USA > New Jersey > Marriage records, 1665-1800, Vol XXII (from various church records) > Part 5
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The authority of the church in the celebration of marriages was first generally recognized in the time of Innocent III.3 The canon law was introduced in England in the reign of Henry I., and was gradually extended in its power and scope as the influence of the church became more firmly established. The canons of the Church of England threw many safeguards about the ordinance, prohibiting marriages without publishing the banns, or without a license, under heavy penalties.+ The privilege of granting licenses dispensing with the publishing of the banns for three Sundays, and other requisites of the canon law, was highly prized by the church, and especially by the Pope and his prelates. One of the first acts of Henry VIII. and his Parliament, after his breaking away from Rome, was to deprive the Pope of any power in relation to marriages in England,5 by the enactment of a statute (25 Hen. VIII., A. D.
1 Comb. 202; Cowp. 232. 241: Rep. 877; Espin. Ni. Pr. Cases. 213: 7 Bacon's Abridg. 571.
2 Cases cited in William Nelson's Abridgement of the Common Law of Eng- land, London, 1726. II., 1163.
3 " Before the time of Pope Innocent III. there was no solemnization of mar- riage in the church; but the man came to the house where the woman inhabited and led her home to his own house, which was all the ceremony then used. "- Moor. 170.
4 Rubrick. Canons 62, 63. 101. 102. 104; 2 Burn's Ecc. Law. 427. "These Canons were made in Convocation. and confirmed by Letters Patent, and are become Part of the Law of the Land. for the Government of the Church."-The Rights of the Clergy. etc., by Wm. Nelson. London, 1732, 416-422.
. 5 As the clergy were formerly the only educated persons, they arrogated to themselves the legal profession in all its branches. As to the practice temp. Hen. II., see Pollock and Maitland. I .. 125-131. Later the claims of the clergy were much broader. The English Parliament in the sixteenth century objected particularly to these two provisions of the canon law : " All manner of Causes, whatsoever they be. Spiritual or Temporal. ought to be determined and judged by the Clergy." " Whosoever teacheth or thinketh of the Sacraments otherwise than the See of Rome doth teach and observe, and all they that the same See D
xlii
THE ARCHBISHOP OF CANTERBURY VS. THE POPE.
1534, cap. 21), which contained these among other provisions :
III. And be it further enacted by the Authority aforesaid, That neither your Highness, your Heirs nor Successors, Kings of this Realm. nor any your Sub- jects of this Realm. nor of any other your Dominions. shall from henceforth sue to the said Bishop of Rome, called the Pope, or to the See of Rome, or to any Person or Persons having or pretending any Authority by the same, for Licences, Dispensations, Compositions, Faculties. Grants, Rescripts, Delegacies, or any other Instruments or Writings of what Kind. Name. Nature or Quality soever they be of, for any Cause or Matter, for which any Licence, Dispensation. Com- position. Faculty. Grant. Rescript, Delegacy, Instrument. or other Writing, here- tofore hath been used and accustomed to be had and obtained at the See of Rome. or by Authority thereof, or of any Prelates of this Realm: (2) nor for any manner of Licences, Dispensations, Compositions, Faculties, Grants, Rescripts, Delega- cies, or any other Instruments or Writings that in Causes of Necessity may law- fully be granted without offending of the Holy Scripture and Laws of God; (3) but that from henceforth every such Licence, Dispensation. Composition. Fac- ulty. Grant, Rescript. Delegacy. Instrument and other Writing afore named and mentioned. necessary for your Highness, your Heirs and Successors, and your and their People and Subjects, upon the due Examinations of the Causes and Quali- ties of the Persons procuring such Dispensations. Licences, Compositions. Fac- ulties, Grants. Rescripts, Delegacies, Instruments or other Writings, shall be granted. had or obtained, from Time to Time, within this your Realm, and other Dominions, and not elsewhere. (4) in Manner and form following. and none other- wise; that is to say, The Archbishop of Canterbury for the Time being, and his Successors, shall have power and Authority. from Time to Time. by their Disere- tion, to give, grant and dispose, by an Instrument under the Seal of the said Arch- bishop, unto your Majesty. and to your Heirs and Successors, Kings of this Realm, as well all manner such Licences, Dispensations. Compositions, Faculties, Grants, Rescripts, Delegacies, Instruments and all other Writings, for Causes not being contrary or repugnant to the Holy Scriptures and Laws of God. as heretofore hath been used and accustomed to be had and obtained by your Highness, or any your most noble Progenitors, or any of your or their Subjects, at the See of Rome, or any Person or Persons by authority of the same; (5) and all other Licences, Dis- pensations, Faculties, Compositions. Grants. Rescripts. Delegacies. Instruments. and other Writings, in, for and upon all such Causes and Matters as shall be convenient and necessary to be had, for the Honour and Surety of your Highness. your Heirs and Successors and the Wealth and Profit of this your Realm; (6) So that the said Archbishop or any of his Successors. in no manner wise shall grant any Dispensation. Licence. Rescript, or any other Writing afore rehearsed, or any Cause or Matter repugnant to the Law of Almighty God.
