Paul “Skip” Stam has idiosyncratic notions about case law. Encountering obstacles to the conservative agenda in established law, or a constitution, he has reached through them for obsolete iterations of dogma in archaic documents such as the Magna Carta, the Code of Justinian or more recently, as with the marriage amendment, the Acts of the Albemarle. Ignoring the lineage of precedent, he finds the future in history’s discards.
It is a curious affectation that Stam dotes on quirks in outdated pre-revolutionary law to justify assaults on post-revolutionary freedoms and liberties. His royalist tendencies bespeak an aristocratic and autocratic disdain for civil government rather than any zeal for individual freedoms. In supporting the drive to restrict the human right of individuals to form partnerships for life he has oft quoted the 1669 Acts of the Albemarle as the foundation of marriage in North Carolina. How quaint and reckless to claim a foundation on the shifting sands of history in the Albemarle Sound.
Last year Skip Stam and Dale Folwell claimed that the cornerstone of that foundation had been laid in 1655.
We all know about the time tested definition of marriage in North Carolina going back to 1655.
As I wrote in “Folwell’s Folly”, they referred to the year that Nathaniel Batts became North Carolina’s first permanent European settler. Batt’s story is a tale of two wives, a bigamous dead-beat dad. Having dropped that claim, Stam has since repeatedly referred to 1669 as the date of foundation of marriage in North Carolina and, the Acts of the Albemarle as the instrument that codified it. Yet the 17th Century legislation and its context have not been examined for appropriateness as a tool for excising North Carolina citizens from family life in the 21st Century.
The Albemarle Assembly that enacted the Acts was comprised of no more than 25 men, 12 of them land freeholders elected only by freemen. The 12 freeholders joined the Governor and the Governor’s Council of 6 to 12 men to form the Assembly to enact laws, but only to the extent that they met with the approval of the 8 Lords Proprietors in London who controlled the larger Carolina colony by charter from Charles II. The Governor and his Council were appointed by the Lords Proprietors. Albemarle was the northernmost of three governmental units established in the Carolinas in 1665. The area population at the time was about 5,000. Excluding women, children, servants, apprentices, slaves and other non-freemen, the electorate was quite small compared to North Carolina’s current population of 9.8 million.
Ostensibly self-governing, the Albemarle Assembly could only enact laws consistent with English law and without the ratification of the Lords Proprietors the laws would expire after a year and a half. The Assembly was created in a 1665 tract called the “Concessions and Agreements of the Lords Proprietors of the Province of Carolina”. The 1669 Acts themselves repeatedly preface articles with the words:
“be it therefore enacted by the Pallatine* and Lords Proprietors by and with the advice and consent of this present Grand Assembly”
*The Pallatine was the most senior of the Lords Proprietors.
The general thrust of the Acts of the Albemarle was to create conditions conducive to the rapid and orderly settlement of the colony for the economic benefit of the Lords Proprietors. To that end settlers were to be free to follow their own religious preferences, free of taxes for initial years and held harmless from suits for debts they left behind elsewhere. Religious freedom, called “Liberty of Contience” in the “Concessions and Agreements”, was particular attractive to Quakers, persecuted in England by laws in 1662 and1664. Many other colonies including Virginia were likewise inhospitable to Quakers who found relative freedom in Carolina. This religious freedom did not extend to freedom to solemnize marriages, a right reserved for the Church of England.
The initial absence of the Church of England in the Carolinas led the Proprietors to include marriage in the Acts of the Albemarle to control it on behalf of the King as the official head of the Church of England. The Church of England had been established in 1534 when it broke away from the Catholic Church and Henry VIII assumed the position of “Supreme Head of the Church of England” because Pope Clement VII refused to annul Henry’s marriage to Catherine of Aragon so that Henry could marry Anne Boleyn. Henry, as is popularly known, went on to accumulate six wives.
