USA > New Jersey > Marriage records, 1665-1800, Vol XXII (from various church records) > Part 9
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In " the Concessions and Agreement of the Lords Proprie- tors of the Province of New Caesarea or New Jersey, to and with all and every of the Adventurers and all such as shall settle or plant there," it was carefully provided that all and every person and persons should "freely and fully have and enjoy his and their judgments and consciences in matters of religion throughout all the said Province . . . any law, statute or clause contained, or to be contained, usage or custom of this realm of England, to the contrary thereof in any wise notwith- standing ;" and liberty was granted to the General Assembly to provide for the maintenance of a ministry.3
The General Assembly, moreover, was empowered " To enact and make all such laws, acts and constitutions as shall be necessary for the well government of the said Province, and them
1 N. J. Archives. I., 3-4; Leaming and Spicer's Collection of the Grants, Conces- sions and Original Constitutions of New Jersey, etc., Philadelphia | 1758], 5.
2 N. J. Archives. I., 12-13: Leaming and Spicer. 9 10.
3 N. J. Archives, I., 30; Leaming and Spicer. 14.
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GOVERNOR CARTERET'S POWERS.
to repeal ; provided, that the same be consonant to reason, and as near as may be conveniently agreeable to the laws and cus- toms of his majesty's kingdom of England."1 " Lastly, to en- act, constitute and ordain all such other laws, acts and constitu- tions as shall or may be necessary for the good, prosperity and settlement of the said Province."" In the same broad way the Governor and his Council were authorized and directed " To Act and doe all other thing or things that may conduce to the safetie peace and well Government of the said Province, as they shall see fitt, soe as they bee not contrary to the Lawes of the said Province."3
The Lords Proprietors, in their commission (February 10, 1664-5) to Governor Philip Carteret empowered him " to do all and every other thing and things which unto the Share and Office of Governor doth belong or hath accustomed to belong, as fully and freely as any Governor hath ever had ;"4 and in their instructions to the Governor authorized him, with the advice and consent of the Council, " to make, do, perform and exe- cute all and every Act and Acts, Thing and Things, Powers and Authorities whatsoever, which we ourselves, may, can, ought or could do in, for, relating or concerning the Govern- ment both Civil and Military of the said Province. . . . . Pro- vided also, That all the Executive Part of all the Powers hereby made and given, shall be made and exercised by our said Governor, to and with the advice of the Major Part of our Council," etc.5
Governor Philip Carteret wrote (February 25, 1665-6) to some persons who proposed settling on the Delaware that those coming three years after them, and settling in any other county, " must be conformable to such Laws and Customs as are there Established, Excepting in matters of Judgment and Opinion in Religion."6
1 N. J. Archives, I., 32; Leaming and Spicer, 15.
2 N. J. Archives, I .. 34-35: Leaming and Spicer, 18. There are some verbal dif- ferences between these authorities.
3 N. J. Archives, I., 36; Leaming and Spicer, 19.
4 N. J. Archives, T., 21.
5 Ibid., I., 23 24.
6 Ibid., 53.
1xxV
THE GOVERNMENT OF WEST JERSEY.