IV. Be it also enacted by Authority aforesaid, That the said Archbishop and his Successors, after good and due Examination. by them had, of the Causes and Qualities of the Persons procuring such Licences Dispensations, Compositions, Faculties. Delegacies, Rescripts, Instruments or other Writings shall have full Power and Authority by themselves, or by their sufficient and substantial Com- missary or Deputy, by their Discretions. from Time to Time. to grant and dis- pose, by any Instrument under the Name and Seal of the said Archbishop. as well to any of your Subjects, as to the Subjects of your Heirs and Successors,
doth judge Hereticks, be Excommunicate." The clergy in general held that of the seven sacraments then generally recognized. matrimony was the only one ex- pressly mentioned in scripture .- Burnet's History of the Reformation of the Church of England, I., 116, 262, 263, 330; Collections, 203. 206-7. And see "The Constitutional History of England." by William Stubbs. Oxford, 1880, III .. 351, 372, 374, 379.
xliii
THE ARCHBISHOP OF CANTERBURY VS. THE POPE.
all manner Licences, Dispensations, Faculties. Compositions, Delegacies, Re scripts, Instruments or other Writings for any such Cause or Matters. whereof heretofore such Licences, Dispensations, Compositions, Faculties, Delegacies, Rescripts, Instruments or Writings, have been accustomed to be had at the See of Rome or by the Authority thereof. or of any Prelate of this Realm.
V. And that the said Archbishop and his Commissary, shall not grant any other Licence. Dispensation. Composition, Faculty, Writing or Instrument. in cases un- wont, and not accustomed to be had or obtained at the Court of Rome. nor by Au- thority thereof, nor by any Prelate of this Realm, until your Grace. your Heirs and Successors, or your or their Council shall be first advertised thereof. and de- termine whether such Licence. Dispensations, Compositions, Faculties, or other Writings in such Cases unwont and not accustomed to be dispensed withal, or ob- tained, shall commonly pass as other Dispensations. Faculties. or other Writings, shall or no; (2) upon Pain that the Grantors of every such Licence, Dispensa- tion, or Writing. in such Cases unwont. contrary to this Act shall make Fine at the Will and Pleasure of your Grace, your Heirs and Successors; (3) and if it be thought and determined by your Grace. your Heirs or Successors, or your or their Council, that Dispensations, Faculties, Licences, or other Writings, in any such case unwont, shall pass, then the said Archbishop or his Commissary, hav- ing Licence of your Highness, your Heirs or Successors for the same, by your or their Bill assigned, shall dispense with them accordingly 1
The somewhat belated scruples of Henry VIII., as to the validity of his marriage to Catharine of Arragon, because she had been espoused to his elder brother more than a score of years before, having been appeased by the annulment of the marriage, by the Archbishop of Canterbury, notwithstanding the denunciation of Rome, after a variety of new matrimonial ventures2 the exigencies of his crown and the interests of his
1 Statutes at Large, London, 1770, II., 193-5. And see Burnet's Hist. of the Reformation. I., 144. The fees attached to the various services of the clergy formed a lucrative source of wealth to the church, The fee for a marriage license, at first 4s., by the middle of the eighteenth century was about £1, 5s., and of course more could be exacted. according to the urgency of the prospective bride- groom. The cupidity of the clergy led to many abuses and scandals. John Eve- lyn notes in his diary: " [1635] 14th [July] No sermon at church; but after pray- ers, the names of the parishioners were read, in order to gather the tax of 4s. for marriages, burials. &e. a very imprudent tax. especially this reading the names. so that most went out of the church." The clergy found it profitable often to ignore the law requiring the publication of banns or a license. and permitted mar- riages to be performed in their churches or chapels without either. by strolling ministers, having no benefices or settled habitations; and marriages were also celebrated by parsons in prison, without licenses. These irregular practices were prohibited under severe penalties in 1688 by act of 1 W. & M., cap. 35; in 1696, by act of 7 and 8 William III., cap. 35; in 1711 by act of 10 Anne. cap. 19. sec. 176; and in 1753 by act of 26 Geo. II .. cap. 33. See Statutes at Large. III., 358. 634; IV., 563; VII., 5'5. An interesting description of the manner in which the law was very generally disregarded by the English clergy, from the highest to the low- est, is given in a little pamphlet printed in 1691, and reprinted in the Harleian Miscellany, London, 1810, IX., 500-507.
