USA > New Jersey > Marriage records, 1665-1800, Vol XXII (from various church records) > Part 7
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1 In accordance with the general principle that a marriage per verba de presenti. without religious or other ceremony. if valid where celebrated is valid every- where. it has been held by the English courts that such marriages in Scotland. prior to 19 and 20 Viet. chap. 96 between persons domiciled in England. would be recognized in England. notwithstanding that they would have been invalid if cele- brated in England. Ilderton v. Ilderton, 2 H. Bl. 145: McAdam v. Walker (1813). 1 Dow. 148, where the whole subject of Scottish marriages was care- fully considered by the House of Lords: Dalrymple v. Dalrymple (the leading case). 2 Hagg. C. R 95: Bell v. Graham. 13 Moore. P. C. C. 242. 1 L. T. N. S. 221. 8 Week. Rep 98; Dysart Peerage Case (1881). L R. 6 App. Cas. 489, 512; Lovat Peerage Case. L. R. 10 App Cas. 763. The same general principle has been repeatedly affirmed in New Jersey. Clark v. Clark. 52 N. J. Eq. 650 (1894). 30 Atl. 81: Smith v. Smith. 52 N. J. L. 207 (1889). 19 All. 255.
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NEW ENGLAND MARRIAGE CUSTOMS.
the parties alone ; and that upon legal and satisfactory evidence that such mutual consent has been seriously and deliberately interposed, the Court will declare such marriage, though it should be clear that no formal ceremony or celebration has taken place.' "1
And this was the idea of marriage brought to New Jersey by the Scottish immigrants and refugees who fled or were banished from Scotland in 1685 and thereafter, to escape the persecutions of the prevailing ecclesiastical power in that country.2
V. NEW ENGLAND MARRIAGE CUSTOMS.
New Jersey was settled so largely by people from New Eng- land that they exercised a marked influence in the new colony on public sentiment and legislation, marriage regulations in- cluded. The Pilgrims and the Puritans who left England to found new homes in America were especially determined to assert their independence of the authority of the church over their domestic affairs-at least, when that authority did not co-
1 Studies in Roman Law with comparative views of the Laws of France. Eng- land and Scotland. By Lord Mackenzie. Edited by John Kirkpatrick. Fifth edi- tion. revised, Edinburgh and London, 1880, 115-116.
Gretna Green (just over the Scottish border, and only nine miles from Car- lisle), as the scene of runaway marriages came into prominence in 1754, when Lord Hardwicke's Marriage act discountenanced common law marriages in Eng- land. They were still valid in Scotland, but as marriages by civil magistrates were also lawful many runaway couples from England preferred the apparently more regular form of marriage by the blacksmith who was also a justice of the peace, and therefore authorized to celebrate marriages. The following is a copy of a certificate issued by one of these officials at Gretna Green a century or more ago: "This is to sartfay all persons that may be consernid that A. B from the parish of C. and county of D. and E. F. from the parish of G. in the county of H- and both comes before me and declayred themselves both to be single persons and now mayried by the form of the Kirk of Scotland, and agreible to the Church of England. and givine undre my hand, this 18th day of March, 1793."-The Topo- graphical, Statistical and Historical Gazetteer of Scotland, Glasgow, 1844, I., 716. In the case of Crompton v. Bearcroft, Dec. 1, 1765. the appellant and the respond- ent, both English subjects, and the appellant being under age. ran away without the consent of her guardian. and were married in Scotland: and on a suit brought in the spiritual court to annul the marriage, it was held that the marriage was good. See Buller's Nisi Prius. 113. cited in ? Bacon. Appendix, 101.
2 For an account of the persons banished from Scotland because of their re- ligious belief. and who sailed with George Scot. Laird of Pitlochie, on the ill- fated " Henry and Francis, " which finally arrived at Perth Amboy. in East New Jersey, in December, 1685, see Wodrow's "History of the Sufferings," etc .. I.I .. 484-6. 565-7.
