USA > New Jersey > Marriage records, 1665-1800, Vol XXII (from various church records) > Part 2
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1 Maine's Ancient Law, p. 148.
Introduction to Roman Law, by James Hadley, New York. 1876. pp. 255. 138-143. Early History of Institutions, by Sir Henry Maine. N. Y., 1875, pp. 310-315. Gibbon's Rome, Chap. XLIV; Harper's ed., N. Y., 1852. IV., 345-7.
Justinian's Institutes, Lib. I .. Tit. X.
Pandects. Libri XXIII, XXIV, XXV. Code, Lib. V.
Studies in Roman Law, by Lord Mackenzie, Edinburgh and London. 1820, pp. 97-99.
Grotius on War and Peace, London, 1682. Book II .. pp. 104-112.
The Rights of the Clergy of that Part of Great Britain, call'd England, by Wm. Nelson. of the Middle Temple, Esq., London, 1732. p. 416.
Studies in History and Jurisprudence, by James Bryce, New York and London, 1901, pp 786-793. .
Dr. M. Winternitz. on Indo-European Marriage Customs, Journal of Interna- tional Folk-Lore Congress, London, 1892, pp. 273-289.
2 Du Pin's Ecclesiastical History, London, 1696-9, I., 182.
3 Ib., I., 176. + 1 b., 212.
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ECCLESIASTICAL REGULATION OF MARRIAGES.
A. D. S58-867, directed that after the betrothing the priest ought to cause the persons to come into the church with their offerings, and there give them his benediction. But it was still held that "consent, according to the laws, might suffice ; if that be wanting, the rest signifies nothing."' Numerous canons concerning marriage were prescribed during the ninth century, showing the disposition of the church to regulate the matter, but it does not appear that any special form or ceremo- ny was prescribed or suggested .? The Emperor Leo the Phil- osopher, A. D. SS6, declared ecclesiastical benediction neces- sary to marriage, but his constitution was in force only in the Eastern Empire. In the History of Gregory of Tours, mar- riage is treated as a civil contract.3 In 944 King Edward of Eng- land held an assembly of prelates and lords, in which he made laws for the regulating of marriage solemnities.4 This was a qua- si recognition of the rights of the clergy in considering so impor- tant a subject, but it also seems to indicate that he regarded it as a matter for civil regulation. At the Council of Rouen, A. D. 1072, it was decided that "no marriages shall be solemnized privately, nor after meals ; but that the bridegroom and bride being fasting shall be blessed by a priest in like manner fasting , and that before he proceed to marry them, inquiry shall be made, whether the parties be in relation in the seventh degree of consanguinity."5 Ilere it is plainly indicated that the cere- mony was celebrated by a priest. Ivo, Bishop of Chartres, who died Dec. 23, 1115, wrote 287 letters, which are published. One of them (CXXIII) refers to a priest who had made use of other ceremonies and words "than are prescribed in the form of marriage."" The annals of the church are increasingly full of orders, canons, discussions and controversies on the subject, but are singularly lacking in particulars as to the actual relig- ious ceremonies observed at marriages. Particularly is there manifest a growing hostility to clandestine marriages, by which are obviously meant any contracted without the authority of
1 Ib., VII., 177. 2 Ib., VII., 115. 116, 125. 126. 128, 131-8. 183-4.
3 Mackenzie's Roman Law, 1870, p. 105.
+ Du Pin, VIII., 63: Pollock and Maitland's Hist. of English Law. 2d ed .. I .. 397.
5 Ib., IX .. 117. 6 Ib .. X .. 12.
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ECCLESIASTICAL, REGULATION OF MARRIAGES.