In the same time-frame that the Lords Proprietors were ratifying the 1669 Acts of the Albemarle they also adopted and forwarded their proposed “Fundamental Constitutions of Carolina” drafted by doctor/philosopher John Locke for and with his patron Lord Ashley, who became the Earl of Shaftesbury. In an 1812 History of North Carolina, Hugh Williamson writes:
“Their object, as they expressed themselves, was to make the government of Carolina agree, as nearly as possible, to the monarchy of which it was a part, and to avoid erecting a numerous democracy”.
Neither Shaftesbury nor Locke had ever set foot in Carolina, and never did. The “Fundamental Constitutions” were hugely unpopular and were never ratified by the colony. While they codified some freedoms they also proved more restrictive than the terms provided by the original royal Charter, the Concessions and Agreements and, subsequent Acts of the Assembly.
For example, while seven or more people could form their own church, it was declared that:
“the Church of England; which being the only true and orthodox and the national religion of all the King's dominions, is so also of Carolina; and, therefore, it alone shall be allowed to receive public maintenance, by grant of parliament.”
In addition no person over 17 who was not a member of a church might “have any benefit or protection of the law, or be capable of any place of profit or honor”. The “Constitutions” would have created a feudal system of landed aristocracy and hereditary rights. The “Constitutions” chafed the Carolina settlers leading to unrest and by 1700 had essentially been abandoned, (including a different provision for marriage sometimes referenced by Skip Stam). Williamson writes:
The proprietors, or some of them, had lately smarted under a government that was called republican. They were zealous royalists; and they expected, by the help of a powerful aristocracy, to obviate the return of republican measures; but we are sorry to find, among the works of John Locke, who was an advocate for civil and religious liberty, a plan of government, that in some articles does not consist with either.
As the 18th century evolved towards the precipitation of the American Revolution government in North Carolina became increasingly aligned with the Church of England, especially after 1729 when the Crown purchased back the colony from the Lords Proprietors.
Laws regarding marriage became more restrictive after 1700 and the status of women diminished. In 1715 legislation prohibited common-law marriages. Only the Church of England could solemnize marriage yet non-Anglicans paid taxes to support the Church, which also had civil duties such as the maintenance of official weights and measures, animal control and, the destruction of vermin.
Under English law a husband and wife became one unit, and the woman’s individual legal identity was subsumed by her husband’s, even after separation. Divorce did not become law until the 19th century. Legal separations were rare and complicated. There are some records of pre-nuptial agreements and most of these protected the property of widows and their children.
The earliest female settlers had somewhat more freedom, by necessity rather than by design. When the population was dispersed public life was less formal. Domestic, public and gender roles were fluid. Quaker women were strong, families were not necessarily nuclear (the average household size was 7.3). As the colony developed women in settled areas, particularly Presbyterians, led less engaged public lives and tended more towards monastic seclusion in domestic domains submissive to husbands.
Slave marriages, frequently arranged by slave owners, were not legally recognized. Marriage between indentured servants was virtually impossible. Pregnacy in servants was penalized by extension of the period of servitude. Among whites only adult males were taxed, while all blacks, male and female, over 12 were taxed, as were the white wives of black males.
Despite government support for the Church of England, and begrudging accommodations of alternatives like Quakers, North Carolina remained relatively immune to organized religion. Common law marriage was common and formal weddings were the exception rather than the rule. The 1715 legislation prohibiting common-law marriages included other attempts to regulate morality like bans on Sunday labor, hunting, and fishing and on profane cursing and drunkenness.
Marriage as presented in the Acts of the Albemarle was less about protecting the union of any one man and one woman than it was about protecting the marriage between the Church of England, the English Crown and the Lords Proprietors. It was less a codification of any tradition of marriage than it was an attempt to act as proxy for the absent Anglican clergy and, to present a public hypocrisy of morality. I believe that reference to the Acts of the Albemarle of 1669 by Skip Stam and others as the foundation of marriage in North Carolina is inappropriate. It may be a significant date but it’s more of a one-night stand than the basis of significant relationships. As I said in the earlier post about Nathaniel Batts:
If you’re going to use the state’s history as the basis of having millions of people vote on a change to the state constitution to proscribe the rights of a minority of North Carolinians it’s worth getting the facts right.