marriage.[597] But precisely the same relation as by the Puritans
is fixed between marriage and betrothal. For criminal assault upon
the betrothed "damsel that is a virgin" and for adultery the death
penalty is prescribed.[598] Later, however, the rabbinical law
establishes "certain legal formalities for the act of concluding
marriage. The act consisted of two distinct parts, intervened by the
lapse of a certain time, the betrothment and the nuptials."[599]
To constitute a legal betrothment the mere consent of the parties
did not suffice. The performance of a solemn act was required. This
consisted in the man's giving to his chosen bride in the presence
of two witnesses either a written instrument, _sh'tar_, or a piece
of money, _kaseph_, and saying: "Be thou consecrated (wedded)
to me."[600] The contract thus made is not a "mere promise to
marry," with civil consequences for non-fulfilment. "It is the very
initiation of marriage. The betrothed parties are in some respects
regarded as married, though not yet entitled to the marital rights
nor bound to fulfil any of the mutual duties of conjugal life....
The betrothment could be dissolved only through death or a formal
bill of divorce."[601]

  [Footnote 597: MIELZINER, _The Jewish Law of Marriage and
  Divorce_, 75.]

  [Footnote 598: Deut. 20:7; 22:22-29.]

  [Footnote 599: MIELZINER, _op. cit._, 75.]

  [Footnote 600: _Ibid._, 78. "As the formality of contracting
  marriage by money had in the Rabbinical Law merely a symbolical
  character, a coin of the least value (the _peruta_, the smallest
  used in Palestine), and even any other object representing such a
  value, could be used."--_Ibid._, 79. The practice may have been
  derived from the Roman _coemptio_. "The rabbinical formality
  differs, however, from the Roman in this, that the act is done
  by the man only; _he_ gives the money or its value, and _he_
  speaks the formula, while her consent is expressed by her silent
  acceptance of both. This passivity on her side is in consequence
  of the Talmudic principle based on the expression used in the
  Mosaic law: 'If A Man Taketh A Wife;' he takes and she _is_
  taken; he is the active and she the passive party."--_Talm.
  Kiddushin_, 2_b_ and 3_b_; MIELZINER, _op. cit._, 78 n. 2. During
  the Middle Ages it became customary to use a plain ring instead
  of the piece of money: _ibid._, 79, 80.]

  [Footnote 601: MIELZINER, _The Jewish Law of Marriage and
  Divorce_, 76.]

Among the Jews it was quite customary for the betrothal to be
preceded by an "engagement," but it was not legally required.[602]
The Puritan went farther in this regard, regulating proposal and
courtship, as well as the pre-contract and nuptials, by statute.

  [Footnote 602: _Ibid._, 77. "Since the third century it was
  regarded as improper to effect a betrothment without a previous
  engagement."--_Ibid._, 77.]


V. BREACH OF PROMISE AND MARRIAGE PORTIONS

The New England contraction or public betrothal, when its social and
legal consequences are considered, is thus seen to be an institution
of far more historical interest than the scanty attention it has
hitherto received would lead one to infer. This is all the more
apparent when the accompanying practice of legal courtship is kept
in view. Never, perhaps, in any modern society has parental control
been so pronounced. But if consent were once given and sealed by
a contract in due form, it could not be lightly withdrawn. The
early records abound in notices of suits for breach of promise. The
colonists were a litigious people; and members even of some of the
best families do not hesitate to drag their matrimonial difficulties
into court. Sometimes a jilted lover sues his fickle sweetheart;
or a forlorn maiden seeks satisfaction from her betrothed spouse.
Thus the Massachusetts court "orders that Joyce Bradwicke shall giue
unto Alex: Becke the so[=m]e of xx^s, for promiseing him marriage
w^{th}out her ffrends consent, & nowe refuseing to [p=]forme the
same."[603] Likewise in the Plymouth jurisdiction we find John
Sutton complaining "against Mary Russell, in an action of the case,
to the damage of two hundred pounds, for engageing herselfe to
another by promise of marriage, whenas shee had engaged herselfe by
promise of marriage vnto the said John before. The jury find for
the plaintiffe fifteen pounds damage, and the cost of the suite
which came to 1^{lb} 10^s 6^d."[604] But this did not entirely
end the matter. In 1662-63 the case was taken up for review, Mary
having in the meantime become the wife of John Jacob. After a
careful rehearing, the court reaches the curious decision that
Mary's "actinges haue bine such ... as may not reflect vpon her
disparagement, wee apprehending that what wrong hath bine vnto John
Sutton heerin hath bine rather occationed by her father than by ...
herselfe, shee haueing heard such thinges concerning the said Sutton
as might justly discurrage her, although the truth of these reports
wee see not cause to determine." Whereupon, oddly enough, it is
decreed "that the abouesaid John Sutton doe pay vnto John Jacob ...
the su[=m]e of fifty shillings."[605]

  [Footnote 603: _Mass. Col. Rec._, I, 104.]

  [Footnote 604: _Plym. Col. Rec._, VII, 101.]

  [Footnote 605: _Ibid._, 109.]

Sometimes a parent joins with his aggrieved child in seeking
reparation; as when "Richard Siluester, in the behalfe of his
daughter, and Dinah Siluester in the behalfe of herselfe" recover
twenty pounds and costs from John Palmer, "for acteing fraudulently
against the said Dinah, in not [p=]forming his engagement to her in
point of marriage."[606]

  [Footnote 606: _Ibid._, 101.]

The proceedings of the Massachusetts courts contain the record of
many similar suits under a variety of conditions. Some are ordinary
cases of breach of promise.[607] In 1735 a woman was awarded two
hundred pounds and costs at the expense of her betrothed who after
jilting her had married another, although he had first beguiled
her into deeding him a piece of land "worth £100."[608] Hopestill
Aldrich in 1764 was not so successful. The higher court on appeal
declined to give her damage, because after beginning her action
against the faithless Darius Daniels she had married David Bowin,
"who is still living and is her lawful husband."[609] A number
of cases afford further evidence of the danger lurking in the
New England doctrine of espousals, the indemnity sought being
intended in part to punish personal wrongs committed under cover of
pre-contract.[610]

  [Footnote 607: For examples see _MSS. Records of the County Court
  of Middlesex_ (Apr. 2, 1661), I, 185; _MSS. Early Court Files of
  Suffolk_ (1663), No. 573; _MSS. Records of the Superior Court of
  Judicature_ (1725-29), fol. 333; _ibid._ (1725-30), fol. 338;
  _ibid._ (1730-33), fol. 196.]

  [Footnote 608: _Ibid._ (1735-36), fol. 243.]

  [Footnote 609: Case of Daniels _v._ Bowin _et ux._: _ibid._
  (1764-65), fol. 4.]

  [Footnote 610: Thus in 1686 John Row was sentenced for
  "committing folly with Martha Beale, then servant to his father,
  & publishing himself in marriage to her and now denying to
  accomplish the marriage."--_MSS. Records of the County Court
  of Middlesex_, IV, 218. For other cases of this kind see _MSS.
  Records of the Superior Court of Judicature_ (1730-31), fol. 1;
  _ibid._ (1745-46), fol. 253; _MSS. Early Court Files of Suffolk_
  (Nov. 19, 1663), No. 600.]

Puritan lovers did not always hesitate to prosecute their parents
for refusing marriage when permission had once been given. Such
was the fate of Hope Allen, who admitted before the Massachusetts
court that "he did give his consent y^t y^e said Mr. Deacon should
haue his daughter;" and accordingly for breaking his word he was
censured, and had to pay a fine of ten pounds for his "irregular
procedure."[611] The action might take a still more interesting
form, including both the recreant parents and the promised consort
in the same complaint. In this way Richard Sutton alleges "against
Moses Symonds and Sarah, his wife, and Elizabeth theire daughter,
that shee, the said Elizabeth, hath made a promise of marriage
vnto him, and is hindered by the parents ... from proceeding with
her therin." The court after due consideration decides that Moses
ought to pay the said Richard "the su[=m]e of three pounds, for
satisfaction for his time and charges spent about the [p=]mises;"
but not without kindly releasing the couple from their engagement,
"vnless on second considerations they shall see cause to renew
theire former couenants."[612]

  [Footnote 611: _Mass. Col. Rec._, IV, Part II, 458.]

  [Footnote 612: _Plym. Col. Rec._, V, 116.]

These illustrations would seem to show that the blighted hopes and
disappointed affections of New England lovers were not judicially
reckoned at an extortionate figure. But those were the days of
"small change" in all domestic affairs. As a matter of fact, the
colonists were a close-fisted, bargaining race;[613] and in no
respect perhaps were they more prudent than in their matrimonial
transactions. Sometimes very careful contracts were executed in
court regarding the property rights of the future husband and
wife.[614] Often before betrothal and almost invariably before
wedlock an exact arrangement was made between the parents touching
the marriage portion on either side. The "higgling of dowries,"
suggests Weeden, was one of the most "singular practices" of New
England life.[615] Even paupers were provided a marriage portion at
the county's charge.[616] No shrewder hand at a bargain existed
than Judge Sewall, whose _Diary_ and _Letter-Book_ are crowded
with illustrations of this and other matrimonial customs. In 1712
we find him planning a match between his daughter Mary and young
Samuel Gerrish. So he dines with the father and "discourses" with
him "about my Daughter Mary's Portion. I stood for making £550 doe:
because now twas in six parts, the Land was not worth so much. He
urg'd for £600. at last would split the £50. Finally Feb. 20. I
agreed to charge the House Rent and Difference of Money, and make it
up to £600."[617]

  [Footnote 613: For many proofs of the niggardly economy and
  exceeding "nearness" of the old New Englander see BLISS,
  _Colonial Times on Buzzard's Bay_; WEEDEN, _Ecc. and Soc. Hist.
  of N. E._; and especially the _Diary_ and _Letter-Book_ of SAMUEL
  SEWALL.]

  [Footnote 614: An example is afforded by the _Plym. Col. Rec._,
  IV, 163, where a stipulation is entered into between a widow and
  a widower about to marry. By this agreement the children are to
  remain "att the free and proper and onely dispose of theire owne
  naturall parents, as they shall see good to dispose of them." The
  wife is to retain "all her house and land goods & cattles, that
  shee is now possessed of, ... to dispose of them att her owne
  free will." If the husband die first, she is to have "one third
  pte ... of his estate that hee dieth possessed of ... during her
  life;" while in case of her death, the husband's property is to
  go to his heirs, "excepting her wearing apparrell and her bed
  and bedding ... which shee shall and may giue att her death to
  whom she pleaseth." For another such marriage agreement see _MSS.
  Early Court Files of Suffolk_ (1671), No. 1063. In the _MSS.
  Records of the Superior Court of Common Pleas for Middlesex_
  (1707), I, 103, is a suit to recover a gift made to a fiancée as
  legacy.]

  [Footnote 615: WEEDEN, _Ecc. and Soc. Hist. of N. E._, I, 413;
  _cf. ibid._, I, 420, II, 541 ff.; also EARLE, _Customs and
  Fashions_, 62 ff., 43 ff.]

  [Footnote 616: Thus in 1638 "Mary Joanes was consented to
  be taken care of by the countrey, and at the countreyes
  charge."--_Mass. Col. Rec._, I, 230. Four years later "It was
  ordered the Treasurer should give Mary Joanes five pounds against
  her Marriage."--_Ibid._, II, 20.]

  [Footnote 617: SEWALL, _Diary_, in 5 _Mass. Hist. Coll._, VI,
  336. In like spirit the judge "dickers" with Joseph Dudley,
  whose daughter had been sought in marriage for Samuel Sewall,
  Jr.: _idem_, _Letter-Book_, in 6 _Mass. Hist. Coll._, I, 279-81;
  _Diary_, in 5 _Mass. Hist. Coll._, VI, 80.]

The worthy magistrate was not less thrifty in managing his own
courtships, never for a moment allowing mere sentiment to get the
better of prudence. From the outset he was lucky; for in 1676,
according to tradition, he received as a dowry with his first wife,
Hannah Hull, her weight in pine-tree shillings, which her father,
the mint-master, measured out to him against her body in his own
scales. In reality, his wife brought him much more than this fabled
treasure; for six years after the wedding he came into the enjoyment
of the mint-master's large estate, thus laying the foundation of his
own fortune and official career.[618] Hannah lived with him more
than forty years, bearing him seven sons and seven daughters. On her
death the judge writes to a friend: "Wife expired on Satterday Oct.
19th, a little before Sun-Sett; and I lost my most constant lover,
my most laborious Nurse; which produc'd a Flood of Tears in our Bed
Chamber."[619]

  [Footnote 618: "Her father died in six years, leaving his
  fortune, which was large for that time, to his daughter and his
  widow. It was practically one estate for the mother lived in the
  most affectionate intimacy in Judge Sewall's family."--WEEDEN,
  _Ecc. and Soc. Hist. of N. E._, I, 420; _cf._ HAWTHORNE,
  _Grandfather's Chair_ (Boston, 1893), chap. vi, 459-64.]

  [Footnote 619: SEWALL'S _Letter-Book_, in 6 _Mass. Hist. Coll._,
  II, 83, 84 (letter of Jan. 25, 1718, referring to his wife's
  death in 1717); _cf._ the _Diary_, in 5 _Mass. Hist. Coll._, VII,
  143, 144.]

Soon, however, he was able to stem the torrent of his grief, for
on the sixth day of the next February he enters in his diary:
"Wandering in my mind whether to lead a Single or a Married
Life."[620] Indeed, several weeks before this, when his wife was
hardly two months dead, his mind and feet had begun to wander in the
direction of Madam Winthrop,[621] upon whom, in his usual kindly
way, he had bestowed certain tokens of his regard.[622] But for the
present the charms of Widow Winthrop had to yield to those of Widow
Dennison, whose goodly estate he had come to admire through having
drawn her husband's will.[623] Attending her home from the funeral
of her late consort, he "prayed God to keep house with her."[624]
This was in March. Presently he opens serious negotiations. He makes
her numerous presents, among which are "A pound of Reasons and
Proportionable Almonds;" a "Psalm-Book neatly bound in England with
Turkey-Leather;" the "last two News Letters;" "Dr. Mathers Sermons
very well bound," and "told her in it we were invited to a wedding;"
a "pair of Shoe-buckles, cost 5^s 3^d;" and "Two cases with a Knife
and a fork in each; one Turtle shell tackling: the other long with
Ivory handles Squar'd, cost 4^s 6^d."[625] In November, after much
visiting and chaffering, he came to the point. "I told her 'twas
time now to finish our Business: Ask'd her what I should allow her;
she not speaking; I told her I was willing to give Two [Hundred]
and Fifty pounds per a[=n]um, during her life, if it should please
God to take me out of this world before her. She answer'd she had
better keep as she was, than give a Certainty for an uncertainty;
she should pay dear for dwelling at Boston. I desired her to make
proposals, but she made none. I had Thoughts of Publishment next
Thorsday, the 6^{th}. But I now seem far from it. May God, who has
the pity of a Father, Direct and help me."[626]

  [Footnote 620: SEWALL'S _Diary_, in 5 _Mass. Hist. Coll._, VII,
  165.]

  [Footnote 621: _Ibid._, 151, 163, 164.]

  [Footnote 622: Feb. 3, 1718, he writes: "I sent Madam Winthrop,
  Smoking Flax Inflamed, the Jewish Children of Berlin, and my
  small vial of Tears."--_Diary_, in 5 _Mass. Hist. Coll._, VII,
  164. On March 14 he sends her a copy of the _Berlin Jewish
  Converts_, _ibid._, VII, 177.]

  [Footnote 623: _Ibid._, 177 (March 19, 1718), 180.]

  [Footnote 624: _Ibid._, 178, 179 (March 26, 1718).]

  [Footnote 625: _Ibid._, 182, 187, 188, 189, 190, 199.]

  [Footnote 626: _Ibid._, 202 (Nov. 1, 1718).]

This is by no means the end. The courtship drags along, and they
continue to "higgle like hucksters and pedlers."[627] "She said she
thought twas Hard to part with _All_, and have nothing to bestow
on her Kindred. I said, I did not intend anything of the Movables,
I intended all the personal Estate to be to her. She said I seem'd
to be in hurry on Satterday ... which was the reason she gave me no
proposals. Whereas I had ask'd her long before to give me proposals
in Writing; and she upbraided me, That I who had never written her a
Letter, should ask her to write." So the thrifty judge, although his
"bowels" did "yern toward Mrs. Dennison," must even decide that God
"in his Providence" directed him to "desist."[628] Later the widow
grew more kind. On the following Lord's day she came to see him in
the evening, walking all the way from Roxbury. She "ask'd pardon if
she had affronted me;" and plainly let it be seen that she was not
averse to the match, if only she were not called upon to "put all
out of her Hand and power" and could "reserve something to bestow"
on her deceased husband's friends "that might want." But, says
Samuel, "I could not observe that she made me any offer of any part
all this while." So "she went away in the bitter Cold, no Moon being
up, to my great pain. I saluted her at parting."[629]

  [Footnote 627: WEEDEN, _Ecc. and Soc. Hist. of N. E._, II, 542.]

  [Footnote 628: SEWALL, _loc. cit._, 205 (Nov. 28, 1718).]

  [Footnote 629: _Ibid._, 206, 207 (Nov. 30, 1718).]

Then the judge turned to Widow Tilly, whom he married on the
next Thanksgiving day (October 29, 1719), though she pleaded
her "Unworthiness of such a thing with much Respect."[630]
But the union was short-lived; for in May of the next year "a
very Extraordinary, awful Dispensation" came to the Judge.
"About midnight," he writes, "my dear wife expired to our great
astonishment, especially mine."[631]

  [Footnote 630: _Ibid._, 225, 232, 233.]

  [Footnote 631: _Ibid._, 255 (May 26, 1720).]

Already by the following December he wants God to "yet again provide
such a good Wife for me, that I may be able to say I have obtained
Favour of the LORD."[632] For in the meantime his mind has been
"wandering" again toward Catherine Winthrop. But the gentle widow
is now very coy and close at a bargain. After many visits and some
interesting love passages,[633] the judge writes, she "was Courteous
to me; but took occasion to speak pretty earnestly about my keeping
a Coach: I said 'twould cost £100. per a[=n]um: she said twould
cost but £40."[634] Clearly the issue was getting too sharply
joined; and it is not wholly surprising that the lady was a trifle
cool at her suitor's next visit.[635] Later he asked her "when our
proceedings should be made publick: She said they were like to be
no more publick than they were already. Offer'd me no Wine that I
remember." She did not offer to help him on with his coat, nor at
his request would she send her servant Juno to light him home.[636]
It is to be feared that Catherine had not forgiven her suitor for
leaving her for Widow Dennison, and was now getting "even." But
the judge stood manfully to his arms. At the next meeting "I told
her ... I was come to enquire whether she could find in her heart
to leave that House and Neighborhood, and go and dwell with me at
the South-end; I think she said softly, Not yet. I told her it did
not ly in my Lands to keep a coach.... Told her I had an Antipathy
against those who would pretend to give themselves; but nothing of
their Estate. I would [give] a proportion of my Estate with my self.
And I su[=p]os'd she would do so."[637] It goes without saying that
when Sewall made his next call the lady was "not at home." After one
or two more futile efforts[638] at coming to terms the grapes began
to sour. The aged wooer somewhat spitefully closes this unlucky
chapter of his courtships with the ungallant remark that "I did not
bid her draw off her Glove as sometimes I had done. Her dress was
not so clean as sometimes it had been. Jehovah jireh."[639] Thus
Eros regained his sight.

  [Footnote 632: Letter of Dec. 13, 1720, to Alexander Dummer, in
  SEWALL'S _Letter-Book_, in 6 _Mass. Hist. Coll._, II, 122, 123.]

  [Footnote 633: "Asked her to Acquit me of Rudeness if I drew
  off her Glove. Enquiring the reason, I told her twas great
  odds between handling a dead Goat and a living Lady. Got it
  off.... Told her the reason why I came every other night was
  lest I should drink too deep draughts of Pleasure. She had
  talked of Canary, her Kisses were to me better than the best
  Canary."--SEWALL'S _Diary_, _loc. cit._, 267.]

  [Footnote 634: _Ibid._, 269.]

  [Footnote 635: _Ibid._, 270.]

  [Footnote 636: "I pray'd her that Juno might light me home, she
  open'd the shutter, and said twas pretty light abroad; Juno was
  weary and gon to bed."--_Ibid._, 271.]

  [Footnote 637: SEWALL, _loc. cit._, 272.]

  [Footnote 638: _Ibid._, 273, 274.]

  [Footnote 639: _Ibid._, 275.]

Several other attempts prove not more successful in providing the
venerable widower with a suitable place to rest his "weary Head
in Modesty."[640] But at last, humbly confessing himself, "aged,
and feeble, and exhausted," he offers himself as a husband to Mrs.
Mary Gibbs, of Newton, who is all too yielding in her reply.[641]
For with this gentle dame the astute wooer, erstwhile so meek, at
once proceeds to drive the sharpest bargain in the long history of
his courtships. As she had no property to leave him by will, he
insists upon the following harsh conditions: "I Rode to Newtown in
the Coach, and visited Mrs. Gibbs. Spake of the proposals I had
intimated per Mr. H. Gibbs; for her Sons to be bound to save me
harmless as to her Administration; and to pay me £100. provided
their Mother died before me: I to pay her £50. per a[=n]um during
her Life, if I left her a Widow. She said 'twas hard, she knew not
how to have her children bound to pay that Sum; she might dye in a
little time. Mr. Cotton, whom she call'd spake to the same purpose,
spake of a Joynture. I said I was peremptory as to the indemnifying
Bond; Offer'd to take up with that alone, and allow her forty pounds
per a[=n]um."[642]

  [Footnote 640: EARLE, _Customs and Fashions of Old New England_.]

  [Footnote 641: SEWALL'S _Diary_, _loc. cit._, 299 (Jan. 12,
  1722), 300.]

  [Footnote 642: _Ibid._, 300, 301.]

These terms, "hard" as they were and again insisted upon with most
unromantic bluntness,[643] were at length accepted by the amiable
Mary; who, surviving her kindly though grasping spouse, was no doubt
by his side, according to his wish, to "carry it tenderly"[644] with
him when he passed to his last reckoning.

  [Footnote 643: "Madam, These are kindly to salute you, and to
  say, that the Omission of Answering one or two of my Letters, and
  of coming to Town, makes it needful to enquire, what the plain
  meaning of your letter of Jan^y. 30^{th} may be. 'I do chuse
  to comply with your last proposal, of Releasing my children,
  and Accepting of the sum you proposed.' The last Proposal was,
  For your children, or some in their behalf, to give Bond,
  to indemnify me from all debts contracted by you before the
  Marriage; and from all matters respecting the Administration.
  This I told you, I peremptorially insist on. I was to secure
  you Forty pounds per a[=n]um during the term of your natural
  Life, in case of your Survival. This proposal must be taken
  entirely, every part of it together, and if the words '_Releasing
  my Children_' intend a Releasing them from this Bond, my last
  Proposal is not accepted by you."--_Ibid._, 303 (Feb. 10, 1722).]

  [Footnote 644: The judge was almost tempted to bargain with his
  intended spouse for affectionate treatment. Speaking with "Mr.
  Dan Oliver," Feb. 2, 1722, he says: "Told, I hoped she was not so
  Attached to her children, but that she would carry it Tenderly
  to me; or else there would soon be an end of an Old Man. I said,
  I su[=p]osed they would clothe her, Answered, no question; And
  would be Tender of me."--_Ibid._, 302. On Sewall's courtships and
  New England wedding customs see HOWE, _The Puritan Republic_,
  chap. v, 111 ff.]


VI. SELF-GIFTA, CLANDESTINE CONTRACTS, AND FORBIDDEN DEGREES

The Separatist and the Puritan, regarding marriage as "purely a
civil contractual relation," logically conceded that "the parties
may marry themselves as they may make other contracts." But, "like
all other civil institutions, this may be regulated by municipal
law. It should therefore be sanctioned by the civil authority;" and
for that reason persons may be fined for marrying without observing
the forms prescribed by the statutes.[645] Nevertheless such legal
restraint, however wholesome and reasonable, seems to have been
resented by the more radical as an interference with individual
liberty; though doubtless the disregard of the marriage laws was in
part due to the rudeness of an early society.

  [Footnote 645: SHIRLEY, "Early Jurisprudence of New Hamp.,"
  _Procds. New Hamp. Hist. Soc._ (1876-84), 307.]

Instances of self-betrothal and self-_gifta_ seem to have been
frequent in all the New England colonies. Thus, in 1678, Edward
Wanton was fined £10 by the general court of Plymouth for "marrying
himself," and Thomas Boarman paid £5 for the same offense. In
1684 William Gifford was fined fifty shillings for contracting a
"disorderly marriage."[646] More interesting is the case of Edward
Perry, on Cape Cod, who appears to have been guilty of self-marriage
in 1654. For this he was fined £5; and Thomas Tupper, of Sandwich,
for neglecting to perform the ceremony, "was 'disallowed' by the
court from solemnizing marriages in future."[647] Then "magistrate
Prence, when passing by on his return from court to Eastham, was to
marry him rightly. Perry refused to be re-married, and was fined £5
more, with the discouraging notice that his fine would be repeated
every three months till he complied."[648]

  [Footnote 646: For these cases see GOODWIN, _Pilgrim Republic_,
  599.]

  [Footnote 647: FREEMAN, _Hist. of Cape Cod_, I, 208.]

  [Footnote 648: GOODWIN, _loc. cit._]

Marriages by the primitive form of "hand-fasting" were not unknown
in Massachusetts. An intelligent French refugee, who visited Boston
two years after the revocation of the Edict of Nantes, writes that
"there are those who practice no Formality of Marriage except
joining Hands, and so live in Common."[649] But the most celebrated
instance of self-_gifta_ is the case of Governor Richard Bellingham,
who in 1641 entered into a private marriage with Penelope Pelham,
herself "about forming a contract with another."[650] "Two errors
more," says Winthrop, "he committed upon it. 1. That he would not
have his contract published where he dwelt, contrary to an order
of court. 2. He married himself contrary to the constant practice
of the country."[651] The governor was therefore indicted for his
offense by the grand jury; but "he declined to leave his place on
the bench" over which he presided, "in order to take a position in
the dock, and thus 'escaped both trial and punishment.'"[652] The
secretary "postponed the case amidst excitement, and it was not
again called up."[653]

  [Footnote 649: SHURTLEFF, _Top. and Hist. Description of Boston_,
  51.]

  [Footnote 650: GOODWIN, _loc. cit._]

  [Footnote 651: WINTHROP, _Hist. of New England_, II, 51, 52. One
  might cheerfully forgive Governor Winthrop, had his sense of
  historical propriety suffered him to go farther into the details
  of the marriage customs. He apologizes parenthetically: "I would
  not mention such ordinary matters in our history, but by occasion
  of some remarkable accidents."]

  [Footnote 652: MORSE, in _Mem. Hist. Bost._, IV, 572. The _MSS.
  Records of the County Court of Middlesex_ (Apr. 1, 1656), I, 80,
  contain the following case: "Mr. Joseph Hills being presented by
  the grand jury for marrying of himself contrary to the law of the
  Colony (page 38 of the old book); freely acknowledged his offence
  and his misunderstanding the grounds whereon he went, which he
  now confessed to be unwarrantable. Admonished by the court."]

  [Footnote 653: GOODWIN, _loc. cit._ See further on Bellingham's
  marriage HILDRETH, _Hist. of U. S._, I, 279; _Mem. Hist. Bost._,
  I, 575.]

In spite of the constantly increasing severity of the penalties,
clandestine marriages gave the lawmaker much trouble.[654] This is
plainly revealed by the laws, already cited, relating to banns,
consent, registration, and celebration,[655] especially by those
of Rhode Island. The act of 1647 provides "that no contract or
agreement between a Man and a Woman to owne each other as Man and
Wife, shall be owned from henceforth threwout the Whole Colonie as
a lawfull marriage, nor their Children or Issue so coming together
to be legitimate or lawfullie begotten," but such as conform to
the statute.[656] The clause relating to the issue of irregular
marriages is noteworthy; for it is contrary to the usual tenor
of the colonial laws, which--anticipating the policy of William
III.--usually imposed severe penalties upon the offenders without
affecting the legitimacy of the children. But even so stringent a
remedy did not suffice. A new law in 1665 enforces that of 1647,
adding the penalty prescribed for "fornication" for non-observance;
but making the important exception in favor of existing irregular
marriages "that any persons now living within the confines expressed
in our late charter, ... that are reputed to live together as man
and wife by the common observation or account of there neighbours
before this act was passed, shall not come vnder any of the
censures, fines, or penaltyes in any of the fore premised acts or
orders, or in this present [order] concearning marriages," though
"there may have been some neglect of the due observation of the
rules and directions to that end therein contained."[657] It appears
that "some persons" had "taken advantage of the law" to render the
children of unregistered marriages illegitimate. An explanatory
statute was therefore enacted in 1698 declaring such marriages
lawful;[658] and in the subsequent legislation of this colony the
lawmaker was content to punish the parties to irregular marriages
without affecting the status of the offspring.[659]

  [Footnote 654: Complaints of clandestine marriages may be found
  in the New Hampshire records: see _Provincial Papers_, IV, 832;
  _New Hamp. Hist. Coll._, VIII, 117, 118. There is an unsettled
  case of alleged clandestine marriage in the _MSS. Early Court
  Files of Suffolk_ (March, 1699-1700), Nos. 4590, 4663.]

  [Footnote 655: See _Conn. Col. Rec._, I, 47, 48, 540; _New Haven
  Col. Rec._, II, 599; and the Massachusetts laws relating to the
  districts of ministers and justices, mentioned above.]

  [Footnote 656: _R. I. Col. Rec._, I, 187; and STAPLES,
  _Proceedings of the First Assembly_, 47, 48.]

  [Footnote 657: _R. I. Col. Rec._, II, 104.]

  [Footnote 658: _Ibid._, III, 361, 362; also in RIDER'S reprint of
  the _Laws and Acts_ (1705), 44.]

  [Footnote 659: See the act of 1701: _R. I. Col. Rec._, III, 435,
  436. Compare RIDER'S _Laws and Acts_ (1705), 50; and his reprint
  of _Charter and Laws_ (1719), 12, 13.]

The clergy of New England, and especially those of Massachusetts,
were much agitated over the question of the degrees of relationship
which should be prohibited in wedlock. Marriage of first cousins,
by affinity as well as by blood, and with a deceased wife's sister
was strongly opposed. That of cousins german had been legalized by a
statute of Henry VIII. in 1540;[660] and the earliest fruit of this
act was the marriage of that monarch with Catherine Howard, first
cousin of Ann Boleyn, his former wife.[661] Within less than two
years thereafter Catherine lost her head; and Sewall, who like the
Mathers regarded such marriages as incestuous, draws a grim moral
from her fate.[662] Indeed, the Puritans, were in sore straits,
fearing lest the "English Nation," while rejecting the excessive
strictness of the Roman church in this regard, had gone "beyond
the golden mean towards the other Extream."[663] In their anxiety
to obey the Mosaic law they even exceeded its requirements.[664]
Already in 1679 the general court, in reply to interrogation,
had decided that marriage with a deceased wife's sister was
unlawful,[665] thus taking the position which has been stubbornly
maintained ever since by the English House of Lords. Interest in
the matter seems, however, to have culminated in 1695. In that year
a meeting of the ministers of Boston, Charlestown, and Dorchester,
with Increase Mather at their head, came to the same conclusion as
the general court in 1679.[666] This led directly to the passage of
the celebrated law against incestuous marriages of the following
June,[667] by which the general court, though not taking "in hand
to determine what is the whole breadth of the divine commandment,"
proceeded, among other prohibitions, to forbid marriage with a
wife's sister or niece.[668] For violation of the law, we have
already seen, the culprit was condemned, as in the case of adultery,
to wear the "scarlet letter." This act[669] remained nominally in
force until after the Revolution; but the statute of 1785 in which
these prohibitions do not appear was adopted seemingly without
discussion.[670]

  [Footnote 660: By 32 H. VIII., cap. 38: _Statutes at Large_
  (London, 1763), II, 298; SEWALL'S _Letter-Book_, in 6 _Mass.
  Hist. Coll._, I, 351-53, 369, 370.]

  [Footnote 661: "The greatest good the Land got by this Match,
  was a general leave to marry Cousin Germans, formerly prohibited
  by the _Crown_, and hereafter permitted by the _Co[=m]on Law_.
  A door of lawfull liberty, left open by God in Scripture; shut
  by the Pope for his privat profit; opend again by the King,
  first, for his own admittance ... and then for the service of
  such Subjects as would follow him."--FULLER, _English Worthies_
  (London, 1840), II, 352; SEWALL'S _Letter-Book_, in 6 _Mass.
  Hist. Coll._, I, 369. Compare his letter of Feb., 1603/4, in _op.
  cit._, 290-93.]

  [Footnote 662: "They that will, from this Example, be fond of
  Marrying Cousin-Germans, Let 'em!"--_Ibid._, II, 19.]

  [Footnote 663: _Ibid._; _cf. ibid._, I, 290-93, where Sewall
  opposes the marriage of his cousin John Sewall with the _widow_
  of the latter's cousin german; also _ibid._, I, 17; and his
  _Diary_, in 5 _Mass. Hist. Coll._, V, 96, 424, for further
  illustrations.]

  [Footnote 664: The Mosaic code does not clearly prohibit marriage
  with a _deceased_ wife's sister: Lev., chaps. 18, 20; Deut.,
  chaps. 23, 27. _Cf._ MIELZINER, _Jewish Law of Marriage and
  Divorce_, 31-40; and chap. xi, sec. ii, _b_.]

  [Footnote 665: WHITMORE, _Col. Laws of Mass._ (1672-86), 102;
  _Mass. Col. Rec._, IV, Part II, 454.]

  [Footnote 666: They published the decision in a printed tract of
  eight pages: _The Answer of Several Ministers to that Case of
  Conscience whether it is Lawful for a man to Marry his Wife's own
  sister_: GODDARD, in _Mem. Hist. Bost._, II, 415 n. 2.]

  [Footnote 667: "Friday, June 14. The Bill against Incest was
  passed with the Deputies, four and twenty Nos, and seven and
  twenty Yeas. The Ministers gave in their Arguments yesterday in
  Writing; else it had hardly gon, because several have married
  their wives sisters, and the Deputies thought it hard to part
  them. 'Twas concluded on the other hand, that not to part them,
  were to make the Law abortive, by begetting in people a conceipt
  that such Marriages were not against the Law of God."--SEWALL,
  _Diary_, in 5 _Mass. Hist. Coll._, V, 407; _cf._ MCKENZIE, in
  _Mem. Hist. Bost._, II, 197.]

  [Footnote 668: But, on the other hand, marriage with a husband's
  brother or nephew is not expressly prohibited; _cf._ 5 _Mass.
  Hist. Coll._, V, 407, note.]

  [Footnote 669: _Acts and Resolves_, I, 209; also _Charters and
  General Laws of Mass._, 283. GODDARD, _Mem. Hist. Bost._, II, 415
  n. 2, is plainly in error when he says that this act "suggested
  the leading incident of HAWTHORNE'S _Scarlet Letter_." It
  probably originated in the similar law, already mentioned, for
  the punishment of adultery which is expressed in nearly the same
  words: see _Acts and Resolves_, I, 171.]

  [Footnote 670: 5 _Mass. Hist. Coll._, V, 407 n. 1.]

The colonial laws on this subject were not allowed to slumber. From
the records of the Connecticut court of assistants, for instance,
it appears that in May, 1694, Nathaniel Finch is complained of "for
that he hath unlawfully married to Elizabeth Hemmeway," sister "of
the said Finch his first wife." The pleas of Finch's attorney are
"esteemed to be insufficient, and also of an offensive nature."
Accordingly, having considered all the facts of the case, the "rules
of God's word, the judgment of most able Divines, and the Laws of
this colony," the court finds the "said marriage to be incestuous
and unlawful," and therefore declares it "to be wholly null and
void;" further relegating the case to the county court to be held at
New Haven the next June, "to lay such punishment on the said Finch
for his said offence as the nature thereof doth require."[671]

  [Footnote 671: _Historical Magazine and Notes and Queries_, II,
  301.]

While the Massachusetts act of 1695 does not expressly prohibit a
woman from wedding her husband's brother, a passage in Sewall's
_Diary_ shows that such unions were already treated as unlawful. On
December 25, 1691, he writes, the "marriage of Hana Owen with her
Husband's brother, is declar'd null by the court of Assistants. She
commanded not to entertain him; enjoin'd to make a confession at
Braintrey before the Congregation on Lecture Day, or Sabbath, pay
fees of court and prison," and "to be dismissed."[672]

  [Footnote 672: SEWALL'S _Diary_, in 5 _Mass. Hist. Coll._, V,
  354. For the case see NOBLE'S _Recs. of the Court of Assistants_,
  I, 361. Samuel Newton, of Marlborough, married his uncle's widow
  and had two children by her. This marriage was judged void "by
  the word of God, as also by the law of England": _ibid._, 342.
  _Cf._ COWLEY, _Our Divorce Courts_, 30, 31.]


VII. SLAVE MARRIAGES

Finally in this connection a word regarding the treatment of slave
marriages in New England may not be wholly out of place. With
respect to the morality of slavery and the slave trade as viewed by
the Puritan the record is perfectly clear. He was no better and no
worse than his contemporaries. In his eyes the commerce in human
chattels, whether red, black, or white,[673] was as legitimate a
business as the handling of West India molasses; though like the
Spaniard he may sometimes have excused or extolled it as affording
a field for missionary work. "The seventeenth century," observes
Weeden, "organized the new western countries, and created an immense
opportunity for labor. The eighteenth coolly and deliberately set
Europe at the task of depopulating whole districts of Africa, and
of transporting the captives, by a necessarily brutal, vicious,
and horrible traffic, to the new civilizations of America....
New England entered upon this long path of twisted social
development--the wanton destruction of barbaric life in the hope of
new civilized life, this perversion of the force of the individual
barbarian into an opportunity for social mischief--with no more and
no less consciousness than prevailed elsewhere at that time. The
Winthrops and other Puritan colonists asked and received Indian
captives for slaves as freely as any partisan went for loot or
plunder."[674]

  [Footnote 673: On white slaves in New England, and elsewhere in
  America, see the valuable article of BUTLER, "British Convicts
  Shipped to American Colonies," _American Historical Review_, II,
  12-33.]

  [Footnote 674: WEEDEN, _Ecc. and Soc. Hist. of New England_,
  II, 449, 450. _Cf._ his entire discussion of the "African Slave
  Trade" in New England, _ibid._, 449-72; and BANCROFT, _Hist. of
  U. S._ (New York, 1888), II, 268-80.]

With respect to matrimonial rights nothing can be more misleading
than the self-gratulations of writers who have treated colonial
history from what Charles Francis Adams has aptly called the
"filio-pietistic" point of view.[675] Thus in his early edition
Bancroft, referring to the alleged mitigating character of
Massachusetts legislation, securing to the slave such protection
"as the Hebrew scriptures seemed to enjoin," declares that "this
brought about a total modification of the character of negro slavery
by giving to the slave the rights of marriage and the family."[676]
Palfrey goes even farther in his zeal, solemnly assuring us that
"from the reverence entertained by the Fathers of New England
for the nuptial tie, it is safe to infer that slave husbands and
wives were never parted."[677] In like spirit statesmen, jurists,
and historians have reiterated the assertion that slavery was not
hereditary in Massachusetts. "In all her annals," says Charles
Sumner, "no person was ever born a slave" on her soil; and if,
in fact, "the issue of slaves was sometimes held in bondage,
it was never by sanction of any statute or law of Colony or
Commonwealth."[678] Similar statements are made by Hurd, Washburn,
and Belknap.[679] Justice Gray declares that "previously to the
adoption of the State Constitution in 1780 negro slavery existed
to some extent, and negroes held as slaves might be sold, but all
children of slaves were by law free."[680] The unsupported dictum
of Palfrey is equally confident. "In fact," he says, "no person was
ever born in legal slavery in Massachusetts."[681]

  [Footnote 675: See his admirable _Massachusetts: Its History and
  Historians_ (Boston, 1893).]

  [Footnote 676: Compare MOORE'S article "Slave Marriages in
  Mass.," in DAWSON'S _Hist. Mag._, 2d series, V (Feb., 1869), 135,
  to which I am much indebted.]

  [Footnote 677: PALFREY, _Hist. of New England_, II, 30, note;
  _cf._ MOORE, _loc. cit._, 135-37.]

  [Footnote 678: SUMNER, in his speech in the Senate, June 28,
  1854: _Works_, III, 384.]

  [Footnote 679: According to HURD, _Law of Freedom and Bondage_,
  I, 225, "the involuntary servitude of Indians and negroes in
  the several colonies originated under a law not promulgated by
  legislation, and rested upon the prevalent views of universal
  jurisprudence, or of the _law of nations_, supported by the
  express or implied authority of the home Government." Compare
  WASHBURN, "The Extinction of Slavery in Mass.," 4 _Mass. Hist.
  Coll._ (1857), IV, 333-46; the same in _Procds. Mass. Hist. Soc._
  (1855-58), 188 ff.; and BELKNAP'S answer to TUCKER'S _Queries_
  (1795), in 1 _Mass. Hist. Coll._, IV, 191-211, which on the
  points under consideration is very superficial and misleading.]

  [Footnote 680: See Justice Gray's note to the case of Oliver
  _v._ Sale: _Quincy's Reports_, 29. The authorities there cited
  are misleading and do not establish the assertions quoted. The
  well-known apology for Massachusetts slavery by NATHAN DANE in
  his _Abridgment_, II, 413, 426, 427, is equally unsupported
  by the facts. The same view as that of Gray is taken by Chief
  Justice Dana in Littleton _v._ Tuttle (1796): 4 _Mass. Reports_,
  128, note; by Chief Justice Shaw in Commonwealth _v._ Aves: 18
  _Pickering's Reports_, 208, 209; and it is repeated in _Cushing's
  Reports_, 410. On the other hand, in Winchendon _v._ Hatfield:
  4 _Mass. Reports_ (1806), 123, Chief Justice Parsons correctly
  says "slavery was introduced" in Massachusetts "soon after its
  first settlement, and was tolerated until the ratification of the
  present constitution" in 1780. "The issue of the female slave,
  according to the maxim of the civil law, was the property of her
  master." The same opinion is held in Perkins, Town Treasurer of
  Topsfield _v._ Emerson (1799): DANE'S _Abridgment_, II, 412; and
  by Chief Justice Parker in Andover _v._ Canton (1816): 13 _Mass.
  Reports_, 551, 552. In 1865 the errors of Gray, Dane, Webster,
  and others were fully exposed by MOORE, _Notes on the History
  of Slavery in Mass._, 10 ff., 22 ff., 94 ff., 98 ff.; yet it
  is curious to see BISHOP, _Marriage, Divorce, and Separation_
  (Chicago, 1891), I, 179 n. 1, 282, still accepting Gray's dictum
  as authority.]

  [Footnote 681: PALFREY, _Hist. of New England_, II, 30, note.]

Since the appearance of Moore's able monograph it is perhaps
needless to explain that the facts are against these comfortable
theories. Slavery was authorized by statute in Massachusetts under
sanction of the Mosaic law; and so the children of slave mothers
were also slaves.[682] The evils of the institution may, indeed,
have been somewhat mitigated by the simple industrial conditions
which then prevailed. The climate and soil were ill suited to slave
labor. Occasionally there may have been a mind far enough ahead of
the age to perceive dimly the social danger lurking in the system.
Almost the only clear voice raised against it is that of Samuel
Sewall,[683] whose practice nevertheless was not always consistent
with his doctrine.[684] Mixture of race was not favored. But not
until 1705 was intermarriage between a white person and a negro or
mulatto forbidden by statute.[685] Through Sewall's influence the
prohibition was not then extended to Indians;[686] and he succeeded
in having a clause retained in the act enjoining that "no master
shall unreasonably deny marriage to his negro with one of the same
nation."[687] A passage in his diary shows that the laws relating
to banns, as also, it is safe to infer, those regarding celebration
and registration, were applied in the case of such unions; while
at the same time we are given a pleasing picture of the humane
treatment which slaves sometimes received from their masters. On
September 26, 1700, he records that "Mr. John Wait and Eunice his
Wife, and Mrs. Debora Thair come to Speak to me about the Marriage
of Sebastian, Negro Serv^t of said Wait, with Jane, Negro Serv^t
of said Thair. Mr. Wait desired they might be published in order
to Marriage. Mrs. Thair insisted that Sebastian might have one day
in six allow'd him for the support of Jane, his intended wife and
her children, if it should please God to give her any. Mr. Wait
now wholly declin'd that, but freely offer'd to allow Bastian Five
pounds, in Money [=p] a[=n]um towards the Su[=p]ort of his children
[=p] said Jane (besides Sabastians cloathing and Diet). I persuaded
Jane and Mrs. Thair to agree to it, and so it was concluded; and
Mrs. Thair gave up the Note of Publication to Mr. Wait for him to
carry it to W^m Griggs, the Town Clerk, and to Williams in order to
have them published according to law."[688]

  [Footnote 682: Compare sec. 91 of the "Body of Liberties," upon
  which the apologists have mainly rested their case, with the
  later version of the provision: WHITMORE, _Col. Laws of Mass._
  (1660-72), 53, 125; _ibid._ (1672-86), 10; and read MOORE'S
  convincing argument as to the significance of the altered
  wording: _Notes on the Hist. of Slavery in Mass._, 10-18. For
  Connecticut see FOWLER, "The Historical Status of the Negro,"
  in DAWSON'S _Hist. Mag._, 3d series, III, 12-18, 81-85, 148-53,
  260-66; STEINER, "Hist. of Slavery in Conn.," _J. H. U. S._, XI,
  371-452; and HURD, _Law of Freedom and Bondage_, I, 267 ff.]

  [Footnote 683: In 1700 Sewall, then a judge of the superior
  court, wrote an anti-slavery tract entitled _The Selling of
  Joseph_. It is reprinted in the _Procds. Mass. Hist. Soc._
  (1863-64), 161-65; with the _Diary_ in 5 _Mass. Hist. Coll._,
  VI, 16-20, note; and in MOORE, _Notes on Hist. of Slavery in
  Mass._, 83-87. The next year JOHN SAFFIN, a judge of the same
  court, replied to Sewall in _A Brief and Candid Answer_ (Boston,
  1701); reprinted by MOORE, _op. cit._, 251-56. Compare SEWALL'S
  letter _To the Rev^d. & aged Mr. John Higginson_ (Apr. 13,
  1706), and his extract from the _Athenian Oracle_, II, 460-63,
  both reprinted by MOORE, _op. cit._, 89-94. Sewall favored a law
  requiring "that all importers of Negroes shall pay 40 shillings
  per head to discourage the bringing of them." _Cf._ BLISS, _Side
  Glimpses from the Col. Meeting-House_, 21; WEEDEN, _Ecc. and Soc.
  Hist._, II, 450.]

  [Footnote 684: According to Bliss, "as time passed on and
  the slave trade flourished," Sewall "must have dismissed his
  anti-slavery opinions;" for the following advertisement appears
  in the Boston _News-Letter_ of June 23, 1726: "To be sold by Mr.
  Samuel Sewall at his House in the Common, Boston, several likely
  young Negro Men & Boys Just Arrived."--_Side Glimpses from the
  Col. Meeting-House_, 21.]

  [Footnote 685: "An Act for the better preventing of a spurious
  and mixt issue" (Dec. 5, 1705): _Acts and Resolves_, I, 578,
  579; _Charters and Gen. Laws_, Appendix, 748: "Be it enacted ...
  that none of her majesty's English or Scottish Subjects, nor of
  any other Christian nation within this province, shall contract
  matrimony with any Negro or Molatto: nor shall any ... presume
  to join any such in Marriage, on pain of forfeiting ... _fifty
  pounds_."]

  [Footnote 686: By the act of 1786 intermarriage of whites with
  Indians, negroes, and mulattoes is forbidden.]

  [Footnote 687: Of the bill for the act of 1705 SEWALL writes:
  "Deputies send in a Bill against fornication or Marriage of White
  men with Negros or Indians; with extraordinary penalties.... If
  it be pass'd, I fear twill be an O[=p]ression provoking to God,
  and that which will promote Murders and other Abominations. I
  have got the Indians out of the Bill, and some mitigation for
  them [the Negroes] left in it, and the clause about their Masters
  not denying their Marriage." _Diary_: in 5 _Mass. Hist. Coll._,
  VI, 143.]