the church. In the thirteenth century such marriages were for- bidden in some ecclesiastical jurisdictions. Pope Innocent III., 1198-1216, was greatly interested in the subject, and wrote many letters on various points that were submitted to him regarding marriage and divorce.1 "What punishment ought to be inflicted on those priests who celebrate marriages during Lent? The priests ought to be punished, but the mar- riages are lawful," was the decision of Manuel Charitopula, Patriarch of Constantinople, A. D. 1221-1226.2 This again shows that it was quite usual, at least, to have marriages cele- brated by the priests The fourth John Lateran council, A. D. 1215, prohibited (51st canon) clandestine marriages, and ordered that the priests should publish the banns in the church- es, and prescribed penalties for those countenancing or author- izing "insidious or clandestine marriages."3 The Council of Chateau-Gonthier, held by the Archbishop of Tours, A. D. 1231, prohibited under pain of excommunication the contract- ing of marriages until after the banns had been published "in the usual manner," that so "an encouragement to marry may be granted and given in the face of the congregation." The Council of Bourdeaux, in 1262, decreed that those who con- tracted clandestine marriages, both ministers and witnesses, should be excommunicated and suspended by officio and benefi- cio, and that "those marriages shall be reckoned clandestine, which are not contracted (celebrated) by the proper curate or pastor of the husband or the wife, with the consent of the oth- er curate."5 In the fourteenth century numerous councils in Europe and England pronounced against clandestine marria- ges, without the publication of banns, and in some instances decreed the excommunication of "all persons who procured them, or were present at them."6 Clandestine marriages, and the obligation of publishing banns of intended matrimony, were the subjects of decrees by various local councils in the fifteenth century.7 The fact of this continuous legislation by the church, century after century, indicates that civil marriages were very generally in vogue, if, indeed, they were not the
1 Ib., XL .. passim. 2 Ib .. XI., 86. 3 Ib., XI., 101. 4 Ib .. XI .. , 108.
5 Ib., XI., 119. 6 Ib., XII .. 93-5. 97. 110, 111. 7 1b .. XIII .. 113-114.
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ECCLESIASTICAL REGULATION OF MARRIAGES.
rule ; but it is also evident that the jurisdiction of the church was gradually and steadily extending over the subject, and that ecclesiastical forms were coming into use, and especially the practice of public ceremonies, by the priest, "in the face of the church" or congregation. The Council of Trent, 1537-1564, took a decisive step on November 11, 1563, in anathematizing those who should teach that marriage was not one of the seven sacraments1 instituted by Jesus Christ, and declared that after that date all marriages not contracted in the presence of a priest and two or three witnesses should be void.2 It also provided that "Before the consummation of the marriage, three publi- cations of banns must be made in church, so that if there be any impediment, it may be more easily shown ; unless the or- dinary judge should deem it expedient to omit the said banns, which is, therefore, recommended to his good care."3 The Dean of Sorbonne in opposing the decree quaintly argued that the first marriage, between Adam and Eve, which was the pat- tern for all others, was contracted privately, without witnesses 4
This, then, was the canon law throughout Western Europe, wherever the sway of the Roman church was recognized. The spread of the Reformation hindered the acceptance of the canon in Sweden, in the Protestant states of Germany, in Hol- land, and largely in England and Scotland, although it was later accepted by the English church, according to eminent au- thorities. Aside from the dogma that marriage was a sacra-
1 John Calvin, it is said, was elected or at least proposed as a delegate or rep- resentative to the Council of Trent, in 1546, but refused to attend. He says that matrimony was first held to be a sacrament in the time of Gregory. - Calvin's "In- stitution of the Christian Religion," London. 1634. Book IV., Cap. 19. Sec. 34. p 730. "By calling it a sacrament the priests drew to themselves the hearing of causes of matrimony, for it was a spiritual matter, which profane judges might not med- dle with." Calvin wished marriages to be celebrated with great solemnity: he directed the bridal party "to proceed to the church without the beating of drums or music. but seriously, as became Christians, as soon as the bells ceased; and the ceremony was to be performed before the sermon, in the presence of the whole congregation. "-Life and Times of John Calvin, by Paul Henry. New York. 1854, I., 472.
2 Studies in Roman Law, with Comparative Views of the Laws of France, Eng- land. and Scotland. by Lord Mackenzie, Edinburgh and London. 1870, p. 105; His -- tory of the Council of Trent. by L. F. Bungener, New York. 1855, pp. xxviii. 451.
3 Van Leeuwen's Roman-Dutch Law. p. 103.
4 Mackenzie. as cited, 105.
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ECCLESIASTICAL REGULATION OF MARRIAGES.
ment, the insistment that the ceremony should take place in public, before the congregation, by a priest, and in the pres- ence of two witnesses, and only after the publication of the bauns, undoubtedly commended itself to the clergy of all countries, and to right-thinking persons generally.