2 His fourth marriage. to Anne of Cleves. in 1540. was celebrated "publicly, with great pomp, in the face of the church," writes Richard Hilles to HIenry Bullinger.
xliv LEGITIMIZATION OF ISSUE OF CERTAIN MARRIAGES.
subjects demanded the legitimization of the issue of marriages made despite previous contracts, and accordingly a new stat- ute (32 Hen. VIII., A. D., 1540, cap. 3S) was enacted, " For Marriages to stand notwithstanding Precontracts," as follows :
WHEREAS heretofore the usurped Power of the Bishop of Rome hath always entangled and troubled the meer Jurisdiction and regal Power of this Realm of England, and also unquieted much the Subjects of the same. by his usurped Power in them, as by making that unlawful which by God's Word is lawful, both in Marriages and in other Things, as hereafter shall appear more at length. and till now of late in our Sovereign Lord's Time, which is otherwise by Learning taught than his Predecessors in Times past of long Time have been, hath so con- tinued the same. whereof yet some Sparks be left, which hereafter might kindle a great Fire, and so remaining, his Power not to seem utterly extinct:
II. Therefore it is thought most convenient to the King's Highness, his Lords Spiritual and Temporal, with the Commons of this Realm. assembled in this pres- ent Parliament, That two Things specially for this Time be with Diligence pro- vided for, whereby many nconveniences have ensued, and many more mought ensue and follow: (2) as where heretofore divers and many Persons, after long continuanee together in Matrimony. without any Allegation of either of the Parties, or any other at their Marriage, why the same Matrimony should not be good, just and lawful, and after the same Matrimony solemnized and consummate by carnal Knowledge, and also sometime Fruit of Children ensued of the same Marriage, have nevertheless, by an unjust law of the Bishop of Rome, which is, That upon Pretence of a former Contract made, and not consummate by carnal Copulation (for Proof whereof two Witnesses by that Law were only required) been divorced and separated. contrary to God's Law. and so the true Matrimony. both solemnized in the face of the Church, and consummate with bodily Knowl- edge, and confirmed also with the Fruit of Children had between them. clearly frustrate and dissolved; (3) Further also, by reason of other Prohibitions than God's Law admitteth. for their Lucre by the Court invented. the Dispensations whereof they always reserved to themselves. as in Kindred or Affinity between Cousin-Germanes, and so to third and fourth Degree. carnal Knowledge of any of the same Kin. or Affinity before such outward Degrees, which else were lawful, and be not prohibited by God's Law; (4) and all because they would get the Money by it. and keep a Reputation to their usurped Jurisdiction, whereby not only much Discord between lawful married Persons hath (contrary to God's Ordinanee) arisen. much Debate and Suit at Law. with Wrongful Vexations, and great Dam- age of the innocent Party hath been procured, and many just Marriages brought in doubt and Danger of undoing, and also many Times undone. and lawful heirs disinherited. whereof there had never else, but for his vain-glorious Usurpation. been moved by such Question. since Freedom in them was given us by God's Law, which ought to be most sure and certain; (5) but notwithstanding. Marriages have been brought into such an Incertainty thereby, that no Marriage could be so surely knit and bounden. but it should lie in either of the Parties Power and Ar- biter, casting away the fear of God, by Means and Compasses to prove a Pre con- tract. a Kindred and Alliance, or a Carnal Knowledge. to defeat the same, and so under the Pretence of these Allegations afore rehearsed, to live all the Days of their Lives in detestable Adultery, to the utter Destruction of their own Souls, and the Provocation of the terrible wrath of God upon the Places where such Abominations were used and suffered: (6) Be it therefore enacted by the King our Sovereign Lord. the Lords Spiritual and Temporal, and the Commons. in this
in 1541. shortly after the event. See "Original Letters relative to the English Reformation." etc., 1537-1558. Parker Society Publications. Cambridge, 1846, 201.
xlv
EVIL RESULTS OF THIS LEGISLATION.
