A History of Matrimonial Institutions, Vol. 2 of 3Howard, George Elliott
History
A History of Matrimonial Institutions, Vol. 2 of 3
Howard, George Elliott
Families; Marriage -- History
The continuity of English law and custom in the New England colonies
is not more striking than the innovation. First of all it would
indeed be strange if the planting of new states in the wilderness
should not have afforded to thoughtful men a rare opportunity for
freeing themselves from the trammels of antiquated methods and
traditions which the "inertia of vested interests" might yet for
ages sustain in the native land. In some instances the influences of
a new and primitive environment might cause an unconscious return to
the practices of earlier days. Religious and ecclesiastical ideas
must necessarily play the leading part. In fact, the zeal with
which the Pioneers of Plymouth and Massachusetts Bay proscribed the
ceremonies and usages of the Roman and Anglican churches has had
much to do with the character of civil institutions in the United
States. On the part even of the Puritan there was thus sometimes a
strong reaction in favor of the temporal power in matters hitherto
regarded as exclusively pertaining to the spiritual jurisdiction.
The sway of the so-called theocracy in Massachusetts and New Haven
tended, sometimes inadvertently, to foster the growth of the
American idea of complete separation of church and state. Thereby
the forces of local self-government were quickened. Thus for a time
the town-meeting and the congregation were practically one and the
same; but authority was exercised in the name of the lay township
and not in that of the ecclesiastical parish. So also the probate
of wills, the administration of estates, the exercise of chancery
jurisdiction,[357] and the supervision of primary and secondary
education[358] were taken out of the hands of the church and vested
mainly in the local community. The process of secularization in
legal functions proceeded with rapid strides.
[Footnote 357: In Massachusetts the county courts had an
equity jurisdiction; _Mass. Col. Rec._, V, 477, 478; _Acts and
Resolves_, I, 75, 356; WASHBURN, _Judicial Hist. of Mass._, 34,
166, 167; HOWARD, _Local Const. Hist._, I, 330, 331. See the able
article by WOODRUFF, "Chancery in Massachusetts," _Law Quarterly
Review_ (London, 1889), V, 370-86.]
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