Running all through the church regulations on the subject of marriage is manifest a constant disposition to recognize the binding force of the marriage contract, or betrothal-probably a trace of the Roman respect for mutual obligations,1 of what- ever kind. A contract or engagement of marriage was regard- ed as having almost the binding force of a marriage itself. This suggests a survival of the idea that the mutual contract be- tween the parties actually constituted the marriage, and the func- tion of the Roman pontifex, or later of the priest or the church, was merely to sanctify or sanction the union by its blessing, or by other ceremonies, added to from time to time. When Henry VIII. of England had been married twenty years, and wished a new wife, he suddenly bethought him that his spouse had been previously engaged to his older brother, and although her betrothed died before marriage, nevertheless that contract constituted him virtually her husband, whereby she became as a sister to Henry VIII., whose marriage to her was therefore incestuous. And of course the royal monarch found many learned schoolmen, ecclesiastics and others, to argue in his fa- vor, and to adduce countless citations from the fathers of the church to support his and their contentions, many of which are set forth at great length in the Appendix to Bishop Burnet's History of the Reformation in England. Illustrations of the importance attached to contracts of marriage will be found further on in these pages, especially among those people most accustomed to the Roman, and later to the Roman-Dutch law.
The history of the Christian, and especially of the Roman church, indicates a steadily-growing disposition to elevate the character of the marriage tie by throwing about it the ægis of its authority ; by discountenancing private marriages ; by en- couraging, by urging, and finally by commanding that all mar-
I Juvenal, in Satire vi., speaks of the conventum (the first overture), the pac- tum (contract), and the sponsalia (betrothing).
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ECCLESIASTICAL REGULATION OF MARRIAGE.
riages should be celebrated publicly, by its authority alone, and by its ministers. Its recognition of the sacredness of private contracts, even without subsequent consummation, weakened the force of its contentions to some extent.
Consistent with its position regarding the sacredness of the marriage tie was its attitude, expressed in the seventh canon of the decree concerning matrimony and divorce, adopted by the Council of Trent, that marriage, being a sacrament, was in- dissoluble, for any cause whatsoever. In practice, however, it was permitted to annul a marriage, when it could be shown that it had been improperly or unlawfully contracted. As this was a difficult and expensive process, it was available only by the rich and powerful.1
Such was the sentiment of the strongest and most repre- sentative Christian body in the world, in the middle of the six- teenth century, as crystalized into the enduring decree of the Council of Trent. It has been steadily adhered to by that church, and its influence has been felt ever since throughout Western Christendom, for the conservation of the sacredness of the marriage tie.
II. FORMATIVE INFLUENCES AS TO THE LAW OF MARRIAGE IN NEW JERSEY.
In the settlement of New Jersey four nationalities were prominent and influential in this chronological order :
I. The Dutch.
II. The Swedes.
III. The English.
IV. The Scotch.
Moreover, the views of the English settlers were modified by the fact that many of them were
V. New Englanders ; or
VI. Quakers; or
VII. Settlers from New York or Pennsylvania.
All of these were Protestants, and hence dissenters from the dogmas promulgated by the Council of Trent: and al- though agreeing in the main on the subject of marriage and
1 Hist. of the Council of Trent. as cited. p. 420.
xviii
DUTCH LAW OF MARRIAGE.
divorce, approached the matter on different lines, as we shall proceed to show.
I. THE DUTCH LAW OF MARRIAGE.
The system of jurisprudence prevailing in Holland in the sixteenth century was a highly-artificial modification of the ad- mirable Roman system, and was known as the Roman-Dutch Law.
Grotius recognizes the fact that in Holland, as in other countries, "in olden times marriage was contracted without much ceremony ; in some places by mere cohabitation (concu- bitus) with the knowledge of the nearest relations on both sides." This, however, frequently proved troublesome and dangerous, as it sometimes happened that persons contracted marriages in violation of former promises, or within the pro- scribed degrees of blood or affinity, or without the previous consent of those who should have been consulted in the matter. In order to obviate all this, the States, in 15So, adopted certain regulations (a Political Ordinance) on the subject, which also agreed with the ecclesiastical law. The essential requisites thus prescribed were as follows :
All persons who desired to marry must appear before the court of justice or the minister of the church of their place of abode, where they had had their last fixed residence for a year and a day, and there request the publication of the banns on three successive Sundays or market-days, in the church, or court- house (or other place where the court was held), so that those who wished to raise any objections might do so in the mean- time, on pain of forfeiting their right to object. It was under- stood that "the three publications of the banns being simply to protect the rights of a third party, and that marrying in the church was but a mere outward ceremony, by way of public confirmation," that provision could be dispensed with, with "the previous consent of the Government, after inquiry into the circumstances ; the third party, however, retaining his right, if any, so far as the three publications of . banns were con- cerned." It was regarded as uncertain whether the ordinary (or ecclesiastical) judge could remit the banns, as authorized by the Council of Trent, Holland being a Protestant country,
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DUTCH LAW OF MARRIAGE.