After the brief Dutch interregnum, 1673-4, the Duke of York, by his indentures of lease and release, July 28-29, 1674, made a new conveyance to Sir George Carteret for East Jersey (Lord John Berkley having conveyed West Jersey to John Fenwick, March 18, 1673-4),1 "iu as full and ample manner as the same is granted vnto the said James Duke of Yorke" by the patent of his brother the King, June 29, 1664,2 and Sir George confirmed the Concessions of Feb. 10, 1664-5.3 Carteret's widow and the trustees under his will (dated December 5, 1678) by lease and release, February 1-2, 1681-2, ' having conveyed East Jersey to the Twelve Proprietors,4 and they having divided with twelve others, the Duke of York for- mally released to the Twenty-four Proprietors any and all in- terest retained by him in East Jersey, March 14, 1682-3,5 and the King, on November 23, 1683, enjoined upon the inhab- itants " That they do submit and yield all due Obedience to the Laws and Government of the said Grantees, their Heirs and Assigns, as absolute Proprietors and Governours thereof .. . and also to their Deputy or Deputies, Agents, Lieuten- ants, and Officers lawfully Commissionated by them, accord- ing to the Powers and Authorities granted to them."6
By the quintipartite deed of July 1, 1676, West Jersey passed into the ownership of William Penn, Nicholas Lucas, Gawen Lawrie and Edward Byllynge (John Fenwick being considered as having taken title as trustee for Byllynge). The new West Jersey Proprietors in a letter of June 26, 1676, de- clared : " We put the power in the people, that is to say, they to meet, and choose one honest man for each propriety, who hath subscribed to the concessions ; all these men to meet as an assembly there, to make and repeal laws, to choose a gov- ernor, or a commissioner, and twelve assistants, to execute the laws during their pleasure."? The Proprietors, Freeholders and Inhabitants of West Jersey, in their Concessions and Agreements, dated March 3, 1676-7, provided for the govern- ment of the Province by commissioners appointed by the Pro- prietors, until March 25, 16So, after which the inhabitants were
1 Ibid., 205. 2 Ibid., 166. 3 Ibid., 175. 4 Ibid., 366.
5 Ibid., 383.
6 Ibid., 438; E. J. Records. Liber A. f. 1.
7 Ibid., 228.
1
1xxvi
MARRIAGE LICENSES BY GOVERNOR CARTERET.
to choose annually, by " ballating Trunks," the commission- ers, " to govern and order the Affairs of the said Province (pro tempore) for the good and welfare of the said People,"1 who were guaranteed the right " from Time to Time, and at all Times, freely and fully [to] have, and enjoy his and their judg- ments, and the exercise of their Consciences in Matters of relig- ious Worship throughout all the said Province."" By the same instrument provision was made for the election of a General Assembly with power " To Enact and make all such Laws, Acts and Constitutions as shall be necessary for the well Govern- ment of the said Province, (and them to repeal) provided that the same be, as near as may be conveniently, agreeable to the primitive, antient and Fundamental Laws of the Nation of England," and not against the Concessions.3 The title of the Proprietors of West Jersey was confirmed by the Duke of York, by indenture dated August 6, 16So,4 but in the mean- time Sir Edmond Andros, Governor of New York since 1673, had been exercising jurisdiction over West Jersey, and, to a limited extent, over East Jersey also, endeavoring to adminis- ter the Duke of York's Laws.5
MARRIAGE LICENSES BY GOV. CARTERET.
The sovereign power over New Jersey, granted by Patent from King Charles the Second to James Duke of York, and by him granted to Lord John Berkley and Sir George Car- teret, was now to be exercised on the ground by the Governor appointed by the two Lords Proprietors. Thus, Governor Philip Carteret had vested in his person all the powers that the King himself could have exercised, had he not parted with his sovereignty over New Jersey. The long struggle of Henry VIII. with the Church of Rome had determined the question that the Church of England was a National Church, independ- ent of Rome, and having the King for its head, instead of the Pope. Hence, the King had supreme jurisdiction in all mat- ters ecclesiastical, including marriage and divorce. That be- ing so, the Lords Proprietors of New Jersey had like juris- diction here, to be administered by their Governor. Pursuing
1 Ibid .. 243-4, 251. 2 Ibid .. 253. 3 Ibid .. 266.
4 Ibid .. 324. 5 Ibid .. 179-188. 230-235, 270-322. 333-3.17.
1xxvii
MARRIAGE LICENSES BY GOV. CARTERET.