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incide with their own views. As many of them had fled first to Holland, they had there found it very agreeable to their ideas that marriage was regarded as a civil contract, and not as a sacrament. They brought the same thought with them to America, where, moreover, they were confronted with novel conditions that would have made it difficult, if not impossible, to conform to the law and the ecclesiastical requirements of the mother country. Writing under date of 1621, Governor William Bradford, of the Plymouth Colony, says :
May 12 [1621] " was ye first marriage in this place [Edward Winslow to Susan- nah White, widow of William White, who died Feb. 21, 1621] which, according to ye laudable Custome of ye Low-Cuntries in which they had lived, was thought most requisite to be performde by the magistrate, as being a civill thing, upon which many questions aboute inheritance doe depend, with other things most proper to their cognizans, and most consonante to ye Scripturs, Ruth 4. and no wher found in ye gospell to be layed on ye ministers as a part of their office. This decree of law about mariage was published by ye State of ye Low-Cuntries Ano 1590. That those of any religion, after lawfull and open publication, coming be- fore ye magistrate in ye Town or Stat-house, were to be orderly (by them) mar- ied one to another.' Petet's Hist .. fol. 1029.1 And practiss hath continued among not only them but hath ben followed by all ye famous Churches of th Christ in these parts to this time Ano 1646. "2
Winslow being in London in 1635, was brought before the Lords Commissioners of Plantations in America, and was asked by the Archbishop of Canterbury about the practice con- cerning marriage, in Plymouth. " He confessed that haveing been called to place of Magistracie, he had himself maried some. Further he tould their Lordp yt mariage was a civille thinge, & he found no wher in ye word of God yt it was tyed to ministrie, again, they were necessitated so to doe, having for a long time togeather at first no minister ; besides, it was no new thing, for he had been so maried him selfe in Holand, by ye magistrates in their Statt house."3
The General Court of Plymouth Colony enacted, November 15, 1636, that " none be allowed to marry that are under the covert of parents but by their consent and approbation, but in
1 La Grande Chronique Ancienne et Moderne. de Hollande Zelande, West- friese. Utrecht. etc., by Jean Francois le Petit, 1601 and 1611.
2 Hist. of Plymouth Plantation, by William Bradford, the Second Governor of the Colony. Collections Mass. Hist. Society, Fourth Series, Boston. 1856, III., 101. 3 Ibid., 330. And see " The Story of The Pilgrim Fathers, 1606-1623 A. D.," edited by Edward Barber, London, 1897. 164, 365, 366.
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case consent cannot be had then it shall be wth the consent of the Gover, or some assistant to whom the persons are knowne whose care it shall be to see the marriag be fitt before it be allowed by him." The same act also required that notice of the intended marriage " be three severall times published be- fore solemnising of it," in meeting, or where there was no meet- ing place, then by "a writing thereof made and set vpon the usuall publike place for the space of fifteene days. Provided the writing be vnder some majestrats hand or by his order." 1
In an act passed June 4, 1645, the General Court defined a lawful contract of marriage (preliminary to the marriage itself ) to be " the mutuall consent of two parties wth the consent of parents or guardians (if any there be to be had) and a solemme promise of marriage in due tyme to eich other before two com- petent witnesses." 2
Other acts provided for the registration of marriages, etc., with the town clerks-a provision continued in the laws of New Jersey to this day.
The General Court of Massachusetts Bay passed an act, Sep- tember 9th, 1639, " for prevention of all unlawful marriages." which provided :
Henceforth no persons shall be joined in marriage, before the intention of the parties proceeding therein hath been three times published, at some time of publick lecture or town meeting, in both the towns where the parties or either of them do ordinarily reside, or be set up in writing upon some post of their meet- ing house door in public view, there to stand so as it may be easily read, by the space of fourteen days. 4
As some of the clergymen retained their old-world notions of their prerogative in the celebration of marriages, and occa- sionally exercised the same, the General Court enacted in 1647 :
That no person whatsoever in this jurisdiction shall join any persons together in marriage, but the magistrate, or such other as the general court. or court of assistants, shall authorize in such place, where no magistrate is near. Nor shall any join themselves in marriage but before some magistrate or person author- ized as aforesaid. Nor shall any magistrate or other person authorized as afore- said, join any persons together in marriage, or suffer them to join together in
1 Records of the Colony of New Plymouth in New England. . .. edited by David Pulsifer. XI. Laws, 1623-1682. Boston, 1861. 13, 190.
