USA > New Jersey > Marriage records, 1665-1800, Vol XXII (from various church records) > Part 6
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Such was the law of England in 1664, when New Jersey was granted to Berkley and Carteret.1
IV. SCOTTISH MARRIAGES.
The very scanty information we have regarding the earliest inhabitants of Scotland indicates that they preserved the tribal system of government some centuries later than the Teutonic peoples. We may dismiss the statement of Cæsar that the Picts (supposed to be the earliest, and possibly non-Aryan, dwellers in North Britain) were polyandrous, as a conclusion derived from imperfect observation, or based on misinforma- tion. As to the later invaders-the Brythones, the Gaels, and finally the Dalriadic Scots, who swept over from Scotia (or the North of Ireland) about A. D. 500 into Alba or Albany,
1 Lord Chancellor Hardwicke's act. passed in 1753. 26 Geo. II .. Cap. 33, went further than previous statutes in checking common law marriages, by providing that " all marriages solemnized after March 25th, 1754, in any other Place than a Church or Publiek Chapel, unless by special license. or that shall be solemnized without Publication of Banns, or License of Marriage from a Person or Persons having Authority to grant the same first had and obtamed, shall be null and void to all intents and purposes whatsoever." See Statutes at Large, VII .. 525. Lord John Russell's Dissenters' Marriage Act. passed Feb. 12th. 1836. authorized mar- riages of dissenters to be solemnized in their own chapels, registered for the pur- pose, after due notice to the registrar of the district. Dissenters desiring no re- ligious ceremony were enabled to enter into a civil contract before the superin- tendent registrar. See May's Const. Hist, of England (N. Y., 1865). II . 393.
xlix
EARLIEST SCOTTISH MARRIAGE CUSTOMS.
settling in Kintyre-we have somewhat clearer knowledge. They retained their tribal customs well on to the twelfth or thirteenth century ; and indeed there are traces of the primi- tive rule of the tribe or clan to this day among the Celtic- and Gaelic-speaking villages and hamlets. stronger in their influ- ence over the minds and habits of the people than church or state, although they have professed Christianity for fifteen cen- turies or more, and have been " civilized " by rude acts of Par- liament prescribing the cut of the beard and hair, the length of the coat, and even the family names they must bear. Exogamy seems to have been the prevalent custom, as among primitive tribes elsewhere., This, of course, indicates that marriage was a matter of bride- purchase. or of capture, with various modi- fications, according to circumstances.1 Readily as the people adopted Christianity, as early perhaps as the third or fourth century, it was with reluctance that they acknowledged to any degree the control of the church over marriage. The Ger- manic and Scandinavian settlers in later times in the Lowlands of Scotland were at one with their predecessors in this matter, so that the primitive idea that marriage was a private contract, to be arranged between the two parties most interested, with possibly the sanction of the family, the clan or the tribe, was
1 Lang's History of Scotland. I .. 77-82.
Ecclesiastical Antiquities of Down. Connor, and Dromore, etc., by the Rev. William Reeves. Dublin, 1847. 319-321; citing the annalist Tigernach, MacFirbis. and Keating.
The earliest Irish laws recognized three legal relations between men and women: "a first lawful wife;" " a first lawful adaltrach-woman;" and " an adal- trach-woman of abduction " " All were legal relations, and could not be dis- solved except by the will of both parties or by legal process. These relations are not defined; but I believe that the first was the only one that had a religious sane- tion. and that the second and third were merely civil relations, the third being distinctly stuprous and of itself scarcely conferring any right." "According to these laws a man might purchase a wife." See "The Brehon Laws." by Laurence Ginnell London, 1894, 211-214.
Chronicon Seotorum. A Chronicle of Irish Affairs, from the earliest times to A. D. 1135, etc. Edited. with a translation. by William M. Hennessy. London, 1866. As to the invasion of " Britain " (now Scotland) by the tribe of Dal Riada. see p. 35. The evidences of tribal rule. with petty chieftains, or righ, or "kings," are apparent on nearly every page of this valuable work.
Annals of the King of Ireland. by the Four Masters, from the earliest period to the year 1616. Dublin. IS51. passim.
Burton's History of Scotland. I., chap. i.
Acts of Parliament. temp. Hen. VIII .. passim.