this line of argument, and acting under the authority conferred by his Instructions, Governor Carteret followed the pre- cedents of earlier American Governors, sanctioned by the Duke of York's Laws, and readily granted marriage licenses to those wishing to dispense with the delay and the notoriety of a publication of the banns for three weeks. The earliest known of these licenses was in this form :
" Whereas I have Received Information of a mutuall In- tent and agreement betwene Daniel Perrin of Elizabeth Towne in the Province of New Jersey and Maria Thorel-of the same Towne Spinster to solemnize Mariage together for which they have requested my Lycence and there apearing no Lawfull Impediment for ye Obstruction thereof These are to Require you or Eyther of you to Joyne the said Daniel Perrin and Maria Thorel in Matrimony and them to pronounce Man and Wife, and to make record thereof according to the Lawe in that behalfe provided for the doing Whereof this shall be to you or Eyther of you a sufficient Warrant. Given Vndr my hand and Seale the twelfth day of February Anº 1665 and in the 18th Yeare of his Maties Raign King Charles the Second &c &c
" To any of the Justices of the Peace PHI : CARTERET "
or Ministers Wthin the Government
of the Province of New Jarsey "
Appended is the entry :
" These Couple where Joyned to gether in Matrimony the IS feb 1665 by me J. BOLLEN "1
Licenses in the same form were granted April 30, 1666; August 31, 1667 ; April 21, 1668, and frequently thereafter." As the marriages in these cases were performed by James Bollen, the Secretary of the Province, who entered them on the records, it is very probable that many more licenses were granted of which we have no record, where the ceremony was performed by other Justices of the Peace.
1 E. J. Records. Liber No. 3. fo. 6.
2 Ibid .. folios 8. 11. 15, et seqq.
1xxviii EARLIEST MARRIAGE LAWS IN NEW JERSEY .
EARLIEST MARRIAGE LAWS IN NEW JERSEY.
The marriage customs of a people are as enduring as those relating to burials. It could not be expected that the first settlers of New Jersey would in their new home adopt prac- tices on this most important subject differing from those to which they had been wont in their previous places of resi- dence. When the Assembly of East Jersey met, in 1668, it was dominated by the eight English members from Elizabeth- town, Newark, Woodbridge, Middletown and Shrewsbury, Bergen having the other two Dutch members. They were mainly from New England (some of them having for a time sojourned on Long Island), and as was to have been expected they brought with them New England ideas, which, after all, were not so different from Old England's practices, save as modified by novel situations in a new country. This East Jersey Assembly enacted, May 30, 1668, respecting mar- riage :
" For the preventing of unlawful Marriages, it is ordered and enacted, that no person or persons, Son, Daughter, Maid or Servant, shall be Married without the consent of his or her Parents, Masters or Overseers, and three Times published in and at some publick Meeting or Kirk, where the Party or Par- ties have their most usual abode ; or set up in writing their Purposes of Marriage, on some Publick Ilouse, where they live, and there at least to abide for the space of Fourteen Days before Marriage, which is to be performed in some publick Place, if possible may be, and none but some approved Min- ister or Justice of the Peace within this Province, or some chief Officer, where such are not, shall be allowed to Marry or admit of any to join in Marriage, in their Presence, and under the Penalty of Twenty Pounds for acting contrary liereunto, and to be put out of their Office, according to the Liberty of Conscience granted by the Lords Proprietors in their Conces- sions : Always provided, That it is and may be lawful for the Governor to Grant his Licence, under his Hand and Seal, to any Person or Persons that are at their own disposing, or to any other under the Tuition of their Parents, Masters or Over- seers, to join in Matrimony ; Provided, that the Parents, Mas-
1
1xxix
EARLIEST MARRIAGE LAWS IN NEW JERSEY.
ters or Overseers are present and consenting thereunto, or that their consent be attested by some publick Officer, and present- ed to the Governor before the granting thereof, and the others to clear themselves by Oath or by Certificate."1
This combined the essential features of the Massachusetts Bay act of 1639 ; the statute of New Haven Colony, of 1653 or earlier ; and the Duke of York's Laws.
SOME EARLY DIVORCES.
