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In 1639, Massachusetts Bay colonists pressed Governor John Winthrop to adopt a “body of laws” that would restrict the considerable power that “rested in the discretion of magistrates.” Having survived both the transatlantic voyage and the rigors of the new world in their quest to establish a religious utopia away from the demands of church and state in England, the colonists were understandably loath to give their local officials unchecked power. Winthrop offered several reasons why the leaders of the colony opposed the request: the colonists did not yet have enough experience to develop laws appropriate for their new circumstances, and their charter forbid them from adopting laws repugnant to the laws of England. He used marriage to buttress his second point by reminding the colonists that magistrates were performing marriages in the colony even though only ministers were authorized to do so in England. If they codified this nonconforming practice, the colonists risked being penalized for failing to comply with their charter. Winthrop lost the battle against codification--a Body of Liberties was adopted by the colony in 1641--but the colonists were persuaded to rely for the time being on judicial rather than legislative oversight of family matters; not only did magistrates continue to perform marriages in Massachusetts Bay without explicit legislative authorization, but colonial courts, in clear violation of the ecclesiastical laws of the Church of England, began granting divorces in 1643.

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26 Yale J.L. & Feminism 29-89 (2014)