History From America's Most Famous Valleys
Were issued by the Secretary of the Province of New York
Previous to 1784.
By E. B. O'Callaghan
Printed by order of Gideon J. Ticker, Secretary of State.
Albany: Weed, Parsons and Company, 1860.
THE origin of Marriage Licenses, in the territory comprised within the State of New York, merits a word or two of explanation.
Under the Roman-Dutch law, which obtained in New Netherland on its first colonization, the following particulars were requisite to constitute a legal marriage:
All persons desirous of entering the married state were obliged to appear before the Court of Justice, or the Ministers of the Church of their place of abode, where they had their fixed domicil for the last year and day, and to apply there, for three Sundays or Market Days, when publications of the banns were to be made in the Church or the Court House, or other places where the Court of Justice was held; and every one who had any impediment to propose, was obliged to state the same in the meantime, on pain of being otherwise deprived of that right.
These proclamations were designed to preserve the right of a third person; marrying in church being held to be only an external ceremony of a public confirmation introduced likewise for better security.
As cases, however, might arise where it would be impossible to comply with the general law, provision was made for dispensing with such proclamations for legal and valid reasons, by consent of the government, or (some held) of the judge.*
From these provisions of law, Marriage Licenses-which are only dispensations from the proclamation of Banns- took their origin in this country.
When the Colony passed into the hands of the English, the practice continued to prevail; Marriage License issued by them, bearing date as early as 29th December, 1664,+ being found on record. Subsequently, the collating to Benefices, granting Licenses of Marriage and Probate of Wills were declared in the Royal Instructions, to be exclusively reserved to the governor. ++
The License was issued from the Provincial Secretary's office, and in return those obtaining it gave a Penal Bond in the sum of £500, that there was no " lawful let or impediment of Pre-Contract, Affinity or Consanguinity, to hinder the parties being joined in the Holy Bonds of Matrimony, and afterwards their living together as Man and Wife."
There are forty volumes of these Bonds in the office of the
Secretary of State. The names of the parties licensed
to marry, contained in these and in other State Records, having been indexed in alphabetical order, application was
* Van Leeuwen's Commentaries on the Roman-Dutch
Law. London: 1820, p. 72.
+ New York General Entries, I. 85.
++ New York Colonial Docnmente, in. 372, 668.
made to the Hon. GIDEON J. TUCKER, late Secretary of State, for authority to print the Index, for public convenience, and it composes the present Volume.
The date prefixed to each name is that of the License or of
the Bond. The abbreviation for the title of the volume
of Records is affixed to the name.
EXPLANATION OF ABBREVIATIONS
A. R., Refers to volumes known as Albany Records, and indorsed-Translations from the Dutch.
C. A., Refers to volumes indorsed-Court of Assize.
C. M., Refersto volumes indorsed-N. Y. Colonial MSS.
C. Min., Refers to volumes indorsed-Council Minutes.
E., Refers to volume indorsed-Entries.
G. E., Refers volume indorsed-General Entries.
M. B., Refers to volumes indorsed-Marriage Bonds.
O. W, L., Refers to volume indorsed-Orders, Warrants and Letters.
O. W., Refers to volmne indorsed-Orders, Warrants.
P. B., Refers to volume indorsed-Pass Book.
W. O. P. Refers to volume indorsed- Warrants, Orders, Passes.
The practice of issuing Marriage Licenses fell into total desuetude in this State, on the Evacuation of New York
by the British in 1783. It continued for some years longer in the State of Pennsylvania, as appears by the following letters of Bishop White, to the Governor of that Commonwealth :
When I had ye Honor, yesterday, of stating to your Excellency my Objections to ye present System of Marriage Licenses, & you condescended to recommend to me ye promoting of a clerical Representation of ye Subject ; I expressed my Doubts as to ye Expediency of such a Measure. My Reason is, that I do not think ye Clergy, as such, materially interested in the correcting of ye Evil. We marry whom we please, under no other Restriction than what should prevail in every Line of Life, if not invading of ye Rights of others. It is true, a Stranger may be imposed on, by big imagining that a License from Government is something more than a blank Paper. But to prevent this, I have made it my Business to advertise every such, of ye Church under my care, of ye State of ye Case & of his own Responsibility.