As the Governor's jurisdiction in licensing marriages was recognized by the foregoing statute, so, conversely, he was ad- mitted to have power in granting divorces, as appears by this instrument, in 1669 :
" These are to Give Notice to all persons Whome It may Concerne that Whereas I am Informed that Hopewell Hull hath VnLawfully taken to Wife the Daughter of John Martin of Woodbridge, Without Observing the Lawes and Customes of England Or these parts of America, I the Governor of this province doe declare that the Mariage & that all others that are or shall be Comitted In the same Manner to be null Void and of none Effect, And they that doe Live In that VnLawfull Es- tate of Matrimony May be Prossecuted as such as doe Live In the Estate of fornication, And that the Children begotten by them are to be accompted Bastards and not Capable of Inher- itance. Given vndr my hand and Seale the 29th day of De- cemb" 1669.""
The following form of divorce by the mutual consent of the parties was regarded as valid :
"Know all prsons Whom It may Concerne That Marma- duke Potter now living whin the Corporation of Woodbridge In the province aforesaid Apearing before mee James Bollen one of his Maties Justices of the peace & Secretary of said Province hath declared Vpon his Corporall Oath that hee never was Legally married to one Mary Roade now Liveing at the
1 Leaming and Spieer. 81. This was re-enacted Nov. 24. 1675. - Ibid .. 107.
2 East Jersey Records, in office of the Secretary of State. at Trenton. Liber 3, p. 32. It is probable that Hull remarried his wife. Mary Martin, with all due cer- emony. for John Martin, in his will. March 17. 1687-8. names his " son " Hopewell Hull as one of the overseers and assistants of his executrix. - E. J. Deeds, Liber B. f. 220: and see N. J Archives. XXI .. 107. 109, 194.
1xxx
SOME EARLY DIVORCES.
hoare kills vpon Delaware River or Bay And that hee, the said Potter doth acquit and discharge the said Mary from any In- gagement, promise, Contract, or any Otherwise pretending her the said Mary Roade to be his Lawfull Wife and that shee hath his free Consent to dispose of herselfe In mariage to Whom shee shall think fitt, On condition that shee the said Mary Roade shall give vnder her hand atested by some Magis- trate and Entred vpon Record the like discharge to him the said Marmaduke Potter that then this discharge of him the said Marmaduke to be Authentick and remain in force, Otherwise to be Accounted void and of none Effect Dated at Woodbridge In the province of New Jersey the 28th 7tember 1676."1
Here is another instance :
"TO ALL XPIAN PEOPLE to whom these prsents shall come and to whom the prmisses Do or may Concerne I Thomas Davies of Woodbridge in the County of Middx and in the province of East New Jersey gent Send Greeting WHEREAS there was a Mariage formerly had and Solemnized in the Island Barbados beyond the Seas, between me the said Thomas Davies and one Margaret Blew then both of the par- ish of St. Peeters in the Island aforesaid on or about the sec- ond day of October in the yeere of our Lord One Thousand six hundred and Seventy and Three, Now KNOW YEE That I the said Thomas Davies as well for divers good causes and weiglity Considerac'ons me therevnto moveing as also att the speciall Instance and request of the said Margaret HAVE and Do by these prsents acquitt Release Exonerate and Discharge the said Margarett of and from the said Bonds tyes and obli- gac'ons of Mariage made as aforesaid as much as in me Lyes giveing her the said Margeret full power and liberty to Dis- pose of herselfe as she shall thinke fitt WITNESSE my hand this 24th day of August Anno Dm 1683 Thomas Davies. - Signed and Delivered in the prsence of John Baker Sam" Winder James Emott. August 24th, 1683. This Day came before me Sam" Winder and James Emott and did acknowledge they saw
1 Ibid . Liber 3. p. 128. This appears to be a divorce from matrimony, rather from a mere engagement or contract of marriage. Mary Roade doubtless gave her consent. for on November 25, 1677, Marmaduke Potter was married to Mary Bingla. at Woodbridge, after banns set up on November 8. 1677.
lxxxi
SOME EARLY DIVORCES.
the abovenamed Thomas Davies signe the above written In- strument, who afterwards did deliver the same as his Act and Deed. Tho. Rudyard."1
This manner of divorce was apparently based on a clause of the Duke of York's Laws, providing that in case of the involuntary absence of a husband or wife for five years, on his or her return "it shall and may be lawfull for the said man or woman to Challenge his or her pre-marriage, and obtain an order for their Cohabiting as formerly, but if neither shall sue for such an order, They may by mutuall agreement Enter a Release to each other in the office of Records, and both re- main free from their former obligations."?