Sir Walter Scot's novels are full of allusions to ancient tribal or clan customs. E
1
THE MERCHETA MULIERUM IN SCOTLAND.
most deeply seated among the inhabitants of this land, from the earliest times.2
Immediately after the Reformation the Scottish Parliament began to exercise jurisdiction over the subjects of marriage and divorce, passing acts in 1551 . Anent them that maries twa wives or husbandes ;" and in 1567 " Anent them that commit- tis incest," and " Anent lawful mariage of the awin blude, in degries not forbidden by God his Worde." The following is
2 It is said that in ancient times the Scottish nobles had gradually acquired the juris primæ noctis, so low had the people been abased. But when Malcolm was declared King of Scotland at Scone. April 25th, 1057, having with the assistance of Macduff driven off the throne the spoiled Macbeth, "it is reported that his wife obtained from him a decree that the degrading custom should be altered, and the husband have liberty to redeem it by paying half a mark of silver, which payment is yet called marcheta nulerium."-Buchanan's Hist. of Scotland. London. 1722. I .. 290. It should be noted, however, that Buchanan in this as in many other rela- tions follows closely the imaginative and rather unreliable Hector Boethius (Boyce or Boece), whose Scotorum Historic Libri was written about the middle of the fifteenth century; whereas such writers as Roger of Wendover. in his " Flow- ers of History." written prior to 1235 (Bolin's ed., London, 1849. I., 334. 363-4), An- dro of Wyntoun. in his "Orygynale Cronykil of Scotland." written 1420-1424; and John of Ferdun, "Chronicle of the Scottish Nation." writing at the close of the fourteenth century, although all speaking warmly of St. Margaret. make no ref- erence to this remarkable incident. "The Chronicon Scotorum." written proba- bly before 1127. merely mentions her death. p. 301. In John Hill Burton's exbaus- tive History of Scotland, there is an account of Margaret. I .. 380 fol .; and also in Andrew Lang's History of Scotland, I .. 90-98, but neither writer deems the story worth a reference, although it is just the kind that would appeal to the imagina- tion of Mr. Lang. with his fondness for and keen insight into ancient customs and folklore. It is probable that the legend arose from a misconception of the mean- ing of the term mercheta mulierum, which was really a fine paid by vassals or vil- leins to their chieftains or lords on the marriage of their daughters. a custom that seems more characteristic of the feudal system of Normandy, introduced a gener- ation later .- Lang's Hist. Scotland, I .. 153; Villainage in England, by M. Vinogra- doff, 153; Tribal Custom in Anglo-Saxon Law, by Frederic Seebohm, London, 1902, passim; Select Charters and other illustrations of English. Constitutional Histo- ?'y. . . . by William Stubbs, Oxford, 1870, 168. Traces of the custom in the sense used by Buchanan above are or were formerly found in certain manors in England, as mentioned in Thomas Blount's quaint little book: " Fragmenta Antiquitatis. Antient Tenures of Land, And Jocular Customs Of some Mannors." London. 1679, 143, 153. 159. There were indications of the custom in Scotland in the seven- teenth century, as appears by a small pamphlet. " A Modern Account of Scotland. . . . by an English Gentleman," printed in 1670, and reprinted in the Harleian Miscellany. London, 1810. VII , 440, 442. But the writer seems to have fallen into low conpany, and to have been intensely prejudiced against everything Scottish, so that his statements carry little weight. In that powerful work, La Sorcière: The Witch of the Middle Ages. by J. Michelet. London. 1863. pp 63-65, the writer gives a terrible picture of this shocking custom in France. He fancifully ascribes to it the development of the abused woman into the witch. The efforts of the church to assert the sanctity of marriage, under the claim that it was a sac- rament. found a powerful justification in these revolting practices.
li
SCOTTISH CIVIL JURISDICTION OVER MARRIAGES.