It was as a citizen that I introduced ye Subject to your Excellency ; And ye Evils -which, as such I reprobate in ye present System are as follow:
1. The Practice of issuing Licenses is, as I apprehend, without any Foundation of Law. The only Passage in our Acts of Assembly that can be supposed applicable, & this can be so by Implication only, defines a lawful License to be one which contains ye Consent of the Parent or Guardian expressed in ye Body of it. But such a License I never saw, nor do I know of any Clergyman who has.
2dly. It seems to me (I speak it with submission) disreputable to Government to be in ye Exercise of an Act of Authority, disregarded (as far as I can hear) & that with Impunity, by the most respectable Clergymen in this City; who instead of thinking themselves under any Obligation, either of Law or of Morals, to ask for ye Licence, consider it rather as a Snare, against which they are to be on their Guard.
3dly. The Licenses, as issued, are a most cruel Invasion of domestic Rights. For, as if it were not enough, that ye Citizen has ye Peace of his Family exposed to ye Acts of ye desperate Adventurer, ye Villain robs him of his Child under a warrant with ye Seal of ye State annexed to it, & signed by ye first Magistrate. I hope your Excellency will not mistake me ; I am as much an Enemy to domestic Tyranny as to ye civil; And I know that there sho'd be a certain Age when young People may dispose of themselves without the Consent of their Parents. What I contend for is, that there should also be a Period, during which ye Parent should have an uncontroulable Authority over ye Child, in ye Article of preventing Marriage.
As to ye Bond of £100 taken at the office, I think nothing of it. To my certain Knowledge it has been taken, both before & since ye Revolution, from persons not worth 100 pence ; And besides, there are Doubts as to ye Recovery of ye Penalty. I should be sorry to be understood, in this Part of ye Subject, as reflecting either on ye worthy Gentleman who has, nominally, ye Administration of ye Licenses, or on his Deputy, who is supposed to do his Business. On ye contrary, I declare that I believe ye Fault to be, not in them, but in ye System, which while it prevails, must involve ye present Consequences, let who will have ye Administration; And besides, I have not seen above one or two Licenses during Col. Biddle's Secretaryship nor long before.
4thly. It may be of Importance to mention that ye Practice has been stigmatised as illegal by ye Council of Censors. I speak from Report, not having seen their Resolves on ye Subject. But my Authority is such that I cannot doubt ye Truth of it.
And now, Sir, if your Excellency is disposed to listen to my Proposal of a Remedy, it is as follows:
1. In regard to all Persons marrying agreeably to ye Notifications required by their respective religious Societies, ye Clergyman celebrating ye Marriage sh'd be responsible in a pecuniary, or, if you please, on repeated Transgression, in a corporal Penalty. If meer publication be made sufficient, it will amount to Nothing; because it may be made & is made in some Congregations) in such a Manner as to be a meer Evasion.
2dly. As to Persons who may not come within ye Rules of any religions Society, some Mode of Publication sh'd be provided for them. There is one indeed, but it is thought insufficient.
3dly. The License sh'd be considered as a Dispensation from ye Notoriety of Publication; And accordingly, Government sh'd assume ye Responsibility. The dispensing Officer should have a Reward proportioned to his Trouble & Risque. He sh'd be liable to a Penalty, according to ye Damage sustained at ye Discretion of ye Court, within certain Limits. He sh'd therefore, be ye Judge of ye Amount of ye Security to be required; And if he take insufficient Bondmen, it sh'd be at his Peril. The most material Difficulty that can occur in ye above Plan is ye discretionary Power of ye Court. But I know no other Substitute for ye English Mode, which is ye taking of Oaths that there is no legal Impediment.
Your Excellency's desiring of me to state my Sentiments in writing has occasioned you ye Trouble of reading this long Letter. I am not tenacious of any Advice I have presumed to oner; But am fixed in my knowledge of ye Fact & I hope ye Freedom of ye Citizen will justify my declaring it that ye present Practice makes Government contribute to ye sacrificing of ye Peace, Honor & Fortunes of Families.
I have ye Honor to subscribe myself,
Your Excellency's very humble Servant,
His Excell'y, Thos. Mifflin, Esq.
Dec. 22, 1790.