  [Footnote 688: _Ibid._, 22. The _MSS. Records of the General
  Sessions of Suffolk_ (Jan. 30, 1709-10) contain the following
  evidence: "Upon reading the Petition of Jack Negroman Servant
  ... relating to his ... being Married to Esther a Negro Woman
  Servant [to another master] ... Ordered that [he] ... be not
  denyed marriage provided he attend the Directions of the law for
  the Regulation of Marriages." Compare "Flora's case" (1758) in
  _MSS. Records of the Superior Court of Judicature_ (1757-59),
  295, where the court held that the child of a female slave "never
  married according to any of the Forms prescribed by the Laws of
  this Land," by a person supposed also to be a slave, was not a
  bastard. From this decision it is argued that in Massachusetts
  all actual marriages were deemed good without any formal
  solemnization or the presence of priest or magistrate. _Cf._
  BISHOP, _Mar., Div., and Sep._, I, 179.]

Examples of such kindly usage were doubtless not uncommon among New
England slave-owners, just as they were often found at all times
in the South. But it is vain to apologize for a system, wicked
and corrupting in itself, on the ground of individual benevolence
or of laws which inconsistently in certain particulars seem to
recognize the spiritual and social equality of human chattels. In
a community where a black man or woman for sexual misconduct with
a member of the favored race was condemned by statute to be sold
into another province;[689] where Indian prisoners were divided
among the captors, and sold as legitimate spoil;[690] where African
fathers and mothers, bought on their native soil for watered rum
with short measure, were shipped across the ocean in stifling
death-traps,[691] to be "knocked down" from the auction block to the
highest bidder,[692] it seems rather more than absurd to assume that
under the benign influence of Puritan religion and morality slave
wives and husbands were never parted through the lust or greed of
their owners. Nor in general was the alleged hope of converting the
"benighted heathen to enjoy the blessings of a Gospel dispensation"
more than a soothing balm to quiet the incipient throes of a
rudimentary conscience in this regard.[693] Nay, in New England as
elsewhere, the Christianizing of the blacks was sometimes actually
discouraged, lest it should put in jeopardy the white man's property
in them. During the seventeenth and eighteenth centuries a typical
"case of conscience" arose. Would not the baptism of a slave in
effect be a dangerous admission of his spiritual equality with the
master? "Could an intelligent being, who, through the Mediator, had
participated in the spirit of God, and by his own inward experience
had become conscious of a Supreme Being, and of relations between
that Being and humanity be rightfully held in bondage? From New
England to Carolina, the 'notion' prevailed that 'being baptized is
inconsistent with the state of slavery;' and this early apprehension
proved an obstacle to the 'conversion of these poor people.' The
sentiment was so deep and so general that South Carolina in 1712,
Maryland in 1715, Virginia repeatedly from 1667 to 1748, set forth
by special enactments that baptism did not confer freedom."[694]

  [Footnote 689: By the act of 1705 already cited: _Acts and
  Resolves_, I, 578.]

  [Footnote 690: So in the Pequot War: 4 _Mass. Hist. Coll._, III,
  360; in King Philip's War; and by the _Articles of Confederation_
  (1643), in _Plymouth Col. Rec._, IX, 4. Compare MOORE, _Notes on
  Hist. of Slavery in Mass._, 1-10, 30-40.]

  [Footnote 691: For an interesting discussion of this point see
  BLISS'S chapter on "Rum and Slavery," _Side-Glimpses from the
  Col. Meeting-House_, 12 ff.; and WEEDEN, _Ecc. and Soc. Hist._,
  II, 449-72. Such men as Peter Faneuil and Thomas Amory, of
  Boston, were "deep" in the rum and slavery business: BLISS, _op.
  cit._, 15.]

  [Footnote 692: For examples of advertisements of slave auctions
  in New England see BLISS, _op. cit._, 15-19.]

  [Footnote 693: "A deacon of the church at Newport esteemed the
  slave trade with its rum accessories as home missionary work. It
  is said that on the first Sunday after the arrival of his slaves
  he was accustomed to offer thanks 'that an overruling Providence
  had been pleased to bring to this land of freedom another
  cargo of benighted heathen to enjoy the blessings of a Gospel
  dispensation.'"--BLISS, _op. cit._, 22. In general on the slave
  trade as missionary work see FROUDE, _History of England_, VIII,
  439.]

  [Footnote 694: BANCROFT, _Hist. of U. S._ (New York, 1888),
  II, 275, 276. On this subject see BRUCE, _Economic Hist. of
  Virginia_, II, 94-98; the discussion by FISKE, _Old Virginia and
  Her Neighbors_, I, 16; II, 192-94; and GOODWIN, _The Colonial
  Cavalier_, 178, who says: "Baptism was permitted to the slave,
  but with the distinct understanding that it was to make no
  difference in the condition of bondage of these brothers in
  Christ." The Virginia law of 1667 will be found in HENING,
  _Statutes_, II, 260.]

Naturally the Puritan was deeply exercised by the same scruples.
He sorely dreaded lest through extending the means of grace to his
serf Christ should inadvertently be put "in bondage." But he solved
the problem in the same way as his southern brother--at the expense
of the bondman. In Massachusetts as in Rhode Island slavery was
consecrated "without regard to the religion of the slave."[695]
Accordingly in 1696 "the ministers of Boston" submitted to the
general court "That y^e wel-knowne Discouragem^t upon y^e endeavours
of masters to Christianize their slaves, may be removed by a Law
which may take away all pretext to Release from just servitude,
by receiving of Baptisme." But to the credit of the court, we are
told, "this proposal was not noticed."[696] Over forty years later
a different result was reached by the clergy of Connecticut. At a
meeting of the General Association for that colony in 1738, "It
was inquired--whether the infant slaves of Christian masters may
be baptized in the right of their masters--they solemnly promising
to train them in the nurture and admonition of the Lord: and
whether it is the _duty_ of such masters to offer such children
and thus religiously to promise. Both questions were affirmatively
answered."[697] Thus the negro of Connecticut was admitted to the
covenant of grace without jeopardizing his owner's chattel interest
in his body.

  [Footnote 695: It was consecrated "sans égard à la religion de
  l'esclave": CARLIER, _Histoire du peuple américain_, I, 364;
  _cf._ also HILDRETH, _Hist. of U. S._, I, 372.]

  [Footnote 696: BLISS, _op. cit._, 92.]

  [Footnote 697: Taken from MOORE, _Notes on Hist. of Slavery in
  Mass._, 92, note, who cites _Records as Reported by Rev. C.
  Chapin, D.D., Quoted in Jones's Religious Instruction of the
  Negroes_, 34. _Cf._ STEINER, "Hist. of Slavery in Conn.," _J. H.
  U. S._, XI, 386.]

The attitude of Massachusetts slave-owners on this problem is
revealed in Sewall's "question" from the _Athenian Oracle_: "What
then should hinder but these be _Baptized_? If only the Covetousness
of their Masters, who for fear of losing their Bodies, will
venture their Souls; which of the two are we to esteem the greater
_Heathens_? Now that this is notorious Matter of Fact, that they are
so far from persuading those poor Creatures to Come to _Baptism_,
that they discourage them from it, and rather hinder them as much
as possible, though many of the wretches, as we have been informed,
earnestly desire it; this we believe, none that are concern'd in
the Plantations, if they are ingenuous, will deny, but own they
don't at all care to have them Baptized. Talk to a _Planter_ of the
_Soul_ of a _Negro_, and he'll be apt to tell ye (or at least his
_Actions_ speak it loudly) that the Body of one of them may be worth
twenty Pounds; but the Souls of an hundred of them would not yield
him one Farthing; and therefore he's not at all solicitous about
them, though the true Reason is indeed, because of that Custom of
giving them their Freedom, after turning Christians." Whether this
custom be "reasonable" the writer doubts; for neither the "Father
of the _Faithful_" nor St. Paul commands masters to liberate their
slaves and Christianity does not "alter any _Civil Right_." In the
"mean time, if there be such a Law or Custom for their _Freedom_,
to encourage 'em to Christianity, be it reasonable or otherwise,
this is certain, that none can excuse those who for that Reason
should in any way hinder or discourage 'em from being Christians;
some of whose excuses are almost too shameful to repeat, since they
seem to reflect on the Christian Religion, as if that made Men
more untractable and ungovernable, than when bred in Ignorance and
Heathenism."[698]

  [Footnote 698: _Athenian Oracle_, II, 460-63: in MOORE, _Notes on
  Hist. of Slavery in Mass._, 93, 94.]

Much of the same casuistry is manifested in dealing with the
question of slave marriages. A bondman might be made amenable to the
law of banns and celebration; but his continued enjoyment of marital
rights and family life was absolutely precarious. As Moore suggests,
the proviso of the act of 1705 forbidding the "unreasonable denial
of marriage to negroes is very interesting. Legislation against the
arbitrary exercise and abuse of authority proves its existence and
the previous practice."[699] Besides, the adoption of that law was
prompted perhaps as much by self-interest as by regard for morality.
It was in effect a prudent police ordinance. Masters were liable
for the legal fines imposed on their slaves for sexual offenses.
It might be cheaper and less troublesome to allow orderly wedlock.
"Moreover it is too well known," writes Sewall, "what Temptations
Masters are under, to connive at the Fornication of their Slaves;
lest they should be obliged to find them Wives, or pay their Fines.
It seems to be practically pleaded that they might be Lawless;
'tis thought much of, that the Law should have satisfaction for
their Thefts, and other Immoralities; by which means, _Holiness to
the Lord_ is more rarely engraven upon this sort of servitude. It
is likewise most lamentable to think, how in taking Negroes out
of _Africa_, and selling of them here, That which God has joined
together, men do boldly rend asunder; Men from their Country,
Husbands from their Wives, Parents from their Children. How horrible
is the Uncleanness, Mortality, if not Murder, that the ships are
guilty of that bring great Crouds of these miserable Men and Women.
Methinks when we are bemoaning the barbarous Usage of our Friends
and Kinsfolk in _Africa_: it might not be unreasonable to enquire
whether we are not culpable in forcing the _Africans_ to become
Slaves amongst ourselves."[700]

  [Footnote 699: MOORE, _op. cit._, 55.]

  [Footnote 700: SEWALL, _The Selling of Joseph_: in 5 _Mass. Hist.
  Coll._, VI, 17, 18.]

For another reason families were in constant danger of being
separated. The breeding of slaves was not generally regarded as
convenient or profitable in New England. According to Belknap,
"negro children were considered an incumbrance in a family; and when
weaned, were given away like puppies," and they were "publickly
advertised in the news-papers" to be so disposed of.[701]

  [Footnote 701: BELKNAP'S answer to TUCKER'S _Queries_: in 1
  _Mass. Hist. Coll._, IV, 200; _cf._ MOORE, _Notes on Hist. of
  Slavery in Mass._, 57.]

That there was something grotesque in using the solemn ritual of
the church in the marriage of slaves was faintly realized. In 1748
Rev. Noah Hobart "challenged the want of flexibility in the forms
of the Liturgy of the Church of England, as tending 'to introduce
irreligion and profaneness'--especially in the use of the office
of Matrimony for marriages contracted between slaves." The use of
the phrase "with all my worldly goods I thee endow, in the name of
the Father, and of the Son, and of the Holy Ghost" he regarded as
particularly sacrilegious, although the prayers employed by the
Congregational minister at slave weddings were equally profane.[702]

  [Footnote 702: MOORE, _Slave Marriages in Mass._: DAWSON'S _Hist.
  Mag._, 2d series, V, 136, reprinting HOBART'S _Serious Address
  to the Episcopal Separation in New England_ (1748), 77, 78;
  and quoting in reply DR. JOHN BEACH'S _Calm and Dispassionate
  Vindication_, 39, who in logic characteristic of the age argues
  in "substance that as a Slave was capable of being made free,
  and so of having property in a large estate, there was no
  profaneness" in the use of the phrase mentioned.]

In at least one instance a sufficiently flexible special ritual was
composed which very frankly discloses the idea of its author, and
probably also that of a majority of his brethren, as to the real
character of a slave marriage. According to Moore, it was discovered
at Northampton, N. H., in 1868, by Mr. J. Wingate Thornton; and
it was prepared and used by Rev. Samuel Phillips, of Andover,
Mass., whose ministry there, beginning in 1710 and ending with his
death in 1771, was a prolonged and eminently distinguished service
of more than half of the eighteenth century." This "Form of a
Negro-Marriage" is a decidedly safe and practical service from the
master's point of view. The minister says:

"You S: do now in the Presence of God, and these Witnesses, Take
R: to be your _Wife_; Promising that so far as shall be consistent
with y^e Relation w^{ch} you now sustain, as a Servant, you will
Perform y^e Part of an _Husband_ towards her; And in particular,
you Promise, that you will _Love_ her: And that, as you shall have
y^e Opport^{ty} & Ability, you will take a proper _Care_ of her in
Sickness and Health, in Prosperity & Adversity: And that you will be
True & _Faithfull_ to her, and will Cleave to her _only, so long_
as God, in his Provd^{ce}, shall continue your and her abode in
Such Place (or Places) as that you can conveniently come together."
Similar words are repeated to the woman; and when each in turn has
sealed this unique troth-plight, the minister continues: "I then
agreeable to your Request, and w^{th} y^e Consent of your Masters
& Mistresses, do Declare, that you have Licence given you to be
conversant and familiar together, as _Husband and Wife_, so long as
God shall continue your Places of abode as aforesaid; and so long
as you shall behave your-selves as it becometh Servants to doe:
For you must, both of you, bear in mind, that you Remain Still as
really and truly as ever, your Master's Property, and therefore it
will be justly expected, both by God and Man, that you behave and
conduct your-selves, as Obedient and faithfull Servants towards your
respective Masters & Mistresses for the Time being."[703]

  [Footnote 703: "And finally," continues the minister, "I exhort
  & charge you to beware lest you give place to the Devil, so as
  to take Occasion from the Licence now given you, to be lifted up
  with _Pride_, and thereby fall under the Displeasure, not of Man
  only, but of God also; for, it is written, that God resisteth the
  Proud, but he giveth Grace to the humble.

  "I shall now conclude w^{th} _Prayer_ for you, that you may
  become good Christians, and that you may be enabled to conduct as
  such; and in partic^r, that you may have Grace to behave suitably
  towards each Other, as also dutifully towards your Masters &
  Mistresses, not w^{th} Eye-Service, as Men-pleasers, but as
  y^e serv^{ts} of Chr^t, doing y^e will of God from y^e heart."
  Published by MOORE, _Slave Marriages in Mass._: in DAWSON'S
  _Hist. Mag._, 2d series, V, 137.]

Through this ingenious device, it is clear, the permanence of the
slave's nuptial bond, with all his connubial and family rights, was
made absolutely dependent upon his owner's will.



CHAPTER XIII

ECCLESIASTICAL RITES AND THE RISE OF CIVIL MARRIAGE IN THE SOUTHERN
COLONIES


     [BIBLIOGRAPHICAL NOTE XIII.--For Virginia the chief materials
     have been drawn from Hening's _Statutes at Large_ (Richmond,
     1809-23), and the laws comprised in _Acts of the Assembly_
     (fol., Williamsburg, 1769). The third volume of O'Callaghan,
     _Documents Rel. to the Col. History of New York_, has an
     interesting memorial of the bishop of London written in 1677;
     and there are some references to marriage in Strachey, _For
     the Colony in Virginea Britannea: Lawes Diuine, Morall, and
     Martiall_, being "Dale's Code" (London, 1612): in Force,
     _Tracts_, III; Spotswood, _Letters_, constituting Vols. I and
     II, new series, of the _Collections of the Va. Hist. Soc._
     (Richmond, 1882-85); Beverley, _History of Virginia_ (reprint,
     Richmond, 1855); and the acts of the assembly of 1619 contained
     in the _Colonial Records of Virginia_ (Richmond, 1874). Cooke,
     _Virginia_ (Boston, 1884), gives a curious proclamation of
     Governor Wyatt for the regulation of courtship. In Vol. IV of
     the _Va. Magazine of Hist. and Biog._ (Richmond, July, 1896)
     there is a unique "Marriage Agreement" which throws some light
     on the economic affairs of the provincial household; and further
     illustrations of domestic and social customs may be found in
     Goodwin, _The Colonial Cavalier_ (Boston, 1895); and Fiske, _Old
     Virginia and Her Neighbors_ (Boston, 1898).

     The principal sources for Maryland are Browne, _Archives of
     Maryland_ (Baltimore, 1883-91); Bacon, _Laws of Maryland_
     (fol., Annapolis, 1765); and, to supplement these, the _Laws of
     Maryland made since 1763_ (fol., Annapolis, 1777); or the same
     (fol., Annapolis, 1787). Streeter, "Papers Rel. to the Early
     Hist. of Maryland," in _Md. Hist. Soc. Publications_ (Baltimore,
     1876), publishes a record of the first wedding in the colony,
     with the marriage license bond. The matrimonial doctrines of
     the Labadists are discussed by James, "The Labadist Colony
     in Maryland," in _J. H. U. S._, XVII (Baltimore, 1899); and
     the character of the episcopal clergy is described by Browne,
     _Maryland_ (Boston, 1884), and by Lodge, _Short History_ (New
     York, 1882).

     On this subject, as on most topics for the period, the extremely
     valuable _Colonial Records of North Carolina_ (Raleigh, 1886-90)
     are a mine of information; and they are enriched by Colonel
     Saunders's "Prefatory Notes." The first matrimonial statute,
     passed by the assembly of Albemarle in 1669, is also contained
     in Chalmers, _Political Annals_: in Carroll, _Hist. Coll. of
     South Carolina_ (New York, 1836); and in Hawks, _History of
     North Carolina_ (Fayetteville, 1857-58), likewise of service on
     other points. The various statutes of the eighteenth century
     may be consulted in Iredell-Martin's _Public Acts of the Gen.
     Assembly_ (Newbern, 1804); in Swan's _Revisal_ (ed. 1752); or
     Davis's _Revisal_ (ed. 1773). Similar collections of laws for
     South Carolina are Cooper and McCord's _Statutes at Large_
     (Columbia, 1837-41), and Brevard's _Alphabetical Digest_
     (Charleston, 1814)--both of which contain useful editorial
     notes. Constitutional provisions are, of course, found in Poore,
     _Charters_ (Washington, 1877). The works of Friedberg and the
     _Atlantic_ article of Cook, elsewhere mentioned, are still of
     service; and Weeks in his valuable monograph, "Church and State
     in North Carolina," in _J. H. U. S._, XI (Baltimore, 1893), has
     traced from the sources the struggle of the Presbyterian with
     the Episcopalian government party for the privilege of using
     their own rites in the celebration of marriage.]


I. THE RELIGIOUS CEREMONY AND LAY ADMINISTRATION IN VIRGINIA

Throughout the colonial period in Virginia the religious marriage
ceremony, according to the rites of the Church of England, was
prescribed by law. Indeed, it was not until 1794 that the lay
celebration before a magistrate was permitted, and then only in
certain exceptional cases. But in two important particulars, even in
the earliest statutes, there is a remarkable advance upon the custom
of the mother-country. In the first place, it is noteworthy that
the administration of matrimonial law is gradually intrusted to the
county officers and the local courts. Here, as in New England, there
is a quickening of the forces of local self-government; and the
lay tribunals gained important functions which in England belonged
to the ecclesiastical courts. Again, the legislation of 1631-32
embodies the essential principles of the Hardwicke act of 1753.
The institution of marriage begins to be protected and defined by
careful statutory provisions and is no longer left to the perils of
uncertain custom. Banns or license, parental consent, certificate,
and registration are all soon introduced. Marriage becomes in effect
a civil contract long before it is squarely acknowledged to be such
by the law.

The brief act of 7 Charles I., 1632, provides that "no mynister
shall celebrate matrimony betweene any persons without a facultie
or lycense graunted by the Governor, except the baynes of matrimony
have beene first published three severall Sundays or holydays in the
time of devyne service in the parish churches where the sayd persons
dwell, accordinge to the booke of common prayer." The minister is
forbidden to "ioyne any persons soe licensed in marriage at any
unreasonable tymes, but only betweene the howers of eight and twelve
in the forenoone." If the marriage is after publication of banns
without license, and the persons are under twenty-one years of age,
the consent of parents is required before legal celebration.[704] It
was also enacted that all marriages should be solemnized in church
"except in case of necessity."[705]

  [Footnote 704: HENING, _Statutes_, I, 156, 157. See also the act
  of 8 Chas. I., expressed in about the same terms, _ibid._, 181.]

  [Footnote 705: _Ibid._, 158, 183.]

The act of 1632 determined the broad outline of the marriage law
of Virginia until after the Revolution. But two or three important
modifications were made by subsequent legislation. Thus, an act
of the Commonwealth period, 1657-58, enforces the provision that
"ministers only shall celebrate marriages;" and significantly adds
that they shall not do so without license or publication of banns
"as formerly," under a penalty of "tenne thousand pounds of tobacco
to ease the leavye of that county." No license is to be granted
"without certificate vnder the hands of the parents, masters, or
guardians of the parties to be married."[706] Again, the first act
of the Restoration, 1661-62, requires license or "thrice publication
according to the prescription of the rubric in the common prayer
booke, which injoynes that if the persons to be marryed dwell in
severall parishes the banes must be asked in both parishes, and
that the curate of one parish shall not solemnize the matrimony
untill he have a certificate from the curate of the other parish,
that the banes have been there thrice published, and noe objection
made" to the union. For violation of the law by the minister the
penalty of 1657-58 is retained. But this statute goes farther and
declares that "any pretended marriage _hereafter_ made by any
other then a minister" shall be "reputed null, and the children
borne out of such marriage of the parents" shall be "esteemed
illegitimate and the parents suffer such punishment as by the laws
prohibiting fornication ought to be inflicted."[707] This act of
the Restoration, like that of the Duke of York, 1665, was probably
invalid as transcending the requirements of the English common
law.[708] In part it may have been intended to punish violation of
the marriage law by dissenters, and its severity must have been
keenly felt. At any rate, it was repealed in 1696 and replaced by
an "act for the prevention of clandestine marriages." The preamble
recites that "many great and grievous mischeifes have arisen and
dayly doe arise by clandestine and secret marriages to the utter
ruin of many heirs and heiresses," and that "the laws now in force
... do inflict too small a punishment for so heinous and great
an offence." The minister guilty of violating the provision for
banns or license, which is re-enacted, is to suffer imprisonment
"for one whole year without bayle or mainprize and shall forfeitt
and pay the sume of five hundred pounds currant money, one moyety
thereof to our sovereign lord the king, ... and the other moyety to
him or them that shall sue or informe for the same." No licenses
are to be granted without a certificate from the clerk of the
county court; and the certificate may not be issued by the clerk
without the consent of the parent or guardian given in person or
by writing attested by two witnesses, under penalty of a year's
imprisonment and the payment of a fine of five hundred pounds
current money. The clause of the preceding act making the issue
of irregular marriages illegitimate is not repeated in this act
or subsequently--an admission, seemingly, that the provision was
originally null and void. But a female between the ages of twelve
and sixteen contracting such a marriage forfeits during coverture
her inheritance to the next of kin. After the death of her husband
the inheritance reverts to her or those who should have claimed "in
case this act had never been made."[709] This clause was retained in
subsequent legislation.[710] By the act of 1705 still more careful
provision is made for license and certificate; and if any minister,
contrary to the spirit of the law, shall "go out of this her
majesty's colony and dominion" and there join in matrimony "persons
belonging to this country," without license or publication, he is
to suffer the same penalty as if the offense had been done in the
province.[711]

  [Footnote 706: _Ibid._, 433. By the act of 1646 the penalty for
  celebration without license or banns was 1,000 pounds of tobacco:
  _ibid._, 332.]

  [Footnote 707: _Ibid._, II, 49-51. By the law of 1788 the issue
  of even "incestuous" marriages are made legitimate: _ibid._, XII,
  689.]

  [Footnote 708: See chap. xiv, i, _b_), below.]

  [Footnote 709: HENING, _Statutes_, III, 149-51.]

  [Footnote 710: See the act of 1705, _ibid._, 443, 444; and that
  of 1748, _ibid._, VI, 83.]

  [Footnote 711: _Ibid._, III, 441, 442.]

No relaxation in the illiberal rule requiring solemnization
by a clergyman of the establishment was made until after the
Revolution. First in 1780 the court of each county was authorized
to license not more than four ministers of any religious society to
solemnize marriages. In 1784 ministers of all denominations, except
itinerants, were put on the same level in this regard. Already
the preceding year laymen "in the western waters" had grudgingly
been empowered to act, provided they make use of the ritual of the
English church; but it was not until 1830 that it became possible,
when the court saw fit, to appoint laymen for this purpose in all
counties of the commonwealth; and this policy has survived to the
present hour.[712]

  [Footnote 712: See chap, xvi, where this legislation is treated
  in detail.]

But if the Anglican clergy during the entire colonial period were
given a monopoly of matrimonial business, it by no means follows
that the dissenters, whose numbers were constantly gaining, ever
tamely submitted. On the contrary, they often took the law into
their own hands and had their marriages celebrated before their
own ministers, or resorted to the local magistrates. This fact is
made clear by the act of 1780 and subsequent statutes, by which
marriages irregularly contracted are declared valid. Indeed, as
early as 1677 we have evidence that dissenters refused to observe an
unjust and probably invalid law. A memorial of the bishop of London
in that year laments that in Virginia there is a great "defect in
the execution of those two wholesome laws ... of the Assembly, the
one prohibiting all marriages to be solemnized without a lawful
minister imposing the punishment due for fornication on the parties
& making their children illegitimate & so not capable of inheriting,
the other prohibiting any persone the ministeriall Function without
proveing himself to have first received Orders from some Bishop in
England."[713]

  [Footnote 713: O'CALLAGHAN, _Doc. Rel. to Col. Hist. of N. Y._,
  III, 253.]

As already stated, the matrimonial laws of Virginia were from an
early day locally administered, and mainly by the civil magistrate.
The minister of every parish was required to keep a "booke wherein
shall be written the day and yeare of every christeninge, wedding,
and buriall;"[714] and annually on the first day of June it was the
duty of the church wardens and ministers to make a return to the
quarter court of all marriages solemnized during the year.[715] By
the act of 1642 the report is to be made to the "commander of every
monethly court;"[716] and in 1661-62 the duty of registration is
laid upon the reader equally with the minister.[717] At length, in
1780, the officiating minister is required to transmit a certificate
of every marriage solemnized by him to the clerk of the county court
for record.[718] It was the minister's duty to publish the banns
thrice, as required by law. But in consequence of the scarcity
of clergymen of the established church, in some places it became
practically impossible to comply with the statutes. So, in 1705, the
clerk or reader in any parish having no minister was empowered to
publish banns and, "if no objection be made," to grant a certificate
thereof to the officiating minister.[719]

  [Footnote 714: HENING, _Statutes_, I, 158, 182, 183 (1632).]

  [Footnote 715: _Ibid._, 155.]

  [Footnote 716: _Ibid._, 242. _Cf._ the act of the Commonwealth,
  1657-58, _ibid._, 433.]

  [Footnote 717: _Ibid._, II, 54.]

  [Footnote 718: _Ibid._, X, 362.]

  [Footnote 719: _Ibid._, III, 442. _Cf._ the act of 1748: _ibid._,
  VI, 82.]

In Virginia, as we have seen, the governor's license instead of
banns takes the place of the license of the English bishop. Licenses
are not to be issued "without certificate under the hands of the
parents, masters or guardians."[720] On account of the rapid
growth of population, in which was an ever-increasing proportion
of dissenters, and on account of the scarcity of ministers of the
established church, the demand for licenses became so great that, in
1661, the clerks of the county courts were empowered to issue them.
"Whereas," runs the statute, "many times lycences are granted and
the persons are marryed out of the parishes, which lycences have
been usually granted by the governor, whose knowledge of persons
cannot possibly extend over the whole country," therefore persons
desiring to be married by license are required to give bond to the
clerk that there is no lawful impediment. The clerk is then to write
the license and certify to the first justice in the commission for
the county, or else to the person appointed for this business by
the governor, who shall sign it.[721] Later the personal or written
consent of the parent or guardian is required before the clerk may
issue certificate.[722] But by the act of 1705 a bond is required
in all cases, and parental consent only in the case of minors.
The license is then issued by the clerk for the signature of the
magistrate or the governor's deputy.[723]

  [Footnote 720: Act of 1657-58: _ibid._, I, 433.]

  [Footnote 721: HENING, _op. cit._, II, 54, 55; _cf._ 28
  (1660-61). Only the clerk of the county in which the woman, her
  parents, or guardians dwell may act: _ibid._, 281.]

  [Footnote 722: _Ibid._, III, 150 (1696).]

  [Footnote 723: _Ibid._, 442, 443.]

The granting of licenses was an important source of income for the
governor, he receiving two hundred pounds of tobacco or twenty
shillings for each license issued. Such, for example, was the law in
the days of Beverley.[724] These fees were collected by the sheriff
and turned over to the governor or secretary of the colony.[725] At
the beginning of the Revolution, in order to provide for the expense
of the militia, a tax of forty shillings was laid by the assembly
upon each marriage license;[726] and in the next year the law
granting license fees to the governor was repealed.[727] The legal
fee allowed the minister was twenty shillings or two hundred pounds
of tobacco for each marriage when celebrated by license, and five
shillings or fifty pounds of tobacco when celebrated by banns.[728]
In 1792, however, the uniform fee for a marriage was fixed at one
dollar.[729]

  [Footnote 724: BEVERLEY, _Hist. of Va._, 211, 212; also 1 _Mass.
  Hist. Coll._, V, 136; and HENING, _op. cit._, III, 445; VI, 84,
  85; II, 55.]

  [Footnote 725: _Ibid._, II, 28.]

  [Footnote 726: _Ibid._, IX, 66 (1775). The tax was raised to ten
  pounds in 1780: _ibid._, X, 245.]

  [Footnote 727: _Ibid._, 225.]

  [Footnote 728: SPOTSWOOD, _Letters_, I, 128 n. 90; BEVERLEY,
  _Hist. of Va._, 211; HENING, _op. cit._, III, 45; VI, 84, 85,
  etc. Earlier the marriage fee was 2 shillings: _ibid._, I, 160,
  184.]

  [Footnote 729: _Acts of the Gen. Assembly_, 203.]

Marriages within the "levitical degrees prohibited by the laws of
England" were forbidden;[730] and curious and stringent regulations
concerning the secret marriage of indented servants were made.
Thus in 1642-43, since "many great abuses & much detriment hath
been found to arise both against the law of God and likewise to
the service of manye masters of families in the collony" by secret
marriage of servants, it is provided that a man servant contracting
a secret marriage with a maid servant shall serve an additional
year after the completion of the term of indenture; while a maid
servant so offending is to double the time of her service. A
freeman for secretly marrying an indented maid servant must double
the value of her service and pay a fine of five hundred pounds of
tobacco to the parish where the offense is committed.[731] The
unjust discrimination against female servants was done away with
in 1657-58.[732] A still more rigorous law was passed in 1661-62.
The minister is prohibited under a penalty of ten thousand pounds
of tobacco from either publishing the banns or celebrating the
contract of marriage without a certificate of consent from the
masters of both the persons, who are each to suffer the penalty of
a year's extra service, as before; while the freeman clandestinely
marrying a servant is to pay to the master fifteen hundred pounds
of tobacco or a year's service.[733] But in 1748 for the offending
parties the year's extra service is commuted at "five pounds current
money."[734] It may be noted that in this Virginia legislation there
is no provision like that of Plymouth for compelling the consent of
stubborn masters.

  [Footnote 730: HENING, _op. cit._, IV, 245 (1730). Marriage with
  a deceased wife's sister is forbidden: _ibid._, XII, 689 (1788).]

  [Footnote 731: _Ibid._, I, 252, 253.]

  [Footnote 732: _Ibid._, 438. By this act either the man or the
  woman suffers a penalty of one year's extra service.]

  [Footnote 733: _Ibid._, II, 114. The penalty for a freeman was
  made 1,000 pounds of tobacco in 1705: _ibid._, III, 444.]

  [Footnote 734: _Ibid._, VI, 83, 84.]

The matrimonial history of Virginia begins with the nuptials of Ann
Burras and John Laydon, celebrated in 1608.[735] A few years later,
in Dale's code, appear the first marital regulations, though to
what extent they were ever carried out must remain uncertain. Every
minister is required to "keepe a faithful and true Record, or Church
Booke, of all Christnings, Marriages, and deaths of such our people,
as shall happen within their Fort, or Fortresse, Townes or Towne at
any time, vpon the burthen of a neglectfull conscience, and vpon
paine of losing their Entertainment."[736]

  [Footnote 735: On this marriage see WINSOR, _Nar. and Crit.
  Hist._, III, 132; HOLMES, _Annals_, I, 162; CAMPBELL, _Hist. of
  Va._, 65.]

  [Footnote 736: WILLIAM STRACHEY, _For the Colony in Virginea
  Britannea, Lawes Diuine, Morall, and Martiall_, 11: in FORCE,
  _Tracts_, III.]

The statutes of the Dominion are silent as to the celebration
of pre-contract or espousals; and the penalties prescribed for
adultery and fornication are in marked contrast with those of early
New England. Persons were presented for these offenses by the
church wardens at the annual visitations;[737] and the culprits
were punished by fines or whipping.[738] Nor do the laws concern
themselves with the regulation of courtship and "sinful dalliance"
in New England style; although a proclamation of Governor Wyatt
shows that his excellency was willing to supply the law's defect
in this regard. He announces that "every minister should give
notice in his church that what man _or woman_ soever should use any
word or speech tending to a contract of marriage to two several
persons at one time," such "as might entangle or _breed scruples_
in _their consciences_, should for such their offense, either
undergo _corporal correction_, or be punished by fine or otherwise,
according to _the quality of the person so offending_."[739]

  [Footnote 737: HENING, _op. cit._, I, 240, 310, etc. The
  following curious judgment was rendered by the governor and
  council sitting as a court in 1627: "Upon the presentment of the
  church-wardens of Stanley Hundred for suspicion of incontinency
  betweene Henry Kinge and the wife of John Jackson, they lyinge
  together in her husband's absence; it is thought fitt that the
  sayd Kinge shall remove his habitation from her, and not to use
  or frequent her company until her husband's return."--_Ibid._,
  145, note. This may be compared with the following record of the
  same court in 1631: "Because Edw. Grymes lay with Alice West he
  gives security not to marry any woman till further order from the
  Governor and Council."--_Ibid._, 551.]

  [Footnote 738: _Ibid._, 433; III, 74, 139, 361; _Acts of the Gen.
  Assembly_, 287. The first representative assembly, which met at
  Jamestown in the summer of 1619, enacted, "Against excesse in
  apparell that every man be cessed in the church for all publique
  contributions, if he be unmarried according to his owne apparell,
  if he be married according to his owne and his wives, or either
  of their apparell."--_Col. Rec. of Va._ (ed. BANCROFT), 20.
  The same assembly provided that "All Ministers in the Colony
  shall once a year, namely in the moneth of Marche, bring to the
  Secretary of Estate a true account of all Christenings, burials
  and marriages, upon paine, if they faill, to be censured for
  their negligence by the Governor and Counsell of Estate; likewise
  where there be no ministers, that the comanders of the place doe
  supply the same duty,"--_Ibid._, 26.]

  [Footnote 739: Quoted by COOKE, _Virginia_, 149; also FISKE, _Old
  Virginia and Her Neighbors_, I, 246, 247.]

Very little material has been collected regarding wedding customs
in Virginia.[740] But this sketch may be concluded by reference
to a curious "marriage agreement" which took place in Eastville,
Northampton county, in 1714, and which throws light on domestic
economy in the Old Dominion. Mr. John Custis and Frances, his wife,
having fallen out, are inspired with hope and faith that they may
renew "perfect love and friendship" by bond and covenant. First,
therefore, it is duly stipulated that "the sd Frances shall return
to the sd John all the money, Plate and other things what soever
that she hath from him or removed out of the house upon oath and
be obliged never to take away by herself or any other, anything of
value from him again or run him in debt without his consent, nor
sell, give away or dispose of anything of value out of the family
without his consent, upon the condition that the plate and damaske
linen" shall not be given away or otherwise disposed of by the said
John during her life, but be delivered to his children "by the said
Frances immediately after her decease." Next it is agreed that
"Frances shall henceforth for bear to call him y^e sd John any vile
names or give him any ill language, Neither shall he give her any,"
but they are "to live lovingly together and to behave themselves
to each other as a good husband & good wife ought to doe. And that
she shall not intermeddle with his affairs but that all business
belonging to the husband's management shall be solely transacted
by him, neither shall he intermeddle in her domestique affairs but
that all business properly belonging to the management of the wife
shall be solely transacted by her." Again, after settling his debts,
John gives bond in the sum of one thousand pounds that he will keep
"true and perfect accounts of all the profitts and disbursements
of his whole Estate," present and future, in Virginia or the rest
of the world, and that he will "produce the same accounts yearly
if it be required upon oath. And that after all debts hereafter
necessarily accrueing; for buying cloaths, tools and all the
necessary [things] for the servants and the plantations, paying
leavys and Quitt-rents & making necessary repairs of his whole
estate and alsoe all other necessary charges acrewing for the use &
benefitt of the estate which is to descend to the child of ye said
Frances are deducted and paid he shall freely & without grudging
allow one full moity ... of his whole estate" to her annually, "for
clothing herself and the children with a reasonable proportion
thereof and the remainder to be all laid out in the education of
the children & for furnishing ... all things ... necessary for
house keeping (that are to be brought from England) and Phisick,"
so long as she remains peacefully with him; and that he shall allow
for her maintenance and that of the family "one bushell of wheat
for every week and a sufficient quantity of Indian Corn and as much
flessh of all kinds as the stocks of Cattle, Sheep and hoggs" will
stand, with "sufficient quantity of Cyder and Brandy if so much be
made on the plantation." But if Frances exceed her allowance, then
it is to cease, and the "bond to be voyd." Out of her allowance
Frances is to have "free liberty to keep a white servant if she
shall think fitt;" also the usual colored servants, among whom are
mentioned "Jenny," "Queen," and "Billy boy," who are to "tend the
garden, goe of errands or with the coach, catch horses, and doe
all other necessary works" both in and about the house. Moreover,
with impulsive generosity, "ye sd John" binds himself, not only to
allow Frances "fifteen pounds of wool and fifteen pounds of fine
dresst flax or fifteen pounds of wool in lieu thereof every year
to spin for any use in the family she shall think fit;" but even
to suffer her "to give away twenty yards of Virginia cloth every
Year to charitable uses _if soe much remain after the servants
are clothed_." Finally, pending the marketing of the tobacco crop
in England, which will take twelve months, Frances is graciously
endowed by John with fifty pounds in money for support of herself
and the family, if there should happen to be so much left when all
the debts are paid.[741]

  [Footnote 740: See, however, GOODWIN, _The Colonial Cavalier_, 45
  ff.; and on social customs in general FISKE, _op. cit._, II, 174,
  269.]

  [Footnote 741: For this document see _The Virginia Mag. of Hist.
  and Biog._, IV (July, 1896), 64-66.]


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 goverm^t of parents or tutors and
certificate of such oath & caution taken from the Judge or Register
of the Court."[745]

  [Footnote 742: STREETER, _Papers Rel. to the Early History of
  Md._, 278, 279. This license may be compared with the bonds
  required by Governor Andros in New England or by the New York
  governors: see chaps, xii and xiv.]

  [Footnote 743: In the "book in the land office, entitled, _Liber_
  No. 1": BOZMAN, _Hist. of Maryland_, II, 604, who gives the
  following example: "November 2d, 1638. This day came William
  Lewis, planter, and made oath, that he is not precontracted
  to any other woman than Ursula Gifford, and that there is no
  impediment of consanguinity, affinity, or any other lawful
  impediment to his knowledge, why he should not be married to the
  said Ursula Gifford; and further he acknowledgeth himself to owe
  unto the lord proprietor 1000 lb. tobacco in case there be any
  precontract or other lawful impediment whatsoever as aforesaid,
  either on the part of the said William Lewis or the said Ursula
  Gifford."]

  [Footnote 744: Among the thirty-six bills of the assembly of
  February, 1639/40, which according to Bozman were engrossed for
  a third reading, but not finally enacted into laws, was one
  giving the so-called "county court" jurisdiction in "all causes
  matrimonial, for as much as concerns the trial of covenants
  and contracts, and the punishment of faults committed against
  the same; and all offences of incest; attempting of another's
  chastity; defamation; temerarious administration; detention of
  legacies; clandestine marriage without banns thrice published or
  bond entered in the court."--BOZMAN, _op. cit._, II, 106, 128,
  129. Since at this time there was but one organized county, St.
  Mary's, and this "county court" is made a tribunal of appeal
  in all civil common-law cases, the body is really the supreme
  provincial court, and it is given about the same jurisdiction
  thereafter exercised by the latter.]

  [Footnote 745: _Archives of Md.: Proceedings and Acts of the
  General Assembly_, 1637-64, 97.]

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]

  [Footnote 746: _Ibid._, 374. The fine for each of the parties
  violating the statute is 1,000 pounds of tobacco; for the
  magistrate or minister, 5,000 pounds, one half to the Lord
  Proprietor, the other half to the informer. In 1650 it is
  provided that adultery shall receive punishment as the court may
  see fit, but "not extending to life or member": _ibid._, 286.
  The penalty is the same in 1654: _ibid._, 344. In the last-named
  year "the names of all that shall be borne, married or buried ...
  shall be Exhibited to the Clarke of Every Court who shall Inst
  Register thereof who shall be allowed five pounds of Tobacco as a
  ffee due to him for every such Regist^r made and kept."--_Ibid._,
  345.]

  [Footnote 747: _Ibid._, 442, 443. This act is approved in 1664:
  _ibid._, 537.]

  [Footnote 748: "The man taking the woman by the R^t hand shall
  say I A B doe take thee C D to my wedded wife To have and to
  hould from this day forward for better for worse for Rich or for
  Poore in sickness & in health till death us do part and thereto
  I plight thee my troth which being finished lett her hand goe."
  Similar words are to be used by the woman: _ibid._, 1664-76, 148.]

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]

  [Footnote 749: _Ibid._, 1666-76, 522, 523.]

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]

  [Footnote 750: LODGE, _Short History_, 105. Elsewhere this writer
  says the Episcopal church in Maryland was as "contemptible
  an ecclesiastical organization as history can show." "It is
  not easy to conceive the utter degradation of the mass of the
  Maryland clergy. Secure in their houses and glebes, with a
  tax settled by law, and collected by the sheriffs for their
  benefit, they set decency and public opinion at defiance. They
  hunted, raced horses, drank, gambled, and were the parasites and
  boon companions of the wealthy planters. A common jest was the
  question:

    'Who is a monster of the first renown?
    'A lettered sot, a drunkard in a gown.'

  "They extorted marriage fees from the poor by breaking off in the
  middle of the service, and refusing to continue until they were
  paid."--_Ibid._, 123, 120-24; _cf._ BROWNE, _Maryland_, 184 ff.]

  [Footnote 751: See, however, the case of North Carolina below,
  where the original toleration of the early years was later
  somewhat curtailed; and that of West Virginia.]

  [Footnote 752: Compare COOK, "Mar. Cel. in the Colonies,"
  _Atlantic_, LXI, 356, 357.]

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
w^{ch} being finished the Minister, Pastor, or Magistrate shall say
I being hereunto by Law Authorized do pronounce you lawfull man and
wife."[753]

  [Footnote 753: _Archives of Md.: Procds. and Acts of the Gen.
  Assem._, 1684-92, 450, 451.]

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]

  [Footnote 754: BACON, _Laws of Maryland_, 1702, chap. i, §§ iv,
  v.]

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.

  [Footnote 755: BACON, _op. cit._, 1717, chap. xv, §§ i-v. The fee
  for marriage after license is "10 shillings and no more;" after
  publication of banns it is 100 pounds of tobacco or 6 shillings
  and 8 pence current money.]

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]

  [Footnote 756: _Ibid._, chap. xiii, § v.]

  [Footnote 757: _Ibid._, 1715, chap. xliv, § xxv.]

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.

  [Footnote 758: KILTY, _Laws_, 1777, chap. 12, sec. 5; also _Laws
  of Md._, 1763-87 (Annapolis, 1787), chap. xii, sec. v; _cf._
  COOK, "Mar. Cel. in the Colonies," _Atlantic_, LXI, 357.]

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 24^{th} of September 1657 between Peter Sharpe of
Putuxent County in th^e Province of Maryland Chirurgeon of the one
p^{te,} 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."

  [Footnote 759: The Quakers were strong in Maryland and practiced
  the same rites as their brothers elsewhere. The Labadists, who
  had a colony in the province, thoroughly disliked the Friends,
  though in some respects the doctrines of the two bodies were
  strikingly alike. The Labadists were even more narrow than the
  Pennsylvania Friends regarding intermarriage with gentiles. A
  convert was expected to leave his unregenerate spouse behind
  when he joined the society; see JAMES, "The Labadist Colony in
  Maryland," _J. H. U. S._, XVII, 12 ff., 17 ff.]

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 m^r 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 Rob^t 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 forme^rly depending and
now to be withdrawen" Robert is to "beare his own Charge," as well
as those "on th^e 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]

  [Footnote 760: _Archives of Md.: Judicial and Testamentary
  Business of the Provincial Court_, 1649/50-57, 531-33.]


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]

  [Footnote 761: "Fundamental Constitutions," c. 96: POORE,
  _Charters_, II, 1406. The charter of 1663 allows the proprietors
  to use their discretion in dispensing from the liturgy
  and ceremonies of the English church: _ibid._, 1389. The
  supplementary charter of 1665 declares that no one shall be "in
  any way molested, punished, disquieted or called in question,
  for any differences in opinion, or practice in matter of
  religious concernments, who do not actually disturb the civil
  peace." All are to enjoy "judgment and conscience in matter of
  religion."--_Ibid._, 1397.]

  [Footnote 762: After thus expressing the motive for toleration,
  the Constitutions curiously provide that any seven or more
  persons agreeing in any religion may form themselves into a
  "church or profession;" and no person over seventeen years of age
  "shall have any benefit or protection of the law, or be capable
  of any place of profit or honor, who is not a member" of such a
  church or profession, "having his name recorded in some one, and
  but one religious record at once."--_Ibid._, 1407.]

  [Footnote 763: _N. C. Col. Records_, IV, 264; HAWKS, _Hist. of
  N. C._, II, 341. For Virginia see LODGE, _Short History_, 60 ff.
  _Cf._ HOWARD, _Local Const. History_, I, 133, 134.]

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]

  [Footnote 764: Paragraphs 45 and 84 of the Fundamental
  Constitutions (1669) provide for matrimonial jurisdiction and for
  registration. Paragraph 87 declares that "no marriage shall be
  lawful, whatever contract and ceremony they have used, till both
  parties mutually own it before the register of the place where
  they were married, and he register it, with the names of the
  father and mother of each party."--POORE, _Charters_, II, 1402,
  1406. Compare HEWITT, _An Hist. Account of the Rise and Progress
  of South Carolina and Georgia_ (London, 1779), 321-47.]

  [Footnote 765: _N. C. Col. Rec._, I, 184; also in HAWKS, _Hist.
  of N. C._, II, 152, 153; and CARROLL, _Hist. Coll. of S. C._, II.]

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]

  [Footnote 766: Thus DOYLE, _Eng. Colonies_, I, 453, says the
  acts of the assembly of 1669/70, of which the marriage act is
  one, tended to make North Carolina "an Alsatia for ready and
  profligate adventurers." So also GEORGE CHALMERS, _Political
  Annals of the United Provinces_: in CARROLL, _Hist. Coll. of S.
  C._, II, 291, concludes, "From this remarkable law we may judge
  of their state of religion and morals." On the other hand, HAWKS,
  _Hist. of N. C._, II, 152, 153, says of this statute: "It has
  given rise to some abortive efforts at wit, which, if genuine,
  would, we think, be sadly misplaced; and has, besides, sorely
  troubled the over-sensitive and camel-swallowers who thank God
  they are 'not as other men are;'" justly adding: "It is difficult
  to conjecture any other course, which under the circumstances,
  they could reasonably have adopted. The very fact that any plan
  was devised to afford a legal and decent mode of entering into
  the marriage contract, certainly implies that the moral sense of
  the community revolted at general concubinage." _Cf._ also WEEKS,
  _Church and State in N. C._: in _J. H. U. S._, XI, 244.]

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 y^e 11^{th} of
y^e first month 1707/8," held "as their manner is, to Inspect into
y^e affairs of y^e 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]

  [Footnote 767: HAWKS, _op. cit._, II, 154. These are nearly the
  words of the charter of 1665: POORE, _op. cit._, II, 1397. _Cf._
  also WEEKS, _op. cit._, 244, 245.]