the text of the latter act, which is given herewith to show the view Parliament took of the marriage ceremony :
ITEM. Our Soveraine Lord. with advice & consent of my Lord Regent, and the three Estates of this present Parliament hes statute, and ordained. that the halie band of mariage made be all Estaites and sorts of men and women, to be als law- ful and als frie, as the Lawe of God hes permitted the samin. to be done, without exception of person or persones. And hes declared, and declares, that secunds in degrees of consanguinitie, and affinitie, and all degries outwith the samin, con- tained in the word of the Eternal God, and that are not repugnant to the said word, might, and may lawfully marry at all times sen the viii day of March, the zeir of God ane thousand five hundreth fiftie aucht zeiris, notwithstanding ony Law. statute, or constitution maid in the contrare. And ratifyis and apprevis all. the said mariages done sen the said day. And the bairnis gottin. or to be gottin, in sik Mariage to be as lauchful, asweil toward their succession to landis, her- itages, or ony other liberties. as ony bairnis gottin in Mariage, and to be repute and esteemed. in all times to cume, lauchfullie gottin, in lauchful Mariage, not- withstanding any Lawes. statutes, constitutionis, or Actis, maid or to be maid. in the contrare. 1
An act passed in 1573, " Anent them that divertis fra- uthers, being joyned of befoir, in lauchful mariage," enacts " that quhat-sumever person, or persons, joyned in lauchful Matrimonie, husband or wife, divertis frauthers companie. without ane reasonable cause alledged, or reduced befoir a Judge, and remainis in their malicious obstinacie, be the space of four zeires, and in the meantime, refusis all privie admonitions," the wronged husband or wife could apply to the Lords of Session, and on due proof the offender should be " denounced rebel, and put to the hone ;" whereupon the in- jured party could apply to the lawful archbishop or other spir- itual authority to direct privie admonitions to the offender, and in case of disobedience by him or her, the offender should be excommunicated, " quhilk anis being pronounced, the ma- licious and obstinate defection of the partie offender, to be ane sufficient cause of divorce, and the said parties offender to tyne and lose their tocher, & donationes propter nuptias."
The Kirk of Scotland was quite as ready as its predecessor to regulate marriage, condemning in 1560 " secret joining in marriage ;" and in 1572 the commissioners appointed " to treat and conclude anent all matters tending to the ordering and es- tablishing of the Policie of the Kirk," concluded among other things : " that ther be readers specially appointed at every speciall kirk, where it may be done conveniently, who, being
1 Seots Acts, Fifth Parliament. James Sext .. I., 365.
lii
SCOTTISH MARRIAGE RITUAL.
found qualified by the Bishop or Superintendent, and entering by the lawfull order of the true Reformed Kirk, shall minister the sacrament of baptisme, and solemnize marriage after law- ful and orderly proclamation of bannes, as effiers." About 1630 one of the criticisms upon the new Bishops was " that hereunto they grant liberty to solemnize marriage without ask- ing of banns."1
The " Book of Geneva," based upon the order of service drafted in 1554 by John Knox and others, for the use of the English congregation at Frankfort, was published at Geneva in 1556, and on Knox's return to Scotland in 1559, this book began to come into general use in that country, the General Assembly in 1562 enjoining its use in the "solemnisation of marriages," etc. With some slight modifications this " Book of Common Order," as it was called, embodied the law of the Scottish Church as to worship from 1564 till 1645, and was frequently recognized in acts of Parliament. It required the publication of the banns or contract for three several days in the congregation, at the expiration of which the parties were to assemble at the beginning of the sermon, whereupon the Minister would read the Exhortation. and ask for objections, if any. If none, then he would say to the man :
Forasmuch as no man speaketh against this thing. You N. shall protest here before God and His holy Congregation, that you have taken, and are contented to have M. here present for your lawful Wife, promising to keep her. to love and in- treat her in all things, according to the duty of a faithful Husband. forsaking all other during her life; and briefly, to live in an holy conversation with her, keep- ing faith and truth in all points, according as the Word of God, and His holy Gos- pel doth command.
Whereto the man was required to answer as follows :
Even so I take her. before God. and in the presence of this His Congregation.
The Minister was then to say to the woman :
You M. shall protest here before the face of God, and in the presence of this His Congregation. that ye have taken, and are now contented to have N here present for your lawful Husband, promising to him subjection and obedience. for- saking all other during his life; and. finally, to live in an holy conversation with him, keeping faith and truth in all points, as God's Word doth prescribe.
To which she was required to answer thus :
Even so I take him, before God. and in the presence of this His Congregation.
1 An Apologetical Narration of the State and Government of the Kirk of Scot- land since the Reformation, by William Scot. Edinburgh. printed for the Wodrow Society, 1846. 9. 23. 323.
liii
SCOTTISH MARRIAGE RITUAL.