2 Ibid., 46. 3 Ibid .. 52, 189, 190.
4 Charters and Laws of Massachusetts Bay, Boston, 1814, 151; Records of the Colony of the Massachusetts, I., 275.
1x MASSACHUSETTS AND CONNECTICUT MARRIAGE LAWS.
their presence. before the parties to be married have been published according to law. 1
The foregoing statute, it will be observed, virtually prohib- ited clergymen from celebrating marriages, and also prohib- ited common law marriages. The civil control over marriage was again asserted in May, 1656, when it was ordered by the General Court :
That from henceforth any one of the three commissioners for ending small causes in the several towns where no magistrate dwells shall and hereby are au- thorized and empowered to solemnize marriage between parties legally published. provided two of the said commissioners be present. 2
The first settlers of Connecticut closely followed the Massa- chusetts precedents regarding marriage as a civil ceremony, to be performed by a magistrate. The General Court of the Colony of Connecticut enacted, April roth, 1640 :
That whosoeuer intend to joyne themselues in Maridge Couenant shall cause that their purpose of Contracte to be published in some publike place & att some publike meeting in the seuerall Townes where such persons dwell, at the lest. eight dayes before they enter into such Contracte. whereby they ingadge them- selues ech to other; and that they shall forbeare to joyne in Maridge Couenant at lest eight dayes after the said Contracte. And also the Magestrate who solem- nizeth Mariedge betwixt any, shall cause a record to be entered in Courte of the day & yere thereof.3
The act passed in Massachusetts Bay in 1647 was adopted by the Connecticut Colony in 1675, with some slight changes, as follows :
No person whatsoever in this Jurisdiction, shall joyn any persons together in Marriage, but the Magistrates, or such other as the General Court or Court of Assistants shall Authorize in such places where no Magistrate is near. nor shall any Magistrate or other person as aforesaid. joyn any persons together in Mar- riage before the parties to be Married have been published according to law.
One of the earliest laws of New Haven Colony was closely in line with those of her sister New England Colonies, being in these words :
No persons shal be either contracted, or joyned in Marriage before the inten- tion of the parties proceeding therein. hath been three times published, at some time of publick Lecture. or Town meeting in the Town, where the parties, or either of them dwel. or 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 easily read by the space of fourteen daies; and that no man unless he be a Magis-
1 Ibid. Parson Hobart. of the church at Hingham. Mass., having had the te - merity to perform a marriage ceremony. was incontinently haled before the Gov- ernor and Council for thus brooking their authority.
2 Ibid. ; Records of the Colony of Massachusetts Bay, III .. 398; 1V., 255.
3 Colonial Records of Connecticut (1636-1665), 47. An act similar in effect was passed in 1673. See Laws of Connecticut, 1673 (Brinley Reprint. 1865), p 46.
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trate in this Jurisdiction, or expresly allowed by the General Court shall Marry any persons, and that in a publick place. if they be able to go forth, under the pen- alty of five pounds fine for every such miscarriage. 1
Thus the New England settlers who began to pour into New Jersey in 1665 and 1666, came from communities that had become thoroughly imbued with the idea that marriage was a civil contract, sanctioned. it is true, as a Divine ordi- nance, but not a sacrament, and that, so far from a clergyman being required for the performance of the ceremony, that func- tion was or ought to be vested exclusively in the magistrates or other civil officers ?
VI. FRIENDS' MARRIAGE CUSTOMS.
Still another potent influence in New Jersey legislation was that exercised by the Friends, who so largely settled West Jer- sey, under the auspices of William Penn and his associates, and who were so prominently concerned in the government and settlement of East Jersey. Their manner of life was a protest against the excesses which had become insufferably ob- noxious during the reigns of James I. and Charles I. During the consequent political and religious turmoil of the revolt against Charles I. many men sought to evolve new systems of religion, which were merely modifications of the old, and were clearly man-made. George Fox alone attempted to lead the way back to primitive forms and beliefs, seeking to guide men not by the declarations of councils, assemblies, convocations and other ecclesiastical bodies of men, but by the in-dwelling spirit of truth, which should lead all men aright, and make them all Friends. Like all other religious reformers, or lead- ers, he soon gave his attention to the subject of marriage, which lies at the foundation of society, and all social life. As early as 16533 he began to advise thereon, and by 1659 his deliver- ances had assumed this tentative form :
If any friends go together in the Power of the Lord. or find a necessity there- unto to joyn in marriage, after the thing hath been made known between them- selves, before anything be concluded. let it be declared to Friends who are able, in the Wisdom and Power of God to see and feel into it: & if they see the thing in
1 New Haven Colonial Records (1653-1665). II .. 599.
2 See Palfrey's New England, I .. 114, 194; and N. Y. Col. Does., IV .. 793.
3 Journal of George Fox. London, 1891, II .. 8S.
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FRIENDS' MARRIAGE CUSTOMS.