  [Footnote 768: "Records of the Friends Monthly Meeting in
  Pasquotank Precinct": in _N. C. Col. Rec._, I, 688. There is a
  similar entry in 1711: _ibid._, 813. Two years earlier we find
  a "precinct" court--about the only part of the machinery of the
  "Fundamental Constitutions" which was ever made use of (HOWARD,
  _Local Const. Hist._, I, 129)--sentencing for adultery: "Ordered
  that Ellinor Mearle be punished by receiving Ten Stripes on her
  Back well laid & pay cost also Ex[=o]."--Records of Perquiman's
  Precinct Court, in _N. C. Col. Rec._, I, 626 (1705).]

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]

  [Footnote 769: _N. C. Col. Rec._, II, 212, 213.]

  [Footnote 770: _Ibid._, 877, 878.]

  [Footnote 771: IREDELL-MARTIN, _Public Acts of the Assembly_
  (Newbern, 1804), I, 18, 19.]

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]

  [Footnote 772: _N. C. Col. Rec._, III, 110, 111.]

  [Footnote 773: _Ibid._, 160. According to COOK, "Colonel Byrd,
  writing about 1728, says that in North Carolina, 'for want of men
  in holy orders, justices of the peace and members of the council
  were empowered to celebrate marriage.'"--_Op. cit._, 355, 356.]

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]

  [Footnote 774: WEEKS, _Church and State_, 244, 245.]

  [Footnote 775: The justice shall not act in any parish where a
  minister resides and has cure, "without permission first had
  and obtained from such Minister under penalty of five pounds
  proclamation money, to the use of the minister."--IREDELL-MARTIN,
  _Public Acts_, I, 45; for the fee see _ibid._, 46.]

  [Footnote 776: _Ibid._, 46; SWAN'S _Revisal_ (ed. 1752), 127-30;
  _cf._ WEEKS, _op. cit._, 244, 245.]

  [Footnote 777: IREDELL-MARTIN, _op. cit._, I, 45.]

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]

  [Footnote 778: WEEKS, _op. cit._, 245; _cf._ _N. C. Col. Rec._,
  VI, 881, 952, 954.]

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]

  [Footnote 779: IREDELL-MARTIN, _op. cit._, I, 157, 158; DAVIS,
  _Revisal_ (ed. 1773), 350.

  "It was proposed to limit this law to three years, which was not
  done. It provided for no Dissenters _except_ Presbyterians. But
  it seems that the original intention was to cover the case of
  all Dissenters. The second section probably read 'dissenting _or
  of the dissenting Presbyterian clergy_.' The clause in italics
  was stricken out and the phrase 'dissenting or Presbyterian
  clergy' took its place, thus excluding all Dissenters except
  Presbyterians."--WEEKS, _op. cit._, 245 n. 2; _cf._ _N. C. Col.
  Rec._, VII, 411, 329, 331.]

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]

  [Footnote 780: SAUNDERS, "Prefatory Notes," _N. C. Col. Rec._,
  VIII, xlv.]

  [Footnote 781: "Letter from Governor Tryon to Earl of Shelburne,
  Brunswick, 31st January 1767," _N. C. Col. Rec._, VII, 432, 433.
  On this act see also SAUNDERS, "Prefatory Notes," _ibid._, VIII,
  xlv.]

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]

  [Footnote 782: See the petition for repeal _ibid._, X, 1015;
  _cf._ WEEKS, _op. cit._, 246, 247, who has collected these
  passages.]

  [Footnote 783: _N. C. Col. Rec._, VIII, 80_b_. There was also a
  petition from the people of Anson: _ibid._, 78.]

  [Footnote 784: _Ibid._, 82; WEEKS, _op. cit._, 246, 247. This
  petition was presented to Tryon by "Herman Husband the leader of
  the Regulators": WEEKS, _op. cit._, 247, 248, referring to SWAIN,
  "War of Regulation," _N. C. University Mag._, IX (1859-60), 339.]

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]

  [Footnote 785: It is "rights" in the text, but this appears to be
  a "slip," for lower down the proper spelling is used.]

  [Footnote 786: _N. C. Col. Rec._, VIII, 322 (Dec. 17, 1770).]

  [Footnote 787: SAUNDERS, "Prefatory Notes," _N. C. Col, Rec._,
  VIII, xlv; also _ibid._, VIII, 297, 300; IX, 7.]

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]

  [Footnote 788: SAUNDERS, _op. cit._, xlv.]

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]

  [Footnote 789: "It is interesting to note with what satanic
  disregard of the rights of man the leaders in the Establishment
  can write. Says Reed [minister in Craven County]: 'The bill
  was pushed by the dissenting interest, and [because of] the
  dangerous situation of the province from such formidable number
  of malcontents [Regulators], the governor acted with the greatest
  prudence in passing the bill with a suspending clause.... Should
  this act receive the royal assent it would be a fatal stroke
  to the Church of England, but as the insurrection is entirely
  quelled, I flatter myself with hopes that the act will meet with
  a repulse.'"--WEEKS, _op. cit._, 247; _N. C. Col. Rec._, IX,
  6. Later the Board of Trade wrote that the law was in effect
  a "bounty to the tolerated religion at the expense of the
  established," and petitioned for its disallowance: _N. C. Col.
  Rec._, IX, 7, 245, 251, 284, 366.]

  [Footnote 790: SAUNDERS, _op. cit._, xlv, errs in saying that the
  law of 1766 was repealed soon after its passage.]


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]

  [Footnote 791: COOPER, _Statutes at Large_, II, 120, 121 (act of
  March 1695/6).]

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]

  [Footnote 792: _Ibid._, 242, 243; also in _N. C. Col. Rec._, II,
  867-82.]

  [Footnote 793: COOPER, _op. cit._, II, 289-91; also in BREVARD,
  _Alphabetical Digest of Laws of S. C._, 41-44. In both these acts
  elaborate provision is made for registration.]

  [Footnote 794: COOPER, _op. cit._, II, 475, 476, where 32 H.
  VIII., c. 38, is put in force; and it is retained in _Revised
  Statutes_ (Columbia, 1873), 481. In 1712, likewise, a part of the
  statute 1 Jac. I., c. 11, regarding bigamy was adopted: COOPER,
  II, 508.]

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]

  [Footnote 795: Editorial note in BREVARD, _Alphabetical Digest of
  Laws of S. C._, II, 41, 42, notes.]

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]

  [Footnote 796: With an exception relating to military power:
  POORE, _Charters_, I, 373, 374. Georgia was made a royal province
  in 1751; but the policy of toleration was maintained: HOLMES,
  _Annals_, II, 45; STORY, _Commentaries_, I, 102. In early days
  the province suffered the usual evils from scarcity of women:
  _Coll. Georgia Hist. Soc._, II, 105; III, 32, 144.]

  [Footnote 797: POORE, _Charters_, I, 375.]

  [Footnote 798: COOK, "Mar. Cel. in Col.," _Atlantic_, LXI, 356.]

  [Footnote 799: _Digest of the Laws of Georgia_ (Philadelphia,
  1801), 314.]

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.

  [Footnote 800: Even in Virginia civil marriages were frequent
  before the Revolution, though liable to penalty. For Maryland the
  view of the text as to the common-law contract was sustained in
  the case of Cheseldine _v._ Brewer, 1 Har. and McH., 152 (1739).
  This decision was, however, overruled in Denison _v._ Denison
  (1871), 35 _Md._, 361, 379, in which Justice Alvey says: "We
  think we are safe in saying that there has never been a time in
  the history of the state, whether before its independence of
  Great Britain or since, when some ceremony or celebration was
  not deemed necessary to a valid marriage. In the early days of
  the province, it was not absolutely necessary that a minister of
  religion should officiate,--a judge or magistrate could perform
  the ceremony--but still, in all cases, some formal celebration
  was required." Of course, the opinion of a judge long after the
  colonial era, not professing to be based on evidence, can have
  little weight in settling the present historical problem. Though
  the laws of the Maryland assembly, like those of Connecticut and
  Rhode Island (STORY, _Commentaries_, I, § 171), were not required
  to be submitted to the king for approval, it cannot be assumed
  that such laws could deprive a person of any liberty secured by
  the common law, but they might bestow greater privileges. _Cf._
  BISHOP, _Mar., Div., and Sep._, I, § 416.

  A statute of North Carolina, in 1715, declared that the common
  law should be in force in that province (IREDELL, _Laws_, 1715,
  18, 19; STORY, _op. cit._, I, § 142). Yet in this century it has
  been held that the common law of the state recognizes no marriage
  not according to the statutes; as to which statement, "the court
  observed in a subsequent case, 'we express no opinion.' But such,
  all agree, is not the common law of England."--BISHOP, _op.
  cit._, I, § 412; citing State _v._ Samuel, 2 Dev. and Bat., 177;
  and State _v._ Ta-cha-na-tah, 64 _N. C._, 614.

  Several decisions of the courts of Tennessee have regard to the
  colonial laws of North Carolina, the parent commonwealth, and
  on the whole sustain the view that informal marriages were good
  despite the statutes. In the case of Bashaw _v._ the State, 1829
  (1 Yerger, 177-97), which gives a history of North Carolina
  matrimonial legislation for the period 1715-1829, it was held
  that the celebration must be according to the statutes which had
  superseded the common law. The same view is taken two years later
  in Grisham _v._ the State (2 Yerger, 589, 592). But in Andrews
  _v._ Page, 1868 (3 Heiskell, _Tenn. Reports_, 653, 667), the
  opposite position is taken, the court holding rightly that the
  acts of 1741 and 1778 do not expressly prohibit the common-law
  marriage.

  The common-law principle of marriage by mutual consent prevailed
  in South Carolina (compare 10 McCord, _Statutes_, 357, ed. note;
  and the case Vaigneur _v._ Kirk, 2 _S. C. Equity Reports_,
  640-46, with H. W. Desaussure's note, 646). Referring to the law
  of South Carolina, generally, BREVARD, _Alphabetical Digest_, II,
  41, note, says: "How far the informality of a marriage may afford
  ground for questioning its validity, on a trial for polygamy, may
  perhaps admit of some doubt." Historically, however, the doubt is
  exceedingly small that such an informal contract would be valid.

  It is doubtful whether there were any courts in the southern
  colonies vested with full matrimonial jurisdiction: see BISHOP,
  _op. cit._, I, §§ 115-49.]



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).]


I. NEW YORK

The history of matrimonial institutions in the middle colonies is on
the whole less attractive than in New England. At any rate, it is
less interesting in the sense of being less eventful. The original
materials from which to construct it are less abundant. There is
nothing equal to the _Diary_ of the inimitable Sewall from which
it may be filled out and embellished. It is not quickened by the
struggle to maintain or to introduce diverse forms of celebration
resting upon opposing theories as to the nature of the nuptial
contract. There is little answering to the Puritan thoroughness in
regulating the conduct of domestic life, even among the Quakers.
Hence the legislative and judicial records are relatively meager.
In New York, notably, between 1684 and the Revolution the law-book
is a complete blank. On the other hand, in Pennsylvania, after the
establishment of the proprietary government, the predominance of
Quaker sentiment enables the original usages and the early statutes
regarding wedlock to run their even course for generations without
essential change. Still the study of marriage in the middle section
of the English colonies is not devoid of social interest. There, on
account of mixed population and diverse religious sects, toleration
in the main prevailed. The quaint records of the Dutch and the
homely ceremonial of the Friends may even prove entertaining, while
in this field, as in every other, the thought and experience of New
York and Pennsylvania have done much to form and fix the types of
law and administration now prevailing in the United States.

_a_) _Law and custom in New Netherland._--Long before the first
plantations were established on the Hudson, as already seen,
optional civil marriage had been sanctioned in several of the
Dutch states, and as early as 1656 it was extended to the United
Netherlands. In Holland independents of both old and New England
found encouragement and also a model in the effort to realize
similar ideas born of their common Protestantism.

It is therefore strange at first glance that a thorough-going
civil-marriage law should not have been introduced in New Netherland
from the beginning. The laws of the mother-country, even after 1656,
varied considerably in details among the different provinces. In
their content they generally rested on the basis of the later Roman
statutes.[801] From the desire to check the evils of clandestine
contracts, in many instances rigorous measures had been adopted.
Usually parental consent, often publication of banns, was made
essential to a valid marriage.[802] The laws of Guelderland were
especially severe;[803] and these according to Fernow, "naturally
prevailed" in New Netherland; for a "majority of the early settlers"
came from that province. "In Guelderland," he declares, "a marriage
was void, if the _express_ consent of the father, or if dead of the
mother had not been obtained for the marriage of a son. With regard
to daughters the law was still more rigorous; even a marriage,
entered into by a girl with parental consent, did not emancipate her
from parental authority, if she was still under age at her husband's
death: she had to place herself again under the guardianship of her
father or mother. Neither were parents obliged to give before a
Court of Justice any reasons in case they refused consent. This law
had its foundation in the Codex Justinianus."[804]

  [Footnote 801: O'CALLAGHAN, _Introduction to Names of Persons for
  Whom Marriage Licenses Were Issued_, p. iii.]

  [Footnote 802: FRIEDBERG, _Eheschliessung_, 478 ff., 485 ff.,
  gives the details, citing the Dutch authorities.]

  [Footnote 803: Compare the summaries of FRIEDBERG, _op. cit._,
  487, 488, 491.]

  [Footnote 804: FERNOW, _Doc. Rel. to Col. Hist. of N. Y._, XIV,
  243, note.]

In all respects except the celebration optional civil or
ecclesiastical marriage was sanctioned in New Netherland. It is
doubtless safe to assume that during the early years of the Dutch
colony banns and parental consent, probably according to the law of
Guelderland, were required; but legally, so far as the evidence at
hand shows, the covenant had to be solemnized by a minister with
religious rites. The first legislation by the local authorities
appears to have been enacted only ten years before the first
establishment of English rule. The occasion was the violation of
the "custom of our Fatherland" in the publication of banns by the
magistrates of Gravesend, as appears from the following letter
addressed to them by Peter Stuyvesant:[805]

"Worthy and dear friends.

"I received in due time your letter of the 13^{th} inst. sent to me
by the Fiscal, which has been communicated to the High Council. We
have been very much astonished that you arrogate to yourself the
publication of marriage-proclamations within your village without
our or the Council's knowledge, in cases where both parties live
beyond the jurisdiction of your village. As to the allegation made
by you, that the person is a freeman of your village, he is the
same in the City of _Amsterdam_ and here in this City and for this
reason must the marriage-proclamation be reported and published
here as well as there according to the customs of our Fatherland.
We do not deny, that matrimony is ruled by divine and by human
laws, but they who enter upon this state must do it according to
these divine and human laws, with the consent or knowledge of their
parents, tutors or guardians and then notify thereof the Commissary,
appointed by higher authority, at the place where they reside
or where they have previously been living during the last year.
Your final request, that we should send you a copy of the order
and power of attorney, which his [evidently Johannis van Beeck's]
father has given us concerning this son, is not complied with, as
we do not think ourselves bound to do it, considering yours being a
subordinate jurisdiction and subject to us; besides the father would
be displeased and it would be unreasonable in us, to communicate
to others, what an honest and prominent man has written to us in a
detailed letter.

"Thus much in answer to your open letter. This further serves as
cover of the enclosed order and resolution made by us and the
Council, which you must promptly obey, not because we wish to
prevent the marriage, but that according to divine and human laws
and ordinances they may be put in practice, proclaimed and affixed,
at the proper place and without infraction of anybody's rights.

"Relying thereupon we commend you with cordial greetings to God's
protection and remain

  Your well-affected friend and Governor

  P. Stuyvesant."

  [Footnote 805: _Ibid._ The letter is dated Jan. 20, 1654.]

The ordinance mentioned in the letter bears date of January 19,
1654/5, and runs as follows:

Since the magistrates at Gravesend "have presumed and undertaken
publickly to post notices of marriage" of persons "domiciled in
and about this city of _New Amsterdam_," far beyond their proper
district; therefore the "Director General and Council order and
notify the aforesaid Magistrates of Gravesend and all others within
this Province, to annul such posting of intentions of Marriage, and
on sight hereof to withdraw the same, and in all cases to proceed
with and confirm no such Marriage, either privately or publickly,
before and until such persons, according to _Netherland_ style, have
entered and received their bans and proclamations of marriage where
they are dwelling and have resided the last years."[806]

  [Footnote 806: O'CALLAGHAN, _Laws and Ordinances_, 152, 153. For
  this ordinance see also _New York Colonial MSS._, XII, 40; and
  compare _ibid._, IV, 456; V, 197; VIII, 647. Consult WEBSTER,
  _Opinion on the Law of Marriage prevailing in the Colony of N.
  Y._, 1772, 19, 20 (Lauderdale Peerage Case), who discusses these
  ordinances.]

This important measure was supplemented by another four years later.
The preamble recites that it had become common for betrothed persons
to put off marrying for a long time after the proclamation of their
banns, "which is directly in contravention of, and contrary to the
excellent order and customs of our Fatherland." Therefore it is
ordered that thenceforward all persons must be married within one
month after publication, unless they can give a good excuse.[807]
Light is thrown on the real motive for the adoption of this act by
its provision that no man and woman are henceforth to live together
until lawfully married. It seems to have been the custom, in too
many instances, for betrothed couples whose banns had been asked
the first time to begin living together as if already man and
wife. They looked upon themselves as at least half married; and we
are thus confronted by a state of affairs strikingly similar to
that which we have found existing in New England in consequence
of the laws governing pre-contract. Doubtless couples through
indifference, the refusal to fulfil the contract on the part of an
unscrupulous lover, or for other reasons, were now and then led
to protract the irregular marital relation beyond the completion
of the term prescribed for the publication of banns. Moreover, as
in New England, the custom of queesting or bundling imported from
the old home may have proved a snare for the unwary feet of the
young men and maidens of New Netherland. Indeed, the practice of
bundling has been assigned by New York writers as the proximate
cause of the singular provision referred to. "It was one of the
ordinances of the time," says Valentine, "that upon an agreement of
marriage, the bans should be published from the pulpit three times,
before the marriage could be solemnized. Impatient of the delay,
however, the youthful couple were often inclined to be satisfied
with their moral obligations towards each other, and to waive the
immediate fulfillment of the legal ceremony; in the meantime ... the
indulgence of cohabitation, then called 'bundling,' was practiced.
It was for a long time winked at by the community, but its violence
against the tenets of propriety was obvious, and at the time [1656]
before spoken of, in which the city authorities resolved to set
themselves to the reformation of abuses, this custom came under
their prohibatory decrees." There were "those who still maintained
its advantageous results, even though the contract of marriage were
subsequently violated. The latter instances, it was contended, were
comparatively few, and were set off by the increase of population
which came" through this means. Yet the reformers "triumphed, and in
1658 it was ordered, that henceforth the mere publication of bans
should not justify cohabitation."[808] The custom of bundling was,
however, too tenacious to be stopped by a decree of the legislator.
For more than a century in New York it continued to flourish, and
sometimes to bear evil fruit, as is clearly revealed in the case
of Seger _v._ Slingerland, which was decided in 1804.[809] Another
action shows that forty years later the practice existed in the
neighboring state of Pennsylvania. In this instance the plaintiff
admits that "the custom in courtship which he has denominated
bundling" prevails "very generally" in the part of the country where
the interested persons reside; and in this suit, as in the New York
case, the defendant won on appeal because of the connivance of the
parents in the misconduct of their daughter.[810]

  [Footnote 807: BRODHEAD, _Hist. of the State of N. Y._, I, 639.
  For the text of the ordinance of Jan. 15, 1658, see _N. Y. Col.
  MSS._, XVI, 40, 129; also O'CALLAGHAN, _op. cit._, 328, 329; and
  _Law Reports_, X (1885), 729 (Lauderdale Peerage Case).]

  [Footnote 808: VALENTINE, _Manual of the Corporation_, 1858, 497,
  498; _cf._ also LAMB, _History of the City of N. Y._, I, 183.]

  [Footnote 809: CAINE, _Reports_, II, 219, 220. This was a case
  on appeal by the original defendant who had been sued for damage
  for debauching the plaintiff's daughter. The defendant won on the
  ground of connivance of the parents of the girl. "We lay out of
  view," says the court, "the custom which it is agreed prevails
  in that part of the country for young people, who are courting,
  to sleep together." "Nor is it an excuse for the parent to say
  that promises of marriage had been exchanged." _Cf._ also STILES,
  _Origin and Hist. of Bundling_, 44 ff., 109-11.]

  [Footnote 810: Case of Hollis _v._ Wells (1845), 3 _Pa. Law
  Journal_ (Philadelphia, 1872), 29-33. Under head of "A Custom
  Must be Moral," these two cases are discussed in LAWSON (J. D.),
  _The Law of Usages and Customs_ (St. Louis, 1881), 58-60.]

According to the old Dutch law, enforced in New Netherland, all
persons desiring to form a valid union were required to appear
before the minister or the court, as they saw fit, in the place
where they had "their fixed domicil for the last year and day, and
to apply there, for three Sundays or market days, when publication
of the banns was to be made in the church or the court-house, or
other place where the court of justice was held; and every one who
had any impediment to propose, was obliged to state the same in the
mean time, on pain of being otherwise deprived of that right."[811]

  [Footnote 811: O'CALLAGHAN, _Names of Persons for Whom Marriage
  Licenses Were Issued_, p. iii.]

The following document of 1655, contained in Fernow's collection
relating to the plantations on the Delaware when under the Dutch
jurisdiction, may serve to illustrate the prescribed formality in
applying for publication of banns:

"Appears Toms Broen, as father and guardian of his daughter,
Jannetje Tomas and consents to the marriage between her and Willem
Mauritz here present and requests that their legal bans might be
published; the names being, of the bridegroom Willem Mauritz,
bachelor, from Walle Schier, about 33 years old, of the bride
Jannetje Tomas, spinster, born in New-Netherland, about 16 years
old. Witness Stuyte Andries."[812]

  [Footnote 812: Addressed to the vice-director and his council:
  FERNOW, _Doc. Rel. to Col. Hist. of N. Y._, XII, 137 (Dec. 29,
  1655). For a similar application see _ibid._, XII, 153, 154. For
  further record of entry of banns before the "mayor of New York"
  (1670-71) see _Records of New Amsterdam_, VI, 262, 334.]

From the same collection, two years later, we learn that "Laurens
Pieters bachelor from Lier and Catlyne Jans of Gottenburch in Sweden
were confirmed in marriage after proclamation of banns on the
previous Sundays."[813]

  [Footnote 813: Dec. 24, 1657: FERNOW, _loc. cit._, 156.]

The civil courts in New Netherland possessed full jurisdiction in
all suits or matrimonial causes, including cases of separation
and divorce.[814] For an understanding of the relation of the
lower and higher courts, the procedure in such cases, and the
details of the law, the often-mentioned case of Johannis van Beeck
and Maria Verleth is instructive. The facts in this case appear
to have been the proximate cause of the ordinance of 1654/5 and
the letter of Stuyvesant already submitted. It is all the more
interesting because it involves the double question of irregular
banns and unlawful celebration, as shown by the final decree. On
January 26, 1654, takes place the first step in the proceedings.
Cornelis van Tienhoven, the schout, lodges formal complaint before
the burgomasters and schepens of New Amsterdam against the court
of Gravesend for illegally "granting and confirming the Banns of
Matrimony betwixt Johan van Beeck and Maria Verleth, who both have
their domicil in and about this city of New Amsterdam;" suggesting
that such conduct tends to the infringement of the good policy of
the fatherland, as also the privileges and jurisdiction of the
city, and to prepare a way for sons and daughters to go secretly
and get married. In reply, says the record, the "Burgomasters, and
Schepens ... do hereby refer the foregoing complaint and proposition
made by Cornelis van Tienhoven, in quality as Schout, to their
High Mightinesses the Director-General and Councillors of New
Fetherland."[815] But this did not end the matter.[816] On February
10, pending the decision of the higher court, van Beeck petitioned
the burgomasters and schepens "that his bans with Maria Varleth
may be entered and be properly proclaimed here" in New Amsterdam.
Whereupon the court "engage to do same because it is usual and
custom of Fathld to have publcts where domicil is and married where
he pleases."[817] After a little delay, the court keeps its promise.
On February 19 the burgomasters and schepens solemnly examined the
petition, noting (1) who instituted marriage and the apostles'
teaching; (2) the proper ages and the attained ages of both parties;
(3) consent of parents on the girl's side; (4) distance between
this and fatherland; (5) that "matters by long delay might come
to be disclosed ... which would bring disgrace on both families;"
therefore that "proper ecclesiastical proclamations ... ought to be
made at the earliest opportunity and followed afterwards by their
marriage."[818] This resolution seems a trifle indiscreet, in view
of the fact that the original case had been referred to their High
Mightinesses. It is therefore not strange that a communication
signed by Stuyvesant himself should express surprise that van Beeck
should have affixed by a poster "that his marriage, contracted not
only without his father's knowledge, but contrary to his express
prohibition to marry abroad has been declared lawful and proper by
Resolution of the Burgomasters and Schepens ... ; of which Resolution
the Director General and Council are ignorant;" at the same time
requesting an "authentic copy" of the resolution, with "written
reasons" for failing to submit the same for approbation of the
higher court.[819] This was on March 2, 1654. Apparently, after
republication of the banns, van Beeck had had the marriage ceremony
performed outside of the Dutch jurisdiction, probably because of
the doubtful legality of the course taken by the officials of New
Amsterdam. The records are silent as to the further proceedings in
the case, except as they may be inferred from the following decree
of the higher court, rendered not earlier, apparently, than 1656,
which leaves us in doubt as to how the original complaint against
the magistrates of Gravesend was disposed of:

"Whereas, the Director-General and Council of _New Netherland_
have heard the charge of the Fiscal against _Johannis van Beecq_,
a free merchant and inhabitant of this City of _New Amsterdam_,
defendant, who has been duly summoned by the Court Messenger
_Elslandt_ in the name of the Fiscal on three Court days and who has
had himself married by an unauthorized countryman, named _Goodman
Crab_, living at _Greenwich_, against the laudable laws and customs
of the _United Netherlands_ and, as the Fiscal further states and
proves in his charge, contrary to the advice and command of his
lawful guardian,[820] the Hon^{ble} Director-General, also without
previously publishing the bans and who has so far failed to make his
appearance, of _Netherland_ and without previous publication of the
bans, is hereby declared ... unlawful and the said _Jan van Beecq_
and _Maria Verleth_ are commanded to live separate under penalty of
being punished according to law for living in concubinage."[821]

  [Footnote 814: For a discussion of the divorce jurisdiction of
  the Dutch courts see chap. xv, below.]

  [Footnote 815: VALENTINE, _Manual of the Corporation_, 1845-46,
  368; _Records of New Amsterdam_, I, 155.]

  [Footnote 816: While these proceedings were in progress,
  another appeal, growing out of the case, came from the schout,
  burgomasters, and schepens, in the city hall, special session of
  Feb. 8, 1656. Case of "Maria Verleth, pltf. v. Joost van Beeck,
  deft." The defendant maintains, as the marriage between Johannis
  van Beeck and Maria Verleth is not yet declared legal, that
  certain "letters are not her's, until the marriage be legalized."
  But should the marriage be declared lawful by the court, supreme
  council, and consistory, he consents that she shall have them.
  He only wants his right. The court lets Maria have the letters
  provisionally, because it has never been informed that the
  marriage has been declared illegal, and it has already announced
  that it must respect the proclamation of the church and the
  "marriage tie of said young people."--_Records of New Amsterdam_,
  II, 36.]

  [Footnote 817: _Ibid._, I, 159, 160.]

  [Footnote 818: _Ibid._, 164, 165. Earlier on the same day, the
  record says, van Beeck prays "that disposal be made of petition
  and remonstrance;" but no action was taken because the bench was
  not complete: _ibid._, 163, 164.]

  [Footnote 819: _Records of New Amsterdam_, I, 173, 174.]

"And whereas the Fiscal demands by his motion, exhibited on the
1st of September, 1654, that the said _van Beecq_ be condemned in
contumacy,

"Therefore, after proper invocation of the Lord, the
Director-General and Council of _New Netherland_, in the name
and behalf of their Noble High: Might: the Lords-States-General
of the _United Netherlands_ and of the Noble Lords-Directors of
the Privileged West India Company administering justice at the
requisition of the Fiscal, declare, that the Fiscal's charges are
true and founded in law and therefore the marriage of _Johannis van
Beecq_ and _Maria Verleth_, solemnized at _Greenwich_ and confirmed
by an unauthorized person contrary to the laudable laws and customs

  [Footnote 820: See the reference to power of attorney in
  Stuyvesant's letter, p. 269, above.]

  [Footnote 821: FERNOW, _Doc. Rel. to Col. Hist. of N. Y._, XIV,
  291.]

From the evidence already presented it is perhaps not rash to infer
that marriage by mere private consent, in words of the present
tense, was not valid in New Netherland. Publication of banns
and celebration before an authorized person were essential. The
principle, therefore, of the English common-law marriage did not
obtain. It had been superseded by statute. These records afford
other evidence to sustain this conclusion. Thus in February, 1662,
William Beeckman, of "Fort Altena on the South-River," writes to
Stuyvesant and the council, complaining that one Laers, a Finnish
priest, who was granted a divorce from his wife two months before,
has "married himself again last Sunday"--an act "which in my opinion
(under currection) he has no right to do. I expect your Honors'
orders, how to conduct myself in regard to it."[822] As a result the
marriage was declared to be "null, void, illegal;" seemingly on the
ground that self-marriage was not tolerated by the usages of the
Reformed church. Clearly in the opinion of the court the performance
of the ceremony by a person legally competent was necessary to a
valid contract. It is possible, however, that the decree was unjust
because of unfair representation of the facts by Beeckman, who is
accused of being a tyrant. In a letter to Stuyvesant, remonstrating
against his treatment, Laers says: "I cannot discover anything
illegal in it [his conduct]. I acted just in the same manner as I
had done before in respect to others; exactly as others do who are
not prosecuted for it, and I can conscientiously assure you that it
was done without any evil intentions. Had I known that my marrying
myself in this manner should have been so unfavorably interpreted, I
should have submitted to the usage of the Reformed Church. But I did
not know it. Wherefore I pray once more the honorable general that
he will vouchsafe me his aid."[823]

  [Footnote 822: _Ibid._, XII, 359, 360. The case is also discussed
  by GERARD, _The Old Stadt Huys of New Amsterdam_, 390, 391.]

  [Footnote 823: GERARD, _op. cit._, 391, who says Laers was not
  legally bound to conform to the usage of the Reformed church. See
  also the documents in this case in O'CALLAGHAN, _op. cit._, XII,
  358, 359, 363, 366, 367.]

Another case, or rather pair of cases, occurring during the
restoration of Dutch rule in 1674, seems conclusive as to the
severity of the law. On the fifth of February of that year, as the
fiscal alleges, Jacob Fabricius, a Lutheran preacher, had "contrary
to the laws of this government married Ralph Doxy and Mary van
Harris ... without having any lawful authority thereto and without
publication of bans." For this offense it is suggested in the
complaint that the culprit be severely whipped and "forever banished
this government _cum expensis_." After hearing the fiscal's charge,
the confession of Fabricius, and a "report" of the latter's previous
bad behavior, the court decides not to "proceed against him in the
most rigorous manner, considering his age and late position, but
they condemn him and declare him incapable to perform the functions
of a minister and what is connected with them within this province
for the time of one year. After this time has elapsed Deft. shall be
held to ask for a special 'consent' before he shall be re-admitted
to the performance of the said functions."[824]

  [Footnote 824: FERNOW, _op. cit._, XII, 512: case of the Fiscal
  _v._ Jacob Fabricius, March 1, 1674, before Governor-General
  Colve and the council. A version of the case is also given by
  O'CALLAGHAN, _op. cit._, II, 693, who translates "license" where
  Fernow uses "consent" in the last sentence.

  It is greatly to be feared that Brother Fabricius was a rather
  uncomfortable inhabitant; for at the same session of the court
  the fiscal charges that he did "beat and use force and violence
  against Marretie Jurians, in her own house," for which it is
  thought he ought to be "condemned in a fine of five Beavers with
  costs." The defendant admits the charge; "but says that the above
  named Marretie Jurians did provoke him with harsh language."
  Their honors, however, deemed it just to assess him "two Beavers
  with costs": O'CALLAGHAN, _loc. cit._, 693. Later Fabricius was
  accused of riotous conduct at Newcastle on June 4, 1674, but he
  denied the charge and offered to bring witnesses: FERNOW, _op.
  cit._, XII, 521. Possibly religious bickerings had something to
  do with his troubles. At any rate on June 1, 1675, the Lutherans
  on the Delaware petitioned that he be confirmed as pastor:
  _ibid._, 529. On April 18, following his suspension for marrying
  Doxy, he had the hardihood to ask that the sentence be mitigated,
  so that "he might be at least allowed to baptize, if he may not
  preach and act as minister;" but the court declined his request:
  _ibid._, 512.]

The case against Ralph Doxy is complicated by additional charges.
The fiscal makes no direct reference to the unauthorized celebration
or to the failure to publish the banns, though from the judgment
of the court we perceive that these offenses were considered; but
accuses him of entering "in an unlawful manner, into the married
state with Mary van Harris, making use for that purpose, of a forged
certificate," further alleging that he "hath still a wife alive who
resides in New England;" for which delinquencies he ought to be
severely whipped and "banished the country forever, with costs." In
his reply, Doxy "denies ever having been married to a woman before,"
but confesses "his guilt as regards the forged certificate," saying
"that through love for Mary Harris he had allowed it to be executed
by a certain Englishman, now gone to the Barbadoes, and therefore
prays forgiveness." The court declared the marriage unlawful on
the two counts for which Fabricius was suspended; but "finding the
charge against him of having a second (_sic_) wife in New England
unfounded, he is therefore permitted to confirm himself in wedlock
with the abovenamed Mary, according to the laws of the government."
For the forged certificate "he is pardoned for this time on his
promise of improvement, and request for forgiveness[825]."

  [Footnote 825: O'CALLAGHAN, _op. cit._, II, 691, 692. On these
  two cases see FOWLER, _Letter and Opinion_, 60 ff. (Lauderdale
  Peerage Case).]

With the exception of the restriction put upon bundling, if that
were indeed the purpose of the act of 1658, the Dutch law-makers do
not seem to have busied themselves with the regulation of courtship.
Sexual transgressions were severely dealt with, although not with
the same rigor as in New England or even in early Virginia. Neither
the death penalty nor the scarlet letter appears. Fornicators,
if single, were required to contract marriage or pay a heavy
fine.[826] Adulterers fared worse. Some illustrations from the
judicial records in such cases have been gleaned by Cowley from the
_Colonial Manuscripts_. Among these are the sentence to whipping and
banishment of Ytie [Yutie] Jansen, "for living in adultery with Jan
Parcel, and also the sentence of Laurens Duyts, who, for selling his
wife, Yutie Jansen, and forcing her to live in adultery with another
man, and for living also himself in adultery, was 'to have a rope
tied around his neck, and to be severely flogged; to have his right
ear cut off, and to be banished for fifty years.' John Parcel, for
living in adultery with this Yutie Jansen, whom he had thus bought
from her own husband, was 'to be placed at the whipping-post, with
two rods in his arm,' to be banished twenty years and pay a fine of
a hundred guilders [forty dollars], with costs. The fourth party,
Geesje Jansen, for living in adultery with Laurens Duyts, was 'to
be conducted to the whipping-post, and fastened thereto, the upper
part of her body being stripped naked, and two rods placed in her
hand; to be afterwards conducted, in that wise, outside the city
gates, and banished the province for the term of thirty years, with
costs.' Moreover, Iva Dircksen, for adultery, was 'to be conducted
to the place where justice is administered, and there to witness the
punishments inflicted this day, and then to be banished for the term
of fifty years.'"[827]

  [Footnote 826: O'CALLAGHAN, _Laws and Ordinances_, 495.]

  [Footnote 827: COWLEY, _Our Divorce Courts_, 33, 34; citing _New
  York Colonial MSS., 1630-1664_: Dutch: Part I, Vol. VIII, 1049,
  1051, 1653, 1055, 1057.]

Breach of promise suits are not infrequent. Sometimes it is the
faithless swain who is prosecuted for his broken troth; as in
1669, when Elizabeth Stedwill called Jan Hendrix van Gunst to
account;[828] or when Maria Besems seeks pecuniary satisfaction
for the like offense of Boudewyn van Nieuwland.[829] Sometimes it
is the maid who asserts the woman's privilege, if not her legal
right, to change her mind; as in the case of Pieter Koch _v._
Annetie Cornelissen van Vorst, which took place in New Amsterdam,
1653-54, and may serve as an example. On February 24 the defendant's
stepfather delivers her "papers" to the burgomasters and schepens,
who order that each party shall have a copy of the other's papers,
and that the defendant shall appear in person. Then the case drags
along for nearly a year, over no less than eight sessions of the
court, before the pleadings and other preliminaries are finished.
At last, on February 19, 1654, the papers are sent by the lower
court to the director-general and council for advice. Apparently
in consequence of this advice the documents are then submitted to
a special committee of three men, who hand in their report on the
18th of the following May. Upon this report the decision of the
burgomasters and schepens was based, though they resolved to keep
the judgment in "abeyance" until "requested" by the parties to the
suit. From the records it appears that there was an oral promise of
marriage; that the plaintiff had given presents to his betrothed;
and that she, because of his "misbehaviour," was not disposed to
keep her engagement. The court, however, decided that a promise once
given should remain in force. Neither person without the consent
of the other and the approbation of the court should marry. The
defendant was allowed to keep her presents until marriage or until,
with the knowledge of the magistracy, the betrothed should set each
other free. Costs were to be borne equally by the parties.[830]

  [Footnote 828: _Records of New Amsterdam_, VI, 203.]

  [Footnote 829: GERARD, _The Old Stadt Huys_, 27. _Cf. ibid._, 26,
  27, where cases of breach of promise are mentioned in 1642, 1644,
  1653, and 1656.]

  [Footnote 830: _Records of New Amsterdam_, I, 54; see _ibid._,
  167, 199, 200. It may perhaps be inferred that the couple
  concluded to release each other; for only seven years after the
  trial (May 24, 1661) "Annetje Dircks, widow of Pieter Koch,"
  is mentioned; _ibid._, III, 310; and similar phrase is twice
  repeated: _ibid._, 403; IV, 34.

  There are other cases. "In 1654 Greetje Waemans produced a
  marriage ring and two letters, promissory of marriage, and
  requested that on that evidence Daniel de Silla be 'condemned
  to legally marry her.' He vainly pleaded his unfortunate habit
  of some days drinking too much, and that on those days he did
  much which he regretted; among other things his bacchanalian
  love-making of Greetje. François Soleil, the New Amsterdam
  gunsmith, another recreant lover, swore he would rather go away
  and live with the Indians (a terrible threat) than marry the fair
  Rose whom he had left to droop neglected--and unmarried."--EARLE,
  _Colonial Days in Old New York_, 51; and for mention of other
  cases, in connection with Dutch wedding gifts, see _ibid._, 52,
  53.]

It is not surprising that among a people so thrifty and sensible
as the pioneers of New Netherland the remarriage of a widow or
a widower should be accompanied, or anticipated, by prudential
measures, designed to protect the interests of the children of the
first union. For this reason the wills and marriage contracts,
specimens of which have been preserved, are of peculiar interest.
According to Stiles, a well-known investigator of deeds and wills
in Williamsburgh[831] makes the remark "that the old Dutch wills
seem not to trust the widow in a second marriage. The restraints
placed upon remarriages, by wills, were generally in favor of the
children of the first marriage; and the widows thus restricted
generally signed consents to accept the bequests in lieu of dower,
for the good reason that propriety did not allow them to refuse so
soon after the death of their first husband, and because the devises
and bequests in lieu of dower vested an estate for life, or three
thirds of the estate subject to a contingency in their own control,
instead of one third absolutely. The will of Cornelius van Catts
of Bushwick, dated in 1726, and expressed in a sort of half Dutch
dialect, devises to his wife Annetjie, his whole estate ... while
she remains his widow--both real and personal. 'But if she happen
to marry, then I geff her nothing of my estate, neither real nor
personal. I geff to my well-beloved son, Cornelius, the best horse
that I have, or else £7, 10s., for his good as my eldest son. And
then my two children, Cornelius Catts and David Catts, all heef
[half] of my whole effects, land and movables, that is to say,
Cornelius Catts heef of all, and David Catts heef of all. But my
wife can be master of all for bringing up to good learning my two
children.... But if she comes to marry again, then her husband can
take her away from the farm, and all will be left for the children,
Cornelius Catts and David Catts, heef and heef.'"[832]

  [Footnote 831: J. M. STEARNS.]

  [Footnote 832: STILES, _History of Brooklyn_, I, 233, 234.

  The author adds: "So also in the will of John Burrows, of Newton,
  July 7, 1678, he devises to his son John his then dwelling-house,
  farm, orchard, out-houses, and lands, etc. 'But not to dispossess
  my beloved wife during the time of her widowhood. But if she
  marry, then her husband must provide for her as I have done.' So
  also the will of Thomas Skillman, of Newton, in 1739."--_Ibid._,
  233, 234.

  "Often joint-wills were made by husband and wife, each with
  equal rights, if survivor. This was peculiarly a Dutch fashion.
  In Fordham, in 1670 and 1673, Claude de Maistre and his wife
  Hester du Bois, Pierre Cresson and his wife Rachel Cloos,
  Gabriel Carboosie and Brieta Walferts, all made joint-wills.
  The last-named husband in his half of the will enjoined loss
  of property if Brieta married again. Perhaps he thought there
  had been enough marrying and giving in marriage already in
  that family, for Brieta had had three husbands,--a Dane, a
  Frieslander, and a German,--and his first wife had had four, and
  he--well, several I guess; and there were a number of children;
  and you couldn't expect any poor Dutchman to find it easy to make
  a will in all that confusion. In Albany may be found several
  joint-wills, among them two dated 1663 and 1676; others in the
  Schuyler family."--EARLE, _Colonial Days in Old New York_, 54,
  55.]

It was not, however, the first husband alone who took such
precautions. After betrothal careful marriage contracts were often
drawn up when either a widow or a widower was about to re-enter
wedded life. The following is a sample of these stipulations, dated
July 27, 1656:

"Appears Geertruyt Jacops, widow of the late Mr. Roeloff de Haes,
now betrothed to Jacob Crabbe and declares her intention of proving
and assigning their father's inheritance to the children, left by
him, Mr. de Haes, and born in wedlock by her, Geertruyt Jacops,
to wit Johannes de Haes, old about 10 years, Marrietje de Haes,
old about 9 years, and Annitje, old about three years, and assigns
herewith to each of the aforesaid children the sum of 6 carolus
guilders, declaring at the same time upon her conscience, in place
of an oath that she, affiant, hereby satisfies the aforesaid
children out of their father's inheritance and this declaration
is made in presence and with the consent of her affianced
husband Jacobus Crabbe, and she Geertruyt Jacops, has nominated,
constituted, and appointed ... as guardians of the aforesaid
children the Worthy Oloff Stevensen and Hendrick Kip, both burghers
and inhabitants of the Manhattans."[833]

  [Footnote 833: Before the vice-director on the Delaware: FERNOW,
  _Doc. Rel. to Col. Hist. of N. Y._, XII, 149, 150.

  Here is a somewhat more elaborate contract in which one party is
  a widower:

  "In the name of the Lord Amen, be it known by the contents
  of this present instrument, that in the year sixteen hundred
  and sixty-three the eighteenth day of May, appeared before
  me, Johannes La Montagne in the service of, etc., Meyndert
  Frederickse [Smith], widower of the late Cataryna Burger, who
  declares in the presence of the aforesaid witnesses, that for
  God's honor he has contracted a future marriage with Pietertien
  Teunise, spinster (jonge dochter), and before the consummation
  of the same, he, the subscriber, assents to the following
  conditions, firstly, that the aforesaid betrothed persons,
  for the maintenance of said marriage, will collect and bring
  together, all such existing estates and effects of whatever
  nature; in whatever place, and with whatever persons, the same
  may be lying or deposited, nothing excepted, which each now has
  and posesses, to be by them possesed in common, according to
  the law of our Fatherland, except that out of the bridegroom's
  estate, to-wit, from the estate left by Caterina Burger deceased,
  be reserved the sum of eight hundred guilders payable in beavers,
  for the children left by her; to wit Frederick Meyndersen aged
  six years, and Burgert Meyndersen aged three years, being their
  maternal (matrimonial) inheritance; moreover said married persons
  shall be holden to bring up said children in the fear of the
  Lord, to teach them to read and write in the schools, to maintain
  them in food and clothing till their majority or married state,
  without diminishing their maternal estate, which the subscriber
  promises without craft or guile, and for the same binding his
  person and estate, real and personal, present and future, nothing
  excepted, subject to all laws and judges." In the presence of
  the children's guardians and the "orphan master."--MUNSELL'S
  _Collections on the Hist. of Albany_, IV, 321. For similar
  contracts see _ibid._, 311 (Sept. 23, 1662), 345.]

_b_) _Law and custom under the Duke of York._--In 1664 New
Netherland passed into the hands of the Duke of York, whose patent
from Charles II. directed him to establish authority "not contrary
to but as neare as conveniently may bee agreeable to, the Lawes
Statutes and Government of this our Realme of England."[834] After
studying the New England laws, especially those of Connecticut and
Massachusetts, Colonel Richard Nicholls, the duke's deputy governor,
promulgated a code which was in force on Long Island, or Yorkshire,
from March 1, 1665.[835] On August 6, 1674, Governor Andros ordered
the duke's laws to be enforced throughout "New York" except "such as
shall have apparent inconveniences in them,"[836] and in 1676 they
were established in the Delaware region, "except the constables'
courts, county rates, and some other things peculiar to Long
Island."[837] It follows that for a short time after the conquest,
in the province and on the Delaware, the Dutch laws were still
observed; and, of course, the old usages and customs long survived.

  [Footnote 834: See the charter in _New York Colonial Laws_,
  I, 1-5; and compare COOK, "The Mar. Cel. in the Colonies,"
  _Atlantic_, LXI, 360 ff.]

  [Footnote 835: BRODHEAD, _Hist. of N. Y._, II, 18, 63, 66, 67;
  _Colonial Laws of N. Y._, I, xii, 100, 101. The code of the Duke
  of York has been thrice published: in _Collections of N. Y.
  Hist. Soc._, I, 305-97, for the year 1809 (New York, 1811); in
  the recent _Colonial Laws of New York_ (Albany, 1894), I, 6-100,
  where a critical note on the original copies may be found; and as
  the _Duke of Yorke's Book of Laws_, a part of LINN'S _Charter and
  Laws of Pennsylvania_ (Harrisburg, 1879), the edition here cited
  by preference.]

  [Footnote 836: O'CALLAGHAN, _Doc. Rel. to Col. Hist. of N. Y._,
  III, 226, 227; _N. Y. Col. Laws_, I, xii, xiv, 107 (Andros's
  order). _Cf._ DONGAN'S report in O'CALLAGHAN, _op. cit._, III,
  390 (1686); also see HILDRETH, _Hist. of U. S._, II, 44 ff., 76
  ff.; LODGE, _Short Hist._, 297-99; BRODHEAD, _Hist. of N. Y._,
  II, 273; HOWARD, _Local Const. Hist._, I, 105, notes.]

  [Footnote 837: HAZARD, _Annals of Pa._, 427; _N. Y. Col. Laws_,
  I, xii.]

By the duke's code optional civil marriage was established in New
York. "Whereas," declares the preamble, "by the Law of England no
Marriage is Lawfully Consummated without a Minister whose office it
is to join the parties in Matrimony after the Banes thrice published
in the Church or a Lycence first had and obtained from some person
thereunto Authorized, All which formality cannot be duly practiced
in these parts. Yet to the end that a decent rule therein may be
preserved It is Ordained that from henceforth the names and surnames
of each Party who sue for Marriage shall be Publiquely read in
their Parish Church or place of usuall Meeting, where they both
then Inhabit, three severall Lords days successively." An optional
procedure by license or by ecclesiastical banns was thus introduced;
but in one respect the liberality of the Dutch law was not imitated.
Unqualified permission to publish intentions of marriage by civil
notice, instead of banns in church, was not granted. Yet, in effect,
such discretion is often allowed; for "where no Church or Meeting
place shall happen to bee," fourteen days written notice on "three
doors of each parish" where the parties respectively dwell, namely
on the doors of the constable, and two of the overseers, is declared
sufficient.