The Minister was then to read from St. Matthew xix., add- ing : "If ye believe assuredly these words . . . then may ye be certain, that God hath so knit you together in this holy es- tate of Wedlock ;" following with a blessing.1
In the Westminster Assembly of Divines, 1643-4, in dis- cussing the subject of marriage, it was objected that the fore- going ritual gave too much authority to the Minister, inasmuch as he uttered the promises of the contracting couple, who merely assented thereto ; objection was also made to his pro- nouncing the final blessing, instead of praying for them. Ac- cordingly, in the Directory of Worship, adopted by that body in December, 1644, and accepted by the General Assembly of the Kirk of Scotland, and by the Scottish Parliament, in Febru- ary, 1645, it was expressly declared :
Although Marriage be no Sacrament, nor peculiar to the Church of God, but common to mankind. and of public interest in every commonwealth; yet, because such as marry are to marry in the Lord, and have special need of instruction, di- rection and exhortation from the Word of God at their entering into such a new condition. and of the blessing of God upon them therein, we judge it expedient that Marriage be solemnised by a lawful Minister of the Word, that he may ac- cordingly counsel them, and pray for a blessing upon them.
The Directory provides for the customary publishing of the banns by the Minister three several Sabbath Days, in the Con- gregation, at the place or places of their most usual and con- , stant abode, respectively, and finally prescribes this ritual :
The Minister (if no impediment be acknowledged) shall cause first the Man to take the Woman by the right hand. saying these words:
I N. do take thee N. to be my married Wife, and do. in the presence of God, and before this Congregation promise and covenant to be a loving and faithful Husband unto thee, until God shall separate us by death.
Then the Woman shall take the Man by his right hand, and say these words:
IN do take thee N. to be my married Husband, and I do in the presence of God. and before this Congregation. promise and covenant to be a loving, faithful, and obe- dient Wife unto thee, until God shall separate us by death.
Then, without any further ceremony.2 the Minister shall, in the face of the Con- gregation. pronounce them to be Husband and Wife. according to God's ordi- nance.3
1 The Book of Common Order of the Church of Scotland, commonly known as John Knox's Liturgy, and The Directory for the Public Worship of God. agreed upon by the Assembly of Divines at Westminster. with Historical Introductions. etc., Edinburgh and London. 1868, xiii-xvi, xlv. lxii. 132.
2 That is. omitting the use of the ring. to which the Scottish Reformers were always opposed.
3 The Book of Common Order of the Church of Scotland, as cited. 261-6, 312- 313, 358-361. The Parliamentary recognition of the Directory in 1645 was annulled by the Act Rescissory. at the Restoration. "The [Scottish] Church. however.
liv
SCOTTISHI LAW AGAINST CLANDESTINE MARRIAGES.
The Parliament of Scotland in 1661 passed an "Act against clandestine and unlawful marriages," as follows :
OUR Sovereign Lord. and the Estates of this present Parliament. considering how necessar it is, that no Marriage be celebrat, but according to the laudable order and constitution of this Kirk; and by such persons, as are by the Authority of this Kirk warranted to celebrat the same. And notwithstanding hereof, sun- dry, either out of disaffection to the Religion presently professed in this King- dom, or being desirous to eschew the Censures of this Kirk, or to satisfie their promise of Marriage formerly made to others, or to decline the concurrence and consent of their Parents or others having interest, or out some other unlawful pretext, do procure themselves to be Married, and are Married either in a Clan- destine way, contrary to the established order of the Kirk, or by Jesuits Priests. Deposed or Suspended Ministers, or any other not authorized by this Kirk. Therefore His Majesty, with advice of His said Estates. Statutes and Ordains, that whatsoever person or persons, shal hereafter Marry or procure themselves to be Married in a Clandestine and inorderly way or by Jesuits. Priests, or any other not authorized by this Kirk; that they shal be imprisoned for three months, & beside their said imprisonment shal pay, each Nobleman, one thousand pound Scots, each Barron and landed Gentleman, one thousand merks, each Gentleman and Burgess, five hundred pounds, each other person, one hundred merks: and they shal remain in prison, ay and while they make payment of these respective penalties above-mentioned, which are hereby ordained. to be applyed to pious uses. within the several Paroches where the said person dv'ells. And that the Celebrator of such Marriages be banished the kingdom, never to return therein. under the pain of death. Likeas His Majesty, with advice foresaid, Prohibits and Discharges all men and women, having both their ordinar residence within this kingdom. to get Marriage to themselves with others within the Kingdom of England, or Ireland, without Proclamation of Bannes here in Scotland. and against the Order and Constitution of this Church, or Kingdom, under the pains following, viz. For each Nobleman so Married, one thousand pounds, for each landed Gentleman, one thousand merks; for each Burgess, five hundred pounds: and for each other Substantious person, five hundred merks; for an Yeoman, one hundred pounds; for each person of inferior quality, one hundred merks; the one half of the which penalties, shal belong to the Kings Majestie, the other to the Paroch, or Paroches where the Married Parties did reside; and Ordains His Majesties Advocat, and the Procurator for the Kirk, to pursue before the civil Judge, the Parties Contraveeners of this Act, or either part thereof, for payment of the penalties respective above-mentioned; And in the case of the poor con- dition of any man, married in manner of foresaid, Ordains him to be punished with Stocks and Irons: which pains corporal and pecunial, shall no ways be preju- dical to, or derogst from, the Order and Censures of the Kirks, to be inflicted against the Delinquents. 1
The real object of this act was to discredit the Presbyterian ministers who had signed the Solemn League and Covenant, and to require marriages to be celebrated only by ministers of the Established, or Episcopal, Kirk. This not proving effec- tive, another act was passed in June, 1672, providing that per-