SECOND MARRIAGES.
The Friends steadily enjoined upon their people the emi- nent propriety of those entering upon second marriages pro- viding properly for their own children by previous marriages. George Fox by way of example details at length the pains he was at when about to marry Margaret Fell, to see that she had secured her own children by her former marriage, and to as- sure himself that they were satisfied.3 The following docu- ment illustrates how this injunction was carried out in one in- stance in Fenwick's Colony (Salem), New Jersey :
"TO ALL PEOPLE to whome the prsent Writting shall come Ann Craven late of Lyme-house in the Dish of Stepney in the Countie of Middx wthin the kingdome of England and now of the Towne of New Salem in Fenwicks Colony wtbin the Province of New Casaria or New Jersey Widowe sendeth greeting WHEREAS John Fenwick late of Bynfeild in the Countie of Berkes wthin the said Kingdome Esq. one of the Lords or Cheife Proprietrs of the said Province and Pticulerly of Fenwicks Colony lying wthin the same By his deed poll dated the tenth day of the seaventh moth last past in this prs- ent yeare Did graunt bargaine sell alien enfeoffe and confirme Unto her the said Anne Craven her heires and assignes forever
1 Ibid., Liber A. p. 40.
2 Duke of York's Laws. 36.
3 Journal of George Fox. London. 1891. II .. 117. The date of this marriage in
the Bristol Register of Friends, is 27th of 8th Month, 1669.
H
1xxxii
SECOND MARRIAGES.
All that tract of three hundred Acres of Fast Land Marsh and Swampes then and hereafter to be called Cravens Choyce wth the Rivers Rivoletts Quaries Woods Comodities advantages, and hereditamts wtsoever in the said Deede Poll ?ticulerly menc'oned As in and by the same being Enregestered wthin the said Colony Relac'on being there Unto had Doth and may ap- peare Now KNOW YEE that for and in Considerac'on of a Mar- riage shortly to be solemnized betweene her the said Ann Craven and Charles Bagaley late of Choptanke in the Countie of Talbott wthin the Province of Mary-Land Tanner As alsoe for diverse other good Causes and Considerac'ons her the said Anne Craven hereUnto moveing Hath given graunted bar- gained sold aliened assigned and Confirmed, And by these prsents Doth give graunt bargaine sell alien enfeoffe assigne and Confirme Unto him the said Charles Bagaley and Unto his heires and assignes for ever All that the said Tract of three hun- dred Acres of fast land marsh, and swampes called or knowne by the name of Cravens choyce aforesaid Together with the River Rivoletts quarries woods Comodities Advantages and other hereditamts wtsoever Unto the said Cravens choyce and . Tract of three hundred Acres of Up-Land Marsh and Swampes belonging or in anywise apptaining and alsoe all the Estate Right title interest pro ptie clayme and demand wtsoever of her the said Ann Craven of in or too the said Cravens Choyce and tract of three hundred Acres of fast Land Marsh and Swampes and all and singular other the ₱misses herein before menc'oned or intended to be given graunted bargained sold and assigned or any pte or pcell thereof And the Reverc'on and Reverc'ons Remainder and Remainders thereof To HAVE AND TO HOLD the said Cravens Choyce and tract of three hundred Acres of fast Land Marsh and Swamps wth thapprtenances herein and hereby bargained and sold enfeoffed assigned and Confirmed and every pt and cell thereoff Unto him the said Charles Bagaley his heires and assignes forever To the only Use and behoofe of him the said Charles Bagaley his heires and assignes forever Upon Condic'on notwthstanding And to and for the Uses intents and purposes in manner and forme following (that is to say) to the Use and
1xxxiii
IN CASE OF SECOND MARRIAGES.