Optional religious or civil celebration is established. After proper
notice, as already described, the ceremony may be performed by
"any minister" or "any justice of the peace," but on one important
condition: the parties are required to "purge themselves by oath
before the minister or justice that they are not under the bonds of
matrimony to any other person living;" and in case of obtaining a
"double marriage" by perjury, we catch a glimpse of the influence
of New England thoroughness on Colonel Nicholls, in the barbarous
provision that the persons "offending shall bee boared through
the tongue with a read hot Iron and moreover proceeded against
as in Case of Adultery." But the party "approved innocent" and
"ignorant of the other's wicked fraud" may recover damages against
the "nocent," and is permitted to contract a new marriage as if
nothing had happened.[838] For the marriage of any "Daughter, Maid,
or Servant" the "known consent" of the parent, master, or dame is
required; and for celebration without such consent, or without
preceding banns or other legal notice, or the governor's license
in place of notice, the minister or justice is to "forfeit twenty
pounds and be put out of his office."[839]

  [Footnote 838: _Duke of Yorke's Book of Laws_: in _Charter and
  Laws_, 19, 36; _Col. Laws of N. Y._, I, 45, 46. In at least one
  case this provision was carried out: on Oct. 5, 1672, Dan Sutton,
  for perjury and bigamy was sentenced to have his tongue bored
  through with a red-hot iron: _Law Reports_, X, 733 (Lauderdale
  Peerage Case); for the text of the duke's marriage law of 1664/65
  see _ibid._, X, 730, 731.]

  [Footnote 839: _Duke of Yorke's Book of Laws_, 37.]

The declaration of the preamble that "by the Law of England no
Marriage is Lawfully Consummated without a Minister" may prove
misleading, unless the vital distinction between "legality" and
"validity," already emphasized, be kept in mind. In 1665 a marriage
in England without a minister was valid, but it was not lawful and
might be punished. In the present instance, however, all doubt as
to the meaning of the law is set at rest by the further provision
that "if any man shall hereafter presume to Marry contrary to these
Lawes prescribed the Person offending shall be proceeded against as
for Adultery or fornication, ... the Children so begotten shall be
Reputed Bastards, And the Parents suffer such paines and penalties
by fines or Punishment as they have deserved."[840] Since this
provision is clearly contrary to the existing law of England, it
would seem to be invalid as transcending the legislative power
granted to the duke by the royal charter; and even the king could
not have changed the law of England.

  [Footnote 840: _Ibid._]

Later in 1665 provision is made relative to the legal age for
matrimony. All persons are to be "accompted of fitt age to Marry,
when the Man shall attaine to the age of twenty one, and the Women
of Eighteene years."[841] In the next year the not very lucid
interpretation is vouchsafed that this law is to be understood "of
such persons onely as are under guardianshipp, and itt is not in any
wayes to take of the naturall bounds of Duty and obligation which
Children owe to their parents."[842] If this declaration has any
sense, it may perhaps mean that, without consent, only orphans under
guardianship, and not those whose parents are living, have full
authority to marry at the ages mentioned.

  [Footnote 841: _Ibid._, 65.]

  [Footnote 842: _Ibid._, 70.]

A system of registration is likewise provided for. The names and
surnames of all the inhabitants of every parish in the government
are to be registered; and "to prevent future inconveniences which
may arise about the age of Orphants, The Certaine Marriage of Men
and Women or the decease of persons imported into this Country
whereof no positive Certificate can be granted, as to the age of
one, Marriage of another or the Death of another, The Minister or
Town Clark of every parrish shall well and truly and plainly" record
all births, marriages, and deaths happening within his district "in
a Book to be provided by the Church-wardener for that purpose." If
a master of a family or anyone concerned fail, within one month, to
report the birth, marriage, or death of a person related to him, he
shall pay a fine of five shillings.[843]

  [Footnote 843: _Duke of Yorke's Book of Laws_, 13, 14; _Col. Laws
  of N. Y._, I, 19.]

Another provision reveals the tender solicitude of the English
common law for the wife in a way which a century later would have
warmed the heart of Sir William Blackstone himself. "No man shall
harbour, conceal or detain Contrary to the concent of the Husband
any Married woman, upon penalty of five Shillings for every hour"
that she "remains under his Roof." Still there really might be
occasions when even a "married woman" could reasonably claim some
share of public protection. For has not the "common law" itself,
in certain emergencies, placed her on a level with the bondwoman?
Therefore it is provided "always that any woman flying from the
barbarous Cruelty of Her Husband to the House of the Constable or
one of the Overseers of the same Parish; may be protected by them
in the manner as is Directed for Servants in such Cases, and not
otherwise."[844]

  [Footnote 844: _Duke of Yorke's Book of Laws_, 36; _Col. Laws of
  N. Y._, I, 46.]

Again on producing a "sufficient" certificate "from any forraigne
parts" under the "hand and seal of some creditable person and known
magistrate," that either spouse is dead, the other is free to marry
again. The same liberty is accorded the survivor when either party
has been absent for five full years without knowledge on a journey
by sea or land usually made in "a year or less or in a few days."
But in that case a veritable trap is laid for the feet of Enoch
Arden, in a provision, imitated from the laws of New England, the
stupidity of which is only less surprising than the fact that in
substance it has survived in statutes of far more recent times.
It is "provided always that if either the man or the woman shall
at any time after the Expiration of five years Returne and bring
full Testimony that hee or shee have divers wayes endeavoured by
writings or Messages to make known to his wife, or her Husband, that
Shee or hee were then living, or that they were by Imprisonment or
Bond Slavery with the Turks or other Heathen, Lawfully hendred from
giving such information;" then such person may "Challenge his or her
premarriage, and obtain an order for their Cohabiting as formerly."
But "if neither shall sue for such an order," they "may by mutuall
agreement Enter a Release to each other in the office of Records,
and both remain free from their former obligations."[845]

  [Footnote 845: _Ibid._, 46, 47; _Duke of Yorke's Book of Laws_,
  36, 37. "The father onely of the Children as are begotten in
  Lawfull Marriage," continues the statute, "is to provide for such
  Children as shall be adjudged in the Court of Assizes only."]

One or two incidents gleaned from the records for the period of the
duke's laws may serve to illustrate the difficulties of matrimonial
administration on the Delaware. Thus in 1678, in a case similar to
that of Laers above cited, the minister, reader, and churchwardens
present to the local court at Newcastle Walter Wharton, justice of
the peace, for marrying himself or being married "contrary to the
Knowne Lawes of England & alsoe contrary to the Lawes and customes
of this place and Province;" as likewise for granting certain lands
without proper authority. The said "Mr. Wharton not appearing in
three following Court dayes, and to the end the Reproach may bee
taken away from the River and that Such notorious breatches of
y^e Lawes and disorders may for the future not passe unpunished,
especially in p^rsons of Lesser qualitys whoe if this [conduct]
of M^r. Whartons [whoe" being "in Commission" and bearing "the
office of a Justice of y^e peace ougt to give good examples to
others] had not been Reguarded, migt att all tymes" hold it for a
"bad president": the court do therefore submit the "p^rmisses to
the Judgem^t. of his Hono^r. the Governo^r. for to Inflict such
punishment" as he "shall thinke fitt & expedient." We are only
informed in the record that the accused is "to bee out of the
Commission of Justices & left to the Law."[846] One regrets that we
are not told whether the "law" treated his marriage as void.

  [Footnote 846: FERNOW, _Doc. Rel. to Col. Hist. N. Y._, XII, 596;
  mentioned also by HAZARD, _Annals of Pa._, 451, 454, 455. On
  the same day the local court fined him ten pounds and costs for
  neglecting his judicial duties: FERNOW, _loc. cit._, 596, 597.]

The Delaware papers, for the next year, contain also a long letter
to Governor Andros from Luke Watson, of "Whoorekill"--whose spelling
is, if possible, more ingenious than usual even for that fertile
region--complaining of the many shortcomings of Captain John Avery,
magistrate and president of the court. It seems that the captain
was fond of having his own way; sometimes, when his colleagues on
the bench presumed to give a contrary "judgment," going out of the
court "in a greate Rage and feury, ... Cursing and swaring," and
even suggesting that they were "ffooles, Knaues, and Rouges." He
is accused, moreover, of taking upon himself "to grant a Licence
to Marry Daniel Browne to Sussan Garland, widdow, without any
publiqueation, which Marrige was effected, notwithstanding it is
Generally knowne or at Least the said Daniel confesses that he
knows no other but that he haue a wife living in England." This
was not the captain's worst indiscretion in the discharge of
his official matrimonial duties. We learn that in taking "vpon
himselfe to Marry the widdow Clament to one Bryant Rowles, without
publiquecation notwithstanding she was out aske at Least a Month to
another man, namly Edward Cocke," he prepared a sad tragedy in real
life. For when the "said Cocke" heard that the widow had jilted him
he said "it would be his death." So he "went home, fell sick, and in
forty eight hours after dyed," declaring in his last breath "that
her marrying was the cause of his dyeing."[847]

  [Footnote 847: _Ibid._, 624, 625.]

At this time Governor Andros, replying to the inquiries of the Lords
of Trade, reports that because of the "scarcity of Ministers & [the]
Law admitting marriages by Justices no acc^t cann be giuen of the
number marryed." He adds that "ministers haue been so scarce" and
"Religions" so many that he can give no statement of the number
of births or christenings.[848] In 1695 Mr. Miller, an English
clergyman, "complains that many marriages are by a justice of the
peace."[849]

  [Footnote 848: O'CALLAGHAN, _Doc. Rel. to Col. Hist. of N. Y._,
  III, 261 (1678); VALENTINE, _Manual of the Corporation_, 1851,
  453. The year before the bishop of London complains that the
  Virginia marriage laws are not enforced: O'CALLAGHAN, _op. cit._,
  III, 253 (July 17, 1677).]

  [Footnote 849: EARLE, _Col. Days in Old New York_, 60.]

The duke's code makes no provision for the celebration of marriage
except before a minister or a justice of the peace. The Quakers of
Long Island, who earlier had suffered severely from the intolerance
of the Dutch,[850] continued nevertheless to practice their own
simple but solemn rites. For so doing they were harshly dealt with
by the courts, as appears in a petition to Governor Andros and his
council from two of their number in 1680,[851] praying for the
"Remission of a Fine imposed for Contravention of the Marriage
Laws." The paper is in the form of an "address from Henry Willis
and John Bowne, Concerning the proceedings of a Court of Sessions
against vs, who said they fined us 10 lbs a peece for suffering our
daughters to marrie contrary to their law, which proceeding we are
satisfied is without precedent and we can count it noe lesse but
a mistake or hasty oversight and though we have endeaverd for its
removall yet Execution is eished forth and Jos. Lee vndershiref hath
seazed Hen: Willis barne of corn and since taken from Jo. Bowne 5
good milch cowes and drove them away by night and kept them pownded
from food" more than a night and a day, so that the neighbors were
"generally troubled at it." Then the petitioners proceed to reason
with the enemy, using the soft word which turneth away wrath. "Now
in simplisity, we doe seriously entreat all that may be conserned
herein seriously to consider it and in the cooleness of your spirits
without anger or hard thoughts truly to waye it in the balance of
Equity where the witness of God may arise in every Contience to
testifie, whether If such things should goe on ... it would not be
to the rewenating of families and to the kindling of Gods anger
against a place or people which we truly desire may be prevented,
by takeing away y^e ocation." So they make their appeal to the
"cheife," knowing that a magistrate's "authority is to preserve
mens persons and Estates, but y^e prerogative of the contience that
belongs to God and we dare not but yeald obedience thereunto;"
for "we do not act--as sometimes resented (_sic_)--in stobourness
obstainancy or contempt of authority but in simplisity."[852]

  [Footnote 850: See O'CALLAGHAN, _Hist. of New Netherland_, II,
  345-55, 450-57. Under the lead of the clerical bigots, Drisius
  and Megapolensis, the Reformed church in New Netherland banished
  Lutherans and tormented the Quakers. A number of Friends,
  expelled from Massachusetts, arrived in New Amsterdam in 1657,
  and were at once persecuted with fiendish cruelty. Nevertheless,
  the Quakers grew apace in numbers, settling by preference in
  Jamaica and Flushing on Long Island. Among them was John Bowne, a
  recent convert and signer of the petition quoted in the text. In
  1662 he was fined for allowing his house to be used as a Quaker
  conventicle; and in the next year he was banished to Holland.
  This resulted in calling down upon the head of Stuyvesant a
  severe and just rebuke from the directors. See also BRODHEAD,
  _Hist. of N. Y._, I, 636, 705; O'CALLAGHAN, _op. cit._, 338-42,
  428; EARLE, _op. cit._, 260; and WALLER, _Hist. of Flushing_,
  37-47, 77, note. It is a pity that a writer of such merit as Mr.
  Waller should have reiterated (46, 47) the baseless and long
  since exposed slanders against the Quakers in New England.]

  [Footnote 851: FERNOW, _op. cit._, XIV, 752, 753; also in _New
  York Colonial MSS._, XXIX, 202.]

  [Footnote 852: The petition concludes with the following
  exhortation: "and we earnestly desire y^e Lord may perswade your
  hearts, vnto whome we are now concerned, that y^e may remoue y^e
  cause of this our address and open that eye in you that can see
  vs as we are, who can pray for those thats in authority that
  vnder them we may live a peaceable holy and Godlike life

  Y^e 4th day of y^e 7^{th} mo: 1680

  "Henry Willis
  John Bowne."
  ]

  From this evidence it would seem that the magistrates of Long
  Island were not less thrifty in their zeal than were their
  brethren in Massachusetts from whose pious robbery and legal
  cruelty the Wardwells suffered.[853] It is noticeable, too,
  that only fines are spoken of. Nothing is said of invalidating
  marriages celebrated in the Quaker fashion. From this the
  suggestion already made gains support that the nullifying clause
  in the duke's code was illegal; and we may, perhaps, also infer
  that it was not attempted to be carried out in practice by the
  courts. Certain it is that in 1661, only four years before the
  adoption of the duke's laws, a marriage celebrated in England
  according to Quaker rites was held legal in a trial which
  took place at the Nottingham assizes.[854] The marriage law
  of 1665, at least so far as it was valid, remained in force
  until the passage of the so-called "Dongan" act of 1684.[855]
  This statute[856] was one of the thirty-one acts receiving the
  governor's signature and passed at the second session of the
  first representative assembly of New York, elected in 1683 under
  the reluctant and grudging sanction of the Duke of York.[857] By
  it no striking change is made in the broad outline of matrimonial
  administration; but in the details several important alterations
  appear. The provision regarding optional civil or ecclesiastical
  banns is identical with that of the earlier law, except that
  posting on the constable's door in each parish, instead of on
  "three doors," is deemed sufficient. License "under the hand and
  seale of the governour" in place of banns is still allowed. As
  before, any minister or justice within the province is authorized
  to perform the ceremony; but now the persons are required to
  "bring a Certificate from under the ministers hand that published
  them or under the Constable hand on whose doores their names were
  affixed which Certificate shall be sent to the office of the
  Register of the County and there Entred on Record together with
  a Certificate of their Marriage with the day and date thereof
  from the party by whom they were marryed there to remaine in
  perpetuam rei memoriam;" and it is provided, further, that the
  persons purge themselves by oath, if required, that they are not
  already under bonds of matrimony. But in this connection, instead
  of the clause as to boring through the tongue with a red-hot
  iron, it is declared that "if it shall afterwards happen to be
  proved that either ... of the said partyes" has thus contracted
  a bigamous marriage through false swearing, he "shall suffer
  as in Cases of perjury and further be proceeded against as in
  Cases of polygamy."[858] The act is liberal in another respect.
  At last the Quakers are granted relief in a provision which in
  substance finds many repetitions in American legislation during
  the two centuries to come. Nothing, we are told, is "intended to
  prejudice the Custome and manner of marriage amongst the Quakers,
  but their manner and forme" shall be judged lawful; provided
  they allow "none to marry that are restrained by the Law of God
  contained in the five bookes of Moses; and that they permitt none
  to be marryed within their Congregation or meeting of any other
  persuasion then themselves," except after banns or license and
  record made according to law.

  [Footnote 853: HALLOWELL, _Quaker Invasion of Massachusetts_,
  99-104.]

  [Footnote 854: _New York Colonial MSS._, XXIX, 203 (New York
  State Library). Regarding this decision, which settled the
  character of marriage law in England, SEWEL, _History ... of
  the Quakers_, 292, has a striking passage: "It happened about
  this Time in England, that some covetous Persons, to engross
  Inheritances to themselves, would call the Marriages of those
  called Quakers in question. And it was in this Year that such
  a Cause was tried at the Assizes at Nottingham; a certain
  Man dying, and leaving his Wife with Child, and an Estate in
  Copyhold Lands: When the Woman was delivered, one that was near
  of kin to her deceased Husband, endeavoured to prove the Child
  illegitimate: And the Plaintiff's Council willing to blacken
  the Quakers, so called, asserted the Child to be illegitimate,
  because the Marriage of its Parents was not according to Law; and
  said bluntly, and very indecently, That the Quakers went together
  like brute Beasts. After the Council on both sides had pleaded,
  the Judge, whose name was Archer, opened the Case to the Jury,
  and told them That there was a Marriage in Paradise, when Adam
  took Eve and Eve took Adam; and that it was the Consent of the
  Parties that made a Marriage. And as for the Quakers (said he)
  he did not know their Opinion; but he did not believe they went
  together as brute Beasts, ... but as Christians; and therefore he
  did believe the Marriage was lawful, and the Child lawful Heir.
  And the better to satisfy the jury, he related to them this Case:
  A Man that was weak of Body, and kept his Bed, had a Desire in
  that Condition to Marry, and did declare before Witnesses that
  he did take such a Woman to be his Wife; and the Woman declared,
  that she took that Man to be her Husband. This Marriage was
  afterwards called in question: But all the Bishops did at that
  time conclude it to be a lawfull Marriage." The jury found for
  the child.]

  [Footnote 855: In 1674 the duke's laws were ordered put in
  execution "except those requiring amendment or alteration":
  _Colonial Laws of N. Y._, I, xiv, 107. On Nov. 9, 1674, Governor
  Andros issued a proclamation to that effect: _ibid._, xiv, 107,
  108.]

  [Footnote 856: "The original of this act is not in the office of
  the Secretary of State. This copy was made from the manuscript
  compilation of the 'Dongan laws' formerly in the office of the
  Secretary of State, but now in the New York State Library.
  The date of its passage, as October 23, 1684, is given by E.
  B. O'Callaghan, in _Hist. Int. to Journals of the Legislative
  Council of N. Y._, p. 12."--CUMMING'S note to the act, _Col. Laws
  of N. Y._, I, 150.]

  [Footnote 857: See his two letters to Andros (1675 and 1676
  respectively) in _Col. Laws of N. Y._, I, xiv, xv; and also the
  instruction to Dongan, 1682, allowing a general assembly to be
  summoned: _ibid._, xv, 108-10. The duke's letters are also in
  O'CALLAGHAN, _Doc. Rel. to Col. Hist. of N. Y._, III, 230, 235.]

  [Footnote 858: _Col. Laws of N. Y._, I, 150, 151. This seems to
  be a decided mitigation of the original penalty: see "An act to
  prevent wilfull Perjury," passed by the Assembly Nov. 1, 1683:
  _ibid._, 129-31.]

There is in this act one essential variation from that of 1665,
which it is of the highest importance to note, and which has been
entirely overlooked by writers[859] who have discussed the character
of the marriage law of New York after 1684. The invalidating clause,
unless by implication, in case of neglect of the required forms and
procedure, does not appear. It is merely declared that if "any man
Shall p'sume to marry contrary to the Law prescribed the person
offending shall be proceeded against as for fornication;" and the
minister or justice performing the ceremony shall forfeit twenty
pounds and be suspended from his benefice or office.[860] The
penalty for fornication according to the duke's law, which seems to
have been still in force, was "enjoyning Marriage, fine, or Corporal
punishment" at the "discretion of the Court."[861] Thus by any fair
interpretation of a penal statute, after 1684, an irregular marriage
_per verba de praesenti_ was illegal though valid in New York, just
as it was in the mother-country.

  [Footnote 859: By COOK, for instance, who says the Dongan
  act was "substantially a re-enactment of the Duke's Laws
  of 1664, and seems not to have been repealed prior to the
  Revolution."--"Marriage Celebration in the Colonies," _Atlantic_,
  LXI, 360.]

  [Footnote 860: _Col. Laws of N. Y._, I, 151.]

  [Footnote 861: _Ibid._, 35. The view presented in the text as to
  the penal clause in the act of 1684 is sustained by the opinion
  of Lord Watson in the Lauderdale Peerage Case: COOK, _Reports of
  Cases Decided by the Eng. Courts_, XXXVII, 357, 358.]

_c_) _Law and custom in the Royal Province._--The Dongan act of
1684, continuing as it does the general provisions of the duke's
law, and indeed differing but little--except perhaps in the matter
of lay celebration--from the earlier usage of the Dutch, is in
harmony with the administrative practice which prevailed in New York
until the Revolution; though, as will presently appear, there is
good reason to believe that it was repealed in 1691. The provision
regarding certificate and registration corresponds with the custom,
though the local officers were negligent and the records are far
from complete.[862] Perhaps, as a rule, marriage was preceded
by banns or civil notice; but license must have been popular,
especially among the well-to-do, and a lucrative source of income to
the governors, as the forty manuscript volumes of marriage-license
bonds, preserved among the treasures of the State Library at Albany,
amply bear witness.[863]

  [Footnote 862: For example, a marriage record was continuously
  kept at Trinity Church, New York, only for the years 1746-64. In
  general, the records were imperfect at a much later period: see
  MYRON A. MONSON, in _Hist. Genealog. Register_, XLI, 93.]

  [Footnote 863: These MSS. are a rich mine for the genealogist.
  For this purpose they are made easily accessible through the
  _Names of Persons for Whom Marriage Licenses Were Issued_,
  printed by order of Gideon J. Tucker, secretary of state, Albany,
  1860. On the period covered by the New York licenses see HOFFMAN,
  _Chancery Practice_, 15; and _Law Reports_, X, 728 f.]

An instructive piece of evidence as to the importance of the license
fee is given by Professor Peter Kalm, the Swedish botanist and
traveler, writing in 1748. He mentions the small salary allowed the
royal governor by the assembly, the whole of which is sometimes lost
through "dissension with the inhabitants;" and he declares that but
for three "stated profits" the governor "would be obliged either to
resign his office, or to be content with an income too small for
his dignity; or else to conform himself in everything" to their
inclinations. These extraordinary sources of income are the fees for
passports, permission to keep public houses, and marriage licenses.
"Few people," he says, "who intend to be married, unless they be
very poor, will have their banns published from the pulpit; but
instead of this they get licenses from the governor, which impower
any minister to marry them. Now for such a license the governor
receives about half a guinea, and this collected throughout the
whole province, amounts to a considerable sum."[864]

  [Footnote 864: KALM, _Travels in North America_ (translated by
  JOHN REINHOLD FORSTER, Warrington, 1770), I, 259-62; see also the
  extract in HART, _Source-Book of American History_, 128-30; and
  for the dates _ibid._, 100.]

In fact, just as in England in our own day,[865] it was "deemed most
plebeian, almost vulgar, to be married by publication of the banns
for three Sundays in church, or posting them according to the law,
as was the universal and fashionable custom in New England." This
notice from a New York newspaper, dated December 13, 1765, will show
how widespread had been the aversion to the publication of banns:

"We are credibly informed that there was married last Sunday
evening, by the Rev. Mr. Auchmuty, a very respectable couple that
had published three different times in Trinity church. A laudable
example and worthy to be followed. If this decent and for many
reasons proper method of publication was once generally to take
place, we should have no more clandestine marriages; and save the
expense of licenses, no inconsiderable sum these hard and depressing
times."

  [Footnote 865: See chap x, sec. iii, above.]

For another reason the times became more "hard and depressing" and
banns more economical, perhaps more patriotic, as Mrs. Earle further
shows by an extract from Holt's _New York Gazette and Post-boy_ for
December 6, 1765:

"As no Licenses for Marriage could be obtained since the first
of November for Want of Stamped Paper, we can assure the Publick
several Genteel Couple were publish'd in the different Churches
of this City last Week; and we hear that the young Ladies of this
Place are determined to Join Hands with none but such as will to
the utmost endeavour to abolish the Custom of marrying with License
which Amounts to many Hundred per annum which might be saved."[866]

  [Footnote 866: EARLE, _Col. Days in Old New York_, 58, 59.]

The character of the governor's license may be seen in the following
sample, issued in 1732:

"By his excellency William Cosby, Esq., Captain general and governor
in chief of the provinces of New York, New Jersey, and territories
thereon depending, in America, vice-admiral of the same, and colonel
in his majesty's army, &c.

"To any Protestant Minister:

"Whereas there is a mutual purpose of marriage between Jacob
Glenn of the City of Albany, merchant, of the one party, and
Elizabeth Cuyler of the same city, spinster, of the other party,
for which they have desired my license, and have given bond upon
conditions, that neither of them have any lawful let or impediment
of pre-contract, affinity, or consanguinity to hinder their being
joined in the holy bands of matrimony; these are therefore to
authorize and empower you to join the said Jacob Glenn and Elizabeth
Cuyler in the holy bands of matrimony and them to pronounce man and
wife."[867]

  [Footnote 867: MUNSELL'S _Annals of Albany_, II, 182.]

A goodly store of folklore relating to wedding customs among the
Dutch and English of New York has been gathered by Vanderbilt,
Earle, and other writers. There was no lack of feasting and pastime.
As in the fatherland, maypoles were set up before the door in honor
of newly wedded pairs. The fashion of "coming out bride," "that is
the public appearance of bride and groom, and sometimes of entire
bridal party in wedding array, at Church the Sunday after the
marriage," was observed with due pomp and splendor. Collections for
the parish poor or to build a church were received from the guests
on the bridal day; and bumpers of "sack-posset" seem to have been as
keenly relished by the worthy burghers of New York as by good old
Samuel Sewall and his Massachusetts brethren.[868] At wedding time
there was "open house" and plenty of feasting; but the festivity
does not appear to have reached the excess practiced by the
Pennsylvania Friends.[869] Hannah Thompson, wife of the secretary of
Congress, while residing in New York in 1786, wrote to John Miflin,
of Philadelphia, that the "Gentleman's Parents keep open house just
in the same manner as the Brides Parents. The Gentlemen go from the
Bridegrooms house to drink Punch with and to give joy to his Father.
The Brides Visitors go In the same manner from the Brides to his
Mothers to pay their Compliments to her. There is so much driving
about at these times that in our narrow streets there is some
danger. The Wedding-House resembles a bee-hive. Company perpetually
flying in and out."[870]

  [Footnote 868: For these customs and others see EARLE, _op.
  cit._, 60 ff.; and compare VANDERBILT, _Social Customs of
  Flatbush_, 149 ff.; WATSON, _Annals and Occurrences of New York
  City and State_, 211-17 (written in 1828 regarding customs twelve
  years before the Revolution); OSTRANDER, _History of the City of
  Brooklyn and King's County_, I, 79-83; _New York Hist. Coll._,
  Fund Series, 1880, XIII, 355, where Rev. John Sharpe tells
  us that negroes are married merely by mutual consent without
  blessing of the church; and _ibid._, Second Series, II, 347-49,
  where courtship among the New York Indians is described.]

  [Footnote 869: See sec. ii, _b_) below.]

  [Footnote 870: HANNAH THOMPSON, _Letters_: in _Pa. Mag. of Hist.
  and Biol._, XIV, 35.]

But in the main domestic life was peaceful and prosaic. Family
woes were seldom dragged into court. The "capital laws" contained
in the duke's code do, indeed, show their New England origin by
prescribing death as the penalty alike for denying God or the king's
titles, or wantonly smiting a parent; but these were practically
a "dead letter."[871] Mrs. Grant bears witness to the happiness
and tranquillity of marital life in Albany. "Inconstancy or even
indifference among married couples was unheard of, even where there
happened to be considerable disparity in point of intellect. The
extreme affection they bore their mutual offspring was a bond that
forever endeared them to each other. Marriage in this colony was
always early, very often happy, and very seldom indeed interested.
When a man had no son, there was nothing to be expected with a
daughter but a well brought-up female slave, and the furniture
of the best bed-chamber. At the death of her father she obtained
another division of his effects, such as he thought she needed or
deserved, for there was no rule in these cases."[872]

  [Footnote 871: _Duke of Yorke's Book of Laws_, 14, 15; _cf._
  WEISE, _Hist. of Albany_, 195, 196.]

  [Footnote 872: GRANT, _Memoirs of an American Lady_, 48; quoted
  also by EARLE, _op. cit._, 55, 56.]

So much for custom and the actual legal practice. We may now
turn to the controversy as to whether subsequently to 1691 there
was any valid statutory regulation of marriage in New York until
after the close of the provincial period. The uncertainty arose in
consequence of the following resolution of the assembly, April 24,
1691: "Upon an information.... That the several Laws made formerly
by the General Assembly, and his late Royal Highness, James Duke of
York;" and also "the several Ordinances or reputed Laws made by the
preceding Governors and Councils, for the Rule of their Majesties
Subjects within this Province, are reported amongst the people,
to be still in force;" it is resolved, _nemine contradicente_,
that the first-named laws of the assembly, "not being observed,
and not ratified and approved by His Royal Highness, nor the late
King, are null, void, and of none effect;" as also are the "several
Ordinances made by the Governors and councils, being contrary to the
constitution of England, and the practice of the government of their
Majesties other plantations in America."[873]

  [Footnote 873: See CUMMING'S "Historical Note," _Col. Laws of N.
  Y._, I, xix. CUMMING cites the note of _Robert Ludlow Fowler_ to
  _Fac Simile of the Laws and Acts of the General Assembly ... as
  printed and sold by William Bradford, 1694_, 78 ff.]

The terms of the resolution are very clear; but unfortunately, so
far as has yet been discovered, no record exists of its having
been placed before the governor and council for approval. Nor does
the validity of this resolution or that of the act of 1684 ever
appear to have been tested in the provincial courts. Singularly
enough, this dual question was not judicially considered until the
"Lauderdale Peerage Case," in 1885, which grew out of a marriage
solemnized one hundred and thirteen years before--on the very eve
of the Revolution. The record of the trial and judgment in this
case is really equivalent to a treatise by learned jurists on the
matrimonial law of New York, from the Dutch Ordinance of 1654 to
the adoption of the constitution of 1777. Moreover, distinguished
American lawyers were called as expert witnesses or to submit
written opinions.[874] From the record in the case[875] it appears
that on July 11, 1772, two days before his death, Colonel Richard
Maitland and Mary McAdams were married in New York city by Rev.
John Ogilvie, an ordained clergyman of the Church of England, and
then assistant minister of Trinity Church. The main question at
issue, and the only one with which we are here concerned, was the
requisites for a valid marriage in the province of New York in
that year. As recited in the syllabus, there were produced, _inter
alia_, in support of the marriage from the custody of the family
a certificate in legal form; an affidavit, signed by the mayor of
New York, to the effect that the officiating minister had made oath
of the truth of the statements in the certificate; a will of date
anterior to the marriage, by which Colonel Maitland left all his
property to his wife and the children then born; copies of letters
showing that one of the executors wrote to his co-executors in
England, a brother of the bridegroom, stating that he was a witness
to the ceremony of marriage; that the woman signed herself in the
man's surname; that the children were recognized and taken care of
by members of the man's family; and also war office records showing
that the woman received a pension as Maitland's widow.[876] But
evidence was not forthcoming of previous license or publication
of banns. Did the neglect of license or banns invalidate the
marriage? It was contended by the witnesses and advisers of the
counter-claimant that the statute of 1665 and that of 1684 rendered
license or banns indispensable, and that such continued to be the
law of New York down to the marriage in 1772.[877]

  [Footnote 874: American witnesses for the claimant were E. J.
  Phelps, the United States minister, S. P. Nash, and C. Cary,
  of the American bar. Those for the counter-claimant were R. L.
  Fowler, of the American bar, and G. F. Edmunds, chairman of
  the Committee on Judiciary of the United States Senate: _Law
  Reports_, X, 728 n. 1. See also WEBSTER, _Opinion on the Law of
  Marriage in the Col. of N. Y._ (New York, May 26, 1885); SEWARD,
  _Answer to Interrogations of Brodie and Sons_ (New York, June,
  1885); and FOWLER, _Letter and Opinion_ (New York, May 11, 1885).
  Copies of these three opinions are in the State Library, Albany.
  Written opinions were also submitted by James C. Carter and
  William Evarts, of New York.]

  [Footnote 875: In _Law Reports_, X (1885), 692-762; and in COOK,
  _Reports of Cases Decided by Eng. Courts_, XXXVII, 341-69. The
  case was referred by the House of Lords to the Lords' "Committee
  for Privileges" for hearing.]

  [Footnote 876: _Law Reports_, X, 693.]

  [Footnote 877: _Ibid._, 794.]

Thus in his written opinion Mr. Sidney Webster, in answer to the
question "whether the law of marriage in New York, in 1772, was
contained in Dongan's law of 1684, supplemented, where defective,
by the older laws of the Duke of York and of the Dutch?" says that
he thinks the "fundamental law" of the colony of New York when
the case arose, was made up of so much of the Dutch law as was
unrepealed and remained in force; so much of the English common
law as had been established after the conquest in 1664; so much
of the English parliamentary statutes[878] as had been enacted
and specially made applicable; and the colonial statutes legally
enacted and sanctioned by the crown. "I have not seen nor heard,"
he continues, "of a denyal that the ... law of 1684 was a valid
enactment" at the date of its passage. "In so far as it covered
matters and also punishments embraced in any previous statute, or
ruled by the common law, and was inconsistent therewith, it repealed
or abrogated both by implication." Any contract of marriage made
in "palpable violation" of the requirements of either of these
laws, while in force, would be void; and "if it could be found that
the marriage law of 1684 was repealed prior to 1828, then, in the
absence of any positive law to the contrary," the duke's law "would
by implication be revived."[879] So he concludes that in 1772,
for a valid contract, there must be previous banns or license, as
well as solemnization by a clergyman or magistrate.[880] With this
conclusion the opinion of Mr. Evarts coincides. "The statute of the
Assembly in 1684," he says, "unquestionably was in force in 1772.
The essentials of a valid marriage according to the law of New York
in 1772, were that the ceremony should be performed by a minister
or a justice of the peace, and that such marriage could be lawfully
performed only after the publication of the banns prescribed by the
act of ... 1684, or in default of such publication ... , by a license
from the governor."[881]

  [Footnote 878: This opinion is not convincing; for the common law
  had not been "established," in the sense of enacted or declared;
  nor were there any British statutes which bore upon the marriage
  celebration in New York.]

  [Footnote 879: By the law of 1828 it was declared that a
  marriage, "so far as validity is concerned," is a civil contract
  "to which the consent of parties capable in law of contracting,
  shall be essential."--_Revised Statutes_, 1827-28, II, 138.]

  [Footnote 880: WEBSTER, _Opinion_, 2 ff., 55, 59, 70. He cites
  Fenton _v._ Reed (4 JOHNSON, _Reports_, 51), in favor of validity
  of consensual or common-law marriage; and Milford _v._ Worcester
  (7 _Mass. Rep._, 48), on the opposite side. In substantial
  agreement with Webster are the opinion of SEWARD, _Answer_, 1-53;
  and that of FOWLER, _Letter and Opinion_, 60, 61, _passim_,
  who to prove the validity of the duke's law cites the cases of
  Fabricius and Ralph Doxy, above discussed.

  The counter-claimant also produced the case of Dan Sutton,
  sentenced for bigamy and bored through the tongue with a red-hot
  iron in 1672--a case plainly irrelevant, so far as the question
  of marriage contract is concerned; and likewise the case of
  Mary Jones, 1680, for having a bastard child, "she pretending
  to be married before delivered; but without either license or
  publication. She was fined £5 or to receive twenty stripes on the
  back"--a sentence which perhaps tells on the claimant's side, for
  it punishes an illegal act, but says nothing of nullifying the
  marriage; or, if the marriage may be regarded as invalidated by
  implication, the sentence is illegal as contrary to English law.
  For these citations see _Law Reports_, X, 733.]

  [Footnote 881: Evarts's opinion cited by COOK, "Mar. Cel. in the
  Colonies"--_Atlantic_, LXI, 361.]

For the claimant also a mass of evidence was presented. Important
decisions were cited;[882] and it was pointed out that in the acts
of the legislature published after 1684 neither the statute of that
year nor the duke's law appears; "nor in fact" were "any of the
laws prior to 1691" printed in subsequent collections.[883] Sir.
F. Herschell, counsel, urged that "unless it is expressly provided
that the failure to comply" with the requirement of the statutes in
question "shall render a marriage null and void, the courts will
not so construe;" and he holds that the resolution of the assembly,
1691, was valid; for "everybody" acted as if the laws repealed by
it were not in force.[884] In short, "the substantial effect of
the evidence of those called for the claimant," as summarized in
the report of the case, was "that the law prevailing in New York
with regard to the requisites for a marriage in the year 1772 was
the common law of England as interpreted by the American courts,
_i. e._, that there should be a contract of marriage per verba de
presenti; and that the 35th article of the constitution of the state
of New York, adopted in 1777, ... shewed that the common law of
England, as then understood, governed this subject."[885]

  [Footnote 882: The American witnesses for the claimant cited
  Jackson _v._ Gilchrist (15 JOHNSON, _Rep._, 89); Constantine _v._
  Windle (6 HILL, _Rep._, 176); Humbert _v._ Trinity Church (24
  WENDELL, _Rep._, 625): HOFFMAN, _Chancery Practice_ (2d ed., New
  York, 1843); _Revised Statutes of N. Y._ (ed. 1830), 729; and
  Fenton _v._ Reed (4 JOHNSON, _Rep._, 52), the leading case for
  "common-law" marriage.]

  [Footnote 883: _Law Reports_, X, 728. The act of 1684 is
  preserved in MS. in the New York State Library; and this I have
  examined through the courtesy of Mr. Griswold.]

  [Footnote 884: _Law Reports_, X, 734. Herschell cites King _v._
  The Inhab. of Birmingham (8 B. & C., 29); and Dr. Lushington in
  Caterall _v._ Sweetman (1 ROBERTSON, _Ecc. Reports_, 321).]

  [Footnote 885: _Law Reports_, X, 728. The reference to the
  thirty-fifth article of the constitution of 1777 adds little
  weight to the argument. Except as concerns any established
  denomination of Christians or the sovereignty of the crown, that
  article provides that "such parts of the common law of England,
  and of the statute law of England and Great Britain, and of the
  acts of the legislature of the colony of New York," as together
  did form the law of that colony on April 19, 1775, should be the
  law of the state: POORE, _Charters_, II, 1337, 1338.]

Such was the unanimous decision of the committee of Lords
constituting the court, whose members submitted their opinions
separately. The Earl of Selborne doubted whether the acts of 1665
and 1684 were in force in 1772 and significantly suggests that,
if they were in force, failure of banns and license would not
invalidate a marriage. He further argues strongly that in the
present instance there is no absolute proof that banns or license
was lacking; for the church records are often imperfect. In any
event, therefore, the rule _omnia praesumunter rita acta_ ought to
govern the case; for one cannot conceive of any circumstance more
properly requiring its application.[886] In harmony with this view
was the able opinion of Lord Blackburn, which in effect maintained
the validity of the common law in New York subsequent to 1684. The
original English settlers, he argues, "carried with them all the
immunities and privileges and laws of England.... That being so,
from the time when the colony of New York was first settled it had
primâ facie the marriage law of England such as it was in the latter
part of the seventeenth century;" and in England at that time a
marriage "solemnized according to the form of the Church of England,
and by a clergyman of the Church of England ... was valid to
constitute matrimony: although if it was a clandestine or irregular
marriage without banns or a license, the clergyman who performed it
might be liable to censure" and punishment. In addition his lordship
significantly raises a doubt as to whether the Duke of York had
power to introduce a new law of marriage essentially different from
that of England as regards the absolute requirement of license or
banns.[887]

  [Footnote 886: _Law Reports_, X, 742.]

  [Footnote 887: _Law Reports_, X, 744-49.]

Accordingly, the other judges agreeing, the laws of 1665 and 1684
were set aside as not in force; and the claim of Major Frederick
Henry Maitland, descendant of Colonel Richard Maitland, to the
earldom of Lauderdale was sustained.[888]

  [Footnote 888: _Ibid._, 762. Of course, the question as to
  whether the presence of a clergyman at the ceremony was essential
  to a valid marriage was not raised; and if it had been raised
  in 1885, the court might possibly have decided that it was
  requisite, in harmony with the judgment in the Queen _v._
  Millis. History must, however, decide the other way. But compare
  the conclusion of COOK, "Mar. Cel. in the Col.," _Atlantic_,
  LXI, 361, who infers from this decision that "this 'common-law
  marriage,' falsely so-called--the 'free marriage' of the later
  Roman law, of the canon law, and of the Scotch law,--did not
  exist in New York (or, indeed, in any of the other colonies)
  prior to the Revolution."]

There can be little doubt that this was a righteous judgment, in
harmony with the entire history of the English decisions down to
the case of the Queen _v._ Millis, whose character has already
been considered.[889] Furthermore, its justice is rendered almost
certain by a witness, not called in the trial, but whose evidence
given in 1773, the very next year after the marriage in question, is
assuredly worthy of more attention than any produced by the American
experts in 1885. This testimony is given by Rev. John Rodgers, in a
paper read before the "Reverend General Convention of the Delegates
from the Associated Churches of Connecticut, and the Synod of New
York and Philadelphia," met at Stamford, September, 1, 1773; the
manuscript being found in the cabinet of President Stiles by the
historian, Abiel Holmes:

"There has no law been made in this province relating to marriages,
nor do any of the English statutes concerning them extend to it.
They stand therefore on the common law of the land; and as words
de presenti constitute a marriage by that law, the courts of
judicature, on any contest, must leave the question _married or
not_ to the jury of the county upon the proofs that are offered,
as they do with respect to any other enquiry relating to matter of
fact. This is attended with some inconvenience; but the politicians
contend that they would be greater, if the legislature should
interpose by a law to prevent clandestine marriages; and it is
much to be doubted, whether the several branches would be brought
to any unanimity on the subject, were it attempted. The rites of
marriage were at first celebrated by the justices of the peace,
as well as the clergy, either upon the governor's licence, or the
publication of bans thrice in some place of worship. This was the
case till the year 1748, before which time the licences ran, _to all
Protestant ministers_; but upon application of the Episcopal clergy
who meant to monopolize this business, they are since directed
_to all Protestant ministers of the Gospel_, and from the time of
this alteration the justices do not intermeddle, except in such
counties where clergymen are scarce. But marriages are celebrated
by clergymen of all denominations without distinction, and yet
for any law to the contrary, a marriage with or without licence
or publication, and with or without the aid of a clergyman or
magistrate, will be valid in law. A contract in words de presenti,
proved by witnesses and subsequent cohabitation as man and wife,
constitutes a marriage of legal validity, as already suggested."[890]

  [Footnote 889: See Vol. I, 316-20, above.]

  [Footnote 890: RODGERS, _A Brief View of the State of Religious
  Liberty in the Colony of New York_: in 2 _Mass. Hist. Coll._, I,
  152. On the authorship, see _ibid._, II, 270.]

After this it seems only necessary to add that if it should
appear strange that the legal practice in the administration of
matrimonial law, during the provincial period, harmonizes in the
main with that prescribed by the laws of 1665 and and 1684, it is
sufficient to say that this is so by force of custom; while, so far
as license is concerned, that was maintained by virtue of the power
granted to the royal governors in their instructions.[891]

  [Footnote 891: In their instructions the governors are directed
  to issue marriage licenses, and usually to hang up the "table of
  marriages" according to the English canons: O'CALLAGHAN, _Doc.
  Rel. to Col. Hist., N. Y._, III, 372 (instructions to Dongan, May
  29, 1686), 688 (to Sloughter, Jan. 31, 1689), 821 (to Fletcher,
  March 7, 1691/92); _ibid._, IV, 288 (to Bellomont, Aug. 31,
  1697), 558 (Bellomont's instructions to Lieutenant-Governor
  Nanfan), 766 (a letter of Bellomont to secretary of Board of
  Trade, telling of the trick by which Rev. Symon Smith got a
  license for Baldridge, the pirate, Oct. 19, 1700); _ibid._, V,
  135 (instructions to Hunter); _ibid._, VII, 830 (Governor Moore
  to Lords of Trade, mentioning his power to license, June 12,
  1766).]


II. NEW JERSEY, PENNSYLVANIA, AND DELAWARE

_a_) _Law and custom in New Jersey._--The population of New Jersey
was far more homogeneously English than was that of New York and
Pennsylvania. It was composed of members of various religious sects.
Some Quakers settled in East New Jersey and more in West New Jersey,
but they were never numerically strong. The vast majority of the
people were Scotch Presbyterians and New England Congregationalists;
so that family law shows decided traces of Puritan influence.[892]
Circumstances, however, favored toleration in this regard; and hence
only in details were the New Jersey matrimonial law and custom
different from those which existed in New York.

  [Footnote 892: Compare COOK, "Mar. Cel. in the Colonies,"
  _Atlantic_, LXI, 358, 359.]

The legal history of the province begins in the year of the
English conquest of New Netherland. In 1664 a very liberal plan of
government, called the "Concessions and Agreement," was established
by the proprietors, Lord Berkeley and Sir George Carteret. All
"faithful subjects of the king" are admitted to "plant and
become freemen" of the said province of New Jersey. No one is to
be "molested, punished, disquieted or called in question, for
any difference in opinion or practice in matters of religious
concernments," provided he do not disturb the "civil peace."[893]

  [Footnote 893: For the Concessions see SMITH, _Hist. of the Col.
  of Nova-Caesaria, or New Jersey_, 512 ff.]

Under this instrument in 1668 the first matrimonial legislation
appears. "For the preventing of unlawful marriages, it is ordered
... that no person or persons, son, daughter, maid, or servant,
shall be married without the consent" of parents, masters, or
overseers, "and three times published ... at some public meeting
or kirk, where the party or parties have their most usual abode;"
or their "purpose" be set up in writing "on some publick house
where they live," there to "abide" for the space of fourteen days
before the celebration, which, "if possible" is to be performed in
a public place. "None but some approved minister or justice of the
peace within this Province, or some chief officer, where such are
not, shall be allowed to marry or admit of any to join in marriage,
in their presence;" under the penalty of twenty pounds[894] and
removal from office for neglect. But in place of banns or civil
notice, the governor may grant his license to "any that are at their
own disposing," if they "clear themselves by oath or certificate;"
or to any others "under tuition," provided the parents, masters,
or overseers are present to give their consent, or such consent be
"attested by some public officer" before the license is issued.[895]

  [Footnote 894: Later reduced to ten pounds: _Acts of the
  Assembly_, 1693, 332.]

  [Footnote 895: LEAMING AND SPICER, _Grants, Concessions, and
  Original Constitutions_, 81, 82 ("Laws in Cartaret's Time").]

This act, which, it may be noted, does not contain a clause
expressly invalidating a marriage for non-observance of its
provisions, seems to have remained in force for fifteen years. But
in 1682 "that part of the province called East New Jersey came by
purchase into the possession of William Penn and other Quakers,"
who formed an association called the Twenty-four Proprietors. By
these a body of rules known as the "Fundamental Constitutions" was
established, containing a provision for the celebration of marriage,
after the Quaker fashion, very similar to the law for Pennsylvania
made in England the same year by Penn and his associates.[896] All
marriages "not forbidden in the law of God shall be esteemed lawful
where the Parents or Guardians being first acquainted, the Marriage
is publickly intimated in such Places and Manner as is agreeable
to Mens different Perswasions in Religion, being afterwards still
solemnized before creditable Witnesses, by taking one another as
Husband and Wife, and a certificate of the whole, under the Parties
and Witnesses Hands, being brought to the proper Register for that
End, under a Penalty if neglected."[897] In March of the same year a
statute was passed differing in several respects from the preceding.
Parents or guardians are to be consulted and give their consent.
"Intentions" are to be published for "at least three weeks" before
solemnization, which "shall be performed by and before some justice
of the peace or other magistrate," unless he "refuse to be present;"
the certificate shall be entered "in the register of the town and
county" where the marriage takes place; and a record of publication
is likewise to be kept by the clerk of the "assembly" or public
place where it occurs.[898] Cook thinks this statute may "have
been a compromise between the Quaker and the Puritan practice, that
left out the very feature in each which was most desirable. For the
parties were to take each other as husband and wife, but not 'before
creditable witnesses;' while, on the other hand," by the terms of
the law, if the "justice or magistrate refused to be present, it
would appear that the parties could marry themselves."[899] But
_that_ they could undoubtedly do under the former law, since there
is no nullifying clause, and the only penalty mentioned is clearly
for failure to file the certificate.