the light and power to stand, it may be declared to friends in the meeting or Meet- ings, to which the parties do belong, towards the end thereof as they are moved, by the parties themselves, or some other friends as they are moved, both of the parties being then present, that it may be by friends felt and seen in the light, and enquirie may be made touching any other engagement, to stop scandals, and things kept sweet. so that you take time in it, and you may be clear, and feel it as it was in the beginning, that no hardness of heart get up; But if the parties who are first acquainted with such a marriage, or any friend or friends have any thing against it, and if any thing be resolved other wise, that then the matter be laid before friends the next General meeting that may be appointed, to consider of things relating to friends, and there to be seen into and ended; If in conven- ient time after the thing is declared nothing appear against it by the parties who are first acquainted with such a marriage, nor by any Friend or Friends; and after things are all sweet and clear, and Friends have unity with it. they may as they are moved, declare it in the end of the General Meeting to which the parties do belong, before the departure of Friends, or as they are moved, they may de- clare it in the mid-time of the Market, on the Market-day in the next Market- town, to such parties outward dwelling as they are moved, or they may not as their freedom is by the Parties themselves, or such other as the Parties do see fit as they are moved; then after a convenient time, and the thing be seen, felt. and had unity with, and an Assembly about twelve Friends met together. they may speak their Testimony (that all may take notice who are the persons) as they are mored, how the Lord hath joyned them together in Marriage, and then a certifi- cate by Friends then present may be given of the Day, Month, and Year, that it may be recorded, and as they are moved, they may declare it to the Magistrate, an they will. or they may not; And that those things that cannot be owned by all Friends. & have unitie with all in the Power and Spirit of God, may not be re- corded. and Unrighteousness. and Filthiness. Fornication, Whoredom, and Adul- tery may be shut out. that the witness of God in all Friends may in that which is done be answered. and Righteousness, and Purity, and Holiness, that all things may be done in the Power. Life, Truth, and Wisdom of the Lord God, and in Unity, and you preserved in Unity. that you may serve God in a New life, and one heart, and holy Seed, and glorifie him in your Souls, Bodies, and Spirit which are his,
that your Conversation may be ordered a right, that you may see the Salvation of God, and know the Marriage that is sanctified by the Word, that you may be the peculiar people. the holy Royal Seed and Generation; and that nothing be record- ed for Money in these things, but freely, a free people and in love serve one an- other. . . Whom God joynes together let no man put a sunder; and that you be a Royal seed, a peculiar people zealous of good works, and to know God joyning together, which is over and above mens putting a sunder .?
This interesting document is fortified with numerous Scrip- ture texts, to show that marriages among the Jews were not celebrated by the priests, but merely by the voluntary consent of the parties, declared in the presence of witnesses.
The first formal endorsement of these recommendations con- cerning marriage, of which we have any record, was by a meeting of Friends of Kent, Sussex, Surrey and Hampshire,
1 Concerning Marriage, etc., by George Fox. London. 1661, 1-7. See also Works of George Fox. VII .. 79-80: also A Collection of Many Select and Christian Epis- tles, Letters and Testimonies, written by . . George Fox; Philadelphia and New York. 1831, I .. passim.
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England, third month, 1659, who thus tersely voiced their tes- timony :
That all Friends intending marriage. or witnessing a motion of the Lord unto that thing. (before they go outwardly together,) bring it to the body or that church to which they are joined; that all in the power of the Lord may feel. and in that particular nothing be done hastily or rashly, but in the fear of the Lord; and in the presence of many witnesses they may be united. according to the ex- ample of the holy men of God in the Scriptures of truth recorded; so that no scandal or blemish may be laid upon the Truth, but all to the light may be brought. which maketh manifest deceit; and that a record in writing of the day. place, and year of such things be kept within that meeting. whereof one or both are members; under which the witnesses may set their names, or some of them.1
This form of marriage was simply the common law mar- riage of England, constituted by the consent of the parties, and duly witnessed. The plan of bringing the matter before the Meeting was practically the same as the publishing of the banns. The Long Parliament in 1653 had legalized marriages before civil magistrates, instead of by a " hireling priest- hood ;" George Fox went a step further in reverting to the earlier and simpler form of marriage without the intervention of other than the parties themselves, with certain prudent reg- ulations to secure due deliberation, and proper publicity, in the celebration of the rite.