behoofe of her the said Anne Craven during her naturall life if it shall happen that she survives him the said Charles Bagaley and from and after her decease : Then to the Use and behoofe of the heires and assignes of him the said Charles Bagaley for- ever PROVIDED that if he the said Charles Bigaley his heires execrs administrat's or assignes shall well and truely paye or satisfie or cause to be well and truely payd or satisfied in Star- ling money or Goods Equivalent the sum of Eighteene pounds Unto Ann Craven when she shall attaine to the Age of sixteene yeares Unto Thomas Craven the sum of thirteene pounds when he shall attaine to the Age of one and twentie yeares and Unto Peter Craven the sum of thirteene pounds when he shall attaine to the Age of one & twentie yeares or wthin one month after that they the said three Children of her the said Ann Craven Atie to these prsents doe attaine Unto their generall ages aforesaid or if two or any of them attaine (by being sur- vivor) Unto her or his age aforesaid And that then the said porc'on or porc'ons be not then payd to them twoe or one of them so surviveing as aforesaid That then the said Cravens Choyce and three hundred Acres of Land Marsh and Swampes shall be and envre to the Use and behoofe of them the said Thomas Craven Peter Craven and Anne Craven to be divided Amongst them or the survivor or survivors of them and to the heires and assignes of them or the survivor of them for ever and not otherwise. In Wittness whereof she the said Anne Craven hath hereunto set her hand and seale the -- day of the Eleventh moth in the yeare by the English Acct 1679 etc.
" Signed sealed and delivered ANN CRAVEN "
in the prsence of
" Samuell Hedge Secry ( ?)
" Fenwick Adamss
" Richard Tyndall 1
MORE COLONIAL MARRIAGE LAWS.
Returning to the subject of legislation concerning marriage in New Jersey, it may be noted that in the Fundamental Con-
1 Liber Salem B, Records in office of the Secretary of State, at Trenton. p. 65
1xxxiv
MORE COLONIAL MARRIAGE LAWS, 1682-3.
stitutions for the Province of East New Jersey in America, Anno Domini 1683, it was provided :
" XX. That all Marriages not forbidden in the Law of God, shall be esteemed lawful, where the Parents or Guardians be- ing first acquainted, the Marriage is publickly intimated in such Places and Manner as is agreeable to Mens different per- swasions in Religion, being afterwards still solemnized before creditable Witnesses, by taking one another as Husband and Wife, and a Certificate of the whole, under the Parties and Witnesses Hands, being brought to the proper Register for that End, under a Penalty if neglected."1
The influence of the Quakers was clearly shown in the foregoing provision, and also in the following act of the East Jersey Assembly, in March, 1682 :
" That all Marriages (not forbidden by the Law of God) shall be lawful, Parents or Guardians shall be first consulted, and consenting thereto, and the Intention of Marriage shall be published at least three weeks before it be Solemnized by tak- ing one another as Man and Wife, the Publication shall be En- tered and Registered by the Clerk of the Assembly, or publick Place where it shall be Published, and the Solemnization shall be performed by and before some Justice of the Peace or other Magistrate within the Province, unless the Justice of the Peace or Magistrate refuse to be present, and the Certificate thereof entered in the Register of the Town and County where it is finished.">
About the same time (May 2-6, 1682) the West Jersey Assembly enacted as follows :
" That justices of the peace have power, and are hereby authorized, within their Jurisdiction, to solemnize Mar- riages ;2 both Parties so to be Married having first published their intent of Marriage, Fourteen Days in some publick Place to be appointed for that Purpose ; and that the Parents or the Trustees manifest and show no lawful reason against it. And if any Justice shall presume to join a Couple in Matri-
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