  [Footnote 896: _Cf._ COOK, _loc. cit._, 359; and LINN, _Charter
  and Laws_, 101.]

  [Footnote 897: "Fundamental Constitutions," sec. xx: in _New
  Jersey Archives_, I, 408; and LEAMING AND SPICER, _Grants_, etc.,
  164.]

  [Footnote 898: A "Bill for the General Laws of the Province of
  East New Jersey," March, 1682/83: LEAMING AND SPICER, _op. cit._,
  236. By this act marriage within the degrees there named is
  declared void: _ibid._, 243.

  The "Fundamental Constitutions" had provided that there should be
  a "register in each county for births, marriages, burials, and
  servants, where their names, times, wages, and days of payment"
  should be recorded: LEAMING AND SPICER, _op. cit._, 163; and
  already in 1675, under the first proprietors, the "clerk of each
  town within this Province," in a book provided by the town, is
  to record "all births, marriages, and deaths" in his district:
  _ibid._, 100.]

  [Footnote 899: COOK, _loc. cit._, 359.]

Already in 1676[900] West New Jersey was also acquired by Quaker
proprietors; and in May, 1682, by an act of the general assembly,
"for the preventing of clandestine and unlawful marriages," a system
much like that of the eastern province was established. Justices
within their jurisdictions are authorized to solemnize, when the
persons have caused their intentions to be previously published for
fourteen days in "some public place appointed for that purpose,"
and the "parents or trustees" show "no lawful reason against it."
For celebrating without such consent, if it "may be reasonably
obtained," the magistrate is to be fined at the discretion of the
general assembly. Provision is likewise made for registration.[901]

  [Footnote 900: See the "concessions" to West New Jersey: in
  SMITH, _Hist. of N. J._, 521 ff.]

  [Footnote 901: LEAMING AND SPICER, _op. cit._, 446, 447.]

It will be observed that in all these measures for the two provinces
of New Jersey civil marriage is recognized. It is optional under the
act of 1668; but under the Quaker régime, of course, solemnization
by a minister is not mentioned.

For about twenty years after the legislation just presented the
proprietary rule was maintained in the two provinces. During
the latter part of the period there was more or less friction
and dissatisfaction. The jurisdictions, though not the property
rights, were turned over to Governor-General Andros in 1688. Four
years later all the interests of the proprietors were absolutely
surrendered to the crown. The united colony was then joined with New
York under the same governor, but with a council and assembly of its
own; and this arrangement was continued until 1738, when New Jersey
became an independent royal province.[902]

  [Footnote 902: For the instrument of surrender see SMITH, _Hist.
  of New Jersey_, 211-19. There was a petition to separate from New
  York as early as 1728: _ibid._, 421 ff. _Cf._ also COOK, _loc.
  cit._, 359; THWAITES, _Colonies_, 211, 213, 214.]

After the union with New York, with characteristic intolerance, the
Church of England was established; "but as the Episcopalians were
a small minority of the population, and had but little zeal, the
Establishment remained barely more than nominal."[903] To the "end
the ecclesiastical jurisdiction of the said Lord Bishop of London,
may take place in our said province, so far as conveniently may
be"--run the instructions to Governor Cornbury in 1702--"we do think
fit that you give all countenance and encouragement to the exercise
of the same, excepting only the collating to benefices, granting
licences for marriages, and probate of wills, which we have reserved
to you." The table of marriage according to the English canons is to
be "hung up in every orthodox church, and duly observed." For its
"strict observance" the governor is to try to get a law passed by
the assembly, if none already exists.[904]

  [Footnote 903: COOK, _loc. cit._]

  [Footnote 904: Instructions to Lord Cornbury, 1702: in LEAMING
  AND SPICER, _op. cit._, 639; also in SMITH, _op. cit._, 253.]

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]

  [Footnote 905: 5 Geo. I., in _Acts of the General Assembly_
  (Woodbridge, 1752), 79 ff. The form of bond is given p. 81. This
  statute is also in ALLINSON'S _Acts of the Gen. Assem._, 1702-76
  (Burlington, 1776), 53-57.]

  [Footnote 906: Under penalty of £200, ministers, justices, or
  others are forbidden to join persons in marriage without banns
  or proper license: _Acts of the Gen. Assem._ (1752), 79, 80, 82,
  84.]

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]

  [Footnote 907: Until the act of March 4, 1795, by which the act
  of 1719 was repealed: _Laws of the State_ (Newark, 1800), 160.]

  [Footnote 908: _New Jersey Archives_, First Series, IX, 504, 520,
  521.]

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]

  [Footnote 909: See, for example, the curious pamphlet of THOMAS
  UNDERHILL, _Hell broke loose: Or An History of the Quakers Both
  Old and New. Setting forth many of their Opinions and Practices.
  Published to Antidote Christians against Formality in Religion
  and Apostasie_ (London, 1660), 16, 37, where, contradictorily,
  they are accused of believing, "that we sould endeavor to
  be perfect; and therefore to forbear _all carnall acts of
  Generation_, as being of _Sin_ and of the _Devil_; and therefore
  _Husband_ and _Wife_ should _part asunder_, or _abstain_;" and
  that "marriage was made by Man;" while one of them is charged
  with defending a woman who went naked and confessing "_That of
  late he went to bed with a woman, who was not his wife, and that
  he did it without sin._"

  Read also _The Quakers Spiritual Court Proclaimed_ (London,
  1668), 5, 6, by "Nathaniel Smith Student in Physick, who was
  himself a Quaker, and conversant among them for the space of
  about XIV years": "Not long before this, they spoke against
  Marriage, and said, That it was for Lust; and that men ought to
  live soverly, _For all Lust came of the Devil_: and so they spoke
  against Marriage in general; but this continued not above three
  or four Years, at which time they began to Marry in Prison: and
  there was the first Marriage that I ever knew of. After this,
  that their Ministers did marry in Prisons, then the Common sort
  would marry in the Meeting: And it was after this Manner; Those
  two that were resolved to go together, (and many times there was
  not one that did know it besides themselves,) the Man and the
  Woman would stand up in the midst of them, or in some convenient
  place; the Man declaring after this manner, _I take this Woman to
  Wife_: and after, departed and went together as Man and Wife."]

  [Footnote 910: MASSON, _Life and Times of Milton_, V, 25; _cf._
  HALLOWELL, _Quaker Invasion of Mass._, 23.]

  [Footnote 911: HALLOWELL, _op. cit._, 23, 24.]

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]

  [Footnote 912: APPLEGARTH, "Quakers in Pennsylvania," _J. H.
  U.S._, X, 402.]

  [Footnote 913: PENN, _Rise and Progress_ (Manchester, 1834), 25,
  27; _cf._ APPLEGARTH, _op. cit._, 402.]

  [Footnote 914: PENN, _Select Works_, V, 225: cited by APPLEGARTH,
  _op. cit._, 401, 402.]

  [Footnote 915: PENN, _op. cit._, V, 129: quoted by APPLEGARTH,
  _op. cit._, 401.]

  [Footnote 916: SEWEL, _History_ (London, 1722), 691.]

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]

  [Footnote 917: HALLOWELL, _op. cit._, 24, 25.]

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]

  [Footnote 918: "Laws Agreed upon in England": in LINN, _Charter
  and Laws_, 101. _Cf._ NEAD'S _Historical Notes_: _ibid._, 472.
  This law also provides for a "register of births, marriages,
  burials, wills, and letters of administration, distinct from the
  other registry."--_Ibid._, 101.]

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]

  [Footnote 919: LINN, _Charter and Laws_, 151. See the same
  provision as to penalty (1684), _ibid._, 171, and (1693), 229.]

  [Footnote 920: _Ibid._, 109; _cf._ 194.]

  [Footnote 921: This is chap. 35 of the Great Law as given by
  HAZARD, _Annals of Pa._, 626, 627; but it was not engrossed
  and does not appear in LINN'S edition, which follows PATRICK
  ROBINSON'S copy: NEAD, _Historical Notes_: in LINN, _op. cit._,
  481 n. 3.]

This provision of 1682 is declared fundamental, and by it in fact
the main principles of the marriage law of Pennsylvania were
defined. Still one or two important changes were subsequently
made. Thus, in 1684, the certificate of their "clearness of all
engagements" is to be produced to the "religious society" to which
the persons "relate;" or to a justice of the peace of the county
where they live.[922] From this requirement it may doubtless be
inferred that either civil celebration before a magistrate or
religious celebration according to the rites of any denomination
was contemplated. Such is expressly declared to be the case by the
act of 1693, which runs in nearly the same words as the preceding,
except that now, after mentioning the twelve witnesses, it is
provided that at least one justice of the peace of the county must
be present at the solemnization; and provided also that "this Law
shall not extend to any who shall marry or be marryed by any person
authorized by the Church of England, so as they observe the methods
of publication, Licensing & Solemnization" required by English law,
"nor to any persons that marry in their own Society in the absence
of a Justice of the peace."[923] With the exception of a provision
in 1730, forbidding the justice in case of minors to subscribe as
witness without a certificate of parental consent,[924] the law of
1693, re-enacted in 1700 and again in 1701,[925] still governs the
nuptial celebration in Pennsylvania;[926] and previous to 1788 the
marriage law of Delaware was practically the same.[927]

  [Footnote 922: LINN, _op. cit._, 171.]

  [Footnote 923: _Ibid._, 229.]

  [Footnote 924: _Cf._ COOK, _op. cit._, 358. This act of Feb. 14,
  1729/30, is contained in _Laws of the Comm. of Pa._, 1700-1810,
  I, 180, 181.]

  [Footnote 925: BIOREN, _Laws_, I, 7, 34; LINN, _op. cit._, 229,
  note; also _Laws of the Comm. of Pa._, 1700-1810, I, 21-23.]

  [Footnote 926: PEPPER AND LEWIS, _Digest_ (1896), II, 2878 ff.]

  [Footnote 927: See the act of 1700 in FRANKLIN AND HALL'S _Laws
  of the Government of New Castle, Kent, and Sussex, upon Delaware_
  (Philadelphia, 1752). It is especially provided that if any
  servant marry without the consent of his or her master, he or she
  shall, for such offense, serve for one year after the time of his
  or her servitude by indenture has expired; and if any free person
  marry a servant without consent of the master, he or she shall
  pay to the master, if the servant is a man, 12 pounds, and if a
  woman, 6 pounds, or one whole year's service; and the servant so
  marrying shall serve an additional year. Adultery is punished
  with a fine of 50 pounds or 21 lashes "well laid on." The penalty
  for fornication is 3 pounds or 21 lashes: _ibid._, 74.]

It remains to give a few illustrations of administrative practice
and social custom. So far as it appears, the courts and magistrates
were not given much employment in domestic controversies. But
the provincial council seems to have exercised jurisdiction in
divorce and matrimonial causes. For example, in 1685 we learn that
"information being given to this board of y^e unlawfull Marriage of
R^d Noble, of y^e County of New Castle, Ordered that y^e Justices of
that County have notice given by y^e Secrt^{rs}, to Inspect the same
and give report thereof to this board."[928] Again, in 1703 Andrew
Bankson, one of the justices of Philadelphia county, on complaint of
the president, got himself into trouble "for irregularly marrying a
couple lately according to law, but against y^e Prohibitions of y^e
Parents." When called to account before the council, the justice
declared that he was "wholly ignorant of its being illegal, & was
heartily sorry for what was done, promising that wether he should
continue in Commission, or otherwise, this should be such a caution
to him as to prevent him of committing the like for y^e future, &
being severely checked was dismissed."[929]

  [Footnote 928: _Col. Records of Pa._, I, 144.]

  [Footnote 929: _Col. Records of Pa._ (Jan. 1703/4), II, 114, 115;
  also quoted by APPLEGARTH, _Quakers in Pa._, 413, note.]

Celebration on the president's license in place of civil
notice similar to the plan existing in the royal provinces was
introduced as early as 1684 and the practice was continued to the
Revolution;[930] although marriages thus solemnized were looked
at askance by the Quakers as hardly orthodox,[931] and there are
the usual complaints of extortion.[932] The marriage certificate
was itself an elaborate document of historical interest, not only
because of the full statement therein of all the previous stages
in the transaction, but because in simple phrase we catch many a
glimpse of Quaker sentiment and teaching in regard to the nuptial
covenant. Sometimes even at the marriage of persons of humble
station, this instrument was signed by many persons; as in the
case of John Roades and Hannah Willcox, in 1692, whose wedding
certificate bears the names of fifty witnesses.[933]

  [Footnote 930: _Pa. Col. Rec._, I, 121. "The Board then
  took into their Consideration the alterations proper to be
  made in the forms of Marriage Lycences."--_Ibid._, V, 69
  (1747). Again, "Order'd, That the President sign all Marriage
  Lycences."--_Ibid._, V, 71 (1747).]

  [Footnote 931: See the passage from WATSON, _Annals of Phil._,
  III, 434, below cited.]

  [Footnote 932: On Sept. 29, 1755, in an address to the governor,
  the assembly declares that "they [the assembly] are not, however,
  chargeable with exacting Money from the people which by law they
  had no right to exact, as we apprehend the Governor does in the
  Fees for Marriage Licenses, by which many thousand Pounds have
  been drawn from the Inhabitants of this Province. If this be not
  dispensing with Law 'tis making Law, and we presume the Governor
  alone has no more right to do the one than the Assembly alone the
  other."--_Pa. Col. Rec._, VI, 633, 634. _Cf. ibid._, II, 455; IV,
  175; and _Pa. Archives_ (1728), I, 235, 236, where the bishop of
  London says that "some occasional perquisites that the Clergy
  us'd to enjoy, are now cut off" in the matter of licenses.]

  [Footnote 933: "Whereas John Roades of the County of Philadelphia
  and Hannah Willcox daughter of Sarah Willcox of Schoolkil in the
  County aforesaid having declared theire Intentione of Takeing
  Each Other as Husband and Wife before several Men and Womens
  Meetings of the People called Quakers whose Proceedings Therein
  after deliberate Consideration Thereof and Consent of parties and
  Relations concerned being approved by the said Meeting.

  "AND alsoe the said John Roades and Sarah Willcox having
  Published theire said Intentions in Writing according to the
  Lawes of thiss province Whereby the said Law is fulfilled....

  "Now these are to CERTIFIE all Persons whome it may concern that
  for the full Determination of their Intentions this tenth day
  of the Ninth Month in the Yeare One Thousand Six Hundred and
  Ninety and two, they the said John Roades and Hannah Willcox in
  an Assembly of the aforesaid people Mett together for that end
  and purpose at the Dwelling House of Sarah Willcox aforesaid,
  according to the Example of the primitive Christians Recorded
  in the Scriptures of Truth did take each Other as Husband and
  Wife in Manner following (viz) he the said John Roades takeing
  the said Hannah Willcox by the Hand said friends in the feare of
  the Lord and Before you his people I take this my friend Hannah
  Willcox to be my wife promissing as the Lord shall Inable mee to
  be unto her a faithfull and Loving Husband till Death shall part
  us.... And the said Hannah Willcox in like Manner takeing the
  said John Roades by the Hand said friends I Likewise do in the
  fear of the Lord and in the presence of You his people take John
  Roades to be my Husband promising to be unto him a faithfull and
  Loving Wife till Death separate us.... AND the said John Roades
  and Hannah Willcox as a farther Confirmation thereof did then and
  there to these presents Set theire Hand. AND wee whose Names are
  hereunto Subscribed are Witnesses of the Same the Day and Yeare
  abovesaid."--In the _Pa. Mag. of Hist. and Biog._, XIII (1889),
  112.

  The custom of many witnesses signing the certificate survived to
  recent times: WATSON, _Annals of Phil._, III, 434.]

In the first half of the eighteenth century the Pennsylvania
Friends, like the New England Puritans, were much worried over the
question of forbidden degrees. They were sorely disturbed concerning
marriage "between first cousins, or one person marrying two sisters,
or a man marrying his wife's first cousin, or justices of the peace
undertaking to marry people by virtue of licenses obtained to that
end, or marriages by members of the sect with others not of that
persuasion, in young couples 'keeping company' without the consent
of their parents. In 1725 and 1731, Chester and Burlington Monthly
Meetings sought the advice of Yearly Meeting upon these subjects,"
and decisions were subsequently rendered in the negative on every
point.[934]

  [Footnote 934: WATSON, _op. cit._, III, 434.]

A register of marriages was kept through a custodian appointed by
the monthly meeting. From the records of the Philadelphia society,
which have been preserved "for the first thirty-two years of the
city," it appears that the first marriage solemnized was that of
Thomas Smith and Priscilla Allen in 1682; and they, says Watson,
"had before passed one Meeting in the Isle of Wight."[935] The
monthly meeting was a mighty power, and it kept a sharp eye on
all the social goings and comings of its members.[936] In fact,
the constant surveillance of the meeting over the daily life of
the individual reminds one of the way in which domestic conduct
and private business were dealt with by provincial law and town
ordinances in the New England colonies.[937] Courtship, espousal,
and marriage were looked after much in the same spirit. The Quaker
maid was lucky if she might receive her lover on the "stoop" in
presence of father and mother.[938] The Friends were not content
with the publicity given by posting the intention of marriage
as prescribed by the law. In addition, it was the duty of the
betrothed couple to ask their own banns, or to "pass the meeting,"
as it was called in solemn phrase. "In the intense silence of
the Quaker assembly the man arose from his seat on his side of
the meeting and said formally: 'I intend to take Dorcas Macy to
be my wife if the Lord permit.' Dorcas then arose on the woman's
side of the aisle or partition and said in turn: 'I intend to
take Jonathan Coffin to be my husband if the Lord permit.'[939] A
committee of 'weighty men and women' was then appointed to learn
'the conversation and clearness of the parties'--that is to learn
specially whether either were entangled in any other matrimonial
engagement. If the report of these inspectors proved favorable,
the 'continuance of the intention of marriage' was permitted,
they were 'liberated to proceed according to the devout order of
truth,' and the engaged pair were said to have 'passed meeting.'
But sometimes the committee of inspectors discovered obstacles, or
'disorderly walking,' or a previous flirtation. There still was
redress; the offender had to make a self-condemnation and apology
for his offense, in meeting, the next First day, in some such words
as these: 'Friends, I am very sorry for my transgression, and desire
mercy from God and forgiveness of all the people of God whom I have
offended.' The marriage was usually then permitted. If a sober young
Friend sought a wife in another town, his home meeting sent him off
fortified with a certificate enumerating his virtues. One such ran
partly thus:

'He is of sober and orderly behaviour; a frequenter of our Meetings
and in good Eunity with us; is clear of all Women hereaway on
account of Marriage so far as we can find; soe we recommend him to
your further Care in accomplishing their Intending Marriage.'"[940]

  [Footnote 935: _Ibid._, I, 503; III, 434.]

  [Footnote 936: The meeting sometimes took part in the civil
  administration. Thus committees were frequently appointed by the
  Philadelphia meeting to lay out roads; _ibid._, I, 305.]

  [Footnote 937: _Cf._ HOWARD, _Local Const. Hist._, I, 53 ff.]

  [Footnote 938: EARLE, "Among Friends," _New Eng. Mag._, Sept.,
  1898, 20. "Courtship and marriage were closely hedged around.
  Friends were enjoined against proposing marriage without the
  consent of the meeting, against marrying any but a Friend,
  against 'keeping unreasonable company' with any woman not a
  Friend; against going to weddings of any who marry out of
  meeting; against being 'married by a priest.' They were enjoined
  also 'to be clear of one before being concerned with another,'
  in an engagement of marriage. Widows and widowers were reminded
  not to marry again too swiftly; 'not to let their minds out soon
  to another husband or wife;' and kinship was to be carefully
  regarded in thinking of wedding."--_Ibid._, 19, 20; _cf._ WATSON,
  _Annals of Phil._, III, 434.]

  [Footnote 939: It seems to have been customary, at least in some
  meetings, to file the notice in writing for permanent record. The
  form was as follows:

  "We the subscribers, A. B., son of C., and D. B.; and F.
  G., daughter of H., and I. G., purpose taking each other
  in marriage, which we hereby offer for the approbation of
  Friends."--APPLEGARTH, "Quakers in Pennsylvania," _J. H. U. S._,
  X, 402.]

  [Footnote 940: EARLE, "Among Friends," _New Eng. Mag._, Sept.,
  1898, 20.]

Faithful Friends were enjoined by the meeting not to marry out of
the society; and so the worldly lover was sometimes forced to turn
Quaker or "lose his bride." On the other hand, says Earle, if a
Friend took a wife "out of meeting, he might by profoundly humbling
himself, and acknowledging his error, still be retained in the
society, though for a time not in good report. No Quaker groom could
express contrition for an offense in 'marrying out of meeting,'
nor indeed submit patiently to discipline for it without unmanly
disloyalty to his confiding consort.... One reads thus:

"'To the Monthly Meeting of friends now in meeting at So. Kingston.
I through Inattention to the Lights of Christ have Married a wife
out of the good order of Friends, neither was she a member of their
Society. Therefore now being Sincible that their Rules and orders
therein is Consistant with truth, and Seeing the Error of My Doings,
am sorry for my Transgression therein, and Desire friends to pass by
my offense, and still Continue their Care for me, desiring I may be
preserved to walk according to good order for time to come.'"[941]

  [Footnote 941: _Ibid._, 21.]

As already suggested, the Pennsylvania Friends indulged in much
good cheer and sometimes in lavish display at the wedding time.
A description given us by the annalist Watson may serve for the
purpose of comparison between their nuptial festivals and those
practiced by their New England contemporaries. "The wedding
entertainments of olden times, he says, "were very expensive and
harassing to the wedded. The house of the parent would be filled
with company to dine; the same company would stay to tea and
to supper. For two days punch was dealt out in profusion. The
gentlemen saw the groom on the first floor, and then ascended to
the second floor, where they saw the bride." Every man present,
even though hundreds were invited, was privileged to kiss the bride
and to repeat the process each day while the feast lasted. These
were the same persons who had signed the marriage certificate in
the meeting. Sometimes the "married pair for two weeks saw large
tea parties at their home, having in attendance every night the
groomsman and bridesmaids." All this was not enough. "When these ...
entertainments were made, it was expected also that punch, cakes,
and meats should be sent out very generally in the neighborhood even
to those who were not visiters in the family."[942] In some towns
another writer tells us, "the custom was after a wedding to set a
table in front of the house and feast all passers-by. In the country
Quaker brides had an 'infare' or wedding treat, often so liberal as
to be a serious drag on the family that provided it." Moreover, it
should be noted that the great wedding festival had been preceded by
a similar feast or "treat" at the first "passing of the meeting,"
when the banns were published.[943]

  [Footnote 942: WATSON, _Annals of Phil._, I, 178, 503.]

  [Footnote 943: EARLE, _loc. cit._, 21. "In Philadelphia not
  only did the friends of the bride and groom come and eat and
  drink and all kiss the bride, but every evening for a week the
  entire bridal party received friends, and again the bride ran a
  gauntlet of kisses. When Mrs. Robert Erwin received her wedding
  visitors, four hundred gentlemen came in two days, ate the
  wedding cake, drank the wedding punch and, doubtless, all kissed
  her."--_Ibid._, 21.]

Such excesses seem inconsistent with traditional Quaker sobriety.
One is astonished that they could have been tolerated so long.
But at length it was decided that "passing" in one meeting should
suffice.[944] To lessen the expenses the Philadelphia society
in 1716 "advised no extraordinary provision for weddings, and
the avoidance 'as much as may be of inviting those not under our
discipline.'"[945] So the old frivolities "were relegated to the
limbo of exploded vanities, and matrimonial alliances were attended
with no other ceremony than that of the parties taking each other by
the hand in public meeting and avowing their willingness to enter
the connubial state." The certificate was then entered in the record
book of the meeting and the celebration was complete.[946]

  [Footnote 944: WATSON, _op. cit._, I, 504.]

  [Footnote 945: EARLE, _loc. cit._]

  [Footnote 946: APPLEGARTH, "Quakers in Pa.," _J. H. U. S._, X.
  402, 403, who gives a discussion of Quaker weddings, following
  WATSON. GORDON, _Hist. of Pa._, 70, 557, has a brief, concise
  account of the marriage law of the province.]



CHAPTER XV

DIVORCE IN THE AMERICAN COLONIES


     [BIBLIOGRAPHICAL NOTE XV.--The most valuable original material
     for the history of divorce in Massachusetts during the period of
     the first charter is afforded by the decisions of the court of
     assistants in the exercise of its primary jurisdiction. These
     may be found in Vol. I of the _Colonial Records_, to September
     7, 1641; the Barlow _MS. Records of the Court of Assistants_,
     October 28, 1641, to March 5, 1643/44; published by Whitmore
     in _Bibliographical Sketch of the Laws of the Mass. Colony_
     (Boston, 1890); and, after an interval for which the record
     is missing, in Noble's _Records of the Court of Assistants_,
     March 3, 1673, to March 23, 1691/92 (Boston, 1901). A number
     of cases have been found in the _MSS. Early Court Files of
     Suffolk_, supplemented by the _MSS. Records of the County Court
     of Suffolk_, and the _MSS. Records of the County Court of
     Middlesex_. The _Massachusetts Colonial Records_ are, of course,
     very important. There is an instructive passage in the first
     volume of Hutchinson's _History of Mass._ (Salem, 1795); and
     much aid has been given by Whitmore in the work already cited;
     Newhall, _Ye Great and General Court_ (Lynn, 1897); Goodwin,
     _Pilgrim Republic_ (Boston, 1888); and Cowley, _Our Divorce
     Courts_ (Lowell, 1880). The last-named work in part had already
     appeared in the _Albany Law Journal_, XX (Albany, 1879). It may
     be read in connection with the same writer's _Famous Divorces
     of All Ages_ (Lowell, 1878); and his _Browne's Divorce and its
     Consequences_ (Lowell, 1877). For the period of the second
     charter the divorce record is missing until 1739. Between that
     date and 1760 the _Suffolk Files_ already mentioned yield eleven
     cases. From 1760 to 1786 there is a continuous and apparently
     complete record in a MS. "Divorce" book in the office of the
     clerk of the supreme judicial court for Suffolk county.

     An interesting petition may be found in the eighth volume of
     the _Collections of the New Hampshire Historical Society_; and
     in general for all the New England colonies the records and the
     various collections of laws mentioned in Bibliographical Note
     XII have been used. Durfee, _Gleanings from the Judicial History
     of Rhode Island_ (Providence, 1883), and Arnold, _History of
     the State of Rhode Island_ (New York, 1874), are also helpful.
     Trumbull, _Appeal to the Public_ (New Haven, 1788), gives some
     statistics in connection with the alleged laxity of Connecticut
     divorce laws; but historically his statements are misleading and
     very inaccurate.

     In the southern colonies the English divorce laws were in
     abeyance, except in case of separate alimony. The meager
     materials existing for a "negative" sketch are therefore derived
     almost wholly from the judicial decisions. Among these--cited
     more fully in the footnotes--the most instructive are: for
     Virginia, Fulcher _v._ Fulcher, in 1 Palmer's _Calendar of
     Va. State Papers_ (Richmond, 1875), 29; Purcell _v._ Purcell,
     4 Hening and Munford's _Reports_ (Richmond, 1854), 506;
     and Almond _v._ Almond, 4 Randolph's _Reports_, 662, or 15
     _American Decisions_, 781. For Maryland, Galwith _v._ Galwith,
     4 Harris and McHenry's _Md. Reports_ (Annapolis, 1818),
     477; Farnshill _v._ Murray, 1 Bland's _Reports_, 479, or 18
     _American Decisions_, 344; Helms _v._ Franciscus, 2 Bland's
     _Reports_, 544, or 20 _American Decisions_, 402; Wallingsford
     _v._ Wallingsford, 6 Harris and Johnson's _Reports_, 485;
     Macnamara's case, Scott's case, Govane's case, all in 2 Bland's
     _Reports_, 566, 568, 570; Crane _v._ Meginnis, 1 Gill and
     Johnson's _Ch. Reports_, 468, or 19 _American Decisions_,
     237; Wright _v._ Wright's Lessee, 2 _Md. Reports_, 429, or 56
     _American Decisions_, 723; and Jamison _v._ Jamison, 4 _Md.
     Ch. Reports_, 289, 295. For Georgia see Finch _v._ Finch, 14
     _Georgia Reports_, 362; and especially Head _v._ Head, 2 Kelly's
     _Reports_, 191.

     The _New York Colonial MSS._ preserved in the State Library at
     Albany have yielded several documents of importance for the
     chapter. Cadwallader Colden, the last governor of the province,
     has an instructive passage in his _Letters on Smith's History
     of New York: Collections New York Historical Society_, Fund
     Series, I, 1868, showing that in the early period divorces were
     granted by the royal governors. Various cases and illustrations
     have been gleaned from Gerard, _The Old Stadt Huys_; Valentine,
     _Manual of the Corporation_; _Records of New Amsterdam_;
     Munsell, _Annals of Albany_; _Duke of Yorke's Book of Laws_;
     _New Jersey Archives_; O'Callaghan, _Ordinances_; and especially
     O'Callaghan and Fernow, _Documents_--all of which have been
     described in Bibliographical Note XIV. A number of extracts
     from old records have been borrowed from Alice Morse Earle's
     excellent book _Colonial Days in Old New York_ (New York,
     1896); and among the decisions cited, Chancellor Kent's opinion
     in Williamson _v._ Williamson, Johnson's _Chancery Reports_,
     488, 491; and that of Chancellor Walworth in Wood _v._ Wood, 2
     Paige's _Chancery Reports_, 108, 111, bearing on the validity of
     the common law in the province, are of special interest.

     The materials for Pennsylvania are furnished by Linn,
     _Charter and Laws_; the _Colonial Records of Pennsylvania_;
     Bioren, _Laws_ (Philadelphia, 1803); and Gordon, _History of
     Pennsylvania_ (Philadelphia, 1829). Lastly, for the entire
     group of colonies, Kent, _Commentaries_ (Boston, 1884); Story,
     _Commentaries_ (Boston, 1891); and particularly Bishop,
     _Marriage, Divorce, and Separation_ (Chicago, 1891), have been
     of service.]


I. IN NEW ENGLAND

Under normal conditions civil divorce is the counterpart of civil
marriage. Naturally, in the New England colonies the same influences
which determined the rise of civil marriage secured also the
adoption of a liberal policy respecting divorce. In each case there
was a reaction against the forms and abuses of the ancient canonical
and ecclesiastical systems; while at the same time the innovations
were in a measure sustained by appeal to the Levitical code.
Everywhere as a result the ideas of the Reformation Fathers--the
general trend of Protestantism--found effective expression in
statute and judicial decree. For in most respects throughout New
England the broad modern doctrines of the _Reformatio Legum_ of
Edward VI.'s commission, though scarcely even now completely
victorious in the mother-land, were from the outset put in practice
by both Puritan and Separatist. The American legal conception of
divorce as pertaining, not to the criminal, but exclusively to the
civil jurisdiction, had its birth in the seventeenth century.[947]
In all the New England colonies the canonical decree of separation
from bed and board was practically, though not entirely, abandoned.
On the other hand, a dissolution of the bond of matrimony was freely
granted for various causes, such as desertion, cruelty, or breach
of the marriage vow; and usually, though not always, the husband
and wife were dealt with as equals before the law. These general
principles will be illustrated, somewhat in detail, by reference to
the history of the particular provinces.

  [Footnote 947: On the "divorce suit as civil or criminal" see,
  however, BISHOP, _Marriage, Divorce, and Separation_, II, secs.
  483-88, pp. 218-20; also KENT, _Commentaries_, 100.]

_a_) _Massachusetts._--For the Bay Colony we have a concise summary
from the pen of Governor Hutchinson, who presided in the divorce
court for many years. "In matters of divorce," he says, "they left
the rules of the canon law out of the question; with respect to
some of them, prudently enough. I never heard of a separation,
under the first charter, _a mensa et thoro_. Where it is practised,
the innocent party often suffers more than the guilty. In general
what would have been cause for such a separation in the spiritual
courts, was sufficient, with them, for a divorce _a vinculo_. Female
adultery was never doubted to have been sufficient cause; but male
adultery, after some debate and consultation with the elders, was
judged not sufficient. Desertion a year or two, when there was
evidence of a determined design not to return, was always good
cause; so was cruel usage of the husband. Consanguinity they settled
in the same degrees as it is settled in England and in the levitical
laws."[948]

  [Footnote 948: HUTCHINSON, _Hist. of Mass._, I, 393.]

By the code of 1660 the court of assistants, sitting twice a
year, is given authority to hear and determine "all causes of
divorce."[949] This is the only extant law on the subject for the
period of the first charter. It is, however, almost certain that the
assistants in the "quarter courts," or other tribunals, possessed
such jurisdiction from the beginning. It is probably intended to
be covered by the authority conferred on the quarter courts in
1639;[950] and the evidence of the Halsall case shows that as early
as 1656 "the power of divorce doth properly belong" to the court of
assistants. From the same case it has been inferred that the code of
1649 may have contained a like provision.[951]

  [Footnote 949: WHITMORE, _Col. Laws of Mass._ (1660-72), 36;
  (1672-86), 143.]

  [Footnote 950: It is ordered "that such of the magistrates as
  shall reside in or near Boston, or any 5, 4, or 3 of them, the
  Governor or Deputy to be one, shall have power to assemble
  together upon the last fifth day of the eighth, eleventh, second,
  and fifth month, every year, and then and there to hear and
  determine all civil causes whereof the debt or trespass and
  damages shall not exceed £20, and all criminal causes _not_
  extending to life, or member, or banishment, according to the
  course of the Courts of Assistants, and to summon juries out of
  the neighboring towns."--_Mass. Col. Rec._, I, 276. In 1648 the
  number of such courts was reduced to two: _ibid._, II, 286; III,
  175.]

  [Footnote 951: In the petition for divorce in the Halsall case
  the counsel for the plaintiff says: "But considering the power of
  divorce doth properly belong to the Honored Court of assistants
  as is expressed in an order of the general Court (May 16, 1656)
  & a president ther is for it (namly Mr. freeman sometimes of
  Watertowne) & the law admitts it (page 17)."--_MSS. Early Court
  Files of Suffolk_, No. 257. From the last phrase (in which he
  reads "submitts" for "admitts") WHITMORE thinks it "a reasonable
  surmise that this clause stood in the code of 1649, under the
  title Courts": _Bibliog. Sketch_, 101, note. The general court,
  referring to the same case, declares that it "doth properly
  belong" to the court of assistants: _Mass. Col. Rec._, IV, i,
  272. COWLEY, _Our Divorce Courts_, 10, mentions the error of
  PALFREY, _Hist. of U. S._, II, 17, who says the superior "courts
  had jurisdiction in cases of divorce."]

Neither the right of appeal nor the causes or kinds of divorce are
defined by the statutes. Information regarding these important
points must be sought in the cases themselves. As a result of the
failure of positive legislation, there is a lack of precision
and harmony in the judicial practice of the entire colonial and
provincial eras. For the period 1639-92, as shown in Table I, forty
actions for divorce or annulment of marriage have been discovered.
Thirty-one of these are mentioned by Newhall, Whitmore, Goodwin,
and Cowley, not less than eighteen being found by the latter in
the assistants' records for the years 1673-92, since edited by Mr.
Noble.[952] The remaining nine cases are here added from further
search in the court records and the Suffolk Files. The records
of the court of assistants from 1644 to 1673 are missing; else
doubtless the list might be considerably enlarged.

  [Footnote 952: COWLEY, _Our Divorce Courts_, 28-31; WHITMORE,
  _Biog. Sketch_, 99-101, note; NEWHALL, _Ye Great and General
  Court_, 380-84; GOODWIN, _Pilgrim Republic_, 596.]

The first case thus far brought to light is that of James Luxford,
elsewhere considered. On December 3, 1639, his bigamous marriage
was declared void by the "Court of Assistants or Quarter Court;"
and very righteously "all that he hath" as a kind of alimony was
given to the woman last married and to her children.[953] A similar
instance of having two wives was dealt with in November, 1644.[954]

  [Footnote 953: _Mass. Col. Rec._, I, 283. For this case and that
  of Frier _v._ Richardson see above, chap. xii, p. 159.]

  [Footnote 954: Elizabeth Frier _v._ John Richardson: _Records of
  Court of Assistants_, 1641-1643/44 (Barlow MS.): published in
  WHITMORE, _Bibliog. Sketch_, xlii; also in _Mass. Col. Rec._, II,
  86.]


TABLE I

[Transcriber's note: 'Marriage dissolved' has been shortened to 'Mar. dis.' to
  conserve space in the following table.]

CASES OF DIVORCE AND ANNULMENT OF MARRIAGE IN MASSACHUSETTS, 1639-92

  ==============================================================================
  No.Where Found[955]|  Date  |    Case        |   Cause  |  Court    |  Decree
  --+----------------+--------+----------------+----------+-----------+--------+
   1|C.R., I, 283    |Dec. 3. |Second wife _v._|Another   |Assistants |Marriage|
    |                | 1639   | Jas. Luxford   | wife     |           | void   |
   2|W., 42          |Mar. 5, |Anne _v._       |Desertion,|Assistants |Mar.    |
    |                | 1643/4 | Dennis Clarke  | adultery |           | dis.   |
   3|W., 42;         |Nov. 13,|Eliz. Frier _v._|Another   |Assistants |Marriage|
    | C.R., II, 86   | 1644   | J. Richardson  | wife     |           | void   |
   4|C.R., IV, i, 32 |Oct. 16,|Wm. _v._        |Deser.,   |General    |Mar.    |
    |                | 1650   | Eleanor Palmer |remarriage| court     | dis.   |
   5|C.R., III, 277, |May 26, |Dorothy _v._    |Long      |General    |Leave   |
    | IV, i, 89      | 27,1652| Wm. Pester     | absence  | court     |to marry|
   6|C.R., III, 350, |May 14, |Dorcas _v._     |Desertion,|General    |Mar.    |
    | IV, i, 190     | 1654   | Jno. Hall      | adultery?| court     | dis.   |
   7|Suff. Files, 257|Before  |Sam. and Apphia |None given|Assistants |See text|
    |                | 1656   | Freeman        |          |           |        |
   8|Suff. Files, 257|1655-59 |Joan _v._       |Adultery  |Assists. to|Mar.    |
    | C.R., IV, i,   |        | Geo. Halsall   |          |general ct.|dis.;   |
    | 272, 380, 401  |        |                |          |           |reversed|
    |                |        |                |          |           | on ap. |
   9|C.R., I, 85,    |June 9, |Petition of Wm. |None given|Co. ct. on |Denied  |
    | IV, i, 259, 269| 1656   | Clements       |          | ref. of g.|        |
    |                |        |                |          | ct.       |        |
  10|C.R., IV, i, 282|Oct. 14,|Petition of     |Deser.,   |Co. ct. on |None    |
    |                | 1656   | Mary Batchiler |remarriage| ref. of g.| appears|
    |                |        |                |          | ct.       |        |
  11|C.R., IV, ii, 8 |May 22, |Rachel _v._     |None given|General    |Mar.    |
    |                | 1661   | Jos. Langton   |          | court     | dis.   |
  12|C.R. IV, ii, 91 |Oct. 21,|Mary _v._       |Deficiency|General    |Denied  |
    |                | 1663   | E. White       |          | court     |        |
  13|Suff. Files, 651|Sept. 9,|Petition of     |Deser.,   |Assistants |Mar.    |
    |                | 1664   | Sarah Helwis   |remarriage|           | dis.   |
  14|Suff. Files, 913|Jan. 28,|Christ. and     |Adult.,   |Assists.   |None    |
    |                | 1668/9 | Eliz. Lawson   | cruelty  | from co.  | appears|
    |                |        |                | of h.;   | ct.       |        |
    |                |        |                | bad cond.|           |        |
    |                |        |                | of wife  |           |        |
  15|Plym. Rec.,     |Aug. 3, |James _v._      |Desertion,|General    |Mar.    |
    | v, 33          | 1670   | Eliz. Skiffe   | adultery | court     | dis.   |
  16|C.R. IV,        |Oct.,   |Eliz. _v._      |Desertion,|General    |Mar.    |
    | ii, 465        | 1670   | Henry Stevens  | adultery?| court     | dis.   |
  17|Suff. Files,    |Oct.,   |Kath. _v._      |Adultery, |Assistants |Mar.    |
    | 1148; N., 32   | 1672   | Ed. Nailer     | cruelty  |           | dis.   |
  18|Suff. Files,    |Mch. 4, |Mary _v._       |Deser.,   |Assistants |Mar.    |
    | 1360; N., 30   | 1674/5 | Wm. Sanders    |remarriage|           | dis.   |
  19|Suff. Files,    |1673-77 |Hugh and        |Disease   |Assistants |Sep.    |
    | 1644; N., 91   |        | Mary Drury     | and imp. |           | b.b.?  |
    |                |        |                | of h.    |           |        |
  21|Suff. Files,    |Sept. 9,|Hugh _v._       |Another   |Assists.;  |Denied  |
    | 1741; C.R., V, | 1678   | Dorcas March   | husband  | app. to   | on app.|
    | 205; N., 127.  |        |                |          | g. ct.    |        |
  22|C.R., V, 188    |May 9,  |Mary _v._       |Long      |General    |Leave to|
    |                | 1678   | Henry Maddox   | absence  | court     | marry  |
  23|N., 127         |1678    |Hope _v._       |Desertion,|Assistants |Mar.    |
    |                |        | Sam. Ambrose   | adultery,|           | dis.   |
    |                |        |                |failure to|           |        |
    |                |        |                | provide  |           |        |
  24|N., 138         |1678    |Rebeckah _v._   |None given|Assistants |Mar.    |
    |                |        | Rich. Cooly    |          |           | dis.   |
  25|Suff. Files,    |Oct. 15,|Mary _v._       |None given|General    |Mar.    |
    | 1807; C.R., V, | 1679   | Aug. Lyndon    |          | court     | dis.   |
    | 248, 249       |        |                |          |           |        |
  26|N., 144         |1679    |Mary _v._       |Deser.,   |Assistants |Mar.    |
    |                |        | Job Bishop     |remarriage|           | dis.   |
  27|N., 147         |1679    |Mary _v._       |          |Assistants |        |
    |                |        | Jos. White     |          |           |        |
  28|N., 168         |1680    |Sus. _v._       |Deser.,   |Assistants |Mar.    |
    |                |        | Ed. Goodwin    | fail. to |           | dis.   |
    |                |        |                | prov.    |           |        |
  29|N., 197         |1681    |Sam. _v._       |Adultery, |Assistants |Mar.    |
    |                |        | Mary Holton    | desertion|           | dis.   |
  30|N., 200         |1681    |Dorcas _v._     |Deser.,   |Assistants |Mar.    |
    |                |        | Christ. Smith  | fail. to |           | dis.   |
    |                |        |                | prov.    |           |        |
  31|N., 208         |1681    |Rachel _v._     |          |Assistants |Mar.    |
    |                |        |Lawrence Clenton|          |           | dis.   |
  32|N., 227         |1682    |Eliz. _v._      |Bigamy    |Assistants |Mar.    |
    |                |        | Robt. Street   |          |           | dis.   |
  33|N., 229         |1683    |Petition of     |          |Assistants |Denied  |
    |                |        | Ann Perry      |          |           |        |
  34|N., 240         |1683    |Eliz. _v._      |Incest,   |Assistants |Mar.    |
    |                |        | Nich. Maning   | desertion|           | dis.   |
  35|N., 256, 258    |1684    |Sarah _v._      |          |Assistants |Mar.    |
    |                |        | Thos. Cooper   |          |           | dis.   |
  36|Suff. Files,    |Sep. 17,|Petition of     |Adultery  |Assistants |Mar.    |
    | 2347           | 1685   | Thos. Winsor   |          |           | dis.   |
  37|N., 326         |1690    |Phillip _v._    |Deser.,   |Assistants |Mar.    |
    |                |        | Hannah Goss    |remarriage|           | dis.   |
  38|N., 242         |1690-91 |Mary _v._       |Adultery, |Assistants |        |
    |                |        | Sam. Stebbins  | desertion|           |        |
  39|N., 361         |1691    |Hannah and      |Affinity  |Assistants |Marriage|
    |                |        | Josiah Owen    | (bro's   |           | void   |
    |                |        |                |  wife)   |           |        |
  40|N., 342         |1690    |Sam. and        |Affinity  |Assistants |Marriage|
    |                |        | Reb. Newton    | (uncle's |           | void   |
    |                |        |                |  wid.)   |           |        |
  --+----------------+--------+----------------+----------+-----------+--------+

Earlier in the same year "Anne Clarke" was released from her husband
Dennis for desertion, "refusing to accompany with hir," and for
living in adultery with another woman.[956] The case of Joan and
George Halsall, 1655-59, is especially enlightening regarding the
early law and procedure in divorce suits. Joan's original petition
was presented to the general court, by which, as already noted, the
matter was referred to the assistants for "final determination."
In a later petition to the last-named tribunal the injured wife
complains not only of her husband's "frequent abusing himself with
Hester Lug," but "also of his wicked, constant & unsufferable
expense" in "mulled sack and otherwise" with another woman of
equally bad reputation, humbly asking that she "may be dismissed
from her intolerable burden--an uncleane yoake-fellow."[957] The
decree of the court is missing, but elsewhere we learn that her
prayer was granted.[958] The fact is noteworthy; for seemingly
this marriage was dissolved solely for the man's adultery.[959] If
so, down to 1776, as will later appear, it is the only known clear
exception to the rule mentioned by Governor Hutchinson. The case
was, however, not yet ended. Halsall appealed to the general court;
and so, on November 12, 1659, after the decree of the assistants
had been in force for three years, it was declared void and George
was allowed to "have and enjoy the said Joan Halsall, his wife,
again."[960]

  [Footnote 955: N. = NOBLE'S _Records of the Court of Assistants_,
  I; W. = _Record of the Court of Assistants_, in WHITMORE'S
  _Bibliog. Sketch_.]

  [Footnote 956: _Records of Court of Assistants_, 1641-43 (Barlow
  MS.): published in WHITMORE, _op. cit._, xlii.]

  [Footnote 957: The two petitions are in the _MSS. Early Court
  Files of Suffolk_, No. 257; and the reference of the general
  court in _Mass. Col. Rec._, IV, i, 272.]

  [Footnote 958: _Mass. Col. Rec._, IV, i, 401.]

  [Footnote 959: Of course, the alleged "wicked expense" may
  possibly have been admitted as a second ground.]

  [Footnote 960: _Mass. Col. Rec._, IV, i, 401. The reason for
  Halsall's petition is not stated. Was it, perhaps, that "male
  adultery" was not a sufficient ground of divorce?]

Jurisdiction on appeal thus belonged to the general court. This
is further shown by the peculir case of Hugh and Dorcas March.
In 1678, for "y^e peace & satisfaction" of his conscience, Hugh
asked the court of assistants to decide whether he might legally
retain Dorcas as his wife, alleging that her former husband was
living and hinting that a divorce from him had never been secured.
With much parade of law and logic, in a long and vague petition,
probably drafted by his attorney, he betrays far more anxiety to
get rid of his spouse than to quiet the throes of an outraged
conscience. The secret of this is clearly disclosed by Dorcas in
the counter-petition, written by her own hand, and proving her to
be a better lawyer than her husband's counsel. It seems she had
been "for some yeares y^e wife of Benoni Blackleach," with whom
she had formerly lived in Connecticut. About nine years before the
present action Blackleach "was taken in a crime worthy of death by
y^e Law," but he escaped from his captors. Six months thereafter
he sent her a letter saying he dared not call her his wife, and
subscribing himself her "friend not husband." Later, not knowing for
six years whether he was living or dead, Dorcas came to her friends
in Massachusetts, bringing with her, on the advice of "y^e honored
Gouernor Winthrop," the "testimonys" sworn against her guilty
consort. These, together with a petition for the determination of
her status, she laid before "y^e honord Court in Boston," Governor
Winthrop being present when the case was "agitated." This tribunal
adjudged her a "free woman," as "some of y^e honored Magistrates did
tell" her.[961] Presently she was solicited in marriage by March, he
giving her an "Ingagement vnder his hand of one hundred pounds of
y^e best of his estate," promising "y^t he would remove his children
from him y^t they might not make any disturbance between" them. Then
they were "published," joined in wedlock "by y^e honord Deputy
Governor," and thereafter "Lived comfortably." Next we reach the
heart of the business. Hugh's children "liveing in y^e familie" did
"shamefully slight" her, purloining from her box the said "writing"
of a hundred pounds; and their father disowned her as his wife. This
conduct, she suggests, is due to a desire to "please his children"
rather than to the scruples of a tender conscience. The magistrates
were not moved by her plea. According to the record, "It was put
... whither Hugh March & said Dorcas might still lawfully live as
man & wife;" and "the Court Resolved it in the Negative."[962] With
this decree Hugh was not content. So on October 2, 1678, he prays
the general court "to put a full Determination to the case." After
a fortnight that body responded by overruling the lower court's
decision, and declaring that the "sajd March ought to take the
sajd Dorcas & reteyne hir as a wife, and to obserue & fullfill the
marriage covenant according to his Engagement."[963]

  [Footnote 961: The petition and decree here mentioned are not
  in the _Suffolk Files_. Perhaps further search in the _Mass.
  Archives_ would bring them to light.]