especially as the Political Ordinance provided (Art. 3) for the punishment of those who violated the regulations therein pre- scribed, and ignored the jurisdiction of the ordinary in the prem- ises. The law was very strict on these points, so much so that if there were the least deviation therefrom the transaction was not regarded as a marriage ; without prejudice, however, to the right of anyone, acquired by previous promise of marriage, to prosecute the same at law. Such promise had to be as clearly proved as any other contract, without the defendant being bound on the mere accusation of the plaintiff to clear himself on oath. On the other hand, a marriage in the church or before the civil authorities, completed as above, had its full force, so that all rights arising out of the marriage vested and took effect at once, although not followed by concubitus ; as was understood of a newly-married couple who, on their way home from their wed- ding, were both drowned.
Other wholesome provisions of the same Ordinance were to the effect that no banns should be granted to young men un- der the age of twenty-five, or to young women under the age of twenty, until proof given of the voluntary consent of the pa- rents, or the survivor of them, such consent being of the es- sence of the marriage ; so that a marriage contracted without the parents' consent was per se void. If the parties were of the ages specified, the parents were obliged to give their con- sent, or to show good and lawful grounds for their refusal. To that end they could be summoned before the consistory of the church, or the civil authorities, to state their reasons. If they did not appear their silence was considered as consent ; if they did appear and their reasons were not held to be good and law- ful, the banns were granted. Then, if no objection was made in the meantime, the petitioners could and must be married in church, or before the court of justice, in a lawful and public manner. The consent of guardians or relatives (other than parents) was not requisite.1
The power of annulling or dissolving marriages or mar- riage contracts was reserved to the civil authority.
1 Grotius' Dutch Jurisprudence. I .. Cap. v., Secs. 16-17, pp. 23-24; Van Leeu- wen's Roman-Dutch Law, I., Cap. xix. pp. 100-104. 107: Lord Stair's Institutes of Scottish Law. I., 27.
XX
A NEW NETHERLAND MARRIAGE CONTRACT.
The Political Ordinance of 15So was in line with the laws and customs of Holland from time immemorial, particularly in so far as it recognized the civil power in the regulation of mar- riages. Hence, the Hollanders who came to New Netherland brought with them the manners and customs of the Vaderland, as crystalized into statutes, the law being sufficiently elastic to be readily adapted to novel conditions in the New World.
The earliest recorded instance of a marriage contract in New Netherland is that of Jan Jacobsen and Maritje Pieters, found in the New York Colonial Manuscripts, Vol. I., page 153, for the translation of which the writer is indebted to the courtesy of the late George R. Howell, Archivist of New York. It bears date, fifteenth of August, 1639, and reads thus :
In the name of God, amen, Be it known unto all men that on the 15th of August in the year 1639, before me Cornelius van Tienhoven. Secretary residing in New Netherland on the behalf of the Incorporated West India Company, and the un- dersigned witnesses, appeared the worthy Jan Jacobsen from Vrelant, future bridegroom, assisted by Maritje Peters from Copenhagen, his future bride, on the other part, and they the appearers declared that they had mutually resolved, engaged and agreed to enter together the holy state of matrimony, and that under the following nuptial contract, praying the Almighty God that his divine Majesty would be pleased to bless their future marriage and let it redound to his honor.
First, in regard to the property which he, the bridegroom, shall leave behind. in case he come to die, whether movable or immovable, or such as may rightly belong to him, it shall belong in free propriety to Marritje Peters aforesaid, with- out any of Jan Jacobsen's blood relations having any claim thereto. On the other hand if Marritje Peters, the future bride. first happen to die. Jan Jacobsen shall. in like manner, own all her means and goods, whether movable or immov- able, in free propriety, without his giving any account thereof to any of her blood relations. Provided always that he, the bridegroom, or she. the bride, aforesaid, whichever of them both come to live the longest, shall not possess the property longer than to the day of his or her death, and then be partitioned and divided by the brothers or lawful heirs of him. the bridegroom. and Teuntje Jeu- riaens of Amsterdam, or Jacob Brone, her present husband, as heirs of Maritje Pieters aforesaid, each the just half.