So early as 1661 there was an adjudication as to the valid- ity of Friends' marriages, when the Court (Arthur, J.) told the jury 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, he did not know their Opinions, but he did not believe, they went together as Brute Beasts, as had been said of them, but as Christians ; and therefore he did believe the Marriage was law- ful." " And the better to satisfy the Jury, he brought them a Case to this Purpose : -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
1 A Journal. or Historical Account of the Life, Travels, Sufferings. Christian Experiences and Labour of Love in the Ministry of that Ancient. Eminent and Faithful Servant of Jesus Christ. George Fox: London. 1703, I., 587-588: Journal of George Fox. London. 1891, 1 , 520
.
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Question ; and (as the Judge said) all the Bishops did at that time conclude it to be a lawful Marriage."!
In 1666 George Fox attended a marriage of Friends at Oram, when, as he says, he was " moved to open to the Peo- ple the State of our Marriages, declaring ; How the People of God took one another in the Assemblies of the Elders: and how that it was God that did Join Man and Woman together before the Fall. And though Men had taken upon them to Join in the Fall, yet in the Restoration it was God's Joining, that was the right and honourable Marriage ; but never any Priest did Marry any, that we read of in the Scriptures, from Genesis to the Revelations.""
The following is one of the earliest Quaker marriage cer- tificates extant, May 17, 1667 :
These are to certifie all whom the same may concern. that whereas the agree- ment of marriage betwixt William Dewsbury of Durker in the County of York & Alice Meades of the Borough of Warwick & in the County of Warwick single woman, hath been published in the respective churches amongst which they have had their conversations, according to the order of the Spirit of the Lord, for the satisfaction of the Children of Light, who rest satisfied & have unity with them in their proceedings & coming together-Know ye therefore, that upon the sev- enteenth day of the month called May in the year of our Lord one Thousand six hundred sixty & seven. they the said William & Alice did openly & solemnly as in the presence of the Lord & before his people give up themselves in the holy Covenant of God, & did take each other in marriage to live together according to God's holy ordinance & appointment. Gen: ch. 2'd, Ver: 24th & Ch. 24th, Ver. 14th to the end of the chapter.
"And that they were this day openly & solemnly married according to the order of the Church of Christ & the good examples of God's peoples in times past men- tioned in the Holy Scriptures Ist Tim. Ch. 5th Ver. 14th, Ist Corinth: Ch. 7th, Ver. 2nd. Ruth Ch. 4th, Ver. 13th, Gen: Ch 24th Exod: Ch. 2d, Ver. 1st.
And now we whose names are here underwritten being eye & ear witnesses of the Marriage aforesaid & having unity with them in the light & Truth of God do hereby give in our testimonies for them & with them, to remain upon record unto future Posterities, as witnesses for God & his people against all the works of darkness & such as go together therein; out of which God hath called us to bear witness of his everlasting light & Truth upon the earth; in which stands the honourable marriage, whereunto we bear record for the full satisfaction of all people, that in any wise may be concerned therein 3
Robert Barclay, another eminent expounder of Friends' doctrines, thus explained their views concerning marriages :
1 The History of the Rise. Increase and Progress. of the Christian People called Quakers, etc., by William Sewel, third edition, Burlington. 1774, 332; The Friends' Library. Philadelphia, 1847. XI., 410.
2 Journal of George Fox. London. 1709, II .. 90-91: London, 1991, IT., 75.
3 Pennsylvania Magazine of History and Biography, XVIII., 256-257, The names of twenty-four witnesses are appended.
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These Meetings take Care in the Case of Marriages, that all things be clear; and that there may be nothing done in that Procedure, which afterwards may prove to the Prejudice of Truth, or of the Parties concerned; which being an out- ward Thing (that is acknowledged in itself to be lawful) of the greatest Import- anee a Man or Woman can perform in this World; and from the sudden, unwary, or disorderly Procedure whereof. very great Snares and Reproaches may be cast both upon the Parties, and the Profession owned by them: therefore it doth very fitly. among other things, when it occurs, come to be considered of by the People of God, when met. to take Care to preserve all Things right and savoury in the Household of Faith. We do believe, our Adversaries, that watch for Evilagainst us, would be glad how promiscuously or disorderly we proceed in this weighty Matter, that so they might the more boldly accuse us. as Overturners of all human and Christian Order: But God hath not left us without his Counsel and Wisdom in this Thing; nor will he, that any should receive just Occasion against us his People: And therefore in this weighty Concern. we, who can do nothing against the Truth. but all for, and with regard to the Truth. have divers Testi- monies for the Lord. And --
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