  [Footnote 962: _MSS. Early Court Files of Suffolk_, No. 1741
  (Sept. 9).]

  [Footnote 963: _Mass. Col. Rec._, V, 205.]

In 1668 a petition to the county court of Suffolk for a "bill of
divorce" was referred to the assistants, because it "was not proper
to the cognizance" of the former body.[964] On the other hand, in
the exercise of its superior authority a case might be sent to the
lower court with power to render a final decree. Thus in May, 1656,
was so referred "unto County Court of Charlestown" the petition of
William Clements of Watertown, "craving a divorce from his wife who
for several years hath refused marriage fellowship with him."[965]
The lower court proved conservative. Not only was a divorce denied,
but the couple were commanded to "own each other according to
their marriage covenant," on pain of being "severely punished" for
refusal.[966]

  [Footnote 964: Case of Christopher and Elizabeth Lawson: _MSS.
  Early Court Files of Suffolk_, No. 913. Though the decree in this
  case has not been discovered, it is certain that it came before
  the assistants; for the papers in the proceedings are marked
  "_vera copia_ E[dward] R[awson] S[ec.]". In the Nailer case,
  mentioned below, there was similar reference from the county
  court to the court of assistants.]

  [Footnote 965: _Mass. Col. Rec._, IV, i, 259, 269; _cf._
  WHITMORE, _Col. Laws of Mass._ (1660-72), 100, note.]

  [Footnote 966: _MSS. Rec. of the County Court of Middlesex_, I,
  85. In the same year the case of "Mary Batchiler" was referred
  for settlement to the county court of York: _Mass. Col. Rec._,
  IV, i, 282.]

The general court was at once the legislature and the supreme
judicial tribunal of the colony. In relegating the trial of divorce
suits to the court of assistants it by no means surrendered its
right to exercise the primary jurisdiction. A number of cases make
it almost certain that it entertained and decided such cases in
the first instance. William Palmer was so divorced in 1650.[967]
Two years later Dorothy Pester, having waited "w^{th} patience
tenn yeeres for the retourne of her husband" William, prays "that
she might not still be held in such bondage." Whereupon the
court mercifully granted her "libertje to marry when God by his
providence shall afoord her an Oppertunitje."[968] In the same way
in 1654 Dorcas Hall was released on account of the desertion and
other misconduct of her spouse.[969] "Rachel Langton, or Verney,"
was set "free from her late husband, Joseph," in 1661, no cause
being assigned.[970] In 1663 the petition of Margaret Bennet in
behalf of her daughter Mary White was denied.[971] A decree was
granted in a peculiar form in 1670. In answer to the petition of
Elizabeth Stevens, whose husband had deserted her and been guilty
of "familiarity" with another woman, the "Court judgeth it meete
to declare, that the petitioners marrying again another man shall
not be indangered thereby as a transgression of our lawes."[972]
The petition of Mary Maddox in 1678 alleges that her husband Henry
had been absent unheard of for "a thirteen yeares." She was
accordingly freed from the conjugal bond and put "at liberty to
dispose of herself as she shall see meete."[973] Very generous
alimony is sometimes allowed the injured woman. On October 15,
1679, because Augustine Lyndon "hath in so many Particulars Broken
Covenant," his wife Mary is granted a full divorce, besides being
awarded two-thirds of her husband's lands and the "small matter
that now Remaineth in Deacon Allen's hands" for the use of herself
and children, "till the County Court shall take further Order."
The next day, on a second petition, additional property is decreed
to the "late wife of Augustine Lyndon now Mary Sanderson," showing
apparently that she was permitted to resume her maiden name.[974]
The eight[975] divorces just enumerated are all granted by the
general court on petitions precisely similar to those regarding
other matters dealt with by that body in the first instance. To all
intents and purposes they are "legislative" divorces; as much so,
in fact, as are those so often sanctioned by the state legislatures
during the present century.

  [Footnote 967: _Ibid._, 32.]

  [Footnote 968: _Ibid._, 89; III, 277.]

  [Footnote 969: _Ibid._, III, 350; IV, i, 190.]

  [Footnote 970: _Ibid._, IV, ii, 8.]

  [Footnote 971: Mary complained of her husband's "deficjency":
  _ibid._, IV, ii, 91.]

  [Footnote 972: _Ibid._, IV, ii, 465.]

  [Footnote 973: _Ibid._, V. 188.]

  [Footnote 974: _MSS. Early Court Files of Suffolk_, No. 1807.
  This document begins: "At a Generall Court." The case is also in
  _Mass. Col. Rec._, V, 248, 249.]

  [Footnote 975: The divorce of James Skiffe was also granted "Att
  a Generall Court held vpon the Vineyard": _Plym. Col. Rec._, V,
  33. See subsection _b_) below.]

The remaining cases mentioned in the table are for the most part
very simple and require but little comment here. Two are only known
from incidental notice in other records.[976] Four are contained
in the _Suffolk Files_.[977] In one of these the divorced husband,
who had broken the marriage vow and been guilty of "Inhuman Carriage
& Satanic Cruelty" toward his wife and children, was banished
ten miles from Boston; and later, when he was permitted to visit
that town on business, he was required to give bond "to be on
good behavior towards his late wife."[978] It is significant that
during the seventeenth century not a single clear case of divorce
from bed and board has been discovered in any of the Massachusetts
records.[979]

  [Footnote 976: These are the cases of Samuel Freeman (before
  1656) and Philip Wharton (before 1678). The first is mentioned in
  the Halsall case. _Cf._ WHITMORE, _Col. Laws of Mass._ (1660-72),
  100, note, who says: "Samuel Freeman had a wife Apphia, and it
  has been thought that his widow married Gov. Thomas Prence of
  Plymouth. It has now been suggested that she was divorced, and
  married a second time while Freeman stayed in England, but this
  surmise needs examination." The second case is inferred from
  the following: "At a Circuit Court at Boston, Apr. 30, 1678,
  Philip Wharton and Mary Gridley, formerly his wife, bound over to
  answer for disorderly and offensive cohabiting together, having
  sued out a divorce. They owned they lived together. Bonds for
  good behavior until next court, especially to refrain from each
  other's company."--_MSS. Records of the County Court of Suffolk_,
  506. Evidently it was common to resume the maiden name: _cf._ the
  Nailer and Lyndon cases.]

  [Footnote 977: Cases of Sarah Helwis, Sept. 9, 1664; Katherine
  Nailer, 1672; Mary Sanders, March 4, 1674/5; and Thomas Winsor,
  Sept. 17, 1685: all in _MSS. Early Court Files of Suffolk_,
  Nos. 651, 1148, 1360, 2347. The Sanders case is also in NOBLE'S
  _Records of the Court of Assistants_; COWLEY, _Our Divorce
  Courts_, 28.]

  [Footnote 978: The Nailer case. Two years later (March 11,
  1674/5) we learn that "Edward Naylor being Complayned on for
  Intruding into his late wiues Katherin Nanny^s Company The Court
  on hearing what was lajd to the sajd Naylors charge doe Judge &
  declare his bond to be forfeited."--NOBLE'S _Records of Court of
  Assistants_, I, 32.]

  [Footnote 979: It is just possible that in the case of Mary Drury,
  Oct. 10, 1677, the decree is intended as a separation from bed and
  board. It is voted "whether the Court [probably the assistants]
  would declare it a nullity, past in the negative. Whether they
  would be compelled to Cohabit past in y^e Negative."--_MSS. Early
  Court Files of Suffolk_, No. 1644. Four years earlier (_ca._
  March 5, 1673) the following record appears: "In the case of Hugh
  Drury & Mary His Wife The Court after due hearing of the case &
  euidences therein produced Doe declare that they Doe enjoine them
  both to liue together according to the ordinance of God as man and
  wife."--NOBLE'S _Rec. of Court of Assistants_, I, 91.]

During the period of the second charter divorce controversies and
all matrimonial questions are to be "heard and determined by the
governour and council,"[980] whose decrees may be executed by
arresting and committing the "body" of the person disregarding
them.[981] By a law of 1641 it had already been provided that the
divorced wife, if the innocent party, should retain her right of
dower in one-third of the husband's real property for life.[982]
A later act makes provision for alimony. The "superior court of
judicature" is empowered in case of divorce or nullity to assign the
woman "such reasonable part of the estate of her late husband as
in their discretion the circumstances of the estate may admit, not
exceeding one-third part thereof."[983] As in the earlier period,
the causes and kinds of divorce are not determined by legislation;
but an act of 1695 declares that the penalty for "polygamy"--at this
time death--shall not apply to those who marry when the husband or
wife has been absent wilfully or unheard of "by the space of seven
years together."[984] Three years later the term of absence is
shortened, the law taking the form it sometimes has in the other
colonies. It is provided that "if any married person, man or woman,
has lately or shall hereafter go to sea in a ship or other vessel
bound from one port to another where the passage is usually made
in three months' time, and such ship or other vessel has not been
or shall not be heard of within the space of three full years ... ,
or shall only be heard of under such circumstances as may rather
confirm the opinion, commonly received, of the whole company's
being utterly lost, in every such case the matter being laid before
the governour and council, ... the man or woman whose relation is
in this manner parted from him or her may be esteemed single and
unmarried; and upon such declaration thereof, and license obtained
from that board, may lawfully marry again."[985]

  [Footnote 980: Nov. 3, 1692: _Acts and Resolves_, I, 61.]

  [Footnote 981: Jan. 13, 1755: _ibid._, III, 782.]

  [Footnote 982: In WHITMORE, _Col. Laws of Mass._ (1672-85), 42,
  the date is given as 1641; but _ibid._ (1660-72), 146, it is
  1647.]

  [Footnote 983: June 19, 1696: _Acts and Resolves_, I, 209; _cf._
  _Acts and Laws, 1692-1765_, 60.]

  [Footnote 984: June 6, 1694: _Acts and Resolves_, I, 171, 172.]

  [Footnote 985: Dec. 2, 1698: _ibid._, 353, 354.]

After 1692 the legislature does not seem to have interfered in
divorce suits either on appeal or in the first instance. In a few
cases the county court of general sessions of the peace is found
granting separate maintenance. Thus in 1710/11, on petition of
Elizabeth Goddard, two men are appointed to examine certain accounts
of her husband John, and to "take into their hands for the use of
the Petitioner what shall appear to be due to him."[986] In 1725
Dorothy, "the wife of John Jackson of Boston Starchmaker," asks for
separate maintenance, alleging that her husband had utterly refused
to provide for her support, and that she "would run the hazzard of
her life in case she should attempt to Enter into his house." The
court orders Jackson to take his wife home, support her according
to his ability, "and keep his Majesty's Peace." On refusal, he is
required to enter into recognizance in the sum of fifty pounds to
make Dorothy a weekly allowance of eight shillings.[987]

  [Footnote 986: Jan. 29, 1710/11: _MSS. Records of the Court of
  Gen. Sessions of Suffolk_, I, 225.]

  [Footnote 987: Apr. 26, 1725: _ibid._, III, 330. For a similar
  case, see _ibid._, 311.

  In the _MSS. Records of Superior Court of Judicature_, 1725-30,
  fol. 284, may be found the following entry: At a court held for
  Barnstable and Duke's Cos., Apr. 21, 1730, "Hannah Marshall,
  wife of the Rev. Josiah Marshall, complained that she has lived
  with him for a considerable time past in daily fear of her life,
  threats of being brained, etc. Josiah appeared and made answer.
  Hannah admitted to her oath ... Court directed and advised her
  to keep at her father's house until further order from the Court
  or from the General Sessions. Josiah to find surety for his good
  behavior." This is the only case in these records between 1725
  and 1780.]


TABLE II

DIVORCE CASES BEFORE THE GOVERNOR AND COUNCIL OF MASSACHUSETTS,
1739-60

(Found in _MSS. Files of Suffolk County_, Vol. DCCXCIII)

  ========================================================================
  No.| No. of  |  Date  |     Case    |   Cause  | Decree |  Hus.   |Years
     |  File   |        |             |          |        |Occupation| Mar.
  ---+---------+--------+-------------+----------+--------+---------+-----
   1 |.29726   |27-12-38|Gill _v._    |Coer. to  |        |Yeoman   |
     |         |        | Mary Belchar| mar.     |        |         |
   2 |.29727   |24- 6-40|Jesse _v._   |Incapacity|M. void |Farmer   |  5
     |         |        | Grace Turner|          |        |         |
   3 |.29728   |27- 4-44|Eliz. _v._   |Incapacity|        |Carp't'r | 11
     |         |        | Jos. Bredeen|          |        |         |
   4 |.29729   | 5-12-52|G. _v._      |Adultery  |M. diss.| Husb'n  |
     |         |        | M. Rainer   |          |        |         |
     |         |        | [Raymond]   |          |        |         |
   5 |.29730   |13- 6-51|Eliz. _v._   |Bigamy    |M. void |         |  1
     |         |        | Ezekiel     |          |        |         |
     |         |        | Eldridge    |          |        |         |
   6 |.29730   |26-12-52|Susanna _v._ |Deser.,   |M. diss.|         |  8
     |         |        | Ezek.       | remar.   |        |         |
     |         |        | Eldridge    |          |        |         |
   7 |.29731   |20- 2-53|Ben. _v._    |Adult.,   |M. diss.|         |
     |         |        | Jemima Green| bast.    |        |         |
   8 |.29732   | 9- 4-54|Petition of  |5 yrs.    |Lv. tom.|Mariner  |
     |         |        | Hannah Wood | absence  |        |         |
   9 |.29733_a_| 1-11-54|Mary _v._    |Adult.,   |Sep.    |Gent.    |
     |         |        |  Wm. Clapham| bast.    | b. b.  |         |
  10 |.29733_b_|  -12-54|Mary _v._    |Cr'l.,    |Sep.    |Gent.    | 13
     |         |        | Geo. Arthur | was. est.|  b. b. |         |
  11 |.29734   |  -  -57|Dan _v._     |Adultery  |        |Mariner  |
     |         |        | May McCarthy|          |        |         |
  ---+---------+--------+-------------+----------+--------+---------+-----

The history of divorce legislation is a complete blank for nearly
half a century under the provincial charter. Between 1692 and 1739
the record of the governor and council in such suits is entirely
missing. For the next twenty-one years, 1739-60, eleven cases have
been gathered from the court files (Table II); while during the
following twenty-six years, 1760-86, a continuous and apparently
complete record, showing ninety-six cases, is contained in a
manuscript volume preserved in the office of the clerk of the
supreme judicial court for Suffolk county (Table III).


TABLE III

DIVORCE CASES BEFORE THE GOVERNOR AND COUNCIL, OR THE COUNCIL, OF
MASSACHUSETTS, 1760-86

(From MS. Book of "Divorces" in Office of Clerk of Supreme Judicial
Court, Suffolk County)

  [Transcriber's note:
  Key:
  A = Adultery
  C = Cruelty
  I = Incapacity
  W = Another Wife
  Marriage Dissolved condensed to Mar. dis.]

  ==============================================================================
    |    | DATE OF|                  |     CAUSE      |        |          |
  NO.PAGE| DECREE |     CASE [988]   +-+--------------+ DECREE |HUSBAND'S |YEARS
    |    |        |                  |Charge|         |        |OCCUPATION|MAR-
    |    |        |                  | |Specifications|        |          |RIED
  --+----+--------+------------------+-+--------------+--------+----------+-----
   1|  1 |22- 4-60|Wm. _v._          | |Adultery,     |Mar.    |Soldier   | 3
    |    |        | Eleanor Arbuthnot| | elopement    |dis.    | [officer]|
   2|  2 | 9- 6-60|Henrietta _v._    | |Bigamy,       |Deferred|          |
    |    |        | Hugh Cane        | | desertion,   |        |          |
    |    |        |                  | | cruelty      |        |          |
   3|  4 |10- 6-60| Jane _v._        | |Adultery,     |Mar.    |          | ¾
    |    |        | Joshua Eustis    | | desertion    |dis.    |          |
   4|  5 | 5- 6-60|Petition of       | |Five years'   |Leave to|Mariner   |
    |    |        | Eunice Coffin    | | absence      | marry  |          |
   5|  6 | 8-10-60|Mary _v._         | |Cruelty       |Accomm- |Truckman  |12
    |    |        | Rich. Hunt       | |              |odated  |          |
   5|  7 |14- 2-61|Mary _v._         | |Cruelty,      |Separate|          |
   a|    |        | Rich. Hunt       | | failure to   |b. b.   |          |
    |    |        |                  | | provide      |[988]   |          |
   6| 11 |11- 3-61|Stephen _v._      | |Adultery,     |Mar.    |Mariner   | 6
    |    |        | Tabitha Lufkin   | |wasting estate|dis.[988]          |
   7| 15 |21- 4-62|Petition of       | |Four years'   |Leave to|Mariner   |
    |    |        | Ruth Woodberry   | | absence      | marry  |          |
   8| 16 |29- 7-62|Wm. _v._          | |Bigamy        |Marriage|Gardener  | 4
    |    |        | Hannah Davidson  | |              | void   |          |
   9| 18 |14- 2-63|Ed. _v._          | |Adultery      |Mar.    |Husbandman| 8
    |    |        | Rebecca Holman   | |              |dis.[988]          |
  10| 21 |13- 7-63|James _v._        | |Adultery,     |Mar.    |          | 8
    |    |        | Mary Torrey      | | elopement    |dis.[988]          |
  11| 24 |15- 2-64|Eliz. _v._        | |Cruelty,      |Separate|          | 2
    |    |        | Mark Keith       | | refuses bed  | b. b.  |          |
  12| 27 | 7-11-64|Elias _v._        | |Adultery,     |Mar.    |Soldier   | 9
    |    |        | Bethia Parmenter | | bastard      |dis.[988]|[captive]|
  13| 29 |10- 4-65|Ben. _v._         | |Adultery      |Mar.    |Mariner   |
    |    |        | Lydia Ingersoll  | |              |dis.[988]          |
  14| 32 |20- 6-65|Margaret _v._     | |Cruelty       |Dismissed Yeoman   |
    |    |        | Fred Knodle      | |              |        |          |
  15| 33 |14- 8-65|Rachel _v._       | |Bigamy        |Marriage|          | 8
    |    |        | John Wormley     | |              |void[988]          |
  16| 35 |24- 9-66|Russell _v._      | |Adultery      |Mar.    |Cooper    |14
    |    |        | Mary Knight      | |              | diss.  |          |
  17| 37 | 6- 5-67|Thos. _v._        | |Adultery      |Mar.    |Yeoman    |17
    |    |        | Abigail Hammet   | |              | diss.  |          |
  18| 40 |16-12-67|Mary _v._         | |Cruelty,      |Separate|Trader    |13
    |    |        | Jno. Fairservice | | adult., att. | b. b.  |          |
    |    |        |                  | | to poison    |        |          |
  19| 44 | 5- 2-68|Ann _v._          | |Desertion,    |Separate|          |
    |    |        | Cornelius Vansise| | failure to   | b. b.  |          |
    |    |        |                  | | provide      |        |          |
  20| 45 |15- 6-68|Jas. _v._         | |Adultery      |Mar.    |Trader    |11
    |    |        | Mary Dougherty   | |              |dis.[988]          |
  21| 48 |14- 9-68|Lucy _v._         | |Cruel., sells |Separate|Truckman  |7
    |    |        | Scipio Purnan    | | wife, fail.  | b. b.  |          |
    |    |        |                  | | to prov.     |        |          |
  22| 51 |17- 4-70|Jno. _v._         |A|Adultery      |Mar.    |Cordwainer|17
    |    |        | Anna Bragg       | |              |dis.[988]          |
  23| 54 |16-7-70 |Wm. _v._          | |Adultery      |Mar.    |Mariner   |15
    |    |        | Susanna Chambers | |              |dis.[988]          |
  24| 57 |18-10-70|Sam. _v._         | |Bigamy        |Marriage|Mariner   | 1
    |    |        | Sarah Lefebure   | |              |void[988]          |
  25| 59 | 9- 5-71|Mary _v._         | |Bigamy,       |Marriage|          | 6
    |    |        | Henry Bates      | | desertion    |void[988]          |
  26| 62 |19- 9-71|Mehetable _v._    | |Bigamy        |Marriage|Mariner[?] 2
    |    |        | Josh. Nicholson  | |              |void[988]          |
  27| 64 |23-10-71|Jno. _v._         | |Adultery      |Mar.    |Ropemaker | 6
    |    |        | Jane Crosley     | |              |dis.[988]          |
  28| 66 |28-10-71|Cadwell _v._      | |Adultery,     |Mar.    |Husbandman| 3
    |    |        | Charlotte Ford   | | drunkenness  | dis.   |          |
  29| 68 |17-10-71|Abagail _v._      | |Desertion,    |Separate|Physician |1½
    |    |        | Jos. Bradstreet  | | sequest.     | b. b.  |          |
    |    |        |                  | | fruits of    |        |          |
    |    |        |                  | | wife's estate|        |          |
  30| 70 |10-12-72|Jas. _v._         | |Adul., threats|Mar.    |Esquire   |20
    |    |        | Hannah Richardson| | to life and  | dis.   |          |
    |    |        |                  | | pr'ty        |        |          |
  31| 73 | 3- 2-73|Jos. _v._         | |Adultery,     |Mar.    |Yeoman    |7
    |    |        | Eunice Price     | | elopement,   |dis.[988]          |
    |    |        |                  | | bastard      |        |          |
  32| 75 | 4- 3-78|Sarah _v._        | |Desertion,    |Mar.    |          |
    |    |        | Enoch Kingsley   | | remarriage   |dis.[988]          |13
  33| 78 | 2- 3-73|Sarah _v._        | |Cruelty,      |Mar.    |          |
    |    |        | Wm. Gould        | | adult., ven. |dis.[988] Merchant |13
    |    |        |                  | | disease      |        |          |
  34| 80 | 4-11-73|Martha _v._       | |Cruelty,      |Mar.    |          |
    |    |        | Adam Air         | | adult., fail.| dis.   | Turner   | 4
    |    |        |                  | | to prov.     |        |          |
  35| 83 |15- 6-74|Martha _v._       | |Desertion,    |Mar.    |          |
    |    |        | Wm. Jones        | | remarriage   |dis.[988] Tailor   |12
  36| 85 |15- 6-74|Abigail _v._      | |Adult., ven.  |Mar.    |          |
    |    |        | John Pell        | | dis., fail.  | dis.   |Gentleman |10
    |    |        |                  | | to prov.     |        |          |
  37| 87 |21-11-76|Asaph _v._        |A|Adultery,     |Mar.    |          |
    |    |        | Naomi Leonard    | | elopement    |dis.[988]          |28
  38| 90 |?-12-76 |J. C. _v._        |A|Adultery      |Mar.    |          |
    |    |        | Mary Lewis       | |              |dis.[988]          |
  39| 92 |27- 5-77|Isaiah _v._       |A|Adultery      |Mar.    |          |
    |    |        | Mary Thomas      | |              | dis.   | Printer  | 7
  40| 96 | 5- 9-77|Rosanna _v._      |A|Adultery      |Mar.    |          |
    |    |        | Wm. Scott        | |              |dis.[988]          |11
  41|101 |30- 1-78|Joshua _v._       |A|Adultery      |Mar.    |          |
    |    |        | Sarah Jay        | |              |dis.[988] Innholder|19
  42|104 |14- 7-78|Wm. _v._          |A|Adultery      |Mar.    |          |
    |    |        | Sarah Sturgis    | |              | dis.   | Mariner  |
  43|107 |15-10-78|Jas. _v._ Hannah  |A|Adultery,     |Mar.    |          |
    |    |        | Thompson         | | squandered   |dis.[988] Mariner  | 2
    |    |        |                  | | estate       |        |          |
  44|110 |25- 2-79|Eliz. _v._        |A|Adult.,       |Mar.    |          |
    |    |        | Samuel Bemis     | | cruelty,fail.|dis.[988] Yeoman   | 3
    |    |        |                  | | to prov.     |        |          |
  45|113 |30-12-79|Ed. _v._          |A|Adultery,     |Mar.    |Peruke    |
    |    |        | Isabella Dawes   | | elopement    |dis.[988]  maker   | 9
  46|117 |28- 2-80|Rose _v._         |A|Adultery,     |Mar.    |          |
    |    |        | Timothy Corles   | | failure to   |dis.[988] Yeoman   | 9
    |    |        |                  | | provide      |        |          |
  47|120 |20- 2-80|Deborah _v._      |A|Ad., des.,    |Mar.    |          |
    |    |        | Ashael Owen      | | remar., fail.|dis.[988]          |28
    |    |        |                  | | to prov.     |        |          |
  48|122 |19- 9-80|Chloe _v._        |A|Adult.,       |Mar.    |Laborer   |
    |    |        | Luke Welch       | | deser., fail.|dis.[988] [soldier]|10
    |    |        |                  | | to prov.     |        |          |
  49|126 |21- 9-80|Alice _v._        |A|Adultery,     |Mar.    |          |
    |    |        | Wm. Gray         | | failure to   |dis.[988]          |10
    |    |        |                  | | provide      |        |          |
  50|128 |21- 9-80|Sarah _v._        |A|Adultery,     |Mar.    |          |
    |144 |        | Valentine Wheeler| | desertion    |dis.[988]          |34
  51|131 | 6-10-80|Mary _v._         |A|Adultery,     |Mar.    |          |
    |    |        | Jno. Marshall    | | desertion    |dis.[988]          |26
  52|134 |22-12-80|Rebecca _v._      |A|Adultery,     |Mar.    |          |
    |    |        | Jacob Dunnell    | | desertion,   |dis.[988] Mariner  | 7
    |    |        |                  | | bastard      |        |          |
  53|137 |24- 1-81|Geo. _v._         |I|Incapacity    |Mar.    |          |
    |    |        | Phebe Shearman   | |              |dis.[988]          |
  54|140 |25- 1-81|Eliz. _v._        |A|Cruelty, ven. |        |          |
    |    |        | Samuel Bemis     | | dis., adult. |        |Husbandman|1½
  55|145 |26- 5-81|Mary _v._         |C|Cruelty,      |Separate|          |
    |    |        | Geo. Lobb        | | failure to   | b. b.  | Mariner  | 2
    |    |        |                  | | provide      |        |          |
  56|149 |29- 9-81|Amzi _v._ Jerusha |A|Adultery,     |Mar.    |          |
    |    |        | Doolittle        | | elopement    | dis.   |          |
  57|150 |29- 2-81|Belah _v._        |A|Adultery,     |Mar.    |          |
    |    |        | Amos Marsh       | | desertion    | dis.   |Husbandman|
  58|153 |29-11-81|Abigail _v._      |A|Cruelty,      |Mar.    |          |
    |    |        | Jno. Daniels     | | adult.,wasted| dis.   |          |31
    |    |        |                  | | estate       |        |          |
  59|156 | 3- 5-82|J. P. _v._        |A|Has bastard   |Mar.    |          |
    |    |        | Eliz. Barrere    | |              | dis.   |          |
  60|158 | 3- 5-82|David _v._        |A|Adult., bas-   Mar.    |          |
    |    |        | Mary Hoit        | | tard,        |dis.[988]         |11
    |    |        |                  | | elopement    |        |          |
  61|161 | 5- 6-82|Rhoda _v._        |A|Deser.,remar.,|Mar.    |          |
    |    |        | Ben. Pidgin      | |fail. to prov.| dis.   |          |14
  62|163 |23-12-82|Eliz. _v._        |A|Adultery,     |Mar.    |          |
    |    |        | Thomas Finnecy   |C| cruelty      | dis.   | Mariner  | 4
  63|165 |25- 2-83|Ebenezer _v._     |A|Has bastard   |Mar.    |Sailor    |
    |    |        | Anna Tarbox      | |              | dis.   | [captive]| 3
  64|166 |15- 4-83|Squire _v._       |A|Has bastard   |Mar.    |          |
    |    |        | Dorcas Baker     | |              |dis.[988] Soldier  |12
  6 |168 |14- 5-83|Ann _v._          |C|Cruelty,      |Separate|          |
    |    |        | David Gardner    | | failure to   | b. b.  |          |22
    |    |        |                  | | provide      |        |          |
  66|170 | 4- 6-83|Mary _v._         |A|Adultery,     |Mar.    |          |
    |    |        | Stephen Holman   | | disease,     | dis.   |          | 5
    |    |        |                  | | desertion,   |        |          |
    |    |        |                  | | failure to   |        |          |
    |    |        |                  | | provide      |        |          |
  67|172 |11- 6-83|Z. W. _v._        |A|Desertion,    |Mar.    |          |
    |    |        | Juda Thayer      | | bastard      |dis.[988] Yeoman   |11
  68|173 |18- 6-83|Thos. _v._        |A|Adultery,     |Mar.    |          |
    |    |        | Rosanna Crippen  | | elopement    | dis.   |          |
  69|175 |18- 6-83|Alice _v._        |A|Adultery,     |Mar.    |          |
    |    |        | Lemuel Hill      | | deser.,      | dis.   |          |
    |    |        |                  | | remarriage   |        |          |
  70|176 |19- 6-83|Mime _v._         |A|Cruelty,      |Mar.    |          |
    |    |        | T. J. Carnes     |C| bastard      | dis.   |          | 6
  71|178 | 3- 7-83|David _v._        |A|Adultery,     |Mar.    |          |
    |    |        | Mary Harwood     | | elopement    | dis.   |Husbandman|
  72|179 | 3- 7-83|Sarah _v._        |A|Adultery, esp.|Mar.    |          |
    |    |        | Stephen Temple   | | with daughter| dis.   |          |25
  73|181 |17-10-83|Sam. _v._         |A|Adultery,     |Mar.    |          |
    |    |        | Margaret Crafts  | | elopement,   |dis.[988] Laborer  |15
    |    |        |                  | | bastard      |        |          |
  74|184 |17-10-83|Puella _v._       |A|Adultery,     |Mar.    |          |
    |    |        | Sam Kelly        | | another wife |dis.[988]          | 5
  75|186 |27-10-83|Albert _v._       |A|Adultery,     |Mar.    |          |
    |    |        | Ann Fitch        | | elopement    |dis.[988]   Mariner| 6
  76|188 |29- 1-84|Phin. _v._ Sybil  |A|Adultery      |Mar.    |          |
    |    |        | Chamberlain      | |              |dis.[988]          | 7
  77|189 |16- 2-84|Sarah _v._        |A|Adultery,     |Mar.    |          |
    |    |        | Abel Sawyer      | | venereal     | dis.   |          |21
    |    |        |                  | | disease      |        |          |
  78|191 |26- 2-84|Jeremiah _v._     |A|Adultery      |Mar.    |          |
    |    |        | Mary Higerty     | |              |dis.[988]  Mariner |14
  79|192 |26- 2-84|Andrew _v._       |A|Bastard       |Mar.    |          |
    |    |        | Eliz. Gage       | | children     | dis.   | Mariner  |18
  80|194 | 4- 3-8 |Mary _v._         |A|Adultery,     |Mar.    |          |
    |    |        | Wm. Pedley       |C| cruelty      |dis.[988]   Mariner| 5
  81|196 |16- 3-84|Hannah _v._       |A|Coresp. in 73,|Mar.    |          |
    |    |        | David Dudley     | | desertion    |dis.[988]          |24
  82|198 |16- 3-84|Hannah _v._       |A|Turned wife   |Mar.    |          |
    |    |        | Nehemiah Adams   | | out; took    |dis.[988]Husbandman|11
    |    |        |                  | | another woman|        |          |
  83|199 |18- 3-84|Sarah _v._        |A|Adultery,     | Denied |          |
    |    |        | Francis Rust     |C| cruelty      |        | Trader   | 5
  83|204 |11- 6-84|Sarah _v._        |C|Cruelty       |Separate|          |
  a |    |        | Francis Rust     | |              | b. b.  |          |
  84|201 |10- 5-84|Helena _v._       |C|Cruelty       |Separate|          |
    |    |        | Jas. Bayard      | |              | b. b.  | Mariner  |27
  85|202 | 4- 6-84|Sibbla _v._       |W|Another       |Mar.    |          |
    |    |        | G. W. Babcock    | | wife         |dis.[988] Mariner  | 4
  86|205 | 6- 7-84|Mary _v._         |A|Adult.,       |Mar.    |          |
    |    |        | Thos. Smith      | | deser., fail.|dis.[988]Husbandman|12
    |    |        |                  | | to prov.     |        |          |
  87|206 |18-10-84|Sarah _v._        |A|Adult., cru-  |        |          |
    |    |        | Wm. Vernon       |C| elty, fail.  | Denied | Merchant | 6
    |    |        |                  | | to prov.     |        |          |
  87|214 |21- 7-85|Sarah _v._        |A|Adultery      |Mar.    |          |
  a |    |        | Wm. Vernon       | | with negress | dis.   |          |
  87|222 | 1-11-85|Sarah _v._        | |Suit for      |        |          |
  b |    |        | Wm. Vernon       | | alimony      | Denied |          |
  88|208 |27-10-84|Appey _v._        |A|Deser.,       |Mar.    |          |
    |    |        | Jno. Pumpelly    | | remar., fail.|dis.[988]          |24
    |    |        |                  | | to prov.     |        |          |
  89|209 |16- 2-85|Patience _v._     |A|Adultery,     |Mar.    |          |
    |    |        | Wm. Cornell      | | turned wife  | dis.   |Cordwainer|21
    |    |        |                  | | out          |        |          |
  90|211 | 3- 3-85|Sarah _v._        |A|Adult.,       |Mar.    |          |
    |    |        | Jno. Backus      | | deser., fail.|dis.[988]          | 6
    |    |        |                  | | to prov.     |                   |
  91|212 | 3- 3-85|Jacob _v._        |A|Adultery,     |Mar.    |          |
    |    |        | Hannah Millard   | | elopement    |dis.[988] Yeoman   |17
  92|216 |26-10-85|Hannah _v._       |A|Adultery,     |Mar.    |          |
    |    |        | Moses Elwell     | | desertion    |dis.[988] Yeoman   |12
  93|218 |23-11-85|Domin. _v._       |A|Adultery,     |Mar.    |          |
    |    |        | Martha Record    | | elopement    |dis.[988]          |17
  94|220 |24-11-85|Jno. _v._         |A|Adultery,     |Mar.    |          |
    |    |        | Hannah Wales     | | intoxication | dis.   |          | 4
  9 |224 | 8- 2-86|Anna _v._         |A|Bas., remar., |Mar.    |          |
    |    |        | Ebenezer Pelton  | | des., fail.  |dis.[988]          | 5
    |    |        |                  | | to pro.      |        |          |
  96|226 |18- 2-86|Rebec _v._        |A|Adult., cru-  |Mar.    |          |
    |    |        | Ebenezer Simpson |C| elty, fail.  |dis.[989]Blacksmith|20
    |    |        |                  | | to prov.     |        |          |
  --+----+--------+------------------+-+--------------+------------+----------+

  [Footnote 988: Beginning with No. 37, 1776, the record in each suit
  consists of (1) the charge; (2) the specifications; and (3) the
  decree. The cause or causes assigned in the charge are usually
  identical with those named in the decree; but the specifications
  often contain more points than does the charge. Before 1776 the
  record has two parts, there being but one instance (No. 22, 1770)
  of a charge before that date.]

  [Footnote 989: Defendant contumacious: does not appear to defend,
  though repeatedly summoned.]

A glance at the tables exhibiting the more important details
connected with these actions discloses several important facts. For
the period covered by Table III the average yearly number of cases
is less than four, although the number rapidly increases after
1780. It is significant that in twenty-three out of seventy-six
instances, for both tables, when the occupation is known, the
husband is entered as a "mariner." The wife is plaintiff in
sixty-one out of one hundred and seven petitions; and in fifty-three
of the ninety-six cases listed in Table III the defendant, though
summoned, fails to appear at the trial. The courts, as in the
early period, still hesitate to grant the wife a divorce when the
husband's adultery is the sole ground assigned. Before 1776 there is
not a single clear instance[990] of such a divorce, although after
that date marriages are freely dissolved for this cause. Another
important innovation is of somewhat earlier date. Twelve out of the
one hundred and seven cases entered in the two tables--about one in
nine--are separations from bed and board, the two earliest occurring
in 1754. In five of these the petitioner asks for either partial
or absolute divorce, as the court may determine. Thus in 1767 Mary
Fairservice, whose husband was guilty of adultery and cruelty with
attempt to poison, "humbly prays ... that the Bonds of Marriage ...
may be dissolved, or otherwise if ... this cannot by Law be done,
that she may be divorced from Bed and Board." According to the
record the husband appears to have been overanxious for a complete
release; so the court granted only partial divorce and gave the wife
alimony, although she had not asked for it in her petition. On the
other hand, in each of the other four cases a full dissolution of
the marriage bond was decreed.[991]

  [Footnote 990: However, in Nos. 34 (1773) and 36 (1774), Table
  III, adultery of the husband is the only reason for the divorce
  mentioned in the decree, but other grounds are specified in the
  petition. Perhaps these may be regarded as the earliest cases of
  divorce for "male adultery" during the eighteenth century.]

  [Footnote 991: See Table III, Nos. 18, 32, 33, 36, 58.]

Separation from bed and board was prayed for and granted in one
instance which reveals the fact that cruelty, however aggravated,
was not regarded as sufficient ground for a full divorce. This is
the case of Lucy and Scipio Purnan, free negroes, decided in 1768.
Although Scipio was in "good business" and lived "in good fashion,"
as we are told in the petition, he turned his wife out of doors and
refused to provide for her support. Furthermore, in 1765, he "sold
her to one William Alford who with the help of another man seized
bound and gagged her at midnight and carried her off to Province
of New York and there sold her 'being a black woman.'" After again
being sold "she ran away back to Boston." Nevertheless Lucy sued for
a mere separation with alimony and the custody of her child. The
court granted her prayer, except that the child is not mentioned
in the decree.[992] The conservatism of the court regarding this
cause is further disclosed by the case of Sarah Rust in 1784. In
her petition she asks for a dissolution of wedlock on the double
ground of adultery and extreme cruelty. For lack of evidence as
to the first-named offense sufficient to warrant either full or
partial divorce, her prayer was denied, nothing being said in the
decree concerning the charge of cruelty. Sarah then brought suit for
cruelty alone, alleging that on the fifth of June, "as she was going
into the yard of a dwelling house where a pitying friend has given
her license to take shelter," Francis "waylaid & with a club beat
& mangled her in a most atrocious and cruel manner," attempting to
take her life. Accordingly the court allowed her a separation from
bed and board.[993] An earlier case constitutes a notable exception
to the policy of the court touching another ground of action. In
1771 Abigail Bradstreet got a partial divorce from her husband
Joseph, who had abandoned her because he had "married a woman with
less money than he might have expected." This case is unique; for
in no other instance is separation granted where desertion alone
without adultery or cruelty is charged.[994]

  [Footnote 992: Table III, No. 21. This is the only case where
  custody of a child is asked for. In all other cases where
  children are mentioned they are already in the hands of the
  plaintiff; and in no instance are children referred to in the
  decree. Separation from bed and board is usually granted for
  cruelty (see Table III, Nos. 5_a_, 24, 18, 55, 65, 83_a_, 84);
  but a full divorce is never granted for this cause alone.]

  [Footnote 993: Table III, Nos. 83, 83_a_. With this case may
  be compared that of Sarah _v._ William Vernon (Nos. 87, 87_a_,
  87_b_). On October 16, 1784, the wife asked for such relief
  as the "laws of the land" provide, charging her husband with
  adultery and cruelty. The court found the evidence insufficient
  for either kind of divorce; but on July 21, 1785, the marriage
  was dissolved on the ground of adultery alone. Singularly enough,
  her petition for alimony six days later was denied.]

  [Footnote 994: Table III, No. 29. _Cf._ Nos. 32 and 50, where
  marriage is dissolved for desertion accompanied by adultery (or
  remarriage).]

A few other cases illustrating general facts or principles may be
mentioned. In only one instance is the common-law action against
the adulterer referred to.[995] Suits for divorce or nullity on the
ground of bigamous marriages are of frequent occurrence.[996] On
October 15, 1751, Ezekiel Eldridge, indicted for feloniously taking
two wives, pleaded guilty and "pray'd the Court that he might be
allow'd the Benefit of the Clergy which was Granted him." He was
"thereupon burnt in the hand in the face of the Court" and allowed
to "go without day Paying Costs." Thereafter one of his victims
secured a divorce and his marriage with the other was declared null
and void.[997] In six cases the decree is preceded by previous
written or oral agreement by the parties.[998] The petition in
cases of long absence under the act of 1698 is illustrated by the
case of Eunice Coffin, in 1760, whose husband had been absent on a
whaling voyage for five years without word. "The Petitioner hath
the highest reason to imagine that the sloop ... was lost at Sea,
for ... a few day[s] after they sailed there was the most terrible
Storm that had been known since Nantucket hath been settled." So
the court adjudged Eunice single and granted her "license" to marry
again.[999] Finally it may be noted that in one instance a negro
slave was granted a divorce by the governor and council in the
regular way.[1000]

  [Footnote 995: On April 22, 1760, for this offense "William
  Arbuthnot, Esq.," secured a divorce from his wife. In his
  petition he explains "that the reason of his application to this
  Court, before ... Eleanor hath been legally convicted of adultery
  by the course of Common Law, is, because the said Eleanor before
  she could be prosecuted" absconded ... and still continues out
  of the jurisdiction of the Common Law Courts of this Province":
  see Table III, No. 1. In Nos. 17, 20, 41, 56, and 57 the decree
  is based in part on proceedings in other courts; while in Nos. 78
  and 80 such proceedings are pleaded.]

  [Footnote 996: See Table III, Nos. 2, 8, 15, 24, 25, 26, 74, 85.]

  [Footnote 997: _MSS. Early Court Files of Suffolk_, DCCXCIII, No.
  .29730: see Table II, Nos. 5 and 6.]

  [Footnote 998: In Table III, Nos. 11 and 19, after previous
  written agreement, separation from bed and board with alimony
  is allowed. The same is true of No. 65, except that the wife
  retained her right of dower. Nos. 55, 56, and 57 are cases of
  verbal agreement; but this does not constitute the sole reason
  for the decree.]

  [Footnote 999: Table III, No. 4; _cf._ Table III, No. 7, and
  Table II, No. 8.]

  [Footnote 1000: In 1745 a slave was allowed a divorce for his
  wife's adultery with a white man: see Gray's note to Oliver _v._
  Sale in QUINCY, _Reports_, 29; and BISHOP, _Mar., Div., and
  Sep._, I, 282.]

_b_) _New Hampshire, Plymouth, and New Haven._--The Massachusetts
act of 1698 regarding desertion or long absence in precisely the
same terms is embodied in the laws of New Hampshire,[1001] whose
policy respecting divorce seems to have been identical with that
of the Bay Province. The causes of divorce, except desertion, are
not defined by law. As early as 1681, after the establishment of
the independent government, the president and council appear to
have possessed jurisdiction in such controversies. In that year a
quaint petition is presented by Sarah Pearce, "not knowing where to
find redress under Heaven but from your honorable council of this
province," praying to be "disobliged" from her union with Hubbartus
Mattoon with whom for "sundry years past she was married;" because,
owing to more than seven years' wilful desertion, aggravated by
unfaithfulness, she has been sadly disappointed in her hope of "a
comfortable living with him;" and since, unless she mistake, by the
"unerring rule of God and the laws of our nation," either or both
of the causes assigned should free her from the nuptial bond. At the
same time she humbly requests their honors in their justice to weigh
"his strange embracement" of her estate while she lived with him;
and his "solemn threatenings" since desertion to destroy her "by
poison, or knocking of the head" if she come near him. Whether the
court granted the petition does not appear.[1002]

  [Footnote 1001: _Acts and Laws of ... New Hamp._, 1696-1726
  (Boston, 1726), 10; _ibid._ (Portsmouth, 1761), 54; _ibid._
  (Portsmouth, 1771), 11.]

  [Footnote 1002: The petition is in the "Province Records and
  Court Papers": _Coll. New Hamp. Hist. Soc._, VIII, 68.]

For the other New England colonies a point of special interest
is the existence of legislative divorce. The popular assemblies,
bearing the name of "general courts," are seen freely passing
decrees of divorce, and this function is usually exercised
concurrently with the law tribunals or by way of supplementing
their jurisdiction.[1003] From the record of proceedings in such
cases many an interesting glimpse is obtained of the social life of
the times. Thus the general court of Plymouth grants dissolution
of wedlock for desertion and adultery; but the conservatism of
public sentiment in this regard is shown by the fact that for the
seventy-two years during which that colony existed as a separate
jurisdiction only six instances of divorce have been discovered. The
first case occurred in 1661, when Elizabeth Burge on the scriptural
ground was released from her husband Thomas, who for his misconduct
was sentenced to be severely whipped at Plymouth and again at
Sandwich. The court took care that Elizabeth's temporal interests
should be protected. Not only did she receive one-third of her late
husband's "estate, viz., lands, goods, and chattles, as her proper
right forever;" but with his consent she got also "an old cotton
bed and bolster, a pillow, a sheet, and two blankets ... with some
other smale thinges ... to the vallue of forty shillings."[1004]
The experience of William Tubbs, of Scituate, is unique. His wife
Marcye was notoriously unfaithful to her nuptial vow and eventually
eloped with another man. So he sought a divorce; and accordingly in
1664, "after the patriarchal style," as Goodwin observes, William
Paybody of Duxbury gave him a "writing of divorcement," with
Lieutenant Nash and John Sprague as witnesses. This document the
general court treated as a nullity, fining Paybody five pounds and
each of the witnesses three pounds for their resort to self-help.
But four years later that court came to his relief in the regular
way. In July, 1668, after serving due notice on the libellee through
letters addressed to the government of "Road Iland"--where "Goodwife
Tubbs" had fled with her paramour--he was pronounced "legally cleare
from his couenant of marriage formerly made with Marcye, his late
wife," with the privilege of marrying again, "if hee see fit soe
to doe;" while she is solemnly declared to have cut herself off
from the "[p=]son" and "estate of the said William."[1005] For
similar cause and on the same conditions John Williams was released
from his wife Sarah in 1674.[1006] The next year "Edward Jenkins,
of Taunton, petitioned that his daughter Mary be divorced from
Marmaduke Atkinson, who had been out of the Colony and made no
provision for her during seven years or more. The decision was a
singular one; namely that while the court sees no cause to grant a
divorce 'yett they doe apprehend her to be noe longer bound, but doe
leave her to her libertie to marry if she please.'"[1007] This was
probably the court's homely way of saying that, the common-law term
of seven years' absence without word having expired, it regarded
the marriage as _ipso facto_ dissolved without judicial process,
though a formal decree was the more prudent course in case a second
marriage were contemplated.[1008] In the Plymouth records, as often
elsewhere, the term "divorce," following common-law usage, is
employed for a sentence of nullity in case of a void or voidable
marriage. Thus in 1680 Nicholas Wade, of Scituate, and his daughter,
Elizabeth Stevens, present a petition "wherein they complaine of a
great and sore crosse," her husband being a man of "debauged life,
expressed by his plurallitie of wifes." Elizabeth was therefore
"dismissed" from her conjugal bond; while the "debauged" Stevens
for his "abominable wickedness" was "centansed to be seueerly
whipt att the post."[1009] The last case is that of John Glover of
Barnstable whose marriage with Mary his wife was dissolved in 1686
on account of her unfaithfulness.[1010] It is significant that four
of the six petitions just enumerated are brought against the wife
on the scriptural ground and none against the husband for the same
cause. From this fact it may perhaps be inferred that in Plymouth
Plantation, as at that time in Massachusetts, male adultery was not
recognized as a legal ground of divorce.[1011]

  [Footnote 1003: WOOLSEY, _Divorce_, 196, says, "At first,
  divorces were mainly, if not quite exclusively, granted by an
  act of a colonial legislature, in accordance, perhaps, with the
  practice then, and until recently, existing in England, for the
  House of Peers to take cases of dissolution of marriage into
  their own hands." This statement is of course too broad; but
  COWLEY is decidedly in error when he declares that the "remark
  of President Woolsey requires modification with respect to Rhode
  Island, and still more with respect to Connecticut. Neither
  Massachusetts nor New York nor any other Colony or State knew
  anything of legislative divorce until a much later day."--_Our
  Divorce Courts_, 22.]