In Compliance with your Excellency's Intimation, I am emboldened to lay before you briefly, the Substance of what I formerly delivered to you more at large, on the present State of Law and Practice, on ye Subject of Marriage.
The Objections which I had the Honor to state to you against ye Marriage Licenses, were that it is a taking of Money out of ye people's pockets, without even ye Colour of Law, that it had been stigmatized on this Acct. by the Council of Censors; and that to my certain Knowledge, it prostitutes ye Chief Magistrates Name & invades Domestic Rights, by the Sanction it gives to clandestine Marriages.
It is true, the Abuse is considerably lessened, by ye intire Neglect which is shown the License, by ye greater number of the Clergy of all Denominations; who depend on their own Precaution against what they think the Snares of ye govennental License. But I submit to your Excellency whether it be not a great Evil to leave Matters on this Footing.
It is now so well understood that no Man takes out a License, but either thro' Ignorance or for a Cover to an illegal Transaction, that we may presume the Doing without them will more and more prevail. It must be obvious to every Man how much this subjects the Happiness of families to the sudden Determination of very young People. "Under such a Dispensation from all preparatory Measures, would it be surprising to hear, that a Girl of the Age at which Matrimony may be contracted, were induced by a Toy or by a Sugar Plumb, to put an artful Man into ye possession of a Fortune; out of which he would only have to pay £50 for ye Irregularity of ye Manner. Impositions may happen far short of this, yet very distressing to Families and ruinous to the Peace of ye Parties.
So far as ye Clergy in particular are concerned, it subjects ye conscientious to great Difficulties; It gives those of ye opposite Description unbounded License; and it subjects to ye Determination of either (and that in situations of great Delicacy) a Question involving Property and Character and Happiness.
In what Manner an evil of so great Magnitude is to be remedied, I presume not to say. But I will hint what I think ye great Outline of ye Business ; viz.: That in Favor of these who either cannot, or who, from conscientious Scruples, will not pay for a License, there should be pointed out an unequivocal Mode of Publication ; and that a License being a Dispensation from ye Notoriety of Publication, the Officers issuing it should be accountable and should receive a Fee proportioned to ye Trust and to ye Vigilance required in it.
With Sentiments of Respect &
Esteem, I have the honor to write
myself, your Excellency's
very humble Servant,
Directed, His Excellency, the Governor.* WM. WHITE.
*Pennsylvania Archive*, XII. 81, 314.
FORM OF BOND
GIVEN on obtaining a Marriage Licence for RICHARD MONTGOMERY, Esq., afterwards Major-General in the American Army.
KNOW all Men by these Presents, That Henry B. Livingston, of Dutchess County, Esquire, and John Livingston, of New York, Gentleman, are held and firmly bound unto our Sovereign Lord GEORGE the Third, by the Grace of GOD, of Great-Britain, France, and Ireland, King, Defender of the Faith, &c. in the Sum of Five Hundred Pounds, current Money of the Province of New-York, to be paid to his said Majesty, or his Heirs and Successors: For the which Payment, well and truly to be made and done, We do bind Ourselves, and each of Us, our and each of our Heirs, Executors, and Administrators, and every of them, firmly by these Presents. Sealed with our Seals, dated the Fourth, Day of August, in the Thirteenth Year of his said Majesty's Reign. Annoqne Domini, One Thousand Seven Hundred and Seventy-Three.
THE CONDITION of this OBLIGATION, is such, That whereas the
above-bounden Henry B. Livingston and John Livingston have obtained a LICENCE
OF MARRIAGE for Richard Montgomery, of the Outward of New- York, Gentleman,
& Jennet Liningston, of Dutchess County, Spinster, of the other Party.
Now if it shall not appear hereafter, that they, or either of them the said
Richard Montgomery & Jennet Livingston have any lawful Let or Impediment
of Pre-Contract, Affinity, or Consanguinity, to hinder their being joined
in the Holy Bands of Matrimony, and afterwards their living together as Man
and Wife: Then this Obligation to be void, and of none Effect; or else to
stand, remain, abide, and be in full Force and Virtue.
HENRY B. LIYINGSTON, [L. S.]
JOHN LIVINGSTON. [L. S.]
Scaled and Delivered in the
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