present Parliament assembled, and by Authority of the same. That from the first Day of the Month of July next coming in the Year of our Lord God 1540, all and every such Marriage as within this Church of England shall be contracted between lawful Persons, (as by this Act we declare all Persons to be lawful, that be not prohibited by God's Law to Marry) ; (7) such Marriages being contracted and solemnized in the Face of the Church. and consummate with bodily Knowl - edge, or Fruit of Children or Child being had therein between the Parties so mar- ried, shall be by the Authority of this present Parliament aforesaid deemed, judged and taken to be lawful, good, just and indissoluble. notwithstanding any Pre contract or Pre contracts of Matrimony not consummate with bodily Knowl- edge, which either of the Parties so married or both shall have made with any other Person or Persons before the Time of contracting that Marriage which is solemnized and consummate, or whereof such Fruit is ensued, or may ensue, as afore, and notwithstanding any Dispensation. Prescription. Law, or other Thing granted or confirmed by Act, or otherwise; (8) and that no Reservation or Prohi- bition, God's Law except, shall trouble or impeach any Marriage without the Levitical Degrees; (9) and that no Person. of what Estate, Degree or Condition soever he or she be, shall, after the first Day of the said Month of July aforesaid, be admitted in any of the Spiritual Courts within this the King's Realm, or any of his Grace's other Lands and Dominions, to any Process, Plea or Allegation, contrary to this aforesaid Act.1
This statute was repealed in 1548 (2 and 3 Edw. VI., cap. 23), the repealing act naively setting forth as the reason thereof :
Sithence the Time of which Aet, although the same was godly meant, the Un- ruliness of Man hath ungodly abused the same, and divers Inconveniences (intol- erable in manner to Christian Ears and Eyes) followed thereupon. Women and Men breaking their own Promises and Faiths made by the one unto the other. so set upon Sensuality and Pleasure that if after the Contract of Matrimony they might have whom they more favoured and desired, they could be content by Light- ness of their Nature to overturn all that they had done afore. and not afraid in Manner, even from the very Church Door and Marriage-Feast. the Man to take another Spouse, and the Espoused to take another Husband, more for bodily Lust and carnal Knowledge. than for Surety of Faith and Truth, or having God in their good Remembrance. contemning many Times also the Commandment of the Eccle- siastical Judge, forbidding the parties having made the Contract to attempt to do anything in Prejudice to the same:2
An act passed in 1604 (2 Jac. I., cap. 11) made bigamy by any person living in England or Wales, a felony, punish- able by death, the penalty to be enforced in any country where the offender might be apprehended. The act was not to extend, however, to any person or persons whose husband or wife should be "continually remaining beyond the seas by the space of seven years together, in any parts within his majesty's dominions, the one of them not knowing the other to be living within that time;" nor to persons lawfully di-
1 Statutes at Large, London, 1770, II., 298. And see Burnet's Hist. of the Ref- ormation in England, I., 283.
2 Statutes at Large. London, 1770, II., 422.
xlvi
THE COMMONWEALTH'S MARRIAGE LAW.
vorced, or whose marriage should have been annulled ; nor to any person who had married within the age of consent.1
One of the earliest acts of the Commonwealth Parliament was to deal a blow at the supremacy of the church, in its most intimate relations with the people, by providing that marriages should be celebrated only by a justice of the peace. The ex- cellent existing provisions of the canons and of the statutes for the publication of banns were preserved, and a careful system was prescribed for keeping a register of births, marriages and burials.2 This was the protest of England's Puritans and other dissenters against the Roman dogma that marriage was a sac- rament, that could be celebrated only under the sanction of the church. Milton and other leaders in the Commonwealth in- sisted that it was a civil contract, and this legislation was the outcome.
The act (passed August 24, 1653) provides :
Be it Enacted by the authority of this present Parliament. That whosoever shall agree to be married within the Commonwealth of England, after the Nine and twentieth day of September, in the year One thousand six hundred fifty three, shall (one and twenty days at least before such intended Marriage) deliver in writing, or cause to be so delivered unto the Register (hereafter appointed by this Act) for the respective Parish where each party to be married liveth, the names surnames, additions, and places of aboad of the parties so to be married. and of their Parents, Guardians or Overseers: All which the said Register shall publish or cause to be published, three several Lords-days then next following, at the close of the morning Exercise, in the publique Meeting-place commonly called the Church or Chappel; or (if the parties so to be married shall desire it) in the Market-place next to said Church or Chappel: on three Market-days in three sev- eral weeks next following, between the hours of eleven and two; which be- ing so performed. the Register shall (upon request of the parties concerned) make a true Certificate of the due performance thereof. without which Certifi- cate, the persons herein after authorized shall not proceed in such marriage: And if any Exception shall be made against the said intended Marriage, the Register shall also insert the same. with the name of the person making such Exception, and their place of aboad. in the said Certificate of Publication,
And it is further Enacted, That all such persons so intending to be married, shall come before some Justice of Peace within and of the same County, City or Town Corporate where publication shall be made as aforesaid; and shall bring a Certificate of the said publication and shall make sufficient proof of the consent of their Parents or Guardians. if either of the said parties shall be under the age of One and twenty years: And the said Justice shall examine by witnesses upon Oath. or otherways (as he shall see cause) concerning the truth of the Certificate. and due performance of all the premises: and also of any exception made or aris- ing; And (if there appear no reasonable cause to the contrary) the Marriage shall proceed in this manner :