Thus done and executed in the presence of the undersigned witnesses in Fort Amsterdam, this day and year aforesaid.
This is the - mark of Jan Jacobsen above named. This is the M mark of Marritje Peters above named. Harmanus A, Booghardij. witness.
Claes van Elsant, witness.
The earliest recorded marriage, and which antedates the Records of the Dutch Church in New York, is that of Thomas de Coninc and Marritje Frans van Betts, and bears date 22 September, 1639. It is found in N. Y. Colonial Manuscripts,
NEW NETHERLAND MARRIAGE CONTRACTS.
Vol IV., p. 50, and is as follows (we give both the original and translation, as furnished by Mr. Howell) :
Op 22 Septem (1639)
Ter vergaderinge syn gecompaereert en verscheenen tomas de Coninc en Marritjen frans van beets de welcke versochten wettelyck in houelyeken staet bevestieht te worden.
Soo syn de vooren persoonen op haer versoch op dato in heyligen houwelychen staet bevesticht ter vergaderinge int fort Amstm.
Translation.
Thomas de Conine and Marritje Frans van Beets appeared in court and re- quested to be legally united in marriage.
The above named persons are therefore this day at their request united in holy wedlock in court at Fort Amstm.
The importance of a marriage contract was recognized by the authorities of New Amsterdam in a proceeding brought before the Burgomasters and Schepens, February 24, 1653, by Peter Kock, an unmarried burgher and inhabitant of that city, against Annetie Cornelissen van Vorst, spinster, living at Ahas- imus (now a part of Jersey City). Jacob Stoffelsen, stepfather of defendant, appeared before the court and the litigants handed in some writings, presenting their respective sides of the case. The court ordered copies to be furnished to the parties, and that defendant appear in person, which she did March 10, and put in her answer. Various pleadings were presented to the court from time to time, and that body finding the subject too grave for their decision, referred it, on Feb. 19, 1654, to the Director and Council of New Netherland. They remitted the matter, May 4, 1654, to the Burgomasters and Schepens, with their solemn decision that "suit having been entered, judgment must follow, and if either party, after the decision, feel aggrieved by the judgment of the Burgomasters and Schepens, such person may appeal to the Supreme Council." The case was now re- ferred to a committee of three, who reported two weeks later : that a marriage contract or an oral promise of marriage had been mutually entered into between the parties, and in confirm- ation thereof certain gifts and presents were made by the de- fendant; but in consequence of certain misbehavior (on his part?) the defendant was in no wise disposed to marry said Pieter Kock, and proved by two witnesses that Pieter had re- leased her, with promise to give her a written acquittal to that effect. The Court thereupon adjudged : that the promise of
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MARRIAGE BANNS IN NEW NETHERLAND.
marriage having been made and given before the Eyes of God, should remain in force, so that neither plaintiff nor defendant should be at liberty, without the knowledge and approbation of the magistrates and the other one of the interested parties, to enter into matrimony with any other person, man or woman. And by way of encouraging a reconciliation, the Court further adjudged : "that all the presents made in confirmation of the promise of marriage should remain in the possession of defend- ant, until the parties, with the pleasure, good will, content- ment and inclination of both, shall marry together or with the knowledge of the magistrates release each other.""
There having appeared a tendency to ignore the law of Hol- land requiring the publication of the banns in the place of dom- icile of the parties, the Director and Council of New Nether- land passed an Ordinance, January 19, 1654, regulating the publication of Banns of Matrimony, as follows :
The Director General and Council of New Netherland,
To all who hear or see these presents read, Greeting, Make known.
That we understand and are certainly informed by the report of our fiscal and others as well as by letters from Gravesend dated 18 January, 1654, that the Mag istrates there have presumed and undertaken publickly to post notices of Mar- riage in regard to persons both of whom are, and for a long time have been domicil- iated in and about this city of New Amsterdam, far beyond the district of the afore- said village, and whereas such is in direct contradiction to both the Civil and Ec- elesiastical Law of the United Netherlands, which not only the abovementioned Magistrates of Gravesend but also all other Colonies within this Province are by contract and oath bound to observe: Therefore, the abovementioned 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 Marriages. 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 year.
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