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on December 7, 1682, the Quaker practice being more clearly embodied in the statute:

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All marriages not forbidden by the law of God, shall be encouraged; but the parents and guardians shall be, if possible, first Consulted; and the parties clearnes from all other engagements assured by a Certificate from some Credible persons where they have lived; And by their affixing of their intentions of Marriage on the Court, or Meeting-house Door of the County where in they Dwell, one Month before the solemnizing thereof; And their said marriage shall be solemnized by taking one another as husband and wife. befor Sufficient Witnesses; And a certificate of the whole under the hands of parties and witnesses, (at least twelve,) shall be brought to the Register of the County, where they are Marryed, and be Registered in his office.1

A similar act was passed 10th of 3d Month, 1684, but with the modification that the certificate referred to might be produced to "such Religious Society to which they relate; or to some one Justice of the peace of the County in which they Live." This was still further amended by an act passed in 1693, which inserted the proviso: "that there be at least one Justice of the Peace of the County where such marriage shall be, at the Solemnization thereof.”3

III. MARRIAGE IN NEW JERSEY.

THE SOVEREIGN POWER IN THE COLONY.

In tracing the laws and customs concerning marriage in New Jersey in the Colonial period we may find it instructive to review briefly the origin of the sovereign power in the Colony, and the agencies through which it was exercised.

By the patent of King Charles II. to his brother James, Duke of York, March 12, 1663-4, for the vast territory extending from St. Croix to the Delaware, there was not only conveyed the territory, but "full & absolute power & authority to correct punish pardon governe & rule all such the Subjects of vs our heires and Successors as shall from time to time adventure themselves into any of the parts or places aforesaid or that shall or doe at any time hereafter inhabit within the same according to such Lawes Orders Ordinances, directions & instruments as by our said dearest Brother or

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3 Ibid.. 229. A similar act was passed November 27, 1700, which was reenacted October 28, 1701, and has remained unrepealed ever since. By an act approved June 23, 1885, licenses are required as a prerequisite to marriages. See Statutes at Large of Pennsylvania, II., 21; Pamph. Laws of 1885, p. 146.

his Assignes shall be established And in defect thereof in cases of necessity according to the good descretions of his deputies, Commissioners Officers or agents respectively as well in all causes and matters Capital & Criminall as civill, both marine & others1 Soe alwaies as the said Statutes ordinances & proceedings bee not contrary to but as neare as conveniently may bee agreeable to the Lawes Statutes & governm't of this our Realme of England. . . . And alsoe to make, ordeyne & establish all manner of Orders Lawes directions Instructions formes & ceremonies of Governmt & Magistracy fitt & necessary for & concerning the Governmt of the Territories & Islands aforesaid; Soe alwaies as the same be not contrary to the Lawes & Statutes of this our Realme of England but as neare as may be agreeable thereunto; and the same at all times