  [Footnote 1004: So stated by GOODWIN, _Pilgrim Republic_, 596,
  597, who gives a list of the cases, to which, after independent
  examination of the _Plymouth Records_, I am unable to add any new
  examples.]

  [Footnote 1005: _Ply. Col. Rec._, IV, 66 (1664), 187, 192 (1668),
  42, 46, 47 (earlier notices). _Cf._ GOODWIN, _op. cit._, 596.]

  [Footnote 1006: _Ply. Col. Rec._, V, 127.]

  [Footnote 1007: GOODWIN, _op. cit._, 597. The case is in _Ply.
  Col. Rec._, V, 159.]

  [Footnote 1008: On the Connecticut law as to seven years'
  absence, SWIFT, _Digest of the Laws of the State of Conn._, I,
  21, says: "By common law, that period of absence unheard of, is
  presumptive evidence of the death of the person; yet in such
  cases it would be proper that there should be a divorce before
  a marriage is had, for if the party should return, the first
  marriage would undoubtedly be valid, though by the [Connecticut]
  statute a prosecution for the crime of bigamy could not be
  sustained."]

  [Footnote 1009: _Ply. Col. Rec._, VI, 44, 45.]

  [Footnote 1010: _Ibid._, 190.]

  [Footnote 1011: There are two other references to divorce matters
  in the _Records_. In 1670, on his wife's confession of legal
  cause, Samuel Hallowey petitioned for a divorce; but the court,
  "being not very clear," postponed the case three months to see
  if the wife would persist in her confession or the parties
  become reconciled. In June the case was referred to two men for
  examination; but it is not again mentioned: _ibid._, V, 32, 41,
  42. _Cf._ GOODWIN, _op. cit._, 597. Again, curiously enough, we
  find here the certified copy of a decree of divorce granted in
  the Massachusetts jurisdiction to James Skiffe, "late inhabitant
  of Sandwich, but now att the Viniyard," by a "Generall Court"
  held on that island. Skiffe's wife had run away to Roanoke with
  another man: _Ply. Col. Rec._, V, 33.]

Similar illustrations of the life and thought of the times are
afforded by the records of New Haven colony. In that "biblical
commonwealth" it is, of course, not surprising that the influence
of Judaism should be strongly felt. By the "capital laws" adultery
is punished with death; so, before 1648, it is ordered that if "any
marryed person proved an Adulterer, or an Adulteresse, shall by
flight, or otherwise, so withdraw or keep out of the Jurisdiction,
that the course of Justice (according to the mind and Law of
God here established) cannot proceed to due execution, upon the
complaint, proof, and prosecution, made by the party concerned,
and interessed, a separation or Divorce, shall by sentence of the
Court of Magistrates be granted," and the innocent party "have
liberty to marry again." For physical incompetency marriage may be
"declared void and a nullity;" and here we get a glimpse of the
carnal motives for wedlock handed down from the Mosaic code and
tenaciously surviving in all modern systems of law. Avoidance of
marital "duty" is the real ground of action. Therefore should the
man deceive the wife as to the fact, then such "satisfaction shall
be made to the injured woman, out of the estate of the offender,
and such fine paid to the Jurisdiction, as the Court of Magistrates
shall judge meet."[1012] In like spirit an unusually stringent rule
as to desertion is laid down. If either party shall wilfully abandon
the other, "peremptorily refusing all Matrimoniall society, and
shall obstinately persist therein, after due means have been used to
convince and reclaim, the husband or wife so deserted, may justly
seek and expect relief, according to 1 Cor. 7:15."[1013] Here no
definite term of wilful desertion is fixed. But in 1663 divorce
with remarriage is permitted in case of seven years' absence, when
the deserted consort has "noe certaine intelligence" of the other's
being alive or purposing to return.[1014] Whether this comprehends
the case of wilful desertion we are not told.

  [Footnote 1012: This, of course, is practically equivalent
  to "fraudulent contract" as usually permitted in the modern
  statutes.]

  [Footnote 1013: For the foregoing orders see _New Haven's
  Settling in New England. And some Lawes for Government published
  for the Use of that Colony_ (London, 1656): in _New Haven Col.
  Rec._, II, 586. They are also embodied in the code of 1655:
  TRUMBULL, _Blue Laws_, 241, 242. Their date is not given, but it
  is probably previous to 1648 or 1649: _New Haven Col. Rec._, II,
  preface, iv; TRUMBULL, _op. cit._, 40.]

  [Footnote 1014: _New Haven Col. Rec._, II, 479, citing also "1
  Cor., 7:15," as in the order before cited.]

_c_) _Connecticut._--The laws of Connecticut relating to divorce
gained a surprisingly early maturity. Perhaps in none of the other
colonies was so liberal, and on the whole so wisely conservative,
a policy adopted. That plantation almost deserves the patriotic
eulogy bestowed upon it by Swift, who declares in 1795 that the
"institution of a court for the decision of such controversies,
and the limitation of their power to such cases as the public
good requires to be remedied, gives the practice adopted by" the
Connecticut "laws, a decided preference to the practice of all other
nations, and renders our mode of granting divorces, as favourable as
the other modes have been unfavourable, to the virtue and happiness
of mankind."[1015] Certainly in the middle of the seventeenth
century no state, with the possible exception of Holland, possessed
a system so modern in its character. Separation from bed and board
was rejected. Only in one instance, it is said, and that by the
assembly, was such a decree ever granted.[1016] Reasonable and
fairly liberal causes of divorce a _vinculo_ were clearly specified;
husband and wife were treated with even justice; and, although
legislative divorce, always liable to abuse, was permitted, the
greater part of litigation seems always to have been intrusted to
the regular courts. In short, Connecticut, in all the more essential
respects, anticipated the present policy of civilized nations by
nearly two hundred years.

  [Footnote 1015: SWIFT, _System of the Laws of the State of Conn._
  (Windham, 1795), I, 192; _cf. idem_, _Digest_ (New Haven, 1823),
  I, 24, 25.]

  [Footnote 1016: SWIFT, _System of the Laws_, I, 193.]

By the act of 1667 the court of assistants is empowered to grant
bills of divorce from the bond of matrimony to either party, with
the privilege of remarriage, for adultery, fraudulent contract,
three years' wilful desertion with total neglect of duty, or for
seven years' "providential" absence unheard of.[1017] This law was
re-enacted in 1677;[1018] and the four causes, with scarcely the
change of a word in the terms of the statute, appear in the revision
of 1715,[1019] and again and again in the succeeding compilations
until 1843, when two new grounds--"habitual intemperance" and
"intolerable cruelty"--were added.[1020] The real scope of this
singularly liberal provision for divorce thus early adopted cannot,
however, be fully appreciated unless two important facts be kept in
mind. First, in judicial practice adultery acquired a very broad
meaning. Not only did it cover the misconduct of the husband as well
as that of the wife, but the statute was interpreted to allow the
latter a divorce for the "criminal connection" of the man with any
single women.[1021] Secondly, "fraudulent contract" was construed
"according to its plain and natural import, that is a contract
obtained by fraud," and not in the very restricted and conventional
sense which the courts, perhaps misled by a remark of Blackstone,
have in later years sometimes adopted.[1022]

  [Footnote 1017: See _Public Statute Laws of the State of Conn._
  (Hartford, 1808), I, 236, editorial note 1; also SWIFT, _Digest_,
  I, 24, 25.]

  [Footnote 1018: _Conn. Col. Rec._ (Oct. 18, 1677), II, 328:
  "It is ordered, by this court that noe bill of divorce shall
  be granted to any man or woman lawfully married but in case of
  adultery, fradulent contract, or willful desertion for three
  years with totall neglect of duty, or seven years' providentiall
  absence being not heard of after due enquiry made and certifyed,
  such party shall be counted as legally dead to the other party;
  in all which cases a bill of divorce may be granted by the Court
  of Assistants to the aggrieved party who may then lawfully marry
  or be marryed to any other."]

  [Footnote 1019: _Acts and Laws_ (New London, 1715), 28; _ibid._
  (New London, 1750), 43; _ibid._ (New Haven, 1769), 43. Almost
  the only change during the period mentioned in the text is the
  substitution of "superior court" for "court of assistants."
  _Cf._ _Pub. Stat. Laws_ (1808), 236 n. 1. As in Massachusetts,
  the divorced wife is to have a part of the husband's estate, not
  exceeding one-third thereof: _Acts and Laws_ (1769), 146.]

  [Footnote 1020: Act of June 6, 1843: _Public Acts_ (1843), 20;
  _Revision of the Stat. of the State of Conn._ (Hartford, 1849),
  274.]

  [Footnote 1021: SWIFT, _Digest_, I, 21.]

  [Footnote 1022: This is the view of SWIFT, _Digest_, I, 21,
  22, referring to BLACKSTONE, _Commentaries_, III, 94. Thus a
  decision of the Connecticut superior court of errors seems to
  limit "fraud" as a cause of divorce to "corporal imbecility":
  1 DAY, _Reports_, 111. But in 1848, at the August term of the
  superior court for Litchfield county, "it was held ... upon a
  consultation with judges of the Supreme Court, that where a woman
  at the time of her marriage was pregnant with a bastard child,
  and fraudulently concealed the fact from her husband, this was a
  sufficient cause for a divorce."--DUTTON AND COWDREY'S _Revision
  of Swift's Digest_ (New Haven, 1851), I, 22; citing 9 _Conn.
  Rep._, 321; and for New York, where a similar practice prevailed,
  4 JOHNSON, _Chancery Rep._, 343. In the earlier period doubtless
  a still broader meaning was given to the term "fradulent
  contract": see the examples for illustration in SWIFT, _Digest_,
  I, 22.]

Long before the act of 1667, and for one hundred and eighty-three
years thereafter, the legislative assembly of Connecticut, side by
side with the court of assistants or its successors, reserved to
itself the right of granting bills of divorce. This power seems in
the main to have been exercised with caution, though there are not
lacking signs that it was sometimes abused. The general policy,
according to Swift, was only to grant relief in this way in "cases
of intolerable cruelty, and inveterate hatred, and such gross
misbehaviour and wickedness as defeat the design of marriage, and
presumptive proof of a criminal connection ... , where the positive
proof required by law cannot be had."[1023] Yet this wise rule, if
legislative divorce is to be allowed at all, does not in all cases
seem to have been rigidly followed. The first instance of action by
the general court in such questions found in the records occurs in
1655. "Considering the sad complaint of Goody Beckwith of Fairfield,
in reference to her husband," and weighing the evidence presented
"of ye manner" of his "departure and discontinuance," the assembly
declares that if the "said Goody Beckwith, wife of Thomas, shall
uppon her oath testifie to the Magistrates that are shortly to keepe
Courte at Strattford, that her husband's departure was as others
have testified it to bee; and y^t shee hath not heard from him nor
of him any wayes since hee deserted her, the said Magistrates may
give her a bill of Divorce."[1024] This is, of course, an example of
granting the court jurisdiction in a particular case where perhaps
the evidence was otherwise insufficient to warrant a decree. Two
years later the general court frees Robert Wade of Seabrook from
his "Couenant of marriage" with Joane his "late wife," because of
the evidence presented to them of her "unworthy, sinfull, yea,
unnaturall cariage" in staying in England and "disowning fellowship"
with him for "neare fifteene yeares."[1025] Again in 1660, taking
time by the forelock in the behalf of Sarah North, the same body
orders that if she "hear not of her husband by that y^e seauenth
year be expired, (he haueing bene absent six already) ... then, she
shalbe free from her coniugal bonds."[1026] So also two years later,
"vpon good consideration and solid reasons"--of what nature the
record saith not--Bridget Baxter is likewise released; and because
the estate which her late husband left with her "is sold to pay
debts, all excepting a bed and her wearing aparell," the creditors
of "y^e said estate" are prohibited from "seizing extending or any
way troubleing y^e remainder, vntil y^e Court see cause to y^e
contrary."[1027] In 1670 Hanna Huitt "is at liberty to marry if
shee see cause," for the absence of Thomas during "eight years and
better."[1028]

  [Footnote 1023: SWIFT, _System of the Laws_, I, 193.]

  [Footnote 1024: _Conn. Col. Rec._, I, 275 (May 17, 1655).]

  [Footnote 1025: _Ibid._, 301 (Aug. 12, 1657).]

  [Footnote 1026: _Ibid._, 362 (Mch. 14, 1660).]

  [Footnote 1027: _Ibid._, 379 (May 15, 1662).]

  [Footnote 1028: _Ibid._, II, 129 (May 12, 1670).]

The case of Elizabeth Rogers is of special interest; for it is much
to be feared that the worthy deputies and magistrates regarded
"free thinking" as a sufficient cause for dissolution of wedlock.
In 1675 she laid her petition before the court of assistants,
which found "some difficulties as to a present issue finally."
Yet the case being one which called "for compassion to the woman
under so great distress and hazard," it was referred for settlement
to the general court, Mrs. Rogers having liberty meanwhile to
dwell with her father.[1029] Accordingly, at its next session the
assembly, accepting the "allegations and proofes presented to
clear the righteousness of her desires," released Elizabeth from
her "conjugall bond."[1030] A year later provision is made for
alimony with custody of the children; and now at last the reason for
Goodwife Rogers's "great distress and hazard," thus far carefully
omitted from the record, is clearly divulged. "Her husband," runs
the order, "being so hettridox in his opinion and practice," and
having even "in open Court declared that he did vtterly renounce all
the vissible worship of New England, and professedly declare against
the Christian Sabboth as a mere invention," the court grants the
mother and her father, Mathew Griswold, the care and custody of the
children "to be brought up and nurtured by them (in the admonition
and fear of the Lord)," also ordering John Rogers to pay "towards
the mayntenance of his children, the sume of twenty pownds" in
four equal annual instalments. In case "he fayle of payment, the
reversion of the land by sayd John Rogers made ouer to Elizabeth his
late wife, at Mamacock" is to be held as security.[1031]

  [Footnote 1029: _Ibid._, 292, note.]

  [Footnote 1030: _Ibid._, 292 (Oct. 21, 1676).]

  [Footnote 1031: _Ibid._, 293 (Oct. 18, 1677). For two cases of
  divorce, each for six years' desertion, see _ibid._, 293 (Oct.
  12, 1676), 322 (Oct. 11, 1677); one for five years' desertion,
  _ibid._, 327 (Oct. 18, 1677); and another for three years'
  "wilful" desertion, _ibid._, III, 23 (1678).]

Another case, that of Richard Edwards, deserves notice, for as
late as 1690 it affords us an example of the reference of public
questions to the elders. In October of that year Edwards presented
a petition for divorce from his wife Elizabeth. The general court
"declare they doe not find reason to grant" it.[1032] But Richard
is bound to have "releife therein if the law of God or man will
affoarde it him." So he comes before the court again "desireing
that a councill of able diuines upon his charge might be called
to consider his case and giue their resolves upon the same to the
court." The latter, though not "fully sattisfyed to alter their
apprehensions from what they were formerly, yet considering the
deplorable state of the petitioner, and the many intolerable
temptations he lyes open too, are willing to doe what they can
for his releife, and to recomend it to the Gen^{ll} Court October
next to consider the case, and doe desire that the Reuerend Mr.
Hooker" and five other ministers give their attendance upon the
court "to hear the case and grant what light they can come at" to
guide the issue.[1033] No definite ground for the petition, it will
be observed, is assigned; but one may safely hazard a guess that
"hettridox" opinions were again involved. At any rate, Richard's
plan was successful. The next October he was released "from his
conjugall tye," the court first "haueing considered the case with
seriousnesse and taken the best advice they could com at by the word
of God and learned and worthy diuines."[1034]

  [Footnote 1032: _Conn. Col. Rec._, IV, 37 (Oct. 9, 1690).]

  [Footnote 1033: _Ibid._, 52, 53 (May, 1691).]

  [Footnote 1034: _Ibid._, 59 (Oct. 8, 1691).]

As time went on, the cases of legislative divorce became few and
far between. The courts were felt to be the proper place for such
business.[1035] In 1753 Mary Larkum was freed from her husband Job
on account of his "barbarous and inhuman carriage toward her."[1036]
In 1761 the assembly set aside a divorce granted two years before by
the superior court for alleged wilful desertion;[1037] and at rare
intervals that body was appealed to during the next seventy-five
years.[1038] There was a sudden increase of business in 1837.[1039]
From that date until 1850 the annual crop of legislative divorces
is surprisingly large.[1040] Sometimes the "resolve" granting the
petition is curt and informal; while often it is entirely silent
as to the exact cause of complaint.[1041] It would seem that the
practice of intrusting proper judicial business to popular political
bodies was yielding the usual evil fruit; for at last, in 1849,
a statute provides that the "Superior Court shall have sole and
exclusive jurisdiction of all petitions for divorce."[1042]

  [Footnote 1035: In a pamphlet entitled _Appeal to the Public_
  (New Haven, 1788), full of errors, TRUMBULL attacks the divorce
  laws of his state. According to him (48), there is no example
  of divorce in New York from the settlement to 1787; and with
  equal inaccuracy he declares (46) that "in the Massachusetts and
  Connecticut codes printed at Cambridge 1672, there is no law
  respecting divorce. The law of Connecticut relating to it was
  made five years after, Oct. 11, 1677." For Connecticut he makes
  the further extraordinary statement (46) that "more than forty
  years from the settlement" elapsed "before any such law was in
  existence. No divorce was given by virtue of the law, till the
  year 1692. After this divorces were, for many years, sparingly
  given. But as they became customary, as there were no punishments
  for delinquents, and as the shame decreased with the growth of
  the practice, they have, within this few years, had a rapid
  increase. In less than a century [1692-1788], four hundred and
  thirty-nine (439) pair ... have been separated by divorce. This
  whole number, forty-eight couple excepted, have been divorced
  in the short term of fifty-two years. Between twenty and thirty
  pair ... are now annually "thus separated" in the Superior Court,
  besides those put asunder by the General Assembly. About twenty
  times as many are now divorced annually, as were in almost sixty
  years after the first settlement of the State; and about half as
  many as were divorced through the whole first century. Seventeen
  pair have been divorced last circuit." It is to be hoped that the
  statistics are more trustworthy than the history.]

  [Footnote 1036: _Conn. Col. Rec._, X, 168 (May, 1753).]

  [Footnote 1037: _Ibid._, XI, 544, 545 (May, 1761).]

  [Footnote 1038: Thus a divorce was granted in 1774: _ibid._, XIV,
  223, 387, 388; and two instances occurred in May, 1821: SWIFT,
  _Digest_, I, 23.]

  [Footnote 1039: An act of 1837 refers incidentally to divorces
  which have been or shall be "granted, either by the general
  assembly or by the superior court, on the application of a
  married woman."--_Pub. Stat. Laws_ (1837), 33; also in _Pub.
  Stat. Laws_ (general revision, 1838), 187. Query: Did this act
  invite and authorize appeal to the assembly in such matters?]

  [Footnote 1040: For the annual lists of divorces granted by the
  assembly see _Resolves and Private Acts of the State of Conn._
  (1837), 3 ff.; _ibid._ (1838), 13-16; _ibid._ (1839), 28-42;
  _ibid._ (1840),9-14; _ibid._ (1841), 23-28; _ibid._ (1842), 4-16;
  _ibid._ (1843), 10-20; _ibid._ (1844), 8; _ibid._ (1845), 15, 16;
  _ibid._ (1846), 15-19; _ibid._ (1847), 31-34; _ibid._ (1848),
  61-69; _ibid._ (1849), 46-56. The last of these divorces is that
  of Candace Williams, of New Haven, from F. Walter Williams, May,
  1850; _ibid._ (1850), 21.]

  [Footnote 1041: Here is a typical case, though often the resolve
  is much briefer:

  "Upon the petition of Polly M. Mead of Danbury, Fairfield County,
  and State of Connecticut, praying a bill of divorce from her
  husband, Martin Mead of said Danbury, which petition was duly
  served and returned:

  "_Resolved by the Assembly_, that the said Polly M. Mead be, and
  she is hereby divorced from the said Martin Mead, and is and
  forever hereafter shall be absolved from all obligations to the
  said Martin Mead by virtue of the said marriage contract, and is
  hereby declared to all intents and purposes, sole, single and
  unmarried.

  "Resolved that the said Polly ... have the sole charge, care
  and custody of her only child, and that the said Martin ...
  shall have no power or authority over him, in any way or manner
  whatsoever."--_Resolves and Private Acts_ (1837), 3.]

  [Footnote 1042: Act of June 19, 1849: _Pub. Acts of the State of
  Conn._ (Hartford, 1849), 17.]

_d_) _Rhode Island._--It is, however, in the judicial history of
Rhode Island that legislative divorce has left its deepest mark
and had its worst consequences. In the American colonies and
states this practice has perhaps never caused the same hardships
or flagrant injustice as it did in England previous to the act of
1857. Ordinarily, as in that country, relief has not in effect and
of necessity, owing to the cost of the proceedings, been entirely
denied to anyone because he was poor. On the other hand, popular
political assemblies, such as American state legislatures, are on
other grounds ill fitted for judicial functions. Their ignorance or
carelessness may produce results bad for society. For they possess
nothing like the legal knowledge and experience of the House of
Lords, in which petitions for divorce were first considered. Before
the legislative trial, as in England, the facts have not already
been fairly well ascertained in the law and spiritual actions;
and if the same harsh discrimination between rich and poor does
not appear, there is at least equal opportunity for jobbery and
favoritism. It is well that the custom practically has long ceased
to exist in the United States.

The legislation of Rhode Island begins with a conservative measure
in 1650. It is "ordered, that no bill of divorce shall stand legall
... butt that which is sued for, by the partie grieved" and not
"for any other case but that of Adulterie." This cause may be
proved by the injured person, "eyther by the man against the woman,
or by the woman against the man, before the Generall Assemblie"
which by the act is given exclusive jurisdiction in such questions.
After separation "each partie shall be as free from" the other as
"before they came together."[1043] But in 1655 a change is made
in jurisdiction, as also by implication, in the legal grounds
of divorce. First we have a striking example of the tendency of
Rhode Island to vest important functions in the officers of the
local community. "It is ordered, that in case of adulterie, a
generall or towne magistrate may grant a bill of divorce against
y^e partie offendinge uppon y^e demand of y^e partie offended."
Furthermore, other grounds of complaint are contemplated, though
they are not clearly expressed; for it is declared that "in all
other cases of separation or divorce between man and wife, all
persons shall addresse themselves for release to y^e Generall Court
of Commissioners"--the name which the assembly bore during the
parliamentary charter. Here we have the usual reservation of special
cases to the legislature, among which, it seems clear, separation
from bed and board is had in view.[1044]

  [Footnote 1043: _Rhode Island Col. Rec._, I, 231 (Oct. 26, 1650);
  _cf._ ARNOLD, _Hist. of R. I._, I, 322.]

  [Footnote 1044: _R. I. Col. Rec._, I, 312 (1655). "And if any
  persons in this Colonie," continues the order, "shall part
  themselves and marrie again without y^e authoritie of y^e
  Court of Commissioners, or be convicted of carnal copulation
  with any other [bigamy], they shall be punished as in case of
  adulterie."--_Ibid._, 312.]

In the early days the assembly did not lack business. At the June
session, 1655, John and Elizabeth Coggeshall, who had separated
"by mutuall and voluntarie consent," were each allowed on
separate petition to contract further marriage.[1045] Two other
cases occurred the same year;[1046] and later examples have been
collected. In 1665 the assembly "granted a divorce for the adultery
of the wife on her own confession, and at the same time sentenced
her to pay a fine and be whipped."[1047] At this time is also
recorded the pathetic story of Horod Long. In her petition addressed
to the royal commissioners,[1048] then in the colony, she says:
"I was upon the death of my father sent to London by my mother in
much sorrow and griefe of spiritt, and then taken by one John Hickes
vnknown to any of my friends, and by the said Hickes privately
married in the vnder Church of Paules, called Saint Faith's Church,
and in a little while after, to my great griefe, brought to New
England, when I was betweene thirteene and fourteene years of age."
After living two years and a half at Weymouth the pair came to Rhode
Island in 1640. "Not long after," Horod continues, "there happened
a difference betweene the said John Hickes and myselfe, soe that
the authority that then was vnder grace, saw cause to part vs, and
ordered I should have the estate sent me by my mother." Evidently
she was allowed to resume her maiden name. Here we catch a glimpse
of the earliest known divorce in Rhode Island. After the separation
Hickes fled to the Dutch,[1049] taking with him, in defiance of
the court's order, most of the wife's property. Thus she was "put
to great hardshipe and straight;" for she was friendless and "not
brought up to labour." To gain a maintenance, therefore, without
any formal celebration or other proceedings, she allowed herself
to be "drawne by George Gardener," and lived with him as his wife,
being so reputed by the neighbors, for near twenty years, bearing
him "many children." Clearly, as further shown by the testimony,
we have here a case of "common-law" marriage. Yet during this time
Horod alleges she had "much oppression of spiritt" regarding her
questionable condition; but Gardener, who had enjoyed the remnant
of her estate and all her labor, refused either to allow her a
separate support or to cease to trouble her. So in her distress
of mind she appealed to the commissioners for relief, asking
separate maintenance for herself and child, and that "hee may bee
restrained from ever meddling with" her. The commissioners referred
the matter to the governor, requesting him to "doe justice to the
poore petitioner;" and the governor placed it in the hands of the
assembly. That body was without compassion; for the woman had
"impudently" discovered "her owne nakedness." She and her partner
were treated as ordinary offenders, being each fined twenty pounds,
and warned henceforth not "to lead soe scandalous a life, lest they
feel the extreamest penalty that either is or shall be provided in
such cases."[1050]

  [Footnote 1045: _Ibid._, 319.]

  [Footnote 1046: Peter Talman got a divorce on his wife's
  confession of adultery: ARNOLD, _Hist. of R. I._, I, 320; and
  it "was ordered that Thomas Genings shall goe and demand his
  wife to live with him, but in case she refuse, he shall make his
  addresses to the General Court of Commissioners."--_R. I. Col.
  Rec._, I, 312. Ann Talman, the divorced wife of Peter, referred
  to, was later more than once whipped for her misconduct: _ibid._,
  II, 187,188.]

  [Footnote 1047: DURFEE, _Gleanings from the Judicial Hist. of R.
  I._, 35.]

  [Footnote 1048: Carr, Cartwright, and Maverick.]

  [Footnote 1049: Is this the same "John Hicks" who in New
  Netherland obtained a divorce in 1655? See sec. iii, below.]

  [Footnote 1050: _R. I. Col. Rec._, II, 99 ff. At the same time,
  with astonishing inconsistency, it was enacted that similar
  offenders shall be amenable to the laws punishing fornication,
  which are made more stringent; but all present reputed marriages
  are declared valid and the children legitimate (104, 105). By
  this rule Horod and George should either have been regularly
  divorced or ordered to cohabit as husband and wife. In any event
  their punishment was unjust.]

To this same eventful year, 1667, belongs the only case of partial
divorce yet discovered. Richard and Mary Pray joined in a petition
asking a complete dissolution of their nuptial bond. The assembly
denied their prayer, but allowed them to live apart without the
right of remarriage.[1051] On the powers of the general court
at this time Arnold makes the following comment: "Not only were
divorces granted and a separate maintenance awarded to the wife,
but the whole property of the husband was attached and held by the
Assembly, until the provisions of the decree had been satisfied. In
the case of John Porter ... they went even further, and annulled
all transfers of property ... made by him since the separation from
his wife, which had not already been recorded. Upon his settling
a satisfactory estate upon his wife these disabilities were
removed."[1052]

  [Footnote 1051: _Ibid._, 188, 189. In the same year Robert
  Colwell got a divorce from his wife Mary: _ibid._, 204.]

  [Footnote 1052: ARNOLD, _Hist. of R. I._, I, 320. This case came
  before the assembly in 1665: _R. I. Col. Rec._, II, 119-21; _cf._
  DURFEE, _Gleanings from the Judicial Hist. of R. I._, 35.]

After the establishment of the royal charter the ordinary
jurisdiction in divorce matters was vested in the court of trials,
composed of the governor and assistants who formed a part of the
assembly; but the latter body continued to act when it saw fit.
But "it would seem," says Arnold, "that the separate powers of the
magistrates were not distinctly defined or well understood, for a
censure was passed upon John Green, Assistant of Warwick, for having
granted, by his own authority, a bill of divorce. This proceeding
was sharply reproved by the Assembly, as being a usurpation of
judicial power in superseding the action of the Court of Trials.
The town of Warwick declared the divorce to be legal, and protested
against this censure upon their leader."[1053] In this case it
may perhaps be right to infer that a reminiscence existed of the
order of 1655, already cited, vesting jurisdiction in the principal
cases of divorce in a single "town" or "general" magistrate, the
latter term applying to an "assistant" under the royal charter.
The assembly in 1676 released John Belou "from all matrimonial
engagements" to his wife Hannah.[1054] An entry in the records of
Muddy River, Mass., for July 30 of the same year, informs us that
John "Lewis came from Road Island where his wife gave him a paper of
dismission from her in Novr. last & libertie to marrie another woman
& he is now engaged to y^e widow Williams to marry her, by theire
own confessions."[1055]

  [Footnote 1053: ARNOLD, _Hist. of R. I._, I, 365 (Nov., 1672).
  This bill was granted to Richard and Mary Pray, whom the assembly
  had permitted to live apart in 1667: _R. I. Col. Rec._, II, 479.]

  [Footnote 1054: _Ibid._ (1664-77), 543.]

  [Footnote 1055: The entry is marked "returned to county court":
  _Early Records of Muddy River_, 69.]

In 1683 we have an interesting example of the summary punishment
of a divorced man by the legislature, doubtless for the misconduct
which led to the decree. "The power of the Assembly to expel its
members was rarely exercised, but at the adjourned session, a
deputy from Warwick, against whom complaints were brought and a
divorce granted on petition of his wife," at this time, "was deemed
unfit to hold his seat, and was therefore expelled."[1056] Two years
thereafter a law was passed making "five years neglect or absence
of either party" a ground for divorce;[1057] but the period was
extended to seven years in 1749.[1058]

  [Footnote 1056: ARNOLD, _op. cit._, I, 470 (June, 1683).]

  [Footnote 1057: _Ibid._, 483 (1685).]

  [Footnote 1058: See _Acts and Laws_ (Newport, 1767), 74,
  containing the changes made in 1749 and 1754. The superior
  court is authorized in its discretion to grant alimony from the
  husband's estate.]

According to Judge Durfee, after power to grant divorces came to
the superior court in 1747[1059] the jurisdiction of the assembly
"languished;" but "it continued, nevertheless, to be invoked in
exceptional cases,[1060] which either were not provided for by the
statute or were too flimsey or too whimsical for judicial treatment.
There is an uncanny tradition, still vaguely surviving, that in
such cases grave legislators were sometimes plied in the lobby with
solicitations and arguments too peculiar for public discussion.
After the constitution the more usual course for the assembly was,
not to hear the petition, but to authorize the supreme court to hear
it by special act, if without such act the court was incompetent.
Divorces, however, were granted as late as 1850. In January, 1851,
the assembly had several petitions pending before it and transferred
them, together with all documents and depositions in support of
them, to the supreme court, 'where,' the resolution of transfer
tartly remarks, 'the said petitions should have been filed,' and at
the same time authorized and required the court to try them."[1061]

  [Footnote 1059: In that year the court of trials, composed of the
  governor and assistants or councillors, which with no essential
  change in composition and functions had existed from about 1644,
  was superseded by a regular law tribunal, the superior court of
  judicature: ARNOLD, _op. cit._, II, 157. But already in 1729 a
  "Superior Court," composed of at least five members of the upper
  branch of the legislature, and apparently lower than the court of
  trials, was established: _ibid._, 90. In general on the various
  stages in the history of the court of trials, see _ibid._, I, 210
  (1647), 302 (1663-64), 460 (1680); II, 16 (1704).]

  [Footnote 1060: In Oct., 1749, a divorce was granted by the
  assembly; and this is the first Arnold had noticed, probably
  meaning in that period: _op. cit._, II, 175.]

  [Footnote 1061: DURFEE, _Gleanings from the Judicial Hist. of R.
  I._, 35, 36. See _Laws of R. I._ (1851), 796, where petitions for
  divorce on account of wilful desertion are transferred by the
  assembly to the supreme court; and similar reference, _ibid._
  (1846), 57, 85.]


II. ENGLISH DIVORCE LAWS IN ABEYANCE IN THE SOUTHERN COLONIES

It is an established principle of jurisprudence that colonists
settling in an uninhabited land take with them all the laws of the
mother-country which are suited to their new circumstances.[1062]
This doctrine is sustained by the decisions of the Courts.[1063]
It follows, according to the views strongly supported by Bishop,
"that all such laws of England, relating to marriage and divorce,
by whatsoever names there known, are, as they existed at the
respective times of the settlements here, common law in our several
states."[1064] The law of divorce which the American colonists
brought with them in the seventeenth century allowed a separation
from bed and board by decree of an ecclesiastical court, and for
two causes only, adultery and cruelty. Absolute divorce was not
recognized. But while the colonists carried with them the English
law, they did not bring likewise the English courts. Therefore it
"results that these laws can practically be administered with us
only as far and as fast as tribunals are established on which,
directly or by implication, is conferred the jurisdiction." The
laws slumber, so to speak, until quickened through the creation of
courts by the legislature. "Between the arrival in a colony of the
law from the mother-country, and the organization of courts for its
enforcement, some space of time must intervene. And during such
space the law must be practically in abeyance, or inoperative."
Should a "tribunal be created with jurisdiction extending to a
part only of the law, such part will become operative, but the
rest will remain inert as before."[1065] Besides, for our present
purpose it is highly important to note that the English courts "have
specifically held, that the matrimonial law of the ecclesiastical
tribunals is a branch of the law which colonists take with
them."[1066]

  [Footnote 1062: BISHOP, _Mar., Div., and Sep._, I, § 116. "If
  an uninhabited country is discovered and planted by British
  subjects, the English laws are said to be in force there, for the
  law is the birthright of every subject."--STORY, _Commentaries_,
  I, §§ 147 ff. _Cf._ KENT, _Commentaries_, I, 343, 473; and
  BLACKSTONE, _Commentaries_, I, 107, who regards the colonies as a
  conquered country.]

  [Footnote 1063: BISHOP, _First Book_, §§ 51-59; _idem_, _Mar.,
  Div., and Sep._, I, § 117.]

  [Footnote 1064: The expression "all laws" is used advisedly.
  Though "in some of the American cases the term 'common law' is
  used, the broad meaning of the term, not its narrow and technical
  one, is intended."--BISHOP, _Mar., Div., and Sep._, I, § 119;
  citing C. _v._ Knowlton, 2 _Mass. Rep._, 530, 534: Sackett _v._
  Sackett, 8 PICKERING, _Reports_, 309, 316. _Cf._ JEFFERSON,
  _Works_, VI, 65; VIII, 374, 379; IX, 282.]

  [Footnote 1065: BISHOP, _op. cit._, I, §§ 115-37, where the
  authorities for each step in the argument are cited.]

  [Footnote 1066: _Ibid._, §§ 119, 109. See Latour _v._ Teesdale, 8
  TAUNT., _Eng. Com. Pleas Rep._, 830; Rex _v._ Brampton, 10 EAST,
  _King's Bench Rep._, 282; Caterall _v._ Caterall, 1 ROB., _Ec._,
  580, 581; and Lauderdale Peerage Case, 10 _Law Reports_, 744,
  745.]

Since, therefore, the church courts were never established in any
of our American provinces, it follows by the foregoing rule that
there was no tribunal competent to decree a divorce or separation
in such of them as had not assigned the jurisdiction in question
to some other body. This was the case throughout the southern
colonies. Their statute books are entirely silent on the subject of
divorce jurisdiction. Judicial separations from bed and board did
not exist; nor prior to the Revolution has there been discovered a
single case of absolute divorce by legislative act--a practice so
common in New England during the same period--although Parliament
had set the example before the close of the seventeenth century. On
the other hand, separations by mutual consent, or on account of bad
conduct, or parol[1067] separations in some form, did occur, as they
always do occur in any society; and it is from the meager records of
judicial actions regarding separate maintenance in such cases that
one learns something concerning the state of southern law and custom
before the Revolution.

  [Footnote 1067: On "parol separation" see BISHOP, _Mar., Div.,
  and Sep._, I, §§ 1203-52.]

In Virginia we find the county court, which had gained a share
of the equity jurisdiction,[1068] hearing and granting petitions
for separate alimony. Thus in 1691 the prayer "of Ruth Fulcher
for separate maintenance against her husband, John Fulcher," was
referred by the governor and council, constituting the "general
court,"[1069] to the justices of a county court, "who, after hearing
the testimony, decided in favour of the plaintiff."[1070]

  [Footnote 1068: HENING, _Stat._, I, 303; V, 491.]

  [Footnote 1069: This court was so called since 1662: HENING,
  _Stat._, II, 58; _cf._ HOWARD, _Local Const. Hist._, I, 390 ff.]

  [Footnote 1070: June 16, 1691: PALMER, _Calendar of Va. State
  Papers_, I, 29.]

Now, by the English law alimony could not be granted in an
independent action, but only as incident to a divorce by decree of
the ecclesiastical court. Moreover, in Virginia no colonial statute
had ever conferred this portion of the ecclesiastical jurisdiction
upon the local courts or upon any other tribunal. How, then,
consistently with the principles just stated, could a petition
for separate maintenance be entertained by the county magistrates
as falling within their equity jurisdiction? From two decisions
in the early part of the present century the dual innovation is
represented as the result of justifiable self-help under the stress
of circumstances; while, in the absence of a statute authorizing
it, the assumption of the power of the ecclesiastical court by the
equity tribunal is looked upon as a natural and logical course. In
the first of these cases, arising in 1810, the superior court of
chancery affirms its own jurisdiction in suits for alimony. The
chancellor, after conceding that the authorities are in doubt and
divided, holds "that in every well-regulated government there must
somewhere exist a power of affording a remedy where the law affords
none; and this peculiarly belongs to a court of equity; and as
husband and wife are considered as one person in law, it is evident
that in this case the law can afford no remedy; which is universally
admitted to be a sufficient ground to give this court jurisdiction,
and therefore it must entertain the bill."[1071]

  [Footnote 1071: Case of Purcell _v._ Purcell (1810), 4 HEN. AND
  MUNF., _Reports_, 506-19. "It is not commonly thus assumed that
  a court of equity will take jurisdiction of a subject simply
  because the common law tribunals do not."--BISHOP, _Mar., Div.,
  and Sep._, I, § 1398, note 5; STORY, _Equity Jurisprudence_, §
  62.]

Thirteen years later this "reasoning of the chancellor on the
point of jurisdiction" is pronounced "sound," in a suit for
separate maintenance which was carried from the chancery court of
Fredericksburg to the Virginia court of appeals. In his opinion
Judge Carr says: "I find no case with us, in which the subject
has been before this court. Having no Ecclesiastical Tribunal,
the powers of that court seem to have been considered as vesting
originally in the old General Court. From thence, some of them have
been distributed to other courts, as they were branched out.... I
know of no law which has given to any court the trial of matrimonial
causes, except so far as relates to incestuous marriages, as to
which a power is given to the Court of Chancery to annul them."
Judge Tucker, he continues, in his edition of Blackstone,[1072]
"says with respect to suits for alimony after a divorce _a mensa
et thoro_, as there is no court in Virginia which possesses
jurisdiction in such cases, there can be no room for suits of this
nature; unless, perhaps, the High Court of Chancery should sustain
them as incidental to its equitable jurisdiction." "I believe," adds
Judge Carr, "that in practice the County Courts, sitting as courts
of equity, have assumed the power of giving separate maintenance in
cases of separation; but by what rule they have been regulated, I
know not."[1073]

  [Footnote 1072: TUCKER, _Blackstone's Commentaries_ (1803), III,
  94.]

  [Footnote 1073: Case of Almond _v._ Almond (1823), 4 RAND.,
  _Rep._, 662-68; also in 15 _Am. Decisions_, 781.]

But the colonial and state courts of equity, in "exercising the
authority, not of granting divorces, but alimony, where the latter
was the only relief prayed," seem to have acted contrary to the
more approved legal rule; and Bishop suggests that their course
may have been influenced by a misunderstanding of the policy of
the commonwealth. In the time of Cromwell "the ecclesiastical
courts were abolished; thereupon the equity judges were expressly
authorized, it appears by a clause in their commissions,[1074]
to decide causes of alimony, and after the Restoration their
decrees were by statute confirmed. Misapprehensions of this matter
have sometimes led to the inference that the equity courts took
cognizance of the question simply as of their own appropriate
jurisdiction, because of the extinguishment of ecclesiastical
tribunals, or as succeeding to them. But this obviously was not so;
since, had the jurisdiction been theirs, they would have exercised
it as well when there were ecclesiastical courts as when there
were none, for the latter never claimed it, their alimony being
only an incident in the divorce suit; and since any jurisdiction
which they might assume as successors of the defunct ecclesiastical
courts could have been only to decide causes of divorce, with their
incidental alimony, not to grant an alimony before unknown." The
granting of separate alimony without a divorce is now common in the
states;[1075] and, from whatever source the courts have derived
their power, it is entirely justifiable as satisfying a social
need. In the absence of statutory sanction justice may demand
that some existing body shall promptly grant relief; though it is
doubtless true that the authority to do so cannot be _logically_
assumed as the legitimate inheritance of equity tribunals from the
ecclesiastical courts.

  [Footnote 1074: BISHOP, _op. cit._, I, §§ 1394, 1395; following
  FONBLANQUE, _Equity_, 97, note. In Helms _v._ Franciscus, 12
  BLAND, 544 ff., it is taken for granted that the equity judges
  of the commonwealth _assumed_ the jurisdiction in question as
  naturally coming to them; nothing is said of a statute conferring
  it.]

  [Footnote 1075: The subject is worked out in detail by BISHOP,
  _op. cit._, I, §§ 1383-1421.]

The colonial law of Maryland on the subject does not differ
essentially from that of Virginia, although there are some
divergences of interest. Judicial divorces were not granted. A
number of early cases show that the high court of chancery took
cognizance of suits for separate alimony as naturally belonging
to its jurisdiction in the absence of ecclesiastical courts. Of
these perhaps the most important for the facts presented, though
the precise ground of the judgment is not clearly expressed, is
the action of Galwith _v._ Galwith which in 1689 came before the
provincial court on appeal from the court of Calvert county. The
record of the lower tribunal states that at the June term, 1685,
"the appellee, being the wife of the appellant," presented a
petition "setting forth, that within a few years certain false,
evil, and scandalous reports were raised and spread abroad against
her by some malicious persons," causing "great dissention and
difference between her husband and herself, insomuch that he
refused to entertain her in his house, or allow her a competent
maintenance elsewhere, by which she was reduced to great poverty and
want." Whereupon, in June, 1684, she "applied to the county court
for relief and redress therein, at which time the court hearing
and considering the premises, granted an order that her husband
should allow ... her 2000 wt. of tobacco for her maintenance the
year next ensuing." Now the "year was completed and ended, and her
said husband not being reconciled nor willing" to take back either
herself or the child, "which she hitherto had maintained," she
"would in a short time be brought to extreme poverty and necessity
without further assistance from the court." Therefore she prayed
that the court would give order that her husband might "take her
home to dwell with him, which she was desirous to do, or else
that he might be enjoined to allow her a competent maintenance
for herself and child." Accordingly the "said John Galwith" was
commanded to "take home his said wife Jane Galwith, to dwell with
him as man and wife ought to do; otherwise to allow ... her 3000 wt.
of tobacco a year, commencing from that day."

John then appealed to the higher tribunal, assigning for errors: (1)
that the county court passed judgment against him upon reading the
petition without calling him to answer, "so that he is condemned
unheard contrary to the law, and against the statute of _Magna
Charta_;" (2) that the county court had "no jurisdiction of the
matter in difference ... , being touching Alimony, which is not
recoverable there but in chancery, or the court of the ordinary;"
(3) that the county court cannot take "cognizance of matters
relating to causes of separation and divorce between man and wife,
but such matters are only triable and examinable in the court of the
ordinary."[1076] The judgment was reversed, but on what particular
ground we are not told; so that from the apparent inconsistency
of the last two specifications, one might be in doubt, were the
fact not well established, whether the high court of chancery had
jurisdiction; for surely alimony is strictly a matter "relating
to causes of separation and divorce," cognizance of which is said
in the report to belong in effect to the bishop of London as
ordinary. One point, however, seems clear: the county court had no
power in such causes; and that is what one would infer according
to the doctrine of the Virginia judges before quoted; for, unlike
the county courts of Virginia, those of Maryland had no equity
jurisdiction.[1077]

  [Footnote 1076: Case of Galwith _v._ Galwith, 4 HARRIS AND
  MCHENRY, _Reports_, 477, 478.]

  [Footnote 1077: The act of 1639, engrossed but not finally
  approved, gave the so-called "county court" power in certain
  matrimonial causes belonging properly to ecclesiastical courts:
  but this tribunal was really the predecessor of the provincial
  court: BOZMAN, _Hist. of Md._, 106, 128, 129, 131, 604.]

Some other decisions of a later date throw light on the colonial
practice. In Macnamara's case, involving alimony, decided before the
Revolution, "the defendant claimed an appeal to the Arches Court
in England. His right thereto seems to have been acknowledged, it
does not appear on what principle."[1078] Again, in 1828, it was
declared in Farnshill _v._ Murray that "there never having been an
ecclesiastical court, and no power to grant a divorce by annulling
for any cause, a contract of marriage which was originally valid
ever having been conferred upon any of the courts of justice, it
follows that a divorce can only be granted by an act of the general
assembly;" but in the provincial era alimony was customarily
granted by the court of chancery.[1079] Similar evidence two years
later is afforded by the opinion in Helms _v._ Franciscus, where
the parties had a written agreement to live apart. In the absence
of the ecclesiastical court it is affirmed, "the high court of
chancery always had, even under the provincial government, entire
jurisdiction of such claims for alimony, or for separate maintenance
out of the husband's estate founded on his misconduct," but chancery
may not meddle with causes of marriage and divorce. Moreover, it
is laid down, apparently as the rule in the colonial as well as in
the modern period, that separate maintenance may be assigned by the
equity court only on the two grounds of misconduct admitted in the
ecclesiastical tribunals as proper reasons for a divorce _a mensa
et thoro_.[1080] It may also be noted that the jurisdiction in
suits for alimony, assumed prior to the Revolution by the courts of
equity, was later confirmed by statute. In 1777 it was enacted that
the "chancellor shall and may hear and determine all causes for
alimony, in as full and ample a manner as such causes could be heard
and determined by the laws of England in the ecclesiastical courts
there."[1081] Commenting on this act Bishop remarks that "as the
ecclesiastical courts in England had no power over alimony except
in connection with divorce, it would not have been an extravagant
interpretation to derive from this statute authority to decree
both divorce and alimony, to the extent exercised in those courts.
But it was held, instead, that the wife could have under it the
sort of alimony we are considering, for any cause authorizing in
England a divorce from bed and board, and even sometimes for other
causes;[1082] yet not the divorce."[1083]

  [Footnote 1078: Macnamara's case, 2 BLAND, 566, note: BISHOP,
  _op. cit._, I, § 1396 n. 3.]

  [Footnote 1079: Case of Farnshill _v._ Murray, 1 BLAND, 479 ff.;
  18 _Am. Decisions_, 344-50. _Cf._ the case of Utterton _v._
  Tewsh, FERGUSON'S _Reports of Consist. Court of Sc._ (1811), 23.]

  [Footnote 1080: That is, for cruelty and adultery: case of Helms
  _v._ Franciscus (1830), 2 BLAND, 544 ff.; 20 _Am. Decisions_, 402
  ff. _Cf._ the case of Wallingsford _v._ Wallingsford, 6 HAR. AND
  J., 485.]

  [Footnote 1081: By the same act it is provided that "the general
  court may inquire into, hear and determine, either on indictment
  or petition of either of the parties, the validity of any
  marriage, and may declare any marriage, contrary to the table
  in this act [table of forbidden degrees] or any second marriage,
  the first subsisting, null and void," with appeal to the "court of
  appeals."--_Laws of Md._ (Annapolis, 1799), I, Feb., 1777, c. xii,
  par. xiv, xv.]

  [Footnote 1082: Jamison _v._ Jamison, 4 _Md. Ch._, 289, 295. This
  case is thus more liberal than Helms _v._ Franciscus just cited.]