1 Scots Acts, Chap. 14, First Parliament. Charles II., 193.
though not rigidly conforming to the Directory. has never treated it as an obsolete . statute. "-Ibid., 268 -271.
lv
THE SCOTTISH LAW OF MARRIAGE.
sons married by ministers not ordained by the Bishops should " amit and lose any Right or Interest they may have by that Marriage, jure mariti, vel jure relictæ, and by and attour the Pains and Penalties provided by the Act of Parliament in anno 1661, against disorderly and clandestine Marriages." In 1679, at the suggestion of Lauderdale, and with the approval of the Privy Council, the King's officers were instructed to prosecute vigorously all recalcitrants against the Established Kirk, including those "guilty of illegal marriages," and on August 31, 16SI, an .. Act anent Religion and the Test " was passed, for the more vigorous enforcement of the laws against conventicles, religious services in private houses, and " disor- derly baptisms and marriages," meaning such as were not cele- brated by the Episcopally-ordained clergy.1
Nevertheless, it will be observed that these several statutes, although prescribing the requirements of a lawful marriage, scarcely went so far as to declare irregular marriages null and void, and they went on very much as before, being contracted privately by and between the parties, with- out any intervening priest, preacher or other officer, or by priests or preachers not of the Kirk of Scotland, or by civil magistrates, as had been the custom from time whereof the memory of man knew not to the contrary. For, by the com- inon law of Scotland nothing further was necessary to con- stitute a man and woman, husband and wife, than a mutual dec- laration of consent by the parties, before witnesses, to constitute. as at that date, the relation of husband and wife Or such declaration in writing, without witnesses, constituted a mar- riage, which was considered binding in all respects.2
Or, as Lord Mackenzie has stated the law, more explicitly :
"In Scotland marriage is a civil contract, constituted by the mutual consent of the parties. The consent to marriage must be to a present act ; a promise or engagement to marry
1 The History of the Sufferings of the Church of Scotland. from the Restaura- tion to the Revolution. etc. by Mr. Robert Wodrow. Endinburgh. 1721. I .. 350, Appendix, 135; II .. 10. 12. 1s. Appendix. 36. 60.
2 Institutes of the Law of Scotland, by Lord Stair. I .. 26: 1 Rol. 342. Wilkie Collins's novel. "The Law and the Lady. " is an exposition of some of the intri- caries of this apparently very simple Scottish law of marriage.
lvi
THE SCOTTISH LAW OF MARRIAGE.
at a future period, however formal, where no sexual inter- course has followed upon it, may be retracted, though the per- son retracting may be liable in damages for breach of promise. To the marriage of minors the consent of parents or guardians is not necessary.
" The law of Scotland recognises four different modes by which marriage may be constituted ; ( Ist) A public or regular marriage celebrated by a minister after proclamation of banns : (2d) The deliberate exchange of matrimonial consent by words de præsenti,' without the nuptial benediction or concubitus ; (3d) Promise of marriage followed by copula, at least when declared a marriage by an action of declarator in the Court of Session ; (4th) Cohabitation as man and wife, and being held and reputed as married persons.
" A public or regular marriage is one celebrated by a cler- gyman, in presence of two or more witnesses, after due procla- mation of banns according to the rules of the Church. All marriages entered into in any other form are clandestine or ir- regular ; but if the matrimonial consent has been seriously and deliberately interposed, they are equally effectual with regular marriages, though they expose all concerned in them to certain statutory penalties, which, however, are seldom if ever en- forced in modern times.
" As to irregular marriages, and the evidence by which they may be established, we cannot do better than lay before our readers a short exposition of the law in the words of Lord Moncreiff, whose authority in consistorial questions is justly entitled to the greatest weight : 'The governing rule of law is unquestionably that marriage is constituted by the consent of
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