[Footnote 706: _Ibid._, 433. By the act of 1646 the penalty for celebration without license or banns was 1,000 pounds of tobacco: _ibid._, 332.]
[Footnote 707: _Ibid._, II, 49-51. By the law of 1788 the issue of even "incestuous" marriages are made legitimate: _ibid._, XII, 689.]
[Footnote 708: See chap. xiv, i, _b_), below.]
[Footnote 709: HENING, _Statutes_, III, 149-51.]
[Footnote 710: See the act of 1705, _ibid._, 443, 444; and that of 1748, _ibid._, VI, 83.]
No relaxation in the illiberal rule requiring solemnization by a clergyman of the establishment was made until after the Revolution. First in 1780 the court of each county was authorized to license not more than four ministers of any religious society to solemnize marriages. In 1784 ministers of all denominations, except itinerants, were put on the same level in this regard. Already the preceding year laymen "in the western waters" had grudgingly been empowered to act, provided they make use of the ritual of the English church; but it was not until 1830 that it became possible, when the court saw fit, to appoint laymen for this purpose in all counties of the commonwealth; and this policy has survived to the present hour.[712]
[Footnote 712: See chap, xvi, where this legislation is treated in detail.]
But if the Anglican clergy during the entire colonial period were given a monopoly of matrimonial business, it by no means follows that the dissenters, whose numbers were constantly gaining, ever tamely submitted. On the contrary, they often took the law into their own hands and had their marriages celebrated before their own ministers, or resorted to the local magistrates. This fact is made clear by the act of 1780 and subsequent statutes, by which marriages irregularly contracted are declared valid. Indeed, as early as 1677 we have evidence that dissenters refused to observe an unjust and probably invalid law. A memorial of the bishop of London in that year laments that in Virginia there is a great "defect in the execution of those two wholesome laws ... of the Assembly, the one prohibiting all marriages to be solemnized without a lawful minister imposing the punishment due for fornication on the parties & making their children illegitimate & so not capable of inheriting, the other prohibiting any persone the ministeriall Function without proveing himself to have first received Orders from some Bishop in England."[713]