1 Statutes at Large. London, 1770, III., 9.
2 No registration of this kind was required by the canon law. and no such sys- tem was known before the Reformation.
xlvii
THE COMMONWEALTH'S MARRIAGE LAW.
The Man to be married, taking the Woman to be married by the hand, shall plainly and distinctly pronounce these words:
1 A. B. do here in the presence of God the searcher of all hearts, take thee C. D). for my wedded Wife, and do also in the presence of God. and before these wit- nesses, promise to be unto thee a loving and faithful Husband.
And then the Woman, taking the Man by the hand, shall plainly and distinctly pronounce these words:
I C. D. do here in the presence of God. the searcher of all hearts, take thee A. B. for my wedded Husband, and do also in the presence of God. and before these witnesses, promise to be unto thee a loving, faithful and obedient Wife.1
And it is further Enacted, That the Man and Woman having made sufficient proof of the consent of their Parents or Guardians as aforesaid. and expressed their consent unto Marriage, in the manner and by the words aforesaid, before such Justice of Peace in the presence of two or more credible Witnesses; the said Justice of Peace may and shall declare the said man and woman to be from thenceforth Husband and Wife; and from and after such consent so expressed. and such declaration made, the same. (as to the form of Marriage) shall be good and effectual in Law; And no other Marriage whatsoever within the Common- wealth of England, after the 29th of September, in the year One thousand six hundred fifty three, shall be held or accompted a Marriage according to the Laws of England: But the Justice of Peace (before whom a Marriage is solemnized) in case of dumb persons, may dispense with pronouncing the words aforesaid; and
with joining hands in case of persons that have not hands. And the said Justice of Peace (if it be desired) shall give unto the parties so married a Certificate in Parchment under his hand and seal, of such marriage. and of the day of the solemnization thereof. and of two or more of the witnesses then pres- ent; and the Justices Clerk for this Certificate may receive Twelve pence and no more: And if such Certificate shall be produced to the Clerk of the Peace for that County. and request made to him to make an Entry thereof. then the said Clerk of the Peace is hereby required to enter the same in a Book of Parchment to be provided for that purpose, and kept amongst the Records of the said Sessions, and to restore the said Certificate; for which Entry. the Clerk of the Peace may receive Four pence and no more.
Other provisions raised the marriageable age of the man to consent unto marriage to sixteen years, and of the woman to fourteen years, instead of fourteen and twelve respectively.2 Another important clause vested the jurisdiction of all matters and controversies touching contracts and marriages in the court of general quarter sessions of the county, instead of in the ecclesiastical courts.3
Immediately after the Restoration, the authority of the ciergy in respect to marriages was revived ( 1660, 12 Chas. II., cap. 33), but "all marriages had or solemnized in any of his
1 This was the usual form of a common law marriage.
2 By the civil and the common law the age of consent of the man was fourteen. and of the woman twelve years. 1 Rol. 342. But by the common law persons may marry at any age. Co. Litt. 33 a
3 Scobell's Acts and Ordinances; Nelson's Abridgement of the Common Law: Hallam's Const. Hist. of England (N. Y., 1865). IE., 235: Hume's Hist. of England. V., 442; 3 Bacon's Abridgement. 575.
xlviii
THE MARRIAGE LAW OF ENGLAND IN 1664.
Majesty's dominions since May Ist, 1642, before any justice of the peace, or reputed justice of the peace of England, or Wales, or other his Majesty's dominions, and by such justice pronounced or declared, and all marriages within any of his Majesty's dominions, since May ist, 1642, had or solemnized according to the direction or true intent of any act or ordi- nance, or reputed act or ordinance of one or both houses of parliament, or of any convention sitting at Westminster, under the name, stile or title of a parliament, or assuming that name, stile or title ; shall be, and shall be adjudged, esteemed and taken to be, and to have been of the same, and no other force and effect, as if such marriages had been and solemnized ac- cording to the rites and ceremonies established, or used in the church or kingdom of England." All pending suits for and concerning marriages had and solemnized, as aforesaid, were to be tried by a jury of twelve men, as at the common law.
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