  [Footnote 1083: BISHOP, _op. cit._, I, § 1396. _Cf._ Hewitt _v._
  Hewitt, 1 BLAND, 101: Crane _v._ Meginnis, 1 GILL AND J., 463, or
  19 _Am. Decisions_, 237; Wright _v._ Wright's Lessee, 2 _Md._,
  429, or 56 _Am. Decisions_, 723.]

It is just possible, finally, that absolute divorces were granted
in Maryland by the colonial assembly--a common practice after
the Revolution. "In this state," it was held in 1829, "the act
of divorcing man and wife has been performed by the legislature,
for the want, perhaps, of ecclesiastical authority to effect it,
or borrowing, perchance, the power from the parliament of Great
Britain.... However this may be, divorces in this state, from
the earliest times have emanated from the general assembly, and
can now be viewed in no other light than as regular exertions of
legislative power." But no evidence is forthcoming for the "earliest
times."[1084]

  [Footnote 1084: Case of Crane _v._ Meginnis, 1 GILL AND J., 468;
  19 _Am. Decisions_, 237-42. _Cf._ also Wright _v._ Wright's
  Lessee, 2 _Md._, 429, or 56 _Am. Decisions_, 723-33.]

The law and custom prevailing in the Carolinas are in harmony with
those of Virginia and Maryland, and need not here be considered.
The same is probably true of Georgia, as appears from the case
of Head _v._ Head, which will receive some notice in another
connection.[1085] From the opinion in this suit we infer that in
the colonial period the English common law, including the law
administered by the ecclesiastical courts, governed the subject of
divorce. By an act of February 25, 1784, the common law and such
statutes as were in force "in the Province of Georgia in 1776,
so far as they were not contrary to the constitution, laws, and
form of government of the state," were adopted. Accordingly, up to
1784 an absolute divorce could not be given, and the only causes
recognized for a partial divorce were those of the common law. But
even such limited divorces were not granted; for there had been no
legislation on the subject, and therefore no courts existed in the
colony competent to act. Through exercise of its sovereign power
the legislature might, indeed, have granted divorces, partial or
complete, after the British model; and according to the opinion
in this case the legislature had exercised this function for
some time prior to 1798, when the constitution transferred the
primary jurisdiction in all cases from the legislative body to the
courts. "We have searched in vain," says Justice Nisbet, "for any
legislation upon the law of divorce before 1798. If the legislature
had passed laws declaring what would be good cause for divorce at
any time anterior to 1798, without controversy those laws would have
repealed the common law, and the _legal principles_ mentioned in
the constitution would have been referable to them. But there were
no such laws passed. It is true that, before 1798, the legislature
... did grant divorces upon special application.... These acts do
not even exhibit the grounds upon which they were passed." Thus
far the judge, apparently, is speaking of the period between the
Revolution and the constitution of 1798. We are not told by him
whether any legislative divorces were granted in the colonial era,
though that is highly improbable. At any rate, it is nearly certain
that the common law was not repealed by any provincial statute. For
"no such laws have come down to us. If there were any ... they are
too deeply buried beneath the deposits of time for our power of
revelation;" though, probably, a "diligent search in the colonial
records preserved in England, but not accessible to this court,
might convict us of error."[1086]

  [Footnote 1085: See chap. xvii, sec. ii.]

  [Footnote 1086: Case of Head _v._ Head (1847), 2 KELLY, _Georgia
  Reports_, 191-211. _Cf._ on the same point, Finch _v._ Finch, 14
  _Ga._, 362: and Brown _v._ Westbrook, 27 _Ga._, 102, which varies
  from the two other decisions.]


III. ARBITRATION AND DIVORCE IN THE MIDDLE COLONIES

Touching the question of divorce the Middle Colonies held a place
much closer to the extreme conservatism of the South than to the
broad liberalism of New England. In New Netherland, indeed, it
was natural that the Reformation doctrines on this subject should
prevail. The civil courts exercised every kind of matrimonial
jurisdiction. Already we have seen them trying cases of breach of
promise and annulling marriages for the lack of legal forms.[1087]
So also they possessed full power to dissolve the nuptial bond.

  [Footnote 1087: See chap. xiv, above.]

As early as 1655 John Hicks obtained a divorce on account of his
wife's adultery, with leave to remarry. Two years later John George
Baldingh was granted a similar decree on the same ground. Anneke
Adriaens was released from her husband for bigamy in 1664.[1088]
In 1674, the year of interregnum, Governor Colve, with the fiscal
and council, heard the petition of Catrina Lane for "letters
of divorce" from her husband Daniel, who, being accused of
committing a heinous crime, had broken jail and absconded. After due
consideration, the court ordered that a "divorce and separation"
should be granted if the husband do not within six months appear
and "purge" himself of the charge.[1089] The allowance of this
delay before a decree of divorce shall take effect, in case of
absence of the defendant, appears to be the rule; for in the same
year the prayer of Abigail Messenger, deserted wife of Richard
Darlin, for divorce with the privilege of remarriage, is for "cogent
reasons, provisionally postponed ... six months, during which time
the supplicant's husband is commanded to purge himself from this
accusation," or in default the supplicant shall be permitted to urge
her suit.[1090] Thirteen years earlier Laers, the Finnish priest
who later got himself into trouble by performing his own wedding
ceremony, is said, in a "meeting," to have secured a divorce from
his wife on account of her elopement with Jacob Jongh.[1091]

  [Footnote 1088: These three cases are in the _New York Colonial
  MSS._, 1630-1664: Dutch: Part First, VI, 49; VIII, 415, 417, 419;
  X, 291, 293. They were first brought to light by COWLEY, _Our
  Divorce Courts_, 32, 33.]

  [Footnote 1089: This was a case of alleged incest: O'CALLAGHAN,
  _Doc. Rel. to Col. Hist., N. Y._, II, 704.]

  [Footnote 1090: Case of desertion and adultery: _N. Y. Col. MSS._
  (translation from the Dutch), XXIII, 248; also, with slightly
  different translation, in O'CALLAGHAN, _op. cit._, II, 730.]

  [Footnote 1091: Case of elopement with adultery, Dec. 15, 1661:
  GERARD, _The Old Stadt Huys_, 386, 387; also in O'CALLAGHAN, _op.
  cit._, XII, 359, where we read: "This fine priest demanded with
  great circumstantiality in the above-mentioned meeting a decree
  of divorce on account of his wife's flight and received the same,
  subject to your Honors' approval, on the 15^{th} of December"
  (letter from Beeckman to Stuyvesant and others, dated at Altona,
  South River, Feb. 1, 1662).]

In 1659 we find what appears to be a cause of separation from bed
and board with assignment of alimony. Since "Nicolaas Velthuyzen
cannot resolve to live any more in love with his wife," therefore
it is decreed "that he shall provisionally supply her with one
fat hog, two skepels of maize, according to his own offer for her
support, and further disposition shall be made for the maintenance
of her and her children."[1092] To this same year, also, belongs a
case which seems to be the complement of the English action for
jactitation. The plaintiff brings suit because the defendant has
privately accused him of having another wife; whereupon the court
orders the accuser to prove his charge.[1093] There is also mention
of a separation by mutual agreement made originally before the local
commissaries at Albany. A record of the higher court at New York in
1670 recites: "Whereas strife and difference hath arisen betweene
Albert Andriesen and Gertruyde Vosburgh his wife with y^e which
y^e commissaryes at Albany being acquainted" and, finding their
"Inclinations averse from living together as man and wife ought
to doe they did by consent make an Agreement of their Seperation
as likewise how their estates are to be divided betweene them."
Therefore the court doth "Ratifye and Confirme what hath beene
Already ordered as to that perticular by y^e which each partye is
to res[t] satisfyed without giving any further trouble upon this
occasion."[1094]

  [Footnote 1092: _Records of New Amsterdam_, III, 73.]

  [Footnote 1093: _Ibid._, 70. _Cf. ibid._, 370 (1661), for mention
  of a case of seduction.]

  [Footnote 1094: At "ffort James in New Yorke the 24th day of
  October 1670."--MUNSELL, _Annals of Albany_, IV, 20.]

"Tender parents," writes Mrs. Earle, "could not unduly shelter a
daughter who had left her husband's bed and board. He could promptly
apply to the court for an order for her return to him, and an
injunction to her parents against harboring her. It has been plain
to see in all such cases which I have chanced upon in colonial
records that the Court had a strong leaning towards the husband's
side of the case."[1095] This fact appears in a case coming before
the local authorities of New Amsterdam in 1665, which, moreover,
affords an illustration of the sensible Dutch custom of arbitration
in such domestic differences. A trouble having arisen between Arent
Jureaensen Lantsman and his spouse Beletje, the burgomasters and
schepens refer the matter for adjustment "to reverend Dome. Johannes
Megapolenses and Dome. Samuel Driesius." If the arbitrators fail
to settle the difficulty by next court day, warning is given that
"proceedings may be expected according to the Style and custom of
law, as an example to other evil housekeepers." Later Lantsman
avers that his wife's parents will not listen to the arbitrators;
and so he prays that the court may order his wife to return to him.
Thereupon Beletje appears and says she will not return because
her husband has often broken his promises to amend. So the court
takes a hand on the husband's behalf, forbidding the wife's father,
Lodowyck Pas, to keep her above fourteen days, during which time
the consorts must be reconciled or else apply to the court again.
At the same time Lantsman is duly warned that if further complaint
of bad behavior be made, he shall be handed over to the "Honorable
Governor General to be punished by his Honor in such manner whether
by separation from bed and board imprisonment or otherwise as
by his Honor shall then be deemed proper as an example to other
householders." But the wife's parent seems to have disregarded the
mandate. For, later, sworn jurymen decide that "Beletje Lodowyck"
must return to her husband, and that her father shall no longer
harbor her without the husband's consent; and this verdict is
approved by the court.[1096] "A curious feature of this marriage
quarrel," adds Mrs. Earle, "is the fact that this Lantsman, who was
so determined to retain his wife, had been more than recreant about
marrying her. The banns had been published, the wedding-day set,
but Bridegroom Lantsman did not appear. Upon being hunted up and
reprimanded, his only proffered excuse was the very simple one that
his clothes were not ready."[1097]

  [Footnote 1095: EARLE, _Colonial Days in Old New York_, 48.]

  [Footnote 1096: For this case (July 11, 1665) see VALENTINE,
  _Manual of the Corporation_ (1852), 486, 487, 489, 494.

  Some further details are given in the _Records of New Amsterdam_,
  V, 262-65: "Lodowyck Pas, his wife and daughter (the wife of
  Arent Jurriaansen Lantsman), entering the aforesaid Lantsman's
  wife's request to be divorced from her husband, as she cannot
  keep house with him. Decreed to postpone the matter until the
  next court day when the said Lantsman is to be heard and the
  aforesaid Lodowyck Pas was allowed to retain his daughter with
  him during that time" (262). Then Beletje produces a remonstrance
  against being obliged to go to her husband (263). Lantsman next
  appears, and is ordered to produce his witnesses by next court
  day (264, 265). No further mention of the matter appears in
  these documents. Whether the proceedings just indicated were
  preliminary or after failure of arbitration is, of course, not
  clear; but the former seems more probable.]

  [Footnote 1097: EARLE, _op. cit._, 49.]

A few other cases of separation, occasionally with arbitration, have
been gleaned, some of them occurring long after the English rule
began. For example, William Hallet petitions "that his wife may be
obliged to live with him agreeably to the decision of referees,
or in the case of her refusal to comply, that he be granted a
divorce."[1098] Whether his prayer was allowed we are not told. In
1697 Daniel Vanolinda prayed "that his wife be 'ordyred to go and
live with him where he thinks convenient.' The wife's father was
promptly notified by the Albany magistrates that he was 'discharged
to shelter her in his house or elsewhere, upon Penalty as he will
answer at his Perill;' and she returned to her husband."[1099] The
same writer from whom the record of this case is borrowed says
"Nicasius de Sille, magistrate of New Utrecht and poet of New
Netherland, separated his life from that of his wife because--so he
said--she spent too much money," and also because "she was too fond
of schnapps,--which her respected later life did not confirm."[1100]
Likewise "when Anniatje Fabritius requested an order of court for
her husband to vacate her house with a view of final separation
from him, it was decided by the arbitrators that no legal steps
should be taken, but that 'the parties comport themselves as they
ought, in order that they win back each others affections, leaving
each other in meanwhile unmolested'--which was very sensible
advice. Another married pair having 'met with great discouragement'
(which is certainly a most polite expression to employ on such a
subject), agreed each to go his and her way, after an exact halving
of all their possessions."[1101] But the most remarkable case of
reconciliation through help of the court is that of Anneke Schaets,
daughter of Domine Schaets, first minister at Fort Orange. It
seems, according to Mrs. Earle, that her conduct had in some way
scandalized her father's congregation, so that she "refrained from
contaminating attendance at communion;" whereupon the dominie, out
of resentment, quarreled with the brethren and persisted in "ripping
up new differences and offences." At last, after being removed from
his clerical office for disobeying a judicial summons, matters were
adjusted. Anneke "was ordered off to New York to her husband, 'with
a letter of recommendation; and as she was so headstrong, and would
not depart without the Sheriff's and Constable's interference, her
disobedience was annexed to the letter.'" The record of the court
made in July, 1681, runs as follows: "Tho: Davidtse promisses to
conduct himself well and honorably towards his wife Anneke Schaets,
to Love and never neglect her, but faithfully and properly to
maintain and support her with her children according to his means,
hereby making null and void all questions that have occurred and
transpired between them, but are entirely reconciled: and for the
better assurance of his real Intention and good Resolution to
observe the same, he requests that two good men be named to oversee
his conduct at New York towards his said wife, being entirely
disposed and inclined to live honorably and well with her as a
Christian man ought, subjecting himself willingly to the rule and
censure of the said men. On the other hand his wife Anneke Schaets,
promises also to conduct herself quietly and well and to accompany
him to New York with her children and property, not to leave him
any more, but to serve and help him and with him to share the
sweets and the sours as becomes a Christian spouse: Requesting all
differences which had ever existed between them both may be hereby
quashed and brougt no more to light or cast up, as she on her side
is heartily disposed to. Their Worships of the Court Recommend
parties on both Sides to observe strictly their Reconciliation now
made."[1102]

  [Footnote 1098: _New York Col. MSS._, XXIII: _Calendar of Hist.
  Man._ (1664-1776), 26; _cf. ibid._, XXIII, 269, 390; XXV, 84, 85.]

  [Footnote 1099: EARLE, _op. cit._, 48, 49.]

  [Footnote 1100: _Ibid._, 50.]

  [Footnote 1101: _Ibid._]

  [Footnote 1102: Quoted from EARLE, _op. cit._, 46, 47.]

If one may judge from the scattered fragments of court records thus
preserved, the little settlements in New Netherland and early New
York were afflicted by their fair share of domestic ills. In the
main, however, family life was placid and prosaic. Few cases of
absolute divorce, or even of permanent separation, occurred; and
this is probably due, at least in part, to the system of friendly
arbitration and to the kindly paternalism of the Dutch magistrates.

After the conquest, according to the weight of legal
authority,[1103] the people of New York province acquired the rights
and privileges of the English common law. The ecclesiastical courts
were "regular tribunals of England, and the law administered in
them" a part of the general law of the land.[1104] But so far as
divorce is concerned, in New York, as in the southern colonies, this
law was practically in abeyance throughout the entire provincial
era. The code of the duke of York, it is true, does contain a
provision on this subject. It is there declared that "In Cases
of Adultery all proceedings shall bee accordinge to the Lawes of
England which is by Divorce (if sùrd) Corporall punishment or fine
and Imprisonment."[1105] In substance, therefore, separation from
bed and board, not complete divorce, is thus sanctioned for the
scriptural ground. But this provision in its practical result does
no more than say that the English law regarding judicial separation
_a mensa et thoro_ shall be recognized in the colony, and such
would have been the case without it. From the beginning it must
have been a "dead letter;" for no tribunal was clothed by statute
with adequate jurisdiction to enforce it. Possibly for a time the
old Dutch law and customs were in practice accepted as partially
binding. We have just seen evidence of the survival of arbitration
in cases of separation, and of marital reconciliations managed and
recorded by the courts. But, unless granted on this authority in
the brief period of transition, judicial divorce _a vinculo_ ceased
in New York with the English conquest. According to Chancellor
Kent, who may not be quite accurate, "during the period of our
colonial government, for more than one hundred years preceding the
Revolution, no divorce took place in the colony of New York; and for
many years after New York became an independent state, there was
not any lawful mode of dissolving a marriage in the lifetime of the
parties, but by a special act of the legislature."[1106]

  [Footnote 1103: See Chancellor Kent, in Williamson _v._
  Williamson, 1 JOHNSON, _Chancery Rep._, 488, 491, 492; and
  Chancellor Walworth's decisions in Wood _v._ Wood, 2 PAIGE,
  _Chancery Rep._, 108, 111; North _v._ North, 1 BARBOUR, _Chancery
  Rep._, 241, 245: 43 _Am. Decisions_, 778; and Burr _v._ Burr, 10
  PAIGE, _Chancery Rep._, 20, 35. _Cf._ BISHOP, _Mar., Div., and
  Sep._, I, §§ 132, 133, notes; and STORY, _Commentaries_, I, 80,
  81.]

  [Footnote 1104: BISHOP, _op. cit._, I, § 109.]

  [Footnote 1105: _Duke of Yorke's Book of Laws_: in LINN, _Charter
  and Laws_, 63.]

  [Footnote 1106: KENT, _Commentaries_, II, 97, 98.]

Subsequent to the meeting of the first assembly of the province in
1683 the writer has found no evidence of a legislative divorce,
though there is preserved a copy of what appears to be a circular
letter from King George III. in 1773, commanding the provincial
governors "not upon any pretence whatsoever" to give their assent
to any bill "that may have been or shall hereafter be passed by the
Council and Assembly of the Province under your government for the
naturalization of Aliens, nor for the divorce of persons joined
together in Holy marriage nor for establishing a Title" to lands
originally acquired by aliens before naturalization.[1107]

  [Footnote 1107: Letter of Nov. 24, 1773: O'CALLAGHAN, _Doc. Rel.
  to Col. Hist., N. Y._, VIII, 402; also in _New Jersey Archives_,
  X, 411, 412.]

But if the legislature declined to interfere, during the early
period the executive stepped into the breach. Cadwallader Colden,
who died in 1776, tells us that "the Governors of New York took
on them the power of granting divorces which has been in disuse
at least ever since the revolution neither is there any court in
this province that can give this remedy tho' in the neighboring
Colonies a divorce is more easily obtained than perhaps in any other
Christian Country;" and he significantly raises the "Query whether
this may not be for the advantage of a new country which wants
people. It is certain that the natural increase of People in New
England has been very great perhaps more than in any other of the
English Colonies."[1108]

  [Footnote 1108: Colden, _Letters on Smith's History of New York_:
  in _Coll. N. Y. Hist. Soc._, Fund Series, I, 1868, 187.]

Colden's declaration that divorces, even by authority of the
governor, were not granted after the revolution of 1689 harmonizes
with the statement of Chancellor Kent. A petition for such executive
relief is preserved among the New York Colonial Manuscripts. In
this case Richard Wood, who avers that he has lived in Westchester
"about fifteen years," during all which time he "hath endeauoured
to demeane himselfe as a true and loyall subject and serviceable in
his generation," prays for separation from his wife Mary on account
of "her most abominable words and actions" purposely designed to
"breed difference" between them. The petition is addressed to
Governor General Andros; but no record of his excellency's action
in the premises is forthcoming.[1109] The granting of divorces by
executive authority is unprecedented; and it is just possible that
the governors immediately after the English occupation believed
their action in such cases in a way sustained by the duke's law;
though this hypothesis is scarcely probable.

  [Footnote 1109: _New York Col. MSS._, XXV, 84. Here is the
  document in full, though some phrases are hard to decipher:

  "To the Right Honr^{ble} Maij Edmo^{nd} Andross, Gouev^{nr}
  Gen^{ll} of all his Highnes Territories in America:

  "The Humble Petiton of Richard Wood:

  "Humbly: Sheweth:

  "That whereas your Honou^{rs} Petitioner haueing liue under his
  Highness Jurisdiction in Westchester about fifteen years, during
  w^{ch} time your petitioner hath endeauoured to demeane himselfe
  as a true and Loyall subject and serviceable in his generation,
  to the best of his power, but through the unchastity and
  disloyalty of y^e petitioners wife by name Mary Wood, sustained
  great detriment and endured a very troublesome and vexatious
  liueing to the Dishonour of God, and repugnant to the holy bond
  of wedlock, she haueing as much as in her lay endeauoured the
  totall ruine and destruction of your petitioner, by her most
  abominable words and actions, haueing openly confessed she hath
  defiled her marriage bedd, and that purposely to breed difference
  between your petitioner and her selfe, notwithstanding y^e
  petitioner endeauoured to reclaime her, by all means lawfull,
  who yet continued the same and rather worse, and now purposely
  absented her selfe by reason she knows her selfe guilty and to
  prevent that shame and punishment due to her base and wicked
  actions....

  "Y^r Petitioner humbly beggs your Hon^{rs} would bee pleased to
  take your petitioners sad case into consideration, and if it
  shall seem good in your Hon^{rs} sight a separation may be made,
  otherwise noe [illegible] can be expected but a sad euent of such
  deplorable doings.

  "and y^e Petitioner shall for
  Euer Pray as in Duty bound."
  ]

  For the other middle colonies the story is soon told. New Jersey
  is in the same position as New York under English rule. The
  statute book is silent on the subject of divorce. If divorces
  were permitted at all, it must have been by legislative
  authority; unless, indeed, in the early period, as in the
  sister-province, the governors assumed the power to act.

  The Great Law of 1682 for Pennsylvania authorizes divorce on
  the scriptural ground. The punishment for adultery prescribed
  by this statute may be compared with the penalties mentioned in
  the early New England and New York codes. One convicted of that
  crime "shall for the first offence be publicly whipt and suffer
  one whole year's imprisonment in the house of correction, at hard
  labor, to the behoof of the publick, and longer if the Magistrate
  see meet. And both he and the woman shall be liable to a Bill
  of Divorcement, if required by the grieved husband or wife,
  within the said term of one whole year after Conviction." For a
  second offense the penalty is "imprisonment in manner aforesaid,
  During Life." If the husband or wife sins with a person who is
  unmarried, then for the first offense either shall suffer half a
  year's imprisonment; and for a second transgression, imprisonment
  for life.[1110] Nearly the same penalties are imposed for
  incest[1111] and for bigamy.[1112] It will be noticed that the
  Great Law, which was re-enacted in later statutes, deals with
  divorce much in the same spirit as does the duke of York's code.
  In each case divorce is allowed for the one scriptural cause; but
  whereas the New York statute plainly intends the separation to
  be merely from bed and board, "according to the law of England,"
  on the other hand, by its peculiar terms, the Pennsylvania act
  seems to authorize "bills" for complete dissolution of wedlock.
  However that may be, in this case, as in the other, the law has
  no practical significance; for, with one exception below named,
  the jurisdiction of the English spiritual courts was not devolved
  upon any of the provincial tribunals. Accordingly, the historian
  Gordon, in his summary of the laws of the colony, is able to say
  that these "made no general provision for the dissolution of
  marriage; and divorce from bed and board was allowed in case of
  bigamy only, on request of the first wife or husband, made in one
  year after conviction."[1113]

  [Footnote 1110: LINN, _Charter and Laws_, 109, 110. This
  provision was abrogated by William and Mary, 1693, but re-enacted
  the same year: _ibid._, 110, note, 194 (the re-enacted law).

  By the Dutch code fornicators, if single, are to marry or pay
  a heavy fine; O'CALLAGHAN, _Ordinances_, 495. Under the duke
  of York the penalty is marriage, fine, or corporal punishment,
  in the discretion of the court: _Duke of Yorke's Book of
  Laws_: in LINN, _Charter and Laws_, 27. The New Jersey laws of
  "Carteret's time" (_ca._ 1675) contain the same provisions:
  LEAMING AND SPICER, _Grants_, 107; and the Pennsylvania statutes
  authorize the county court to impose "all or anie" of these three
  penalties: LINN, _op. cit._, 145, 210; BIOREN, _Laws_, I, 2, c.
  3.]

  [Footnote 1111: For incest the guilty person "shall forfeit
  one-half of his estate, and both suffer imprisonment a whole
  year, in the house of Correction, at hard labour, and for
  the second offence, imprisonment in manner aforesaid during
  life."--LINN, _op. cit._, 110; abrogated and re-enacted in 1693:
  _ibid._, 194; and a similar law was passed in 1700: BIOREN,
  _Laws_, I, 2, 6.]

  [Footnote 1112: For bigamy, according to the Great Law, whosoever
  shall be "Convicted of having two wives or two husbands, att one
  and the same time shall be imprisoned all their Lifetime in the
  House of Correction, at hard labour, to the behoof of the former
  wife and children, or the former husband and children." When one
  of the persons is single and the other married, the penalty is
  the same: LINN, _op. cit._, 110, 111; abrogated and re-enacted in
  1693: _ibid._, 194; and again in substance re-enacted in 1700:
  BIOREN, _Laws_, I, 2, 6.]

  [Footnote 1113: GORDON, _Hist. of Pa._, 557. But GORDON (_op.
  cit._, 70) is in error when he states that by the Great Law
  divorce was sanctioned after a "second" offense; and regarding
  this law some other mistakes occur.]

Absolute divorces were, however, granted by legislative authority.
Of these an example occurs in 1769, when there was laid before
the council a "Bill sent up by the Assembly for the Governors
concurrence, entitled 'An Act to Dissolve the Marriage of Curtis
Grubb, of the County of Lancaster, Iron Master, with Ann, his wife,
late Ann Few,'" and to enable them to contract further matrimony.
After amendment this bill was approved, and Curtis was allowed
to "take to Wife any other woman during the Natural Life of the
said Anne, in the same manner as he might or could do if she, the
said Anne was actually Dead."[1114] In the same way, on March 21,
1772, the "marriage of George Kehmle of the City of Philadelphia,
Barber, with Elizabeth, his wife," was dissolved; but on April 27,
1773, the decree was declared void by the king in "an Instrument of
Writing under the Privy Seal;" and on the 11th of next October the
royal veto was published by a proclamation of the governor, Jonn
Penn.[1115] There is also extant an example of annulment of wedlock
by the legislative body. On March 20, 1772, a bill to declare
void the "pretended marriage of Rebecca Vanakin with a Certain
John Martin" was presented to the governor; but after six months'
deliberation, on September 19, it was returned to the assembly with
his excellency's veto.[1116] There is no evidence to show, however,
that divorces either partial or absolute were at all common in the
Quaker province.

  [Footnote 1114: _Pa. Col. Rec._, IX, 564, 566, 567, 568, 580.]

  [Footnote 1115: _Ibid._, X, 26, 42, 104, 105.]

  [Footnote 1116: _Ibid._, 40, 53, 54, 55, 104, 105.]



CHAPTER XVI

A CENTURY AND A QUARTER OF MARRIAGE LEGISLATION IN THE UNITED
STATES, 1776-1903


     [BIBLIOGRAPHICAL NOTE XVI.--For this chapter all the statutes
     relating to marriage enacted in fifty-two states and territories
     since the Revolution have been examined and compared, Hawaii not
     being included. The session laws and various compilations of
     statutes consulted are described in the Bibliographical Index,
     V, and need not here be named in detail.

     Hitherto a history of matrimonial legislation in the United
     States has not appeared; but summaries of the laws of the
     various states have been made for particular periods. Of these
     the most important is the accurate digest for 1887-88--the time
     of compilation--contained in Wright's _Report on Marriage and
     Divorce_ (Washington, 1889; reprinted without change, 1897).
     There is also a summary in Stimson, _American Statute Law_
     (Boston, 1886), I, 664 ff.; and for the sake of completeness
     may also be mentioned Vanness, _A Digest of the Laws of New
     York and New England, on Marriage, Dower, Divorce, etc._
     (Hartford, 1877); Noble, _A Compendium and Comparative View
     of the Thirty-Eight State Laws of Marriage and Divorce_ (New
     York, 1882); with the discussion of Cook, "Reform in the
     Celebration of Marriage," in _Atlantic Monthly_, LXI (Boston,
     1888); Convers, _Marriage and Divorce in the United States_
     (Philadelphia, 1889); Snyder, _The Geography of Marriage or
     the Legal Perplexities of Wedlock in the United States_ (New
     York, 1889); Ernst, _The Law of Married Women in Massachusetts_
     (2d ed., Boston, 1897); and Whitney, _Marriage and Divorce_
     (Philadelphia, New York, Boston, and Chicago, 1894). Consult
     the parliamentary return of _Marriage Law and Divorce Law_ in
     foreign countries and the colonies (London, 1894); and see also
     Bibliographical Note XVIII.]


I. THE NEW ENGLAND STATES

The foundation of the marriage law of the United States was laid
long before the War of Independence. Some features have since been
pruned away, and others have been changed or added; but the existing
forms of celebration, the modes of registration, and the leading
principles of matrimonial jurisprudence had already been developed.
The century has produced a great mass of legislation; but so far as
it is new it is concerned largely with administrative details, often
of very great importance as determining the effective character of
the law.

_a_) _The solemnization._--In New England before the end of the
colonial period the religious ceremony had long since been made
optional with the lay celebration before a magistrate, which was
the only form allowed in the beginning. This system is continued
after the Revolution. As elsewhere in the country, the minister
and the justice of the peace now share the business between them.
The earlier statutes are generally more strict than the later
regarding the place of residence and the territorial jurisdiction
of the persons authorized to celebrate matrimony. For example,
by the Massachusetts act of 1786 any justice of the peace may
solemnize lawful wedlock within his own county; while a minister
of the gospel, if "stated and ordained," may act only in the
"town, district, parish, or plantation where he resides," provided
one of the persons lives there too. If a place be destitute of a
minister of any denomination, then a neighboring clergyman of the
same society may serve; but only in the town or district where the
bride or bridegroom dwells.[1117] In 1821 such ordained and stated
minister, although living outside of the district over which he is
settled, may conduct the ceremony at his own place of residence or
at that of either of the persons, provided one or both of them is
a member of his congregation. If there be no such minister in the
place, then the couple desiring to be married may go to any other
clergyman in the commonwealth, who in such case is authorized to
act.[1118] All previous laws on the subject are repealed in 1834,
when a new statute empowers the minister or justice, each in his
own place of residence or in that of either of the persons, to
perform the ceremony, if at least one of them lives in his official
district.[1119] The present law is still broader in its terms. A
marriage may now be solemnized in any place within the commonwealth
by Jewish rabbis duly accredited; Friends according to their rites;
any minister of the gospel, ordained according to the usage of his
denomination, who resides in the commonwealth and continues to
perform the functions of his office; or, until a few years ago,
by any justice of the peace.[1120] By the act of May 23, 1899, an
important change is made. Henceforth no justice of the peace may
solemnize a marriage unless he also holds the office of city or
town clerk, city registrar, clerk of a court, or that of assistant
in either case; or "unless he shall have been specially designated
by the governor." The latter may at his discretion name justices
of the peace "who may solemnize marriages in the city or town in
which they severally reside." Each place is to have at least one
such designated magistrate; but otherwise the number is not to
exceed one for every five thousand of its inhabitants. No justice
may act without a certificate of designation, which the governor
is authorized to revoke whenever he thinks fit; and every year in
January the secretary of the commonwealth is required to send to
the respective clerks or registrars a list of the justices to which
authority is thus granted.[1121] However, by the Massachusetts law
is prescribed the wise, though unique, condition that the ceremony
may be conducted only by a person who is able to read and write the
English tongue.[1122]

  [Footnote 1117: _Laws of the Com. of Mass., 1780-1816_, I, 321.]

  [Footnote 1118: Act of Feb. 12, 1821: _Laws of the Com. of Mass._
  (1821), 507. This somewhat extends the provisions of the act of
  Feb. 20, 1818: _ibid._ (1818), 550.]

  [Footnote 1119: Act of April 1, 1834: _Laws of the Com. of Mass._
  (1834), 252-57.]

  [Footnote 1120: _Pub. Stat._ (1882), 811. The law has remained
  substantially the same since 1835: see _Rev. Stat._ (1836), 477;
  _Supp. to Gen. Stat., 1860-1872_, I, 540.]

  [Footnote 1121: _Acts and Resolves of Mass._ (1899), 379.]

  [Footnote 1122: Act of April 22, 1896: _Acts and Resolves_, 257.
  This statute further declares that "no rabbi of the Israelitish
  faith shall solemnize marriage until he has filed with the clerk
  or registrar of the town or city where he resides a certificate
  of the establishment of the synagogue of which he is rabbi,
  and of the date of his appointment thereto, and of the term of
  his engagement."--_Ibid._, 257. _Cf._ _Rev. Laws_ (1902), II,
  1349-50, with somewhat different wording.]

The course of legislation in the other states has been much the same
as in Massachusetts previous to 1899. In all of them throughout the
century, except in Rhode Island, justices of the peace in their
respective counties have had authority to solemnize marriages.
In that commonwealth any justice of the supreme court may now
act,[1123] as earlier could the assistants, justices of the peace,
and justices of the courts of common pleas.[1124] For over fifty
years the judges of the county and higher courts in Connecticut have
had the same power;[1125] and so during the assumption period had
the councilors, judges, and even the governor and deputy governor,
in Vermont.[1126] But in that state, after the admission to the
Union, the justice of the peace has always been the only lay officer
empowered to conduct the ceremony.

  [Footnote 1123: Also the wardens of the town of New Shoreham:
  _Pub. Statutes_ (1882), 416; _Gen. Laws_ (1896), 621. The justice
  has power in any town of the state.]

  [Footnote 1124: _Pub. Laws of R. I._ (1798), 481-83; _ibid._
  (1844), 267. By this date the justice of the peace had ceased to
  act.]

  [Footnote 1125: _Revised Stat._ (1849), 273; _Stat. of the State
  of Conn._ (1854), 374, 375; _Gen. Stat._ (1875), 186; _ibid._
  (1887), 609; _ibid._ (1902), 1086.]

  [Footnote 1126: SLADE, _State Papers_, 292, 484. _Cf._ _Laws of
  the State of Vermont_ (1798), 330.]

The law governing the ecclesiastical celebration has been a
matter of slower growth and of much experimentation. That of
Massachusetts has already been described. The New Hampshire
statute of 1791 provides that marriage may be celebrated by any
"ordained minister" in the county where he is settled or has his
permanent residence.[1127] For many years thereafter no change
was made in that requirement.[1128] But in 1833 every resident
"ordained minister," if in "regular standing" with his denomination,
is authorized to act throughout the state, after causing the
"credentials of his ordination to be recorded in the office of the
clerk of common pleas, in the county where he shall solemnize any
marriage."[1129] The present law is the same in substance, except
that the filing of credentials is not mentioned. A non-resident
minister, similarly qualified, may now officiate anywhere in the
state, on receiving a commission from the governor acting on the
advice of the council; and within his own parish, when having a
pastoral charge wholly or partly within the state.[1130] Authority
in the state to join persons in wedlock is granted to "settled"
or "ordained" ministers or elders of the leading churches by the
Rhode Island laws of 1798;[1131] to the ministers or elders of any
religious denomination who may be "domiciled" in the state, by the
revision of 1844;[1132] and by the present law the same elder or
minister may obtain a license to join persons in marriage, when he
shall have registered his residence, the name of the parish with
which he was last "associated, if any, and the name of the religious
denomination to which he belongs, in the office of the town clerk of
the town in which he resides ... in a book to be provided for that
purpose," and "shall have subscribed his name thereto."[1133]

  [Footnote 1127: Act of Feb. 15, 1791: _Laws of the State of N.
  H._ (1797), 295, 296.]

  [Footnote 1128: _Cf._ _Const. and Laws_ (1805), 296; _Laws of the
  State_ (1815), 350, 351; _ibid._ (1830) 172-74.]

  [Footnote 1129: _Laws of N. H._ (1833), 88.]

  [Footnote 1130: _Gen. Laws_ (1878), 428; _Pub. Stat._ (1891),
  494; _ibid._ (1900), 589.]

  [Footnote 1131: _Pub. Laws_ (1798), 481-83; same provision,
  _ibid._ (1822), 371.]

  [Footnote 1132: _Ibid._ (1844), 267.]

  [Footnote 1133: _Gen. Laws_ (1896), 621. _Cf._ _Pub. Stat._
  (1882), 416.]

By the first laws of Maine like authority, in the counties where
they dwell, is conferred upon ordained ministers, who shall be
duly appointed and licensed during pleasure by the governor with
the advice and consent of the council; provided either of the
persons resides in the same county.[1134] In 1828 this restriction
is removed; and the ministers of any denomination of Christians
may be so commissioned for counties other than those in which
they dwell.[1135] The law has since taken a different form. Power
is now granted, during the pleasure of the executive, to every
ordained minister of the gospel and to every person licensed to
preach by an association of ministers, religious seminary, or
ecclesiastical body, who shall be duly appointed and commissioned
for that purpose by the governor.[1136] Moreover, in this state
women, otherwise eligible under the constitution, may in the same
way be commissioned to celebrate matrimony.[1137] In Vermont during
the assumption period similar authority was granted to "settled"
ministers in their respective towns while they continue in the
ministry.[1138] The district of the "ordained" minister was extended
to the county in 1797.[1139] Three years later, because "irregular
itinerant preachers, under pretence of being ordained ministers of
the gospel," in remote parts of the county, practiced impositions,
and marriages solemnized by them were wholly illegal, it was again
restricted to the town;[1140] but the act making this change was
itself repealed in 1802.[1141] By a statute of 1806 a minister is
required to file credentials of his ordination with the clerk of the
town where he shall solemnize any marriage.[1142] But a more liberal
provision appears in the revision of 1839, any resident minister of
the gospel being then authorized to celebrate wedlock throughout
the state.[1143] By the law as it now stands the same power is
conferred upon a clergyman, ordained according to the usage of his
denomination, who resides in the state, or else "labors statedly
therein as a minister or missionary."[1144]

  [Footnote 1134: _Laws of the State of Maine_ (1821), I, 341.]

  [Footnote 1135: _Public Acts_ (1828), 1157, 1158; _Laws of the
  State of Maine_ (1831), III, 238-40.]

  [Footnote 1136: _Revised Statutes of Maine_ (1884), 516, 517.
  This provision has long existed: see _Acts and Resolves_ (1876),
  chap. 110, sec. 2, pp. 78, 79; _Revised Stat._ (1871), 485;
  _ibid._ (1857), 391. _Cf._ WRIGHT, _Report_, 53.]

  [Footnote 1137: _Acts and Resolves_ (1875), chap. 56, p. 44;
  _Revised Stat._ (1884), 517. _Cf._ 62 _Maine Reports_, 596.]

  [Footnote 1138: SLADE, _State Papers_, 292, 484.]

  [Footnote 1139: _Laws of the State of Vt._ (1798), 330.]

  [Footnote 1140: Act of Nov. 7, 1800: _Laws of the State of Vt._
  (1808), I, 268.]

  [Footnote 1141: _Ibid._, 269.]

  [Footnote 1142: _Ibid._, 272, 273.]

  [Footnote 1143: _Revised Stat. of 1839_ (1840), 319.]

  [Footnote 1144: _Vermont Stat._ (1894), 500.]

Ordained ministers of the "several plantations" of Connecticut,
as already seen, in 1694 were first allowed to share with the
justices of the peace the function of joining persons in marriage.
Their power was restricted to their respective towns in 1702. It
was extended to the county in 1783;[1145] and the clergyman is
to have authority "while he continues settled in the work of the
ministry." In 1820 the word "settled" was dropped. In the revision
of 1821 marriages celebrated according to the rites of any religious
denomination were declared valid.[1146] Authority to solemnize was
granted in 1847 to any clergyman regularly licensed according to the
forms and usages of the denomination to which he belongs, and having
charge of a society for one year or more.[1147] Finally, since 1855,
the same power has been conferred upon all ordained or licensed
clergymen of Connecticut or any other state while engaged in the
work of the ministry.[1148]

  [Footnote 1145: _Acts and Laws_ (1784), 130.]

  [Footnote 1146: _Pub. Stat. Laws_ (1821), 316; the same
  provision, _ibid._ (1835), 370.]

  [Footnote 1147: _Pub. Acts_ (1847), 39.]

  [Footnote 1148: _Gen. Stat._ (1866), 301, note, giving a summary
  of changes in the law since 1640. _Cf._ _Gen. Stat._ (1874), 186;
  _ibid._ (1887), 609; _ibid._ (1902), 1086. See 1 ROOT, 381; 4
  _Conn. Reports_, 134, 209.]

The law of Connecticut still retains the broad provision that
marriages celebrated according to the rites of any religious
society within the state are valid.[1149] This, of course, includes
the Quakers, who in each of the other New England states are
expressly permitted to follow their own usages in this regard,
as also are the Jews in Rhode Island.[1150] No form of ceremony
is anywhere prescribed; nor, except in Rhode Island, are any
witnesses required by the statute.[1151] In New Hampshire persons
living together and acknowledging each other as husband and wife,
and generally reputed to be such for the period of three years or
until the death of one of them, shall thereafter be deemed to
have been legally married.[1152] Various penalties are prescribed
in the different states for unauthorized celebration;[1153] but
in Maine, Massachusetts, New Hampshire, Vermont, and Rhode Island
it is expressly provided that when a marriage has been solemnized
by a person professing to be legally authorized, although not
so authorized, its validity shall be unaffected by such lack of
authority, if it is valid in other respects, and entered into by
the parties or one of them in the belief that they were lawfully
wedded.[1154] It is also enacted in Massachusetts, Maine, New
Hampshire, and Rhode Island that the validity of a marriage shall
not be affected by any omission or informality in entering the
intention to marry.[1155]

  [Footnote 1149: _Gen. Stat._ (1887), 609.]

  [Footnote 1150: _Pub. Stat. of Mass._ (1882), 811; _Pub. Stat.
  of N. H._ (1891), 494; _Gen. Stat. of N. H._ (1867), 331; _Gen.
  Laws of R. I._ (1896), 622; _Vermont Stat._ (1894), 500; _Revised
  Stat. of Maine_ (1884), 516.]

  [Footnote 1151: Two witnesses, besides the person solemnizing the
  marriage, must attend: _Gen. Laws of R. I._ (1896), 624; _Acts
  and Resolves_ (1899), 50, 51.]

  [Footnote 1152: _Pub. Stat._ (1900), 590; _Gen. Stat._ (1867),
  332.]

  [Footnote 1153: In Massachusetts the penalty is a fine not
  exceeding $500, or imprisonment in jail or in the house of
  correction for a term not exceeding one year, or both: Act of
  April 22, 1896: _Acts and Resolves_ (1896), 257; in Maine it is
  $1,000, or not less than five years' imprisonment: _Rev. Stat._
  (1884), 517; in New Hampshire it is not exceeding $300, one-half
  to the complainant: _Pub. Stat._ (1891), 494; _Gen. Laws_ (1878),
  429; in Vermont, not less than six months' imprisonment or a fine
  of from $100 to $300; in Connecticut, not to exceed $500, or six
  months' imprisonment: _Gen. Stat._ (1887), 348; in Rhode Island
  the fine is $500: _Gen. Laws_ (1896), 625.]

  [Footnote 1154: _Pub. Stat. of Mass._ (1882), 811; _Revised
  Stat. of Maine_ (1884), 517; _Pub. Stat. of N. H._ (1891), 494;
  _Vermont Stat._ (1894), 502; _Gen. Laws of R. I._ (1896), 625.]

  [Footnote 1155: _Pub. Stat. of Mass._ (1882), 811; _Rev. Laws of
  Mass._ (1902), II, 1351; _Rev. Stat. of Maine_ (1884), 517; _Pub.
  Stat. of N. H._ (1891), 494; _Gen. Laws of R. I._ (1896), 625.]

_b_) _Forbidden degrees: void and voidable marriages._--In none
of these states is any definition of marriage laid down in the
statutes; but in effect matrimony is treated as a relation partaking
of the nature of both status and contract.[1156] The age of valid
consent to marriage--not to be confused with the so-called "age
of consent" under the criminal laws enacted to protect a child
from legally agreeing to its own ruin[1157]--is prescribed only in
New Hampshire, where it is fourteen for males and thirteen for
females.[1158] Elsewhere in New England the common-law rule of
fourteen for boys and twelve for girls probably obtains. On the
other hand, in all these states, except New Hampshire, the age below
which parental consent is necessary for a legal contract is named in
the statute. For males it is everywhere set at twenty-one years. For
females it is eighteen years in Maine, Massachusetts, and Vermont;
and twenty-one years in Connecticut and Rhode Island. But in Maine
and Massachusetts consent is required only when the minor has a
parent or guardian living in the commonwealth. The Rhode Island law
expressly provides that a license may be issued to a person of over
eighteen years when such person has no parent or guardian residing
in the state;[1159] and the same is true in Connecticut of a female
under age when a selectman of the town where she has last resided
six months gives his consent.[1160] Massachusetts has taken wise
precaution regarding the marriage of minors below a certain age.
By an act of 1894 no town or city clerk is permitted to receive a
notice of the intention of marriage of any male under eighteen or
any female under sixteen years of age, unless the "judge of probate
in each county after due hearing" shall "make an order allowing the
marriage under the age specified;" but such order may be issued only
when the minor resides in the county where the judge holds court, or
when the father, mother, or guardian gives consent.[1161] A law of
March 28, 1899, amending the above act, allows the probate judge to
make a similar order in case of a person of either sex whose age is
alleged to exceed that just specified, but who is unable from any
cause to produce an official record of his or her birth, to overcome
the reasonable doubt of the town or city clerk or registrar. On
receipt of a certified copy of this order such local officer is
required to receive the notice of intention and issue a certificate,
as in other cases.[1162]

  [Footnote 1156: For a digest or tabulation of the statutes of all
  the states and territories relating to definition, age of consent
  to marriage, age below which parental consent is required,
  prohibited degrees, void, voidable, and forbidden marriages, as
  the law stood in 1887, see WRIGHT, _Report_, 28-45.]

  [Footnote 1157: See chap, xviii, sec. i, _b_), for some account
  of the laws governing the "age of consent."]

  [Footnote 1158: _Pub. Stat. of N. H._ (1900), 588.]

  [Footnote 1159: Written consent is requisite in Connecticut,
  Maine, Rhode Island, and Vermont; but it may be either written
  or verbal in Massachusetts; and in all cases the consent is
  preliminary to issuance of license: _Pub. Stat. of Mass._ (1882),
  810; _Rev. Stat. of Maine_ (1884), 516; _Vermont Stat._ (1894),
  501; _Gen. Stat. of Conn._ (1887), 608, 609; _ibid._ (1902),
  1085; _Gen. Laws of R. I._ (1896), 623; and _Acts and Resolves_
  (1899), 49.]

  [Footnote 1160: _Pub. Acts of Conn._ (1895), 474.]

  [Footnote 1161: Act of May 18, 1894: _Acts and Resolves_ (1894),
  453, 454. See also the provision referred to below, relating
  to the clandestine marriage of a girl of sixteen secured by
  abduction.]

  [Footnote 1162: _Acts and Resolves of Mass._ (1899), 160; _cf._
  _Revised Laws_ (1902), II, 1347-49.]

The statutes of all of these states contain a list of kindred
by blood or affinity with whom marriage is prohibited. The
restrictions, of course, invariably include all persons in the
ascending or descending line; and also, as a rule, those related
within the third degree of collateral consanguinity.[1163] Only in
New Hampshire are first cousins now forbidden to marry;[1164] but
throughout New England the inhibition extends to unions between
aunts and nephews or uncles and nieces. In Connecticut for a time
we find a survival of mediæval prejudice regarding affinity.
Marriage with the daughter of a wife's sister or brother was
there first permitted in 1750.[1165] But it was not until 1793
that the prohibition of wedlock with a deceased wife's sister was
dropped;[1166] while, curiously enough, it was retained with respect
to a deceased brother's wife until 1816.[1167] By the existing law
of all these states marriage with a step-parent is forbidden; and
in them all, save Connecticut, a person may not, with impunity, wed
a father-in-law or a mother-in-law. Marriage within the forbidden
degrees is everywhere void;[1168] the children illegitimate, and
the offenders liable to severe penalties.[1169] In Connecticut until
some years after the beginning of the last century, just as in old
colonial days, offenders against the law of prohibited degrees were
"set upon the gallows" and condemned to wear the "scarlet letter."
The statute of that state still required the adulterer to carry the
halter round his neck during life;[1170] and similar penalties were
yet prescribed in some other New England commonwealths.[1171]

  [Footnote 1163: SWIFT, _System of the Laws of Conn._ (1795), I,
  186, 1