1 Closely following the language of the first patent from the Crown of England for lands in America. granted by Queen Elizabeth, June 11, 1578, to Sir Humphrey Gilbert. wherein she gave him, his heirs and assigns, forever, "full Power and Authority, to correct, punish, pardon, govern and rule, as well in Causes capital or criminal, as civil, all such her Subjects or others, as should adventure themselves in the said Voyages, or should at any Time thereafter inhabit the said Lands," etc. The patent to Sir Walter Raleigh, in 1581, was in similar terms. By the Virginia Charter of May 23. 1609, the London Council of the Virginia Company was authorized to appoint Governors, and "to make, ordain, and establish all Manner of Orders, Laws, Directions, Instructions, Forms, & Ceremonies of Government & Magistracy, fit & necessary, for & concerning the Government of the said Colony & Plantation." The Governors so appointed, or at least some of them, exercised the most absolute sway. ruling as by martial law. - Hackluyt's Voyages, III., 174-6, 297-300; Hazard's State Papers, I., 26, 36; Stith's History of Virginia, Williamsburg. 1747, 5, 294, 305, 322, Appendix, 17; Chalmers, I., 9. 11. The patent of Charles I., to Sir Edmund Plowden, for New Albion (including New Jersey in great part), followed the precedents established by Elizabeth in granting ample powers of government -Pennsylvania Mag. of Hist. & Biog., VII., 55. In like manner, the Dutch West India Company, authorized under its charter to appoint a Director-General and Council, to administer the affairs of New Netherland. delegated large powers to that officer, who, moreover, interpreted his commissions and instructions with the utmost liberality.-O'Callaghan's New Netherland, I., 400; II., 18. The charter of Nova Scotia, granted by James I. to Sir William Alexander, September 10, 1621, and the Novodamus of Charles I., July 12, 1625, for the same territory, confer the same powers of government as the earlier English patents for lands in America. See the patents to Alexander set out in full in "Narrative of the Oppressive Law Proceedings, and other measures, resorted to by the British Government, and numerous private individuals. to overpower the Earl of Stirling, and subvert his lawful rights. Written by Himself," etc., Edinburgh, 1836, 55, 79. The foregoing recitals are instructive in the light of the commission to Gov. Philip Carteret, of New Jersey, hereinafter quoted. The Governors of New England had power which "differed little from that of the other magistrates," and they were more subject to the popular will than those in the other Colonies.-Palfrey's New England, I., 67-68; II., 9.

hereafter to putt in execution or abrogate revoke or change not only within the precincts of the said Territories or Islands. but alsoe upon the Seas in goeing & comeing to & from the same as he or they in their good discretions shall think to bee fittest for the good of the Adventurers & Inhabitants there."1

66

Even at this early date the practical English mind recognized the fact that laws made in and for England might not be exactly adapted to strange conditions in the new world, and that much latitude must be conceded to the inhabitants and adventurers" of the distant territories in framing laws for their government, who would find it impossible to conform always to the laws and customs of the home country.

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When the Duke of York, by his lease and release of June 23-24, 1664, conveyed to John Lord Berkley and Sir George. Carteret the present territory of New Jersey, the grant embraced not only the lands but " their and every of their appurten'nces in as full and ample manner as the same were granted to the Duke himself, "and all the Estate Right Title interest benefitt advantage clayme & Demand of the said James Duke of York," etc.2 This was understood to confer upon the Duke's grantees full powers of government.

In the Concessions and Agreement of the Lords Proprietors of the Province of New Cæsarea 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 notwithstanding;" and liberty was granted to the General Assembly to provide for the maintenance of a ministry.3

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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, Concessions 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.

to repeal; provided, that the same be consonant to reason, and as near as may be conveniently agreeable to the laws and customs of his majesty's kingdom of England." "Lastly, to enact, constitute and ordain all such other laws, acts and constitutions as shall or may be necessary for the good, prosperity and settlement of the said Province."2 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 ;" and in their instructions to the Governor authorized him, with the advice and consent of the Council, "to make, do, perform and execute 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 Government both Civil and Military of the said Province. Provided 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

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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, I must be conformable to such Laws and Customs as are there Established, Excepting in matters of Judgment and Opinion in Religion."

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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 differences between these authorities.

3 N. J. Archives, I., 36; Leaming and Spicer, 19.

4 N. J. Archives, I., 21.

5 Ibid., I., 23-24.

6 Ibid., 53.

1

THE GOVERNMENT OF WEST JERSEY.

lxxv

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), in 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,1 and they having divided with twelve others, the Duke of York formally released to the Twenty-four Proprietors any and all interest retained by him in East Jersey, March 14, 1682-3,5 and the King, on November 23, 1683, enjoined upon the inhabitants"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, Lieutenants, and Officers lawfully Commissionated by them, according to the Powers and Authorities granted to them."6

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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, declared: "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 governor, 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 government of the Province by commissioners appointed by the Proprietors, until March 25, 1680, after which the inhabitants were

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